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Home My WebLink AboutJanuary 07, 2014 AgendaAGENDA CITY OF DENTON CITY COUNCIL January 7, 2014 After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a Work Session on Tuesday, January 7, 2014 at 3:00 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: WORK SESSION Citizen Comments on Consent Agenda Items This section of the agenda allows citizens to speak on Consent Agenda Items only. Each speaker will be given a total of three (3) minutes to address any items he /she wishes that are listed on the Consent Agenda. A Request to Speak Card should be completed and returned to the City Secretary before Council considers this item. 2. Requests for clarification of agenda items listed on the agenda for January 7, 2014. Receive a report, hold a discussion and give staff direction on the initiation of the Better Block Program. 4. Receive a report, hold a discussion and give staff direction regarding the naming of the Center for Visual Arts. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Government Code, as amended, or as otherwise allowed by law. CLOSED MEETING Closed Meeting: A. Consultation with Attorney — Under Texas Government Code Section 551.071 Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas Well Ordinance regulation of gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, statutory preemption and /or impacts of federal and state law and regulations as it concerns municipal regulatory authority and matters relating to enforcement of the ordinance. B. Deliberations regarding Real Property — Under Texas Government Code Section 551.072; Consultation with Attorneys — Under Texas Government Code Section 551.071. City of Denton City Council Agenda January 7, 2014 Page 2 1. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the acquisition of real property interests located (1) in the M.E.P. & P. R.R. Co. Survey, Abstract No. 1469, located generally in the 1500 block of North Mayhill Road; (2) in the Gideon Walker Survey, Abstract No. 1330, located generally in the 700, 800 and 900 blocks of South Mayhill Road; and (3) in the David Hough Survey, Abstract Number 646 and the John B. Brandon Survey, Abstract No. 1515, located generally within the 1400 through 2100 block range of South Mayhill Road, all tracts located in the City of Denton, Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the acquisition or condemnation of the real property interests referenced above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. ( Mayhill Road Widening and Improvements project & Municipal Landfill) 2. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the James Perry Survey, Abstract No. 1040, John Scott Survey, Abstract No. 1222, John Bacon Survey, Abstract No. 1541, and the John Davis Survey, Abstract No. 326, City of Denton, Denton County, Texas, and generally located along Western Boulevard between Airport Road and Jim Christal Road. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. 3. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the sale of real property interests in the William Neill Survey, Abstract 971, Denton County, Texas, being generally located at 221 N. Elm Street and 217 W. McKinney Street. Consultation with the City's attorneys regarding legal interests related to this matter where a public discussion of these legal issues would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING IN ACCORDANCE WITH THE PROVISIONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE `PUBLIC POWER EXCEPTION). THE CITY COUNCIL City of Denton City Council Agenda January 7, 2014 Page 3 RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. GOVT. CODE, §551.001, ET SE Q. (THE TEXAS OPEN MEETINGS ACT) ON ANY ITEM ON ITS OPEN MEETING AGENDA OR TO RECONVENE IN A CONTINUATION OF THE CLOSED MEETING ON THE CLOSED MEETING ITEMS NOTED ABOVE, IN ACCORDANCE WITH THE TEXAS OPEN MEETINGS ACT, INCLUDING, WITHOUT LIMITATION §551.071- 551.086 OF THE TEXAS OPEN MEETINGS ACT. Regular Meeting of the City of Denton City Council at 6:30 p.m. in the Council Chambers at City Hall, 215 E. McKinney Street, Denton, Texas at which the following items will be considered: REGULAR MEETING 1. PLEDGE OF ALLEGIANCE A. U.S. Flag B. Texas Flag "Honor the Texas Flag — I pledge allegiance to thee, Texas, one state under God, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations /Awards I . UNT Heart of Dallas Bowl Win Proclamation 2. Peterbilt Motors Company 75t1' Anniversary Proclamation 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1) Lee Allison regarding Mission Street paving exaction. 4. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to implement each item in accordance with the Staff recommendations. The City Council has received background information and has had an opportunity to raise questions regarding these items prior to consideration. Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent Agenda (Agenda Items A — T). This listing is provided on the Consent Agenda to allow Council Members to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, Consent Agenda Items A — T below will be approved with one motion. If items are pulled for separate discussion, they may be considered as the first items following approval of the Consent Agenda. A. Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the Mayor to execute an Interlocal Ambulance Agreement between the City of Denton and Denton County for ambulance services; and declaring an effective date. City of Denton City Council Agenda January 7, 2014 Page 4 B. Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the Mayor to execute an Interlocal Fire Protection Agreement between the City of Denton and Denton County for fire protection services; and declaring an effective date. C. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a lease agreement by and between the City of Denton, Texas and Denton County Archers, a Texas not - for - profit corporation; and providing an effective date. The Public Utilities Board recommends approval (6 -0). D. Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract with the Houston- Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program for the acquisition of one (1) Aerial Fire Trick for the City of Denton Fire Department; and providing an effective date (File 5437— Purchase of one (1) Aerial Fire Trick from Siddons - Martin Emergency Group in the amount of $1,406,673). E. Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement for professional engineering services in support of the development and implementation of a Roadway Impact Fee and Rough Proportionality Policy for the City of Denton with Kimley -Horn and Associates, Inc. in an amount not -to- exceed $276,500; providing for the expenditure of funds therefor; and providing an effective date (File 5436— awarded to Kimley -Horn and Associates, Inc.). F. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of a HazMat ID Elite Command System for the City of Denton Police and Fire Departments (Funded 100 percent through the 2012 Homeland Security Grant Program), which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5443— awarded to Smiths Detection in the not -to- exceed amount of $54,950). G. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of seven (7) Throwbot XT Reconnaissance Robot Audio Kits for the City of Denton Police and Fire Departments (Funded 100 percent through the 2012 Homeland Security Grant Program), which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5444— awarded to ReconRobotics, Inc. in the not -to- exceed amount of $99,190). H. Consider adoption of an ordinance authorizing the City Manager to execute a Cooperative Purchasing Program Agreement with the City of Cedar Hill, Texas under Section 271.102 of the Local Government Code, to authorize mutual participation in various City of Cedar Hill and City of Denton contracts for the City of Denton City Council Agenda January 7, 2014 Page 5 purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 5430— Cooperative Purchasing Agreement with City of Cedar Hill). L Consider approval of the minutes of: November 19, 2013 November 22, 2013 J. Consider adoption of an ordinance amending Ordinance No. 2003 -258, as amended by Ordinance 2011 -042, relating to the Economic Development Partnership Board ( "the Board ") to add to the membership of the Board; repealing all conflicting ordinances and portions thereof, and providing an effective date. K. Consider adoption of an ordinance finding that a public use and necessity exists to acquire (I) fee simple to a 7393 acre tract (the " Mayhill Tract "); (II) fee simple to a 4.508 acre tract (the "Landfill Tract "); and (III) a Slope Easement (herein so called), encumbering a 0.804 acre tract, each affected tract located in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached to the ordinance and made a part thereof, located generally in the 1400 block of South Mayhill Road (the "Property Interests "), for (A) as concerns the Mayhill tract and the Slope Easement, the public use of expanding and improving Mayhill Road, a municipal street and roadway; and (B) as concerns the Landfill Tract, for the public use of expanding and improving the City of Denton Landfill, a permitted municipal Solid Waste disposal facility; authorizing the City Manager or his designee to make an offer to (1) Cynthia Bond Ables, John Henry Bond, III, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. A /K /A Joseph Pierre Doye, Jr. Patricia Ann Doye A /K /A Patricia Doye Kendall (collectively, the "Owner "); (2) successors in interest to the owner to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of Seven Hundred Eighty Five Thousand Thirty Six Dollars and No Cents ($785,036.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "B "; authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. ( Mayhill Road Widening and Improvements project - Bond et al - Parcel MI-14) L. Consider adoption of an ordinance finding that a public use and necessity exists to acquire (I) fee simple to a 1.029 acre tract (the " Mayhill Tract "); (II) fee simple to a 0.624 acre tract (the "Landfill Tract "); and (III) a Slope Easement (herein so called), encumbering a 0.076 acre tract, each affected tract located in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached to the ordinance and made a part thereof, located generally in the 1900 block of South Mayhill Road (the "Property Interests "), for (A) as concerns the Mayhill Tract and the Slope Easement, the public use of expanding and improving Mayhill Road, a municipal street and roadway; and (B) as concerns the Landfill Tract, for the public use of expanding and improving the City of Denton Landfill, a permitted municipal solid City of Denton City Council Agenda January 7, 2014 Page 6 waste disposal facility; authorizing the City Manager or his designee to make an offer to (1) Wilma M. Haggard (The "Owner "); (2) Successors in interest to the owner to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of One Hundred Thirty Three Thousand Eight Hundred Fifty Nine Dollars and No Cents ($133,859.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "B "; authorizing the expenditure of funds therefor; and providing an effective date. ( Mayhill Road Widening and Improvements project - Haggard - Parcel M136) M. Consider adoption of an ordinance finding that a public use and necessity exists to acquire (I) fee simple to a 7.628 acre tract (the " Mayhill Tract "); (II) fee simple to 2.276 acres (the "Landfill Lands "); and (III) a Drainage Easement (herein so called), encumbering 0.196 acre, all lands located in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached to the ordinance and made a part thereof, located generally in the 2100 block of South Mayhill Road (the "Property Interests "), for (A) as concerns the Mayhill Tract and the Drainage Easement, the public use of expanding and improving Mayhill Road, a municipal street and roadway; and (B) as concerns the Landfill Lands, for the public use of expanding and improving the City of Denton Landfill, a permitted municipal solid waste disposal facility; authorizing the City Manager or his designee to make an offer to (1) Kevin Nelms and Richard and wife, Nancy Greb (collectively, the "Owner "); (2) successors in interest to the owner of the to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of Eight Hundred Sixty Seven Thousand Three Hundred Forty Seven Dollars and No Cents ($867,347.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "B "; authorizing the expenditure of funds therefor; and providing an effective date. ( Mayhill Road Widening and Improvements project - Nelms /Greb - Parcel M137 & M138) N. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas ( "City "), as Buyer, and Jerry M. Kelsoe (the "Owner "), as Seller, to acquire (I) fee simple to a 0.216 acre tract; and (I1) a temporary constriction, grading and access easement, encumbering a 0.152 acre tract, all tracts situated in the M.E.P. & P.R.R. Co. Survey, Abstract No. 1469, located in the City of Denton, Denton County, Texas, and being generally located in the 1500 block of North Mayhill Road; for the purchase price of Three Hundred Thirty Nine Thousand Two Hundred Forty Five Dollars and No Cents ($339,245.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement'), as attached to the ordinance and made a part thereof as Exhibit "A ", authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. ( Mayhill Road Widening and Improvements project — Kelsoe Parcel M024) City of Denton City Council Agenda January 7, 2014 Page 7 O. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale, by and between the City of Denton, Texas ( "City "), as Buyer, and Shiron Investments, LLC, a Texas limited liability company (the "Owner"), as Seller, to acquire fee simple to a 0.418 acre tract situated in the Gideon Walker Survey, Abstract No. 1330, located in the City of Denton, Denton County, Texas, and being generally located at 781 and 801 South Mayhill Road; for the purchase price of One Hundred Sixty Thousand Dollars and No Cents ($160,000.00), and other consideration, as prescribed in the Contract of Sale (the "Agreement'), as attached to the ordinance and made a part thereof as Exhibit "A ", authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. (Municipal Landfill Acquisition Tract) P. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale, by and between the City of Denton, Texas ( "City "), as Buyer, and Shiron Investments, LLC, a Texas limited liability company (the "Owner"), as Seller, to acquire fee simple to a 2.141 acre tract situated in the Gideon Walker Survey, Abstract No. 1330, located in the City of Denton, Denton County, Texas, and being generally located at 961 S. Mayhill Road; for the purchase price of Five Hundred Ninety Thousand Dollars and No Cents ($590,000.00), and other consideration, as prescribed in the Contract of Sale (the "Agreement'), as attached to the ordinance and made a part thereof as Exhibit "A ", authorizing the expenditure of funds therefor; and providing an effective date. (Municipal Landfill Acquisition Tract) Q. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale between the City of Denton, Texas and Westpark Group, L.P., a Texas Limited Partnership contemplating the purchase by the City of Denton, Texas of an approximate 3.00 acre tract of land situated in the James Perry Survey, Abstract 1040, and the John Davis Survey, Abstract 326, City of Denton, Denton County, Texas, for public purposes; authorizing the City Manager, or his designee, to execute, deliver and accept a Special Warranty Deed, and any other documents necessary to accomplish closing of the transaction contemplated by the Contract of Sale; authorizing the expenditure of funds therefore; and providing an effective date. R. Consider adoption of an ordinance of the City of Denton, Texas, abandoning and vacating an Access Easement (the "Original Easement'), granted by Westpark Group, LP, to the City of Denton, Texas, pursuant to that certain Original Easement, dated December 29, 2006, and recorded as document Number 2007- 20897, Real Property Records, Denton County, Texas, said Original Easement encumbering 3.874 acres of land located in the James Perry Survey, Abstract No. 1040, Denton County, Texas, and authorizing the City Manager or his designee to accept an Alternative Access Easement (herein so called), as attached hereto and made a part hereof as Exhibit "A ", by and between the City of Denton (The "Grantee "), and Westpark Group, LP, A Texas Limited Partnership (The "Grantor "), contemplating the grant by Grantor and acceptance by Grantee of an Alternative Access Easement encumbering a 4.1880 acre tract of land, more or less, for the purchase price of ten and no /100 Dollars ($10.00), said Alternative City of Denton City Council Agenda January 7, 2014 Page 8 Access Easement generally located east of Western Boulevard and south of Jim Christal Road, and located in the John Bacon Survey, Abstract No. 1541, and the James Perry Survey, Abstract No. 1040, Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. S. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of Excess Liability Insurance Coverage for the City of Denton , through the City's sole broker of record, McGriff, Seibels and Williams of Texas, Inc., and in accordance with Chapter 252.024 of the Texas Local Government Code such coverage is exempt from the requirements of competitive bidding; and providing an effective date (File 5454 awarded to Starr Indemnity in the one (1) year not -to- exceed amount of $208,000 and a three (3) year not -to- exceed amount of $688,480). T. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of Excess Workers; Compensation Insurance Coverage for the City of Denton, through the City's sole broker of record, McGriff, Seibels and Williams of Texas, Inc., and in accordance with Chapter 252.024 of the Texas Local Government Code such coverage is exempt from the requirements of competitive bidding; and providing an effective date (File 5455 awarded to Midwest Employers Casualty in the one (1) year not -to- exceed amount of $91,996 and a three (3) year not -to- exceed amount of $304,408). 5. ITEMS FOR INDIVIDUAL CONSIDERATION A. Consider adoption of an ordinance approving a lease agreement to be executed by the City Manager, by and between the City of Denton, Texas and American Biosource, LLC, a Texas domestic limited liability company, for a certain approximate 1.004 acre tract of land situated in the Gideon Walker Survey, Abstract Number 1330, in the City of Denton, Denton County, Texas, located in the vicinity of 1527 Mayhill Road, Denton, Denton County, Texas; providing an effective date. 6. PUBLIC HEARINGS 7. CITIZEN REPORTS 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a City of Denton City Council Agenda January 7, 2014 Page 9 public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. CERTIFICATE I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of Denton, Texas, on the day of 2014 at o'clock (a.m.) (p.m.) CITY SECRETARY NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349 -8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1- 800- RELAY- TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Planning & Development ACM: John Cabrales, Jr. SUBJECT Receive a report, hold a discussion and give staff direction on the initiation of the Better Block Proj ect. BACKGROUND On September 17, 2013, staff made a presentation to the City Council on the Better Block program. At the conclusion of the discussion, Council directed to staff further evaluate the program and attend the Better Block event scheduled in Fort Worth at Bluebonnet Circle. Staff has met with the Better Block consultants and attended the event in Fort Worth. The purpose of this report is to update Council on the Better Block program and forward a recommendation for Council's consideration. The Better Block program is a planning tool that acts as a living charrette to obtain feedback from the community in real time on the redevelopment of a designated project area. It allows communities to actively engage in the build -out process and looks for innovative solutions to achieve the shared vision of the community. Beyond the temporary improvements that show how a street could be improved, strictures redeveloped and repurposed, one of the strongest outcomes of the Better Block program is creating a greater sense of community. The Better Block concept was created by Jason Roberts and began in April 2010, when a group of community organizers, neighbors, and property owners got together to revitalize a block in an underutilized corridor. The group worked together to bring all of the resources from the community and transformed the block into a walkable and bikeable neighborhood destination. The group introduced bike lanes, cafe seating, trees, plants, pop -up businesses, and lighting where it did not previously exist. Since then, the Better Block concept has spread and has been developed throughout the world where some temporary improvements have become permanent. Today, Team Better Block includes Andrew Howard, and assists cities with planning, designing and measuring the impacts of Better Block program as an alternative to the typical urban planning process. Agenda Information Sheet January 7, 2014 Page 2 1 Since September 7, 2013, staff met with Jason Roberts and Andrew Howard of Better Block and discussed with them the program specifics in greater detail. The Better Block program for the City of Denton seeks to build on the revitalization of downtown and surrounding areas. Although the actual location for program has yet to be determined, the three month program is designed to address issues that may preclude redevelopment. The process for selecting a potential location includes significant community feedback to get "buy in" that not only fosters greater involvement but also promotes participation the day of the event. Through this process, the Better Block consultants survey potential areas and present potential program locations to the community. During this process, the Better Block location is selected and the consultants guide this process with the community to the actual event. Generally, the Better Block program occupies a city street that is between 200 -400 linear feet and contains vacant buildings and /or underutilized buildings and spaces, preferably near a residential neighborhood that has access to public transit and allows for other means of connectivity (i.e., vehicular, bicycle, or pedestrian). One of the concerns expressed to the consultants were the metrics that are used to ascertain the success of the Better Block program at the conclusion of the event. As a one -day event, staff was concerned that the long term sustainability of the event could not be attained through anecdotal measurements that do not reflect land use and economic factors. The consultants provided staff with a list of Placemaking Measurement Categories /Indicators (Exhibit 1) they have used in other events across the country. The Placemaking Categories include a list of categories and associated measurements /indicators that evaluate the program's success from several factors. For example, by utilizing the Daytime, Evening, and Weekend Use of the property from the Use and Activity Category with the Increased Tax Revenue and Change in Adjacent Business Retail Sales from the Economic Impact Category, the City will get a greater sense if the resulting changes to the Denton Development Code will result in the desired outcome. The eight -phase process for the Better Block program costs $40,000 and includes: 1) Public and Private Space Survey 2) Better Block Community Build Team 3) Identity Package 4) Better Block Build Plan 5) Better Block Starter Kit 6) Better Block Market Analysis Survey 7) Better Block 8) Better Block Wrap Up Each phase contains project description and specific deliverables. Agenda Information Sheet January 7, 2014 Page 3 The Better Block program differs from the traditional planning process, not only for site selection and implementation but also in the level of involvement and degree of private investment. The traditional planning process involves an assessment of existing conditions, then visioning, defining goals and objectives, a needs analysis, alternative scenarios, plan development, and finally, strategies and actions. These actions surround community involvement that provides feedback at various stages of the process. The entire process can last anywhere from six months to over a year, depending on the complexity of the project. The site selection is based on initial feedback, due to an issue or concern by the community or public officials. The Better Block program condenses this process into 90 days and utilizes community involvement to drive site location and proposed improvements. It builds off of community involvement to promote active participation and uses social capital to occupy spaces, constrict improvements, and attend the event. The level of interest builds as the event nears. The city of Norfolk, Virginia, utilized the Better Block program and according to a report published by the Massachusetts Institute of Technology, community engagement was enhanced by rapid placemaking. Several key takeaways were identified that support this hypothesis: • Temporary urban interventions can help a community envision permanent changes in the future • City officials can use temporary zoning and transportation "grace periods," allowing placemakers to break regulations to explore permanent regulatory changes • Communities build powerful connections around the shared experience of "making" a vision for the future together • Process and community engagement can be as important or more important than the "product" of a built -out place Staff attended the Fort Worth Better Block Program; however, it was not hosted by the consultant. The Mayor's Office hosted the Better Block event that was held in Fort Worth to promote a proposed change in land use in the area surrounding Bluebonnet Circle. This event was largely held outdoor with what appeared to be minimal private investment. Many of the surrounding buildings were open and occupied but had little involvement with this event. In speaking with Fort Worth representatives, the goal of this event was to inform the public of the proposed changes and improvements that are planned. Staff has several photos to share to illustrate the activities surrounding this event. OPTIONS I . Direct staff to move forward with the Better Block Program as presented. 2. Direct staff to move forward with the Better Block Program different than what was presented. 3. Direct staff to take no action at this time. Agenda Information Sheet January 7, 2014 Page 4 RECOMMENDATION Based on the information received, staff recommends that Council direct staff to move forward with the Better Block Program as presented. EXHIBITS 1. Placemaking Measurement Categories /Indicators 2. Denton Better Block Proposal 3. Suggested Areas for Better Block Program Respectfully Submitted by: 'Z�'-04L John Cabrales, Jr. Assistant City Manager Prepared by: Brian Locldey, AICP Director, Planning and Development Exhibit I Placemaking Measurement Categories /Indicators PLACES I N THE MAKING 1 63 Cl I E G0I -�.' I IMIEASUli fIEIMIEIN "rs /IIINII�)IICArOli''is Use and Activity Mixed -use index Use and Activity Daytime use Use and Activity Evening use Use and Activity Weekend use Use and Activity number of `indicator' users such as families, older people, or racial or ethnic mix Use and Activity Transit usage stats (bike and transit) Use and Activity Occupied buildings Use and Activity Number of public events Use and Activity behavior mapping Use and Activity Timelapse photography Use and Activity Population Use and Activity Walkscore Use and Activity Building conditions (e.g. facade scores) Use and Activity How much mentinoed in the press? Use and Activity online reputation, hashtags, Flickr keywords Use and Activity # of ads for sale and rentail properties naming public place as amenity ( "proximity to.. "), Use and Activity Security perception survey Use and Activity User satisfaction survey Economic Impact Employment rate/ gross jobs Economic Impact Indicator businesses (e.g. concentrations of consumption /socializing - oriented businesses such as restaurants and bars, as well as independent businesses) Economic Impact Direct (salaries), indirect (eg chair vendors), Induced (general raise in spending based on increase in local HH income) spending Economic Impact Property values Economic Impact increased tax revenue Economic Impact change in adjacent business retail sales Economic Impact Number of businesses Economic Impact increase in premium in property sales (what people are willing to pay over the typical in the area) Economic Impact commercial and residential occupancy rates Economic Impact increase in median area wages Economic Impact Tax leins on buildings or properties in adjudication Public Health and Healthy Living Crime statistics Public Health and Healthy Living Sanitation rating Public Health and Healthy Living Air quality Public Health and Healthy Living Decibil levels Public Health and Healthy Living Traffic speed Public Health and Healthy Living Traffic counts Public Health and Healthy Living Baseline public health data: asthma rates, life expectancy, etc. Public Health and Healthy Living crashes /injury data for pedestrians cars, bikes Social Capital Social network mapping Social Capital Rates of volunteerism Social Capital Number of community meetings related to placemaking project Social Capital Number and diversity of community partners involved Social Capital Number and diversity of people who show up to community meetings (how many repeat attendees ?) Social Capital Value of in -kind donations Social Capital Diversity and geographic range of financial supporters Social Capital Diversity and geographic range of users of public place Social Capital mental maps of residents' perceived "territory" Social Capital Number of friends on the streets Social Capital number of congregation points on the streets Social Capital most significant change technique Social Capital Changes in legislation Social Capital Social Capital Surveys - do you know neighbors name, neighbors pet, how comfortable do you feel disciplining a neighborhood child, etc r N ppfl ,Q; 'niViw"n II nu` Nifnllilnlilii111ilypUJ !NiilippVpmn(VnQnd Purpose of Denton Better Block — The city of Denton and its business owners and citizens have done an amazing job of revitalizing the downtown. The Better Block seeks to build upon this success and demonstrate how investment in the fringes of downtown will strengthen the overall market. We have crafted the following tools to create a better block in your community. The entire set of tasks is $40,000. Communities also use this as a menu and contract for some parts and Exhibit 2 Denton Better Block Proposal Team betterblock.com 214 - 235 -7886 use volunteer effort for others. 1- BB Public & Private Space Survey (PPSS) $5,000 - Survey of area public and private spaces, quality %a these spaces, and identification of rapid redevelopment potential. Team Better Block's PPS Survey provides a detailed analysis of a community's assets, potential stakeholders (property owners, activists, non profits, businesses, artists), and quick win opportunities that allow a jumping -off point for a Better Block demonstration. The PPSS tool also identifies local materials and resources that can best be utilized to rebuild a community while showcasing the area's natural character. Deliverables: Present to stakeholders on Better Block PPSS Survey of area Preliminary list of stakeholders with contact information Selection of location based on a mutually agreed upon criteria by the client and consultant 5 1 P a g e r N. a�rfl �� p Team betterblock.com w 11 wwrnnimimuuiryn!cumiu lO n (oVOona'"mim"""'"" 214- 235 -7886 II - BB CBT (Community Build Team) $3,000 - The CBT replaces the Stakeholder Advisory Committee in traditional planning projects. This group is made up of leaders and activists within the community who will engage in the build -out of the Better Block. This activity replaces the townall meeting and puts us in the street defining quick wins and lasting changes that need to occur for a place to be successful. Deliverables: Stakeholder engagement through formation of Community Build Team and follow -up interviews Community walk- through Shared tracking document for volunteer assignments Management and oversight of Better Block elements ................ ......................� III - BB Identity Package (IP) $3,000 - BBIP ties an area's history and culture to placemaking. Careful development of graphic design elements that brand area, website development, social media, and marketing of BB district. Deliverables: Online social media and blog site for the Better Block event W y N tit Print -ready collateral suitable for marketing Event program walk. run bilke, SIL shop. pass ave Ibohws IgvanmiiVlh o n 9& un, BaoaIWns IV - BB Build Plan (BP) $5,000 - Team Better Block will prepare a Building Plan that illustrates your block. The BP will include a rendering of the Block, material list, street cross section, cost estimates and powerpoint describing the Better Block. Permitting, traffic engineer approval and private property stakeholders will be coordinated with during this phase. Deliverables: Street and Traffic Control Build Plan for Better Block List of materials, rentals and vendors necessary to complete the Better Block 1 �'..... Public space program with descriptions Rwlrrr of temporary facilities lq G 7 �(.. ,��d�rq�ti &f'Ur , i1�— ,"�1'M'r r:.. �'�n,, :&sm,, r'.•nvaa -9",., .,;i t... ��. A J4-u, r � l N (9 Ik w u rr r N gH Team betterblock.com 214 - 235 -7886 V - BB Starter Kit $7,000 — This is all the good stuff! A refined build plan with a list of materials to construct and rent will be assembled and final budget needs and donations determined. Typically materials include, planters, plants, bollards, temporary painted surface, bicycle lanes and parking, street furniture and lighting. We will identify as many as possible local sources, define opportunities for local craftsman, artist and DlYers to participate, build -out ourselves or rent the needed materials. Deliverables: Street and Traffic Control Build Plan Listing of materials included in Team Better Block fee Listing of materials needed from Partners NOTE: Typical materials used in the Better Block Starter Kit, such as street furniture, lighting, art features and temporary paint are included inTeam Better Block fee. Materials that the client is expected to provide are appended to this contract. VI - BB Market Analysis Survey (MAS) $2,000 - Our MAS tool polls the community to find what businesses are missing, and what could easily be developed by and for the community. Team Better Block stresses the need to build up the local community to create solutions for businesses or services that residents feel are "missing" or "lacking" We use this information to seed pop -up businesses for the Better Block. Working with property owners we secure short -term access agreements and fill vacant storefronts with community inspired and run shops. We have found that many of these shops become permanent after the better block! Deliverables: List of existing businesses List of businesses missing in the area Matchmaking for new businesses Space marketing 7 1 P a g e r N pp�� VII - Better Block (BB) $10,000 - Team Better Block's signature tool to activate a block and stimulate redevelopment, increase social engagement, area economics, and heighten an area's perception of safety. The Better Block is a "living charrette" that takes the community onto the street and begins the process of creating a great "place" that can better identify and strengthen a community. Team Better Block can customize our involvement in your BB event to be turn -key to simple guidance. The reality is set a date and make it happen. We are here to make sure yours is a success. Deliverables: Installation check -list Agency coordination Volunteer coordination Mobilization and installation On -site management and operation Team betterblock.com 214 - 235 -7886 VII Better Block Wrap -up $5,000 - Team Better Block will deliver a completed study of the project and outline next steps for continued growth and promotion of the Better Block area. Deliverables: List of metrics Written account of interviews Photo log Summary memo Next Steps Report 8 1 P a g e Exhibit 3 o ANTGG SuggestTP�� Retter Bock Project DEERFIELD KINGS ROW 'Co U RINEY', Z w ¢ Z LL Z Z 2 ASPEN LAGUNA STRATFORD... a z N m SIERRA Z... Q = ?S PICKWICK A DEL ' ^ o w > i o CQ p, ' GREEN OAKS NHATTAN PALOMA PRIVATE tt o Q w w O p w O � O WOLFTRAP HEATHER O 3 m C= tv ..¢ h�o��ooNgGRG 1520GgOQ- CHURCHILL p J Z.. 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MULBERRY o Y ® 9 4 O m U F Z x" SYCAMORE a SYCAMORE i TROY LAGRONE4 ¢ m a' w PRAIRIE "�n tt CHESTNUT CHESTNUT O PRAIRIE UNION PRAIRIE ¢ PRAIRIE WAGON ON TRAIL DUCHESS � 13S HIGHLAND m 0 UMAPLE 0 WILSON XS EAGLE MILL MORSE WILSHIRE FANNIN RUTH T K in- Roden ARGIE COLLINS U PAR COLLINS E OAKS kF PSHADY m w Z R SMITH D i Y 1 O GREENLEE ➢ J 19 e st ri ct Y r U DAUGHERTY z PRIVATE KARINA O FSFQi o SHADYOAKS iREMONi y...LINDSEV LINDSEY Op INMAN w SANTAFE WILDERNESS PRIVATE GOLF O T DEER TRAIL HOPKINS FOXHOLLOW PRIVATE 3 WILLOW WOOD w ty........ 3 Remy > ANGELINA BEND SPENCER =...... w z J ACME Q p pp SgNC " O W O q,%Y, `OP9 m Number tncation PRIVATE rn 4 ERMO PG"'CO 5135E Ramp RNgrF GY.. 00 .t t Mayle bt d[he newt/ LBtes Restaurant F 2'� m p S. 2 Shem and the vacant P>>I W»I bl head {nofsome bke lanes 66V i Suth Cl y k VI" C GI {6fverand El6uayid between Ll,Ind Sycamore > m fait dN�, HOLLYHIty 9 RbeHl I,, F {M y bl yaIkadd Lo m' ..0 LONDONDERRY z Y O kla { ff m �GPT �'. 6 W I u b t { B t M ' "OR' tt STO2 A' /OG•F� J� " m L s b M IK y { C, y CHASEW OOD w 3s 8 A iu Bb I1,T y {Ok J� OUA IL C REEK P 10 MI(' y f- fused forfood VUCkyark�g 1 tt P 4 o JP�P SO S/ �Q- r. ti Okla { TWU E z+yP S,p a� 0� BTOCKBRIDGE A - ..Joey 19 MI(r yf Y POff BII 11 key {B K. 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F TE y EL PASEO BEECHWOOD , WESLAVAN Legend Voter Districts Suggested Areas 1 3 Streets 2 4 This map is a aphic mprescnmtion pmpzrcd by _... the (.' � tIJ nton I. (;IS IJepainnent \ xnd i, i.&A f 1 Dnr. dcp t d l t t d f } ud b bt A t t t th t n Uft don AR.g lcrcd Sun c}or for the Stalc CY� � F otl to It d P .S • , . 11 t lt h I,,.- d ddt byI, Rg t dP f s nolLond Not to Scale " Sur I the State f I' Id have to be p�rformcd. Wou'll <seG,sk)11� 4. AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: City Manager's Office ACM: John Cabrales, Jr. SUBJECT Receive a report, hold a discussion and give staff direction regarding the naming of the Center for the Visual Arts. BACKGROUND In October 2013, the Denton Chamber of Commerce requested recognition of Roy Appleton, Jr. through the naming of a public facility. The Chamber suggested naming the Center for the Visual Arts in his honor to recognize Mr. Appleton's leadership in economic development and public broadcasting in the City of Denton. Staff has been made aware that the Greater Denton Arts Council will be considering a Letter of Support for the naming of the Center for Visual Arts after Mr. Appleton. The City Council adopted a formal policy for the naming of City buildings and facilities in April 2012. The naming policy guidelines provide criteria to be satisfied for the consideration of naming a City facility after an individual. These guidelines require that the individual under consideration be deceased at least five years. The policy also outlines procedures for naming City facilities, which include the appointment of a seven - member ad hoc Naming Committee to review the naming request and make a recommendation to the City Council. In addition, the policy states that all costs associated with plaques or markers are the responsibility of the requesting party. The Council may choose to waive any part of the naming policy guidelines by three fourth's vote of the entire Council. FISCAL INFORMATION The naming signage is estimated to cost $1,500. In accordance with the naming policy, the party requesting the naming is responsible for all costs associated with markers or plaques unless the City Council waives this requirement. EXHIBITS 1. Denton Chamber of Commerce Naming Request 2. Denton Chamber of Commerce Action Trail 3. Denton Record - Chronicle Editorial 4. Roy Appleton, Jr. — Community Involvement 5. City of Denton Name Application Submission 6. City of Denton Naming Policy Agenda Information Sheet January 7, 2014 Page 2 Respectfully submitted: John Cabrales Assistant City Manager Exhibit 1 October 4, 2013 Mr. George Campbell City Manager City of Denton 215 East McKinney Denton, TX 76201 Dear George: On behalf of the Board of Directors and Past Board Chairs Council of the Denton Chamber of Commerce, we ask that you please help us initiate the formal process for perpetual public recognition of Roy Appleton, Jr. Roy basically represents the last of the key leaders from the Mid -60s era, during which was the forerunner of what is today the Joint Economic Development Partnership. Among the many remaining achievements of this period are the Denton State School (State Supported Living Center), the Federal Emergency Management Agency Region 6 underground installation, Jostens, Victor (Equipment) Technologies and the successful preservation and transition of Channel 2, enhancing Denton's presence in North Texas Public Broadcasting, Inc. At the collective request of the Past Board Chairs, the chamber board voted unanimously September 26, 2013 to authorize Board Chair Mark Burroughs to determine appropriate opportunities for naming rights on a local public structure, "not limited to future improvements to the Denton Center for the Visual Arts or the existing Civic Center." We will appreciate your guidance and support. Please advise accordingly. Carl Anderson Russell Bates Derrell W. Bulls Hank Dickenson Richard Hayes Perry McNeill Jerry Mohelnitzky Stan Morton Ellen Painter Exhibit 2 /Votes Past Board Chairs Council DENTON CHAMBER of COMMERCE September 25, 2013 Bill Patterson Phyllis Pittman Fred Pole Harold H. Reed, DDS Randy Robinson Marty Rivers Barbara Russell Priscilla Sanders Jerry Mohelnitkzy and Carl Anderson initiated a discussion regarding the accomplishments and cooperative spirit of the 60s in Denton. Noting that Roy Appleton, Jr. is the only living Past Board Chair of that era, and one of the primary catalysts of community service during that period, the group agreed that some sort permanent and physical public acknowledgement of his efforts should be pursued. The group unanimously concurred and requested that the Denton Chamber board of directors consider taking appropriate and expeditious action. Minutes Regular Monthly Meeting Board of Directors DENTON CHAMBER of COMMERCE September 26, 2013 VOTING DIRECTORS PRESENT (74 %): Mark Burroughs, Chair Trey Bryson Glenn Carlton Amanda Crocker Carolyn Corporon Sheri deWet Russ Ellis Jim Fykes Jeff King Larry Parker Carrell Ann Simmons Virgil Strange Sharon Venable Judy Willis Board Chair Burroughs reported that he had met with a group of the chamber's Past Board Chairs during which an initiative was discussed to pursue perpetual recognition of ROY APPLETON, Jr. for his service to the community. Fykes moved to authorize Burroughs to represent the Denton Chamber in pursuing appropriate action including, but not limited to future improvements to the Denton Center for the Visual Arts or the existing Civic Center. Venable seconded; the motion carried unanimously. I L__ - � -DATP! �1, � ] I Exhibit 3 Leadership through a life ome people make a difference all their lives. Their personal and business lives are con- ducted with a sense of re- sponsibility, compassion, hard- headed business sense, )risi.on, courtesy and acumen. Because of their integrity and hard work, those around them prosper and grow. One such person is Roy Appleton Jr., who retires as president and general. manager Thursday from Denton Publishing Co. after 44 years. Mr. Appleton has spent his life in service to country, his profession, community and church and devotion to his family and friends. It would be impossible to list all his contributions and the honors reflecting those contributions. They have spanned a lifetime. His public service began as a U.S. Marine during World War II, where he fought in Kisha, Aleutian Islands, Tarawa; Sipan, Guam and Iwo Jima,. After his discharge as a corporal, he returned to his native Texas and the University of Texas. He came to Denton after his mar- riage to Margie Lee Monroe. While visiting his bride's parents, he heard of a part -time job with the Denton Record - Chronicle and became a classified advertising salesman in 194T He has served the paper as advertising manager, business manager, general manager and vice president. His dedication and hard work brought the paper through several transformations, including a major expansion in the'60s, a conversion to electronic photo typesetting in the'70s and the pio- neering of it exographic printing in the '80s. The Texas Daily Newspaper Association acknowledged his con- tributions to his profession with the 1983 Texas newspaper leader of the year award. Mr. Appleton has not been idle in the civic realm. lie has served as president of the Denton Chamber of Commerce, Denton County United Way, Denton Rotary Club and Denton Jaycees. He is the recipient of the chamber's Otis Fowler Award, one of the highest bestowed in the city. He is a distinguished alumnus of the Univer- sity of North Texas and an elder of St. Andrew Presbyterian Church. Denton would not have educational television., its Channel 2, without Mr. Appleton's efforts and he continues to serve on the board of North Texas Public Broadcasting, Inc. He also pi-, oneered news and advertising on cable television. As was said when the chamber gave the 1971 Otis Fowler Award, Mr. Ap- pleton is "a community leader in every sense of the word." We invite all of Mr. Appieton's friends, coworkers, civic associates and anyone who wants to wish him well to a public reception 5 -7 p.m. Thursday at the Center for the Visual Arts, on the corner of Hickory Street and Bell Avenue. Take this opportunity to honor a man who has honored us all with his dignity, honesty and intelligence. Exhibit 4 ROY APPLETON JR. - COMMUNITY INVOLVEMENT 1957 - WAS HEAVILY INVOLVED ALONG WITH MARVIN RAMEY IN RAISING $100,000 THRU THE CHAMBER FOR A LAND GIFT AND PUTTING TOGETHER A BOOK OF FACTS IN ATTRACTING THE DENTON STATE SCHOOL, TODAY KNOWN AS DENTON STATE SUPPORTED LIVING CENTER. 1961- CHAMBER BOARD CHAIR - PROGRAM YEAR BEGAN APRIL 1 CYCLE - SERVED 15 MONTHS 1963 - CHAIRED THE ECONOMIC DEVELOPMENT COMMITTEE TO STUDY DENTON'S GROWTH POTENTIAL AND PATTERNS. 1964 - PRESENTED THE REPORT RECOMMENDING A THREE -YEAR PROMOTIONAL PROGRAM FOR INDUSTRIAL AND ECONOMIC EXPANSION TO BE ADMINISTERED BY THE CITY COUNCIL. 1965 - 1967 - TRAVELED TO NEW YORK, CALIFORNIA AND OTHER CITIES AND STATES PROMOTING DYNAMIC DENTION WITH A PROMOTIONAL VIDEO. SOME OF THE RESULTS WERE AS FOLLOWS FOR COMPANIES LOCATING IN DENTON TEXAS: 1968-JOSTENS; 1980 - PETERBILT; 1982 -TETRA PAK AND VICTOR EQUIPMENT WERE SOME OF THE MAJOR ACCOMPLISHMENTS. 1970'S- ROY WAS DENTON'S LEADER IN THE FIGHT WITH KERA OVER OWNERSHIP OF THE BROADCAST SIGNAL FOR CHANNEL 2, HE WAS ABLE TO GET NEWTON RAYZOR TO DONATE LAND ON LOOP 288 FOR THE LOCATION OF THE BROADCAST STATION DENTON WOULD USE. THIS LAND ACQUISITION ENABLED DENTON TO MEET FCC REQUIREMENTS AND PUSHED THE ENVELOPE WITH KERA TO THE POINT WHERE THEY FINALLY CONTACTED ROY WITH THE OFFER TO PURSUE CHANNEL 2 IN PARTNERSHIP WITH THE DENTON GROUP. ROY SERVED OVER 10 YEARS AS CO- CHAIRMAN OF THE BOARD FOR NORTH TEXAS PUBLIC BROADCASTING, INC. WITHOUT HIS EFFORTS DENTON WOULD HAVE BEEN LEFT OUT IN THE COLD. WHEN THE LAND ON LOOP 288 WAS NO LONGER NEEDED FOR THE BROADCAST STATION, ROY SAW THAT IT WAS GIFTED TO THE GREATER DENTON ARTS COUNCIL, WHICH LED TO ADDITIONAL GIFTS FROM THE RAYZOR FAMILY. THAT LAND WAS SOLD DURING THE PAST YEAR GIVING GDAC THE FINANCIAL STABILITY FOR A GREAT FUTURE ROY WAS ALSO THE DRIVING FORCE FOR SECURING THE PARTNERSHIP BETWEEN DENTON PUBLISHING AND COX COMMUNICATION AND THE LEADING FORCE IN ITS EARLY DEVELOPMENT AND SUBSCRIBER BUILD -OUT. BOTTOM LINE IS HE BROUGHT PUBLIC AND CABLE TELEVISION TO DENTON. 1977-INVOLVED IN THE CHAMBER COMMITTEE PROPOSING AN ORDINANCE TO THE CITY COUNCIL FOR AN ANNUAL FESTIVAL TO CELEBRTATE THE DENTON ARTS, NOW KNOWN AS THE "ARTS & JAZZ FESTIVAL. 1985 - 1987 - WAS INVOLVED IN THE DFW INTRASTATE COMMERCIALTRADE ZONE EXPANSION , AND TRAVELED TO AUSTIN SPEAKING ON BEHALF OF AND FOR THE BENEFIT OF DENTON. 1970 - HELPED FORM THE MEAN GREEN CLUB FOR THE BENEFIT OF THE UNIVERSITY. ADDITIONALLY, ROY WAS INVOLVED IN GETTING FEMA TO DENTON. HE HAS SERVED AS EITHER PRESIDENT OR CHAIRMAN OF THE BOARD IN ROTARY, JAYCEES, UNITED WAY AS WELL AS MANY OTHER ORGANIZATIONS. HE IS THE OLDEST MEMBER OF ST ANDREWS PRESPYTERIAN CHURCH AND SERVED AS BOTH ELDER AND DEACON. HE HAS BEEN HONORED WITH THE CHAMBER'S OTIS FOWLER AWARD AND WASTHE FIRST RECIPIENT OF THE SMALL BUSINESS PERSON AWARD. UNT HONORED HIM AS A DISTINGUISHED ALMNUS AND THE TEXAS DAILY NEWSPAPER ASSOCIATION HONORED HIM IN 1983 WITH THE TEXAS NEWSPAPER LEADER OF THE YEAR AWARD. Exhibit 5 CITY OF DENTON NAME APPLICATION FORM FOR CITY BUILDINGS, FACILITIES, LAND, OR ANY OTHER PORTION THEREOF Please type or print clearly in ink and return to the City Manager's Office: Date of Submittal: December 20, 2013 2. Individual or Organization Submitting Nomination: Mayor Mark Burroughs and Council Member James King Signature of Nominator or Organization Representative: Point of Contact: Mayor Mark Burroughs Address: 215 E. McKinney Street City, State, Zip: Denton, Texas 76201 Telephone: (940) 349 -7717 Email: Mark.Burroughs@cityofdenton.com 4. Nominee (Check One): Individual k] Organization ❑ 5. Recommended Name of City Building, Facility, Land, or Any Portion Thereof: Abbleton_ Jr. Center for the Visual Arts 9. Location of City Building, Facility, Land, or Any Portion Thereof: 400 E Hickory Street 10. Explanation of why this name should be considered. Please include the individual's biographical information and vitae or resume. Use additional sheets, if necessary: Roy Appleton was a key leader for the City of Denton in the mid- 1960s. Mr. Appleton's efforts in economic development, public broadcasting, the arts and public service resulted in several key accomplishments of that era: the Denton State Supported Living Center, North Texas Public Broadcasting, Inc, FEMA Region 6 underground installation, and the attraction of major multinational companies to Denton. Please see attached exhibits for a listing of additional accomplishments. sAlegal \our documents\resolutions \12\naming policy guidelines for city buildings, facilities, land or any portion thereofdoc Exhibit 6 RESOLUTION NO. 82012 -007 A RESOLUTION ESTABLISHING NAMING POLICY GUIDELINES FOR CITY BUILDINGS, FACILITIES, LAND OR ANY PORTION THEREOF; REPEALING RESOLUTION NO. R2007 -035; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton desires to amend the policy guidelines for naming City buildings, facilities, land, or any portion thereof; and WHEREAS, the City Council deems it in the public interest to adopt the revised policy; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The revised City of Denton Naming Policy Guidelines for City Buildings, Facilities, Land or any Portion Thereof, which is attached hereto and made a part hereof for all purposes, is hereby approved and adopted. SECTION 2. All policies inconsistent herewith are hereby repealed, including without limitation, Resolution R2007 -035. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: A'\l I rkl\, A01 A APPROVED M TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: a day of �� 2012. CITY OF DENTON NAMING POLICY GUIDELINES FOR CITY BUILDINGS, FACILITIES, LAND, OR ANY PORTION THEREOF I. GENERAL These policy guidelines are intended to address naming opportunities when a citizen, group, or organization submits a nomination to name a City building, facility, land, or any portion thereof. The City Council may initiate the naming of any building, facility, land, or any portion thereof at its discretion and may apply the following guidelines in Council initiated naming. The Council may choose to waive any part of this guideline by three fourth's vote of the entire City Council. These policy guidelines do not address the naming of streets, fire or police stations, or naming based on advertising. II. DEFINITIONS City Buildings. City owned facilities which are open to the public and used to conduct City business. Buildings may include, but are not limited to, City Halls, civic /community centers, conference /convention centers, public libraries, and public utility buildings /structures. City Facilities. City owned structures, amenities, or features, which are open to the public and used for City business, or public attractions of any kind, including, but not limited to, athletic fields, bridges, fountains, gymnasiums, library collections and /or department's interior and exterior spaces, meeting rooms, picnic shelters, playground equipment, recreation facilities, swimming pools, tennis courts and basketball courts. City Land. Real estate owned and/or managed by the City, including park property or other open space areas. Funded Project. Any project that the City has fully funded prior to the start of construction. Non - Funded Project. Any project that the City wishes to construct, but for which it lacks designated funding. III. NAMING OF A CITY BUILDING, FACILITY, LAND, OR ANY PORTION THEREOF AFTER AN INDIVIDUAL It is intended that all the criteria in this section be satisfied when considering naming a City facility, building, land, or any portion thereof after an individual. A. Naming After an Individual 1. The individual must be deceased at least five (5) years; and 2. The individual must have been a resident of the City of Denton; and 3. The individual must be of good moral character and must not have been convicted of a felony, or Class A or B misdemeanor; and 4. The individual should have made exceptional contributions to the City of Denton, the State of Texas, or the United States of America; and the individual's achievements should represent a lasting legacy to the mission of the City building, facility, land, or any portion thereof. B. Naming After an Individual Who Performed Outstanding or Heroic Service Buildings, facilities, land, or any portion thereof may also be named in memory of individuals who died in the line of duty serving the City of Denton, the State of Texas, or the United States of America; or died performing a heroic act, such as saving the life of another person; or a deceased individual who has made a significant and lasting contribution to humanitarian causes on a world or national level. In these instances as appropriate, the City may elect to obtain or attempt to make contact for approval from living family members of the individual recommended for having a City building, facility, land, or any portion thereof named in their honor. C. Naming After a Foundation, Business, or Organization 1. If consideration is given to naming a City building, facility, land, or any portion thereof after a foundation, business, or organization, the foundation, business, or organization considered should have made exceptional local, state, national, or world contributions; and their achievements should represent a lasting legacy to the mission of the City building, facility, land, or any portion thereof. 2. In selected instances, a City building, facility, land, or any portion thereof may be named after a foundation, business, or organization that makes a unique and extraordinary contribution to the development and or usage of the City building, facility, land, or any portion thereof being named. The merits and value of each such naming shall be evaluated on a case -by -case basis. IV. NAMING A CITY BUILDING, FACILITY, LAND, OR ANY PORTION THEREOF THROUGH FUND RAISING OR BY PURCHASING NAMING RIGHTS 1. Any individual for which a City building, facility, land, or any portion thereof may be named, must be of good moral character and must not have been convicted of a felony, or Class A or B misdemeanor. Any foundation, business, or organization must be compliant with all applicable laws, rules and regulations. 2. A City building, facility, land, or any portion thereof may be named as part of a public fundraising campaign, donation, or by purchasing naming rights. The City Council may approve other non - monetary donations for naming rights. 3. Naming rights for a funded project can be accepted at any point during construction. 4. A funding agreement for the naming rights of a non - funded project must be in place prior to start of construction. 5. The required donation to acquire the naming rights of a City building, facility, land, or any portion thereof shall be substantial as determined by the City Council on a case -by -case basis. 6. All funds contributed to naming a City building, facility, land, or any portion thereof will be nonrefundable. 7. In the event a donor fails to meet the total required commitment, the City Council may reconsider the naming of the City building, facility, land, or any portion thereof. 8. It should not be assumed that a financial contribution guarantees that a City building, facility, land, or any portion thereof will be named after an individual or a business, foundation, or organization. V. PLAQUES, MARKERS AND MEMORIALS A. Plaques, markers, and memorials that are requested to be located on a City building, facility, land, or any portion thereof, must be reviewed and approved by the City as to design and maintenance requirements. B. Total costs for purchasing plaques, markers, and memorials involved in the naming of a new City building, facility, land, or any portion thereof, as well as up to five (5) years of maintenance costs, shall be paid by the nominating individual or organization, unless City Council waives such funding. This provision has no application in those instances where the costs of plaques, markers, or memorials are included in the design and construction costs of a project. VI. RENAMING OF A CITY BUILDING, FACILITY, LAND, OR ANY PORTION THEREOF A. In order to honor the decisions of previous City Councils and descendants of individuals after whom a City building, facility, land, or any portion thereof are named, renaming shall typically not occur. B. If it is determined that circumstances have changed such that the criteria set forth in III.A.3 or IV.1 is no longer met, the City Council may elect to remove the name from the City building, facility, land, or any portion thereof. Further, a City building, facility, land, or any portion thereof named after a foundation, business, or organization, which dissolves, is convicted of criminal acts, or for other good and valid reasons, may be renamed. 3 VII. PROCEDURES FOR NAMING CITY BUILDINGS, FACILITIES, LAND, OR ANY PORTION THEREOF A. Groups or individuals may submit nominations for naming a City building, facility, land, or any portion thereof, by submitting a nomination to the City Manager on the City of Denton Name Application Form For City Buildings, Facilities, Land, or any portion thereof. B. The City Manager, upon the receipt of the City of Denton Name Application Form For City Buildings, Facilities, Land, or any portion thereof shall refer such naming request to the City Council. C. The City Council may appoint a seven - member ad hoc Naming Committee to review the naming request submitted by a citizen or organization. Such committee shall be nominated by individual Council members. In the event of a City Council initiated naming, the Council may, if it desires, appoint an ad hoc committee as outlined herein to investigate and recommend one or more names for Council consideration. D. At least two additional members of the ad hoc Naming Committee shall be selected from any impacted advisory or governing board. E. The name or names submitted will be considered by the members of the ad hoc Naming Committee. The committee shall be guided by the provisions of this policy and shall provide a recommendation to the City Council for consideration. F. The final decision for naming a City building, facility, land, or any portion thereof shall rest with the City Council. 4 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Fire ACM: Jon Fortune it- SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the City Manager to execute an Interlocal Cooperation Agreement between the City of Denton and Denton County for Ambulance Services; and declaring an effective date. BACKGROUND The interlocal agreement for ambulance service between the City of Denton and Denton County began in 1980 and provides for emergency medical service to Denton County within the designated area (see map in agreement). Each year a new agreement and ordinance is presented to the Denton City Council for the next fiscal year approving the fee the County will pay to the City of Denton for service using a County -wide funding formula based on population served, number of ambulance calls in the County area and the rural square miles in the County. The population and mileage figures used are based on numbers obtained from the North Central Texas Council of Governments. This ongoing interlocal agreement is often delayed in the County's legal approval process, which also includes review by the Denton County Fire Chiefs Association as well as approval by the Commissioners Court as part of their budget process. After the City of Denton signs the agreement, the County Commissioners take their official action. Even though the contract is approved after its starting date, the agreement still remains effective from October 1, 2013 with no reductions in revenues. The total estimated fee of $119,533.00 is the City of Denton's share for 2013/2014 based on the following estimated ratios: 1. A fixed readiness sum based on $0.5046 per capita for an estimated maximum amount of $59,857.35. 2. A fixed sum of $2493075 per ambulance nun estimated to be 188 runs for an estimated maximum amount of $46,869.81. This sum is based upon the number of nuns made in the County areas for fiscal year 2013. 3. A fixed sum based on 18.79 rural miles in the agreed operating territory for an estimated maximum amount of $12,805.63. Denton County Ambulance 2010 2011 • • to 2012 2013 2014 READINESS- POPULATION: County Funding Formula Rate 0.6009 0.5511 0.5233 0.5085 0.5046 Readiness Funding to Denton $66,674.06 $61,694.04 $62,896.77 $60,318.65 $59,857.35 EMS AMBULANCE RUNS: Denton Runs to County 137 178 201 175 188 County Funding Formula Rate $257.9365 $253.3125 $243.9887 $240.8809 $249.3075 Runs Funding to Denton $35,337.30 $45,089.63 $49,041.73 $42,154.16 $46,869.81 RURAL SQUARE MILES: Denton's Covered Square Miles 21.47 19.65 19.65 20.32 19.79 Rural Sq. Miles Funding Total $14,011.26 $13,108.17 $13,228.07 $13,714.33 $12,805.64 COUNTY FUNDING TO DENTON $116,022.62 $119,891.84 $125,166.57 $116,187.00 $119,533.00 Table 1 OPTIONS Approve ordinance amendment or deny ordinance amendment. RECOMMENDATION Staff recommends the adoption of the proposed ordinance and agreement. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Staff presented a review of ongoing costs to deliver fire department services to the County in its budget process for FY2013/2014. Currently, there are no negotiations between the City and County on the provisions of the contract since the Commissioner's Court determines the annual contract amount. The previous County Ambulance funding contract was approved by the City Council on January 8, 2013 by Ordinance 42013.002. FISCAL INFORMATION The estimated ambulance fee for 2013/2014 from the County is $119,533.00 which is a 2.9% increase from the last contract amount of $116,187.00 for fiscal year 2012/2013. EXHIBITS Ordinance Agreement Respectfully submitted: Ross Chadwick Fire Chief \ \CODAD \Departments \Legal \Our Documents \Ordinances \14 \ambulance agreement county.docx ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR AMBULANCE SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton hereby approves an Interlocal Cooperation Agreement between the City of Denton and Denton County for ambulance services, a copy of which is attached hereto and incorporated by reference herein. The City Manager, or his designee, is hereby authorized to execute this Interlocal Cooperation Agreement on behalf of the City. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 6' THE COUNTY OF DENTON STATE OF TEXAS § CITY OF DENTON § AMBULANCE SERVICES INTERLOCAL COOPERATION AGREEMENT AMBULANCE SERVICE THIS AGREEMENT, which has an effective date of October 1, 2013, is made and entered into by and between Denton County a political subdivision of the State of Texas, hereinafter referred to as "the COUNTY," and the City of Denton, a municipal corporation, located in Denton County, Texas, hereinafter referred to as "the AGENCY ". WHEREAS, the COUNTY is a duly organized political subdivision of the State of Texas engaged in the administration of county government and related services for the benefit of the citizens of Denton County; and WHEREAS, the AGENCY is a municipal corporation, duly organized and operating under the laws of the State of Texas and engaged in the provision of ambulance services and related services for the benefit of the citizens of the City of Denton; and WHEREAS, the AGENCY is an owner and operator of certain ambulance vehicles and other equipment designed for the transportation of persons who are sick, infirmed or injured and has in its employ trained personnel whose duties are related to the treatment of said individuals and the use of such vehicles and equipment; and WHEREAS, the COUNTY desires to obtain emergency ambulance and related services for the benefit of residents of the COUNTY living in unincorporated areas of the COUNTY which the AGENCY is capable of providing; and WHEREAS, the provision of emergency ambulance and related services is a governmental function that serves the public health and welfare and is of mutual concern to both the COUNTY and the AGENCY; and WHEREAS, the COUNTY desires to expend County funds to defray the expense of establishing, operating and maintaining emergency ambulance services in the County; and WHEREAS, the COUNTY and the AGENCY mutually desire to be subject to and contract pursuant to the provisions of Texas Government Code, Chapter 791 and Texas Health and Safety Code, Section 774.003, and 2013 -2014 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page I of 8 NOW THEREFORE, the COUNTY and the AGENCY, in consideration of the mutual promises, covenants, and Agreements stated herein, agree as follows: I. TERM The term of this Agreement shall be for the period beginning of October 1, 2013, and ending on September 30, 2014. II. DEFINITIONS As used herein, the words and phrases hereinafter set forth shall have the meanings as follows: A. "Emergency" shall mean any circumstance that calls for immediate action and in which the element of time in transporting the sick, wounded or injured for medical treatment is essential to the health or life of a person or persons. Whether an emergency, in fact, exists is solely up to the discretion of the AGENCY. For dispatch purposes only, "emergency" shall include, but not be limited to: 1. The representation by the individual requesting ambulance service that an immediate need exists for the transportation of a person from any location within the agreed operating area of the AGENCY to a place where emergency medical treatment may be obtained; or 2. The representation by the individual requesting ambulance service that an immediate need exists for the transportation of a person from any location within the agreed operating area of the AGENCY to the closest medical facility. B. "Rural area" means any area within the boundaries of the COUNTY, but outside the corporate limits of all incorporated cities, towns and villages within the COUNTY. C. "Urban area" means any area within the corporate limits of an incorporated city, town or village within the COUNTY. D. "Emergency ambulance call" means a response to a request for ambulance service by the personnel of the AGENCY in a situation involving an emergency, as defined above, by an ambulance vehicle. A single response to a call may involve the transportation of more than one person at a time, but shall be considered as only one call. III. SERVICES The services to be rendered under this Agreement by the AGENCY are the ambulance services normally rendered by the AGENCY to citizens of City of Denton in circumstances of emergency, but which services will now be extended to all citizens of the COUNTY residing in 2013 -2014 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 2 of 8 the unincorporated areas of the COUNTY within the operating territory or jurisdiction of the AGENCY, as agreed to by the AGENCY and the COUNTY in this Agreement and as set forth in "Exhibit A," attached hereto and incorporated herein by reference. It is recognized that the officers and employees of the AGENCY have the duty and responsibility of rendering ambulance services to citizens of the AGENCY and the COUNTY. In the performance of these duties and responsibilities, it shall be within the sole responsibility and discretion of the officers and employees of the AGENCY to determine priorities in the dispatching and use of such equipment and personnel and the judgment of the officer or employee shall be final. The COUNTY shall designate the County Judge to act on behalf of the COUNTY and to serve as "Liaison Officer" between the COUNTY and the AGENCY. The County Judge, or her designated substitute, shall devote sufficient time and attention to insure the performance of all duties and obligations of the COUNTY under this Agreement and shall provide for the immediate and direct supervision of employees, agents, contractors, sub - contractors and /or laborers of the COUNTY engaged in the performance of this Agreement. IV. PERFORMANCE OF SERVICES The AGENCY shall devote sufficient time and attention to insure the performance of all duties and obligations of the AGENCY under this Agreement and shall provide immediate and direct supervision of the AGENCY's employees, agents, contractors, sub - contractors and /or laborers engaged in the performance of this Agreement for the mutual benefit of the AGENCY and the COUNTY. V. COMPENSATION COUNTY agrees to pay to the AGENCY an estimated fee of $119,533.00 (amount rounded to the nearest dollar) based on a funding formula as follows: 1. A fixed sum based on a population percentage .5046 per capita; said sum computes to $59,857.35. 2. A fixed sum of $249.3075 per ambulance transport for an estimated maximum amount of $46,869.81. Said sum is based upon 188 transports made by the AGENCY in fiscal year 2013. 3. A fixed sum based on 18.79 rural miles in the agreed operating territory; said sum computes to $12,805.63. 2013 -2014 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 3 of 8 The first and third sums are based upon population and mileage figures obtained from the North Central Texas Council of Governments. The second sum is based upon the definition of an "ambulance call" for purposes of this Agreement. Payment shall not be allowed for any instance in which a patient is not transported. Consistent with the reporting procedures described below, the AGENCY shall receive payment for transporting the patient regardless of the service delivery area in which the call originated. Requests for payment shall be submitted on the standardized ambulance transportation reporting form approved and provided by the COUNTY. It shall be the responsibility of the AGENCY to fully complete the forms and to provide complete and accurate patient information. Requests for payment shall be submitted within five (5) days of the performance of service by the AGENCY. Requests not timely submitted shall not be considered for payment. Requests for payment may be submitted by personal delivery, U.S. Mail, facsimile or computer telephone link to the office of the Denton County Fire Marshal. The date of submission shall be the date the fully documented request is received in said office. VI. FINANCIAL RECORDS The AGENCY agrees to make its financial records available for audit and /or review by the COUNTY, upon request by the COUNTY. VII. RESPONSIBILITY OF THE COUNTY The COUNTY, to the extent permitted by law, shall be responsible for the acts, omissions and negligence of all officers, employees and agents of the COUNTY who are engaged in the performance of this Agreement. VIII. RESPONSIBILITY OF THE AGENCY The AGENCY, to the extent permitted by law, shall be responsible for the acts, omissionsand negligence of all officers, employees and agents of the AGENCY who are engaged in the performance of this Agreement. IX. APPLICABLE LAW The COUNTY and the AGENCY understand and agree that liability under this contract is governed by Texas Government Code, Chapter 791 and Texas Health and Safety Code, Section 774.003. This Agreement is made in contemplation of the applicability of these laws to 2013 -2014 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 4 of 8 the Agreement. Insofar as legally possible the COUNTY and the AGENCY agree to be bound by the above mentioned statutes as they exist as of the date of this Agreement. X. DEFAULT In the event of default of any of the covenants herein contained, this Agreement may be terminated at the discretion of the non - defaulting party if such default continues for a period of ten (10) days after notice to the other party in writing of such default and the intent to terminate this Agreement due to the default. Unless the default is cured, this Agreement shall terminate. XI. TERMINATION This Agreement may be terminated at any time by either the COUNTY or the AGENCY by giving sixty (60) days advance written notice to the other party. In the event of termination by either party, the AGENCY shall be compensated pro. rata for all services performed to termination date together with reimbursable expenses then due as authorized by this Agreement. In the event of such termination, should the AGENCY be overcompensated on a pro rata basis for all services performed to the termination date and /or be overcompensated for reimbursable expenses, the COUNTY shall be reimbursed pro rata for all such overcompensation. Acceptance of such reimbursement shall not constitute a waiver of any claim that may otherwise arise out of this Agreement. MI. GOVERNMENTAL IMMUNITY The fact that the COUNTY and the AGENCY accept certain responsibilities relating to the rendering of ambulance services under this Agreement as a part of their responsibility for providing protection for the public health makes it imperative that the performance of these vital services be recognized as a governmental function and that the doctrine of governmental immunity shall be, and is hereby, invoked to the extent permitted under the law. Neither the AGENCY, nor the COUNTY waive, nor shall be_ deemed to have hereby waived any immunity or defense that would otherwise be available to it against claims arising from the exercise of governmental powers and functions. 2013 -2014 Interlocal Cooperation Agreement - Ambulance Services /Denton - Page 5 of 8 XIII. ENTIRE AGREEMENT This Agreement represents the entire Agreement between the COUNTY and the AGENCY and supersedes all prior negotiations, representations and Agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. XIV. LAW OF CONTRACT This Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. The venue for any dispute, or matter, arising under this Agreement shall lie in Denton County, Texas. XV. SEVERABILITY In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions of this Agreement shall remain valid and in full force and effect to the fullest extent possible. XVI. AUTHORITY The undersigned officer or agents of the parties are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the Parties. XVII. SERVICE AREA Acceptance of this Agreement constitutes approval of the service area set out in attached Exhibit "A ". EXECUTED in triplicate originals on the dates set forth below. COUNTY: AGENCY: Denton County, Texas City of Denton 110 West Hickory Street, 2 "d Floor 332 E. Hickory St. Denton, Texas 76201 Denton, Texas 76201 I Mary Horn Denton County Judge By _ Name Title 2013 -2014 Interlocal Cooperation Agreement- Ambulance Services /Denton - Page 6 of 8 Acting on behalf of and by the authority of Denton County Commissioners Court of Denton County, Texas. DATED: ATTEST: Denton County Clerk APPROVED AS TO CONTENT: Denton County Fire Marshal APPROVED AS TO FORM: WA Acting on behalf of and by the authority of the City of Denton DATED: ATTEST: BY: City Secretary APPROVED AS TO FORM: Assistant District Attorney // City Attorney` AUDITOR'S CERTIFICATE I hereby certify that funds are available in the amount of $ accomplish and pay the obligation of Denton County under this Agreement. 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J T 3 - ....... ............... pr 9 .... ...... 71 ... .......... .............. -1J ........... ............ ............ ..... ...1. .......................................................................................................................................................................................................................................................... ................................................................................... 2013-2014 hiteflocal Coopefation Agreement-Ainbulance Services/Denton - Page of Couna,e i3O Ageinda 3 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Fire ACM: Jon Fortune SUBJECT Consider adoption of an ordinance of the City of Denton, Texas approving and authorizing the City Manager to execute an Interlocal Cooperation Agreement between the City of Denton and Denton County for Fire Protection Services; and declaring an effective date. BACKGROUND The interlocal agreement for fire service between the City of Denton and Denton County provides fire protection services by the Denton Fire Department to the County areas previously served by the Mayhill- Cooper Creek Volunteer Fire Department and a small portion of the Lake Cities Fire District now adjacent to the newly annexed City property in the southwest portion of Teasely (FM 2181). In 2003, Denton County requested that the City of Denton provide fire protection to the designated area due to Mayhill- Cooper Creek's continuing lack of sufficient resources to provide a proper response to fire calls. The County also requested in 2004 that the City respond to a small area next to Guyer high school on FM 2181 and Old Alton Road since the City of Denton's response time to the area was much quicker than Lake Cities Fire Department. This ongoing interlocal agreement is often delayed in the County's legal approval process, which also includes review by the Denton County Fire Chiefs Association as well as approval by the Commissioners Court as part of their budget process. After the City of Denton signs the agreement, the County Commissioners take their official action. Even though the contract is usually approved after its starting date, the agreement still remains effective from October 1, 2013 with no reductions in revenues. The Commissioners' Court determines the total appropriation to pay for fire protection in the unincorporated County area each year and divides that amount by an estimated number of fire calls to arrive at a per fire reimbursement. Table 1 shows the five -year history of fire funding. Table 1 Denton County 2010 Fire Protection 2011 2012 2013 2014 County Funding $10,000.00 $10,000.00 $10,000.00 $10,000.00 $10,000.00 Per Fire Call $400.00 per call $450.00 per call $450.00 per call $475.00 per call $475.00 per call Denton Fire Calls 27 28 30 54 37 Fire Call Funding $10,800.00 $12,600.00 $13,500.00 $25,650.00 $17,575.00 Total Denton Fire Funding $20,800.00 $22,600.00 $23,500.00 $35,650.00 $27,575.00 Table 1 OPTIONS Approve proposed ordinance or deny proposed ordinance. RECOMMENDATION Staff recommends the adoption of the proposed ordinance and agreement. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Staff presented a review of ongoing costs to deliver fire services to the County in its budget process for FY2013/2014. Currently, there are no negotiations between the City and County on the provisions of the contract since the Commissioner's Court determines the annual contract amount. The previous County fire protection contract was approved by the City Council on January 8, 2013 by Ordinance 42013.001. FISCAL INFORMATION Denton County will pay the City $10,000 upon execution of the proposed agreement and reimburse the City for each fire call at the rate of $475.00 per fire call. The annual estimate for the reimbursement to the City of Denton for fire calls in 2013/2014 is $17,575.00 based on an estimated 37 fire calls in the unincorporated County area. The total Fire Protection contract with the County is estimated to be $27,575.00 which is a 22.7% decrease from last year's $35,650.00 contracted amount. EXHIBITS Ordinance Agreement Respectfully submitted: Ross Chadwick Fire Chief \ \CODAD \Departments \Legal \Our Documents \Ordinances\14 \fire protection agreement county.doex ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON COUNTY FOR FIRE PROTECTION SERVICES; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council of the City of Denton hereby approves an Interlocal Cooperation Agreement between the City of Denton and Denton County for fire protection services, a copy of which is attached hereto and incorporated by reference herein. The City Manager, or his designee, is hereby authorized to execute this Interlocal Cooperation Agreement on behalf of the City. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY :• APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: THE COUNTY OF DENTON § § CITY OF DENTON § FIRE DEPARTMENT STATE OF TEXAS § INTERLOCAL COOPERATION AGREEMENT FIRE PROTECTION SERVICES THIS AGREEMENT, which has an effective date of October 1, 2013, is made and entered into by and between Denton County, a political subdivision of the State of Texas, hereinafter referred to as "the COUNTY," and the City of Denton Fire Department, a municipal corporation, located in Denton County, Texas, hereinafter referred to as "the AGENCY ". WHEREAS, the COUNTY is a duly organized political subdivision of the State of Texas engaged in the administration of county government and related services for the benefit of the citizens of Denton County; and WHEREAS, the AGENCY is a municipal corporation, duly organized and operating under the laws of the State of Texas and engaged in the provision of fire protection services and related services for the benefit of the citizens of the City of Denton; and WHEREAS, the AGENCY is the owner and operator of certain fire protection vehicles and other equipment designed for the extinguishing of fire and prevention of damage to property and injury to persons from fire and has in its employ trained personnel whose duties are related to the use of such vehicles and equipment; and WHEREAS, the COUNTY and the AGENCY mutually desire to be subject to and contract pursuant to provisions of the Texas Government Code, Chapter 791 and the Texas Local Government Code, Chapter 352, and NOW, THEREFORE, the COUNTY and the AGENCY, for the mutual promises, covenants, Agreements and consideration stated herein, agree as follows: I. TERM The term of this Agreement shall be for the period beginning of October 1, 2013, and ending September 30, 2014 1I. SERVICES The services to be rendered in accordance with this Agreement by the AGENCY are the fire protection services normally rendered by the AGENCY to citizens of the City of Denton in circumstances of emergency, but which services will now be extended to all citizens of the 2013 -2014 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 1 of 7 COUNTY residing in the unincorporated areas of the COUNTY within the operating territory or jurisdiction of the AGENCY, as agreed to by the AGENCY and the COUNTY in this Agreement and as set forth in "Exhibit A," attached hereto and incorporated herein by reference. These services are rendered in consideration of the basic funding and the separate per call fee set forth in this Agreement for the common good and benefit and to serve the public convenience and necessity of the citizens of the COUNTY who are not otherwise protected with respect to fire prevention, extinguishment, safety and rescue services. The services to be rendered are as follows: A. The AGENCY shall make available and provide emergency fire prevention, extinguishment, safety and rescue services within the agreed or specified territory or jurisdiction of the AGENCY. B. The AGENCY shall respond to requests for fire protection services made within the portion of the COUNTY designated as "Denton " as set out in Exhibit "A ". C. The COUNTY agrees that, in the event a fire in the AGENCY's unincorporated designated area which the AGENCY considers to be of an incendiary nature and upon request by the AGENCY, the County Fire Marshal will dispatch investigation personnel to the fire scene within a response time sufficient to legally maintain and protect all evidence of said fire and will conduct all appropriate investigation and assist in the prosecution of any case of arson. The AGENCY shall not be responsible for investigations of suspected incendiary fires in the unincorporated areas, but shall cooperate with the County Fire Marshal in immediately relating all pertinent information possible to the investigator(s). D. The COUNTY agrees that the County Fire Marshal may assist in the conduct of appropriate investigations of a fire which the AGENCY considers to be of incendiary nature in the AGENCY's incorporated area upon request of the AGENCY. E. The AGENCY shall submit monthly statements on the Texas Fire Incident Reporting System's standardized forms to the Denton County Fire Marshal, 9060 Teasley Lane, Denton, Texas 76210 -4010. This form will serve as the billing statement to the COUNTY for reimbursement of calls made in the unincorporated area. The Denton County Fire Marshal shall provide the forms upon request from the AGENCY. F. The AGENCY, in the performance of its duties and responsibilities under this Agreement, shall have the responsibility, within the sole discretion of the officers and employees of the AGENCY, except as otherwise determined by the Denton County Fire Marshal, to determine priorities in the dispatching and use of the AGENCY's equipment and personnel, and the judgment of any such officer or employee as to such matters shall be the final determination. 2013 -2014 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 2 of 7 The COUNTY shall designate the County Judge to act on behalf of the COUNTY and to serve as "Liaison Officer" between the COUNTY and the AGENCY. The County Judge, or her designated substitute, shall devote sufficient time and attention to insure the performance of all duties and obligations of the COUNTY under this Agreement and shall provide immediate and direct supervision of employees, agents, contractors, sub - contractors and /or laborers of the COUNTY engaged in the performance of this Agreement for the mutual benefit of the COUNTY and the AGENCY. III. PERFORMANCE OF SERVICE The AGENCY shall devote sufficient time and attention to insure the performance of all duties and obligations of the AGENCY under this Agreement and shall provide immediate and direct supervision of the AGENCY's employees, agents, contractors, sub - contractors and /or laborers engaged in the performance of this Agreement for the mutual benefit of the AGENCY and the COUNTY. IV. COMPENSATION The COUNTY agrees to pay to the AGENCY for the full performance of services as provided in this Agreement the sum of $10,000.00, payable upon execution of this Agreement, and further agrees to pay the sum of $475.00 per fire call in the designated unincorporated areas of the COUNTY from October 1, 2013, to September 30, 2014. The COUNTY anticipates the AGENCY to run approximately 37 fire calls for a total funding of $17,575.00 for fire calls. The total payments by the COUNTY to the AGENCY pursuant to this Agreement are estimated to be $27,575.00. The COUNTY will make no payment to the AGENCY for service provided outside the agreed service district whether by Mutual Aid Agreement or otherwise. The AGENCY understands and agrees that payment by the COUNTY to the AGENCY shall be made in accordance with the normal and customary processes and business procedures of the COUNTY and in conformance with applicable state law. V. FINANCIAL RECORDS The AGENCY agrees to make its financial records available for audit and /or review by the COUNTY, upon request by the COUNTY. 2013 -2014 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 3 of 7 VI. RESPONSIBILITY OF THE COUNTY The COUNTY, to the extent permitted by law, shall be responsible for the acts, negligence and omissions of all officers, employees and agents of the COUNTY who are engaged in the performance of this Agreement. VII. RESPONSIBILITY OF THE AGENCY The AGENCY, to the extent permitted by law, shall be responsible for the acts, negligence and omissions of all officers, employees and agents of the AGENCY who are engaged in the performance of this Agreement. VIII. APPLICABLE LAW The COUNTY and the AGENCY understand and agree that liability under this contract is governed by the Texas Government Code, Chapter 791 and the Texas Local Government Code, Chapter 352. This Agreement is made in contemplation of the applicability of these laws to the Agreement. Insofar as legally possible the COUNTY and the AGENCY agree to be bound by the above mentioned statutes as they exist as of the date of this Agreement. IX. DEFAULT In the event of default of any of the covenants herein contained, this Agreement may be terminated at the discretion of the non - defaulting party if such default continues for a period of ten (10) days after notice to the other party in writing of such default and the intent to terminate this Agreement due to the default. Unless the default is cured, this Agreement shall terminate. X. TERMINATION This Agreement may be terminated any time, by either the COUNTY or the AGENCY by giving sixty (60) days advance written notice to the other party. In the event of termination by either party, the AGENCY shall be compensated pro rata for all services performed to the termination date together with reimbursable expenses then due as authorized by this Agreement. In the event of such termination, should the AGENCY be overcompensated on a pro rata basis for all services performed to the termination date and /or be overcompensated reimbursable expenses, the COUNTY shall be reimbursed pro rata for all such overcompensation. 2013 -2014 Interlocal Cooperation Agreement — Fire Protection Services /Denton - Page 4 of 7 Acceptance of such reimbursement shall not constitute a waiver of any claim that may otherwise arise out of this Agreement. XI. GOVERNMENTAL IMMUNITY The fact that the COUNTY and the AGENCY accept certain responsibilities relating to the rendition of fire protection services under this Agreement as part of their responsibility for providing protection for the public health makes it imperative that the performance of these vital services be recognized as a governmental function and that the doctrine of governmental immunity shall be, and it is hereby, invoked to the extent permitted by law. Neither the AGENCY, nor the COUNTY waive, nor shall be deemed to have hereby waived, any immunity or defense that would otherwise be available to it against claims arising from the exercise of government powers and functions. MI. ENTIRE AGREEMENT This Agreement represents the entire Agreement between the COUNTY and the AGENCY and supersedes all prior negotiations representations and Agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. XIII. LAW OF CONTRACT This Agreement and any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Texas. The venue for any dispute, or matter, arising under this Agreement shall lie in Denton County, Texas. XIV. SEVERABILITY In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions shall remain valid and in full force and effect to the fullest extent possible. XV. AUTHORITY The undersigned officer or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties. 2013 -2014 lnterlocal Cooperation Agreement — Fire Protection Services /Denton - Page 5 of 7 XVI. SERVICE AREA Acceptance of this Agreement constitutes approval of the service area set out in attached Exhibit "A ". EXECUTED in triplicate originals on the dates set forth below. COUNTY AGENCY Denton County, Texas City of Denton 110 West Hickory Street, 2 "d Floor 332 E. Hickory St. Denton, Texas 76201 Denton, Texas 76201 Mary Horn Denton County Judge Acting on behalf of and by the authority of Denton County Commissioners Court of Denton County, Texas. DATED: ATTEST: BY: Denton County Clerk APPROVED AS TO CONTENT: IC Denton County Fire Marshal APPROVED AS TO FORM: - By Name Title Acting on behalf of and by the authority of the City of Denton DATED: ATTEST: BY: City Secretary APPROVED AS TO FORM: BY: >'f Assistant District Attorney ity Attorney r AUDITOR'S CERTIFICATE I hereby certify that funds are available in the amount of $ accomplish and pay the obligation of Denton County under this Contract /Agreement. 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I ................ ..... ............................................................................................................................................................................................................... ....................................................................................................................................................... ................................................................ 2013-2014 hiteflocal Cooperation Agreement — Fire Protection Seil-ices Denton - Page 7 of 7 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Solid Waste ACM: SUBJECT Jon Fortune it- Coi'" °'iei'0 gefAa Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a lease agreement by and between the City of Denton, Texas and Denton County Archers, a Texas not - for - profit corporation; providing an effective date. The Public Utilities Board recommends approval 6 -0. BACKGROUND The relationship between the City and the Denton County Archers dates back to 1993. In more recent years the Denton County Archers ( "DCA ") have completed lease agreements with the City of Denton in 2004, 2006, and 2009. The DCA largely use the site for recreational archery practice. Over the time that the DCA has utilized the leased premises, the rental amount has escalated, now to the present level of $1,250 per year, payable in advance. The approximate 10.155 acres tract of leased property is owned by the City of Denton. It is located within an area east of the City, commonly known as the City of Denton Mosely Road Landfill, which landfill was closed by the City in 1984. Landfill operations no longer occur at this site. The site is dormant and is maintained by the Solid Waste Department in accordance with the regulatory requirements. The DCA are long -term tenants, and have responsibly upheld the prior lease agreements completed between their organization and the City of Denton. A side - benefit of leasing the property to the DCA is that if they see something unusual at the site, then they contact the City of Denton. They provide watchful personnel at the site. Security at the site is strictly enforced. The proposed lease term is for three years, from 2013 through 2016. The City does not have immediate plans for any use for the former landfill. OPTIONS The City of Denton may lease the property to the Denton County Archers, or they may elect to not lease the property. Agenda Information Sheet January 7, 2014 Page 2 RECOMMENDATION The staff recommends the City of Denton execute the lease agreement with the Denton County Archers. PRIOR ACTION/REVIEW (Council, Boards, Commissions) December 9, 2013 Public Utilities Board. FISCAL INFORMATION The revenue will be deposited into the Solid Waste Rental Property Fund. The annual lease revenue will be $1,250. BID INFORMATION Not applicable FXUTUTTC 1. Ordinance 2. Lease Agreement Prepared by, S. Lebsack Development and Administrative Manager Respectfully submitted, fZ Vance Kemler, General Manager Solid Waste and Recycling Services ORDINANCE NO. 2013- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND DENTON COUNTY ARCHERS, A TEXAS NOT - FOR - PROFIT CORPORATION; PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Lease Agreement by and between the City of Denton, Texas, a Texas municipal corporation as Lessor, and the Denton County Archers, a Texas not -for- profit corporation, as Lessee, for a term of three (3) years, regarding certain real property owned by the City which is described therein; a copy of which Lease Agreement is attached hereto as Exhibit "A" and incorporated by reference herewith. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY LIM APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY B y: C4 �' l4 THE STATE OF TEXAS § COUNTY OF DENTON § LEASE AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON COUNTY ARCHERS THIS LEASE AGREEMENT is executed and entered into as of the 3rd day of December, 2013, hereafter the "Effective Date" by and between the City of Denton, Texas, a Texas Municipal Corporation (the "Landlord ") and the Denton County Archers, a not - for - profit Texas Corporation (the "Tenant ") upon the following terms and conditions: WHEREAS, this Lease Agreement (the "Agreement ") replaces, amends, and supersedes that certain Third Amended Lease Agreement entered into by Landlord and Tenant effective as of the 18th day of August, 2009 and which expired on August 18, 2012; and WHEREAS, this Lease Agreement, by its provisions, takes into account the present circumstances as well as the desires of both the Landlord and Tenant respecting the Property described below in Paragraph 1; and this Lease Agreement supersedes all prior Lease Agreements by and between the City of Denton, Texas and the Denton County Archers; and NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the Landlord and Tenant hereby AGREE to the following terms and conditions: 1. LEASE GRANT. For and in consideration of the premises, covenants and agreements provided in this Agreement, Landlord has this day leased and demised unto Tenant that certain 10.155 acre tract located within the R.J. Mosely Survey, Abstract No. 803, in and for Denton County, Texas, hereinafter referred to herein as the "Property;" said Property being situated in the City of Crossroads, Denton County, Texas; and said real property being located North of Tipps Road; and being more particularly described in Exhibit "A" attached hereto, and incorporated herewith by reference. The Landlord and Tenant further agree that the Property described in their previous Lease Agreement shall be expanded and supplemented by the addition of a one thousand foot (1,000') wide buffer zone that shall run along the entire Northern -most boundary line of the Property, which additional tract will be available for Tenant's usage just the same as the Property described in Exhibit "A." Landlord and Tenant agree that the Northern -most boundary line of the Property, after taking into account the 1,000 foot wide buffer zone, will accordingly be marked by Landlord by its installation of a minimum of five (5) clearly visible corner posts. 2. LEASE PURPOSE. The lease of this Property shall be solely for the purpose of constructing and maintaining an archery range. Only members of Tenant, their guests and visitors shall be permitted upon the Property. Tenant agrees that no permanent structures will be placed or built on any area of the Property. Tenant agrees that it will not place storage trailers or other similar temporary storage facilities upon the Property without the express advance written approval of the Landlord. 3. TERM. The lease term (the "Term ") of this Agreement shall be for three (3) years, commencing effective on December 3, 2013 and expiring on December 3, 2016. Landlord, however retains the absolute right to terminate this Agreement upon giving Tenant thirty (30) days written notice of termination. In the event of termination of this Agreement by Landlord, Tenant shall remove all improvements made by Tenant during the Agreement within said thirty (30) day notice period. In the event of termination of this Agreement upon thirty (30) days written notice by Landlord, Landlord shall refund any unearned rent paid in advance by Tenant, conditioned, however, upon the Property inspection of the Landlord, which will be conducted by Landlord within ten (10) days following Tenant's surrender of possession of the Property, revealing no material damage to the Property. 4. SECURITY DEPOSIT. Landlord does not require that Tenant pay to Landlord a security deposit under this Agreement. 5. RENT. Tenant shall pay rent to Landlord, at the address specified herein for notices to the Landlord in Paragraph 17 herein, without any offset or deduction, regarding the Property at the rate of $1,250.00 per year. The first $1,250 payment of rent shall be due and payable on December 3, 2013 and shall cover the period from December 3, 2013 through December 3, 2014. The second $1,250 payment of rent shall be due and payable on December 3, 2014 and shall cover the period from December 3, 2014 through December 3, 2015. The third and final $1,250 payment of rent shall be due and payable on December 3, 2015 and shall cover the period from December 3, 2015 through December 3, 2016. 6. OPTION TO RENEW. This lease may be renewed for two (2) additional periods of one (1) year each upon mutual agreement of the parties, in writing. 7. TENANT'S RESPONSIBILITIES. In return for Landlord's lease of the Property, the Tenant agrees to provide the following services, to wit: A. Post at least four (4) signs that are readable from at least 100', on the gate and the perimeter fence line of the frontage road notifying the public that the land is posted, no trespassing. B. Require that all persons on the Property be either club members (Denton County Archers), or visitors or guests of club members. All visitors or guests of club members shall be accompanied at all times by club members. Only club members, visitors or guests of club members are permitted upon the Property. Tenant shall be solely responsible for instructing all club members, visitors or guests respecting safety. Landlord shall have no responsibility for the safety of all club members, visitors or guests. C. Tenant is responsible for all site maintenance. Tenant shall maintain the site in its present condition, reasonable wear and tear being excepted. D. In no event shall the old City of Denton landfill soil cover be disturbed by Tenant, Tenant's guests or visitors. E. Tenant is responsible for providing security for the Property. Tenant is solely responsible for maintaining a locked gate entering the Property. Tenant shall provide Landlord with a copy 0, of the key to the locked gate. Tenant and Landlord shall provide separate locks for the gate. The Tenant will not lock the Landlord out of the leased premises. F. Tenant shall prohibit anyone from possessing a firearm and /or incendiary device on the Property. G. Tenant agrees to make a monthly inspection of the Property and further agrees to promptly report any unauthorized use, any unusual erosion, any unusual odors, or any other hazards to the Landlord immediately, in writing. H. Tenant shall construct and maintain a roadway from the present entrance to the Property, to the area or areas planned for utilization on the Property. I. Tenant shall provide to Landlord, an updated list of its organization's officers and directors, as well as Tenant's point of contact, at least annually; and Tenant shall advise Landlord of any change in Tenant's officer and directors if that occurs. J. Tenant shall be responsible for arranging for any temporary utility service, if needed, to the Property, together with all costs of said utilities. Landlord is not liable for any utility service or costs of same regarding the Property. K. Tenant shall be responsible for keeping the Property picked up and clean at all times. Tenant shall pick -up the premises and remove debris from the Property before Tenant closes the Property, for each day that Tenant uses the Property. Tenant shall be responsible for promptly hauling away any refuse or trash from the premises, all at Tenant's expense. Tenant shall not conduct any open burning on the Property. L. At the termination of the term of this Agreement, Tenant shall surrender the Property to Landlord, in the same condition as it existed on the first day of the Landlord /Tenant relationship by and between Landlord and Tenant, subject however, to allowance for reasonable wear, tear and deterioration. 8. TENANT'S RIGHTS. Tenant is granted the authority to control access to the Property. 9. HOURS OF OPERATION. Operating hours for the Property shall be only from one - half hour before sunrise and one -half hour after sunset, for all days of the week, except Thursday. On each Thursday, the operating hours shall be from one -half hour before sunrise until 10:00 p.m. Any requested extension of operating hours or any request for overnight usage will require the advance written approval of the Landlord. 10. CONDITION OF PROPERTY. Tenant hereby acknowledges that it has inspected the Property and accepts and approves of the Property in its present "AS IS" and "WITH ALL FAULTS" condition, subject to any and all roads, rights -of -way, electric transmission lines, other utility lines or pipes, and any and all visible and recorded easements. LANDLORD HAS NOT, AND DOES NOT, AND WILL NOT MAKE ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY USE, OR ANY WARRANTY OF CONDITION, MERCHANTABILITY, OR HABITABILITY. 11. INDEMNIFICATION. TENANT SHALL OCCUPY AND USE THE PROPERTY AT TENANT'S SOLE RISK. TENANT SHALL INDEMNIFY LANDLORD AND HOLD LANDLORD HARMLESS OF AND FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, AND EXPENSES, INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES, INCURRED OR PAID IN CONNECTION WITH ANY PERSONAL INJURIES OR PROPERTY DAMAGE DERIVED FROM OR OUT OF THE OCCUPANCY OR THE USE OF THE PROPERTY BY TENANT, OR OCCASIONED IN WHOLE OR IN PART BY ANY ACT OR OMISSION OF TENANT OR TENANT'S AGENTS, SERVANTS, INVITEES, LICENSEES, OR EMPLOYEES, WHETHER OR NOT THE DAMAGE ARISES FROM LANDLORD'S NEGLIGENCE. 12. INSURANCE. Tenant shall procure and maintain, at its sole cost and expense throughout the Terrn of this Agreement, a policy or policies of insurance, issued by an insurance company licensed in the State of Texas by the Texas Insurance Board, and rated at least "A -" by A.M. Best rating service, insuring both Landlord and Tenant against all claims, demands, or actions arising out of or relating to the Property or the condition of the Property, in an amount not less than $1,000,000, per occurrence. Tenant shall furnish to Landlord an appropriate insurance certificate, and if requested by Landlord, a copy or copies of policies, and receipts evidencing payment of premiums therefor, prior to the commencement of this Agreement. Not less than fifteen (15) days before the expiration date of any policies, copies of the renewals thereof (bearing notations evidencing payment of renewal premiums) shall be delivered to Landlord. Each policy shall provide that not less than thirty days (30) days' written notice must be given to Landlord before any policy may be canceled or changed to reduce the insurance provided by it. 13. ASSIGNMENT AND SUBLETTING. Tenant shall not sublet or assign all or any portion of this Agreement or the Property, or any interest therein. Any assignment or subletting in violation of this paragraph by the Tenant shall be void. 14. LANDLORD'S ACCESS TO THE PROPERTY. It is expressly agreed that Landlord shall have the right to enter onto the Property at any time to inspect the condition of the Property, the use thereof, or for any other lawful purpose. Landlord shall also have the right to enter the Property at any time in order to make repairs or improvements to the Property or to adjoining property owned by the Landlord. Tenant shall provide Landlord with a key to each lock, or the combination to each lock, that may be placed upon any gate upon the Property, so that the Property is always accessible to the Landlord. If Landlord attempts to enter the Property, but is prevented from doing so because of not being furnished a key or combination by Tenant, Tenant, within five (5) business days after demand by Landlord furnish a key and /or the combination to lock(s) to permit Landlord's entry to the Property. Tenant shall also pay Landlord a stipulated monetary charge of $45.00 at the time of presenting the key and /or combination to Landlord. 15. DEFAULT. Tenant shall be in default under this Agreement if: A. Tenant fails to pay any rent payment due under this Agreement within fifteen (15) days of its due date; or B. Tenant fails to comply with any term, condition, or covenant of this Agreement, and that failure is not cured within fifteen (15) days after written notice is issued to Tenant. El 16. REMEDIES. On the occurrence of any default under this Agreement, Landlord may enforce the performance of this Lease in any manner provided by law, in equity, or as specifically provided in this Agreement. At no time shall Landlord be obligated to re -let the Property, or to re -let the property for a sum equal to or greater than the rent specified herein, Tenant hereby specifically waives any claim that Tenant may have with respect to any obligation of Landlord to mitigate its damages in the event of Tenant's default hereunder. In particular, but without limitation, Landlord shall have the option to pursue any one or more of the following remedies without any notice or demand whatsoever: A. Terminate this Agreement. In this case Tenant shall surrender the Property to Landlord pursuant to the terms of this Agreement. However, if Tenant fails to surrender the Property to Landlord, Landlord may, without prejudice to any other remedy which Landlord may have for possession of the Property or for arearage in rent or any sum due hereunder, enter upon and take possession of the Property and remove Tenant and any other person and their materials, who may be occupying the Property, or any part thereof; or B. Enter upon the Property, without tenninatin this his Agreement. Landlord shall not be liable for prosecution for any claim for damages, and Landlord may do whatever Tenant is obligated to do under the terms of this Agreement. Tenant shall reimburse Landlord, on demand, for all expenses that Landlord incurs in effecting compliance with Tenant's obligations under this Agreement, together with interest thereon at the maximum rate allowable by law from the date expended until paid. Payment of such amount shall be made no later than fifteen (15) days after Landlord's issuance of the invoice to Tenant, which notice shall be made in writing and mailed to Tenant at the mailing address for notices set forth in Paragraph 17 herein. Pursuit of any of the foregoing remedies shall not preclude Landlord's pursuit of any other remedy herein provided or any other remedies provided by law, nor shall pursuit of any remedy herein constitute a forfeiture or waiver of any rent due to Landlord hereunder or of any damages accruing to Landlord, by reason of the violation of the terms, provisions, and covenants herein contained. The rights and privileges given to Landlord in this paragraph shall be cumulative of, and without prejudice to, any rights or remedies given to Landlord by law to procure possession, or to enforce the payment of rent, or performance of the other covenants hereof. No waiver by Landlord of any violation or breach of any of the terms, provisions, and covenants herein contained shall be deemed or construed to constitute a waiver of any other or future violation of breach of any of the provisions, conditions, or covenants herein. 17. NOTICES. Any notice or other written letter or instrument required or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to the Landlord or Tenant, as the case may be, at the following addresses: CITY OF DENTON, TEXAS Attention: City Manager 215 East McKinney Street Denton, Texas 76201 5 TENANT: DENTON COUNTY ARCHERS Xavier Hernandez, President 3501 Ambeilwood Lane Proper, Texas 75078 Fax: (940) 349 -8596 Telephone: (940) 349 -8307 and CITY OF DENTON, TEXAS Attention: Director of Solid Waste Dept. 1527 South Mayhill Road Denton, Texas 76208 Fax: (940) 349 -8057 Telephone: (940) 349 -8044 18. MISCELLANEOUS PROVISIONS: OR Sheldon Benge. Vice President 1233 Buehler Court Lewisville, Texas 76057 OR Robert Hilliard, Secretary 2525 Ft. Worth Drive Denton, Texas 76205 OR Lloyd Hensley, Treasurer 2204 Emerson Lane Denton, Texas 76209 A. Compliance With The Law. Tenant shall at Tenant's sole cost and expense, obtain the necessary license and permits required to conduct Tenant's activities on the Property. Tenant shall also comply with all governmental laws, ordinances, resolutions, and regulations applicable to the Property, or Tenant's use thereof. B. Independent Contractor. Tenant is acting as a not - for - profit corporation and as an independent contractor respecting this Agreement, and is not an employee, officer or agent of the Landlord. C. No Waiver. No waiver by either party hereto of any default under this Lease shall be deemed to be a waiver of any subsequent default of the same, of any other term, condition, or covenant contained in this Agreement. D. Governing Law/Venue. This lease shall be governed by and construed in accordance with the laws of the State of Texas. Any and all suits brought for the enforcement of this Agreement, or breach of this Agreement, or for any other cause of action brought pursuant to this Agreement shall be brought in the courts of Denton County, Texas. E. Invalid Provisions. Should any provision of this Agreement been deemed or found to be invalid by any legislative, administrative, or judicial body, or for any other reason whatsoever, the other provisions of the Agreement shall remain in full force and effect, and shall be unaffected by such declaration of invalidity. F. Entirely. This Agreement and all exhibits attached hereto, if any, contain the entire agreement between the Landlord and the Tenant with respect to the subject matter herein, and may not be altered, modified, changed, annulled, or amended in any manner without the written consent of both parties. G. Effective Date. The effective date of this Agreement shall be the 3 day of December, 2013, for all purposes. no IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement. Ulu, CITY OF DENTON, TEXAS A Texas Municipal Corporation an GEORGE C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY _C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY r By: it ' "TENANT" DENTON COUNTY ARCHERS A Texas Not For Profit Corporati ATTEST: ' Its \ \CODAD \Departments \Legal \Our Documents\Contracts \13 \Denton County Archers Lease Agreement.doe 7 EXHIBIT "A" FIELD NOTES All that certain lot, tract or parcel of land situated in the R.J. Mosely Survey, Abstract No. 803, in Denton County, Texas and being part of a called first tract and part of a called third tract in a deed from S.O. Tipps, et ux to the City of Denton on the 2 "d day of December, 1960 and recorded in volume 462, Page 465 of the Deed Records of Denton County, Texas and being more particularly described as follows: BEGINNING at the southwest corner of said first tract in the center of Tipps Road; THENCE north 00 51'32" west a distance of 520.0 feet to a point for corner; THENCE north 89° 08'28" east a distance of 575.16 feet to a point for corner; THENCE north 0° 4730" east a distance of 398.79 feet to a point for corner; THENCE south 89° 12' 30" west a distance of 200.0 feet to a point for corner; THENCE south 0° 47' 30" west a distance of 429.86 feet to a point for corner; THENCE north 89° 12" 30" west a distance of 19.5 feet to a point for corner; THENCE south 18° 11'54" west a distance of 231.39 feet to a point for corner; THENCE south 13° 22'09" west a distance of 86.81 feet to a point for corner; THENCE south 5° 50'56" west a distance of 197.86 feet to a point in the center of Tipps Road for corner; THENCE north 89° 26'59" west a distance of 634.88 feet to the Point of Beginning and containing approximately 10.155 acres of land. FURTHER TRACT: The leased Property described hereinabove shall also include an additional tract of land, which is a 1000' wide buffer zone, which buffer zone abuts along the entire Northern -most boundary line of the above - described 10.155 acre tract of land. Ctlil "Yse f0 Agei,Aa D AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 Questions concerning this Acquisition may be directed DEPARTMENT: Materials Management to Terry Kader at 349 -8729 ACM: Bryan Langley i -A SUBJECT Consider adoption of an ordinance of the City of Denton authorizing the City Manager or his designee to execute a contract with the Houston- Galveston Area Council of Governments (H- GAC) Cooperative Purchasing Program for the acquisition of one (1) Aerial Fire Trick for the City of Denton Fire Department; and providing an effective date (File 5437- Purchase of one (1) Aerial Fire Trick from Siddons - Martin Emergency Group in the amount of $1,406,673). FILE INFORMATION The replacement of fire apparatus is based on the evaluation of several criteria including hours, mileage and maintenance, which are translated into a point system by the City of Denton's Fleet Services Division. The replacement criteria for this type of trick is fifteen years. The acquisition of a new Aerial Trick is the result of the coordinated efforts of Fleet Services and the Fire Department to ensure vehicles and equipment are replaced in a timely manner. This ensures the safe and efficient response capability of the Denton Fire Department. The new one hundred foot (100') Aerial Fire Trick is proposed to enter frontline service as a replacement for FD9965 that has been in service since March 2000. FD9965 will enter reserve status as a replacement for FD9614 which was placed in service in March 1996 and has been in reserve status since November 2007. FD9614 has accumulated 11,680 hours of service at a cost of $221,221 lifetime to date maintenance and repair. This unit will be scheduled for auction once the proposed Aerial Fire Trick is received and placed in service. The manufacturer has indicated that with a January build slot, the trick may be available for service in October 2014. The City of Denton Fire Department has standardized to using Pierce Fire Tricks, over the last ten years in an effort create efficiencies with service, maintenance and parts supplies. A quote from Siddons- Martin Emergency Group through the Houston- Galveston Area Council of Governments (H -GAC) Cooperative Purchasing Program is included as Exhibit 1. These fire tricks are not available from local vendors. Siddons - Martin Emergency Group is the licensed and authorized dealer for Pierce Manufacturing in the State of Texas (Exhibit 2). The Siddons- Martin Emergency Group representative is advising that effective February 1, 2014, they are anticipating a minimum price increase of 2.5% or an estimated $35,166.83 towards the proposed purchase. Clients may also expect constriction build delays of thirty to forty -five days for orders placed after January 31, 2014. Agenda Information Sheet January 7, 2014 Page 2 FILE INFORMATION (CONTINUED) By submitting a down payment of $341,208.74 for the trick chassis, the City of Denton will secure a January build slot, receive a chassis prepay discount of $10,236, and avoid potential price increases related to material costs (Exhibit 3). The remaining balance due upon receipt is $1,065,464.26. PRIOR ACTIONNIEW (COUNCIL, BOARDS, COMMISSIONS) This trick was included in the Fiscal Year 2013 -2014 Vehicle Replacement Schedule and Fiscal Year 2013 -2014 Annual Operating Budget. A Certificate of Obligation Reimbursement Resolution was approved by Council on November 19, 2013. RECOMMENDATION Staff recommends the approval of the purchase of a 100' Aerial Fire Trick in the amount of $1,406,673, with a down payment of $341,208.74 to Siddons - Martin Emergency Group. PRINCIPAL PLACE OF BUSINESS Siddons- Martin Emergency Group Waco, TX ESTIMATED SCHEDULE OF PROJECT The purchase and delivery the Aerial Fire Trick will occur within 300 days of purchase order issuance and receipt of down payment. FISCAL INFORMATION This item will be funded from existing resources: 810181468.1355.30100 (2014 Certificate of Obligation) - $515,000 2015 Certificate of Obligation Reimbursement Ordinance - $891,673 Requisition 4 116751 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: H -GAC Quote from Siddons - Martin Exhibit 2: Siddons - Martin Authorized Dealer Confirmation Exhibit 3: Siddons - Martin Prepay Invoice for Aerial Fire Trick Agenda Information Sheet January 7, 2014 Page 3 Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance I -.CIS -File 5437 Exhibit 1 I 4 I dud, ey"Wwww'Jo am J'�!'J!ia!'!1lJJ !JJ= J'J'J!JJiI J! December 4, 2013 Denton Fire Department Captain Monty Perry 322 E. Hickory Denton, Texas 76201 Exhibit 2 I n�Nµn,p 3500 Shelby Lane Denton, Texas 76207 WP GDN P115891 TXDOT Franchise No. A115890 EIN: 26- 1557803 RE: Proposal for 100' Aerial Platform; EP/438 Dear Captain Perry, Siddons- Martin Emergency Group the licensed and authorized dealer for Pierce Manufacturing Inc. in the State of Texas is pleased to provide the following proposal for Truck Description. This proposal is based on the accompanying proposal specifications, which are tailored to meet your needs. The proposal pricing is based on current HGAC contract pricing and includes the fees associated with an HGAC purchase. To take advantage of prepayment discounts, payment must be made by net 30 The proposal pricing includes the delivery cost from Plant. Travel expenses for four (4) of your personnel to travel to our factory for 2 Trips are included. Delivery time for the proposed unit will be within 8 -9 months from the date of order which will be the date a Purchase Order is received by Siddons - Martin Emergency Group. Proposal for Denton Fire Department Page 1 of 3 / o " I i i �-,twom � EP/357 ,,4�, ' '%,�2 J'J!�! � r !IJJJ !JJ JJJ!11Jit'-!J! This proposal is valid for 30 days from the above date. price expiration Jan. 30, 2014. Tax is excluded from this proposal. In the event the purchasing organization is not exempt from Sales Taxes or any other applicable taxes and /or the proposed apparatus does not qualify for exempt status, it is the duty of the purchasing organization to pay any and all taxes due. Balance of sales price is due upon acceptance of the apparatus at the factory. Payment must be remitted to: Payment Mailing Address Payment Wiring Information Siddons- Martin Emergency Group JP Morgan Chase Bank, N.A. P.O. Box 975262 Dallas, TX 75201 Dallas, TX 75397 -5262 Routing*: 111000614 Account # 923009930 Fed Tax ID 26- 1557803 Any changes to the original specification will be invoiced or credited as a separate transaction from the original proposal. A late fee of .033% of the sale price will be charged per day for overdue payments beginning ten (10) days after the payment is due for the first 30 days. The late fee increases to.044% per day until the payment is received. In the event of a Prepayment received after the due date above, the discount will be reduced by same percentages above increasing the cost of the apparatus. In the event this proposal is accepted and a purchase order is issued then cancelled or terminated by Denton Fire Department before completion, Siddons- Martin Emergency may charge a cancellation fee. The following charge schedule based on costs incurred may be applied: (a) 10% of the Purchase Price after order is accepted and entered by Pierce; (b) 20% of the Purchase Price after completion of the approval drawings; (c) 30% of the Purchase Price upon any material requisition. Proposal for Denton Fire Department Page 2 of 3 EP/357 J✓ /J r � r- r�lJ� 11J! :JJ'Jl1J��: JS The cancellation fee may increase accordingly as costs are incurred as the order progresses through engineering and into manufacturing. Siddons- Martin Emergency endeavors to mitigate any such costs through the sale of such product to another purchaser; however, the customer shall remain liable for the difference between the purchase price and, if applicable, the sale price obtained by Siddons - Martin upon sale of the product to another purchaser, plus any costs incurred by Siddons- Martin to conduct such sale. In an effort to ensure the above stated terms and conditions are understood and adhered to, Siddons- Martin requires an authorized individual from the purchasing organization to sign and date this proposal and include it with any purchase order. Upon signing of this proposal, the terms and conditions stated herein will be considered binding and accepted by Denton Fire Department. The terms and acceptance of this proposal will be governed by the laws of the state of Texas. Venue of any claim regarding this proposal will lie in the county Denton Fire Department is located. No additional terms or conditions will be binding upon Siddons- Martin Emergency Group unless agreed to in writing and signed by a duly authorized officer of Siddons- Martin Emergency Group. Sincerely, Russell Mabra Sales Representative 972.342.4196 rmabra @siddons - martin.com I, .� /-r-/ y . the authorized representative of Denton Fire Department, agree W purchase the Truck Description and agree to the terms of this proposal. Signature (Date Proposal for Denton Fire Department Page 3 of 3 Exhibit 3 r' 3500 Shelby Lane Denton, Texas 76207 (800) 784 -6806 Payment Mailing Address: Siddons - Martin Emergency Group P.O. Box 23042 Waco, TX 76702 Name / Address Denton Fire Department 322 E. Hickory Denton, TX 76201 Description Payment Wiring Information: First National Bank of Central Texas Hillsboro, 'I'X 76645 Account :# 1719011023 Routing #: 111903245 27-4333590 Fetl. Tax ID Ship To Pierce 100' Aerial Platform Fire Truck- Chassis Prepayment NOTE: Payment must be received by January 30, 2014 to qualify for discounts. Ordered www.siddons-martin.com 1 Date S.O. No. 12/4/2013 RM12413 P.O. No. V Project Contract I Platform Rate Amount 341,208.74 Total $341,208.74 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT WITH THE HOUSTON - GALVESTON AREA COUNCIL OF GOVERNMENTS (H -GAC) COOPERATIVE PURCHASING PROGRAM FOR THE ACQUISITION OF ONE (1) AERIAL FIRE TRUCK FOR THE CITY OF DENTON FIRE DEPARTMENT; AND PROVIDING AN EFFECTIVE DATE (FILE 5437 - PURCHASE OF ONE (1) AERIAL FIRE TRUCK FROM SIDDONS - MARTIN EMERGENCY GROUP IN THE AMOUNT OF $1,406,673). WHEREAS, pursuant to Ordinance 95 -107, the Houston- Galveston Area Council of Government (H -GAC) has solicited, received, and tabulated competitive bids for the purchase of necessary materials, equipment, supplies, or services in accordance with the procedures of state law on behalf of the City of Denton; and WHEREAS, the City Manager or a designated employee has reviewed and recommended that the herein described materials, equipment, supplies, or services can be purchased by the City through the Houston- Galveston Area Council of Government (H -GAC) programs at less cost than the City would expend if bidding these items individually; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies, or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered file for materials, equipment, supplies, or services, are hereby approved. FILE NUMBER VENDOR AMOUNT 5437 H- GAC /Siddons- Martin Emergency Group $1,406,673 SECTION 2. By the acceptance and approval of the above numbered items set forth in the referenced file, the City accepts the offer of the persons submitting the bids to the H -GAC for such items and agrees to purchase the materials, equipment, supplies, or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the H -GAC, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by H -GAC, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to H -GAC, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5347 to the City Manager of the City of Denton, Texas, or his designee. SECTION 5. By the acceptance and approval of the above enumerated items, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved bids. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY n-M APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 5 -ORD -File 5437 AGENDA DATE DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET January 7, 2014 Materials Management Bryan Langley i -A Questions concerning this acquisition may be directed to PS Arora at 349 -7189 Consider adoption of an ordinance of the City of Denton, Texas authorizing the City Manager to execute a Professional Services Agreement for professional engineering services in support of the development and implementation of a Roadway Impact Fee and Rough Proportionality Policy for the City of Denton with Kimley -Horn and Associates, Inc. in an amount not -to- exceed $276,500; providing for the expenditure of funds therefor; and providing an effective date (File 5436- awarded to Kimley -Horn and Associates, Inc.). FILE INFORMATION During the past three years, staff has made several informational presentations to the City Council regarding road impact fees. During the September 2013 presentation, City Council directed staff to obtain input from an informal Developer's Committee before proceeding with engaging a consultant for implementation of the impact fees. A presentation was made to the Developer's Committee on November 15, 2013. The Developer's Committee expressed support for proceeding with the road impact fees and requested that they receive periodic updates regarding the implementation of the impact fee study. Subsequently, staff requested a proposal for the impact fee study from the consulting engineering firm of Kimley -Horn and Associates, Inc. (KMH). KMH prepared a Rough Proportionality Model for the City in 2009, and this model is used for street exactions when a request for proportionality is submitted by the developers. The model will also be an integral part of the impact fee Ordinance. In addition, KMH has provided road impact fee services to Fort Worth, San Antonio, Frisco, and many other cities in Texas and other parts of the United States. Therefore, based on KMH's previous work for the City and overall experience with impact fee studies, staff is recommending the approval of the attached Professional Services Agreement (Exhibit 1). The Scope of Services for this project is listed below: 1. Project Initiation and Management 2. Land Use Assumptions 3. Master Plan Review and Impact Fee Capital Improvements Plan (CIP) 4. Maximum Fee Calculations and Rate Analysis 5. Roadway Impact Fee Study Document and Adoption Process 6. Administration Tools Agenda Information Sheet January 7, 2014 Page 2 FILE INFORMATION (CONTINUED) KMH will initiate a kick off meeting, and then conduct ongoing bi- weekly meetings to communicate, gather information, obtain staff input and provide status updates. KMH will prepare existing, build -out, and ten (10) year land use assumptions for the 2014 -2024 planning window. Based on the Mobility Plan, KMH will analyze the existing capacity of the roads and project the capacity requirements for the ten (10) year impact fee planning window based on the traffic generated from the ten (10) year land use assumptions. Based on the existing capacity available and the projected capacity required, KMH will develop a ten (10) year impact fee capital improvements plan that will include the extents of the projects and the estimated costs. The ten (10) year land use assumptions and the impact fee capital improvement plan are then presented to and adopted by the Capital Improvements Advisory Committee (established by City Council Ordinance) and the City Council in public hearings. Pursuant to the adoption of the land use assumptions and impact fee capital improvements plan, the proposed resultant road impact fees are adopted by the Council. Subsequently, as part of the administrative implementation of the road impact fees, KMH will create a road impact fee estimator spreadsheet tool to assist in calculating a development's transportation impact fees based on the impact fee rates adopted. In addition, based on the ordinance adopted, KMH will update the existing Roadway Rough Proportionality Worksheet. This updated worksheet will capture the City's existing rough proportionality policies and the potential use of the maximum roadway impact fee as a basis for making rough proportionality determinations. KMH proposes to provide these services at an estimated cost of $276,500. Staff has reviewed the scope and the cost proposal and finds it acceptable for the level of effort required to conduct the study. The Fiscal Year 2013 -2014 budget includes $300,000 for implementation of the road impact fees. In accordance with Texas Local Government Code 252.022, the procurement of professional services is exempt from the requirement of competition based selection. The City of Denton has previous successful experience with the recommended firm, and has elected to not seek qualification based competition for these identified services. PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS) • December 5, 2011: Staff presentation to the City Council regarding supplemental street funding • February 6, 2012: Staff presentation to the City Council to provide an update regarding supplemental street funding • September 10, 2013: Staff presentation to the City Council to provide an update and seek direction regarding supplemental street funding Agenda Information Sheet January 7, 2014 Page 3 PRIOR ACTION/REVIEW (COUNCIL, BOARDS, COMMISSIONS (CONTINUED) • November 15, 2013: Staff presentation of proposed road impact fees to the Developer's Committee • December 17, 2013: Staff presentation to City Council on the consultant contract for implementation of Road Impact Fees. RECOMMENDATION Approve a Professional Services Agreement between the City of Denton and Kimley -Horn and Associates, Inc. in the not -to- exceed amount of $276,500. PRINCIPAL PLACE OF BUSINESS Kimley -Horn and Associates, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT Services to be performed will begin upon Council approval and will continue until the completion of the project as defined in the Professional Services Agreement. FISCAL INFORMATION The charges for the work performed under this contract will be funded from operating account 285801.7854. Requisition number 116862 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Ordinance with Professional Services Agreement Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance 1 -AIS -File 5436 ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR PROFESSIONAL ENGINEERING SERVICES IN SUPPORT OF THE DEVELOPMENT AND IMPLEMENTATION OF A ROADWAY IMPACT FEE AND ROUGH PROPORTIONALITY POLICY FOR THE CITY OF DENTON WITH KIMEY -HORN AND ASSOCIATES, INC. IN AN AMOUNT NOT -TO- EXCEED $276,500; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (FILE 5436- AWARDED TO KIMLEY -HORN AND ASSOCIATES, INC.). WHEREAS, the professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services; and WHEREAS, the fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into a professional service contract with Kimley -Horn and Associates, Inc. to provide professional engineering and related services in support of the implementation of a Roadway Impact Fee and Rough Proportionality Policy for the City of Denton, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. The City Manager is authorized to expend funds as required by the attached contract. SECTION 3. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5436 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. The findings in the preamble of this ordinance are incorporated herein by reference. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY IC • 2 -ORD -File 5436 NTON City of Denton Contract # 5436 Roadway Impact Fee and Rough Proportionality Policy Development CONTRACT #5436 PROFESSIONAL SERVICES AGREEMENT FOR TEXAS LICENSED ENGINEER STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the 14TH day of January, 2014, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and Kimley -Horn and Associates, Inc, with its corporate office at 12750 Merit Drive, Suite 1000, Dallas, Texas 75251 hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives. WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, a licensed Texas architect or en_ i neer, as an independent contractor. The CONSULTANT hereby agrees to perform the services as described herein, with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. The Project shall include, without limitation, professional engineering services in support of the development and implementation of a Roadway Impact Fee and Rough Proportionality Policy for the City of Denton. This scope of services shall provide the OWNER with the technical analysis required by Chapter 395 of the Texas Local Government Code to determine the maximum assessable roadway impact fee that may be assessed. In addition, the CONSULTANT will provide the OWNER with assistance with the integration of the proposed impact fee policy with Rough Proportionality along with the various presentations required during the Impact Fee public hearing and adoption process. The project shall be completed in six (6) tasks: Task 1 — Project Initiation and Management Task 2 — Land Use Assumptions Task 3 — Master Plan Review and Impact Fee Capital Improvements Plan (CIP) Task 4 — Maximum Fee Calculation and Rate Analysis Task 5 — Roadway Impact Fee Study Document and Adoption Process Task 6 — Administration Tools Page 2 The detailed requirements of Tasks 1 -6 are further defined within the Scope of Services within Article II. All completed documents or reports are to be reviewed by OWNER's personnel following CONSULTANT's in -house quality control and quality assurance procedures prior to submission. The OWNER will provide CONSULTANT with one consolidates set of continents on documents or reports upon completion of its' internal review. Any additional services requested shall result in a change order to the authorized purchase order, and an amendment to this contract. ARTICLE II SCOPE OF SERVICES The CONSULTANT understands that the goal of this project is to lead in the development and implementation of a Roadway Impact Fee and Rough Proportionality Policy for the City of Denton. This scope of services will provide the OWNER with the technical analysis required by Chapter 395 of the Texas Local Government Code to determine the maximum assessable roadway impact fee that may be assessed. In addition, the CONSULTANT will provide the OWNER with assistance with the integration of the proposed impact fee policy with Rough Proportionality along with the various presentations required during the Impact Fee public hearing and adoption process. The CONSULTANT understands that the OWNER is currently working on an update to the City of Denton Comprehensive Plan. To conduct the land use assumptions analysis, the CONSULTANT will utilize available information from the currently on -going Comprehensive Plan, the Future Land Use Plan, the existing zoning map, and the land use assumptions recently developed for the Water and Wastewater Impact Fee Update. The CONSULTANT will utilize the currently adopted Mobility Plan as the basis for the Impact Fee Capital Improvement Plan. Any analysis related to amending the City's Future Land Use Plan, Mobility Plan, or a change to the roadway impact fee study resulting from an amendment to the Future Land Use Plan or Mobility Plan following a notice from the OWNER to use one or both of these documents, will be considered additional services. The CONSULTANT shall perform the following services in a professional manner: Task 1— Project Initiation and Manauement A. Project Kick -Off Meeting and Impact Fee 101. CONSULTANT will meet with the OWNER for a formal kick -off meeting for the Roadway Impact Fee project. During this meeting the scope and OWNER contacts will be determined for each task. CONSULTANT will present -an Impact Fee 101 to OWNER's staff during this meeting. B. Project Team Status Meetings and Coordination. CONSULTANT will participate in bi- weekly (once every other week) meetings with OWNER's staff. These meetings will be held on specific days and times as agreed by the OWNER. A maximum of two hours will be anticipated for each meeting. These may be either in- person calls or conference calls. CONSULTANT will prepare notes from each meeting and submit to the OWNER's Project Manager for review and approval. A maximum of twelve meetings will be held. It is anticipated that the work will be completed within six (6) months. C. Project Status Reports. CONSULTANT will prepare and submit monthly status reports regarding the overall project schedule, critical tasks, and sub - consultant coordination in conjunction with each monthly invoice. D. Service Areas. CONSULTANT will meet with the OWNER to develop the roadway impact . fee service area boundaries within the existing City limits consistent with the six (6) mile limit required by law. CONSULTANT anticipates approximately eight (8) service areas will be required for roadway impact fees. Task 2 — Land Use Assumptions A. Data Collection. CONSULTANT will coordinate with the OWNER to obtain the following data: • OWNER Contacts — The OWNER shall provide the organization structure and contact information for the applicable OWNER staff involved with the land use assumptions. • Comprehensive Master Plans — The OWNER shall identify and provide the OWNER's most recent comprehensive master plans. • Building Permit History — The OWNER shall provide CONSULTANT with available building permit history (both residential and non - residential) for the previous ten (10) years. • Currently adopted Land Use Assumptions for Water and Wastewater Impact Fees. • Maps — The OWNER shall provide CONSULTANT with available GIS shapefiles, associated databases, and layer files in ESRI ArcGIS10.x format. All data shall be projected in NAD 83 State Plane, South Central Texas Zone coordinates. Data should include: • Current Zoning Map; • Future Land Use Plan Map; • City / County Parcel Data; • City Limits and ETJ Map; and • Most recent digital orthophotograph (DOQ) of the City. B, Existing Land Use Assumptions. CONSULTANT will prepare the existing land use information in a format suitable to the OWNER for use in the roadway impact fee policy development. The information will be presented in tabular form by service area. For each service area, population (persons and number of dwelling units) and employment (amount of square footage of basic, service, and retail land uses) will be summarized. The existing land use assumptions will be completed for the year 2014. C. Build-Out Land Use Assumptions. CONSULTANT will develop the build -out demographics (population and employment) within the existing City Limits in tabular format for each service area. For each service area, population (persons and number of dwelling units) and employment (amount of square footage of basic, service, and retail land uses) will be summarized. D. Ten -Year Land Use Assumptions. Chapter 395 states that impact fees may only be used to pay for items included in the Impact Fee capital improvements plan and attributable to Page new service units projected over a period of time not to exceed ten (10) years. Based on guidance from the OWNER regarding projected development patterns and growth rates, CONSULTANT will develop the Ten -Year Land Use Assumptions for the 2014 — 2024 planning window. Based upon the data collected in Task 2.A, the percentage of the projected build -out can be utilized to assist in this task. CONSULTANT will complete the demographic table for each service area. E. Documentation. CONSULTANT will incorporate the Land Use Assumptions information prepared by the OWNER into the final Impact Fee Report. No separate documentation will be completed for the land use assumptions. F, Meetings. CONSULTANT will prepare for and attend the following meetings in addition to those identified in the scope above: • CONSULTANT will attend two (2) meetings with OWNER's staff to discuss and review the proposed Land Use Assumptions. It is anticipated that four (4) service areas will be discussed at each meeting. G. Deliverables. • No specific deliverable will be prepared for this task; the Land Use Assumptions will be incorporated into the final Impact Fee Study report. Task 3 — Master Plan Review and Impact Fee Capital Improvements Plan (CIP) A. Data Collection. CONSULTANT will coordinate with the OWNER to obtain the following data: • OWNER contacts — OWNER shall provide the organization structure and contact information for the applicable OWNER's staff involved with the completion of the roadway capacity analysis and roadway impact fee CIP. • Mobility Plan — The OWNER shall provide CONSULTANT the most recent mobility plan adopted by the City in GIS format. CONSULTANT will utilize the mobility plan as is currently adopted. Any analysis related to updating the City's currently adopted Mobility Plan will be considered additional services. • Traffic Counts — The OWNER shall provide any available data (current and historical) for all roadway segments on the current Mobility Plan. CONSULTANT will obtain recently completed traffic counts for state highway facilities from TxDOT. CONSULTANT will collect new traffic count data at up to eighty (80) locations (approximately 10 per Service Area) within the City for use in the roadway impact fee study. • Historical Project Costing Information — The OWNER shall provide CONSULTANT with available data on the actual OWNER costs for previously completed arterial roadway improvement projects to assist in the development of planning level project costs for future projects and to include any project costs for previously completed projects with excess capacity available to serve future growth. B. Master Plan Review. CONSULTANT will review the currently adopted roadway Mobility Plan to verify if modifications are needed prior to formulating the Roadway Capital Improvement Plan. Modification will be provided with the recommendations from OWNER's staff. The OWNER's staff will perform the necessary tasks to have the revised Mobility Plan adopted by City Council (if necessary). C. Ten-Year Growth Proi,ec°.tiot s andmmCapacity Analysis. • In consultation with OWNER's staff, CONSULTANT will review the current land use equivalency table and determine land use categories to be included or excluded in the land use vehicle -mile equivalency table. • CONSULTANT will identify the service units for new development and the average trip length. Using the 9th Edition of the Institute of Transportation Engineer's (ITE) Trip Generation Manual, CONSULTANT will incorporate trip generation and pass - by trip rates. • CONSULTANT will perform an analysis of existing conditions. This will include a determination of roadway capacities, volumes, vehicle -miles of supply, vehicle -miles of demand, existing excess capacity, and existing deficiencies. • CONSULTANT will project traffic conditions for the ten -year planning period, the target year for the impact fee growth projections. This will include growth and new demand for each service area established in Task 2. • CONSULTANT will determine the capacity available for new growth. D. Roadway Impact Fee Capital Improvements Plan CONSULTANT will assist the OWNER to develop a Roadway Impact Fee Capital Improvements Plan which will include cost projections for anticipated projects to be included in the study. The Roadway Impact Fee Capital Improvements Plan will include existing oversized facilities and proposed facilities designed to serve future development. The Roadway Impact Fee Capital Improvements Plan shall include a general description of the project and a project cost projection. Planning level cost projections for future projects will be prepared based on discussion with local roadway construction contractors, OWNER's staff, and previous CONSULTANT experience with roadway construction costs. The OWNER shall provide CONSULTANT with actual OWNER's cost information for previously completed projects with excess capacity and any cost contribution to County, State, Federal, or developer constructed projects (see Task 3.A). Due to the variety of unknowns associated with roadway project costs projections (ROW acquisition, utility relocations, etc.), the planning level project cost projections utilized in the roadway impact fee analysis should not be used for any future capital improvement planning within the OWNER. • CONSULTANT will identify the portion of projected improvements required to serve existing demand and the portion of project improvements required to serve new development within the 10 -year planning period. E. Meetings. CONSULTANT will prepare for and attend the following meetings: • Two (2) meetings with OWNER'S staff to discuss and review the Roadway Impact Fee CIP. F. Deliverables • Roadway Impact Fee CIP Review Packet (which will be included within the Appendix of the final report) Task 4 — Maximum Fee Calculation and Rate Analysis A. Pre - Credit Maximum Assessable Roadway Impact Fee Calculation. Using the newly developed ten -year growth projections, roadway impact fee capital improvements plan, and capacity available for new growth, CONSULTANT will determine the cost of roadway improvements by service area, the maximum costs per service unit, and the resulting pre- credit maximum assessable roadway impact fees by service area. CONSULTANT will incorporate the financial analysis performed in Task 4.B. to determine the maximum assessable impact fee per service unit. B. Financial Anal. Using the impact fee eligible capital improvement costs and projected service units, a financial sub - consultant will calculate maximum assessable full -cost recovery impact fees for the designated ten -year period for roadway facilities. The financial sub - consultant will provide forecasted cash flows for the maximum assessable impact fee for the ten -year period based on projected capital improvement program's implementation schedule (if available) and growth in projected service units. CONSULTANT will work in conjunction with the financial sub - consultant to incorporate the Capital Improvements Plan identified in Task 3.D. C. Meetings. CONSULTANT will prepare for and attend the following meetings: • Two (2) meetings with OWNER's staff to review the proposed Maximum Assessable Roadway Impact Fees and discuss the financial analysis task. D, Deliverables • No specific deliverable will be prepared for this task; the Maximum Fee Calculations and Rate Analysis will be incorporated into the final Impact Fee Study report Task 5 — Roadway Impact Fee Studv Document and Adoption Process A. Roadway Documentation. CONSULTANT will provide both a draft and final Roadway Impact Fee Report. The report will include: • Land Use Assumptions; • Service areas; • Roadway CIP; • Narrative of the impact fee methodology; Page 7 hnpact fee calculations; Land Use Vehicle -Mile Equivalency Table; and Supporting Exhibits. CONSULTANT will review the proposed Roadway Impact Fee Ordinance as prepared by the City Attorney. It is anticipated the City Attorney will require exhibits from the Roadway Impact Fee Report to be included in the ordinance. It is recommended the OWNER coordinate with the City Attorney to ensure they will be able to prepare the ordinance during Task 4. B. Deliverables • Electronic (.pdf) copy of the Draft Roadway Impact Fee Report; and • Five (5) 8.5" x 11" hard copies of the Draft Roadway Impact Fee Report • Upon final approval of the Roadway Impact Fee Analysis and new ordinance by the City Council, CONSULTANT will provide five (5) 8" x 11" originals and one (1) electronic (.pdf) copy of the Final Roadway Impact Fee Report. C. Adoption Process CONSULTANT will collect information on actual roadway impact fees collected for up to six (6) benchmark cities for up to three (3) different land uses (likely residential, commercial, and industrial land uses). This information will be provided to the OWNER in electronic (.xls) tabular format for use in the development of comparison tables. It is anticipated that a representative from CONSULTANT will prepare for and attend each of the following meetings: • One (1) City Council workshop to present the proposed Service Areas; • Up to five (5) stakeholder, Capital Improvements Advisory Committee (CIAO), City Council, or other committee meetings; • One (1) CIAC workshop to present fundamentals of Roadway Impact Fees, a summary of the Roadway Impact Fee methodology, Land Use Assumptions, and the CIP and Maximum Assessable Roadway Impact Fees; • Two (2) CIAC public hearings to present the Land Use Assumptions, CIP, and Maximum Assessable Roadway Impact Fees; • One (1) City Council workshop to present fundamentals of Roadway Impact Fees, a summary of the Roadway Impact Fee methodology, Land Use Assumptions, and the CIP and Maximum Assessable Roadway Impact Fees; • Two (2) City Council public hearings to present the Roadway Impact Fee, including the Land Use Assumptions, Roadway Impact Fee CIP and Maximum Assessable Impact Roadway Fees; and • One (1) City Council meeting where it adopts the ordinance and establishes the actual Roadway Impact Fees. Task 6 — Administration Tools A. Estimator Worksheet. CONSULTANT will create a Roadway Impact Fee estimator spreadsheet tool to assist in calculating a development's transportation impact fees based on the impact fee rates adopted in Task 5. B. Rough Proportionality Worksheet. Based on the ordinance adopted in Task 5, CONSULTANT will update the existing roadway rough proportionality worksheet. This updated worksheet will captures the OWNER's existing rough proportionality policies and the potential use of the maximum roadway impact fee as a basis for making rough proportionality determinations. Information Provided By OWNER All base - mapping data, historical building permit information, Land Use Assumptions information, and CIP project cost information for completed projects used in the analysis shall be provided by the OWNER. CONSULTANT shall be entitled to rely on the completeness and accuracy of all information provided by the OWNER. ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above - described Basic Services, are described as follows: A. During the course of the Project, as requested by OWNER, the CONSULTANT will be available to accompany OWNER's personnel when meeting with the Texas Natural Resource Conservation Commission, U.S. Environmental Protection Agency, or other regulatory agencies. The CONSULTANT will assist OWNER's personnel on an as- needed basis in preparing compliance schedules, progress reports, and providing general technical support for the OWNER's compliance efforts. B. Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. C. Sampling, testing, or analysis beyond that specifically included in Basic Services. D. Preparing copies of computer aided drafting (CAD) electronic data bases, drawings, or files for the OWNER's use in a future CAD system. E. Preparing applications and supporting documents for government grants, loans, or planning advances and providing data for detailed applications. F. Appearing before regulatory agencies or courts as an expert witness in any litigation with third parties or condemnation proceedings arising from the development or construction of the Project, including the preparation of engineering data and reports for assistance to the OWNER. G. Providing geotechnical investigations for the site, including soil borings, related analyses, and recommendations. H. Analysis related to amending the City's Mobility Plan. Preparation for and attendance at additional public meetings not specifically identified in the Scope of Services. 1 Furnish additional copies of documents in excess of the number of the same identified in the Scope of Services. K. Reanalysis or recalculation to reflect project scope changes or policy changes requested by the OWNER, addressing changes in direction previously approved by the OWNER, or mandated by a change in governmental laws. L. Any analysis related to amending the City's Future Land Use Plan, Mobility Plan, or a change to the roadway impact fee study resulting from an amendment to the Future Land Use Plan or Mobility Plan following a notice from the City to use one or both of these documents, will be considered additional services. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon issue of a notice to proceed by the OWNER, and shall remain in force for the period which,may reasonably be required for the completion of the Project, including Additional Services, if any, and any required extensions approved by the OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE V COMPENSATION A. COMPENSATION TERMS: 1. "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services in the nature of providing set -vices r Marc ` b l Kcal c rdo��<tl ty Polity �i�mthe Roadway_wt�1 Fee and lmm Development for the City of Denton. 2, "Direct Non -Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation and equipment, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. B. BILLING AND PAYMENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the Basic Services of Task 1 thru 6, defined in Article I, and detailed within Article II, a total fee, including reimbursement for direct non -labor expenses not to exceed $276,500. Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements, and in accordance with completion and submission of the requirements of Task I(C — Project Status Reports, rendered to and approved by the OWNER through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered for the Project:. Task 1— Project Initiation and Management $10,000 Task 2 — Land Use Assumptions $19,000 Task 3 — Master Plan Review and Roadway Impact Fee CIP $157,500 Task 4 — Maximum Fee Calculations and Rate Analysis $50,000 Task 5 — Roadway Impact Fee Document And Adoption Process $34,000 Task 6 — Administrative Tools $ 6,000 Total Detailed Task Description Payment Schedule t7'7 �777 I �" 1171eWC RW1 111)ly = I?;ao�eet ��t akultin l It a NMall +rti t r 4t� ply +l rtir�l'g� '�cA3rinl Sabtnlal � iaNl 0"( ALatltldhl�4".r . "�9�t ➢ r$dtbeasp It- Task 1 Project Initiation and Management e A. Project Kick -Off Meeting and Impact Fee 101 5 5 1 2 13 $ 1,675.00 B. Project Team Status Meetings and Coordination 24 4 24 52 $ 6,420.00 C. Project States Reports 2 3 5 $ 585.00 D. Service Areas 5 2 3 10 $ 1,320.00 .. ................. 36 11 0 30 1 2 80 $ 10,000.00 Task 2 Land Use Assumptions A. Data Collection 2 1 2 5 $ 385.00 B. Existing Land Use Assumptions 9 1 40 50 S 5,580.00 C. Build Out [and Use Assumptions 8 1 1 40 49 S 5,445.00 D. Ten -Year Land Use Assumptions 3 1 40 44 S 4,770.00 E. Documentation 1 1 3 5 $ 615.00 F. Meetings 8 6 14 $ 1,710.00 G. Deliverables 1 2 3 6 $ 495.00 0 4 0 133 1 5 173 $ 19,000.00 Task 3: Master Plan Review and Roadway Impact Fee CIP A. Data Collection (Sub at $11,500) 2 4 2 7 15 $ 12,730.00 B. Master Plan Review 24 12 36 $ 5,220.00 C. Ten -Year Growdr Projections and Capacity Analysis 10 32 42 $ 5,030.00 D. Roadway Impact Fee Capital Improvements Plan 320 80 640 1,040 $ 130,000.00 E. Meetings 10 8 8 26 $ 3,590.00 F. Deliverables 1 3 9 13 367 100 687 0 2 16 1.172 $ 157500.00 Task 4: Maximum Fee Calculations and Rate Analysis 0 A. Pre - Credit Maximum Assessable Roadway Impact Fee Calculation 20 6 6 1 1 34 $ 4,445.00 B. Financial Analysis (Sub at $36,800) 20 6 6 1 33 $ 41,170.00 C. Meetings 8 8 16 $ 2,400.00 D. Deliverables 6 3 6 1 16 $ 1,985.00 54 23 0 18 1 3 99 $ 50.000.00 Task 5: Roadway Impact Fee Document and Adoption Process 0 A. Document 30 5 70 1 6 112 $ 13,300.00 B. Deliverables (Expense at $265) 4 10 6 20 $ 2,255.00 C. Adoption Process (13 meetings) 65 39 19 10 —. _............. 133 $ 18,445.00 ms_.,-— .............._A. 49 44 44 m 10 2 265 $ 34000.00 Task 6: Adminstrative Tools A. Estimator Worksheet 7 2 20 1,0 29 $ 3,575.00 B. Rough ProportionalityWorksheet 7 2 10 19 $ ... 2,425.00 4 4 30 .........�_. 0 ...... — 0 48 $ 6.000.00 Grand Total 14ours — 600 186 816 191 38 1,837 $ 276,500.00 Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER shall not be required to snake any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement. It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services," without obtaining prior written authorization from the OWNER. C. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III, the CONSULTANT shall be negotiated prior to delivery of the stated services, to complete the entire schedule of the work plan for the project. Any additional services requested and mutually agreed upon will result in a "change order" and amendment to the existing contract. Payments for additional services shall be due and payable upon submission by the CONSULTANT, and shall be in accordance with subsection B hereof. Statements shall not be submitted more frequently than monthly. D. REIMBURSABLE EXPENSES: Reimbursable Expenses are expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $00 without the prior written approval of the City. The reimbursable expenses have been expensed as part of the total cost of each task. E. PAYMENT: If the OWNER fails to make undisputed payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, prompt payment act interest as set forth in Chapter 2251 of the Texas Government Code shall be paid on the amounts due the CONSULTANT. In addition, the CONSULTANT may, if it has not received payment by the thirty -first (31S) day after receipt of payment, after giving ten (10) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay prompt payment act interest if the OWNER has a bona fide dispute with the CONSULTANT concerning the payment or if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." ARTICLE VI INVOICES, PAYMENTS, AND RELEASES 1. INVOICES AND PAYMENT PROCESSING: Payment processing: The City review, inspection, and processing procedures for invoices ordinarily require thirty (30) days after receipt of invoices, materials, or services. Proposals which call for payment before thirty (30) days from receipt of invoice, or cash discounts given on such payment, will be considered only if, in the opinion of the Purchasing Manager, the review, inspection, and processing procedures can be completed as specified. It is the intention of the City of Denton to make payment within thirty days after receipt of valid invoices for which items or services have been received unless unusual circumstances arise. The 30 day processing period for invoices will begin on the date the invoice is received or the date the items or services are received, whichever is later. Direct deposit for payments: Contractors are encouraged to arrange for receiving payments through direct deposit. Please complete and submit the attached City of Denton Substitute W -9 form. Invoices: Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 E McKinney St, Denton, TX, 76201 -4299 with a copy to the attention of PS Arora, P.E., City of Denton Utilities, 901 B Texas Street, Denton, TX 76209. The invoice may also be electronically delivered to City of Denton Accounts Payable Department at accountspqyable@cityofdeiiton.com. Invoices must be fully documented as to labor, materials, and equipment provided, if applicable, and must reference the City of Denton Purchase Order Number in order to be processed. No payments shall be made on invoices not listing a Purchase Order Number. 2. TAX EXEMPTION: The City of Denton qualifies for sales tax exemption pursuant to the provisions of Article 20.04 (F) of the Texas Limited Sales, Excise and Use Tax Act. Any Contractor performing work under this contract for the City of Denton may purchase materials and supplies and rent or lease equipment sales tax free. This is accomplished by issuing exemption certificates to suppliers. Certificates must comply with State Comptroller's ruling 995 -0.07 and #95 -0.09. ARTICLE VII OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants. Page 14 ARTICLE VIII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these documents in other projects shall be at OWNER's sole risk and expense. In the event the OWNER uses any of the information or materials developed pursuant to this Agreement in another project or for other purposes than specified herein, CONSULTANT is feleased from any and all liability relating to their use in that project. ARTICLE IX INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE X INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold harmless the OWNER and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable attorney fees incurred by the OWNER, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the CONSULTANT or its officers, shareholders, agents, or employees in the execution, operation, or performance of this Agreement. Nothing in this Agreement shall be construed to create a liability to any person who is not a party to this Agreement, and nothing herein shall waive any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, including the defense of governmental immunity, which defenses are hereby expressly reserved. ARTICLE XI INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least A- or better: A. Comprehensive General Liability Insurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B, Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. C. Workers' Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less tha% $1,000,000 annual aggregate. E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER'S request to evidence such coverages. Except for Professional Liability Insurance and Worker's Compensation Insurance, the insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. ARTICLE XII ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to mediation. No mediation arising out of or relating to this Agreement may proceed without the agreement of both parties to submit the dispute to mediation. The location for the mediation shall be the City of Denton, Denton County, Texas unless a different location is agreed to by the parties. ARTICLE XIII TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified snail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non- performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination. The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE XIV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. CONSULTANT retains design responsibility and liability at all times during this Agreement and after completion of this Agreement. ARTICLE XV NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To CONSULTANT: Kimley -Horn and Associates, Inc. Aaron W. Nathan, P.E., AICP 12750 Merit Drive, Suite 1000 Dallas, Texas 75251 Tel 972- 770 -1300 aaron.7��li. iii (ci�L<iiiii cy horn.com To OWNER: City of Denton George Campbell, City Manager 215 East McKinney Denton, Texas 76201 Tel 940- 349 -7100 purchasing_@cityofdenton.com All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' mailing. ARTICLE XVI SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. ARTICLE XVII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended. ARTICLE XVIII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. ARTICLE XIX PERSONNEL A. The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or officers of, nor have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. B. All services required hereunder will be performed by the CONSULTANT or under its supervision. All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services. C. In those instances deemed necessary by the OWNER, the CONSULTANT, its employees and /or its Sub - consultants shall be required to submit to background checks. ARTICLE XX ASSIGNABILITY The CONSULTANT shall not assign any of its scope of work under in this Agreement, and shall not transfer any of its scope of work under this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER. Should the CONSULTANT assign any part of the monies due under this Agreement, CONSULTANT is required to provide written notice of the same to OWNER. Any assignment of monies due under this Agreement shall not change any of the terms or conditions of this Agreement to include but not limited to the terms and conditions for payment under this Agreement. ARTICLE XXI MODIFICATION No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed; and the parties further agree that the provisions of this article will not be waived unless as set forth herein. ARTICLE XXI MISCELLANEOUS A. The following exhibits are attached to and made a part of this Agreement: Exhibit A — Insurance Requirements and Insurance Documentation from Contractor Exhibit B — Contractor Documentation, including Conflict of Interest and City of Denton Substitute W -9 form B. CONSULTANT agrees that OWNER shall, until the expiration of five (5) years after the final payment or after final completion of all work required under this Agreement, whichever is longer, have access to and the right to examine any directly pertinent books, documents, papers, correspondence, to include e- mails, and records of the CONSULTANT involving transactions relating to this Agreement. CONSULTANT is required to maintain and make available all electronic records associated with this Agreement for purposes of examination. CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this article. OWNER shall give CONSULTANT reasonable advance notice of intended audits. This paragraph shall work in conjunction with the Audit provision set forth in Article XXIII. C. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be construed in accordance with the laws of the State of Texas. D. For the purpose of this Agreement, the key persons who will perform most of the work hereunder shall be Aaron W. Nathan, P.E., AICP. However, nothing herein shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services required herein. CONSULTANT understands that OWNER is to be informed of the removal or loss of any of the key persons working under this Agreement. CONSULTANT also agrees to provide the OWNER with notice of the name(s) of who it intends to replace the key person. OWNER shall have a right to reject any replacement key person(s) and CONSULTANT agrees to name a replacement key person(s) acceptable to the OWNER. E. CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof. In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the OWNER. F. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement. G. The captions of this Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement. H. If there is any conflict between the terms of this Agreement and the exhibits attached to this Agreement, the terms and conditions of this Agreement will control over the terms and conditions of the attached exhibits or task orders. ARTICLE XXIII RIGHT TO AUDIT The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONSULTANT shall retain such books, records, documents and other evidence pertaining to this Agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CONSULTANT shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONSULTANT which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this article shall be a material breach of this contract and shall constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms "books" "records" "documents" and "other evidence" as used above shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. ARTICLE XXIV ENTIRE AGREEMENT This Agreement, consisting of thirty -four (34) pages and two 2 exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof. IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and CONSULTANT has executed this Agreement through its duly authorized undersigned officer on this the day of �......_... , 20 CITY OF DENTON, TEXAS BY: GEORGE C. CAMPBELL, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY mm WITNESS: :•. KIMLEY -HORN (CONSULTANT) BY:"" A(J 1 °I -101 N I,L SIG A"I JIIE 'H 'l 1 rs (.1 Exhibit A Insurance Requirements e Insurance Documents w CITY OF DENTON INSURANCE REQUIREMENTS FOR CONSULTANTS /CONTRACTORS The Offeror's /Bidder's attention is directed to the insurance requirements below. It is highly recommended that offerors /bidders confer with their respective insurance carriers or brokers to determine in advance of its proposal or bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an offeror /apparent low bidder fails to comply strictly with the insurance requirements, that offeror /bidder may be disqualified from award of the contract. Upon award, all insurance requirements shall become contractual obligations, which the successful offeror /bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Consultant /Contractor, the Consultant /Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of award, Consultant /Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the proposal /bid number and title of the project. Consultant /Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Consultants /Contractors are strongly advised to make such requests prior to proposal /bid opening, since the insurance requirements may not be modified or waived after proposal /bid opening unless a written exception has been submitted with the proposal /bid. Consultant /Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so noted: • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A- or better. • Any deductibles or self - insured retentions shall be declared in the proposal or bid. If requested by the City, the insurer shall reduce or eliminate such deductibles or self - insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the Consultant /Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. Cancellation: City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. Should any of the required insurance be provided under a claims -made form, Consultant /Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Consultant/Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted: [X] A. General Liability Insurance: General Liability insurance with combined single limits of not less than $500,000.00 shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. • Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XCU) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non -owned autos. [X] Workers' Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). [_] Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined bodily injury and property damage per occurrence with a m _ aggregate. [X] Professional Liability Insurance Professional liability insurance with limits not less than $1,000,000.00 per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. [_] Builders' Risk Insurance Builders' Risk Insurance, on an All -Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. [ I Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside /outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than _ _ each occurrence are required. [_] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. ATTACHMENT 1 [_] Worker's Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate ")-A copy of a certificate of insurance, a certificate of authority to self - insure issued by the commission, or a coverage agreement (TWCC -81, TWCC -82, TWCC -83, or TWCC -84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's /person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ( "subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: 1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2) provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4) obtain from each other person with whom it contracts, and provide to the contractor: a) certificate of coverage, prior to the other person beginning work on the project; and b) a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7) contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self - Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Certificate of Insurance DATE (MMroDNYYY> CERTIFICATE OF LIABILITY INSURANCE 12/16/2013 __._.�._...... __W w ............... THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMf°ORTANI . if t110 cTrltkhcato holder Is an ADDITIONAL IN:S't,IRI~Ow the pollcy(IOS) must her oillrlorsol7e It 6UBR005AT6001S WANED, sllln)o0a to the terms and conditions of the policy, certain poticles may require an endorsement. A statement on this certificate does not confer rights to the .___.� N F.r,. Greutin insurance Brokerage AM, rJeTry Noyo'la cart kale holder In lieu of such ondomerncrdt s). OIo Grey ling g PHONE (770) 552 -9225 � �� liMl«lS I1 ra9O�e ae0z 950 Northridge Parkway A' Orr y o y_0 gMr_e.ylim.nm_ g.com Suite 102 INSURERISI AFFORDING COVERAGE NAICA Atlanta GA 30350 INSURFRANational Union _ 79_45 A -� -, � -- _ n Fire ins Co 9 NsuRED INSURERS 'Commerce & Industry Insurance 19410 A x:: �...,.:,.; Kimley -Horn and Associates, Inc. ISURERC,New Hampshire Insurance Comnanv 23841 A P.O. Box 33068 INSURERn•Lexinaton Insurance Comoanv 19437 A INSURER E: Raleigh NC 27636 1 INSURLRF COVERAGES CERTIFICATE NU'MBER:13 -14 (Himley Melanie) REVISION NUMBER: _ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE�POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. nNSR ^.... ... ..�..,.,,e.�. 6Y,10 ,,.....m __-_ ,..m. WOLIiI:�'Y C4°N k�oLlr'W P"Mn m... .,.... ..m,,..., r 'R TYPE OF IN5t1RANCT:. Pna vey N,UNBFR MM +k e(TYYY M __ YYY LIMITS GENERALLIABILITY" FACH OCCURRENCE S 1.000,000 _ PRFMIRFR1- EgTEts ............ 500 000 A X copMpCLAIMSS-MADEGENERAL XLIOCCUR .L 9645227 4/1/2013 4/1/2014 MEDEXPIAnvonaoeraonl s 25,000 1, ❑ 0 X Contractual Liability _PFRIOM- AAnvIN..IIIRY S 1,000,000 GENERAL AGGREGATE ..� S 2,000,000 UENI. AGGR'I- GAAT'E ....... X LIMIT APa COMP OP AGG S 2,000,000 � eW f A.tLXR. &;C' Is AU10MOMILE InAWLIIY' .. COMBINED SrNGL6 LIMn .1� ml O.00p 000.. X AANU L U AUTO rO0ILY INJURY (Per person} S A '"ALL OWNED """" SCHEDULED 4982985 /1/2013 /1/2014 NJUAUTOS X X AUNT WNED !i?7P6(21Y�nf�`gGE $ T _ HIRED AUTOS ..g m... ......d..� X UMBRELLA LIAB X OCCUR EACH OCCURRENCE S 5,000,000 H EXCESS LIAB $ 5, 000 a 000 CLAIMS -MADE _ X 10 „019 E 016395110 /1/2013 /1/2014�� m AND non 1N. 1 ERNE%ECUTIVE N NIA pp E L WL S7ANM� OTH- S. OFFIDEOPRIETEREXC NEIVE YIN I- al aT.ACCDEN DER (` WORKERS COMPENSATION OFFICE deserEM13 REARLN ❑ EL DD D(10 R/M (Mandatory In NH) C 018112556 4/1/2013 4/1/2014 EACH ACCIDENT EMPLOYES 1,000 000 y X .r... DESCRIPTION OF OPERATIONS helow .......... . ........____ E.L. DISEASE - POLICY LIMIT, -5 _..l ..r..400 00O, D Professional Liability 016017332 12/1/2012 4/1/2014 Per Claim $2,000,000 regsta $2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS /VEHICLES (Attach ACORD 101, Additional Remarks Schedule, K more space Is required) Re: Denton Roadway Impact Fee; Contract #5636. The City of Denton, its Officials, Agents, Employees & volunteers are named as Additional insureds on the above referenced liability policies with the exception of workers compensation & professional liability where required by written contract. The above referenced liability policies with the exception of professional liability are primary & non - contributory where required by written contract. Should any of the above described policies be cancelled by the issuing insurer before the expiration date thereof, we will endeavor to provide 30 days' written notice (except 10 days for nonpayment of premium) to the Certificate Holder named below. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Denton ACCORDANCE WITH THE POLICY PROVISIONS. City Manager_ .. ....... _..m. -.._. �._. 215 East McKinney AUTHORIZED REPRESENTATIVE Denton, TX 76201 �7 David Collings /JERRY f ✓��^� �- �= ACORD 25 2010100 CU 1988.2090 ACORD CORPORATION. All rights reserved. INC095—mrit , Th. AC'nPn nornn 111— lnnn am reniefurRA mark. of ar:r1R11 Exhibit B Awarded Contractor Documentation CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. I OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person who has a business relationship as defined by Section 176.001(1 -a) with a local governmental entity and the person meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local government entity not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person knowingly violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. �( Name of person who has a business relationship with local governmental entity. to Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7`h business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B. C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1 -a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? LJ Yes No B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? El Yes EA No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership of 10 percent or more? Yes 0 No D. Describe each affiliation or business relationship. at" V .. ......... .... m� _..._......../2013 Signature of person doing business with the governmental entity Date Adopted 06/29/200'7 IV City of Denton Purchasing 9131-0 Tens St Defdon, TX 762d9 Plow: (940) 349-7100 Fax (9 44) 349-7302 mm kmonArimmm Substitute W-9 form CompanyName: KtALo - How Amt, Ass u.4Tu I IAJ L CantadNarm: Amwj t4A-ri4A,,j Address- "ED BO-6 33066 i EmM: -6rollcoft Websibw- k--'k*6u. lei Ale% -Lwvm-ec,#-- Phove Number M-1c) Fax Nuffter n b&Qk amwalldalk IncMdUALF limMed Otter Sale CorpDFAi3n Panership CUcarbk❑ P proprietor on �eam Weciof. FAmtde&lUnvW0cr8 of a I M ■ r .. Mm: 11 Real EstWb RentaULemse(ml ❑ EquOrment se U-9) RGYMMS o+-2) LkOcmManlh Cme WE) Berdcez ORIY W JAen2wdW— Meritondse & ❑ 7) ❑ 4codz0RVW7) Zervtcem (A-73 ❑ LeaW FWMMomey WCP Proceeft ftm Fees 9P-7j FeW Egate M Ll Purchases CS) Type c OrganUmbon: ❑ minodty ❑ Fernge Owrbed ❑ Nan Profit ❑ FfislDneally Un&mAiMEed Ovined Business St3tes (c) an esbida (adw (han a foreign estw1e). at (do a domestic trust (As. defined in Regulakus SecMm 301TAII-7). COD Page 1 W212011 Vendor Infimnation Not Required for W-9 Form Company Name: kIMLEr -l6yta AwO AssoaNTul6u. Ca tact Name: A1Aamj W AT -wfkN . Address: IZISQ MgAtr %Pl r O Phone Number. �o. Fax Number. List Products andfor Services Irderested in Bfddinrr For Internal Use Only ❑ New Vendor ❑ Vendor Change ❑ Refund Reques&V Department: Department Representative (Printed Name) Purchasing Signature: Vendor Number ACH In brmation- Volurdary ABA RagtirQ#: 0ZHS Conbd Name BankAcoamW 20730$ q 151 9S'4 Bank Name: Wlgw�S FAe4o ACH Email: F- 4 ,At -4.5 D bt-) 0rh.CO,, ACH Email: Phone Number. Fax N. er (0-71- 2 Of Date: Dates I (vre) aubwrim Uw City of Denton to depoelt payments NW the clreckiryl aocourrt dated_ The aufhortly iemmm in egad until hra Ctl orpoubm has iscatM wrd m nohrtcahon Wm nw or termination in firm to aBOw reaecrra e, opparbwllfy to act on It or urdh itha City of Denton has aaal Me writhm nohcs ortamarmhen orfha a$eement COD Page 2 W23AI f AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Chad Weldon at 349 -8861 ACM: Bryan Langley �_A SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of a HazMat ID Elite Command System for the City of Denton Police and Fire Departments (Funded 100 percent through the 2012 Homeland Security Grant Program), which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5443 awarded to Smiths Detection in the not -to- exceed amount of $54,950). FILE INFORMATION The Dallas Fort Worth Area Urban Area Security Initiative, a Homeland Security Grant Program, authorized 100 percent funding for the purchase of this chemical identification equipment. This equipment will be utilized by the Denton Fire Department Bomb Squad, the Denton Police Department Tactical Team, and the Denton Fire Department Hazardous Materials Response Team. The requested equipment is designed to identify unknown hazardous chemicals. The main purpose of the equipment will be to identify possible homemade explosives, illegal drugs, and precursor chemicals. The HazMat ID Elite system allows for the on -site identification of many hazardous chemicals and has been proven in the Hazardous Materials and Law Enforcement fields. A quote for the equipment is attached as Exhibit 1. The Fire Department could only identify one vendor to supply the HazMat ID Elite products. Smiths Detection is the sole provider of the equipment in the United States (Exhibit 2). Chapter 252.022 of the Texas Local Government Code provides that procurement of commodities and services that are exempt from competitive bidding, if over $50,000, shall be awarded by the governing body. RECOMMENDATION Award the purchase of a HazMat ID Elite Command System to Smiths Detection in the not -to- exceed amount of $54,950. PRINCIPAL PLACE OF BUSINESS Smiths Detection Danbury, CT Agenda Information Sheet January 7, 2014 Page 2 ESTIMATED SCHEDULE OF PROJECT A purchase order for the HazMat ID Elite Command System will be issued upon Council approval. The unit is expected to be in service within thirty (30) days from receipt of the purchase order. FISCAL INFORMATION This project was recommended, and approved for 100% funding by the Dallas Fort Worth Area Urban Area Security Initiative Homeland Security Grant Program. Account number 342024.8535 will be used to process the purchase order for the HazMat ID Elite System. Requisition 116842 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Equipment Quote Exhibit 2: Sole Source Letter Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance I -.CIS -File 5443 Exhibit 1 DATE: 8/28/2013 SmLt QUOTATION NO.: OOOUSA100034 SmiIths Detection Quotation for: Cite of Denton Fire Department 332 E. Hickoiv St. Denton, TX 76201 Item Qtv Part No. Description PAGE NO.: TERMS: VALID UNTIL: DELIVERY: WARRANTY: DELIVERY TERMS: Federal ID #: Page 1 of 6 Net 30 1/26/2014 See Terms & Conditions Summa v Page One year palls and labor EX Works Danbuiv, CT 22- 355 -2823 Base Price Net Price 1 1 029 - 1905 -Y2 HazMatID Elite Command Package - Dual- Diamond Yellow $ 69,950.00 S 69,950.00 Handheld FTIR chemical identification system with spectral libraries containing explosives, chemical warfare agents, narcotics, TICS TIyIs, pesticides, common white powders, and many other chemical classes. The HaZbIatID Elite is 1\IIL- STD -810G and IP -67 certified and withstands decontamination by immersion. The dual- diamond configuration includes a horizontal ATR interface with integrated pressure device optimized for the analysis of solid materials and a built -in liquids well, plus a second touch -to- sample ATR interface designed for direct sampling of surface materials and robotics integration. Includes: 1. Hardened transport case 2. Two rechargeable lithium ion batteries 3. External battery charger 4. Power supply 5. Cassette for disposable 123A batteries 6. Performance validation sample 7. Hazardous Materials Prioritv Alert Add -In S. Laptop computer with USB RE modem 9. Single - license copy of HaZMatID Elite Command Software 10. 3 years HaZMatID Elite Partnership Program coverage 11. One -dav on -site training Notes: COWS only 2 1 303521 HazMatID Elite Lovaltv Incentive Program $ 10,000.00 S(15,000.00) For HazMatlD 360 Customer can keep their existing Smiths instruments and the warranty will remain with their existing instruments. The Maximum Discount can be any of a price discount, extended warranty, or add -on's, etc. This Lovaltv Incentive Promotion ends 1!31!2014. TOTAL: S 54,950.00 Smiths Detection 21 Commerce Drive Danbun', CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com SmLt SmiI the Detection Quotation for: Cite of Denton Fire Department 332 E. Hickoiv St. Denton, TX 76201 Item Qty Part No. Description DATE: 8/28/2013 QUOTATION NO.: OOOUSA100034 PAGE NO.: Page 2 of 6 TERMS: Net 30 VALID UNTIL: 1/26/2014 DELIVERY: See Terms & Conditions Summary Page WARRANTY: One year palls and labor DELIVERY TERMS: EX Works Danbui , CT Federal ID#: 22- 355 -2823 Base Price Net Price Should you have any questions regarding this quotation, please contact Andy Saksa at (203) 207 -9760 or via email at andy .saksalasmithsdetection.com. Restriction On Disclosure And Use of Data (3/2006) "This document contains information proprietary to Smiths Detection Inc., which discloses the document in confidence with the understanding that such data shall not be duplicated, used, or disclosed -in whole or in part -for any purpose without the prior, written consent of Smiths Detection Inc. The customer is implicitly authorized to reproduce pages for evaluation of this proposal or to excerpt pages or information for incorporation into customer briefings, proposals, et cetera that endorse the products and services of Smiths Detection Inc." The information contained herein is exempt from disclosure under the Freedom of Information Act (5 U.S.0 552) under Exemption (b)(4), and its disclosure is prohibited under the Trade Secrets Act (18 U.S.0 19055) and FAR 24.202. Rights to use or disclose this proposal are governed by DEARS 252.227 -7016 (Jun 1995). Terms and Conditions Summary ALL Smiths Detection standard Terms & Conditions applti to ALL quotations unless specifically amended in said quotation. Smiths Detection's Terms & Conditions can be found in its entirety folloiN ing this summary Items that appear on our GSA contract reflect the appropriate discounted price. Proof of GSA discount eligibility is required for all non Federal customers. To verify that a GSA discount has been applied, simply note that the Unit Price and Net Price differ by the appropriate discount level. Delivery for the RespondeR RCI product line is 120 Days after receipt of Order. Delivery for the APD 2000 product line is 90 Days after receipt of Order. Delivery for the IlluminatIR product line is 60 to 90 Days after receipt of Order. Delivery for the HazlblatlD product line is 60 to 90 Days after receipt of Order. Delivery for the GasID product line is 60 to 90 Days after receipt of Order. Delivery for the IdentifyIR product line is 60 to 90 Days after receipt of Order. Delivery for all other Products and Accessories is 45 Days after receipt of Order, unless indicated otherwise. To place your order and expedite shipment, please fax tiour Purchase Order request iN ith all associated terms and conditions, along iN ith a tax exemption certificate if applicable, to Fax •:(203) 207 -9780, Attention. Order Administration. All Purchase Orders must shoiN Smiths Detection, 21 Commerce Drive, Danburv, CT 06810 as the vendor name and address. Please reference our quotation number on vour purchase order and on anv correspondence regarding the quotation. Include a copti of this quotation uvith your Purchase Order. Prices, warranty, installation and services on the items quoted herein are available only in the United States, and mav not be otherwise assigned. Buyer shall pay any applicable federal, state and local taxes in addition to the price stated on this quotation unless buyer submits a signed exemption certificate or direct pay permit Your purchase order should indicate the sales tax status of your order. Buver shall not export or re- export technical data or products supplied by Smiths Detection in violation of applicable export regulations. Buver iNho exports from the U. S. products purchased hereunder assumes all responsibility for obtaining anv required e -xport authorization and patiment of applicable fees. 1 DEFINITIONS "Smiths" shall mean Smiths Detection. Inc "Customer" shall mean the person(s) or company that purchases Goods! Equipment from Smiths pursuant to this Order. "Operator" shall mean the Operator of the Goods: Equipment. "Order" shall mean the agreement behtieen Smiths and the Customer (individually "Party" and collectively "the Parties ") for the sale and purchase of the Goods Equipment, including the Terms and Conditions of Sale herein and anv contemporaneous iN ruing, signed by both Parties, and firmly attached hereto. Goods Equipment" means all components, spare parts, goods, equipment or materials of anv kind, iNhich are supplied bti Smiths under this Order. 2. OFFER AND GOF'ERNING PROF'ISIONS Each Quotation and Order AclmoiN ledgement issued by Smiths is an offer by Smiths to sell the goods and or services described in it in accordance iN ith these Terms and Conditions of Sale, is not an acceptance of anv offer made by the Customer, and is expressly conditioned upon the Customer's assent to these Terms and Conditions of Sale. Smith objects to anv additional or different terms contained in anv purchase order or other conmiumcation previously or hereafter provided by Customer to Smiths. No such additional or different terms or conditions iN ill be of force or effect. The terms of the Order iN ill be the entire agreement betiN een Customer and Smiths on the subject of the transaction that it describes, and there are no conditions to that agreement that are not part of the Order. 3 PURCHASE PRICE Prices cited herein are based on current costs and are subject to reasonable adjustment on or after the date of acceptance of anti purchase order to meet arise or fall in such costs, as computed on the date of deliverv. 4 PAYMENT (_A) Pavment in frill of the purchase price shall be made in United States currency uwithin 30 days of the date of invoice. Remit to 21 Commerce Drive, Danburv. CT 06810 (B) Punctual patiment as stipulated herein is of the essence for the Order. When anti sum oiN ed by Customer to Smiths under this Order is overdue, Smiths mav, iN ithout notice to Customer, either. (i) cease the supply of fiarther Goods Equipment under this Order iN ithout liability for anv loss (including loss of profit or other financial or economic loss) to Customer until such sum, together iN ith such interest as mav be due thereon, is paid, or (ui) terminate the Order and anv other agreements betiN een Smiths and Customer, iNhether or not anv sums are due for patiment by Customer thereunder, iN ithout hability on the part of Smiths. Customer shall pay Smiths immediately all sums due and outstanding under all such agreements iN ith respect to Goods Equipment, services, components, parts, and other materials supplied or ordered in partial execution of the agreements, together iN ith all overhead and other costs incurred by Smiths as a result of such termination. Smiths Detection 21 Commerce Drive Danbury, CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com (C) No defect in the Order Goods Equipment shall operate to interfere uti ith the terms of patiment. If patiment is not made as provided above, Customer shall therebv be deemed to have utiaived the utiarranties (merchantability, fitness or otherwise, utihether express or implied) provided in Section 8 hereunder. Smiths mav demand different terms of patiment from those Specified on the face of this Order, utihenever it reasonably appears that Customer's financial condition requires such changes, and mav demand assurance of the Customer's ability to pap utihenever it reasonably appears that such ability is in doubt. Such demand shall be in uvriting and Smiths mav, upon malting such demand, stop production and or suspend shipments hereunder. (D) If Customer is in default of anv patiment obligation, Smiths is, uti ithout reminder and prejudice to anv other rights, entitled to charge interest at a rate of 1 S times the legal interest for anv outstanding sum, beginning utiith any due date of patiment. 5 RETURN OF GOODS There utiill be a 20 ° -o restocking fee, in addition to anv shipping costs incurred and our technician's expense, if applicable, for all returned items. 6. LIENS AND TITLE (_A) Customer hereby grants to Smiths a security interest in anv property ouvned by the Customer (including Customer's beneficial rights to property leased by Customer) in the possession of Smiths or anv of Smiths' affiliates, at anv time, to secure all amounts outied by Customer to Smiths under this Order. (B) In the case of repairs or overhauls performed pursuant to this ( )rder, Customer agrees to grant Smiths a perfected security interest in all (foods Equipment retained in possession of Smiths upon utihich anv repair or overhaul services have been performed by Smiths. Customer further aclmoutiledges and agrees that, in addition to the security interest and lien expressly granted by Customer to Smiths, Smiths shall have a lien on the Goods: Equipment retained in possession of Smiths to the extent othentiise provided by lauti. Customer aclmoutiledges that the lien (utihether granted by Customer or through the operation of lauv) for repairs or overhaul shall be for the frill value of such utiork, and shall be superior to anv lien or interest in favor of Customer, its parents, affiliates, or subsidiaries, or anv other person utiho has knoutiledge of this Order. To the extent that Smiths maintains possession of Goods Equipment under repair, Customer agrees that Smiths is a secured creditor of Customer and has all the rights of a secured creditor. (C) With respect to Goods! Equipment sold pursuant to this Order, Customer agrees and aclmoutiledges that Smiths shall retain a security interest in such Goods Equipment, unless and until all patiment for Goods' Equipment has been made and all other covenants and agreements of this Order have been performed in frill. Accordingly, Customer agrees that it utiill not suffer or permit anv lien or encumbrance to be established that effects the title to the Goods Equipment sold by Smiths pursuant hereto until Smiths has been paid in full. Customer agrees that, in the event of Customer's insolvency, or in the event that anti petition is filed by or against Customer under Chapter 7 or Chapter 11 of the Bankruptcy Code, Smiths mav, at its discretion, recover all Goods Equipment sold pursuant to this Order and or seek damages or costs under applicable lauvs. 7 DELIVERY (_A) Unless othenti ise agreed to in uwriting, Smiths shall deliver the Order Goods Equipment FOB destination, freight prepaid by Smiths and added to invoice, GSA freight paid by Smiths, to the place of shipment named herein utiithin a reasonable time after receipt bti Smiths of Customer's uvritten acceptance. TS-pically, our customer AN ill be contacted 24 hours prior to delivery. Ttipicallp transit time utiill be 7 -10 business days from date of pickup from the Smiths Detection Inc utiarehouse. Deliveries utiill be made during normal business hours klondav through Friday. One attempt to deliver utiill be made. Should deliven- need to be rescheduled, anv additional costs incurred for redelivery and or storage fees, utiill be charged to the customer. Smiths shall use reasonable efforts to make timer- deluvery but shall be excused from anv delays arising out of causes bevond its reasonable control Anti specific delivery dates that mav be stated are approximate. Smiths shall, under no circumstances, be liable for damages, incidental or consequential (hereinafter contemplated as including, but not limited to, damages for lost profits, lost sales and injury to person or property), for delays, or failure to give notice of delay, utihether or not caused by or resulting from Smiths' negligence. Customer agrees not to make such claim on Smiths. (B) If proper tender of the Goods Equipment is made and completion of delivery is prevented through no fault of Smiths, Smiths may specify a reasonable alternative place of delivery. Customer agrees that all costs of storage and transport incurred folloutiing an initial attempt at deluvery are herebv allocated to and imposed upon Customer, and shall be added by Smiths to the sale price. Delivery mav at anv time be utiithheld by Smiths pending patiment of anv sum due from the Customer to Smiths under this Order or anv other agreement. Smiths utiill return Goods Equipment via the incoming method unless an alternative method has been indicated on the purchase order or a change authorized by the Customer representative. Please note that the above deliven statement does not apph for deliveries made outside the 48 contiguous States. See quotation for deluvery terms and conditions. 8. DELIVERY REQUIREk lENTS The client is responsible for assuring access points for delivery of equipmentutihen necessary and is required. In an effort to assure a successful delivery, uwe kindly ash that our clients take the time to fill out the "Delivery Requirements" form. 9. DELIVERY INSPECTION REPORT. In an effort to help protect both Smiths Detection Inc. and our clients, utie ash that before signing for receipt of pour equipment, you take a feuti minutes to conduct a thorough evaluation of the exterior of the system and complete the Delivery Inspection Report" provided by the contracted trucking company. 10 STORAGE FEES A storage fee utiill be applied monthly- up to the maximum alloutied by lauti on all repaired and overhauled units if deluvery is not taken utiith five (5) daps of notification. 11 WARRANTIES. See the attached " Warranty ", which is incorporated herein by reference. 12 TRADENLARKS'COPYRIGHTS Smiths makes no utiarranty that the Order Goods Equipment are free from, and shall not be liable to Customer for, infringement of the intellectual rights (including patents, trademarks and copyrights) of others, and Customer agrees to assume all risks associated thereuti ith. Customer agrees to hold Smiths harmless against anv claim for infringement arising out of compliance utiith Customer's drauwings, specifications, requirements or instructions. 13. LIkIITATIONS OF LIABILITY AND INDEMNITY. (_A) Customer and Operator understand that the Goods! Equipment are designed to be used as tools bti personnel trained in attempting to detect the possession and or transportation of threatening materials. The level of success of such detection attempts is dependant on numerous factors, including but not limited to, the sophistication of efforts to conceal such materials, the size, ttipe and quantity of the conditions. Accordingly, Smiths makes no guaranty or utiarranty as to the results that utiill be achieved through the use of the Goods Equipment, and it is agreed that the sole responsibility for such results shall be borne by Customer. Accordingly, Smiths makes no guaranty or uti arranty as to the results thatutiill be achieved through the use of the Goods Equipment, and it is agreed that the sole responsibility for such results shall be borne by Customer. (B) AS PROVIDED IN THE W-- kRRANTY INCORPORATED HEREIN PURSUANT TO SECTION 11 ABOVE, SMITHS' LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO THE REk lEDIES THEREIN PROVIDED WITH RESPECT TO OTHER BREACHES OF CONTRACT, SMITHS SHALL HAVE NO LIABILITY IN EICESS OF THE Al FOUNT OF THIS ORDER IN NO EVENT SHALL SMITHS BE LIABLE FOR ANY SPELLkL, INCIDENTAL, CONSEQUENTL`,L, ENEMPLARY, OR OTHER DAMAGES, INCLUDING. WITHOUT LIhIITATION. ANY DAMAGES RESULTING FROM COST OF SUBSTITUTE PROCUREk ENT. LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS. LOSS OF SAVINGS, LOSS OF REVENUES LOSS OF BUSINESS. OR FAILURE OR DELAY IN PERF( �RNLANCE. WHETHER BASED ON BREACH OF W-- kRRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY, EVEN IF SMITHS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAkLAGES N(= R SHALL SMITHS BE RESPONSIBLE F(= R ANY CL AIIDI AGAINST CLiSTO k lER BY A THIRD PARTY. (C) To the fullest extent permitted bti applicable lauti, Customer shall defend, indemnifti, and hold harmless Smiths and its affiliates and their respective officers, partners, directors, employees, agents, successors, and assigns (" Smiths Parties ") from and against anti and all losses, claims, damages, liabilities, expenses (including, utiithout limitation, fees and disbursements of legal counsel and expenses of litigation) or other obligations (collectively "Losses ") and threatened Losses to the extent thev arise from or in connection utiith the purchase and operation of the Goods: Equipment by Customer or (honer, including but not limited to anv of the folloutimg (0 the death or bodily injury of anv agent, employee, customer, Smiths Detection 21 Commerce Drive Danbury, CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com DATE: 8/28/2013 SmLt QUOTATION NO.: OOOUSA100034 PAGE NO.: Page 3 of 6 TERMS: Net 30 SmiIths Detection VALID UNTIL: 1/26/2014 Quotation for: DELIVERY: See Terms & Conditions Summaiv Page WARRANTY: One year parts and labor Cite of Denton Fire Department DELIVERY TERMS: EX Works Danbuiv, , CT 332 E. Hickoiv St. Federal ID#: 22- 355 -2823 Denton, TX 76201 Item Qty Part No. Description Base Price Net Price (C) No defect in the Order Goods Equipment shall operate to interfere uti ith the terms of patiment. If patiment is not made as provided above, Customer shall therebv be deemed to have utiaived the utiarranties (merchantability, fitness or otherwise, utihether express or implied) provided in Section 8 hereunder. Smiths mav demand different terms of patiment from those Specified on the face of this Order, utihenever it reasonably appears that Customer's financial condition requires such changes, and mav demand assurance of the Customer's ability to pap utihenever it reasonably appears that such ability is in doubt. Such demand shall be in uvriting and Smiths mav, upon malting such demand, stop production and or suspend shipments hereunder. (D) If Customer is in default of anv patiment obligation, Smiths is, uti ithout reminder and prejudice to anv other rights, entitled to charge interest at a rate of 1 S times the legal interest for anv outstanding sum, beginning utiith any due date of patiment. 5 RETURN OF GOODS There utiill be a 20 ° -o restocking fee, in addition to anv shipping costs incurred and our technician's expense, if applicable, for all returned items. 6. LIENS AND TITLE (_A) Customer hereby grants to Smiths a security interest in anv property ouvned by the Customer (including Customer's beneficial rights to property leased by Customer) in the possession of Smiths or anv of Smiths' affiliates, at anv time, to secure all amounts outied by Customer to Smiths under this Order. (B) In the case of repairs or overhauls performed pursuant to this ( )rder, Customer agrees to grant Smiths a perfected security interest in all (foods Equipment retained in possession of Smiths upon utihich anv repair or overhaul services have been performed by Smiths. Customer further aclmoutiledges and agrees that, in addition to the security interest and lien expressly granted by Customer to Smiths, Smiths shall have a lien on the Goods: Equipment retained in possession of Smiths to the extent othentiise provided by lauti. Customer aclmoutiledges that the lien (utihether granted by Customer or through the operation of lauv) for repairs or overhaul shall be for the frill value of such utiork, and shall be superior to anv lien or interest in favor of Customer, its parents, affiliates, or subsidiaries, or anv other person utiho has knoutiledge of this Order. To the extent that Smiths maintains possession of Goods Equipment under repair, Customer agrees that Smiths is a secured creditor of Customer and has all the rights of a secured creditor. (C) With respect to Goods! Equipment sold pursuant to this Order, Customer agrees and aclmoutiledges that Smiths shall retain a security interest in such Goods Equipment, unless and until all patiment for Goods' Equipment has been made and all other covenants and agreements of this Order have been performed in frill. Accordingly, Customer agrees that it utiill not suffer or permit anv lien or encumbrance to be established that effects the title to the Goods Equipment sold by Smiths pursuant hereto until Smiths has been paid in full. Customer agrees that, in the event of Customer's insolvency, or in the event that anti petition is filed by or against Customer under Chapter 7 or Chapter 11 of the Bankruptcy Code, Smiths mav, at its discretion, recover all Goods Equipment sold pursuant to this Order and or seek damages or costs under applicable lauvs. 7 DELIVERY (_A) Unless othenti ise agreed to in uwriting, Smiths shall deliver the Order Goods Equipment FOB destination, freight prepaid by Smiths and added to invoice, GSA freight paid by Smiths, to the place of shipment named herein utiithin a reasonable time after receipt bti Smiths of Customer's uvritten acceptance. TS-pically, our customer AN ill be contacted 24 hours prior to delivery. Ttipicallp transit time utiill be 7 -10 business days from date of pickup from the Smiths Detection Inc utiarehouse. Deliveries utiill be made during normal business hours klondav through Friday. One attempt to deliver utiill be made. Should deliven- need to be rescheduled, anv additional costs incurred for redelivery and or storage fees, utiill be charged to the customer. Smiths shall use reasonable efforts to make timer- deluvery but shall be excused from anv delays arising out of causes bevond its reasonable control Anti specific delivery dates that mav be stated are approximate. Smiths shall, under no circumstances, be liable for damages, incidental or consequential (hereinafter contemplated as including, but not limited to, damages for lost profits, lost sales and injury to person or property), for delays, or failure to give notice of delay, utihether or not caused by or resulting from Smiths' negligence. Customer agrees not to make such claim on Smiths. (B) If proper tender of the Goods Equipment is made and completion of delivery is prevented through no fault of Smiths, Smiths may specify a reasonable alternative place of delivery. Customer agrees that all costs of storage and transport incurred folloutiing an initial attempt at deluvery are herebv allocated to and imposed upon Customer, and shall be added by Smiths to the sale price. Delivery mav at anv time be utiithheld by Smiths pending patiment of anv sum due from the Customer to Smiths under this Order or anv other agreement. Smiths utiill return Goods Equipment via the incoming method unless an alternative method has been indicated on the purchase order or a change authorized by the Customer representative. Please note that the above deliven statement does not apph for deliveries made outside the 48 contiguous States. See quotation for deluvery terms and conditions. 8. DELIVERY REQUIREk lENTS The client is responsible for assuring access points for delivery of equipmentutihen necessary and is required. In an effort to assure a successful delivery, uwe kindly ash that our clients take the time to fill out the "Delivery Requirements" form. 9. DELIVERY INSPECTION REPORT. In an effort to help protect both Smiths Detection Inc. and our clients, utie ash that before signing for receipt of pour equipment, you take a feuti minutes to conduct a thorough evaluation of the exterior of the system and complete the Delivery Inspection Report" provided by the contracted trucking company. 10 STORAGE FEES A storage fee utiill be applied monthly- up to the maximum alloutied by lauti on all repaired and overhauled units if deluvery is not taken utiith five (5) daps of notification. 11 WARRANTIES. See the attached " Warranty ", which is incorporated herein by reference. 12 TRADENLARKS'COPYRIGHTS Smiths makes no utiarranty that the Order Goods Equipment are free from, and shall not be liable to Customer for, infringement of the intellectual rights (including patents, trademarks and copyrights) of others, and Customer agrees to assume all risks associated thereuti ith. Customer agrees to hold Smiths harmless against anv claim for infringement arising out of compliance utiith Customer's drauwings, specifications, requirements or instructions. 13. LIkIITATIONS OF LIABILITY AND INDEMNITY. (_A) Customer and Operator understand that the Goods! Equipment are designed to be used as tools bti personnel trained in attempting to detect the possession and or transportation of threatening materials. The level of success of such detection attempts is dependant on numerous factors, including but not limited to, the sophistication of efforts to conceal such materials, the size, ttipe and quantity of the conditions. Accordingly, Smiths makes no guaranty or utiarranty as to the results that utiill be achieved through the use of the Goods Equipment, and it is agreed that the sole responsibility for such results shall be borne by Customer. Accordingly, Smiths makes no guaranty or uti arranty as to the results thatutiill be achieved through the use of the Goods Equipment, and it is agreed that the sole responsibility for such results shall be borne by Customer. (B) AS PROVIDED IN THE W-- kRRANTY INCORPORATED HEREIN PURSUANT TO SECTION 11 ABOVE, SMITHS' LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO THE REk lEDIES THEREIN PROVIDED WITH RESPECT TO OTHER BREACHES OF CONTRACT, SMITHS SHALL HAVE NO LIABILITY IN EICESS OF THE Al FOUNT OF THIS ORDER IN NO EVENT SHALL SMITHS BE LIABLE FOR ANY SPELLkL, INCIDENTAL, CONSEQUENTL`,L, ENEMPLARY, OR OTHER DAMAGES, INCLUDING. WITHOUT LIhIITATION. ANY DAMAGES RESULTING FROM COST OF SUBSTITUTE PROCUREk ENT. LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS. LOSS OF SAVINGS, LOSS OF REVENUES LOSS OF BUSINESS. OR FAILURE OR DELAY IN PERF( �RNLANCE. WHETHER BASED ON BREACH OF W-- kRRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY, EVEN IF SMITHS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAkLAGES N(= R SHALL SMITHS BE RESPONSIBLE F(= R ANY CL AIIDI AGAINST CLiSTO k lER BY A THIRD PARTY. (C) To the fullest extent permitted bti applicable lauti, Customer shall defend, indemnifti, and hold harmless Smiths and its affiliates and their respective officers, partners, directors, employees, agents, successors, and assigns (" Smiths Parties ") from and against anti and all losses, claims, damages, liabilities, expenses (including, utiithout limitation, fees and disbursements of legal counsel and expenses of litigation) or other obligations (collectively "Losses ") and threatened Losses to the extent thev arise from or in connection utiith the purchase and operation of the Goods: Equipment by Customer or (honer, including but not limited to anv of the folloutimg (0 the death or bodily injury of anv agent, employee, customer, Smiths Detection 21 Commerce Drive Danbury, CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com business invitee, or business visitor or other person, and the damage, loss, or destruction of anv real or tangible personal property, (ui) any action taken by or on behalf of Customer in the performance of this Order that causes Smiths to be obligated to mdemnifv, defend, and or hold harmless anv third party. (in) anv claim, demand, charge, action, cause of action, or other proceeding resulting from an actor omission of Customer, its employees, agents, or subcontractors acting in its or their capacity as an employer or potential employer with respect to the claimant, and (iv) anv claim by Customer or Operator, whether based on uvarranty or other contract breach, negligence or other tort or on anv strict liability theory, for matters disclaimed in subsection (B) above. Customer shall frill, indemnify and completely hold harmless the Smiths Parties as provided above, whether or not negligence or other fault of anv of the Smiths Parties contributed to, or is claimed or alleged to have contributed to, the claim, action, damage, loss, cost, hability or expense. The only instance in which Customer shall notfully indemnify and completely hold harmless the Smiths Parties as set forth above is where the claim is based solely upon the alleged fault of Smiths and Smith's fault is adjudicated to be the sole cause of all of the Losses. (D) Smiths shall not be liable for failure to deliver, for delav in delivery, or for anv losses or damage to Customer, or to the Goods Equipment occasioned by delays, in the performance of Smiths obligations, due to (0 any cause bevond Smiths reasonable control or the control of Smiths suppliers or subcontractors. (ii) an act of( lod, actor omission of Customer, act of civil or military authority, fire, strike or other labor difficulty, riot or other civil disturbance, insolvency or other inability to perform by the manufacturer, delav in transportation, or (in) any other commercial impracticability. (E) The conditions to performance specifically stated in this provision and elsewhere in this Order shall be the only conditions precedent or suibsequent to an absolute duty of performance on the part of Customer and Smiths Anv official action or legal proceeding by Customer in connection with this Order, other than provided for elsewhere in this ( )rder, must be conunenced within one (1) year from delivery A In no event of breach or repudiation of this Order by Smiths shall Smiths be liable for indirect, special, third party, incidental, or consequential damages, including without limitation lost profits, data, or goodwill, and Customer hereby agrees not to make anv such claim on Smiths. Customer agrees to defend, indemnify and hold harmless Smiths from and against any claim, loss, habuhty, expense or damage (including liens or legal fees) incurred by Smiths with respect to anv of Customers export or re- export activities contrary to Section 19 Export & Import Controls. 14 TAXES Sales and use taxes, pay able by Customer, utihich are presently or may hereafter be imposed bv anv taxing authority, are not included in the sale price env direct or excise tax or import or customs exaction pay able by Smiths, which may hereafter be imposed by anv taxing authority-, wheresoever located, upon the manufacture, sale or delivery of products covered by this order, or anv increase in rate of anti such tax or import or customs exaction now in force, shall be added to the sales price. If such charge is not collected at the time of payment or sale price, Customer will hold Smiths harmless. 15 CHANGES AND TERkIINATION (A) Smiths shall have the right, in its sole discretion, to terminate this Order if Customer (0 is unable to pay its debts generally as and when thev become due. (ii) is the suibject of a legal process declaring it insolvent. (iii) ceases or threatens to cease carrying on its business, or (i,) conunits a substantial breach of this Order which is incapable of remedy. (B) Customer may make a written request for amendment, modification, or termination. If a request for amendment or modification is accepted bti Smiths, and anv changes cause an increase or decrease in the cost of, or the time required for, the performance of anti part of the work under this Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Order shall be modified in writing accordingly. Wherever the cost of property made obsolete as a result of the change is included in the price adjustment, Customer shall have the right to prescribe the manner of disposition of such property. If request for termination is accepted by Smiths, equitable provision shall be made to Smiths for a recoupment of all costs incurred under the Order and for reasonable profit based on time and costs e -xpended. The Order shall continue in effect until such time as payment is received. A written request as specified herein shall give Smiths adequate reason to demand written assurance of Customer's ability and intent to carry out the Order. 16. kIERGER AND SEVERABILITY. This Order contains the total agreement of the Parties, and all agreements entered into prior to or contemporaneousl, with the execution of this agreement are excluded whether oral or in uvriting, except that a contemporaneous uvriting, signed by both Parties, and firmly attached to this tender, shall be considered part hereof. If anv provision of this Order shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not effect the remaining provisions of this Order, all of which shall remain in full force and effect. 17 DISPUTE RESOLUTION, GOF'ERNING LATV -, AND FORT AI (_A) This Order shall be governed bv, and construed in accordance with, the laws of the State of [jurisdiction], without the application of conflict of laws principles. THIS ORDER SHALL NOT BE GOVERNED BY THE 1980 UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF UOODS NotiN ithstanding the foregoing, the federal laws of the United States of America shall be the governing laws, to the extent appropriate, with respect to issues involving patent, copyright, or trademark. (B) In the event a dispute arises under or relates to this Order, the Parties shall diligently attempt to resolve the dispute uN ithin thirty (30) days from the date either Party gives uvritten notice to the other of its intent to involve this provision, during which period neither Party may commence legal action to assert its rights against the other. In the event the Parties do not resolve the dispute within the thirty (3O) day period referenced above, either Part, may institute legal action to pursue anv right or remedy it may have against the other Party Anti legal action or proceeding with respect to this Order shall be brought and maintained in the courts of the State of [jurisdiction] or of the United States of America for the District of [jurisdiction] By execution of this Order, Customer herebv accepts for itself and in respect of its property, generally and unconditionally -, the jurisdiction of the aforesaid courts. No action in law or equity arising out of this Order may be brought by Customer more than tiN o vears after the cause of action has first arisen. (C) Customer further irrevocably consents to the service of process out of anti of the aforementioned courts in anti such action or proceeding if such process shall be in writing and either shall be delivered in person or Sent by registered or certified mail (return receipt requested), postage pre -paid, and addressed to Customer at the address of Customer for notices under this Order. Nothing herein shall affect the right of Smiths to serve process in anv other manner permitted by law or to commence legal proceedings or othentiise proceed against Customer in anv other jurisdiction. (D) Smiths shall have the right to collect from Customer its reasonable expenses, including attorneys' fees, incurred in enforcing this Order. (E) The rights and obligations herein shall survive completion of the final payment under this Order. 18 CONFIDENTLkLITY The Parties agree that, in the course of performance of this ( )rder, it ma, be necessary and desirable for them to exchange confidential information. For example, all updates, repairs, replacements, fixes, modifications, and other changes to the Goods Equipment shall be considered Smiths proprietary information. To accomplish this confidentiality, the Parties agree as follows anv Party disclosing confidential information to the other Party shall identuf, such information as confidential when disclosing it The receiving Party shall not disclose confidential information of the disclosing Party to any person outside its employ, except when authorized by the disclosing Party Anv Party receiving confidential information under this Article shall maintain such information in confidence in the same manner it protects its own confidential information and shall use it onl, for the performance of this Order, and for no other purpose. 19. ENPORT AND IkfF'ORT CONTROLS. Customer acknowledges and agrees that the Ultimate Destination of the Order Goods Equipment is in the United States, unless othentiise agreed to in writing. Customer shall not authorize or permit its employees, distributors, customers, brokers, freight foriNarders, and or agents to export or re- export any of the Order (,00ds Equipment to anv foreign person without compl,ing with applicable import and e -xport laws and regulations of Customer's country and of the United States, including the International Traffic in Arms Regulations (IT_AR) and the Export Administration Regulations (EAR). Customer agrees to obtain and properl, utilize U. S. Government export authorization Smiths Detection 21 Commerce Drive Danbury, CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com DATE: 8/28/2013 SmLt QUOTATION NO.: OOOUSA100034 PAGE NO.: Page 4 of 6 TERMS: Net 30 SmiIths Detection VALID UNTIL: 1/26/2014 Quotation for: DELIVERY: See Terms & Conditions Summaiv Page WARRANTY: One year parts and labor Cite of Denton Fire Department DELIVERY TERMS: EX Works Danbuiv, , CT 332 E. Hickoiv St. Federal ID#: 22- 355 -2823 Denton, TX 76201 Item Qty Part No. Description Base Price Net Price business invitee, or business visitor or other person, and the damage, loss, or destruction of anv real or tangible personal property, (ui) any action taken by or on behalf of Customer in the performance of this Order that causes Smiths to be obligated to mdemnifv, defend, and or hold harmless anv third party. (in) anv claim, demand, charge, action, cause of action, or other proceeding resulting from an actor omission of Customer, its employees, agents, or subcontractors acting in its or their capacity as an employer or potential employer with respect to the claimant, and (iv) anv claim by Customer or Operator, whether based on uvarranty or other contract breach, negligence or other tort or on anv strict liability theory, for matters disclaimed in subsection (B) above. Customer shall frill, indemnify and completely hold harmless the Smiths Parties as provided above, whether or not negligence or other fault of anv of the Smiths Parties contributed to, or is claimed or alleged to have contributed to, the claim, action, damage, loss, cost, hability or expense. The only instance in which Customer shall notfully indemnify and completely hold harmless the Smiths Parties as set forth above is where the claim is based solely upon the alleged fault of Smiths and Smith's fault is adjudicated to be the sole cause of all of the Losses. (D) Smiths shall not be liable for failure to deliver, for delav in delivery, or for anv losses or damage to Customer, or to the Goods Equipment occasioned by delays, in the performance of Smiths obligations, due to (0 any cause bevond Smiths reasonable control or the control of Smiths suppliers or subcontractors. (ii) an act of( lod, actor omission of Customer, act of civil or military authority, fire, strike or other labor difficulty, riot or other civil disturbance, insolvency or other inability to perform by the manufacturer, delav in transportation, or (in) any other commercial impracticability. (E) The conditions to performance specifically stated in this provision and elsewhere in this Order shall be the only conditions precedent or suibsequent to an absolute duty of performance on the part of Customer and Smiths Anv official action or legal proceeding by Customer in connection with this Order, other than provided for elsewhere in this ( )rder, must be conunenced within one (1) year from delivery A In no event of breach or repudiation of this Order by Smiths shall Smiths be liable for indirect, special, third party, incidental, or consequential damages, including without limitation lost profits, data, or goodwill, and Customer hereby agrees not to make anv such claim on Smiths. Customer agrees to defend, indemnify and hold harmless Smiths from and against any claim, loss, habuhty, expense or damage (including liens or legal fees) incurred by Smiths with respect to anv of Customers export or re- export activities contrary to Section 19 Export & Import Controls. 14 TAXES Sales and use taxes, pay able by Customer, utihich are presently or may hereafter be imposed bv anv taxing authority, are not included in the sale price env direct or excise tax or import or customs exaction pay able by Smiths, which may hereafter be imposed by anv taxing authority-, wheresoever located, upon the manufacture, sale or delivery of products covered by this order, or anv increase in rate of anti such tax or import or customs exaction now in force, shall be added to the sales price. If such charge is not collected at the time of payment or sale price, Customer will hold Smiths harmless. 15 CHANGES AND TERkIINATION (A) Smiths shall have the right, in its sole discretion, to terminate this Order if Customer (0 is unable to pay its debts generally as and when thev become due. (ii) is the suibject of a legal process declaring it insolvent. (iii) ceases or threatens to cease carrying on its business, or (i,) conunits a substantial breach of this Order which is incapable of remedy. (B) Customer may make a written request for amendment, modification, or termination. If a request for amendment or modification is accepted bti Smiths, and anv changes cause an increase or decrease in the cost of, or the time required for, the performance of anti part of the work under this Order, an equitable adjustment shall be made in the price or delivery schedule, or both, and the Order shall be modified in writing accordingly. Wherever the cost of property made obsolete as a result of the change is included in the price adjustment, Customer shall have the right to prescribe the manner of disposition of such property. If request for termination is accepted by Smiths, equitable provision shall be made to Smiths for a recoupment of all costs incurred under the Order and for reasonable profit based on time and costs e -xpended. The Order shall continue in effect until such time as payment is received. A written request as specified herein shall give Smiths adequate reason to demand written assurance of Customer's ability and intent to carry out the Order. 16. kIERGER AND SEVERABILITY. This Order contains the total agreement of the Parties, and all agreements entered into prior to or contemporaneousl, with the execution of this agreement are excluded whether oral or in uvriting, except that a contemporaneous uvriting, signed by both Parties, and firmly attached to this tender, shall be considered part hereof. If anv provision of this Order shall be determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not effect the remaining provisions of this Order, all of which shall remain in full force and effect. 17 DISPUTE RESOLUTION, GOF'ERNING LATV -, AND FORT AI (_A) This Order shall be governed bv, and construed in accordance with, the laws of the State of [jurisdiction], without the application of conflict of laws principles. THIS ORDER SHALL NOT BE GOVERNED BY THE 1980 UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF UOODS NotiN ithstanding the foregoing, the federal laws of the United States of America shall be the governing laws, to the extent appropriate, with respect to issues involving patent, copyright, or trademark. (B) In the event a dispute arises under or relates to this Order, the Parties shall diligently attempt to resolve the dispute uN ithin thirty (30) days from the date either Party gives uvritten notice to the other of its intent to involve this provision, during which period neither Party may commence legal action to assert its rights against the other. In the event the Parties do not resolve the dispute within the thirty (3O) day period referenced above, either Part, may institute legal action to pursue anv right or remedy it may have against the other Party Anti legal action or proceeding with respect to this Order shall be brought and maintained in the courts of the State of [jurisdiction] or of the United States of America for the District of [jurisdiction] By execution of this Order, Customer herebv accepts for itself and in respect of its property, generally and unconditionally -, the jurisdiction of the aforesaid courts. No action in law or equity arising out of this Order may be brought by Customer more than tiN o vears after the cause of action has first arisen. (C) Customer further irrevocably consents to the service of process out of anti of the aforementioned courts in anti such action or proceeding if such process shall be in writing and either shall be delivered in person or Sent by registered or certified mail (return receipt requested), postage pre -paid, and addressed to Customer at the address of Customer for notices under this Order. Nothing herein shall affect the right of Smiths to serve process in anv other manner permitted by law or to commence legal proceedings or othentiise proceed against Customer in anv other jurisdiction. (D) Smiths shall have the right to collect from Customer its reasonable expenses, including attorneys' fees, incurred in enforcing this Order. (E) The rights and obligations herein shall survive completion of the final payment under this Order. 18 CONFIDENTLkLITY The Parties agree that, in the course of performance of this ( )rder, it ma, be necessary and desirable for them to exchange confidential information. For example, all updates, repairs, replacements, fixes, modifications, and other changes to the Goods Equipment shall be considered Smiths proprietary information. To accomplish this confidentiality, the Parties agree as follows anv Party disclosing confidential information to the other Party shall identuf, such information as confidential when disclosing it The receiving Party shall not disclose confidential information of the disclosing Party to any person outside its employ, except when authorized by the disclosing Party Anv Party receiving confidential information under this Article shall maintain such information in confidence in the same manner it protects its own confidential information and shall use it onl, for the performance of this Order, and for no other purpose. 19. ENPORT AND IkfF'ORT CONTROLS. Customer acknowledges and agrees that the Ultimate Destination of the Order Goods Equipment is in the United States, unless othentiise agreed to in writing. Customer shall not authorize or permit its employees, distributors, customers, brokers, freight foriNarders, and or agents to export or re- export any of the Order (,00ds Equipment to anv foreign person without compl,ing with applicable import and e -xport laws and regulations of Customer's country and of the United States, including the International Traffic in Arms Regulations (IT_AR) and the Export Administration Regulations (EAR). Customer agrees to obtain and properl, utilize U. S. Government export authorization Smiths Detection 21 Commerce Drive Danbury, CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com SmLt SmiI the Detection Quotation for: Cite of Denton Fire Department 332 E. Hickoiv St. Denton, TX 76201 Item Qtv Part No. Description DATE: 8/28/2013 QUOTATION NO.: OOOUSA100034 PAGE NO.: Page 5 of 6 TERMS: Net 30 VALID UNTIL: 1/26/2014 DELIVERY: See Ternis & Conditions Summaiv Page WARRANTY: One year parts and labor DELIVERY TERMS: EX Works Danbuiv, , CT Federal ID#: 22- 355 -2823 Base Price Net Price prior to exporting or re- exporting the Order Goods Equipment, either in their original form or after being incorporated into other end - items. 20. NOTIFICATION. Customer agrees to notifv Smiths immediately if Customer is listed in anv Denied Persons List, Entitv List, or Specially Designated Nationals List, or if Customer's export privileges are othentiise denied, suspended or revoked in whole or in part by anv U. S. Government entity or agency. 21. LICENSE AND OWNERSHIP. To the extent that the Order Goods! Equipment contain or are sofhtiare, Smiths hereby grants to Customer a non - exclusive, non - transferable, personal license to use the softiN are and related documentation. Customer's use of the Order Goods Equipment conclusively evidences its acceptance of this license and this Order, including this Section 20 Title to the softiN are shall at all times remain with Smiths. Customer agrees that the softiN are, all enhancements, related documentation, and derivative works are, and will remain, the sole property of Smiths and includes valuable trade secrets. Customer agrees to treat the softy are and related documentation as confidential and to not copy, reproduce, sub-license, or othenN ise disclose the softy are and related documentation to third parties. Customer agrees to not disassemble, decompile, reverse engineer, create derivative works from or othentiise translate, customize, localize, modify, add to, or in any way alter, rent, or loan the sofhtiare or related documentation. 22 ASSIGNIv ENT Neither Party shall assign this Urder without the prior written consent of the other Party, except that Smiths may assign it to anv of its parent, sister, or affiliate companies. 23 RELATIONSHIP Nothing in this Order shall be construed to place the Parties in the relationship of partners or joint ventures, and the Parties shall have no power to obligate or bind the other in any manner whatsoever. 24 HEADINGS Anv headings or paragraph titles are for the convenience of reference only and shall not define, limit, or extend the scope or intent of this Order or anti provision thereof. 25. PROPRIETARY INFORIV�LATION STATE1V�lENT. This quotation contains information proprietary to Smiths Detection, Inc. No part of this information may be reproduced or transmitted in anv form without the prior uvritten permission of Smiths Detection Inc. This quotation supersedes all previous quotations and is valid for 90 days from date of issue, unless othentiise stated. 26. INSTALLATION & TRAINING. This Installation and Training provision only applies to N -Rap equipment. Installation is not included for TRACE products unless othentiise denoted on quotation. The cost of installation and training, for the N -rap equipment (160 Kv or lower) purchased, is included within Smiths Detection Inc 's proposal, provided the installation is scheduled within 90 days from the date the unit shipped. This includes one visit to the client's facuhtp where the installation and training will be conducted during normal business hours hlondav through Friday. Please note that installation and training is only included for equipment delivered and installed within the 48 contiguous States. Once the client receives the equipment, thev must contact the Smiths Detection Inc. Service Department at 800 - 297 -0955 to confirm receipt and a visit will be scheduled for a mutually agreed upon date. During this visit, the technician will install the N -rav unit (160 Kv or lower ), which includes a Radiation Survev and calibration of the equipment as well as train the client's personnel on the start-up and fail -safe features, basic usage and sofhtiare features of the equipment purchased. Warranty Statement (A) Smiths warrants that the Goods Equipment sold by Smiths, and that is manufactured by Smiths, (a) conforms to Smiths specifications, and (b) is free from defects in materials and workmanship (under normal usage and provided that Smiths' operation and maintenance instructions are followed by competent personnel) appearing uvithin the applicable warranty period set forth in Appendix A Normal wear and tear shall not be considered a defect. (B) For equipment that is not manufactured by Smiths, Smiths' only responsibility is to assign to its customer anv manufacturer's warranty that does not prohibit such assignment. (C) Equipment and parts that are consumed in normal operation are not covered by this warranty. (D) If the Customer or Operator, as the case may be, discovers a defectwithm the applicable warranty period, it must be reported to Smiths service department at 1- 800 - 297 -0955 immediately upon discovery. (E) Within a reasonable time after proper notification, Smiths shall, during its normal business hours, h�londav through Friday, correct anv defect covered by this warranty with either new or used replacement parts, without charge, subject to the further applicable terms and conditions set forth in Appendix A The original duration of this Warranty shall remain applicable to those parts not repaired or replaced Anti part repaired or replaced is warranted to conform to Smith's specifications and to be free from defects in materials or AN appearing within a period after repair or replacement equivalent to the warranty period originally applicable to the Goods' Equipment of which it is a part, subject to the other terms of this Warranty. The above remedies are the exclusive remedies of Customer and Operator, and the sole responsibility of Smiths, for breach of this Warranty. (F) Smiths' warranty ceases to be effective if Purchaser fails to operate and use the equipment sold hereunder in a safe and reasonable manner in accordance with Smiths' written instructions. ((T) Neither Customer nor Operator shall be entitled to anv remedy under this Warranty with respect to (i) Goods Equipment that has been subjected to anv alteration, disassembly, tampering, modification, or repair without prior authorization by Smiths, (ii) Goods' Equipment subjected to experimental running or anv type of operation or use other than that for which the Goods Equipment is designed, (iii) Goods Equipment from which Smiths and!or vendor's trademark or serial number has been altered, removed, or obliterated without Smiths' uvritten permission, excluding anv alteration, removal, or obliteration directly caused by accident or mishap, (iv) Goods Equipment that has been in storage or immobilized for one vear or more after delivery. (H) SMITHS MAKES NO OTHER W kRRANTY, ENPRESS UR MPLIED, AND SPECIFICALLY 1 ZAKES NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, AND THE EIPRESS WARRANTY SET IN THIS ARTICLE IS IN LIEU OF ANY SUCH WARRANTY AND ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF SMITHS. (I) For purposes of the exclusive remedies set forth in this Warranty, and the limitations of liability set forth in Section I3 of the Terms and Conditions of Sale into uvhich it is incorporated, "Smiths" shall be deemed to include Smiths, its subsidiaries, and their affiliates, directors, officers, employees, agents, representatives , subcontractors, and suppliers of all of them. (7) This Warranty is non - transferable and is applicable only to the original Customer or Operator (K) This Warranty shall not be extended, altered or varied except M written instrument executed by Smiths. Smiths Detection 21 Commerce Drive Danbun', CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com SmLt is SmiI the Detection Quotation for: Cite of Denton Fire Department 332 E. Hickoiv St. Denton, TX 76201 Item Qtv Part No. Description DATE: QUOTATION NO.: PAGE NO.: TERMS: VALID UNTIL: DELIVERY: WARRANTY: DELIVERY TERMS: Federal ID #: 8/28/2013 OOOUSA100034 Page 6 of 6 Net 30 1/26/2014 See Terms & Conditions Summaiv Page One year parts and labor EX Works Danbuiv, CT 22- 355 -2823 Base Price Net Price (L) Anp official action or legal proceeding for breach of this Warranty must be commenced iN ithm thirty (30) months after acceptance of the Goods Equipment. Smiths Detection 21 Commerce Drive Danbun', CT. 06810 Main (203) 207 -9700 Fax (203) 207 -9780 www.smithsdetection.com Exhibit 2 November 21, 2013 City of Denton Fire Dept. 332 E. Hickory St. Denton, TX 76201 Capt. Michael Tucker Capt. Tucker, s m tt. hi r brin gPn g re r l uox. la: gpr qua We 21 Commerce Drive Danbury, CT 06810 USA T +1 203 207 9700 F: +1 203 207 9780 www.smithsdetection.com Smiths Detection, Inc. is the sole manufacturer, distributor, and provider of the following Smiths Detection products, services, and software including the HazMatID Elite. • HazHatID Elite - all conf ,-urations and accessories • GasID - all configurations and accessories • HGVI - all configurations and accessories • RespondeR RCI - all configurations and accessories • RadSeeker - all configurations and accessories • Sabre 4000 and Sabre 5000 - all configurations and accessories • LCD 3.2 and LCD 3.3 - all configurations and accessories • Partnership Programs for all systems • Databases /Libraries for all systems These products, services and software are only available through Smiths Detection. If you have received pricing information from persons or companies other than Smiths Detection, Inc., it will be considered non - authorized by Smiths Detection, Inc. Smiths Detection, Inc. reserves the right to reject any instrument, service, warranty or software orders that are not directly placed with Smiths Detection, Inc. If you have any questions or require additional information, please feel free to contact me at 407- 432 -4303 or by e -mail at andy.saksa(t-�,smithsdetection.com . Sincerely, Andy Saksa Southern Sales Engineer, Emergency Response 21 Commerce Drive Danbury, CT 06810 Smiths Detection - Danbury A Smiths Group Company ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF A HAZMAT ID ELITE COMMAND SYSTEM FOR THE CITY OF DENTON POLICE AND FIRE DEPARTMENTS (FUNDED 100 PERCENT THROUGH THE 2012 HOMELAND SECURITY GRANT PROGRAM), WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5443 AWARDED TO SMITHS DETECTION IN THE NOT -TO- EXCEED AMOUNT OF $54,950). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NT TNTRFR VFNr)C)R Ali M TNT 5443 Smiths Detection $54,950 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5443 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4- ORD- File5443 Coir ,e i3O Agei,Aa G AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Chad Weldon at 349 -8861 ACM: Bryan Langley i -A SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of seven (7) Throwbot XT Reconnaissance Robot Audio Kits for the City of Denton Police and Fire Departments (Funded 100 percent through the 2012 Homeland Security Grant Program), which is available from only one source and in accordance with Chapter 252.022 of the Texas Local Government Code such purchases are exempt from the requirements of competitive bidding; and providing an effective date (File 5444 awarded to ReconRobotics, Inc. in the not -to- exceed amount of $99,190). FILE INFORMATION The Dallas Fort Worth Area Urban Area Security Initiative, a Homeland Security Grant Program, authorized 100 percent funding for the purchase of these micro platform "robots" to be used by the Denton Police Department Tactical Team and the Denton Fire Department Bomb Squad. Remotely Operated Vehicles (Robots) are commonly used by Tactical Officers and Bomb Technicians to perform tasks in hazardous environments. Throwbot XT is designed as a reconnaissance tool. It allows for safe audio and video surveillance at hazardous incidents. The robot will allow tasks to be accomplished without placing public safety employees in direct contact with the hazards. Although the use of robots are not feasible at all incidents, the capabilities provided with the new technology does allow for expanded use. The requested equipment has been proven in the law enforcement field. A quote for the equipment is attached as Exhibit 1. The Fire Department could only identify one vendor to supply the Throwbot XT products. ReconRobotics, Inc. is the sole provider of the equipment in the United States (Exhibit 2). Chapter 252.022 of the Texas Local Government Code provides that procurement of commodities and services that are exempt from competitive bidding, if over $50,000, shall be awarded by the governing body. RECOMMENDATION Award the purchase of seven (7) Throwbot XT Audio kits to ReconRobotics, Inc. in the amount of $99,190. Agenda Information Sheet January 7, 2014 Page 2 PRINCIPAL PLACE OF BUSINESS ReconRobotics, Inc. Minneapolis, MN ESTIMATED SCHEDULE OF PROJECT A purchase order for seven (7) Throwbot XTs will be issued upon Council approval. The units are expected to be in service within thirty (30) days from receipt of the purchase order. FISCAL INFORMATION This project was recommended, and approved for 100% funding by the Dallas Fort Worth Area Urban Area Security Initiative Homeland Security Grant Program 2012 Urban Area Security Initiative Homeland Security Grant Program. Account number 342023.8535 will be used to process the purchase order for the Throwbot XTs. Requisition 116866 has been entered in the Purchasing software system. EXHIBITS Exhibit 1: Equipment Quote Exhibit 2: Sole Source Letter Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance I -.CIS -File 5444 Exhibit 1 WORLD 4CADF',R, M F"ACP'4CAL ,h OC"R�O ROBOT SYST�EA15 7620 W. 78th St. Minneapolis, MN 55439 TEL 952 - 935 -5515 FAX 952 - 935 -5508 www.reconrobotics.com reconscout- orders @reconrobotics.com MN Tax ID: 9403924 FEIN: 26- 2183823 GSA Contract #: GS- 07F -0075U 31LLING ADDRESS Denton Fire Dept. Chad Weldon 332 E. Hickory Denton, TX 76201 USA 940 - 349 -8861 chad.weldon @cityofdenton.com Sales Quote Date: 12/12/2013 Sales Quote #: 13 -02508 Customer #: NA -C- 1341 -1 SHIPPING ADDRESS Same Brett Schendel Net30 UPS Ground Destination 4 - 6 weeks from receipt of purchase order rail nrices in US Dollarsl QTY MODEL # I ITEM DESCRIPTION UNIT COST EXTENDED CO 3 RSK- TXTa -01- 1100 -2 Throwbot XT Audio Kit - Channel C.2 with OCU II 13,950.00 $ 41,850.00 2 RSK - TXTa -01- 1010 -2 Throwbot XT Audio Kit - Channel A.2 with OCU II 13,950.00 $ 27,900.00 2 RSK - TXTa -01- 1011 -2 Throwbot XT Audio Kit - Channel B.2 with OCU II 13,950.00 $ 27,900.00 7 SSP SearchStick Pole 2,200.00 $ 15,400.00 7 SearchStick Promotion - 2,200.00 $ - 15,400.00 1 iShipping & Handling 1,540.00 $ 1,540.00 For sales of the Recon Scout to non - federal and non - military entities, license eligibility is limited to state and local police and firefighters eligible under 47 C.F.R. § 90.20(a)(1) of the FCC Rules, and security personnel in Critical Infrastructure L..J...d.:...� __ .J..a.....J in - - o J _ A7 n C o C - 7 C.. ____ ..4;- 4. ......1.. - 44--4- H..... TOTAL $ 99,190.00 are eligible to license this product. Operation of this product by non - federal and non - military entities requires an FCC license. This sales quote is valid for 90 days after the above date. III 'I ATTN: U.S. Law Enforcement and First Responder Customers This FCC contact form must be completed and received before a Purchase Order may be processed for orders of Recon Scout or Throwbot robots. Please submit this form with your Purchase Order, or submit in advance to speed up processing. Submission of this form does not create an obligation to purchase any equipment from ReconRobotics. Entity Name: F,nd User Contact Information FCC licensing paperwork will be emailed at time of shipment to the person provided below. Please provide contact information for the appropriate FCC coordinator with the agency that will be using this equipment. If the equipment will be shipped to multiple agencies, you must submit one copy of this form for each end user. Communications Director: Phone: ( E -mail: Attestation By signing below, I attest that the end user entity named above is eligible to license this equipment, and agree to abide by all FCC requirements. Name (printed): Signature: Title: Date: FCC Eligibiliti� The usage of the Recon Scout robot and related equipment is subject to the following conditions: • Eligibility is limited to state and local police and firefighters eligible for licensing under Section 90.20(a)(1) ofthe Commission's Rules, and security personnel in critical infrastructure industries. • The Recon Scout robot may be used only during actual emergencies involving threats to safety of life, and for necessary training related to such operations. • Security personnel in critical infrastructure industries may operate the Recon Scout robot only in areas that are environmentally hazardous for entry by human personnel, and for necessary training related to such operations. • The Recon Scout robot will operate on a secondary basis (cannot cause interference and is not protected from interference) to all Federal users and licensed non - Federal users. This device may not interfere with Federal stations operating in the 420 -450 MHz band and must accept any interference received. • Training operations are not permitted within thirty kilometers of the following Federal radiolocation sites: • Site Coordinates (degrees- minutes - seconds) • Beale Air Force Base 39 -08 -10 N / 121 -21 -04 W • Cape Cod Air Force Station 41 -45 -07 N / 70 -32 -17 W • Clear Air Force Station 64 -55 -16 N / 143 -05 -02 W • Cavalier Air Force Station 48 -43 -12 N / 97 -54 -00 W • Eglin Air Force Base 30 -43 -12 N / 86 -12 -36 W • The operation of the Recon Scout may be impacted in the vicinity of the following radar and ionospheric research sites: • Site Coordinates (degrees- minutes - seconds) • Arecibo, Puerto Rico 18 -20 -37 N / 66 -45 -11 W • Westford, Massachusetts 42 -37 -24 N / 71 -29 -18 W • Poker Flats, Arkansas 65 -07 -47 N / 147 -28 -14 W ReconRobotics, Inc. Phone: 952 - 935 -5515 7700 West ' G ✓ Edina, MN 554 9treet Fax' free: 952- 935 -5508 1-866-697-6267 �" www. recon robo tics. com June 15, 2012 To Whom It May Concern: This letter is to confirm that ReconRobotics, having as its primary office 7620 West 78th Street, Edina, MN 55439 (www.recon robotics. com), is the sole manufacturer of the Throwbot® XT tactical reconnaissance robot system. This system includes, but is not limited to, the Throwbot XT robot unit, the operator control unit (OCU) and any associated accessories (i.e. the Command Monitoring Station). The Throwbot XT is a man portable, remote controlled reconnaissance robot designed to provide immediate video surveillance to law enforcement personnel in hostile environments. The Throwbot XT is unique in the global law enforcement marketplace because it is the only robotic reconnaissance system to combine the following critical attributes: Size — The Throwbot XT is less than 7.5 inches long and three inches wide and weighs just 1.2 pounds. This diminutive size and weight makes it easily transportable (i.e. worn on a vest) and enables the robot to be deployed by simply throwing it into the target environment. This small size also makes it difficult to detect while surveying a target environment. Survivability/ durability — The Throwbot XT is designed to survive repeated forceful impacts such as those from throwing the robot 200' or dropping it from a height of 30' onto a concrete surface. Maneuverability / range — The Throwbot XT has a turning radius of zero and can move at speeds of 1 foot per second (depending on terrain). The video and command signals have a range of 300' outdoors (line of sight) or 100' indoors (depending on number and composition of intervening walls). Ultra low light capability — The Throwbot XT uses an ultra low light camera system rated to 0.0003 lux. This camera system enables the Throwbot XT to provide a clear image of the target environment in almost any urban setting. Operational endurance — The Throwbot XT will operate on a single charge for up to 60 minutes of continuous use. Ease of use — Tactical team members are able to hold and fully operate the robot system's remote control unit with one hand, leaving the other hand available for a firearm, shield or radio Immediacy — The Throwbot XT may be deployed from its carrying case in under 10 seconds. The Throwbot XT may only be acquired through ReconRobotics or one of its duly authorized representatives. For more information about the Throwbot XT or if you require clarification about this letter please contact me using the below listed contact information. Best regards, Amanda Johannes Sales Support 952 - 935 -5515, x115 Amanda .Johannes&recon robotics. com ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF SEVEN (7) THROWBOT XT RECONNAISSANCE ROBOT AUDIO KITS FOR THE CITY OF DENTON POLICE AND FIRE DEPARTMENTS (FUNDED 100 PERCENT THROUGH THE 2012 HOMELAND SECURITY GRANT PROGRAM), WHICH IS AVAILABLE FROM ONLY ONE SOURCE AND IN ACCORDANCE WITH CHAPTER 252.022 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH PURCHASES ARE EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5444 AWARDED TO RECONROBOTICS, INC. IN THE NOT -TO- EXCEED AMOUNT OF $99,190). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 5444 ReconRobotics, Inc. $99,190 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5444 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 4 -ORD -File 5444 AGENDA DATE DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET January 7, 2014 Materials Management Bryan Langley � -A Questions concerning this acquisition may be directed to Elton Brock at 349 -7133 Consider adoption of an ordinance authorizing the City Manager to execute a Cooperative Purchasing Program Agreement with the City of Cedar Hill, Texas under Section 271.102 of the Local Government Code, to authorize mutual participation in various City of Cedar Hill and City of Denton contracts for the purchase of various goods and services; authorizing the expenditure of funds therefor; and declaring an effective date (File 5430 - Cooperative Purchasing Agreement with City of Cedar Hill). FILE INFORMATION Section 271.102 of the Texas Local Government Code, authorizes respective participating governments to enter into agreements for the purchase of goods and services. The attached Agreement is an authorization for the City of Denton to participate in contracts awarded by the City of Cedar Hill and for the City of Cedar Hill to participate in contracts awarded by the City of Denton. The contract will remain in effect until terminated by either party. This Agreement will allow both entities to utilize contracts for goods and services competitively bid by the other party to the contract. The bid process followed by both entities meets all statutory bidding requirements. Upon approval of the Agreement, the City of Denton intends to utilize the City of Cedar Hill's bid for Emergency Medical Supplies. All purchases exceeding $100,000 will still require individual City Council approval per City of Denton policy. RECOMMENDATION Approve a Cooperative Purchasing Program Agreement with the City of Cedar Hill. PRINCIPAL PLACE OF BUSINESS City of Cedar Hill Cedar Hill, TX Agenda Information Sheet January 7, 2014 Page 2 ESTIMATED SCHEDULE OF PROJECT This Agreement is effective upon approval by both the City of Denton and City of Cedar Hill and will remain in effect until terminated by either party. FISCAL INFORMATION Each future acquisition, based on this Agreement, will follow the City of Denton fiscal verification policy and be charged to the appropriate budget account. Respectfully submitted: C.h"k � (3 , Chuck Springer, 349 -8260 Director of Finance I -.CIS -File 5430 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A COOPERATIVE PURCHASING PROGRAM AGREEMENT WITH THE CITY OF CEDAR HILL, TEXAS, UNDER SECTION 271.102 OF THE LOCAL GOVERNMENT CODE, TO AUTHORIZE MUTUAL PARTICIPATION IN VARIOUS CITY OF CEDAR HILL AND CITY OF DENTON CONTRACTS FOR THE PURCHASE OF VARIOUS GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE (FILE 5430- COOPERATIVE PURCHASING AGREEMENT WITH CITY OF CEDAR HILL). THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute the Cooperative Purchasing Program Agreement with the City of Cedar Hill under Section 271.102 of the Local Government Code, a copy of which is attached hereto and incorporated by reference herein (the "Agreement'). SECTION 2. The City Manager, or his designee, is authorized to expend funds pursuant to the Agreement for the purchase of various goods and services. SECTION 3. The City Council of the City of Denton, Texas, hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5430 to the City Manager of the City of Denton, Texas, or his designee. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 2 -ORD -File 5430 COOPERATIVE PURCHASING AGREEMENT BETWEEN THE CITY OF CEDAR HILL, TEXAS AND CITY OF DENTON, TEXAS STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made on the day of , 2014, between the City of Denton, and Cedar Hill; jointly referred to herein as "parties." WHEREAS, the respective parties are authorized by Local Government Code, Chapter 271, to enter into contracts and agreements for participation in cooperative purchasing programs; and WHEREAS, it is the desire of the aforesaid parties to comply with and further the policies and purpose of Local Government Code, Chapter 271; and WHEREAS, the parties cannot normally obtain the best possible purchase price for materials and supplies acting individually and without cooperation; and WHEREAS, it is deemed in the best interest of all parties that said governments do enter into a mutually satisfactory agreement for the purchase of certain materials and supplies; and WHEREAS, the parties, in performing governmental functions or in paying for the performance of governmental functions hereunder shall make that performance or those payments from current revenues legally available to that party; and WHEREAS, the parties agree to designate a person to act under the direction of and on behalf of the parties in all matters relating to this agreement; and WHEREAS, the parties agree to be responsible for a vendor's compliance with provisions relating to the quality of items and terms of delivery to the extent provided herein; NOW, THEREFORE, the parties hereto, inconsideration of the mutual covenants and conditions contained herein and pursuant to the authority permitted under Local Government Code, Chapter 271, promise and agree as follows: I. Purpose The purpose of this Agreement is to authorize the parties' mutual participation in various contracts for the purchase of various goods and services. Participation in this cooperative program will be highly beneficial to the taxpayers of the participating parties through anticipated savings to be realized. II. Duration of Agreement This Agreement shall be in effect from the date of execution until terminated by either party to the agreement. III. Relationship of Parties It is agreed that the parties, in receiving products and /or services specified in this agreement, shall act as an independent purchaser and shall have control of its needs and the manner in which they are acquired. Neither party is an agent, employee or joint enterprise of the other, and each party is responsible for its own actions, forbearance, negligence and deeds, and for those of its agents or employees, in conjunction with the utilization and /or cooperative solicitation of any Supplier Agreement obtained in accordance with Texas law. Parties shall notify all participating entities of available contracts to include terms of contract, commodity cost, contract names and addresses, and shall keep participating parties informed of all changes to the Cooperative Purchasing list of contracts. Nothing in this agreement shall prevent any participating party from accepting and awarding bids for commodities subject to this agreement individually and in its own behalf. The City Manager, or his designee, is hereby designated as the official representative to act for the City of Denton in all matters relating to this agreement. The City Manager, or his designee, is hereby designated as the official representative to act for the City of Cedar Hill in all matters relating to this agreement. The parties agree to make payments to the City of Denton or City of Cedar Hill, or directly to a vendor under this contract as provided herein. The parties agree to be responsible for a vendor's compliance with provisions relating to the quality of items and terms of delivery to the extent provided herein. IV. Purchase of Goods and Services All products and services shall be procured in accordance with procedures governing competitive bids and competitive proposals. The parties will be able to purchase from those contracts established by the other where notice has been given in the specifications and successful bidder has accepted terms for Cooperative Purchasing Agreements for local governments. The parties hereto agree that the ordering of products and services through this agreement shall be their individual responsibility and that the successful bidder or bidders shall bill each party directly, or as deemed advantageous to both parties. The parties agree to pay successful bidders or anticipating governments directly for all products or services received from current revenues available for such purchase. Each party shall be liable to the successful bidder only for products and services ordered by and received by it, and shall not by the execution of this agreement assume any additional liability. Parties do not warrant and are not responsible for the quality or delivery of products or services from successful bidder. The participating parties shall receive all warranties provided by successful bidder for the products or services purchased. In the event that any dispute arises between individual parties and a successful bidder, the same shall be handled by and between the participating party's governmental body and the bidder. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their authorized officers thereon the day and the year first above written. CITY OF CITY OF DENTON By: By: George C. Campbell, City Manager APPROVED AS TO LEGAL FORM: Anita Burgess, City Attorney Ctlil "Yse f0 ei' Aa CITY OF DENTON CITY COUNCIL MINUTES November 19, 2013 After determining that a quorum was present, the City Council convened in a Work Session on Tuesday, November 19, 2013 at 2:00 p.m. in the Council Work Session Room at City Hall. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Roden, Council Member Hawkins ABSENT: None WORK SESSION 1. Citizen Comments on Consent Agenda Items There were no citizen comments presented on Consent Agenda items. 2. Requests for clarification of agenda items listed on the agenda for November 19, 2013. Council Member Gregory stated that he would like to pull consent item A and consider it under Items for Individual Consideration. City Manager George Campbell advised the Council that consent items P through T would be pulled from the Consent Agenda and would not be considered. Council Member Engelbrecht stated that consent item C on the revision to the Investment Policy, there was no definition for long term and short term debt. He asked if those definitions could be included in the document. Council Member Engelbrecht asked that the Council adhere to the 6:30 p.m. timeframe for the start of the regular meeting. He stated that the Council could come in after the regular meeting to finish the Work Session. 3. Receive a report, hold a discussion, and provide staff with direction regarding the proposed 2014 Bond Program. Bryan Langley, Assistant City Manager, stated that this agenda item was an additional opportunity for Council to ask any questions they might have regarding establishing the bond committee or the charge for the committee. Council Member Gregory asked if there would be another opportunity to make appointments after this meeting. Langley stated yes, the first meeting of the bond committee was scheduled for December 12 and there would be another Council meeting where nominations could be made. 5. Receive a report, hold a discussion, and give staff direction regarding a proposed Taxilane Quebec Hangar Development at Denton Enterprise Airport. Quentin Hix, Director of Aviation, stated that last week Airport staff briefed the Council Airport Committee on a hanger development project. The Council Airport Committee directed staff to City of Denton City Council Minutes November 19, 2013 Page 2 present this project to the entire Council. He stated that staff was seeking direction on the next steps. Hix stated that Airport staff was approached in September 2012 by an engineering firm interested in developing hangars at the Airport. Airport staff determined through surveying current Airport hangar management firms that there was a waiting list of aircraft owners prepared to lease new hangar space if it was made available. Airport staff worked with Materials Management and issued an RFP to solicit proposals for the development of aircraft hangars either independently or in partnership with the City to build hangars on property at the Airport that was adjacent to the new taxilane. The only proposals received were for design build which Airport staff recommended to the Council be rejected. Council subsequently rejected those bids and started with a build -to -suit approach for this hangar development. Airport staff had worked with Aguirre -Roden Engineers to develop a conceptual design and financial analysis to determine the economic feasibility of funding constriction of hangars at the Airport. Hangar space was proposed to be constricted through a competitive bidding procedure. These hangars would be leased to a professional management company for sub -lease to individual aircraft owners. Aguirre -Roden Engineers would develop constriction specifications, support the City's Purchasing Department to solicit competitive constriction bids and provide Constriction Management services for the project. The proposed hangar development was Phase I of a planned development of approximately 22 acres of taxilane access property in the southeast area of the Airport. Phase I would be constricted in five units of nested T- hangars and four small box hangars. The constriction schedule would be scoped to allow discontinuation of development if each unit was not substantially leased prior to completion. The schedule for completing Phase I was mid July 2014. Hix stated that the total cost of $1.75 million would be funded using the Airport Fund to pay the debt service. If the Council recommended moving forward with the project, a separate Council action would be presented to consider a Fiscal Year 2013 -14 Budget Amendment and a reimbursement ordinance for current project funding. Council Member Gregory asked what the current occupancy rate was. Hix replied it was 100% occupancy and currently 107 people were waiting for hangars. General consensus of the Council was to move forward with the project. 4. Receive a report, hold a discussion, and give staff direction regarding a proposed Hotel /Convention Center. Jon Fortune, Assistant City Manager, stated that he would paraphrase the key elements of the agreements. He stated that Julie Partain with Bracewell & Giuliani, had been instrumental in consolidating all the comments by the various parties involved and had assisted in drafting these documents. He stated that Charlie Jackson with UNT, and Kim Phillips with the Convention & Visitors Bureau were also present. City of Denton City Council Minutes November 19, 2013 Page 3 Fortune stated that he would review the following documents - Master Development Agreement, Preliminary Site Plan, City -UNT Land Lease, City -OHPD Convention Center Sublease, UNT- OHPD Land Lease and Professional Services Agreement. He reviewed the Convention Center feasibility and timeline. He stated that upon approval of all the agreements that would trigger the Design Development Phase and architectural drawings would be created. Once the City approved those drawings, they would solicit proposals for constriction and evaluate the price. If the City felt the price was within the budget, those contracts would be approved contingent upon future funding becoming available. The budget would be finalized and the City would receive the franchise and funding commitment from O'Reilly Hospitality Partners Denton. Fortune stated that this would initiate the creation of the TIRZ and final evaluation of the overall project feasibility. The City Council would initiate the bond sale process and publish notice of intent. The City would issue the debt. OHPD and the City would close on respective financing commitments. Once the funding became available, the final design would be completed and the creation of the TIRZ would be finalized. Once this final design was approved the constriction phase would begin. Fortune reviewed the preliminary draft of the Master Development Agreement and some of the definitions — Approved Franchise /Approved Franschisor — initial franchise would be 18 years with an Embassy Suite Hotel. Comparable Convention Centers / Comparable Hotel Properties — maintain a standard for the facilities that we were going to be building. These are going to be high - quality strictures. Fully functional with all the amenities that you typically see in a full service hotel and a very large convention center. Council Member Engelbrecht stated that as he understood that a full service hotel included food service. He felt if it was a first class hotel it should have a full service restaurant and a full service bar. He stated that he would like to see how that was all tied together. Fortune stated that Convention Center / Hotel — this would be at least a 9 -story building with 275 guest rooms and could be as high as an 11 -story building with 318 guest rooms. Upscale Condition — with respect to the hotel, the condition of the hotel would be held to the standard of a Three Diamond Rating — asking for a standard that clearly define what certain hotel amenities would qualify for. He reviewed definitions for — OHPD (O'Reilly Hospitality Partners Denton) Service — Hotel; OHM (O'Reilly Hospitality Management) Services to the City. Think of it as OHPD as the owners of the hotel. They would hire a management company — OHM, and they would help OHPD create the design, develop the architectural specifications, and solicit their guaranteed max price contracts. The City was also hiring OHM to help with the design and constriction of the convention center. He stated the City wanted to make sure there was as much consistency in the development of the design of the two facilities and in the constriction and coordination that was necessary for the constriction of those two facilities. He reviewed Project Feasibility — during this phase, drawings would be made available to the City for approval and this would be where the City would be able to make sure the convention center was what we had been told we were getting and was actually what we were anticipating getting. We would take a look at the preliminary budget at this time. Financing Viability — discussed the specific interest rate level that was kind of a threshold, identified as 6 %, so that if we got to a point where we were ready to issue bonds and for whatever reason interest rates were City of Denton City Council Minutes November 19, 2013 Page 4 way beyond 6% — then this would be an opportunity to say it might not be the best time to do this project. Hotel Franchise Agreement — mentioned the ability to operate the hotel without a franchise agreement. Tax Increment Reinvestment Zone — wanted to remind everyone that if these documents were approved, the TIRZ was not automatically created; that was another step. Fortune reviewed Constriction Activities — Payment and Performance Bonds; Constriction Phase. Financing of the Project — Private Financing Contribution; Financing Viability Deadline; City Financing Contribution; City Financing Contribution Limitation. He reviewed Purchasing Services —FF &E Schedule and Specifications. He reviewed Additional Obligations of OHPD — Transfer Lease Assignment; Conditions to Transfers. He reviewed the definitions for Cost Savings and Expense Requirements. He also reviewed the Naming Rights and stated that the City would maintain control of the naming rights. Council Member Roden asked if there was a way to put in the agreement what the City wanted to see, what UNT wanted to see, and what O'Reilly wanted to see. Fortune stated that those elements were in the agreement. He stated that he had been working with the City Manager and Legal to work out details in an effort to protect the City. Fortune reviewed the City —UNT Land Lease, City -OHPD Convention Center Sublease, UNT- OHPD Land Lease, and the Professional Service Agreements. Fortune stated that the following were pending items: need receipt of OHPD -OHM Convention Center Management Agreement; reviewing dates and time requirements for accuracy; reviewing references and definitions, review of insurance and default provisions for consistency, and finalize minor elements based on continued discussions. Fortune reviewed the schedule for consideration of approval. November 19 — City Council review; November 26 — UNT Regents Facility Committee Review; December 2 — Joint Presentation to City Council / DISD Trustees; December 3 — Presentation to EDPB- informational only; December 3 — City Council review; December 5 — UNT Regents consider approval; December 10 — City Council consider approval. General consensus of the Council was to proceed with the next steps. The City Council convened in a Closed Meeting at 4:09 p.m. to consider the following: 1. Closed Meeting: A. Deliberations regarding Real Property - Under Texas Government Code Section 551.072; Consultation with Attorneys - Under Texas Government Code Section 551.071. Discuss, deliberate, and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the James Perry Survey, Abstract No. 1040, John Scott Survey, Abstract No. 1222, John Bacon Survey, Abstract No. 1541, and the John Davis Survey, Abstract No. 326, City of Denton, Denton County, Texas, and generally located along Western Boulevard between Airport City of Denton City Council Minutes November 19, 2013 Page 5 Road and Jim Christal Road. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition and condemnation of the real property described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. 2. Discuss, deliberate and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located (1) in the O.S. Brewster Survey, Abstract No. 56, located generally in the 1700 block of South Bonnie Brae Street; and (2) in the James Edmonson Survey, Abstract No. 400, Denton County, Texas, located generally in the 3100 Block of South Bonnie Brae Street, all property interests within the City of Denton, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Bonnie Brae Widening) 3. Discuss, deliberate and receive information from staff and provide staff with direction pertaining to the potential purchase of certain real property interests located in the B.B.B. & C.R.R Co. Survey, Abstract No. 196, and the J. Withers Survey, Abstract 1343, and the A. Cannon Survey, Abstract 232, all in Denton County, Texas, and located generally along the north side of the meanders of the Hickory Creek tributary, between U.S. Highway 377 and F.M. Road 1830, and also located generally along the north side of the meanders of the Hickory Creek tributary, west of Old Alton Road, all within City of Denton, Texas. Consultation with the City's attorneys regarding legal issues associated with the potential acquisition or condemnation of the real property interests described above where a public discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City's legal position in any administrative proceeding or potential litigation. (Hickory Creek Basin Sanitary Sewer Peak Flow Storage Facility) B. Deliberations regarding certain public power utilities competitive matters - Under Texas Government Code, Section 551.086. Receive a presentation from DME staff regarding the GreenSense Energy Efficiency Rebate Program which is authorized under the current DME rate ordinance, Schedule GFR, regarding issues relating to solar energy rebates, including re- establishing the amount of funding under such City of Denton City Council Minutes November 19, 2013 Page 6 Schedule, re- analyzing qualifying criteria for such rebates, amending the rebate amounts per solar installation, and making other amendments to the Criteria Manual for such Schedule. Discuss, deliberate and provide staff with direction. C. Consultation with Attorney - Under Texas Government Code Section 551.071. Consultation with the City's attorneys regarding legal advice concerning the leasing of land and financing of a proposed Hotel /Convention Center facility of University of North Texas property located at I -35 and North Texas Boulevard where a public discussion of this legal matter would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. 2. Consult with and provide direction to City's attorneys regarding legal issues and strategies associated with Gas Well Ordinance regulations and Fire Code regulations relating to gas well drilling and production and safety issues regarding gas well drilling and production within the City Limits and the extraterritorial jurisdiction, including Constitutional limitations, statutory limitations upon municipal regulatory authority, statutory preemption and /or impacts of federal and state law and regulations as it concerns municipal regulatory authority and matters relating to enforcement, and any contemplated litigation or settlement offers regarding drilling in the City of Denton where the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas. Following the completion of the Closed Meeting the Council reconvened in a Work Session at 6:09 p.m. to consider the following: 7. Receive a report, hold a discussion, and give staff direction regarding a sponsorship in an amount not to exceed $13,000 of in -kind services and supplies for the 25th Annual Denton Holiday Lighting Festival to be held on Downtown Square on December 6, 2013, and providing an effective date. Emerson Vorel, Director of Parks and Recreation, stated that the Holiday Lighting Festival Association had requested in -kind assistance for their event on December 6. The request this year was the same as last year. Vorel stated that the Mayor had a question about $1,000 from the contingency fund but he had not had an opportunity to discuss with Legal. Mayor Burroughs asked if the ordinance was written that it was capped at $13,000, that his preference was that Council contingency funds not be included as part of the cap. Vorel stated that the ordinance was written "not to exceed $13,000 of in -kind services and supplies ". Mayor Pro Tem Kamp stated that Council contingency funds were not in -kind services and supplies. City of Denton City Council Minutes November 19, 2013 Page 7 Council Member Gregory suggested revising the ordinance to say "not to exceed $13,700.00 ". General consensus of the Council was to make the revision. 6. Receive a report, hold a discussion, and give staff direction regarding proposed changes to the current Permit and Fee Schedule. Kurt Hansen, Building Official, stated that the current fee schedule was adopted in 1998. The latest amendment occurred in 2008 for new permit fees for one and two - family dwellings. He stated that staff had reviewed the existing permit fees. As each fee was discussed, staff considered the following questions before making any suggestions about changing or adjusting a fee. 1) Did this fee cover the cost of our service to process, review, and inspect this item? 2) How did this fee compare with similar fees from other comparable cities? 3) Was this fee onerous for the person who was required to obtain the permit? 4) Did we keep this fee low because the value of the work being performed was also low? Hansen reviewed some of the significant changes to consider. For One and Two - Family Dwellings, staff compared our fees to Allen, Frisco, McKinney and others, and determined that their fees were approximately double Denton's fees. Staff recommended that the City adopt the same fee table as Allen, Frisco, and McKinney. The existing fee was a permit fee that was based on square footage. Council Member Gregory asked what our actual cost was. Hansen replied that a consultant would need to be used to determine the actual costs. Mayor Burroughs stated that some of the builders were concerned about the fees versus the costs. Mayor Burroughs stated that he would like to see an aggregate of all the fees for someone wanting to build a new house in Denton and then compare it to maybe to McKinney's fees. General consensus of the Council was to bring the item back with more details regarding the costs and other fees. The City Council convened in a Regular Session at 6:42 p.m. in the Council Chambers. 1. PLEDGE OF ALLEGIANCE The Council and members of the audience recited the Pledge of Allegiance to the U.S. and Texas flags. 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations /Awards 1. American Diabetes Month The Mayor presented the American Diabetes Month proclamation to Ryan Armstrong with the Diabetes Association. City of Denton City Council Minutes November 19, 2013 Page 8 2. One O'Clock Lab Band The Mayor presented the One O'Clock Lab Band proclamation to members of the One O'Clock Lab Band. 3. CITIZEN REPORTS A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: Council Member Engelbrecht requested the Citizen Reports at the end of the meeting be moved up at this time. General consensus of the Council was to move the Citizen Reports listed at the end of the meeting to the front of the meeting. 1. Rachel Bewers regarding gas well fracking on Bonnie Brae and Vintage Parkway. Ms. Bewers requested a moratorium on all gas well fracking in the city of Denton until the current ordinance is enforceable for all wells. Would like the current permits for EagleRidge be revoked. 2. Sandy Mattox regarding gas well fracking on Bonnie Brae and Vintage Parkway. Ms. Mattox requested a moratorium on all gas well drilling in Denton until the City eliminated the loopholes in its ordinance and the moratorium needed to be in effect until enforcement problems were corrected. She also requested the permits for the Bonnie Brae / Vintage wells be revoked until the ordinance and enforcement problems can be corrected. 3. Cathy McMullen regarding permits for gas well drilling on Bonnie Brae and Vintage Parkway. Ms. McMullen requested a moratorium on all drilling activity around protected use areas in Denton. Mark Brady regarding taxi cab licensing. Mr. Brady requested that the misdemeanor charges be removed from the conditions for taxi cab licensing. Ed Soph regarding gas well drilling. Mr. Soph requested a moratorium on all drilling in Denton until an ordinance was in place that truly protected the residents of Denton. Carol Soph regarding gas well drilling. Ms. Soph requested a moratorium on fracking in Denton. Adam Briggle regarding the gas well situation near the Meadows at Hickory Creek on Bonnie Brae and Vintage. City of Denton City Council Minutes November 19, 2013 Page 9 Mr. Briggle suggested revoking the Specific Use Permit for EagleRidge. He suggested that the Council ask themselves if they had done all they could regarding the fracking in this neighborhood. Linda Alexander regarding a moratorium on well drilling. Ms. Alexander requested a moratorium on gas well drilling in Denton. Angie Holliday regarding the Vintage neighborhood drilling and fracking. Ms. Holliday requested a moratorium on gas well drilling in Denton. Kelly Higgins regarding gas drilling moratorium. Ms. Higgins requested a moratorium on gas well drilling in Denton. 4. CONSENT AGENDA Mayor Burroughs stated that Item A and Item K would be pulled for separate consideration. City Manager Campbell stated that Items P, Q, R, S, and T would be pulled from consideration and placed on an agenda in December and Item M would also be pulled from consideration and considered at the special meeting on Friday. City Attorney Burgess stated that Item H was to be amended to say $13,700 of in -kind services. Mayor Pro Tem Kamp motioned, Council Member Hawkins seconded to approve the Consent Agenda and accompanying ordinances and resolutions with the exception of Items A, K, M, P, Q, R, S, and T and a revision to Item H to read $13,700 instead of $13,000. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. Resolution No. R2013 -035 B. Consider approval of a resolution revising Administrative Policy No. 403.07 "Debt Service Management "; and providing an effective date. The Audit/Finance Committee recommends approval (3 -0). Resolution No. R2013 -036 C. Consider approval of a resolution reviewing and adopting revisions to the Investment Policy regarding funds for the City of Denton; and providing an effective date. The Audit/Finance Committee recommends approval (3 -0). Ordinance No. 2013 -316 D. Consider adoption of an ordinance accepting competitive proposals and awarding a public works contract for the installation of a pre -cast concrete security /screening fence at the Cooper Creek Substation for Denton Municipal Electric; providing for the expenditure of funds therefor; and providing an effective date (RFP 5295- awarded to Walsh's Hawk Constriction Co., LLC in an amount not -to- exceed $354,970. The Public Utilities Board recommends approval (7 -0). City of Denton City Council Minutes November 19, 2013 Page 10 Ordinance No. 2013 -317 E. Consider adoption of an ordinance accepting competitive bids and awarding a public works contract for water and wastewater improvements as specified in Bid 5366 State School Interceptor II; providing for the expenditure of funds therefor; and providing an effective date (Bid 5366- awarded to the lowest responsible bidder meeting specification, Wright Constriction Company, Inc. in the amount of $2,594,780). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2013 -318 F. Consider adoption of an ordinance accepting competitive proposals and awarding contract for Janitorial Services for City of Denton buildings; providing for the expenditure of funds therefor; and providing an effective date (RFP 5317- awarded to Oriental Building Services, Inc. in the annual not -to- exceed amount of $581,238 for a three (3) year not -to- exceed amount of $1,743,714). Ordinance No. 2013 -319 G. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and the Children's Advocacy Center for Denton County, Incorporated in the amount of $119,141; providing aid to the City of Denton Police Department in the investigation of child abuse cases; providing client and clinical services to victims of child abuse and non - offending family members; providing for the expenditure of funds therefor; and providing for an effective date. Ordinance No. 2013 -320 H. Consider adoption of an ordinance approving a sponsorship in an amount not to exceed $13,000 of in -kind services and supplies for the 25th Annual Denton Holiday Lighting Festival to be held on Downtown Square on December 6, 2013, and providing an effective date. Second Reading L Consider adoption of an ordinance authorizing execution of a franchise agreement with the City of Denton, acting through its electric utility, granting a franchise to maintain, and operate facilities within the City of Corinth for the delivery and sale of electricity; providing for the payment of a fee for the use of the public rights -of -way; providing that such fee shall be in lieu of other charges; setting forth the term of the franchise; providing for the ratification and retroactive approval of said agreement; and providing an effective date. (Second Reading) Ordinance No. 2013 -321 J. Consider adoption of an ordinance approving a First Amendment to a Commercial Operator Airport Lease Agreement between the City of Denton, Texas and Nebrig Properties, L.P. for assignment to Sykes - Vaughan Investments, LLC; and providing an effective date. The Council Airport Committee recommends approval (3 -0). Ordinance No. 2013 -323 L. Consider adoption of an ordinance of the City of Denton authorizing an agreement between the City of Denton, Texas and Coats for Kids Ride, Inc.; providing for the expenditure of funds; and providing for an effective date. ($1,100). City of Denton City Council Minutes November 19, 2013 Page 11 This item was not considered. M. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a temporary access permit (the "Permit "), by and between the City of Denton, Texas and EagleRidge Operating, LLC, a Texas limited liability company ( "EagleRidge "), granting a license to EagleRidge to temporarily access certain City owned lands located in the James Edmonson Survey, Abstract Number 401 and the James L. Harris Survey, Abstract Number 555,located generally 1,800 feet southwest of the intersection of South Bonnie Brae and Vintage Boulevard, City of Denton, Denton County, Texas, in connection with the overland transport of water for gas well operations; and providing an effective date. Ordinance No. 2013 -324 N. Consider adoption of an ordinance of the City of Denton, Texas amending a Professional Services Agreement by and between the City of Denton, Texas and Power Engineers, Inc. for electrical transmission line design, and other engineering related consulting services for Denton Municipal Electric Capital Improvement Projects; authorizing the expenditure of funds therefor; providing an effective date (File 5174 -First Amendment to Professional Services Agreement in the original not -to- exceed amount of $1,576,050, Amendment One in the amount of $820,492, for a total not -to- exceed amount of $2,396,542). The Public Utilities Board recommends approval (7 -0). Ordinance No. 2013 -325 O. Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of thirteen (13) vertical break switch upgrade components for Denton Municipal Electric substations which are available from only one source and in accordance with Texas Local Government Code 252.022, exempt from the requirements of competitive bidding; and providing an effective date (File 5113- awarded to Keasler Sales, LLC in the not -to- exceed amount of $175,370). The Public Utilities Board recommends approval (7 -0). This item was not considered. P. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale (herein so called) as attached hereto and made a part hereof as Exhibit "A" by and between the City of Denton (the "City "), and Westpark Group, L.P., a Texas Limited Partnership (the "Seller "), contemplating (I) the sale by Seller and purchase by City of a 4.2218 acre tract of land, more or less, for the purchase price of Four Hundred Thirty Five Thousand Six Hundred and No /100 Dollars (435,600.00); and (II) donation of a 10.1164 acre tract of land, more or less, all of said Real Property being generally located along the east side of Western Boulevard between Airport Road and Jim Christal Road in the James Perry Survey, Abstract 1040, City of Denton, Denton County, Texas; authorizing the City Manager, or his designee, to execute, deliver any and all other documents necessary to accomplish closing of the transactions contemplated by the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (7 -0). This item was not considered. Q. Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager or his designee to execute a Contract of Sale (herein so called), by and between the City of Denton (the "City "), and Westpark Group, L.P., a Texas Limited Partnership City of Denton City Council Minutes November 19, 2013 Page 12 (the "Seller ") contemplating the sale by Seller and purchase by the City of a 3.00 acre tract of land, more or less, for the purchase price of One Hundred Eighty Thousand Nine Hundred Ninety One and 80/100 Dollars ($180,991.80), said Real Property being generally located east of Western Boulevard and North of Airport Road, and located in the James Perry Survey, Abstract 1040, and the John Davis Survey, Abstract 326, Denton County, Texas, authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transactions contemplated by the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (7 -0). This item was not considered. R. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale (herein so called), by and between the City of Denton (the "City "), and Westpark Group, L.P., a Texas Limited Partnership (the "Seller "), contemplating the sale by Seller and purchase by the City of (1) fee simple to a 6.49 acre tract of land, more or less, and (II) a drainage easement encumbering a 1.6234 acre tract of land, more or less (collectively the "Property Interests "), for the purchase price of One Hundred and No /100 Dollars ($100.00), said Property Interests being generally located east of Western Boulevard and North of Airport road, and located in the James Perry Survey, Abstract 1040, Denton County, Texas, authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transactions contemplated by the Contract of Sale ( "Closing ") and documents contemplated by the Contract of Sale to be executed by the City after closing; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (7 -0). This item was not considered. S. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale (herein so called), by and between the City of Denton (the "City "), and Westpark Group, L.P., a Texas Limited Partnership ( "Westpark ") and Rayzor Investments, Ltd., a Texas Limited Partnership ( "Rayzor ") (Westpark and Rayzor collectively, the "Seller "), contemplating the sale by seller and purchase by the City of certain Easements (herein so called) related to gas, electric, communication, and thermal commodity purposes, for the purchase price of One Hundred and No /100 Dollars ($100.00), the Real Property being encumbered by the easements being generally located along both sides of Western Boulevard between Airport road and Jim Christal Road, and located in the John Scott Survey, Abstract 1222, the Thomas Toby Survey, Abstract Number 1285, the James Perry Survey, Abstract Number 1040, and the John Bacon Survey, Abstract Number 1541, Denton County, Texas; authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transactions contemplated by the Contract of Sale; authorizing the expenditure of funds therefor; and providing an effective date. The Public Utilities Board recommends approval (7 -0). This item was not considered. T. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Termination Agreement (the "Agreement ") between Rayzor Investments, Ltd., a Texas Limited Partnership and Westpark Group, LP, a Texas Limited Partnership (collectively, the "Seller ") and the City of Denton, Texas ( "Buyer "), terminating that City of Denton City Council Minutes November 19, 2013 Page 13 contract dated effective April 19, 2011, City of Denton Ordinance No. 2011 -063, relating to the sale and purchase of certain real property and real property interests located generally in the vicinity of Western Boulevard, between Airport road and Jim Christal Road, Denton, Texas; and providing for an effective date. The Public Utilities Board recommends approval (7 -0). Resolution No. R2013 -037 U. Consider approval of a resolution allowing the Denton Community Theatre to be the sole participant permitted to sell alcoholic beverages at the Beaujolais and More event held on November 21, 2013, upon certain conditions; authorizing the City Manager or his designee to execute an agreement in conformity with this resolution; and providing for an effective date. Staff recommends allowing the Denton Community Theatre to sell alcohol at the Beaujolais and More event in the Civic Center. Item A was considered. Ordinance No. 2013 -315 A. Consider adoption of an ordinance of the City of Denton, Texas to declare the intent to reimburse capital program expenditures of the Electric Utility ($34,595,000), Solid Waste ($2,404,000), Streets ($4,000,000), and General Government ($8,500,000) with Certificates of Obligation with an aggregate maximum principal amount equal to $49,499,000; and providing an effective date. Tony Puente, Assistant Director of Finance, stated that this item would allow the City begin making capital expenditures for the FY 2013 -14 Capital Improvement Program (CIP) Budget. This included $34,595,000 for Electric, $2,404,000 for Solid Waste, $4,000,000 for Streets, and $8,500,000 for General Government, for a total amount of $49,499,000. These funds would be reimbursed from the sale of General Obligation Bonds to be sold in the summer of 2014. Council Member Gregory motioned, Council Member King seconded to approve the resolution. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. Item K was considered. Ordinance No. 2013 -322 K. Consider adoption of an ordinance authorizing the City Manager to execute an Interlocal Agreement between the Denton County Transportation Authority ( "DCTA ") and the City of Denton, Texas ( "CITY "), to evidence the CITY's and DCTA's agreement regarding the planting of replacement trees by DCTA in relation to the Community Enhancement Project in the Project Area along and /or within the Trail Easement so that DCTA can meet the City of Denton Development Code's Tree Mitigation requirements relating to development of the DCTA Bus Operation and Maintenance Facility, and declaring an effective date. Ron Menguita, Development Review Committee Administrator, stated that this Interlocal Agreement would address the tree preservation requirements for the bus operation facility that was currently being constricted on Teasley. City of Denton City Council Minutes November 19, 2013 Page 14 Jim Kline and Richard Huckabee, DCTA, thanked the Council for their continued support. Council Member King motioned, Mayor Pro Tem Kamp seconded to approve the resolution. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. 5. ITEMS FOR INDIVIDUAL CONSIDERATION Resolution No. R2013 -038 A. Consider approval of a resolution creating a Special Citizens Bond Advisory Committee for the proposed 2014 Bond Election; establishing a charge for the committee; and declaring an effective date. Bryan Langley, Assistant City Manager, stated that in October the Council had discussed forming a bond committee to consider projects to be considered by the voters in the November 2014 Bond Election. The Council had indicated preference for a 50- member Citizen Bond Advisory Committee — seven appointments for each council member and a committee chair or two co- chairs. Staff had posted a notice and application on the City's website for citizens interested in serving on the bond advisory committee. Notice had also been distributed on social media channels as well. Langley stated that the Council requested the Committee include the following in their recommended capital projects: the reconstruction of Fire Station No. 3 and Fire Station No. 4; the reconstruction of City streets in the minimum amount of twelve million dollars; and funding for public art. He stated that this item would formally establish the committee and the charge of the committee. The Committee would be formally dissolved on August 1, 2014. Council Member Hawkins motioned, Council Member Gregory seconded to approve the resolution. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. B. Consider appointments to the Citizens Bond Advisory Committee for the proposed 2014 Bond Election. Bryan Langley, Assistant City Manager, stated that this item would allow Council to make additional appointments to the committee. Mayor Burroughs nominated Cleve Breedlove, Jim Clark, Jack Thomson, Gerard Hudspeth, Michelle Bradley, Judy Willis, and Brandon McCluskey. Council Member Gregory nominated Linnie McAdams, and Don Edwards. Mayor Pro Tem Kamp nominated Stephen Coffey, Emily White, and Ron Johnson. Council Member King nominated Carol Phillips, Jean Greenlaw, and Nanci Kimmey. Council Member Roden nominated Allison Wing, Russ Stukel, and Anyah Martinez. City of Denton City Council Minutes November 19, 2013 Page 15 Council Member Hawkins nominated Roni Beasley, and Brendan Carroll. Council Member Engelbrecht nominated Royce Freebourn, and Claralynn Barnes. Mayor Pro Tem Kamp nominated Randy Robinson as Chair and Tim Crouch as Co -Chair of the Committee. Council Member King motioned, Council Member Roden seconded to approve the nominations. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. Ordinance No. 2013 -326 C. Consider adoption of an ordinance of the City of Denton, Texas updating impact fees by amending Chapter 26, "Utilities," Section 26 -210 through section 26 -232 of the City of Denton Code of Ordinances; adopting revised land use assumptions and capital improvements plans for water and wastewater impact fees; establishing new service areas for water and wastewater impact fees; establishing new maximum impact fees per service unit and impact fees to be collected; creating schedules for the assessment and collection of impact fees; repealing conflicting ordinances and resolutions; providing for a severability clause; providing for a penalty not to exceed $2,000 for each violation thereof, and providing an effective date. Tim Fisher, Water Utilities Division Manager, stated that this had been presented to Council at a Work Session in October. A public hearing was held on November 5. This ordinance was consistent with direction staff had received at those meetings. Mayor Pro Tem Kamp motioned, Council Member Engelbrecht seconded to adopt the ordinance. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. D. Consider a motion to reconsider adoption of an ordinance regarding a rezoning of approximately 75.3 acres from Neighborhood Residential 2 (NR -2) to a Neighborhood Residential 3 (NR -3) zoning district and give City staff direction regarding same. The subject property is generally located on the south of Ryan Road, north of the Kansas City Southern Railroad, approximately 950 feet east of FM1830 and approximately 800 feet west of Forrest Ridge Road. (Z13 -0006) The Planning and Zoning Commission recommends approval (6 -1). The City Council denied (3 -3). Council Member Engelbrecht asked for a legal interpretation that allowed this to be brought back to Council for re- consideration. City Attorney Anita Burgess stated that this item was considered last week and failed to obtain four affirmative votes in order to pass. The vote was a 3 -3 vote which caused the item to fail. Mayor Burroughs was absent from that meeting. Some of the Council Members had indicated they would like to see this item reconsidered at a subsequent meeting. The riles provide that the item be reconsidered at the next subsequent regular meeting. If the Council desired to City of Denton City Council Minutes November 19, 2013 Page 16 reconsider, legal's recommendation was to direct staff to re- publish the item and bring it back to Council after it had been re- published. Council Member Gregory motioned, Council Member Roden seconded to reconsider adoption of the ordinance. The following individuals spoke regarding this item: Bob Shelton, 2308 Ranch House Drive, spoke in support Thomas Fletcher, 5750 Genesis Court, Frisco, spoke in support Christina Bovinette, 412 Fry Street, spoke in opposition Kelsey Fryman, 903 McCormick Street, spoke in opposition Angel Bravo, 2269 W. Oak, spoke in opposition Tara Linn Hunter, 804 W. Hickory Street, spoke in opposition Matthew Long, 804 W. Hickory Street, spoke in opposition Comment cards in opposition were received from the following: Elise Ridenour, 2044 W. Oak Street Steven Friedson, 2044 W. Oak Street On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. Ordinance No. 2013 -327 E. Consider adoption of an ordinance of the City of Denton, Texas prohibiting parking on both sides of Ponder Avenue from its intersection with Scripture Street to its intersection with Oak Street; providing a repealer clause; providing a savings clause; providing for a penalty not to exceed $500 for violations of this ordinance; providing that violations of this ordinance shall be governed by Chapter 18 of the Code of Ordinances of the City of Denton; and providing for an effective date. Alison Ream, Assistant to the City Manager, stated that this would establish a no parking zone on both sides of Ponder Avenue between Scripture Street and Oak Street. This area was previously marked as a no parking zone. As part of the City's routine maintenance procedure, deteriorating signage was removed and intended to be replaced with new signage. After the original signage was removed, it was determined that the zone was not established by ordinance, so the original signage was removed but not replaced. This ordinance would establish the no parking zone. This type of item would typically come through the Traffic Safety Commission but because it was previously signed as no parking and because of the existing conditions on the street, staff felt that it was appropriate to bring it directly to Council for consideration. Council Member Engelbrecht motioned, Mayor Pro Tem Kamp seconded to adopt the ordinance. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. City of Denton City Council Minutes November 19, 2013 Page 17 6. PUBLIC HEARINGS Ordinance No. 2013 -328 A. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, approving a Specific Use Permit to allow a Basic Utility; a DME electric substation, on approximately 6.21 acres of land within a Neighborhood Residential Mixed Use (NRM[_J) and Neighborhood Residential Mixed Use 12 (NRMU -12) zoning district classification and use designation, located on the south side of East McKinney Street, approximately 1,300 feet east of Mack Drive and 450 west of Springtree Street, within the City of Denton, Denton County, Texas; providing for a penalty in the maximum amount of $2,000.00 for violations thereof, providing for a severability clause and an effective date (513- 0005). The Planning and Zoning Commission recommends approval (6 -0). Brian Locldey, Director of Planning and Development, stated that this was for a Specific Use Permit for a Basic Utility for Denton Municipal Electric. The property was located on the south side of East McKinney Street, approximately 1,300 feet east of Mack Drive and 450 feet west of Springtree Street. The current zoning of the property was a combination of Neighborhood Mixed Use and Neighborhood Residential Mixed Use 12. The applicant was in the process of acquiring an additional 1.13 acre tract needed to constrict the substation. A separate SUP would be required once that tract was acquired. Locldey stated that Subchapter 35.3.4.13.2 of the Development Code stated that SUPS should be issued only if the following conditions had been met. The proposed SUP met the criteria established in Subchapter 6 and conformed to the purpose and intent of the Denton Plan. The proposed SUP facilitates the adequate provision of transportation, water, sewer, schools, parks, and other public requirements and public convenience. Locldey stated that the proposed SUP met the criteria set forth in Subchapter 6 and conformed to the purpose and intent of the Denton Plan in the following areas. Compatibility — properties to the east, south and west were undeveloped. It does not impede normal development — surrounding vacant properties are large enough to allow design flexibility. It provided for adequate utilities — provides enhanced electrical service to surrounding area. Safe driveways and parking — access restricted to authorized personnel. Nuisance prevention — facility will not produce odor, fumes, dust, noise or vibration. Directional lighting — it will directed to the interior of the site and will not be visible from the outside of the substation. Provided sufficient landscaping — it meets the tree code preservation and mitigation requirements as well as the landscaping requirements. He stated that staff had sent twelve notices to property owners within 200 feet of the property and fourteen notices to residents and property owners within 500 feet of the property. Staff did receive on neutral response. The Planning and Zoning Commission recommended approval subject to the following condition — a perimeter masonry wall shall be constricted with a minimum height of ten feet. The Mayor opened the public hearing. No one spoke during the public hearing. City of Denton City Council Minutes November 19, 2013 Page 18 The Mayor closed the public hearing. Council Member Hawkins motioned, Council Member Engelbrecht seconded to adopt the ordinance. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. Ordinance No. 2013 -329 B. Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, providing for an initial district and land use classification of Neighborhood Residential 1 (NR -1) on approximately 239 acres of land located on the east side of Bonnie Brae Street, approximately 3,500 feet south of Vintage Boulevard and 3,500 feet north of Fort Worth Drive (U.S. 377), in the City of Denton, Denton County, Texas; and providing for a penalty in the maximum amount of $2,000.00 for violations thereof, severability clause and an effective date (Z13- 0007). The Planning and Zoning Commission recommends approval (6 -0). Brian Locldey, Director of Planning and Development, stated that this property was annexed into the City in 2010. The property was zoned Rural District 5X (RD -5X), which was not an official zoning district in the Development Code but it was a default classification applied to all property annexed in the City of Denton that were not zoned. This zoning district required a minimum lot area of five acres. At this time the applicant proposed to rezone to NR -1 to develop a single - family house on the 239 acre lot. The proposed zoning was compatible with the existing Future Land Use Element of the Denton Plan. The NR -1 zoning classification would protect the existing neighborhood by limiting incompatible, commercial uses currently allowed by RD -5X and permitting the average lot size for the area. The adjacent properties on the west and east were currently zoned NR -1. Locldey stated that the property was located along Bonnie Brae Street, south of Vintage Boulevard and north of Fort Worth Drive. Staff sent six notices to property owners within 200 feet of the property and eight notices to residents /property owners within 500 feet of the property. Staff had not received any responses to these notices. The Planning and Zoning Commission recommended approval. The Development Review Committee also recommended approval. Council Member Gregory asked whether the applicant had to pay a fee to the City. Bryan Locldey stated that if it was a staff - initiated request, they would not require a fee to be paid to the City. This was not staff initiated request, so they would have to pay a fee to the City. Mayor Burroughs stated that he would really like to see staff use a mechanism that when a property was being annexed the property owner would have the opportunity to use a default zoning that was consistent with the neighboring properties. The Mayor opened the public hearing. No one spoke during the public hearing. The Mayor closed the public hearing. City of Denton City Council Minutes November 19, 2013 Page 19 Mayor Pro Tem Kamp motioned, Council Member Roden seconded to adopt the ordinance. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "aye ", Council Member Engelbrecht "aye ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". Motion carried unanimously. 7. CITIZEN REPORTS These citizen reports were considered at the front of the meeting. A. Review of procedures for addressing the City Council. B. Receive citizen reports from the following: 1. Mark Brady regarding taxi cab licensing. 2. Ed Soph regarding gas well drilling. 3. Carol Soph regarding gas well drilling. 4. Adam Briggle regarding the gas well situation near the Meadows at Hickory Creek on Bonnie Brae and Vintage. 5. Linda Alexander regarding a moratorium on well drilling. 6. Angie Holliday regarding the Vintage neighborhood drilling and fracking. 7. Kelly Higgins regarding gas drilling moratorium. 8. CONCLUDING ITEMS A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council or the public with specific factual information or recitation of policy, or accept a proposal to place the matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open Meetings Act, provide reports about items of community interest regarding which no action will be taken, to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules; an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about an upcoming event organized or sponsored by the governing body; information regarding a social, ceremonial, or community event organized or sponsored by an entity other than the governing body that was attended or is scheduled to be attended by a member of the governing body or an official or employee of the municipality; or an announcement involving an imminent threat to the public health and safety of people in the municipality that has arisen after the posting of the agenda. Mayor Burroughs requested that staff review the requirements for taxi cab licenses and how a misdemeanor might affect that. Council Member Gregory requested a workshop in 2014 to discuss a way of facilitating a default zoning issue. Council Member Gregory asked the City Manager for a staff report on the amount of time and effort it would take to make an interactive map showing gas wells and the distance from an address to a well site. Mayor Burroughs asked if it could also identify a well site that had been vacated. Council Member Engelbrecht asked if the agenda for Friday's meeting had been posted. City of Denton City Council Minutes November 19, 2013 Page 20 Mayor Pro Tem Kamp invited all council members and citizens to the kickoff for the Salvation Army Red Kettle Program. B. Possible Continuation of Closed Meeting under Sections 551.071 - 551.086 of the Texas Open Meetings Act. With no further business, the meeting was adjourned at 9:00 p.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JANE RICHARDSON ASSISTANT CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON CITY COUNCIL November 22, 2013 After determining that a quorum was present, the City Council of the City of Denton, Texas convened in a Special Called Closed Meeting on Friday, November 22, 2013 at 5:30 p.m. in the Council Work Session Room, 215 E. McKinney Street, Denton, Texas. PRESENT: Mayor Burroughs, Mayor Pro Tem Kamp, Council Member Engelbrecht, Council Member Gregory, Council Member King, Council Member Hawkins, Council Member Roden. ABSENT: None. Closed Meeting A. Consultation with Attorney — Under Texas Government Code Section 551.071. Consult with City's attorneys regarding a proposed standstill agreement between and among, the City of Denton, Texas, Eagleridge Operating, LLC, and Eagleridge Energy, LLC, jointly agreeing to temporarily suspend litigation of pending disputes until January 31, 2014, under terms therein specified. The proposed standstill agreement would exclusively constrain Eagleridge's drilling and fracking operations to four previously approved padsite locations, and impose additional interim restrictions upon certain of those sites, during the term of the interim agreement, allowing the parties to continue negotiations towards a more comprehensive settlement of their disputes. Following the completion of the Special Called Closed Meeting, the City Council convened in a Special Called Meeting at 7:08 p.m. to consider the following items. Ordinance No. 2013 -330 A. Consider adoption of an ordinance approving or ratifying a standstill agreement between the City of Denton, Texas and Eagleridge Operating, LLC until midnight on November 22, 2013 with regard to certain disputes and issues over gas drilling in the city to allow the parties an opportunity to engage in global settlement negotiations as it concerns unresolved issues between them; and providing for an effective date. Mayor Burroughs stated that several citizens had requested to speak. The following individuals spoke: Michael Briggs, 2311 Houston Place, spoke in opposition Joe Mulroy, 704 Lafayette, spoke in support, suggested global mediation Lee Allison, 4401 N. I -35, spoke in support, suggested Council look into developing a gas well development or drilling district LaShawn Williams, 3408 Hornbeam Street, spoke in opposition Cory Littlehales, 3316 Hornbeam Street, spoke in opposition Deb Conte, 2106 N. Bell, spoke in opposition Comment cards in opposition were received from: Elise Ridenour, 2044 W. Oak Alyse Ogletree, 3401 Buckthorn City of Denton City Council Minutes November 22, 2013 Page 2 Steven Friedson, 2044 W. Oak Oren Thomas, 1841 S. Bonnie Brae Mayor Burroughs thanked Council Members Roden and King for their work with the Legal Department on the standstill agreement. He stated that the agreement was needed because EagleRidge was set to drill more wells in the city and the city needed to have the negotiations to preserve what little protection it had in place. Council Member Engelbrecht stated that the energy companies used to operate in the back 40 and now they had chosen to come into neighborhoods. He stated the residents were inclined to let the courts decide, and he tended to agree with them. Mayor Pro Tem Kamp motioned, Council Member King seconded to approve the substitute ordinance and agreement. On roll call vote, Council Member King "aye ", Council Member Hawkins "aye ", Council Member Gregory "nay ", Council Member Engelbrecht "nay ", Council Member Roden "aye ", Mayor Pro Tem Kamp "aye ", and Mayor Burroughs "aye ". B. Consider adoption of an ordinance authorizing the City Manager or his designee to execute a temporary access permit (the "Permit "), by and between the City of Denton, Texas and EagleRidge Operating, LLC, a Texas limited liability company ( "EagleRidge "), granting a license to EagleRidge to temporarily access certain City owned lands located in the James Edmonson Survey, Abstract Number 401 and the James L. Harris Survey, Abstract Number 555, located generally 1,800 feet southwest of the intersection of South Bonnie Brae and Vintage Boulevard, City of Denton, Denton County, Texas, in connection with the overland transport of water for gas well operations; and providing an effective date. This item was withdrawn from consideration. With no further business, the meeting was adjourned at 7:58 p.m. MARK A. BURROUGHS MAYOR CITY OF DENTON, TEXAS JANE RICHARDSON ASSISTANT CITY SECRETARY CITY OF DENTON, TEXAS AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Economic Development ACM: John Cabrales Jr. SUBJECT Consider adoption of an Ordinance amending Ordinance No. 2003 -258, as amended by Ordinance 2011 -042, relating to the Economic Development Partnership Board ( "the Board ") to add to the membership of the Board; repealing all conflicting ordinances and portions thereof, and providing an effective date. BACKGROUND The Economic Development Partnership (EDP) Board was established, following the Economic Development Plan recommendations from TIP Strategies, an Austin -based business and economic development consulting firm, on August 19, 2003, by Ordinance No. 2003 -258. The EDP Board is responsible for implementation of the four project areas outlined in the TIP Strategies report, making recommendations regarding both City and Chamber economic development annual action plans and budgets, and reviewing prospect incentive packages and making recommendations to City Council. The EDP Board Ordinance was amended to include an aviation representative on March 1, 2011, by Ordinance No. 2011 -042. The EDP Board directed staff to modify the EDP membership to include a Denton Independent School District (DISD) representative, as an Ex- Officio member, when discussing board nominations and reappointments at the July 9, 2013, Board meeting. Staff has included the following addition to Ordinance No. 2011 -042 under Article IX, Section 2 -251 C (7): The City Manager, the President of the Chamber, and the Superintendent of the Denton Independent School District will serve as ad hoc non - voting members of the Board. PRIOR ACTION/REVIEW The EDP Board advised staff to amend the membership to include a Denton Independent School District (DISD) representative from their governing body as an Ex- Officio member at the July 9, 2013, Board meeting. No formal vote was taken. The City Council adopted Ordinance No. 2003 -258 establishing the EDP Board on August 19, 2003 and adopted the first Amendment and replacement of the Ordinance on March 1, 2011, by Ordinance No. 2011 -042. Agenda Information Sheet January 7, 2014 Page 2 FISCAL INFORMATION There will be no fiscal impact as a result of this Amendment. The proposed ordinance documents the addition of an Ex- Officio member to the Board and repeals all conflicting ordinances. Prepared by: Erica Sullivan, Economic Development Analyst Economic Development Department Respectfully submitted, Aimee Bissett, Director Economic Development Department -2- IlcodadWepartmentsliegallour documentslordinances1131edp amendment.doc ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE NO. 2003 -258, AS AMENDED BY ORDINANCE 2011 -042, RELATING TO THE ECONOMIC DEVELOPMENT PARTNERSHIP BOARD ( "THE BOARD ") TO ADD TO THE MEMBERSHIP OF THE BOARD; REPEALING ALL CONFLICTING ORDINANCES AND PORTIONS THEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas has determined that due to the impact that economic development has upon the school district, it is in the public interest to modify the membership of the Economic Development Partnership Board to include participation of the Denton Independent School District; and WHEREAS, the Economic Development Partnership Board has a proven track record of effectiveness in the City of Denton with regard to reviewing and making recommendations to the City Council concerning economic development within the community; and WHEREAS, the Economic Development Partnership Board has proven particularly adept in the recruitment of business and development in the community; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Article IX. Sec. 2 -251 of Ordinance No. 2003 -258 is hereby amended as follows: ARTICLE IX. ECONOMIC DEVELOPMENT PARTNERSHIP BOARD See. 2 -251. Creation, Members, Qualifications, and Tenure. A. There is hereby created a City of Denton board entitled the Denton Economic Development Partnership Board (the `Board "). The Board shall consist of nine members. The seven board members currently serving shall serve as originally appointed. The member, as described in Sec. 2 -251 C.(5) below, shall be appointed to serve until the City Council shall make its 2012 board appointments. The member, as described in Sec. 2 -251 C.(6) below, shall be appointed to serve until the City Council shall make its 2011 board appointments. Thereafter, five members shall be appointed for a two -year term in the even numbered years and four members shall be appointed for a two -year term in the odd numbered years. No member shall serve more than three consecutive terms except for the President of the University of North Texas ( "UNT "), or his designee, who may serve unlimited terms. B. The Board members shall be appointed by the City Council and shall serve at the City Council's pleasure. To aid the City Council in making appointments.to the Board, the City Council will appoint two City Council members and one Chamber of Commerce ( "Chamber ") member to act as a nominating committee (the "Committee "). The Committee members are qualified for appointment to the Board. The Committee will solicit nominations, contact nominees to relate duties and responsibilities and to confirm willingness to serve. The Board will solicit recommendations from the Chamber Board of Directors and the President of UNT. After evaluating the recommended nominees the Committee will present to the City Council a slate of Board nominees for City Council approval. C. Notwithstanding anything contained herein to the contrary the membership make- up of the Board shall consist of the following 1. Two members of the Board shall be City Council members at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the City Council after the original appointment as long as they continuously serve throughout the three terms. They must be residents of the City of Denton. 2. Two members of the Board shall be members of the Chamber Board of Directors ("Chamber Board ") at the time of their appointment to their original term. They may serve out all three terms, even if they are no longer members of the Chamber Board after the original appointment as long as they continuously serve throughout the three terms. They must reside or work in the City of Denton. The Chamber Board will recommend the two nominees for consideration by the Committee and approval by the City Council. 3. Two members will be, or be employed by, a top twenty City of Denton ad valorem or sales tax payer. Such members must reside or work in the City of Denton. 4. One member will be the President of UNT or a UNT faculty or staff member designated by the President. Such member need not reside in the City of Denton and is not restricted to the three term limits. However, such member must be appointed by the City Council for each term. 5. One member will have knowledge or experience in general aviation- related matters and shall have no financial interest in matters at the Denton Municipal Airport. This member must reside or work in the City of Denton. 6. One member will be a citizen of the City of Denton who, in the discretion of the City Council, has specific knowledge skills and abilities to assist in all or any one of the functions and responsibilities of the Economic Development Partnership Board. 7. The City Manager, the President of the Chamber, and the Superintendent of the Denton Independent School District will serve as ad hoc non - voting members of the Board. Page 2 SECTION 2. Sec. 2 -254 is amended to add a section F. as follows: See. 2 -254. Duties and Responsibilities of the Board. F. The Board will review, consider and make recommendations to the Denton City Council regarding Airport Branding and Marketing to support the implementation of the Denton Airport 2010 Business Plan. The Board will review, consider and make recommendations to the Denton City Council regarding Denton Municipal Airport incentive polices, as assigned by the City Council or requested by the City Manager, and will act as a recommending body to the City Council for specific airport economic development incentives, as assigned by the City Council or requested by the City Manager and permitted by City and State law. SECTION 3. This Ordinance amends Ordinance No. 2003 -258 and Ordinance 2011 -042 supercedes and repeals any provision of that ordinance, or any other, in conflict herewith. SECTION 4. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Page 3 MARK A. BURROUGHS, MAYOR AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire (1) fee simple to a 7393 acre tract (the " Mayhill Tract "); (11) fee simple to a 4.508 acre tract (the "Landfill Tract "); and (111) a Slope Easement (herein so called), encumbering a 0.804 acre tract, each affected tract located in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached hereto and made a part hereof, located generally in the 1400 block of South Mayhill Road (the "Property Interests "), for (A) as concerns the Mayhill tract and the Slope Easement, the public use of expanding and improving Mayhill Road, a municipal street and roadway; and (B) as concerns the Landfill Tract, for the public use of expanding and improving the City of Denton Landfill, a permitted municipal Solid Waste disposal facility; authorizing the City Manager or his designee to make an offer to (1) Cynthia Bond Ables, John Henry Bond, 111, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. A /K /A Joseph Pierre Doye, Jr. Patricia Ann Doye A /K /A Patricia Doye Kendall (collectively, the "Owner "); (2) successors in interest to the owner to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of Seven Hundred Eighty Five Thousand Thirty Six Dollars and No Cents ($785,036.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached hereto and made a part hereof as Exhibit "B "; authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. ( Mayhill Road Widening and Improvements project - Bond et al - Parcel M134) BACKGROUND The City Council considered and approved an initial offer to purchase Property Interests on July 16, 2013 for the purchase price of $785,036.00. (Ordinance 2013 -179) That initial offer to purchase land rights was extended to Owner late August, 2013, via certified mail. There have not been any substantive negotiations to date with any of the parties involved. Approval of the ordinance under consideration authorizes staff to extend a Final Offer to Owner for the captioned land rights necessary for the road widening project. Agenda Information Sheet January 7, 2014 Page 2 OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Public Utilities Board on June 24, 2013 recommended approval of the acquisition of the 4.508 acre Municipal Use Tract (6 -0). City Council July 16, 2013 (Offer to Purchase Ordinance 2013 -179) FISCAL INFORMATION The 7393 acre fee tract and the 0.804 acre slope easement tract, both associated with the Mayhill Road Widening and Improvements project, are being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds ($625,270.00) The 4.508 acre Municipal Use tract is to be funded by Solid Waste capital project bonds allocated for real property purchases: 6605631594. 1316530100 ($159,766.00) The total purchase offer price being $785,036.00 plus closing costs, as set out in the Agreement. EXHIBITS 1. Location Map 2. Ordinance 3. PUB Minutes June 24, 2013 Respectfully submitted, Paul Williamson, Real Estate Manager Location Map BOND Parcel M134 EXHIBIT 1 attachment to AIS Mayhill Road Widening and Improvements m ly SPENCER ROAD ly 0 Q PECAN CREEK WATER RECLAMATION PLANT N J _J i- Q D Bond Property Location w V z m M w 0 QUA/L CRE ° EK m o Y z p CITY OF DENTON LANDFILL o 0 n C >- DSONW 00 QUAIL CREEK ROAD EDWARDS Ld M LEAFY BLOOM BLVD C NARY COUR 0 Q 0 LEAFY O CAN CREEK M.H. 0 Q J -' BL UE JA o Q� COLOR400 S < PAR DR' o V m 0 Q DENTON REGI 0 MEDICAL CENTER Q ANDREWS CORP. 0 Location Map BOND Parcel M134 EXHIBIT 1 attachment to AIS Mayhill Road Widening and Improvements EXHIBIT 2 attachment to AIS ORDINANCE NO. 2014- AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE (I) FEE SIMPLE TO A 7393 ACRE TRACT (THE " MAYHILL TRACT "); (I1) FEE SIMPLE TO A 4.508 ACRE TRACT (THE "LANDFILL TRACT "); AND (III) A SLOPE EASEMENT (HEREIN SO CALLED), ENCUMBERING A 0.804 ACRE TRACT, EACH AFFECTED TRACT LOCATED IN THE JOHN B. BRANDON SURVEY, ABSTRACT NUMBER 1515, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED ON EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF, LOCATED GENERALLY IN THE 1400 BLOCK OF SOUTH MAYHILL ROAD (THE "PROPERTY INTERESTS "), FOR (A) AS CONCERNS THE MAYHILL TRACT AND THE SLOPE EASEMENT, THE PUBLIC USE OF EXPANDING AND IMPROVING MAYHILL ROAD, A MUNICIPAL STREET AND ROADWAY; AND (B) AS CONCERNS THE LANDFILL TRACT, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING THE CITY OF DENTON LANDFILL, A PERMITTED MUNICIPAL SOLID WASTE DISPOSAL FACILITY; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO (1) CYNTHIA BOND ABLES, JOHN HENRY BOND, III, JEAN DOYE STOKES AND WAYNE STOKES, A MARRIED COUPLE, JOE P. DOPE, JR. A /K /A JOSEPH PIERRE DOPE, JR. AND PATRICIA ANN DOYE A /K /A PATRICIA DOYE KENDALL (COLLECTIVELY, THE "OWNER "); (2) SUCCESSORS IN INTEREST TO THE OWNER TO THE PROPERTY INTERESTS; OR (3) ANY OTHER OWNERS OF THE PROPERTY INTERESTS, AS MAY BE APPLICABLE, TO PURCHASE THE PROPERTY INTERESTS FOR THE PURCHASE PRICE OF SEVEN HUNDRED EIGHTY FIVE THOUSAND THIRTY SIX DOLLARS AND NO CENTS ($785,036.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT B "; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING RELOCATION EXPENDITURES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton made an initial offer to the Owner to purchase the Property Interests on or before August 30, 2013, pursuant to Ordinance No. 2013 -179, passed and approved by the City Council of the City of Denton on July 16, 2013; WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Council finds that a public use and necessity exists, and that the public welfare and convenience require the acquisition of the Property Interests by the City of Denton, Texas (the "City "). The City Council hereby finds and determines that the acquisition of (a) the Mayhill Tract and the Slope Easement are necessary for public use to provide street and roadway expansion and improvements of Mayhill Road; and (b) the Landfill Tract is necessary for public use to provide for expansion and improvement of the City of Denton landfill, a permitted municipal solid waste disposal facility, each to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The City Manager, or his designee, is hereby authorized to make the final offer to purchase the Property Interests to (i) the Owner; (ii) any and all of Owner's successors in interest to the Property Interests; or (iii) any other parties who may own any interest in the Property Interests, as may be applicable. SECTION 3. The City Manager, or his designee, is hereby authorized to execute for and behalf of the City (a) the Agreement, by and between the City and Owner, or other owners of the Property Interests, as applicable, in the form attached hereto and made a part hereof as Exhibit "B ", with a purchase price of $785,036.00 and other consideration, plus costs and expenses, all as prescribed in the Agreement; and (b) any other documents necessary for closing the transaction contemplated by the Agreement. SECTION 4. The City Manager is authorized to make expenditures in accordance with (a) the terms of the Agreement; and (b) Ordinance No. 2012 -073, dated April 17, 2012, pertaining to relocation expenses and advisory services. SECTION 5. The City Manager, or his designee, is directed, by certified mail, return receipt requested, to disclose to Owner, or other owners of the Property Interests, as applicable, any and all appraisal reports produced or acquired by the City relating specifically to the Owner's property and prepared in the 10 years preceding the date of the offer made by the Agreement. SECTION 6. The offer to Owner, or other owners of the Property Interests, as applicable, shall be made in accordance with all applicable law. SECTION 7. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 8. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., Inc. .ProF�ess�oz�aX �.arzd Survc'yrors P.O. Box 54 --- Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 EXHIBIT "A" MAYHILL ROAD PARCEL M134 7.393 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30989, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004- 30988, O.P.R.D.C.T., and being more particularly described as follows: COMMENCING at a "PK" Nail set for the southeast comer of said Bond tract (2004- 30989) and the northeast corner of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being in Mayhill Road; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 82.76 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for the POINT OF BEGINNING; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004 - 30989) and the north line of said Haggard tract, a distance of 135.32 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Bond tract (2004- 30989), a distance of 10.56 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tracts, a distance of 2312.85 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 2068.18 feet; THENCE with said curve to the right, over and across said Bond tract (2004 - 30988), having a central angle of 01 degrees 46 minutes 54 seconds, whose chord bears North 03 degrees 46 minutes 00 seconds East a distance of 64.31 feet, having an arc length of 64.31 feet to a "PK" Nail set for corner in Spencer Road, being in the north line of said Bond tract (2004- 30989) and the south line of a tract of land described by deed to Haeussler Properties, recorded under Instrument Number 2003 - 205747, O.P.R.D.C.T.; THENCE North 89 degrees 43 minutes 23 seconds East, with the north line of said Bond tract (2004- 30989) and the south line of said Haeussler Properties tract, a distance of 135.54 feet to a "PK" Nail set for corner in Spencer Road, same point being the beginning of a non - tangent curve to the left, having a radius of 1932.50 feet; (continued) C1107131 -I9 Parcel M 134 EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., Inc. �'xofesszoxzal JG�rxtc3 Sxxx-veyoxs P.O. Box 54 --- Lewisville, Texas 75067 Otlice: (972) 221 - 9439 --- Fax: (972) 221 -4675 THENCE with said curve to the left, over and across said Bond tract (2004 - 30989), through a central angle of 02 degrees 07 minutes 41 seconds, whose chord bears South 03 degrees 56 minutes 24 seconds West a distance of 71.77 feet, having an arc length of 71.78 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 02 degrees 52 minutes 33 seconds West, over and across said Bond tracts, a distance of 2311.63 feet to the POINT OF BEGINNING and containing 7.393 acres of land, of which 0.109 acres lie within the existing Spencer Road and Mayhill Road. I �' Q``- �► -c� e�lfl 2 .. ..i . ......................... DOUGLAS L. ARTHUR ............................. Q .4357 .Pv. .. alr ss o ?. •off St1R�� C1107131 -19 Parcel M134 EXHIBIT "A" - to Ordinance (Property Interests) A bs:tra.cf Nuiuh.er 927 (Variable Width ROW) t 2" I.P.r. SPENCER ROAD "PKd Nat? (C.M.) et N88 56'21 "W L—t— ---- — 155.59' S8 43'23 "W R. , 1 76.43' I 1 New Right -of -way 7.237 ac. (315,266 sq. ft.) ( I Gas Easement 0.047 ac. (2,027 sq. ft.) Existing implied Dedication 0.109 ac. (4,758 sq. ft.) 7.393 Acres (322,051 sq. ft.) �I Parcel M134 01' Haeussler Properties Instr. No. 2003- 205747 I "PK'l Nail L4 —sit ��3f''�s �� c' - ,o4 ejI'll ��'0 it OW1,`��l �1 John Henry Bond, Jr et. at, Instr. No.. 2004 -30989 Proposed Variable Width Slope Easemen S87 52'49 "W S85'35'59 "W 1672.63' 200.21 _ _�__ 2" .P.F. F.C.P. _ (C.M.) tI fl I 11 1 11 I 1 1 1# If 1 ILIi Implied Dedication Existing 0 N 400 0 200 400 SCALE: V = 400' 15' Gas Easement Bearings shown hereon based on the City of lnsir. No. 2008 -80418 Denton GIS Network. Instr. No. 2011 -11316 9 ra OR W0 v NOTES: • I.P.F. = Iron Pipe Found • I.R.F. =1/2" Iron Rod Found • I.R.S. = 1/2" Iron Rod Set with N01 05021 "E yellow cap stamped "Arthur L4 Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 316, Pg. 8 & Vol. 336, Pg. 182 do not affect this tract to the best of my knowledge. Blanket easements recorded in Vol, 354, Pg. 401 & Vol. 520, Pg. 495 include this oti �4 A�ttTN LINE TABLE LI S87 05249 "W 82.76' L2 S8r52'49 "W 135.32' L3 N01 05021 "E 10.56' L4 N89 °4323 "E 135.54' John Henry Bond, Jr et. al. Instr. No. 2004 -30988 CURVE TABLE # Radius Length Delta I Chord CI 2068.18' 164.3 1' 101 °4654" 1 NO3 °46'00 "E 64.31' C2 1932.50' 1 71-78'j 02 00741" 1 S03 05624 "W 71.77' == i� t -PK" Nail I.R.S. I.R. Set David .1 oaa;1� S r :ey, -�bsts k"�c,t INTunt3 eex 646 1 JP. lJ �� ' ...fi90 E9 . Mason A Haggard & wife, Wilma Haggard # �� su ty Vol. 337, Pg. 430 (remainder) Mayhill Road Parcel M134 7.393 acres in the John B. Brandon Survey, Abstract Number 1515 City of Denton Denton County, Texas .. 2012-- SURVEYORSCER7MCATION: no undersigned dory hereby certify to Title Resources (GA No. 102630 & 102640) that this survey was this day made on the ground of the property legally described hereon and Is correct, and to the best of mykowlcdg , there are no visible discrepancies, conflicts, shortages in erns, boundary Lino conflicts, tneroaehmonts, overlapping of improvements, easements or rights ofway that I have been advised ofoxcept as shown hereon. A rthur Surveying Co., Inc. .Pr fessionat I and StvrVCYO= P.O.Box 54 — Lewisville, Texas 76067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1988 EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., I nc. �°xofesszon.a�t �.�.nd Sux-veyoz~s P.O. Box 54 — Lewisville, Texas 75067 011-ice: (972) 221 -9439 •- Fax: (972) 221 -4675 EXHIBIT "A" MUNICIPAL USE TRACT 4.508 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30989, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30988, O.P.R.D.C.T., and being more particularly described as follows: BEGINNING at a "PK" Nail set for the southeast corner of said Bond tract (2004 - 30989) and the northeast corner of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being in Mayhill Road; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 82.76 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tracts, a distance of 2311.63 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner at the beginning of a curve to the right, having a radius of 1932.50 feet; THENCE over and across said Bond tract (2004- 30989), with said curve to the right, through a central angle of 02 degrees 07 minutes 41 seconds, whose chord bears North 03 degrees 56 minutes 24 seconds East a distance of 71.77 feet, having an arc length of 71.78 feet to a "PK" Nail set for corner in the north line of said Bond tract (2004- 30989) and the south line of a tract of land described by deed to Haeussler Properties, recorded under Instrument Number 2003 - 205747, O.P.R.D.C.T., same point being in Spencer Road; THENCE North 89 degrees 43 minutes 23 seconds East, with the north line of said Bond tract (2004- 30989) and the south line of said Haeussler Properties tract, a distance of 81.24 feet to a "PK' Nail set for the northeast corner of said Bond tract (2004 - 30989), same point being in the existing Mayhill Road; THENCE South 02 degrees 52 minutes 34 seconds West, with the east line of said Bond tracts, a distance of 2380.65 feet to the POINT OF BEGINNING and containing 4.508 acres of land, of which 1.660 acres lie within existing Mayhill Road and Spencer Road. OF .t �.4r�.i9•`; .JOHN 1v1 RIiS .. i . ....rF33�... St1Fi�,� -� C1107131 -19 Parcel M134 Municipal Use tract EXHIBIT "A" - to Ordinance (Property Interests) M. E. P. & P. I2. R. Co. Survey Abstract Number 927 (Variable Width ROW) " I.P.F. SPENCER ROAD ' "PK" Noit L2 — Set 0 - --}- -- — — — — — — —�— — — —C1 ' N88 56'21 "W (� _-- —= = 155.59' S89'43 23 "W R. I 76.43' New Municipal Use Tract 2.042 ac. (88,949 sq. ft.) Existing Implied Dedication 1.660 ac. (72,289 sq. ft.) Gas Easement 0.806 ac. (35,117 sq. ft.) .508 Acres (196,355 sq. ft.) I t� Municipal Use Tract �C; 1 i, John Henry Bond, Jr et. al. Instr. No. 2004 -30989 I S87'5 '49 "W S85'35'59 "W 167 200.21 - 2" .P. F. F.C.P. (C.M.) David Bough Survey, Abstract 1 I t , 1 1 i I 1 i Haeussler Properties Instr. No. 2003 - 205747 C" Noll Set Proposed ROW Parcel M134 Dedication Existing Fence 15' Gas Easement Instr. No. 2008 -80418 Instr. No. 2011 -11316 rl A N 400 0 200 400 SCALE: 1" = 400' Bearings shown hereon based on the City of Denton GIs Network. NOTES: • I.P.F. = Iron Pipe Found • I.R.F. = 112" Iron Rod Found • I.R.S. = 112" Iron Rod Set with yellow cap stamped "Arthur 3 Surveying Company 0 " ��y • All improvements not shown hereon. tW a • Easements recorded in Vol. 316, Pg. 8 & Vol. 336, Pg. 182 do not affect this tract '3 to the best of my knowledge, e'© Blanket easements recorded in Vol. 354, Pg. 401 & Vol. 520, Pg. 495 include this tract. 1.4 . bpp 4�C Existing Residence LINE TABLE LI S87a5249 "W 82.76' L2 N8904323 "E 81.24' John Henry Bond, Jr et, al. Instr. No. 2004 -30988 CURVE TABLE PK" Nail I.R.S. LPI Set Number 646 Mason A. Haggard & wife, Wilma Haggard Vol. 337, PR. 430 (remainder) Municipal Use Tract 4.508 acres in the John B. Brandon Survey, Abstract Number 1515 City of Denton Denton County, Texas --2012-- ��JflHN M. R1�SSEl.I.. t -� -I, ^...5305.... ...� ' N ot tr SURVEYORSCERTHICA77ON: V , The undersigned does hcrrby certify to Title \ \" Resources, (G.F. No. 102630 & 102640) that this survey was this day made on the ground of the property legally described hereon and is tor=t, and to the best ofmyknowledge, there are no visible discrepancies, conflicts, shortages in area, boundary line coafllcta, encroachments, overtappingat improvements, easements orrightsofway that I have been advised of except as shown hereon. A rthur Surveying Co., Inc. PitoPcssianel Laud Survteyv" P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., Inc. JProf�ssxon�.I wand Sxxrveyors P.O. Box 54 — Lewisville, Texas 75067 OtTce: (972) 221 -9439 • Fa.-,:,: (972) 221 -4675 EXHIBIT "A" MAYHILL ROAD SLOPE EASEMENT 0.804 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30989, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30988, O.P.R.D.C.T., and being more particularly described as follows: COMMENCING at a "PK' Nail set for the southeast corner of said Bond tract (2004 - 30989) and the northeast corner of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being in Mayhill Road; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 218.08 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for the POINT OF BEGINNING; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 10.02 feet to a point for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Bond tract (2004- 30989), a distance of 11.35 feet to a point for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tracts, a distance of 834.81 feet to a point for corner; THENCE North 87 degrees 07 minutes 27 seconds West, over and across said Bond tract (2004- 30989), a distance of 5.00 feet to a point for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tract (2004- 30989), a distance of 1144.51 feet to a point for comer; THENCE North 00 degrees 22 minutes 33 seconds East, over and across said Bond tract (2004- 30989), a distance of 396.47 feet to a point for corner in the north line of said Bond tract (2004- 30989) and the south line of a tract of land described by deed to Haeussler Properties, recorded under Instrument Number 2003 - 205747, O.P.R.D.C.T., same point being in Spencer Road; THENCE North 89 degrees 43 minutes 23 seconds East, with the north line of said Bond tract (2004- 30989) and the south line of said Haeussler Properties tract, a distance of 33.34 feet to a "PK" Nail set for corner in Spencer Road, same point being the beginning of a non - tangent curve to the left, having a radius of 2068.18 feet; (continued) C1107131 -19 Parcel M134 Slope Easement EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., Inc. .g'rofesszoxia�T %azcd Sux-v�,yox-s P.O. Box 54 -- Lewisville, Texas 75067 Oilice: (972) 221 -9439 — Fax: (972) 221 -4675 THENCE with said curve to the left, over and across said Bond tract (2004- 30989), through a central angle of 01 degrees 46 minutes 54 seconds, whose chord bears South 03 degrees 46 minutes 00 seconds West a distance of 64.31 feet, having an arc length of 64.31 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 02 degrees 52 minutes 33 seconds West, over and across said Bond tracts, a distance of 2312.85 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 01 degrees 50 minutes 21 seconds West, over and across said Bond tract (2004- 30989), a distance of 10.56 feet to the POINT OF BEGINNING and containing 0.804 acres of land. ,)HN M. Ri.'.SciL_' t • �G 15��. i i C1107131 -19 Parcel M134 Slope Easement EXHIBIT "All - to Ordinance (Property Interests) M. E. P. & P. R. R. Co. Survey Abstract Number 927 J (Variable Width ROW) t " I.P.F. SPENCER ROAD ' L5 o ---+ -- - - - - - - �-- - N88'56'21 "W SS 4323 "W 155.59' 1 76.43' I � oMu z 11 0.804 Acre (Slope Easement (35,041 sq. ft.) 10 �N John Henry Bond, Jr PV) et. al. N Instr. No. 2004 -30989 i4 M Haeussler Properties -+— �--- Instr. No. 2003 - 205747 N1 S87'52'49 "W S85'35'59 "W 200.21' 1672.63' L3 — 2" P.F. F.C.P. L2 (ciu) 10.02' Haeussler Properties -+— �--- Instr. No. 2003 - 205747 N1 P.4 C-- -C4 1 �. j Existing Residence Ll S87e5249 "W 218.08' suvey was this day made on theground ofthe L2 Proposed ROW 10.02' i Parcel M134 400 0 200 400 Existing L4 Fence SCALE: 1" =400' 115' Gas Easement Bearings shown hereon based on the City of Instr. No. 2008 -80418 I Denton GIS Network. Instr. No. 2011 -11316 SOI °5021 "W NOTES: I.P.F. = Iron Pipe Found • I.R.F. = I/2" Iron Rod Found • I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. 0 • Easements recorded in Vol. 316, Pg. 8 & I1� W Vol. 336, Pg. 182 do not affect this tract i QQ to the best of my knowledge. Blanket easements recorded in Vol. 354, 377 o Pg. 401 & Vol. 520, Pg. 495 include this tract. W A , rn� �� LINE TABLE P.4 C-- -C4 1 �. j Existing Residence Ll S87e5249 "W 218.08' suvey was this day made on theground ofthe L2 S87e5249 "W 10.02' L3 N01 °50'21 "E 11.35' L4 N87e07'27 "W 5.00' LS I N89 °4323 "E 33.34' I L61 SOI °5021 "W 1 10.56' John Henry Bond, Jr et, al. Instr. No. 2004 -30988 l+ CURVE TABLE 1 # I Radius Lenjzthl Delta I Chord l ( Cl 1 2068.18' 64.31' 101"4654" SO3 °46'00 "W 64.31' 1� P. 0. C.1 A co .............. .. . t PK" Noll JOW M; P!'SSE=L! • Set ...... 5977« v r fl Survey, Number 646 1 � g f David Tough y, Mason A. Haggard & wife, Wilma Haggard 0 VOL 337, Pg. 430 (remainder) I Slope Easement Ma .ill .Road Project 0.804 acres in the John B. Brandon Survey, Abstract Number 1515 City of Denton Denton County, Texas --2012-- SURVEYORS CERMCATTON: 73e undersigned does b=by certify to 7yt10 Resources (G-F. No. 102630 & 102640) that this O suvey was this day made on theground ofthe v property legally described hereon and is correct, and / 1 a to the best ofmy knowledge, there arc n0 visible Q O discrepancies, conffietR shortages in area, boundary llac coaff eb, encroachments, overlapping of improvernents, easements orrights of way that I have been advised ofexcept as sbown bereoa rthur Surveying Co., Inc. .prto&sslional Land Surveyors P.0.13ox 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 EXHIBIT "B" TO ORDINANCE PURCHASE AGREEMENT NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. THIS PURCHASE AGREEMENT (the "Agreement ") is dated , 2014, but effective as of the date provided below, between Cynthia Bond Ables, John Henry Bond, III, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. a/k/a Joseph Pierre Doye Jr. and Patricia Ann Doye a/k/a Patricia Doye Kendall (referred to collectively herein as "Owner ") and the City of Denton, Texas ( "City "). WITNESSETH: WHEREAS, Cynthia Bond Ables, John Henry Bond, III, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. a/k/a Joseph Pierre Doye Jr. and Patricia Ann Doye a/k/a Patricia Doye Kendall are the Owner of a tract of land (the "Land ") in the John B. Brandon Survey, Abstract Number 1515, Denton County, Texas, being affected by the public improvement projects (i) called the Mayhill Road Widening and Improvements Project ( "Mayhill Project "); and (ii) related to the expansion and improvement of the City of Denton Landfill, a permitted municipal solid waste disposal facility (the "Landfill Project ") (the Mayhill Project and the Landfill Project are collectively referred to herein as the "Projects "); WHEREAS, City is in need of certain (i) fee simple lands, being a part of the Land; and (ii) an easement, being a part of and encumbering the Land, related to the Projects; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Projects; NOW, THEREFORE, for Ten and No /100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City (i) a Special Warranty Deed (the "Mayhill Deed "), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Mayhill Deed, and other interests as prescribed therein (the "Mayhill Fee Lands "), the Mayhill Deed being attached hereto as Attachment 1 and made a part hereof, related to the Mayhill Project; (ii) a Special Warranty Deed (the "Landfill Deed "), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B ", to that certain Landfill Deed, and other interests as prescribed therein (the "Landfill Lands ") (the Mayhill Lands and the Landfill Lands are collectively referred to herein as the "Fee Lands "), the Landfill Deed being attached hereto as Attachment 2 and made a part hereof, related to the Landfill Project (the Mayhill Deed and the Landfill Deed are collectively referred to herein as the "Special Warranty Deeds "); and (iii) a Slope Easement (the "Easement "), in, along, upon, under, over and across the tracts of land being described in Exhibit "A" and depicted in Exhibit "B ", to that certain Slope Easement (the "Easement Lands "), the Easement being attached hereto as Attachment 3 and made a part hereof, for slope purposes, as more particularly described therein, related to the Mayhill Project. The (i) Special Warranty Deeds shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 1" and "Attachment 2 ", respectively; and (ii) the Slope Easement shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 3" (the Fee Lands and the Easement are collectively referred to herein as the "Property "). B. Owner, subject to the limitation of such reservation made herein, shall reserve, for themselves, 2 their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, their heirs, devisees, successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. As consideration for the granting and conveying of the Property to the City, the City shall pay jointly to Owner at Closing the sum of Seven Hundred Eighty Five Thousand Thirty Six and No /100 Dollars ($785,036.00). The monetary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation ". 3. The Owner shall convey and grant to the City the Property free and clear of all debts, liens and other encumbrances (the "Encumbrances "). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the 3 Encumbrances and other curative efforts affecting the Property, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4. Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the Project, including without limitation, any damage to or diminution in the value of the remainder of Owner's property caused by, incident to, or related to the Project and /or the transactions contemplated by this Agreement, value of, damage to and /or costs of repair, replacement and /or relocation of any improvements, turf, landscape, vegetation, or any other structure or facility of any kind within the Easement Lands, interference with Owner's activities on the Easement Lands or other property interests of Owner caused by or related to activities on the Fee Lands related to the Project and /or activities within the scope of the rights granted by the Easement, whether accruing now or hereafter, and Owner hereby releases for themselves, their heirs, devisees, successors and assigns, the City, it's officers, employees, elected officials, agents and contractors from and against any and all claims they may have now or in the future, related to the herein described matters, events and /or damages. 5. The Closing (herein so called) shall occur in and through the office of Title Resources, LLC, 525 South Loop 288, Suite 125, Denton, Texas, 76205 ( "Title Company "), with said Title Company acting as escrow agent, on the date which is 180 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ( "Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. 4 6. The stipulated Total Monetary Compensation amount shall be paid by the City at Closing to the Owner through the Title Company. Ad valorem taxes relating to the Fee Lands for the calendar year in which Closing shall occur shall be prorated between Owner and City as of the Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Fee Lands for the preceding calendar year, and shall be readjusted in cash as soon as the amount of taxes levied against the Fee Lands for the calendar year in which Closing shall occur is known. The result of such proration is that the Owner shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the Closing Date) and City shall pay for those taxes attributable to the period commencing as of the Closing Date. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. 7. The date on which this Agreement is executed by the Owner shall be the "Effective Date" of this Agreement. 8.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 9. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE 61 SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 10. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands or Easement Lands; or (ii) enter into any Agreement that will be binding upon the Fee Lands or the Easement Lands, or upon the Owner with respect to the Fee Lands or the Easement Lands, after the date of Closing. 11. Owner, excepting Jean Doye Stokes and Wayne Stokes (herein collectively called the "Section 11 Owners "), represents and warrants to City that (i) the Property comprises no part of the homestead of the Section 11 Owners and their respective spouses; and (ii) the Property is the separate property of the Section 11 Owners or, if community property, that the Section 11 Owners have the legal authority to perform all actions and obligations prescribed by this Agreement without joinder of their respective spouses. 12. Any notices prescribed or allowed hereunder to Owner or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: OWNER: CITY: Cynthia Bond Ables Phone_ Telecopy: John Henry Bond, III Phone City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 1 Jean Doye Stokes and Wayne Stokes, a married couple Phone Joe P. Doye, Jr. a/k/a Joseph Pierre Doye, Jr. Phone Patricia Ann Doye a/k/a Patricia Doye Kendall Phone Copies to: For Owner: For City: Telecopy: Richard Casner, First Assistant City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 13. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. Relocation advisory services and relocation financial assistance, if applicable pursuant to Ordinance No. 2012 -073 (the "Relocation Ordinance ") shall be administered as provided by the Relocation Ordinance, aside and apart from the transactions contemplated by this Agreement. 7 14. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deeds or Easement. 15. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Fee Lands and /or Easement Lands, City may, at its election, terminate this Agreement at any time prior to Closing. 16. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. CITY OF DENTON, TEXAS GEORGE C. CAMPBELL, CITY MANAGER Date: 2014 ATTEST: JENNIFER WALTERS, CITY SECRETARY C. Date: 2014 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:� Date: 4u 2 v 2013 OWNER: CYNTHIA BOND ABLES JOHN HENRY BOND, III JEAN DOYE STOKES WAYNE STOKES JOE P. DOYE, JR. A/K/A JOSEPH PIERRE DOYE, JR. PATRICIA ANN DOYE A/K/A PATRICIA DOYE KENDALL Date: 2014 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 Al Printed Name: Title: Contract receipt date: , 2014 10 ATTACHMENT 1 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED (Mayhill Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That Cynthia Bond Ables, John Henry Bond, III, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. a/k/a Joseph Pierre Doye Jr. and Patricia Ann Doye a/k/a Patricia Doye Kendall (herein collectively called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibit "A" and depicted in Exhibit "B ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals ", shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. Page 2 of 6 TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of , 2014. CYNTHIA BOND ABLES JOHN HENRY BOND, III JEAN DOYE STOKES WAYNE STOKES JOE P. DOYE, JR. A/K/A JOSEPH PIERRE DOYE, JR. PATRICIA ANN DOYE A /K/A PATRICIA DOYE KENDALL Page 3 of 6 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Cynthia Bond Ables. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by John Henry Bond, III. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Jean Doye Stokes. Notary Public, State of Texas My commission expires: Page 4 of 6 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Wayne Stokes. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Joe P. Doye, Jr. a/k/a Joseph Pierre Doye, Jr. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Patricia Ann Doye a/k/a Patricia Doye Kendall. Notary Public, State of Texas My commission expires: Page 5 of 6 Upon Filing Return To: The City of Denton- Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 6 of 6 Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 EXHIBIT "A" - to Special Warranty Deed Arthur Surveying Co., Inc. �°xofesszox�a.,i .1✓�xzcit Szxz-v�yaxs P.O. Box 54 -- Lewisville, Texas 75067 OtTice: (972) 221 -9439 •- Fax: (972) 221 -4675 EXHIBIT "A" MAYHILL ROAD PARCEL M134 7.393 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30989, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30988, O.P.R.D.C.T., and being more particularly described as follows: COMMENCING at a "PK" Nail set for the southeast comer of said Bond tract (2004 - 30989) and the northeast corner of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being in Mayhill Road; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north Iine of said Haggard tract, a distance of 82.76 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for the POINT OF BEGINNING; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 135.32 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Bond tract (2004- 30989), a distance of 10.56 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tracts, a distance of 2312.85 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 2068.18 feet; THENCE with said curve to the right, over and across said Bond tract (2004- 30988), having a central angle of 01 degrees 46 minutes 54 seconds, whose chord bears North 03 degrees 46 minutes 00 seconds East a distance of 64.31 feet, having an arc length of 64.31 feet to a "PK" Nail set for corner in Spencer Road, being in the north line of said Bond tract (2004- 30989) and the south line of a tract of land described by deed to Haeussler Properties, recorded under Instrument Number 2003 - 205747, O.P.R.D.C.T.; THENCE North 89 degrees 43 minutes 23 seconds East, with the north line of said Bond tract (2004- 30989) and the south line of said Haeussler Properties tract, a distance of 135.54 feet to a "PK' Nail set for corner in Spencer Road, same point being the beginning of a non - tangent curve to the left, having a radius of 1932.50 feet; (continued) C1107131 -19 Parcel M 134 EXHIBIT "A" - to Special Warranty Deed rthur Surveying Co., Inc. J�!z�ofessior��l L�,nd Surveyors P.O. Boa: 54 --- Lewisville, Texas 75067 Office: (972) 221 -9439 •- Fax: (972) 221 -4675 THENCE with said curve to the left, over and across said Bond tract (2004 - 30989), through a central angle of 02 degrees 07 minutes 41 seconds, whose chord bears South 03 degrees 56 minutes 24 seconds West a distance of 71.77 feet, having an arc length of 71.78 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 02 degrees 52 minutes 33 seconds West, over and across said Bond tracts, a distance of 2311.63 feet to the POINT OF BEGINNING and containing 7.393 acres of land, of which 0.109 acres lie within the existing Spencer Road and Mayhill Road. C1107131 -19 Parcel M134 EXHIBIT "B" - to Special Warranty Deed M ..P. & R.R. R, Co. .Survey . bsvr2cc Nunib:er 9.27 (Variable Width ROW) ' 2" I.P.F. SPENCER ROAD . a (C.M.) PK e1 Nail i 0--- -F-- -- — — — — — —jt- -- -- — _ N88 56'21 "W (_t 155.59' S8 '43'23 "W T.R. , 1, 76.43' New Right -of -way 7.237 ac. (315,266 sq. ft.) Gas Easement 0.047 ac. (2,027 sq, ft.) !+ Existing Implied Dedication 0.109 ac. (4,758 sq. ft.) 7.393 Acres (322,051 sq. ft.) t Parcel M134 i g )F V- It �1 John Henry Bond, Jr i' et. al. Instr. No. 2004 -30989 °t .t Proposed Variable Width Slope Easement S87 52'49 "W 885'35'89 "W 1672.63' 200.21' 2" .P.F. F.C.P.— _ — (C. M.) I. R. Haeussler Properties Instr. No. 2003 - 205747 I "PK'.' Nail � 1 tl I 1 II t� 1 I I t Implied Dedication Existing 9 N 400 0 200 400 SCALE: V=400' 15' Gas Easement Bearings shown hereon based on the City of Instr. No. 2008 -80418 Denton GIs Network. Instr. No. 2011 -11316 • t l v H G J NOTES: • I.P.F. = Iron Pipe Found • I.R.F. =112" Iron Rod Found • I.R.S. =1/2" [ran Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 316, Pg. 8 & Vol. 336, Pg, 182 do not affect this tract eAto the best of my knowledge. +t p Blanket easements recorded in Vol. 354, Pg. 401 & Vol. 520, Pg. 495 include this tract. fA6J LINE TABLE Ll S87 05249 "W 82.76' L2 S87 °5249 "W 135.32' L3 N01 °5021 "E 10.56' L4 N8904323E I35.54' John Henry Bond, Jr et. al, Instr. No, 2004 -30988 W)Tr%")Jii # I Radius Length Delta I Chold Cl 2068.18' 64.31' 01 °4654" 1 NO3 °46'00 "E 64.31' C2 1 1932.50' 1 71.78' 02°0741" 1 S03 05624 "W 71.77' t PK" Nail I.R.S. 1. R. S.W& Set 143 ti�i��0 DOUGLAS L.ARI I - D "%, 4357 Dal ✓id .F�v�a;.s'a Saxvey, Abstract lVi- m3hex• i 4C I P 0 B (IV %, F�8 `o ?.. . Mason A. Haggard & wife, Wilma Haggard �� SU vE Vol. 337, Pg. 430 (remainder) 1 EXHIBIT 11B" Mayhill .Road Parcel M134 7.393 acres in the John B. Brandon Survey, Abstract Number 1515 City of Denton Denton County, Texas --2012-- suRVEYORS CERTIFICATION: no undersigned does hereby arflt to Title Resoumos (O.F. No. 102630 11 1 02 640) that this y� survey was this day made on the ground of the property legally described heron and is correct and to the bat of mylmowledgcy then are no visible discrepwcia, conflicts, sbotmges in area, boundary Yee coaIIicts, encroachments, overlapping of improvements, easements orrighta ofway that I have been advised ofezcept as shown hereon. rthur Surveying Co., Inc. Professional Land Surveyom P.O.Box 54 — Lewisville, Texas 76067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 ATTACHMENT 2 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED (Landfill Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That Cynthia Bond Ables, John Henry Bond, III, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. a/k/a Joseph Pierre Doye Jr. and Patricia Ann Doye a/k/a Patricia Doye Kendall (herein collectively called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibit "A" and depicted in Exhibit "B ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure; and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. Page 2 of 6 TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of 12014. CYNTHIA BOND ARLES JOHN HENRY BOND, III JEAN DOYE STOKES WAYNE STOKES JOE P. DOYE, JR. A /K/A JOSEPH PIERRE DOYE, JR. PATRICIA ANN DOYE A /K/A PATRICIA DOYE KENDALL Page 3 of 6 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Cynthia Bond Ables. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by John Henry Bond, III. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Jean Doye Stokes. Notary Public, State of Texas My commission expires: Page 4 of 6 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Wayne Stokes. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Joe P. Doye, Jr. a/k/a Joseph Pierre Doye, Jr. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Patricia Ann Doye a/k/a Patricia Doye Kendall. Notary Public, State of Texas My commission expires: Page 5 of 6 Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 6 of 6 Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 EXHIBIT "A" - to Special Warranty Deed Arthur Surveying Co., Inc. �xof�ssxax��.X ..�.��d Suz-v�,groxs P.O. Box 54 —• LeNvisville, Texas 75067 011-tee: (972) 221- 9439 --- Fax: (972) 221 -4675 EXHIBIT "A" MUNICIPAL USE TRACT 4.508 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30989, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004- 30988, O.P.R.D.C.T., and being more particularly described as follows: BEGINNING at a "PK" Nail set for the southeast corner of said Bond tract (2004- 30989) and the northeast comer of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being in Mayhill Road; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 82.76 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tracts, a distance of 2311.63 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner at the beginning of a curve to the right, having a radius of 1932.50 feet; THENCE over and across said Bond tract (2004- 30989), with said curve to the right, through a central angle of 02 degrees 07 minutes 41 seconds, whose chord beats North 03 degrees 56 minutes 24 seconds East a distance of 71.77 feet, having an arc length of 71.78 feet to a "PK" Nail set for corner in the north line of said Bond tract (2004- 30989) and the south line of a tract of land described by deed to Haeussler Properties, recorded under Instrument Number 2003 - 205747, O.P.R.D.C.T., same point being in Spencer.Road; THENCE North 89 degrees 43 minutes 23 seconds East, with the north line of said Bond tract (2004- 30989) and the south line of said Haeussler Properties tract, a distance of 81.24 feet to a "PK" Nail set for the northeast corner of said Bond tract (2004- 30989), same point being in the existing Mayhill Road; THENCE South 02 degrees 52 minutes 34 seconds West, with the east line of said Bond tracts, a distance of 2380.65 feet to the POINT OF BEGINNING and containing 4.508 acres of land, of which 1.660 acres lie within existing Mayhill Road and Spencer Road. v .JOHN M. RUSSELL .......... C1107131 -19 Parcel M 134 Municipal Use tract • L,.Rnmii "ts" - to -jpeciai Warranty veea M. E. P. & P. R. R. Co. Survey Abstract Number 927 Haeussler Properties (Variable Width ROW) + Instr. No. 2003 - 205747 2" 1. P.F. SPENCER ROAD I ,. (CAO — PK" Nail O—{-- - - - - - -- -jy-- - Set -C1 N88'56'21 "W it-- ..-=-_ = = 155.59' S8 '43'23 "W 1876.43' New Municipal Use Tract 2.042 ac. (88,949 sq. ft.) + II Existing Implied Dedication 1.660 ac. (72,289 sq. ft.) Gas Easement 0.806 ac. (35,117 sq. ft.) 4.508 Acres (196,355 sq. ft.) t Municipal Use Tract i� ei i ~I (" Nail Set Proposed ROW Parcel M134 I Existing t---- -Fence 1 15' Gas Easement Instr. No. 2008 -80418 UInstr. No. 2011 -11316 �1 1 Ie VV John Henry Bond, Jr et. al. , N�� Instr. No. 2004 -30989 ! ! Gn it . Q OF P40 oei .Ve I 4 t Existing t Residence l � 1 ]S87*52'49"W �+ S85'35'59 "W 1672. 63' 200.2 _ _ _ — — p� —I.R.S. L� 2 "I '(P. F. F.C.P. _ (C.M.) I i David Hough Survey, Abstract Number 646 1 Mason A. Haggard & wife, Wilma Haggard Vol. 337, Pg. 430 (remainder) EXHIBIT "B" Municipal Use Tract 4.508 acres in the John B. Brandon Survey, Abstract Number 1515 City of Denton Denton County, Texas --2012-- "PK" Se A N 400 0 200 400 SCALE: V= 400' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • I.P.F. = Iron Pipe Found • I.R.F. = 1/2" Iron Rod Found • I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 316, Pg. 8 & Vol. 336, Pg. 182 do not affect this tract to the best of my knowledge. �Q Blanket easetnents recorded in Vol. 354, �`r' Pg. 401 & Vol. 520, Pg. 495 include this V tract. LINE TABLE LI I S87 °5249 "W 82.76' L2 N89 °43'23 "E 181. 24' John Henry Bond, Jr et. al. Instr. No. 2004 -30988 SURVEYORS CERTMCATTON: V , The uoderaigncd does hereby certify to Title A \` Resources (QF. No. 102630.& 101640) that this (l. survey was this day made on the ground of the n . property legally described hereon and ig correct, and f� to the best ofmy knowledge, there arc no visible discrepancies, conflicts, shortages in area, boundary line rnnfli.ts, encroachments, overlapping of improvements, easements or rights ofway that 1 have been advised of except as shown hereon. rthur Surveying Co., Inc. ProPession,0 Laud surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 s: \legal \our documents \contracts \13 \bond- stokes et al slope easement.doc ATTACHMENT 3 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SLOPE EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Cynthia Bond Ables, John Henry Bond, III, Jean Doye Stokes and Wayne Stokes, a married couple, Joe P. Doye, Jr. a/k/a Joseph Pierre Doye, Jr. and Patricia Ann Doye a/k/a Patricia Doye Kendall (collectively, "Grantor "), in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt and sufficiency of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ( "Grantee ") a perpetual slope easement in, along, upon, under, over and across the following described property (the "Property "), owned by Grantor, and situated in Denton County, Texas, located in the John B. Brandon Survey, Abstract Number 1515, to wit: PROPERTY DESCRIBED IN EXHIBIT "A" AND DEPICTED IN EXHIBIT "B ", ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining lateral slope in, along, upon, under, over and across said Property, including without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, upon, under, over and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said lateral slope features or grade, or any part thereof. This Easement is subject to the following covenants and agreements: 1. Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, upon, under, over or across the Property by Grantor. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may alter the grade of the Property and may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Maintenance of Lateral Slope. No activity, of any kind, shall be conducted on the Property by Grantor that may impair, damage or destroy the lateral slope, including without limitation, excavation or movement of soil or other material. 3. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right -of -way. 4. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may encroach or overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 5. Grantor's Rights. Grantor shall have the right, subject to the covenants and restrictions contained herein, to make use of the Property for any purpose that does not interfere with Grantee's rights granted to it herein for the purposes granted. 6. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their heirs, devisees, successors and assigns. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. 2 Witness our hands, this the day of , 2014. Grantor: CYNTHIA BOND ABLES JOHN HENRY BOND, III JEAN DOYE STOKES WAYNE STOKES JOE P. DOYE, JR. A/K/A JOSEPH PIERRE DOYE, JR. PATRICIA ANN DOYE A/K/A PATRICIA DOYE KENDALL ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Cynthia Bond Ables. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by John Henry Bond, III. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on 2014 by Jean Doye Stokes. Notary Public, State of Texas My commission expires: S ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Wayne Stokes. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Joe P. Doye, Jr. a/k/a Joseph Pierre Doye, Jr. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Patricia Ann Doye a/k/a Patricia Doye Kendall. Notary Public, State of Texas My commission expires: 5 AFTER RECORDING RETURN TO: City of Denton — Engineering Department 901 -A Texas Street Denton, Texas 76209 Attn: Paul Williamson EXHIBIT "A" - to Slope Easement Arthur Surveying Co., Inc. .;�xof�essXO.n�.l -L.�d Srxx-v�yoxs P.O. Box 54 -,Lewisville, Texas 75067 Office: (972) 221 -9439 •- Fax: (972) 221 -4675 EXHIBIT "A" MAYHILL ROAD SLOPE EASEMENT 0.804 Acres City of Denton, Denton County, Texas BEING all that certain lot, tractor parcel of land situated in the John B. Brandon Survey, Abstract Number 1515, City of Denton, Denton County, Texas, and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30989, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being part of that tract of land described by deed to John Henry Bond, Jr. et al, recorded under Instrument Number 2004 - 30988, O.P.R.D.C.T., and being more particularly described as follows: COMMENCING at a "PK" Nail set for the southeast comer of said Bond tract (2004- 30989) and the northeast corner of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being in Mayhill Road; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 218.08 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for the POINT OF BEGINNING; THENCE South 87 degrees 52 minutes 49 seconds West, with the south line of said Bond tract (2004- 30989) and the north line of said Haggard tract, a distance of 10.02 feet to a point for comer; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Bond tract (2004- 30989), a distance of 11.35 feet to a point for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tracts, a distance of 834.81 feet to a point for comer; THENCE North 87 degrees 07 minutes 27 seconds West, over and across said Bond tract (2004 - 30989), a distance of 5.00 feet to a point for comer; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Bond tract (2004- 30989), a distance of 1144.51 feet to a point for comer; THENCE North 00 degrees 22 minutes 33 seconds East, over and across said Bond tract (2004- 30989), a distance of 396.47 feet to a point for corner in the north line of said Bond tract (2004 - 30989) and the south line of a tract of land described by deed to Haeussler Properties, recorded under instrument Number 2003 - 205747, O.P.R.D.C.T., same point being in Spencer Road; THENCE North 89 degrees 43 minutes 23 seconds East, with the north line of said Bond tract (2004- 30989) and the south line of said Haeussler Properties tract, a distance of 33.34 feet to a "PK" Nail set for corner in Spencer Road, same point being the beginning of a non - tangent curve to the left, having a radius of 2068.18 feet; (continued) C1107131 -19 Parcel M134 Slope Easement EXHIBIT "A" - to Slope Easement rthur Surveying Co., Inc. Fxofessfozzal .r —elz2 ' Sus-veyors P.O. Box 54 --- Lewisville, Texas 75067 0111ce: (972) 221 -9439 •— Fax: (972) 221 -4675 THENCE with said curve to the left, over and across said Bond tract (2004- 30989), through a central angle of 01 degrees 46 minutes 54 seconds, whose chord bears South 03 degrees 46 minutes 00 seconds West a distance of 64.31 feet, having an are length of 64.31 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 02 degrees 52 minutes 33 seconds West, over and across said Bond tracts, a distance of 2312.85 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 01 degrees 50 minutes 21 seconds West, over and across said Bond tract (2004- 30989), a distance of 10.56 feet to the POINT OF BEGINNING and containing 0.804 acres of land. C1107131 -19 Parcel M134 Slope Easement A./ o 00 EXHIBIT "B" - to Slope Easement ' M. E. P. & P. R. R. Co. Survey Abstract Number 927 I (Variable Width ROW) 1 " i.P. SPENCER ROAD I o —f- - -- -- - -r- -- L N88'56 21 "W 155.59' S8 '43'23 "W 1 76, 43 I M h' N Nr • I.P.F. = Iron Pipe Found • I.R.F. =112" Iron Rod Found o • I.R.S. =1/2" Iron Rod Set with 1 y yellow cap stamped "Arthur M z li 0.804 Acre Slope Easement (35,041 sq. ft.) k Qr� 4�0 ^" -, cy�IN John Henry Bond, Jr et. al. Instr. No. 2004 -30989 Haeussler Properties - .—�- -- Instr. No. 2003 - 205747 N z +t S87'52'49 11W I 585135'59 "W 1672.63' L 200.21' 3 _ _ _ — L 3 L 1 2" .P. F. F.C.P. — — — (C.M.) David Hough Survey, Abstract Number 646 I Mason k Haggard & wife, Wilma Haggard Vol, 337, Pg. 430 (remainder) I EXHIBIT "B" Slope Easement Mayhill Road Project 0.804 acres in the John B. Brandon Survey, Abstract Number 1515 City of Denton Denton County, Texas —2012-- o f m knowled e C 4 f✓4- Existing Residence o le es y g . Blanket easements recorded in Vol. 354, Pg. 401 & Vol. 520, Pg. 495 include this tract. T ThIR TA RT17. Ll S87 05249 "W 218.08' L2 S87 05249 "W 10.02' L3 N0105021'T 11.35' L4 N87 00727 "W 5.00' L5 N89 04323 "E 33.34' L6 I S01 °50'21 "W 10.56' John Henry Bond, Jr et. al. Instr. No. 2004 -30988 CURVE TABLE # I Radius I Length 1 Delta I Chord CI-I 2068.18' 1 64.31' 1 01 04654" 1 S03 046'00 "W 64.31' P. 0. C. "PK" Nail �JOW M. Rt ,( SELt_ Set ... ;....9rtF a••�t SURVEYORSCERTMCATION: \ J �O , The undersigned does hereby certify to Title V Rummues (G-F. No. 102630 do 102640) that this survey was tWs day made on the ground of the Property legally described hereon and Is correct, and 11 to the best ofmy knowledge, them are no visible 0o discrepancies, coa}jlcts, shortages in area, boundary V line coa icts, encroachments, overlapping of improvements, easements or rights of way that I havo been advised of except as sbown bereon. rthur Surveying Co., Inc, Protessifonld Land Surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 Proposed ROW 1 P 0 200 400 Existing Fence S SCALE: 1"=400' 1 15' Gas Easement B Bearings shown hereon based on the City of Instr. No. 2008 -80418 D Denton GIS Nehvork, It tr. No. 2011 -11316 NOTES: • I.P.F. = Iron Pipe Found • I.R.F. =112" Iron Rod Found t • • I.R.S. =1/2" Iron Rod Set with 1 y yellow cap stamped "Arthur Surveying Company" I 0 0 All improvements not shown hereon. O • • Easements recorded in Vol. 316, Pg. 8 & 1 O Vol. 336, Pg. 182 do not affect this tract t V t tl b t o C 4 f✓4- Existing Residence o le es y g . Blanket easements recorded in Vol. 354, Pg. 401 & Vol. 520, Pg. 495 include this tract. T ThIR TA RT17. Ll S87 05249 "W 218.08' L2 S87 05249 "W 10.02' L3 N0105021'T 11.35' L4 N87 00727 "W 5.00' L5 N89 04323 "E 33.34' L6 I S01 °50'21 "W 10.56' John Henry Bond, Jr et. al. Instr. No. 2004 -30988 CURVE TABLE # I Radius I Length 1 Delta I Chord CI-I 2068.18' 1 64.31' 1 01 04654" 1 S03 046'00 "W 64.31' P. 0. C. "PK" Nail �JOW M. Rt ,( SELt_ Set ... ;....9rtF a••�t SURVEYORSCERTMCATION: \ J �O , The undersigned does hereby certify to Title V Rummues (G-F. No. 102630 do 102640) that this survey was tWs day made on the ground of the Property legally described hereon and Is correct, and 11 to the best ofmy knowledge, them are no visible 0o discrepancies, coa}jlcts, shortages in area, boundary V line coa icts, encroachments, overlapping of improvements, easements or rights of way that I havo been advised of except as sbown bereon. rthur Surveying Co., Inc, Protessifonld Land Surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 John Henry Bond, Jr et. al. Instr. No. 2004 -30988 CURVE TABLE # I Radius I Length 1 Delta I Chord CI-I 2068.18' 1 64.31' 1 01 04654" 1 S03 046'00 "W 64.31' P. 0. C. "PK" Nail �JOW M. Rt ,( SELt_ Set ... ;....9rtF a••�t SURVEYORSCERTMCATION: \ J �O , The undersigned does hereby certify to Title V Rummues (G-F. No. 102630 do 102640) that this survey was tWs day made on the ground of the Property legally described hereon and Is correct, and 11 to the best ofmy knowledge, them are no visible 0o discrepancies, coa}jlcts, shortages in area, boundary V line coa icts, encroachments, overlapping of improvements, easements or rights of way that I havo been advised of except as sbown bereon. rthur Surveying Co., Inc, Protessifonld Land Surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 EXHIBIT 3 attachment to AIS Minutes of the Public Utilities Board Meeting June 24, 2013 Page 3 of 8 awarded to Rush Truck Center in the amount of $1,315,173 McNeilus Truck Manufacturing in the amount of $513,536 and DaDee Manufacturing, LLC in the amount of $447,353.46 for a total award amount of $2,276,062.46). Board Member Robinson motioned to approve item 3 with a second from Board Member Gallivan. The vote was 6 -0 approved. 4) Consider recommending approval of the purchase of one dry pit submersible pump for the Raw Sewage Pump Station Number 2 at the Pecan Creek Water Reclamation Plant from DXP Enterprises for the amount of $67,925. Board Member Herring asked why there were no bids on this item. Martin answered this is a single source item. It has to do with the rebuilding of a lift station. With the existing piping and pump bases, a certain area has to be fitted with the pump. P.S. Arora, Division Manager, stated they looked at several vendors but this vendor is the only one that could fit the dimensions they needed. Board Member Herring motioned to approve item 4 with a second from Board Member Russell. The vote was 6 -0 approved 5) Consider recommending approval of the acquisition of real property tracts of (1) 4.508 acres; (2) 0.624 acre; (3) 2.151 acre; and (4) 0.125 acre for municipal landfill use, as a concurrent matter with the acquisition of the necessary land rights required for the Mayhill Widening and Improvements project. Board Member Robinson motioned to approve item 5 with a second from Board Member Gallivan. The vote was 6 -0 approved. ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Consider recommending approval of the Public Utilities Board Meeting minutes of: a) June 10, 2012 Date should be June 10, 2013 not June 10, 2012. 7) Consider a recommendation of approval of the FY 2014 -2018 Electric Capital Improvement Plan (CIP). Phil Williams, General Manager DME, stated there are no changes staff is asking for approval from this Board. Board Member Robinson motioned to approve item 7 with a second from Board Member Russell. The vote was 6 -0 approved. AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire (1) fee simple to a 1.029 acre tract (the " Mayhill Tract "); (I1) fee simple to a 0.624 acre tract (the "Landfill Tract "); and (II1) a Slope Easement (herein so called), encumbering a 0.076 acre tract, each affected tract located in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached hereto and made a part hereof, located generally in the 1900 block of South Mayhill Road (the "Property Interests "), for (A) as concerns the Mayhill Tract and the Slope Easement, the public use of expanding and improving Mayhill Road, a municipal street and roadway; and (B) as concerns the Landfill Tract, for the public use of expanding and improving the City of Denton Landfill, a permitted municipal solid waste disposal facility; authorizing the City Manager or his designee to make an offer to (1) Wilma M. Haggard (The "Owner "); (2) Successors in interest to the owner to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of One Hundred Thirty Three Thousand Eight Hundred Fifty Nine Dollars and No Cents ($133,859.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached hereto and made a part hereof as Exhibit "B "; authorizing the expenditure of funds therefor; and providing an effective date. ( Mayhill Road Widening and Improvements project — Haggard - Parcel M136) BACKGROUND The City Council considered and approved an initial offer to purchase Property Interests on July 16, 2013 for the purchase price of $133,859.00. (Ordinance 2013 -180) That initial offer to purchase land rights was extended to Owner on August 8, 2013, via certified mail. There have not been any substantive negotiations to date in respect to the City's offer to purchase the captioned land rights. Approval of the ordinance under consideration authorizes staff to extend a Final Offer to Owner for the captioned land rights necessary for the road widening project. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. Agenda Information Sheet January 7, 2014 Page 2 RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Public Utilities Board on June 24, 2013 recommended approval of the acquisition of the 0.624 acre Municipal Use Tract (6 -0). City Council July 16, 2013 (Offer to Purchase Ordinance 2013 -180) FISCAL INFORMATION The 1.029 acre fee tract and the 0.076 acre slope easement tract, both associated with the Mayhill Road Widening and Improvements project, are being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds ($104,546.00) The 0.624 acre Municipal Use tract is to be funded by Solid Waste capital project bonds allocated for real property purchases: 6605631594. 1316530100 ($29,313.00) The total purchase offer price being $133,859.00 plus closing costs, as prescribed in the Agreement. EXHIBITS 1. Location Map 2. PUB Minutes June 24, 2013 3 . Ordinance Respectfully submitted, Paul Williamson, Real Estate Manager EXHIBIT 3 attachment to AIS Minutes of the Public Utilities Board Meeting June 24, 2013 Page 3 of 8 awarded to Rush Truck Center in the amount of $1,315,173 McNeilus Truck Manufacturing in the amount of $513,536 and DaDee Manufacturing, LLC in the amount of $447,353.46 for a total award amount of $2,276,062.46). Board Member Robinson motioned to approve item 3 with a second from Board Member Gallivan. The vote was 6 -0 approved. 4) Consider recommending approval of the purchase of one dry pit submersible pump for the Raw Sewage Pump Station Number 2 at the Pecan Creek Water Reclamation Plant from DXP Enterprises for the amount of $67,925. Board Member Herring asked why there were no bids on this item. Martin answered this is a single source item. It has to do with the rebuilding of a lift station. With the existing piping and pump bases, a certain area has to be fitted with the pump. P.S. Arora, Division Manager, stated they looked at several vendors but this vendor is the only one that could fit the dimensions they needed. Board Member Herring motioned to approve item 4 with a second from Board Member Russell. The vote was 6 -0 approved 5) Consider recommending approval of the acquisition of real property tracts of (1) 4.508 acres; (2) 0.624 acre; (3) 2.151 acre; and (4) 0.125 acre for municipal landfill use, as a concurrent matter with the acquisition of the necessary land rights required for the Mayhill Widening and Improvements project. Board Member Robinson motioned to approve item 5 with a second from Board Member Gallivan. The vote was 6 -0 approved. ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Consider recommending approval of the Public Utilities Board Meeting minutes of: a) June 10, 2012 Date should be June 10, 2013 not June 10, 2012. 7) Consider a recommendation of approval of the FY 2014 -2018 Electric Capital Improvement Plan (CIP). Phil Williams, General Manager DME, stated there are no changes staff is asking for approval from this Board. Board Member Robinson motioned to approve item 7 with a second from Board Member Russell. The vote was 6 -0 approved. Location Map HAGGARD Parcel m EXHIBIT 1 attachment to AIS Mayhill Road Widening and Improvements SPENCER ROAD 0 Q PECAN CREEK WATER RECLAMATION PLANT N J _J 2 Q 0 w V Haggard M Property Ld Location QUA/L o EEK m o Y z p CITY OF DENTON LANDFILL o 0 n C >- DSONW 00 QUAIL CREEK ROAD EDWARDS Ld m LEAFY BLOOM BLVD C NARY COUR 0 Q 0 LEAFY 0 CAN CREEK M. H. Q J -' O BL UE JA Q� COLOR400 S < PAR DR' o V m 0 Q 0, DENTON REGIOtd MEDICAL CENTER 0 -' >- Q ANDREWS CORP. 0 Location Map HAGGARD Parcel M136 EXHIBIT 1 attachment to AIS Mayhill Road Widening and Improvements EXHIBIT 2 attachment to AIS ORDINANCE NO. 2014- AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE (I) FEE SIMPLE TO A 1.029 ACRE TRACT (THE 'MAYHILL TRACT "); (I1) FEE SIMPLE TO A 0.624 ACRE TRACT (THE "LANDFILL TRACT "); AND (III) A SLOPE EASEMENT (HEREIN SO CALLED), ENCUMBERING A 0.076 ACRE TRACT, EACH AFFECTED TRACT LOCATED IN THE DAVID HOUGH SURVEY, ABSTRACT NUMBER 646, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED ON EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF, LOCATED GENERALLY IN THE 1900 BLOCK OF SOUTH MAYHILL ROAD (THE "PROPERTY INTERESTS "), FOR (A) AS CONCERNS THE MAYHILL TRACT AND THE SLOPE EASEMENT, THE PUBLIC USE OF EXPANDING AND IMPROVING MAYHILL ROAD, A MUNICIPAL STREET AND ROADWAY; AND (B) AS CONCERNS THE LANDFILL TRACT, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING THE CITY OF DENTON LANDFILL, A PERMITTED MUNICIPAL SOLID WASTE DISPOSAL FACILITY; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO (1) WILMA M. HAGGARD (THE "OWNER"); (2) SUCCESSORS IN INTEREST TO THE OWNER TO THE PROPERTY INTERESTS; OR (3) ANY OTHER OWNERS OF THE PROPERTY INTERESTS, AS MAY BE APPLICABLE, TO PURCHASE THE PROPERTY INTERESTS FOR THE PURCHASE PRICE OF ONE HUNDRED THIRTY THREE THOUSAND EIGHT HUNDRED FIFTY NINE DOLLARS AND NO CENTS ($133,859.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT B "; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton made an initial offer to the Owner to purchase the Property Interests on August 8, 2013, pursuant to Ordinance No. 2013 -180, passed and approved by the City Council of the City of Denton on July 16, 2013; WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Council finds that a public use and necessity exists, and that the public welfare and convenience require the acquisition of the Property Interests by the City of Denton, Texas (the "City "). The City Council hereby finds and determines that the acquisition of (a) the Mayhill Tract and the Slope Easement are necessary for public use to provide street and roadway expansion and improvements of Mayhill Road; and (b) the Landfill Tract is necessary for public use to provide for expansion and improvement of the City of Denton landfill, a permitted municipal solid waste disposal facility, each to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The City Manager, or his designee, is hereby authorized to make the final offer to purchase the Property Interests to (i) the Owner; (ii) any and all of Owner's successors in interest to the Property Interests; or (iii) any other parties who may own any interest in the Property Interests, as may be applicable. SECTION 3. The City Manager, or his designee, is hereby authorized to (a) execute for and behalf of the City (i) the Agreement, by and between the City and Owner, or other owners of the Property Interests, as applicable, in the form attached hereto and made a part hereof as Exhibit "B ", with a purchase price of $133,859.00 and other consideration, plus costs and expenses, all as prescribed in the Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Agreement; and (b) to make expenditures in accordance with the terms of the Agreement. SECTION 4. The City Manager, or his designee, is directed, by certified mail, return receipt requested, to disclose to Owner, or other owners of the Property Interests, as applicable, any and all appraisal reports produced or acquired by the City relating specifically to the Owner's property and prepared in the 10 years preceding the date of the offer made by the Agreement. SECTION 5. The offer to Owner, or other owners of the Property Interests, as applicable, shall be made in accordance with all applicable law. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: _...Wr._ EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., Inc. .1F'x:oP�essioxz� �.�.d Sux•v�,y'oxs P.O. Box 54 Lewisville, Texas 75067 011-tee: (972) 221 -9439 •-- Fax: (972) 221 -4675 EXHIBIT "A" MAYHILL ROAD PARCEL M136 1.029 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod found for corner in the east line of said Haggard tract and the northeast corner of a tract of land described by deed to Richard A. Greb and wife, Nancy A. Greb, recorded under Instrument Number 2006 - 100770, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being in the existing Mayhill Road; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 80.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the POINT OF BEGINNING; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 135.17 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 0l degrees 50 minutes 21 seconds East, over and across said Haggard tract, a distance of 330.88 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Haggard tract and the south line of a tract of land described by deed to John Henry Bond, etaL, recorded under Instrument Number 2004 - 30989, O.P.R.D.C.T.; THENCE North 87 degrees 52 minutes 49 seconds East, with the north line of said Haggard tract and the south line of said Bond tract, a distance of 135.32 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 01 degrees 50 minutes 21 seconds West, over and across said Haggard tract, a distance of 333.40 feet to the POINT OF BEGINNING and containing 1.029 acres of land. ,0 �/ C1107131 -27 Parcel M136 EXHIBIT "All - to Ordinance (Property Interests) i ":v Henry Instr.No. 2004 -30989 V��c C1 N87 °52'49 "E 135.32' �yrr- ..•..��r R! Richard A. Grab & wife, Nancy A Grob Instr. No, 2006- 100770 Mayhill Road Parcel M136 1.029 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- I.R.F. O Lo °z o01�1 aK 1" 100 0 50 100 7'52' 82.7 —�n -15 Gas Easement insir. No. 2006 -64790 7PdcL Easement i t o1. 190, Pg. 620 a� n. t a M� I Oo °� ai I 3 la I 1.029 Acres Mason A. Haggard & MlI Pill-eel M136 wife, Wilma Haggard Wi Volume 337, Page 430,1 (44,839 sq. ft.) (remainder) o1 o � I I �Al � I S88'S6'S3 "W 468.68' 1. R. S. S88 56'53"W 5 /s J155.17' ti'y�t�6� Richard A. Grab & wife, Nancy A Grob Instr. No, 2006- 100770 Mayhill Road Parcel M136 1.029 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- I.R.F. O Lo °z o01�1 aK 1" 100 0 50 100 7'52' 82.7 —�n -15 Gas Easement insir. No. 2006 -64790 7PdcL Easement i t o1. 190, Pg. 620 a� n. t a M� I Oo ai I 3 la I - ; � 1 t P. 3 .n o� C.1. R. F. I SCALE: I"= 100' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • I.R.F. = Iron Rod Found • C.LR.F. = 5/8" Iron Rod Found with cap stamped "Cotton Surveying ", • I.R.S. = 1 /2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easement recorded in Vol. 336, Pg. 367 does not affect this tract to the best of my knowledge. • Easement recorded in Vol. 341, Pg. 222 assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. • Blanket Easement- recorded in Vol. 357, Pg. 54 includes this tract. SURVEYORS CERTMCAMN: The undersigned does hereby certify to Title Resources (GA No. 121698) that this survey was this day made on the ground of tho property legally described hereon and is correct, and to the best of my knowledge, there are no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachments, overlapping ofimprovemeots, easements orrights of way that I have been advised ofoxcept as shown hereon. rthur Surveying Co., Inc. Professional Land Surveyors P.O.Box 54 — Lewisville, Texas 76067 Office: (972) 221 -9439 Fax: (972) 221 -4676 Estatblished 1986 EXHIBIT "A" - to Ordinance (Property Interests) 74� rthur Surveying Co., I nc. .tP'x'nf�ssiorz�.Y �.axz,d SY,zx- v�yoxs P.O. Box 54 Lewisville, Texas 75067 OLlicc: (972) 221 -9439 Fax: (972) 221 -4675 EXHIBIT "A" MUNICIPAL USE TRACT 0.624 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod found for corner in the east line of said Haggard tract and the northeast corner of a tract of land described by deed to Richard A. Greb and wife, Nancy A. Greb, recorded under Instrument Number 2006 - 100770, Official Public Records, Denton County, Texas (O.P.R.D.C.T,), and being in the existing Mayhill Road; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 80.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Haggard tract, a distance of 333.40 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Haggard tract and the south line of a tract of land described by deed to John Henry Bond, etal., recorded under Instrument Number 2004 - 30989, O.P.R.D.C,T.; THENCE North 87 degrees 52 minutes 49 seconds East, with the north line of said Haggard tract and the south line of said Bond tract, a distance of 82.76 feet to a "PK" Nail set for the northeast corner of said Haggard tract and the southeast corner of said Bond tract, same point being in the existing Mayhill Road; THENCE South 02 degrees 14 minutes 30 seconds West, with the east line of said Haggard tract, and with the existing Mayhill Road, a distance of 335:07 feet to the POINT OF BEGINNING and containing 0.624 acres of land, of which 0.230 acres lie within the existing Mayhill Road. C1107131 -27 Parcel M136 Municipal Use Tract lirgw .. ~ JC)HnI ;SELL.. EXHIBIT "A" - to Ordinance (Property Interests) dot' Gg John Henry Bond, etal. Ct Instr. No. 2004 -30909 A bt 1. R. — —' —'— 15 Gas Easement —+ 1 Insir. No. 2006-64790 I (5,005 sq. ft.) O v t*i M New Municipal Use Tract 0,279 ac, (12,149 sq, ft.) rn Existing Implied Dedication 0.230 ac. (10,042 sq. 11.) Gas Easement 0.115 ac. (5,005 sq. ft.) 0.624 Acres (27,196 sq. ft,) Municipal Use Tract I G� Mason A. Haggard & I wife, Wilma Haggard nl Volume 337, Page 430 z° (remainder) 388'56 53� W 1 �1 Proposed Parcel M136 �l 603.85, I.R.S. I. R.F. 033 Y ( �_4 Y Richard A. Greb & wife, Nancy A. Greb Instr, No. 2006- 100770 Municipal Use Tract 0.624 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- N87o52 82.7 I.R.F. iu 6co EGG 100 0 60 100 "PK" Nail SCALE: I"= 100' 0 Set Bearings shown hereon based on the City of Denton GIS Network. +— 1— Existing Fence 7P &L Easement o Vol. 190, Pg. 620 NOTES: i Q f m LRT. = Iron Rod Found v M ^ • C.I.R.F. = 5/8" Iron Rod Found with ". o IQj cap stamped "Cotton Surveying I.R.S. = 1/2" Iron Rod Set with ° 1 Q 3 yellow cap stamped "Arthur 9 f O Surveying Company" � b I All improvements not shown hereon. 336, Pg. Easement recorded in Vol. 1 3 367 does not affect this tract to the +o a best of my knowledge. t �yM to > Easement recorded in Vol. 341, Pg. 222 assigned in Vol. 367, Pg. 242 is i 2 centered on a pipeline not 1P specifically located, i Blanket Easement recorded in Vol. 1 357, Pg. 54 includes this tract. I1.R.F. e56�3 80.3,,' M O k> o) o JOHN M. POSSEL.L N C.1.R.F SURVEYORS CERTIFICATION: The undersigned does hereby certify to Tide es Rources (GA No. 121698) that this survey was this day made on the ground of the property legally described hereon and is correct, and to the best of my knowledge, there are no visible discrepancies, conflicts, shortages In area, boundary line conflicts, encroachments, overlapping ofimprovements, easements or rights of way that I have been advised ofcxeept as shown hereon. rthur Surveying Co., Inc. .Professional Land Surveyozs P.O.Box 54 — Lewisville, Texas 75067 Office; (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., Inc. �'rotessiona.,Y �.az=d Survcr,yox's P.O. Box 5/I --- Lewisville, Texas 75067 Office: (972) 221 -9439 — Fax: (972) 221 -4675 EXHIBIT "A" 10' SLOPE EASEMENT MAYHILL ROAD PROJECT 0.076 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod found for corner in the east line of said Haggard tract and the northeast corner of a tract of land described by deed to Richard A. Greb and wife, Nancy A. Greb, recorded under Instrument Number 2006 - 100770, Official Public Records, Denton County, Texas (O,P.R.D.C.T.), and being in the existing Mayhill Road; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 215.48 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the POINT OF BEGINNING; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 10.01 feet to a point for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Haggard tract, a distance of 330.69 feet to a point for corner in the north line of said Haggard tract and the south line of a tract of land described by deed to John Henry Bond, etal., recorded under Instrument Number 2004 - 30989, O.P.R.D.C.T.; THENCE North 87 degrees 52 minutes 49 seconds East, with the north line of said Haggard tract and the south line of said Bond tract, a distance of 10.02 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 01 degrees 50 minutes 21 seconds West, over and across said Haggard tract, a distance of 330.88 feet to the POINT OF BEGINNING and containing 0.076 acres of land. .F ,1 Z C1107131 -27 Parcel M136 Slope Easement EXHIBIT "All - to Ordinance (Property Interests) 1. R. F. John Henry Bond, etal. Mto I p,1 Instr. No. 2004 -30989 ^ "i �Q (3 `a r �� y��i•, z �• ��O�ryOL L2 �" J"PK" Nail Set 218.08' 1 11 � 1 101 Slope Easement I 1 0.076 Acr es 1 (3,308 sq. ft.) I blloo I + oO of! to �� Mason A, Haggard & I wife, Wilma Haggard W C� DLO Volume 337, Page 430 N I I N 0 se�4 (remoinder) II e�,v I S88'5V 6/ � '5 3 "W 458.6 7' � 3�II wI1 .R,S� • i 1 . W o-_ S768 5 5/8" 215,48' I.R.F. T t P.O. B. o 11P11 �^ Richard A. Greb & wife, Nancy A. Grab Instr. No. 2006- 100770 C.1. R. F. 10' Slope Easement Mayhill Road Project 0.076 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- loo 0 so loo SCALE: 1" = 100' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • I.R.F. = Iron Rod Found • C.I.R.F. = 5/8" Iron Rod Found %Pith cap stamped "Cotton Surveying ". • I.R.S. = 1 /2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. LINE TABLE LI I S88 056'53 "W 10.01' L2 I N87 05249 "E 10.02' � � Y I SURVEYORS CF-RT07CATTON: The undersigned does hereby certify to that this survey was this day made on the ground of tho property legally described hereon and is correct, and to the best ofmy knowledge, there are no visible discrepancies, conflicts, shortages in area, boundary Line conflicts, encroachments, overlapping of improvemcnis, easements or tights of way that 1 have been advised of except as shown hereon. rthur Surveying Co., Inc. 11rofessional rand surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 EXHIBIT `B" TO ORDINANCE PURCHASE AGREEMENT NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. THIS PURCHASE AGREEMENT (the "Agreement ") is dated 2014, but effective as of the date provided below, between Wilma M. Haggard (referred to herein as "Owner ") and the City of Denton, Texas ( "City ") WITNESSETH: WHEREAS, Wilma M. Haggard is the Owner of a tract of land (the "Land ") in the David Hough Survey, Abstract Number 646, Denton County, Texas, being affected by the public improvement projects (i) called the Mayhill Road Widening and Improvements Project ( "Mayhill Project "); and (ii) related to the expansion and improvement of the City of Denton Landfill, a permitted municipal solid waste disposal facility (the "Landfill Project ") (the Mayhill Project and the Landfill Project are collectively referred to herein as the "Projects "); WHEREAS, City is in need of certain (i) fee simple lands, being a part of the Land; and (ii) an easement, being a part of and encumbering the Land, related to the Projects; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Projects; NOW, THEREFORE, for Ten and No /100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City (i) a Special Warranty Deed (the "Mayhill Deed "), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Mayhill Deed, and other interests as prescribed therein (the "Mayhill Fee Lands "), the Mayhill Deed being attached hereto as Attachment 1 and made a part hereof, related to the Mayhill Project; (ii) a Special Warranty Deed (the "Landfill Deed "), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Landfill Deed, and other interests as prescribed therein (the "Landfill Lands ") (the Mayhill Lands and the Landfill Lands are collectively referred to herein as the "Fee Lands "), the Landfill Deed being attached hereto as Attachment 2 and made a part hereof, related to the Landfill Project (the Mayhill Deed and the Landfill Deed are collectively referred to herein as the "Special Warranty Deeds "); and (iii) a Slope Easement (the "Easement "), in, along, upon, under, over and across the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Slope Easement (the "Easement Lands "), the Easement being attached hereto as Attachment 3 and made a part hereof, for slope purposes, as more particularly described therein, related to the Mayhill Project. The (i) Special Warranty Deeds shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 1" and "Attachment 2 ", respectively; and (ii) the Slope Easement shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 3" (the Fee Lands and the Easement are collectively referred to herein as the "Property "). B. Owner, subject to the limitation of such reservation made herein, shall reserve, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, her heirs, devisees, successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection M with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. As consideration for the granting and conveying of the Property to the City, the City shall pay to Owner at Closing the sum of One Hundred Thirty Three Thousand Eight Hundred Fifty Nine and No /100 Dollars ($133,859.00). The monetary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation ". 3. The Owner shall convey and grant to the City the Property free and clear of all debts, liens and other encumbrances (the "Encumbrances "). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the Encumbrances and other curative efforts affecting the Property, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, 3 below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4. Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the Project, including without limitation, any damage to or diminution in the value of the remainder of Owner's property caused by, incident to, or related to the Project and /or the transactions contemplated by this Agreement, value of, damage to and /or costs of repair, replacement and /or relocation of any improvements, turf, landscape, vegetation, or any other structure or facility of any kind within the Easement Lands, interference with Owner's activities on the Easement Lands or other property interests of Owner caused by or related to activities on the Fee Lands related to the Project and /or activities within the scope of the rights granted by the Easement, whether accruing now or hereafter, and Owner hereby releases for herself, her heirs, devisees, successors and assigns, the City, it's officers, employees, elected officials, agents and contractors from and against any and all claims they may have now or in the future, related to the herein described matters, events and /or damages. 5. The Closing (herein so called) shall occur in and through the office of Title Resources, LLC, 525 South Loop 288, Suite 125, Denton, Texas, 76205 ( "Title Company "), with said Title Company acting as escrow agent, on the date which is 90 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ( "Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. 6. The stipulated Total Monetary Compensation amount shall be paid by the City at Closing to the Owner through the Title Company. Ad valorem taxes relating to the Fee Lands for the calendar year in which Closing shall occur shall be prorated between Owner and City as of the Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the N Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Fee Lands for the preceding calendar year, and shall be readjusted in cash as soon as the amount of taxes levied against the Fee Lands for the calendar year in which Closing shall occur is known. The result of such proration is that the Owner shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the Closing Date) and City shall pay for those taxes attributable to the period commencing as of the Closing Date. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. 7. The date on which this Agreement is executed by the Owner shall be the "Effective Date" of this Agreement. B.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 9. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 10. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands or Easement Lands; or (ii) enter 5 into any Agreement that will be binding upon the Fee Lands or the Easement Lands, or upon the Owner with respect to the Fee Lands or the Easement Lands, after the date of Closing. 11. Any notices prescribed or allowed hereunder to Owner or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: OWNER: Wilma M. Haggard Phone_ Telecopy: Copies to: Fnr Ownr -r- Telecopy: CITY: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For City: Richard Casner, First Assistant City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 12. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. 13. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deeds or Easement. 0 14. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Fee Lands and /or Easement Lands, City may, at its election, terminate this Agreement at any time prior to Closing. 15. Authority to take any actions that are to be, or may be, taken by City under this Agreement, including without limitation, adjusting the Closing Date of this Agreement are hereby delegated by City, pursuant to action by the City Council of Denton, Texas, to Frank Payne, City Engineer of City, or his designee. CITY OF DENTON, TEXAS C GEORGE C. CAMPBELL, CITY MANAGER Date: 2014 ATTEST: JENNIFER WALTERS, CITY SECRETARY C Date: 2014 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Date: 2 0 , 2013 7 OWNER: WILMA M. HAGGARD Date: 52014 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 in Printed Name: Title: Contract receipt date: , 2014 E ATTACHMENT I TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED (Mayhill Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That Wilma M. Haggard, a single woman (herein called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibit "A" and depicted in Exhibit "B ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas,�together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, her heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors Page 2 of 3 and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of , 2014. WILMA M. HAGGARD ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on Wilma M. Haggard. Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 3 of 3 2014 by Notary Public, State of Texas My commission expires: Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 EXHIBIT "A" - to Special Warranty Deed rthur Surveying Co., Inc. .ig'rof�sszox�e�.F .�..�zzd Sazz-ve.�oxs P.O. Box 54 --• Lewisville, Texas 75067 Oiiicu: (972) 221 -9139 •- Fax: (972) 221 -4675 EXHIBIT "A" MAYHILL ROAD PARCEL M136 1.029 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David I-fough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod found for corner in the east line of said Haggard tract and the northeast corner of a tract of land described by deed to Richard A. Greb and wife, Nancy A. Greb, recorded under instrument Number 2006 - 100770, Official Public Records, Denton County, Texas (O.P.R.D.C.T), and being in the existing Mayhill Road; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 80.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the POINT OF BEGINNING; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of t35.17 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Haggard tract, a distance of 330.88 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Haggard tract and the south line of a tract of land described by deed to John Henry Bond, etal., recorded under Instrument Number 2004- 30989, O.P.R.D.C.T.; THENCE North 87 degrees 52 minutes 49 seconds East, with the north line of said Haggard tract and the south line of said Bond tract, a distance of 135.32 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 01 degrees 50 minutes 21 seconds West, over and across said Haggard tract, a distance of 333.40 feet to the POINT OF BEGINNING and containing 1.029 acres of land. �) 0,1/ 06 1 (� / � / jov C 1107131 -27 Parcel M136 405" : kt � f g ryt UY)t.Cii.` 5L 405" : kt � f EAHM11 "J3' . — W opuvitalt VV al I auiy Lccu John Instr.No. Henry 04 30989 ),$ N8705249T 135.32' _"T�•� 1. R. � Richard A. Greb & wife, Nancy A. Grab Instr. No. 2006- 100770 EXHIBIT "B' 1 Mayhill Road Parcel M136 1.029 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas -- 2012-- 1. R. F. w ^o o� °o ro 2 I PK" Nail s79 E Set � y L fiC 0 !. l Vt Cj)gy ?0� t00 0 50 100 1 82.761 I 6 15' Gas Easement lnstr. No. 2006 -64790 TP &L Easement t Vol. 190, Pg. 620 a t �i a Ml I ° o CN °) a- +�3 v�j I a I is I � t a t II o I � t P. � I $88'56°§53 "W _1__80_ if R.F. 3 �o Mai C. I. R. F. SCALE: P'=100' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • I.R.F. = Iron Rod Found • C.LR.F. = 5/8" Iron Rod Found with cap stamped "Cotton Surveying ". • I.R.S. = 1/2" Iron [god Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easement recorded in Vol. 336, Pg. 367 does not affect this tract to the best of my knowledge. • Easement recorded in Vol. 341, Pg. 222 assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. • Blanket Easement recorded in Vol. 357, Pg. 54 includes this tract. SURVEYORSCERTWICA77ON: The undersigned does hereby certify to Title Resources (O.F. No. 121698) that this survey was this day made on the ground of tha property legally described hereon and is correct, and to the best of my knowledge, there are no visible discrepancies, conflicts, shortages m area, boundary line conflicts, encroad"nents, overlapping ofbnprovements, easements or rights ofway that I have been advised of except as shown hereon. rthur Surveying Co., Inc. PrtoressiozW Land Surveyors P,O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4676 Estatblished 1986 i r II °� 1.029 Acres Mason A. Haggard & Mi parcel M136 wife, Wilma Haggard W Volume 337, Page 430 ^ (44,839 sq. ft.) (remainder) o i S88'55'53 "W I I S 468.68' I.R, S. C— s I.R.S. �..... 135.17' 518" I.R.F. c l� P.0• {�. Richard A. Greb & wife, Nancy A. Grab Instr. No. 2006- 100770 EXHIBIT "B' 1 Mayhill Road Parcel M136 1.029 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas -- 2012-- 1. R. F. w ^o o� °o ro 2 I PK" Nail s79 E Set � y L fiC 0 !. l Vt Cj)gy ?0� t00 0 50 100 1 82.761 I 6 15' Gas Easement lnstr. No. 2006 -64790 TP &L Easement t Vol. 190, Pg. 620 a t �i a Ml I ° o CN °) a- +�3 v�j I a I is I � t a t II o I � t P. � I $88'56°§53 "W _1__80_ if R.F. 3 �o Mai C. I. R. F. SCALE: P'=100' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • I.R.F. = Iron Rod Found • C.LR.F. = 5/8" Iron Rod Found with cap stamped "Cotton Surveying ". • I.R.S. = 1/2" Iron [god Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easement recorded in Vol. 336, Pg. 367 does not affect this tract to the best of my knowledge. • Easement recorded in Vol. 341, Pg. 222 assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. • Blanket Easement recorded in Vol. 357, Pg. 54 includes this tract. SURVEYORSCERTWICA77ON: The undersigned does hereby certify to Title Resources (O.F. No. 121698) that this survey was this day made on the ground of tha property legally described hereon and is correct, and to the best of my knowledge, there are no visible discrepancies, conflicts, shortages m area, boundary line conflicts, encroad"nents, overlapping ofbnprovements, easements or rights ofway that I have been advised of except as shown hereon. rthur Surveying Co., Inc. PrtoressiozW Land Surveyors P,O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4676 Estatblished 1986 ATTACHMENT 2 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED (Landfill Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That Wilma M. Haggard, a single woman (herein called "Grantor "), for and in consideration of the sum of TEN AND NO/ 100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibit "A" and depicted in Exhibit "B ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for herself, her heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, her heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors Page 2 of 3 and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of THE STATE OF TEXAS § COUNTY OF DENTON § 2014. WILMA M. HAGGARD ACKNOWLEDGMENT This instrument was acknowledged before me on , 2014 by Wilma M. Haggard. Notary Public, State of Texas My commission expires: Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 3 of 3 Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 EXHIBIT "A" - to Special Warranty Deed rthur Surveying Co., Inc. .,I°zofesszoxlaX .�,.an�cz' Surveyors P.O. Box 54 — Lewisville, Tees 75067 011iec: (972) 221 -9439 •- Fax: (972) 221 -4675 EXHIBIT "A" MUNICIPAL USE TRACT 0.624 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod found for comer in the east line of said Haggard tract and the northeast corner of a tract of land described by deed to Richard A. Greb and wife, Nancy A. Greb, recorded under Instrument Number 2006 - 100770, Official Public Records, Denton County, Texas (O.P.R.D.C.T,), and being in the existing Mayhill Road; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 80.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for corner; THENCE North 01 degrees 50 minutes 21 seconds East, over and across said Haggard tract, a distance of 333.40 feet to a 1/2 inch iron rod with yellow cap stamped "ASC' set for corner in the north line of said Haggard tract and the south line of a tract of land described by deed to John Henry Bond, etal., recorded under Instrument Number 2004 - 30989, O.P.R.D.C.T.; THENCE North 87 degrees 52 minutes 49 seconds East, with the north line of said Haggard tract and the south line of said Bond tract, a distance of 82.76 feet to a "PK" Nail set for the northeast comer of said Haggard tract and the southeast corner of said Bond tract, same point being in the existing Mayhill Road; THENCE South 02 degrees 14 minutes 30 seconds West, with the east line of said Haggard tract, and with the existing Mayhill Road, a distance of 335.07 feet to the POINT OR BEGINNING and containing 0.624 acres of land, of which 0.230 acres lie within the existing Mayhill Road. 'V C1107131 -27 Parcel M136 Municipal Use Tract ��•Q� � F� .•cS E JOHN, EXHIBIT "Bit - to Special Warranty Deed 1 C , 1 lkl �p John Henry Bond, etal. Instr. No. 2004 -30989 —• —• —" '— •— " —,r- -. 15' Gas "Easement ---� 1 lnstr. No. 2006 -64790 I (5,005 sq. ft.) O M M New Municipal Use Tract 0.279 ac. (12,149 sq. ft.) `^ Existing Implied Dedication 0.230 ac. (10,042 sq, ft.) Gas Easement 0.115 ac. (5,005 sq. ft.) 0.624 Acres (27,196 sq. ft.) Municipal Use Tract Mason A. Haggard & I wife, Wilma Haggard )�, Volume 337, Page 430 .- (remainder) 0- 1 ��a 1 S88'56'53 ' W Proposed Force! M136 603.85' i, R. S. I,R.F.p� 4 S� 9 Richard A Grab & wife, Nancy A. Greb tnstr. No. 2008 - 100770 EXHIBIT "B" Municipal Use Tract 0.624 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- N87a5. 82. 80.31, I.R.F �w M`D °° co z �� "E 3 c M° rnro C.1. R. F. �yw too 0 50 100 ` PK" Noll SCALE: I"= 100' Set Bearings shown hereon based on the City of Denton GIS Network. 1 .4 -1 Existing Fence iP&L Easement o Vol. 190, Pg. 620 NOTES: 9 1M LR.F. = Iron Rod Found ^ C.I.R.F. = 5/8" Iron Rod Found with �M cap stamped "Cotton Surveying ". 1 • I.R.& = 1/2" Iron Rod Set with o ! _ Q 3 yellow cap stamped "Arthur U �0 Surveying Company" All improvements not shown hereon. 0 1 ° • Easement recorded in Vol. 336, Pg. 1 3 367 does not affect this tract to the h••l best of my knowledge. to orn Easement recorded in Vol. 341, Pg. v 222 assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. 1 • Blanket Easement recorded in Vol. 1 357, Pg. 54 includes this tract. R. F. J17NN M. Ri.tSSkl.l_ 1i N SURVEYORS CERTIFICATION: Tha undersigned does hereby certify to Title Resources (O.F. No. 121698) that this survey was this day made on the ground of the property legally described hereon and is correct, and to the best of my knowledge, there are no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachments, overlapping ofimprovomentss, easements or rights of way that I have been advised ofexccpt as shown hereon. rthur Surveying Co., Inc. .Pmfesslional Land Surveyoxv P.O.Box 54 - Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 s:Alegal \our documents \contracts \13 \haggard slope easement.doc ATTACHMENT 3 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SLOPE EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Wilma M. Haggard, a single woman ( "Grantor "), in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt and sufficiency of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ( "Grantee ") a perpetual slope easement in, along, upon, under, over and across the following described property (the "Property "), owned by Grantor, and situated in Denton County, Texas, located in the David Hough Survey, Abstract Number 646, to wit: PROPERTY DESCRIBED IN EXHIBIT "A" AND DEPICTED IN EXHIBIT "B ", ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining lateral slope in, along, upon, under, over and across said Property, including without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, upon, under, over and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said lateral slope features or grade, or any part thereof. This Easement is subject to the following covenants and agreements: 1. Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, upon, under, over or across the Property by Grantor. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may alter the grade of the Property and may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Maintenance of Lateral Slope. No activity, of any kind, shall be conducted on the Property by Grantor that may impair, damage or destroy the lateral slope, including without limitation, excavation or movement of soil or other material. 3. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right -of -way. 4. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may encroach or overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 5. Grantor's Rights. Grantor shall have the right, subject to the covenants and restrictions contained herein, to make use of the Property for any purpose that does not interfere with the City's rights granted to it herein for the purposes granted. 6. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their heirs, devisees, successors and assigns. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness my hand, this the _ day of , 2014. 2 Grantor: WILMA M. HAGGARD ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on , 2014 by Wilma M. Haggard. Notary Public, in and for the State of Texas My Commission Expires: AFTER RECORDING RETURN TO: City of Denton — Engineering Department 901 -A Texas Street Denton, Texas 76209 Attn: Paul Williamson EXHIBIT "A" - to Slope Easement Arthur Surveying Co., Inc. .Pxo�essior,��..I' ��.nd Suxcreyoxs P.O. Box 54 — Lewisville, "Texas 75067 Office: (972) 221 -9439 •-- Fax: (972) 221 -4675 EXHIBIT "A" 10' SLOPE EASEMENT MAYHILL ROAD PROJECT 0.076 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, Deed Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod found for corner in the east line of said Haggard tract and the northeast corner of a tract of land described by deed to Richard A. Greb and wife, Nancy A. Greb, recorded under Instrument Number 2006 - 100770, Official Public Records, Denton County, Texas (O.P.R.D.C.T.), and being in the existing Mayhill Road; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 215.48 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the POINT OF BEGINNING; THENCE South 88 degrees 56 minutes 53 seconds West, with the north line of said Greb tract, a distance of 10.01 feet to a point for corner; THENCE North 0 t degrees 50 minutes 21 seconds East, over and across said Haggard tract, a distance of 330.69 feet to a point for corner in the north line of said Haggard tract and the south line of a tract of land described by deed to John Henry Bond, etaL, recorded under Instrument Number 2004 - 30989, O.P.R.D.C.T.; THENCE North 87 degrees 52 minutes 49 seconds East, with the north line of said Haggard tract and the south line of said Bond tract, a distance of 10.02 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 01 degrees 50 minutes 21 seconds West, over and across said Haggard tract, a distance of 330.88 feet to the POINT OF BEGINNING and containing 0.076 acres of land. C1107131 -27 Parcel M136 Slope Easement EXHIBIT "B" - to Slope Easement V John Henry Bond, etal. Instr. No. 2004 -30989 10 I�:O✓ u M n 0 0 0 z LL22 �. ---• _ _ _� ' _ — _ ' I.R. S. - ' 218.08 I I 10' Slope Easement i 0.076 Acres (3,308 sq. ft.) q1 10`o I 0 M Mason A. Haggard & tM^i e�14 � wife, Wilma Haggard Volume 337, Page 430 c~v l N os�a4 a (remoinder) o i i 0 QvoQ o I i} I 588'56'53 "W��q� I 458.67' 11.R.S. 0--- S88'56'53W 215.48' L1T 1� cr,O- Richard A. Grab & wife, Nancy A. Grab fnstr, No. 2008- 100770 C. 1. R. F. EXHIBIT "B" 10' Slope Easement Mayhill Road Project 0.076 Acres .David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- I I OF I 0 p I -d I a I � I cd I 'J" N 100 0 50 loo SCALE: 1" = 100' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • I.R.F. = Iron Rod Found • C.LR.F. = 5/8" Iron Rod Found with cap stamped "Cotton Surveying ". • I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. L1 S88 °5653 "W 10.01' L2 N87e5249 "E 10.02' SURVEYORS CERTIFICATION: The undersigned does hereby certify to that this survey was this day made on the ground of the property legally described hereon and is correct, and to the best ofmy knowledge, there are no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachmenta, overlapping of Improvements, easements or rights of way that 1 have been advised of except as shown hereon. rthur Surveying Co., Inc. Professional Land Surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Estatblished 1986 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance finding that a public use and necessity exists to acquire (1) fee simple to a 7.628 acre tract (the " Mayhill Tract "); (I1) fee simple to 2.276 acres (the "Landfill Lands "); and (II1) a Drainage Easement (herein so called), encumbering 0.196 acre, all lands located in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, as more particularly described on Exhibit "A ", attached hereto and made a part hereof, located generally in the 2100 block of South Mayhill Road (the "Property Interests "), for (A) as concerns the Mayhill Tract and the Drainage Easement, the public use of expanding and improving Mayhill Road, a municipal street and roadway; and (B) as concerns the Landfill Lands, for the public use of expanding and improving the City of Denton Landfill, a permitted municipal solid waste disposal facility; authorizing the City Manager or his designee to make an offer to (1) Kevin Nelms and Richard Greb and wife, Nancy Greb (collectively, the "Owner "); (2) successors in interest to the owner of the to the Property Interests; or (3) any other owners of the Property Interests, as may be applicable, to purchase the Property Interests for the purchase price of Eight Hundred Sixty Seven Thousand Three Hundred Forty Seven Dollars and No Cents ($867,347.0), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached hereto and made a part hereof as Exhibit "B "; authorizing the expenditure of funds therefor; and providing an effective date. ( Mayhill Road Widening and Improvements project — Nelms /Greb - Parcel M 13 7 & M138) BACKGROUND The City Council considered and approved an initial offer to purchase Property Interests on July 16, 2013 for the purchase price of $867,347.00. (Ordinance 2013 -181) That initial offer to purchase land rights was extended to Owner on July 19, 2013, via certified mail. There have not been any substantive negotiations to date in respect to the City's offer to purchase the captioned land rights. Approval of the ordinance under consideration authorizes staff to extend a Final Offer to Owner for the captioned land rights necessary for the road widening project. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. Agenda Information Sheet January 7, 2014 Page 2 RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Public Utilities Board on June 24, 2013 recommended approval of the acquisition of the collective 2.276 acres for Municipal Use (6 -0), being a 2.151 acre tract and a 0.125 acre tract. City Council July 16, 2013 (Offer to Purchase Ordinance 2013 -181) FISCAL INFORMATION The 7.628 acre fee tract and the 0.196 acre drainage easement, both associated with the Mayhill Road Widening and Improvements project, are being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds ($766,804.00) The 2.151 acre Municipal Use Tract and the .0125 acre Municipal Use Tract (collectively 2.276 acres) are to be funded by Solid Waste capital project bonds allocated for real property purchases: 660563594.1365.30100 ($100,543.00) The total purchase offer price being $867,347.00 plus closing costs, as prescribed in the Agreement. EXHIBITS 1. Location Map 2. Ordinance 3. PUB Minutes June 24, 2013 Respectfully submitted, r Paul Williamson, Real Estate Manager Nelms & Greb o N Q Property Location 0 �o Ali CREEK � o Q o uj � Q Q HUDSON* D Q. C oR 0 DENTON REGIONAL o MEDICAL CENTER __j FLOWERS BAKERY O � Q Location Map EXHIBIT 1 attachment to AIS Nelms and Greb Parcel M137 & M138 Mayhill Road Widening and Improvements EXHIBIT 2 attachment to AIS ORDINANCE NO. 2014- AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE (I) FEE SIMPLE TO A 7.628 ACRE TRACT (THE 'MAYHILL TRACT "); (I1) FEE SIMPLE TO 2.276 ACRES (THE "LANDFILL LANDS "); AND (III) A DRAINAGE EASEMENT (HEREIN SO CALLED), ENCUMBERING 0.196 ACRES, ALL LANDS LOCATED IN THE DAVID HOUGH SURVEY, ABSTRACT N[_]1VIBER 646, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED ON EXHIBIT "A ", ATTACHED HERETO AND MADE A PART HEREOF, LOCATED GENERALLY IN THE 2100 BLOCK OF SOUTH MAYHILL ROAD (THE "PROPERTY INTERESTS "), FOR (A) AS CONCERNS THE MAYHILL TRACT AND THE DRAINAGE EASEMENT, THE PUBLIC USE OF EXPANDING AND IMPROVING MAYHILL ROAD, A MUNICIPAL STREET AND ROADWAY; AND (B) AS CONCERNS THE LANDFILL LANDS, FOR THE PUBLIC USE OF EXPANDING AND IMPROVING THE CITY OF DENTON LANDFILL, A PERMITTED MUNICIPAL SOLID WASTE DISPOSAL FACILITY; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO (1) KEVIN NELMS AND RICHARD GREB AND WIFE, NANCY GREB (COLLECTIVELY, THE "OWNER"); (2) SUCCESSORS IN INTEREST TO THE OWNER TO THE PROPERTY INTERESTS; OR (3) ANY OTHER OWNERS OF THE PROPERTY INTERESTS, AS MAY BE APPLICABLE, TO PURCHASE THE PROPERTY INTERESTS FOR THE PURCHASE PRICE OF EIGHT HUNDRED SIXTY SEVEN THOUSAND THREE HUNDRED FORTY SEVEN DOLLARS AND NO CENTS ($867,347.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT B "; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton made an initial offer to the Owner to purchase the Property Interests on July 19, 2013, pursuant to Ordinance No. 2013 -181, passed and approved by the City Council of the City of Denton on July 16, 2013; WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas: THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Council finds that a public use and necessity exists, and that the public welfare and convenience require the acquisition of the Property Interests by the City of Denton, Texas (the "City "). The City Council hereby finds and determines that the acquisition of (a) the Mayhill Tract and the Drainage Easement are necessary for public use to provide street and roadway expansion and improvements of Mayhill Road; and (b) the Landfill Lands are necessary for public use to provide for expansion and improvement of the City of Denton landfill, a permitted municipal solid waste disposal facility, each to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The City Manager, or his designee, is hereby authorized to make the final offer to purchase the Property Interests to (i) the Owner; (ii) any and all of Owner's successors in interest to the Property Interests; or (iii) any other parties who may own any interest in the Property Interests, as may be applicable. SECTION 3. The City Manager, or his designee, is hereby authorized to (a) execute for and behalf of the City (i) the Agreement, by and between the City and Owner, or other owners of the Property Interests, as applicable, in the form attached hereto and made a part hereof as Exhibit "B ", with a purchase price of $867,347.00 and other consideration, plus costs and expenses, all as prescribed in the Agreement; and (ii) any other documents necessary for closing the transaction contemplated by the Agreement; and (b) to make expenditures in accordance with the terms of the Agreement. SECTION 4. The City Manager, or his designee, is directed, by certified mail, return receipt requested, to disclose to Owner, or other owners of the Property Interests, as applicable, any and all appraisal reports produced or acquired by the City relating specifically to the Owner's property and prepared in the 10 years preceding the date of the offer made by the Agreement. SECTION 5. The offer to Owner, or other owners of the Property Interests, as applicable, shall be made in accordance with all applicable law. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: '' �. EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., Inc. �xoFessio�a3.�az�d Surveyors P.O. Box 54 -• Lewisville, Texas 75067 011-we: (972) 221 -9439 — Pax: (972) 221 -4675 MAYHILL ROAD PARCEL M137 & M138 7.628 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tracts I and II as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: BEGINNING at a "PK" nail set in Mayhill Road for the southeast corner of said Nelms Tract I and the northeast corner of a right -of -way dedication as shown on Providence Place 11, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms Tract I and the north tine of said right -of -way dedication, a distance of 28.98 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the beginning of a non - tangent curve to the left, having a radius of 355.00 feet; THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 44 degrees 20 minutes 29 seconds, whose chord bears North 25 degrees 14 minutes 53 seconds West at 267.93 feet, having an are length of 274.74 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 57 degrees 27 minutes 27 seconds West, over and across said Nelms Tract 1, a distance of 197.21 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 37 degrees 43 minutes 36 seconds West, over and across said Nelms Tract I, a distance of 307.97 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the left, having a radius of 905.00 feet; THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 09 degrees 21 minutes 40 seconds, whose chord bears South 33 degrees 02 minutes 46 seconds West at 147.70 feet, having an are length of 147.86 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the south line of said Nelms Tract I and the north line of said Providence Place 11; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms Tract I and the north line of said Providence Place II, a distance of 286.96 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 01 degrees 58 minutes 58 seconds West, over and across said Nelms Tract I, a distance of 8.87 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, having a radius of 125.00 feet; (continued) C1107131 -41 Parcel M137 & M138 EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., Inc. �xo�f�ssioxiaF .L,.and Suxveyoxs P.O. Box 54 -• Lewisville, Texas 75067 OLlice: (972) 221 -9439 -- Fax: (972) 221 -4675 THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 43 degrees 33 minutes 22 seconds, whose chord bears North 66 degrees 14 minutes 21 seconds East at 92.75 feet, having an are length of 95.02 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 106.00 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 13 degrees 34 minutes 20 seconds, whose chord bears North 30 degrees 56 minutes 26 seconds East at 261.38 feet, having an arc length of 261.99 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms Tract I, a distance of 160.39 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, having a radius of 109.42 feet; THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 3 8 degrees 56 minutes 51 seconds, whose chord bears North 18 degrees 15 minutes 10 seconds East at 72.96 feet, having an arc length of 74.38 feet to a 112 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 129.21 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 38 degrees 33 minutes 48 seconds, whose chord bears North 18 degrees 26 minutes 43 seconds East at 85.33 feet, having an arc length of 86.97 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the left, having a radius of 10.00 feet; THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 90 degrees 05 minutes 58 seconds, whose chord bears North 07 degrees 19 minutes 26 seconds West at 14.15 feet, having an are length of 15.73 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 52 degrees 22 minutes 26 seconds West, over and across said Nelms Tract 1, a distance of 20.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 37 degrees 37 minutes 34 seconds East, over and across said Nelms Tract I, a distance of 70.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 52 degrees 22 minutes 26 seconds East, over and across said Nelms Tract 1, a distance of 20.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the left, having a radius of 10.01) feet; THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 89 degrees 53 minutes 58 seconds, whose chord bears North 82 degrees 40 minutes 35 seconds East at 14.13 feet, having an arc length of 15.69 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms Tract I, a distance of 20.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE South 52 degrees 16 minutes 24 seconds East, over and across said Nelms Tract 1, a distance of 77.91 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, having a radius of 920.00 feet; (continued) C1107131 -41 Parcel M 137 & M 138 EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., Inc. .Pxofesszax�a.Y �Lazzd Surveyors P.O. Box 54 Lewisville, Texas 75067 Office: (972) 221 -9439 --- Fax: (972) 221 -4675 THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 32 degrees 32 minutes 30 seconds, whose chord bears North 19 degrees 08 minutes 48 seconds East at 515.53 feet, having an arc length of 522.52 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Nelms Tract I, a distance of 31.69 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Nelms Tract I and the south line of said Nelms Tract II; THENCE North 87 degrees 51 minutes 52 seconds East, with the north line of said Nelms Tract I and the south line of said Nelms Tract It, a distance of 12.55 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Nelms Tract II, a distance of 324.80 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Nelms Tract II and the south line of a remainder of a tract of land described to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, D.R.D.C.T.; THENCE North 88 degrees 56 minutes 53 seconds East, with the north line of said Nelms Tract II and the south line of said Haggard tract, a distance of 141.36 feet to a 1/2 inch iron rod with yellow cap stamped "ASC' set for corner; THENCE South 02 degrees 12 minutes 08 seconds West, over and across said Nelms tracts, passing the south line of said Nelms Tract II, continuing on for a distance of 455.65 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the right, having a radius of 1082.50 feet; THENCE over and across said Nelms Tract 1, with said curve to the right, through a central angle of 28 degree 13 minutes 01 seconds, whose chord bears South 21 degrees 39 minutes 56 seconds West at 527.74 feet, having an arc length of 533.10 feet to a 1/2 inch iron rod with yellow cap stamped "ASC' set for corner; THENCE South 46 degrees 38 minutes 28 seconds East, over and across said Nelms Tract I, a distance of 218.20 feet to a 1/2 inch iron rod with yellow cap stamped "ASC' set for the beginning of a non - tangent curve to the right, having a radius of 445.00 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 18 degrees 46 minutes 44 seconds, whose chord bears South 38 degrees 01 minutes 45 seconds East at 145.20 feet, having an are length of 145.85 feet to a "PK" nail set for corner in Mayhill Road; THENCE South 02 degrees 06 minutes 21 seconds West, with Mayhil Road, a distance of 193.36 feet to the POINT OF BEGINNING and containing 7.628 acres of land of which 0.153 acres lies within existing Mayhill Road. asp, OFI I Q J Ch: �Vi ., JOHN Vii: Au i713�1 C1107131-41 Parcel M137 & M138 EXHIBIT "A1l - to Ordinance (Property Interests) Mason A. Haggard & wife, Wilma Haggard Volume 337, Page 430 (remainder) existing fence Kevin Nelms Vol. 3432, 911 r _ It Tract It � W Richard A. Greb & Nancy A. Greb M Instr. No. 2000 - 100770 \ cot•} te4'n o N o Tract II 1 3,4h 587'51'52' W \ F. L13— 1. R. 1585.91 o�- -"_ —_— L12� I.R.F.4 w t 1 NO to N88656'S3 "E ipt ;ne 141.36' 1 °o, o' OX lsting fence New Dedication 7.475 ac. (325,607 sq. ft.) Existing Implied Dedication 0.153 ac. (6,658 sq. ft.) 7.628 Acres (332,265 sq. ft.) Parcel M137 & M138 fit; Kevin Nelms a�L9 L10 Vol. 3432, Pg. 911 A. T I rac t l Richard A. Greb & �� L77 Nancy A Greb ' C6 Instr. No. 2006 - 100770 p Tract t Y INC is C¢ / gas line / Ksee note C� a S88'01'21 "W 955.83' L5 C3 —I L4,, cotes i �l t•�e l2 et5 ee�e o %1 ak) QI1A 'P $e Nail Q ow 192 �3 C10:N8instr. 15' Gas Easment No. 2006 -34815 0-- — IA _ 5/8" I.R.F. c (C.M.) - tt t t Providence Place li Robert P. Donnelly Cabinet Y. Page 905 a ,t` Volume 3384, Page 905 (remainder) t Donnelly Addition , , t, Cabinet 0, Page 77 *See page 2 for line & curve tables* Mayhill Road Parcel M137 & M138 7.628 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012— Q N 300 0 150 300 SCALE: V= = 300' Bearings shown hereon based on the City of Denton GIS Network. NOTES: • o= I.R.S. • I.R.F. = 1/2" Iron Rod Found • I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" — 60' Brazos Electric Power Easement Volume 1636, Page 436 • "PK" Nail Set f— Implied Dedication L15 "PK" Nail Set // = Municipal Use Tracts All improvements not shown hereon. Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347, 367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigned in Vol. 2736, Pg. 828 includes this tract. Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. Gas line shown was not field verified. location provided by others. CO SURVEYORS • tic\ SURVEYORS CERTMCAT70N: The undenigued does hereby certify to Title Resources (G.F. No. 102631.91 102632) that this survey was this day made on the ground of the property legally described hereon and is correct, and to the best ofmy knowledge, there are no visible diserepancles, conflicts, shortages in area, boundary fine conflicts, encroachments, overlapping of improvements, easements or rights of way that i have been advised orexcept as shown hereon. rthur Surveying Co., Inc. Professional Laud surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Established 1986 Page 1 of 2 EXHIBIT "A" - to Ordinance (Property Interests) LINE TABLE L1 I S88001'21 "W 28.98' L2 N57 02727 "W 19721' L3 S37 04336 "W 307.97' L4 S88 °0121 "W 286.96' L5 N01 °58'58 "W 8.87' L6 N37 04336 "E 160.39' L7 N52 02226 "W 20.00' L8 N37 0379 4 "E 70.00' L9 S52 02226 "E 20.00' L10 N37 043`36 "E 20.00' L11 S52 01624 "E 1' I2 N18 02643 "E 85.33' 31.6 ' L13 N 12.55' LLIJ MS4603828"E .218.210Y" LLdj 89 053158" 7 rrra VE TABLE # Radius Lenjzth Delta Chord CI 355.00' 274.74' 44 020129" N25 014'53 "W 267.93' C2 905.00' 147.86' 09 021'40" S33 002'46 "W 147.70' C3 125.00' 95.02' 43 °33122" N66014121 11E 92.75' C4 106.00' 261.99' 13 034120" N30 056126 1E 261.38' CS 1 109.42' 74.38' 38 °56'51" N18 °15110 1E 72.96' C6 129.21' 86.97' 38 033148" N18 02643 "E 85.33' C7 10.00' 15.73' 90 005158" N07 019126 "W 14.15' C8 10.00' 75 69' 89 053158" N82 040135'E 14.13' C9 920.00' 522.52' 32 °32'30" N19 °08'48 "E 515.53' C10 1082,50' 33 10' 28 013'01" S21 03 'S " ' C11 445.00' 145.85' 18 °46'44" S38 °01'45" 45. 0' Mayhill Road Parcel M137 & M138 7.628 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- Arthur Surveying Co., Inc. Professional Land Surveyors P.O.Box 54 - Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Established 1988 Page 2 of 2 EXHIBIT "A" - to Ordinance (Property Interests) ,Arthur Surveying Co., I nc. �xo#'essXOxza� X—R- d Szu v�yors P.O. Box 54 --- Lewisville, Texas 75067 Oliice: (972) 221 -9439 •-- Fax: (972) 221 -4675 MUNICIPAL USE TRACT 2.151 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tracts I and H as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: BEGINNING at a "PK" nail set in Mayhill Road for the northeast corner of said Nelms Tract II and the southeast corner of a remainder of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, D.R.D.C.T.; THENCE South 02 degrees 06 minutes 21 seconds West, with Mayhill Road, passing the south line of said Nelms Tract II and the north line of said Nelms Tract I, continuing on for a distance of 1212.24 feet to a "PK" nail set in Mayhill Road for the beginning of a non - tangent curve to the left, having a radius of 445.00 feet; THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 16 degrees 47 minutes 45 seconds, whose chord bears North 37 degrees 02 minutes 15 seconds West at 129.98 feet, having an arc length of 130.45 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for corner; THENCE North 02 degrees 12 minutes 08 seconds East, over and across said Nelms tracts, passing the north line of said Nelms Tract I and the south line of said Nelms Tract II, continuing on for a distance of 1107.01 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Nelms Tract II and the south line of said Haggard tract; THENCE North 88 degrees 56 minutes 53 seconds East, with the north line of said Nelms Tract II and the south line of said Haggard tract, a distance of 80.31 feet to the POINT OF BEGINNING and containing 2.151 acres of land of which 0.904 acres lie within existing Mayhill Road. C1107131 -41 Parcel M137 & M138 -MUT , Q F A. T, - EXHIBIT "A" - to Ordinance (Property Interests) Mason A. Haggard & rife, Wilma Haggard Volume 337, Page 430 (remainder) exlsfing fence I.R N88056'53 "E 80.31'\ Kevin Nelms Vol, 3432, 11 911 Tract 11 f I Richard A. Greb &,gl I Nancy A Grab tee' Instr. No. 006- 100770 Tract 1 i Ay\ ate° S87'S1'S2 W\ I.R.F. 1585.91 (C.M. ) - - -�-`� - - -- New Municipal Use 0.863 ac. (37,V 00 sq. ft.) Existing Implied Dedication 0.904�c. ( 9,384 sq. ftd Gas Easement 0.384 ac. (16,717 sq. ft.) I 2.151 Acres (93,701 sq. ft.) Municipal Use Tract , Kevin Nelms \ Vol. 3432, Pg. 911 0 /f \ Tract I ze: R ichard A. Greb & Nancy & Grab Instr. No. I- 100770'e9 01 6l poems �, X33208 / e e� Sge / / 5 pet �a SS 821.61 " Proposed Municipal Use Tract 2 518" I.R.F. __ -- fence (C.M.) t — it 0 P11 o�l �1 old z11 t Providence Place II Robert P. Donnelly Cabinet X Page 906 Volume 3364, Page 906 (remainder) 1 Donnelly Addition �� it Cabinet 0, Page 77 1 rrrRVR TART.R # Radius Len Delta Chord C1 1 445.00' 1 130.45' 1 1604745" N37e02'15 "W 129.98' Municipal Use Tract 2.151 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- w ;nom r QQ) O „P Se Nail I 1 b� CA iCA 3 r +t� 1� Gas Easement No. 2006 -34815 N 300 0 I50 300 SCALE: V =300' Bearings shown hereon based on the City of Denton GIS Network. — 60' Brazos Electric Power Easement Volume 1636, Page 436 NOTES: • o= I.R.S. • I.R.F. = 1/2" Iron Rod Found • I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347,367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. • Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigned in Vol. 2736, Pg. 828 includes this tract Implied Dedication • Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 Vail is centered on a pipeline not specifically located. 1 t - SO2'06'21;'W 193.36 P Se Nail .' v JOHN Wt ;tJF)SEI_a 10� `V SURVEYORS CERTIFICATION: no undersigned does hereby certify to Title Resources (O.P. No. 102631 & 102632) that this survey was this day made on the ground of tho property lego tly described hereon and Iscorrect and to tho best ofmy knowledge, there are no visible disemmcles, conflicts, shortages in area, boundary Lind conticts, eacroacbmonts, overlsppiag of improvements, easements or rights ofway that I have been advised ofexceptas shown hereon. rthur Surveying Co., Inc. .Professional Land Surveyors P.O.Box 64 — Lewisville, Texas 76067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Established 1986 EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., I nc. Pzofessxon�..Y .�,aztci Suz-veyors P.O. Box 54 •-- Lewisville, Texas 75067 Oilice: (972) 221 -9439 -- Fax: (972) 221 -4675 MUNICIPAL USE TRACT 0.125 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tract I as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: COMMENCING at a "PK" nail set in Mayhill Road for the southeast corner of said Nelms tract and the northeast corner of a right -of -way dedication as shown on Providence Place II, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms tract and the north line of said right -of -way dedication, a distance of 28.98 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the POINT OF BEGINNING; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms tract and the north line of said Providence Place addition, a distance of 53.79 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 02 degrees 12 minutes 08 seconds East, over and across said Nelms tract, a distance of 161.30 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner at the beginning of a non - tangent curve to the right, having a radius of 355.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of 27 degrees 05 minutes 13 seconds, whose chord bears South 16 degrees 37 minutes 15 seconds East at 166.27 feet, an arc length of 167.83 feet to the POINT OF BEGINNING and containing 0.125 acre of land. ^aY;� 435 C1107131 -4t Parcel M137 & M138 -MUT2 I CvN� c:A } t :,p"N''y' ^aY;� 435 C1107131 -4t Parcel M137 & M138 -MUT2 EXHIMIT "All - to Ordinance (Pro Kevin Nelms Vol. 3432, Pg. 911 Tract U F I Richard A. Greb & IN j Nancy A. Greb °� 1 Instr. No. 2006- 100770 \ sacee T t Tract II I 9 j6 S87'51'52 W \ 1 1. R. F. 1585.91 (C.t -- ---. -- - - -_.._ - -- I !t ( I Kevin Nelms '� t Vol. 3432, Pg. 911 Tract I Richard A. Grab & f, \ Nancy A. Grab Instr. No. 2006 - 100770 0 to�pP� Tract I Q ecT•e --,,� 1 New Municipal Use 0.074 ac. (3,202 sq. fl.) � 0, Gas Easement 0.051 ac. (2,222 sq. ft.) I r~ 0.125 Acres (5,424 sq. ft.) I 901. Te�6,r,\,A) Municipal Use Tract 2 emQ�VA) I , ec�e s88-01'2 ° acTee L3 133209 1738.8 t of — o-- 2 5/8" 1.R.F.(C. m.) Providence Place Il t t Cabinet R Page 905 P. o. B. Donnelly Addition t Cabinet 0, Page 77 +t LINE TABLE , tti Robert P. Donnelly Volume 3384, Pa a 905 Ll S88 001'21 'W 28.98' (remainder W Mason A. Haggard & L2 wife, Wilma Haggard 1 Nco Volume 337, Page 430 NO2 012'08 "E (remainder) I� °o°' existing E 2 fence 1 Kevin Nelms Vol. 3432, Pg. 911 Tract U F I Richard A. Greb & IN j Nancy A. Greb °� 1 Instr. No. 2006- 100770 \ sacee T t Tract II I 9 j6 S87'51'52 W \ 1 1. R. F. 1585.91 (C.t -- ---. -- - - -_.._ - -- I !t ( I Kevin Nelms '� t Vol. 3432, Pg. 911 Tract I Richard A. Grab & f, \ Nancy A. Grab Instr. No. 2006 - 100770 0 to�pP� Tract I Q ecT•e --,,� 1 New Municipal Use 0.074 ac. (3,202 sq. fl.) � 0, Gas Easement 0.051 ac. (2,222 sq. ft.) I r~ 0.125 Acres (5,424 sq. ft.) I 901. Te�6,r,\,A) Municipal Use Tract 2 emQ�VA) I , ec�e s88-01'2 ° acTee L3 133209 1738.8 t of — o-- 2 5/8" 1.R.F.(C. m.) Providence Place Il t t Cabinet R Page 905 P. o. B. Donnelly Addition t Cabinet 0, Page 77 +t LINE TABLE , tti Robert P. Donnelly Volume 3384, Pa a 905 Ll S88 001'21 'W 28.98' (remainder CT TAR T.F. # I Radius L2 S88 00121 "W 53.79' L3 NO2 012'08 "E 161.30' CT TAR T.F. # I Radius Length I Delta Chord Cl 1 355.00' 167.83' 1 27 005'13" 1 S16 037'15 "E 166.27 Municipal Use Tract 0.125 Acre David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas —2012— 1 to to +ri 0 t^ I s N Irn tN (0 /MOF W2 �3 Interests) Gas Easement No. 2006 -34815 300 0 150 300 SCALE: 1" =300' Bearings shown hereon based on the City of Denton GIS Network. — 60' Brazos Electric Power Easement Volume 1636, Page 436 Proposed Municipal 1 Use Tract l 1 Ll C" Nail Set NOTES: • o= I.R.S. • I.R.F. = 112" Iron Rod Found • I.R.S. = 112" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347, 367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. • Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigned in Vol. 2736, Pg. 828 includes this tract. • Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. SURVEYORS CERTIFICATION: no undersigned does hereby certify to Title Resources (G.F. No. 102631 & 102632) that this survey was this day made on the ground of the property legally described hereon and is cornett, and to the best ofmy knowledge, there are no visible discrepancies, conflicts, shortages in area, boundary line conflicts, encroachments, overlapping of improvements, easements or rights of way that I have been advised of except as shown hereon. rthur Surveying Co., Inc. Professional Land surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Established 1986 EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., Inc. �'xofessionaY 1Gaz�d Surveyors P.O. Box 54 — Lewisville, Texas 75067 Oil-tee: (972) 221 -9439 — Fax: (972) 221 -4675 20' DRAINAGE EASEMENT 0.037 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tract I as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: COMMENCING at a "PK' nail set in Mayhill Road for the southeast comer of said Nelms tract and the northeast corner of a right -of -way dedication as shown on Providence Place II, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms tract and the north line of said right -of -way dedication, a distance of 865.78 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for corner; THENCE North 01 degrees 58 minutes 58 seconds West, over and across said Nelms tract, a distance of 8.87 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, having a radius of 125.00 feet; THENCE over and across said Nelms tract, with said curve to the left, through a central angle of 43 degrees 33 minutes 22 seconds, whose chord bears North 66 degrees 14 minutes 21 seconds East at 92.75 feet, having an arc length of 95.02 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 1106.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of 10 degrees 41 minutes 20 seconds, whose chord bears North 29 degrees 29 minutes 56 seconds East at 206.03 feet, having an arc length of 206.33 feet to the POINT OF BEGINNING; THENCE North 52 degrees 16 minutes 24 seconds West, over and across said Nelms tract, a distance of 20.02 feet to the beginning"of a non - tangent curve to the right, having a radius of 1126.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of 02 degrees 49 minutes 56 seconds, whose chord bears North 36 degrees 18 minutes 38 seconds East at 55.65 feet, having an arc length of 55.66 feet to a point for comer; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms tract, a distance of 24.37 feet to a point for corner; THENCE South 52 degrees 16 minutes 24 seconds East, over and across said Nelms tract, a distance of 20.00 feet to a point for corner; (continued) 01107131 -41 Parcel M138 -DEI EXHIBIT "A" - to Ordinance (Property Interests) rthur Surveying Co., Inc. �xotessiona� .�.aYZC� Sz.xx- v�,T✓oxs P.O. Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 • Fax: (972) 221 -4675 THENCE South 37 degrees 43 minutes 36 seconds West, over and across said Nelms tract, a distance of 24.37 feet to the beginning of a non - tangent curve to the left, having a radius of 1106.00 feet; THENCE over and across said Nelms tract, with said curve to the left, through a central angle of 02 degrees 53 minutes 00 seconds, whose chord bears South 36 degrees 17 minutes 06 seconds West at 55.65 feet, having an arc length of 55.66 feet to the POINT OF BEGINNING and containing 0.037 acre of land. Y �O N ) v \ /lt, C1107131.41 Parcel M138 -DE1 co .w� EXHIBIT "A" - to Ordinance (Property Interests) CURVE TABLE rl� # Radius Lenaffi Delta Chord Cl 125.00' 95.02' 43 03322" N6601421 "E 92.75' C2 1106.00' 206.33' 10 641'20" N2902956 "E 206.03' C3 1126.00' 55.66' 02049156" N36018'38 "E 55.65' C4 1106.00' 55.66' 02053'00" S36e17'06 "W 55.65' 200 0 100 200 SCALE: 1" = 200' Bearings shown hereon based on the City of Kevin Nelms Denton GIS Network. Vol. 3432, Pg. 911 I.R.F. Tract 1 i (C.M.) W NN z °o '.0a O- Richard A. Greb & pate ' Nancy A Grab kP.20° Instr. No. 2006- 100770 Tract I i d� 0.037 Acre 9" 20' Drainage N37 °4336'E Easement 24.37' SS (1,600 sq. ft.) 518" I.R.F. r� del b�9K 4to4°yea fa,,._rW 3°16'24 "E 20.00' 10 \i • �i II �I \ II \I I \ I� E E $ rn ow a v �3 R-1100 E - 60' Brazos Electric Power Easement Volume 1636, Page 436 -ins 8 \ Gas Easement No. 2006 -34815 C3 S37 04336 "W �, {• N52e16'24 "W C4 24.37' / 20.02' / X00 J P. 0. B. existing %e I I t NOl 5 ex 8'58 "W ' 8.87 \ C1 fenc 7 _ _ _ _ "` _-- -- -- - -�- NPK" Nail - S88 "01'21 Set ' ............................ :... . ....................... .....,.. t v r bo 4� _ _ --- -- --- - - - - - -- av — Donnelly Addition 3-. __ __— .--- - --- -- --"-- -"- - -' Cabinet 0, Page 77 ; $ Providence Place 11 I i Cabinet X, Page 905 Robert P. Donnelly 1 Volume 3384, Pa a 905 1 ; (remainder f _ NOTES: (� • I.R F. = 1/2" Iron Rod Found AP. I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" ti • All improvements not shown hereon. • Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347, 367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. • Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigend in Vol. 2736, Pg. 828 includes this tract. • Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. .0.0 20' Drainage Easement 0.037 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- SURVEYORS CERTMCATION: no undersigned does hereby cattily to Title Resources (O.F. No. 102631 & 102632) that this survey was this day made on the ground of the property legally described hereon and is correct, and to the best ofmyknowledge, them are no visiblo discrepancies, conflicts, shortages in arcs, boundary line conflicts, encroachments, overlapping of improvements, easements or rights of way that 1 have been advised of except as shown hereon. rthur Surveying Co., Inc. Professional "nd Survteyozs P.O.Box 54 - Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Established 1986 EXHIBIT "A" - to Ordinance (Property Interests) Arthur Surveying Co., Inc. �'rof�css�o�za.Y �ax�d Survey'oxs P.O. Box 54 -- Lewisville, Texas 75067 Office: (972) 221 -9439 --- Fax: (972) 221 -4675 50' DRAINAGE EASEMENT 0.159 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tract I as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: COMMENCING at a "PK" nail set in Mayhill Road for the southeast corner of said Nelms tract and the northeast corner of a right -of -way dedication as shown on Providence Place I1, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms tract and the north line of said Providence Place II, a distance of 382.61 feet to the POINT OF BEGINNING; THENCE South 88 degrees 01 minutes 21 seconds West, continuing with the south line of said Nelms tract and the north line of said Providence Place II, a distance of 66.52 feet to a point for corner; THENCE North 43 degrees 14 minutes 38 seconds West, over and across said Nelms tract, a distance of 112.01 feet to the beginning of a non - tangent curve to the right, having a radius of 905.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of 02 degrees 57 minutes 45 seconds, whose chord bears North 36 degrees 14 minutes 44 seconds at 46.79 feet, having an arc length of 46.79 feet to a point for corner; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms tract, a distance of 4.05 feet to a point for corner; THENCE South 43 degrees 14 minutes 38 seconds East, over and across said Nelms tract, a distance of 165.06 feet to the POINT OF BEGINNING and containing 0.159 acres of land. A 4, 4:\ `y •f; r_1 .1JNN Ni.,RUS51:....... C1107131 -41 Parcel M138 -DE2 EXHIBIT "A" - to Ordinance (Property Interests) .� I I NR--905.00' jL= 46.79' \ \ I I $ O x--02 057'45" \ \� Chd.- N36o14'44' E b 46.79' 200 0 loo 200 SCALE: 1" =200' shown Beatings own hereon based on the City of J' ! Denton GIS Network. I.R.F. (C.M.) 1 �� J I� 60' Brazos Clectrtc tn° / Power Easement 1 9 eoies �e 90 i ' Volume 1636, Page 436 Kevin Nelms �0� ad VISSO —' � ff t5' Gas Easement co Vol. 3432, Pg. 911 4°s sv� ., i Instr. No. 2006 -34815 Tract I 1 Richard A Grab & nw Nancy A. Greb Instr. No. 2006- 100770 Tract I 0,159 Acre 50' Drainage y N37e4336"E % Easement aseent � 4.05' � II s ' Ci f (6,939 sq. ft.) �l s I\ POC N43 °14'38" ,� asfQ�� 1 .0.1J. II �I 112,01' �s ��m ' I = � u�j��S88'O] 21�W 382.6 �_ "PK" Nail n S88 0121 Set S88'01'21';W ex1 ttn -- 518" I.R.F. fence -_- 66.52 �^- (C.M.) — - - - - -- 1372.49 - -- -- -- - - -1 — + Donnelly Addition Fes. Cabinet 0, Page 77 I I Providence Place It Cabinet X Page 905 Robert P. Donnelly, Volume .,J , , e 3384, Pa a 905 Q c_, , (remainders ...• ..:........... ..... ........ w• 9 JOHN M tft tSSELi t: /� NOTES: • I.R.F. = 1/2" Iron Rod Found '• F �: ^�.�p',,�F��•; :fir � 0 I.RS. _ 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" rfj , All improvements not shown hereon. • Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347, 367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. j� Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigend in `�' Vol. 2736, Pg. 828 includes this tract. • Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. SURVEYORS CERTMCATION: The undersigned dons hereby certify to Title Resources (O.F. No. 102631 Bc 102632) that this survey was tWs day made on the ground of the property legally described hereon and Is cornet and to the best ofmy knowledge, then we no vLsible 50' Drainage Easement �aeinecorea ,conflicts,ahartagesin area, pingof tine wnflicts, encroachments, overlapping of {� 0.159 Acre improvements, easements or rights of way that I have been advised ofexcept as shown hcrcon. David Hough Survey, Surveying Co., Inc. Abstract Number 646 rthur City of Denton Professional Land Surveyors Denton County, Texas P.o.Box 54 – Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 --2012-- Established 1986 EXHIBIT "B" TO ORDINANCE PURCHASE AGREEMENT NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. THIS PURCHASE AGREEMENT (the "Agreement ") is dated , 2014, but effective as of the date provided below, between Kevin Nelms and Richard Greb and wife, Nancy Greb (referred to collectively herein as "Owner ") and the City of Denton, Texas ( "City ") WITNESSETH: WHEREAS, Kevin Nelm and Richard Greb and wife, Nancy Greb are the Owner of a tract of land (the "Land ") in the David Hough Survey, Abstract Number 646, Denton County, Texas, being affected by the public improvement projects (i) called the Mayhill Road Widening and Improvements Project ( "Mayhill Project "); and (ii) related to the expansion and improvement of the City of Denton Landfill, a permitted municipal solid waste disposal facility (the "Landfill Project ") (the Mayhill Project and the Landfill Project are collectively referred to herein as the "Projects "); WHEREAS, City is in need of certain (i) fee simple lands, being a part of the Land; and (ii) an easement, being apart of and encumbering the Land, related to the Projects; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Projects; NOW, THEREFORE, for Ten and No /100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City (i) a Special Warranty Deed (the "Mayhill Deed "), conveying to the City, subject to the reservations described below, the tract of land being described in Exhibit "A" and depicted in Exhibit B" to that certain Mayhill Deed, and other interests as prescribed therein (the "Mayhill Fee Lands "), the Mayhill Deed being attached hereto as Attachment 1 and made a part hereof, related to the Mayhill Project; (ii) a Special Warranty Deed (the "Landfill Deed "), conveying to the City, subject to the reservations described below, the tracts of land being described in Exhibits "A -1" and "A -2 ", respectively, and depicted in Exhibits "B -1" and "B -2 ", respectively, to that certain Landfill Deed, and other interests as prescribed therein (the "Landfill Lands ") (the Mayhill Lands and the Landfill Lands are collectively referred to herein as the "Fee Lands "), the Landfill Deed being attached hereto as Attachment 2 and made a part hereof, related to the Landfill Project (the Mayhill Deed and the Landfill Deed are collectively referred to herein as the "Special Warranty Deeds "); and (iii) a Drainage Easement (the "Easement "), in, along, upon, under, over and across the tracts of land being described in Exhibits "A -1" and "A -2 ", respectively, and depicted in Exhibits "B -1" and "B -2 ", respectively, to that certain Drainage Easement (the "Easement Lands "), the Easement being attached hereto -as Attaclunent 3 and made a part hereof, for drainage purposes, as more particularly described therein, related to the Mayhill Project. The (i) Special Warranty Deeds shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 1" and "Attachment 2 ", respectively; and (ii) the Drainage Easement shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 3" (the Fee Lands and the Easement are collectively referred to herein as the "Property ") B. Owner, subject to the limitation of such reservation made herein, shall reserve, for themselves, 2 their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, their heirs, devisees, successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. As consideration for the granting and conveying of the Property to the City, the City shall pay jointly to Owner at Closing the sum of Eight Hundred Sixty Seven Thousand Three Hundred Forty Seven and No /100 Dollars ($867,347.00). The monetary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation ". 3. The Owner shall convey and grant to the City the Property free and clear of all debts, liens and other encumbrances (the "Encumbrances "). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the 3 Encumbrances and other curative efforts affecting the Property, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 10, below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. 4. Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the Project, including without limitation, any damage to or diminution in the value of the remainder of Owner's property caused by, incident to, or related to the Project and /or the transactions contemplated by this Agreement, value of, damage to and /or costs of repair, replacement and /or relocation of any improvements, turf, landscape, vegetation, or any other structure or facility of any kind within the Easement Lands, interference with Owner's activities on the Easement Lands or other property interests of Owner caused by or related to activities on the Fee Lands related to the Project and /or activities within the scope of the rights granted by the Easement, whether accruing now or hereafter, and Owner hereby releases for themselves, their heirs, devisees, successors and assigns, the City, it's officers, employees, elected officials, agents and contractors from and against any and all claims they may have now or in the future, related to the herein described matters, events and /or damages. 5. The Closing (herein so called) shall occur in and through the office of Title Resources, LLC, 525 South Loop 288, Suite 125, Denton, Texas, 76205 ( "Title Company "), with said Title Company acting as escrow agent, on the date which is 90 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ( "Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. B 6. The stipulated Total Monetary Compensation amount shall be paid by the City at Closing to the Owner through the Title Company. Ad valorem taxes relating to the Fee Lands for the calendar year in which Closing shall occur shall be prorated between Owner and City as of the Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Fee Lands for the preceding calendar year, and shall be readjusted in cash as soon as the amount of taxes levied against the Fee Lands for the calendar year in which Closing shall occur is known. The result of such proration is that the Owner shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the Closing Date) and City shall pay for those taxes attributable to the period commencing as of the Closing Date. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. 7. The date on which this Agreement is executed by the Owner shall be the "Effective Date" of this Agreement. 8.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 9. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE 5 SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 10. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands or Easement Lands; or (ii) enter into any Agreement that will be binding upon the Fee Lands or the Easement Lands, or upon the Owner with respect to the Fee Lands or the Easement Lands, after the date of Closing. 11. Kevin Nelms represents and warrants to City that (i) the Property comprises no part of the homestead of he and his wife; and (ii) the Property is the separate property of Kevin Nelms or, if community property, that Kevin Nelms has the legal authority to perform all actions and obligations prescribed by this Agreement without joinder of spouse. 12. Any notices prescribed or allowed hereunder to Owner or City shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: OWNER: CITY: Kevin Nelms Phone Telecopy: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 0 Richard Greb and wife, Nancy Greb Phone Copies to: For Owner: For City. Telecopy: Richard Casner, First Assistant City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 13. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. 14. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deeds or Easement. 15. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Fee Lands and /or Easement Lands, City may, at its election, terminate this Agreement at any time prior to Closing. 16. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 7 CITY OF DENTON, TEXAS S GEORGE C. CAMPBELL, CITY MANAGER Date: 2014 ATTEST: JENNIFER WALTERS, CITY SECRETARY mm Date: 2014 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: /-Lc (2-, Date:. 1 2.0 , 2013 OWNER: KEVIN NELMS RICHARD GREB NANCY GREB Date: 2014 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381-1006 Telecopy: (940) 898 -0121 I1 Printed Name: Title: Contract receipt date: , 2014 A ATTACHMENT I TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED (Mayhill Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That Kevin Nelms, a married man, with the Property (as defined below) comprising no part of the homestead of he and his wife, and Richard Greb and wife, Nancy Greb (herein collectively called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibit "A" and depicted in Exhibit "B ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property ") Grantor, subject to the limitation of such reservation made herein, reserves, for themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. Page 2 of 4 TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of , 2014. KEVIN NELMS RICHARD GREB NANCY GREB ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Kevin Nelms. Notary Public, State of Texas My commission expires: Page 3 of 4 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Richard Greb. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on 2014 by Nancy Greb. Notary Public, State of Texas My commission expires: Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 4 of 4 Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 EXHIBIT "A" - to Special Warranty Deed rthur Surveying Co., Inc. �resf�essxana t X ZLUci Sari- veyozss P.Q. Box 54 -- Lewisville, Texas 75067 Offlco: (972) 221- 9439 -- Fax: (972) 221 -4675 E)MBTT "A" MAYMLL ROAD PARCEL M137 & M138 7.628 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tracts I and II as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: BEGINNING at a "PK" nail set in Mayhill Road for the southeast comer of said Nelms Tract I and the northeast corner of a right -of -way dedication as shown on Providence Place 11, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms Tract I and the north line of said right -of -way dedication, a distance of 28.98 feet to a 12 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the beginning of anon- tangent curve to the left, having a radius of 355.00 feet; THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 44 degrees 20 minutes 29 seconds, whose chord bears North 25 degrees 14 minutes 53 seconds West at 267.93 feet, having an arc length of 274.74 feet to a 1t2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE North 57 degrees 27 minutes 27 seconds West, over and across said Nelms Tract I, a distance of 197.21 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 37 degrees 43 minutes 36 seconds West, over and across said Nelms Tract 1, a distance of 307.97 feet to a 12 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the left, having a radius of 905.00 feet; THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 09 degrees 21 minutes 40 seconds, whose chord bears South 33 degrees 02 minutes 46 seconds West at 147.70 feet, having an are length of 147.86 feet to a 112 inch iron rod with yellow cap stamped "ASC" set for comer in the south line of said Nelms Tract I and the north line of said Providence Place 11; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms Tract I and the north line of said Providence Place II, a distance of 286.96 feet to a 12 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 01 degrees 58 minutes 58 seconds West, over and across said Nelms Tract I, a distance of 8.87 feet to a 12 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, having a radius of 125.00 feet; (continued) C1107131 -41 Puoel M137 & M138 EXHIBIT "A" - to Special Warranty Deed rthur Surveying Co., Inc. Px�of�ssXOZ�aI .La.nd Sux- v�eyoxs P.O. Box 54 — Lowisvitlle. Texas 75067 Office: (972) 221 -9439 --- Fax: (972) 221 -4675 THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 43 degrees 33 minutes 22 seconds, whose chord bears North 66 degrees 14 minutes 21 seconds East at 92.75 feet, having an arc length of 95.02 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the right, having a radius of 106.00 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 13 degrees 34 minutes 20 seconds, whose chord bears North 30 degrees 56 minutes 26 seconds East at 261.38 feet, having an arc length of 261.99 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms Tract I, a distance of 160.39 feet to a 1/2 inch iron rod with yellow cap stamped "ASCII set for the beginning of a non - tangent curve to the left, having a radius of 109.42 feet; THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 38 degrees 56 minutes 51 seconds, whose chord bears North 18 degrees 15 minutes 10 seconds East at 72.96 feet, having an arc length of 74.38 feet to a 1/2 inch iron rod with yellow cap stamped "ASCII set for the beginning of a curve to the right, having a radius of 129.21 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 38 degrees 33 minutes 48 seconds, whose chord bears North 18 degrees 26 minutes 43 seconds East at 8533 feet, having an arc length of 86.97 feet to a 1/2 inch iron rod with yellow cap stamped "ASCII set for the beginning of a curve to the left, having a radius of 10.00 feet; THENCE over and across said Nelms Tract 1, with said curve to the left, through a central angle of 90 degrees 05 minutes 58 seconds, whose chord bears North 07 degrees 19 minutes 26 seconds West at 14.15 feet, having an arc length of 15.73 feet to a 1/2 inch iron rod with yellow cap stamped "ASCII set for corner; THENCE North 52 degrees 22 minutes 26 seconds West, over and across said Nelms Tract I, a distance of 20.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE North 37 degrees 37 minutes 34 seconds East, over and across said Nelms Tract I, a distance of 70.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 52 degrees 22 minutes 26 seconds East, over and across said Nelms Tract I, a distance of 20.00 feet to a 112 inch iron rod with yellow cap stamped "ASC" set for the beginning of a curve to the left, having a radius of 10.00 feet; THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 89 degrees 53 minutes 58 seconds, whose chord bears North 82 degrees 40 minutes 35 seconds East at 14.13 feet, having an arc length of 15.69 feet to a 1/2 inch iron rod with yellow cap stamped "ASCII set for corner; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms Tract I, a distance of 20.00 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for comer; THENCE South 52 degrees 16 minutes 24 seconds East, over and across said Nelms Tract % a distance of 77.91 feet to a 112 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, having a radius of 920.00 feet; (continued) 01107131.41 Parcel M137 & M138 EXHIBIT "All - to Special Warranty Deed rthur Surveying Co., Inc. I XX>. - S!&iOzxaP .Land Ssxr-cravyoxs P.O. Box 54 -- Lewisville, Texas 75067 Office: (972) 221- 9439 -- Fax: (972) 221 -4675 THENCE over and across said Nelms Tract I, with said curve to the left, through a central angle of 32 degrees 32 minutes 30 seconds, whose chord bears North 19 degrees 08 minutes 48 seconds East at 515.53 feet, having an arc length of 522.52 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for coiner; THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Nelms Tract I, a distance of 31.69 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for comer in the north line of said Nelms Tract I and the south line of said Nelms Tract R; THENCE North 87 degrees 51 minutes 52 seconds East, with the north line of said Nelms Tract I and the south line of said Nelms Tract II, a distance of 12.55 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for comer, THENCE North 02 degrees 52 minutes 33 seconds East, over and across said Nelms Tract II, a distance of 324.80 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Nelms Tract R and the south line of a remainder of a tract of land described to Mason A. Haggard and wife, Wilma Haggard, recorded In Volume 337, Page 430, D.R.D.C.T.; THENCE North 88 degrees 56 minutes 53 seconds East, with the north line of said Nelms Tract II and the south line of said Haggard tract, a distance of 141.36 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for corner; THENCE South 02 degrees 12 minutes 08 seconds West, over and across said Nelms tracts, passing the south line of said Nelms Tract II, continuing on for a distance of 455.65 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for the beginning of a non - tangent curve to the right, having a radius of 1082.50 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 28 degree 13 minutes 01 seconds, whose chord bears South 21 degrees 39 minutes 56 seconds West at 527.74 feet, having an arc length of 533.10 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for corner; THENCE South 46 degrees 38 minutes 28 seconds East, over and across said Nelms Tract 1, a distance of 218.20 feet to a 1/2 inch iron rod with yellow cap stamped "ABC" set for the beginning of a non - tangent curve to the right, having a radius of 445.00 feet; THENCE over and across said Nelms Tract I, with said curve to the right, through a central angle of 18 degrees 46 minutes 44 seconds, whose chord bears South 38 degrees 01 minutes 45 seconds East at 145.20 feet, having an arc length of 145.85 feet to a "Pr' nail set for comer in Mayhill Road; THENCE South 02 degrees 06 minutes 21 seconds West, with Mayhil Road, a distance of 193.36 feet to the POINT OF BEGINNING and containing 7.628 acres of land of which 0.153 acres lies within existing Mayhill Road. UOT , SSELL C110713I41 Parcel M137 & M139 EXHIBIT "B" - to Special Mason A haggard & LR.F Wife, vilma haggard Volume 397, Page 490 (remainder) eWed N8fAl *411 j Kevin Nelms Vol. 3432, Pg. 911 r Tract II F ^ +— - - W 1 <n - 1 Richard L Greb do N c' Nand L Grab o N Hatr, No. 2008- 10OT70 \ Q •off "^I Tract II t S8 585 91 W \ \ L13 I.R.F. _ (c-- _---- ---__ \ L12 °M 'g New Dedication 7.475 ac. (325,607 Sq. ft.) 1 Existing Implied Dedication 0.153 ac. (6,658 sq. ft.) 7.628 Acres (332,265 sq. ft.) /E Parcel M137 & M138 \ 6 I CI Kevin Nelms e'1L9 LIO C Vol. 94.42, P& 911 ij llp \ \ f .Trent I q�j q Richard L Greb & �r�f+� L7�! I� Nancy Greb V c�adyl� \` f•'# In. No. . str 200 0e- 100770 P�� Tract I 01, C5 dp 04, t 4F A { j`� (',¢ ♦ gos tine '✓ K-9- note C s �ge>b S88'01'2j, W �� 955.833 L5 C? tance 510" I.R.F. IR m 8M tt t� 'PK- Wit prcviderwa Place Cabinet Y. Page 905 a Robert P. Donnelly Yolum- 358844,, PW 906 O3 OF 1Paitlon.t —� t, Cabinet 0, Page 77 Cabinet SCALE: 1"=3W v 3 *See page 2 for line & curve tables* EXHIBIT "B" Mayhill Road Parcel M137 & M138 7.628 Acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas —2012— Warranty Deed 1 IR m 8M ((( N 'PK- Wit Set OF 300 p 150 300 SCALE: 1"=3W v 3 Bearings shown hereon based on the City of Denton GIS Network. u NOTES: • o= LR.S. • I.R-F. -1/2" Iron Rod Found • I.R.S. =112" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" 15' cos Eoaemont 10r. No. 2006 -34815 • ©= Municipal Use Tracts. 6PorE moctrk Volume 1836, Poge 436 • - - 'P Se Pail ,--Implied Dedication L15 • • All improvements not shown hereon. Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347,367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigned in Vol. 2736, P& 828 includes this tract. Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located Gas line shown was not field verified. location provided by others. IN M. RUSSELL �9 MRvzMR8 C SMI MATION: 4bo =&V VW duos bmbyON* to rate RMMM ('OY No. 10=1 & 102632) fiat d" ,umy nn tt h dwm.aeaa ma Posed of Mo ixWedyk;aLbr WWauditc -VMsad to the bat oftnytaowU44 &mv ass no,iabb of tmpcovomeaar, eaxa+� «dibu ot..sy that 1 mm bsm sdWW of swept m +hom hftvm rthur Surveying Co., Inc. pzofi!s r nd P.O.Bos 54 - Lewisville, Teas 75067 Office_ (972) 22L-Mg F 986!172) 221 -4675 Page 1 of 2 ATTACHMENT 2 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED (Landfill Deed) STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That Kevin Nelms, a married man, with the Property (as defined below) comprising no part of the homestead of he and his wife, and Richard Greb and wife, Nancy Greb (herein collectively called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described in Exhibits "A -1" and "A -2 ", respectively, and depicted in Exhibits "13-1" and "13-2 ", respectively, attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, their heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. Page 2 of 4 TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's heirs, devisees, successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of , 2014. KEVIN NELMS RICHARD GREB NANCY GREB ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Kevin Nelms. Notary Public, State of Texas My commission expires: Page 3 of 4 ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Richard Greb. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Nancy Greb. Notary Public, State of Texas My commission expires: Upon Filing Return To: The City of Denton- Engineering Attn: Paul Williamson 901 -A Texas Street Denton, Texas 76209 Page 4 of 4 Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 EXHIBIT "A -1" - to Special Warranty Deed rthur Surveying Co., Inc. .X'rc�.f+cssiox�al �.zxd' Sxxz-veyors P.O. Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 MUNICIPAL USE TRACT 2.151 Acres City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tracts I and 11 as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: BEGINNING at a "PK" nail set in Mayhill Road for the northeast comer of said Nelms Tract H and the southeast comer of a remainder of a tract of land described by deed to Mason A. Haggard and wife, Wilma Haggard, recorded in Volume 337, Page 430, D.KD.C.T.; THENCE South 02 degrees 06 minutes 21 seconds West, with Mayhill Road, passing the south line of said Nelms Tract H and the north line of said Nelms Tract L continuing on for a distance of 1212.24 feet to a "PK" nail set in Mayhill Road for the beginning of a non - tangent curve to the left, having a radius of 445.00 feet; THENCE over and across said Nehns Tract 1, with said curve to the left, through a central angle of 16 degrees 47 minutes 45 seconds, whose chord bears North 37 degrees 02 minutes 15 seconds West at 129.98 feet, having an arc length of 130AS feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for corner; THENCE North 02 degrees 12 minutes 08 seconds East, over and across said Nelms tracts, passing the north line of said Nelms Tract I and the south line of said Nelms Tract II, continuing on for a distance of 1107.01 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner in the north line of said Nelms Tract R and the south line of said Haggard tract; THENCE North 88 degrees 56 minutes 53 seconds East, with the north line of said Nelms Tract 11 and the south line of said Haggard tract, a distance of 80.31 feet to the POINT OF BEGINNING and containing 2.151 acres of land of which 0.904 acres lie within existing Mayhill Road. OF r O�^f yA.t, \sT� tti • JOHN M. RUSSELL_ p' ` �y`•" - fss� p4 "I � SUR� C1107131 -41 Parcel MI37 Bc M138 -MUT EXHIBIT "B-11, - to SpeciaMarranty Deed Y°' °n A. 13nggard k I.R.F. No xife, lnima Hs S � - w Volume serge 430 ezlating N8 80.313"B > Kevin Nelms j� Vol 5432, Pg, 911 ,P S c11 et Tract II � j f Richard L Greb Nancy 1L Greb lnatr. No. .000 ! 300 0 150 300 I.R.F. S87 51'52 SCALE: 1" =300' {GM.Z w r _' _� f_ b Bearings shown hereon based on the City of e= New Municipal Use 0.863 ac. (37,00 sq. fQ f 3 Denton 01S Nctwocic Existing Implied Dedication 0.404�c. ( 9,384 sq. Gas Easement 0.384 ac. (16,717 sq. ii.) 1 "' NOTES: 2.151 Acres (93,701 sq. Ii.) I i 98 • o-IRS. f • I.R.F. — 112" Iron Rod Found Municipal Use Tract I N (I , a I.R.S. -1n" Iron Rod Set with a j i f yellow cap stamped Arthur f f Surveying Company" VOL �3432. Pg. Oil 911 f l • All improvements not shown hereon. Tract T f 15' Cos Easement a Easements recorded in Vol. 190, Pgs. lnstr No. 2006 -3015 620 & 622, Vol. 336, Pgs, 347,367 & f i Richard b Grcb do so' t3raros fleoWc 583. & Vol. 391, Pg. 169 do not affect Nancy d Power Easement Grob � Yolume 1636, Pope 136 this trail to the best of my knowledge. Instr. No. 2006- 100770 r • Blanket Easements recorded in Vol. Tract 1 � e� � f 357, Pg. 45 & VoL 357, Pg. 54 as assigned in Vol. 2736, Pg. 828 01 I i includes this tract, implied Dedicadon Easement recorded in Vol. 341, Pg. 13 t 222 as assigned in Vol. 367, Pg. 242 Ij5 $00 / CI J*PW Neil is centered on a pipeline not any$ l�gidb , t I set specifically located. �g Qi ftpoW M=ciW (' S02 Q6'21 'W X1821 61" Use Tract 2 � !� 193.36' — — _ — "PK� Nall exk any setr OF T, C Q1ST�9F�� t3� 4 .. tt i t , Providence Pines a Robert F. Donnelly 05 mJOH%1 j:.............. SSFI.I. Cabinet X � Volume Donnelly ddditioa Cabinet 0, Page 77 ti rolikaf..&A AN # Radius J Lenob - Delta I Chord CI 445.00' 1 130.45' 1 16o4T45" N37a02'15"W 12998' Municipal Use Tract 2.151 acres David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas —2012— f�6 r� SMVaxoas CtQtYr>/ICATION: the nadeul�aod doe barobyoaody m 7t5de Rco mnas (O.F NO. 1W01 & 10=) &9969 czrft7W" &k arym.Jeea exgroaud oime PWPartr lea &dncsi6ed ba+e= Wd Ar oott+ocf; am m sre had afwrinawbd^ tbmo are so •fable 1e b6 c' aumoab crri0ft or%W drat I lyre haw aivfiad ofamePt tt t5awu beroon. S urveying Co., Inc. .� r.�a s�t� P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Far. (972) 221 -4675 Batablished 1966 EXHIBIT "A -2" - to Special Warranty Deed Arthur Surveying Co., Inc. ,ProfessxoxsaY .L�ci Suz- v�yors P.O. Box 54 -- Lewisville, Texas 75067 Office: (972) 221 -9439 --- Fax: (972) 221 -4675 MUNICIPAL USE TRACT 0.125 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City of Denton, Denton County, Texas, and being part of Tract I as described by deed to Kevin Nelms, Recorded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described as follows: COMMENCING at a "PK" nail set in Mayhill Road for the southeast comer of said Nelms tract and the northeast corner of a right -of -way dedication as shown on Providence Place II, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms tract and the north line of said right -of -way dedication, a distance of 28.98 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (ASC) set for the POINT OF BEGINNING; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line of said Nelms tract and the north line of said Providence Place addition, a distance of 53.79 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner; THENCE North 02 degrees 12 minutes 08 seconds East, over and across said Nelms tract, a distance of 161.30 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for corner at the beginning of a non - tangent curve to the right, having a radius of 355.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of 27 degrees 05 minutes 13 seconds, whose chord bears South 16 degrees 37 minutes 15 seconds East at 166.27 feet, an arc length of 167.83 feet to the POINT OF BEGINNING and containing 0.125 acre of land. C110713141 Parcel M137 & M138 -MUT2 Iv EXHIBIT 11B -2tt - to Special Warranty Deed W Mason A Haggard & 1.R.f 4 wife, Wilma Haggard Volume 337, Page 430 1 h� (remainder) ern extsUng t� 2 fence . i 1 Kevin Nelms Vol. 3432, Pg. 811 Tract II 1 11 1 1) Richard A Greb & IN Nanny A Greb Inatr. No. 2000- 1007'1 4 ecs•e 1 Tract 11 S87'S1'S21W e\ ' 1 I.R.F. 1585.91 _ I 1 Kevin Nelms Vol. 3432, Pg. 911 Tract I Richard A. Greb & \ Nancy A Greb Instr, No. 2006- 100770 4Q Treat I nice 1 pS��IM�Nr ~! rw off$ New Municipal Use 0.074 ac. (3,202 sq. ft.) I i� Gas Easement 0.051 ac. (2,222 sq. ft.) I I 0.125 Acres (5,424 sq. tt.) I ipa t•�� Municipal Use Tract 2 <• L3 I lase e °{p6 588 1738.8 I.R.F. __� - --� -- (C.M.) -- -- tt Providence Place II t t Cabinet X Page 905 P.O.B. Donnelly Addition Cabinet 0, Page 77 �t LM TABLE 1 t� Robert 8 Donnelly Volume 3384, Pa a 9015 r FL-1 588 °01'21 "W 28.98' (remain rr1RVP TAAT.V # I Radius L2 S88 °0121 "W 53.79' L3 N02012'08"E 161.30' rr1RVP TAAT.V # I Radius I Length I Delta I Chord Cl 1 355,00' 1 167.83' 1 27 005113" 1 S16 037'15 "E 166.27' Municipal Use Tract 0.125 Acre David Hough Survey, Abstract Number 646 City of Denton Denton County, Texas --2012-- I Q i OF x t 10 b ja f� IQ 0 15' Goa Easement Jnstr. No. 2006 -34815 1 300 0 150 300 SCALE: V = 300' Bearings shown hereon based on the City of Denton GIs Network. 60' Brazos Electric Power Easement Volume 1636, Page 436 Proposed Municipal Use Tract 1 NOTES: • o= I.R.S. • I.R.F. = 1/2" Iron Rod Found • I.R.S. = 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • All improvements not shown hereon. • Easements recorded in Vol. 190, Pgs. 620 & 622, Vol. 336, Pgs. 347, 367 & 583, & Vol. 391, Pg. 169 do not affect this tract to the best of my knowledge. • Blanket Easements recorded in Vol. 357, Pg. 45 & Vol. 357, Pg. 54 as assigned in Vol. 2736, Pg. 828 includes this tract. • Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg. 242 is centered on a pipeline not specifically located. SURVEYORS CERTLFICATION: Tho undersigned does hereby certify to Title Resources (OA No. 102631 & 102632) that this survey was this day made on the ground of the property legally described hereon and is eornx4 and to the best ofmyJmowledge, there are no visible discrepancies, conflicts, shotteges In area, boundary line cantllcts, mcroedhmentr, overlapping of improvements, easements orrights ofway that have bow advised of except as shown hereon rthur Surveying Co., Inc. p"&saional Land Surveyors P.O.Box 54 — Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972) 221 -4675 Established 1988 ATTACHMENT 3 TO EASEMENT PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. DRAINAGE EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Kevin Nelms, a married man, with the Property (as defined below) comprising no part of the homestead of he and his wife, and Richard Greb and wife, Nancy Greb (collectively, "Grantor "), in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, receipt of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ( "Grantee "), 215 E. McKinney, Denton, Texas 76201, a perpetual drainage easement in, along, over, upon, under and across the following described property (the "Property "), owned by Grantor, and situated in Denton County, Texas, located in the David Hough Survey, Abstract No. 646, Denton County, Texas, to wit: PROPERTY DESCRIBED IN EXHIBITS 66A -1" AND 66A -255, RESPECTIVELY, AND DEPICTED IN EXHIBITS 44B -1" AND 64B -291, RESPECTIVELY, EACH ATTACHED HERETO AND MADE A PART HEREOF For the following purposes: Constructing, reconstructing, installing, repairing, relocating, operating, and perpetually maintaining drainage, and related drainage facilities and appurtenances, including without I limitation, the right to overflow the Property, in, along, over, upon, under and across said Property. The rights granted herein shall further include, without limitation, the free and uninterrupted use, liberty, passage, ingress, egress and regress, at all times in, along, over, upon, under and across the Property to Grantee herein, its agents, employees, contractors, workmen and representatives, for the purposes set forth herein, including without limitation, the making additions to, improvements on and repairs to said facilities and /or drainage features or grade, or any part thereof. This Easement is subject to the following: 1. Structures. No buildings, fences, structures, signs, facilities, improvements or obstructions of any kind, or portions thereof, shall be constructed, erected, reconstructed or placed in, along, over, upon, under or across the Property by Grantor. Further, Grantor stipulates and acknowledges that the Grantee, in consideration of the benefits above set out, may alter the grade of the Property and may remove from the Property, such buildings, fences, structures, signs, facilities, improvements and other obstructions as may now or hereafter be found upon said Property and dispose of any such buildings, fences, structures, signs, facilities, improvements or obstructions in any manner it deems appropriate without liability to Grantee. 2. Maintenance of Lateral Slope. No activity, of any kind, shall be conducted on the Property by Grantor that may impair, damage or destroy the lateral slope established for drainage, including without limitation, excavation or movement of soil or other material. 3. Access. For the purpose of exercising and enjoying the rights granted herein, the Grantee shall have access to the Property by way of existing public property or right -of -way. 4. Trees and Landscaping. No shrub or tree shall be planted upon the Property or that may encroach upon the Property. Grantee may cut, trim, or remove any shrubs or trees, or portions of shrubs or trees now or hereafter located within or that may overhang upon the Property without liability to Grantee, including without limitation, the obligation to make further payment to Grantor. 5. Grantor's Rights. Grantor shall have the right, subject to the restrictions contained herein, to make use of the Property for any purpose that does not interfere with the Grantee's rights granted to it herein for the purposes granted. 6. Successors and Assigns. This grant and the provisions contained herein shall constitute covenants running with the land and shall be binding upon the Grantor and Grantee, and their heirs, devisees, successors and assigns. 2 TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness my hand, this the day of KEVIN NELMS N.:'I NANCY GREG ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § 2014. This instrument was acknowledged before me on , 2014 by Kevin Nelms. Notary Public, State of Texas My commission expires: ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on , 2014 by Richard Greb. Notary Public, State of Texas My commission expires: 3 ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on , 2014 by Nancy Greb. AFTER RECORDING RETURN TO: City of Denton Engineering Department 901 -A Texas Street Denton, Texas 76209 Attn: Paul Williamson Notary Public, State of Texas My commission expires: 11 EXHIBIT "A -1" - to Drainage Easement rthur Surveying Co ,. tne. .F�ro�ssioxzaY 7�td SYZx'rreycizs P.O. Box 54 Lewisville, Texas 75067 Oflioo: (972) 221 -9439 Fax: (972) 221 74675 20' DRAINAGE EASEMENT 0.037 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract: Number 645; City of Denton, Denton County, Texas, and being part of Tract Ias.described by deed to Kevin Nelms, Recbrded in Volume 3432, Page 911, Deed Records, Denton County, Texas (D.R.D.C.T.), and being mote particularly described as, follows: COMMENCING at a "PK" nail set in Mayhill Road for the southeast corner of said Nelms tract and the no corner of a right -of way dedication as shown on Providence Place 11, an addition. to the City of Denton; Denton County, Texas, according to the plat thereof recorded iri Cabinet X, Page 905, Plat Records, Denton County, Texas; THENCE South 88 degrees 01 minutes 21 seconds West, with the south line bf said Nelms tract and the north line of said right -o£ way dedication, a distance of 865.78 feet to a 1/2 inch iron rod with yellow:cap stamped "Arthur Surveying Company" (ASC) set. for corner; THENCE North 01 degrees 58 minutes 58 seconds West, over and across said Nelms tract, a distance of 8.87 feet to a l/2 inch iron rod with yellow cap stamped "ASC" set for the beginning of a non - tangent curve to the left, Having a radius of 125.00 feet;. THENCE over and'across said Nelms tract, with said curve to the-left, through a central angle of 43 degrees 33: minutes 22 seconds, whose chord bears North 66 degrees 14 minutes 21 seconds East at 92:25 'feet, having an arc . length of 95.02 feet to a 1/2 inch iron rod with yellow cap stamped "ASC" set for.the beginning of a curve to the right, having a-radius .of 1106.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of 10 degrees 41 minutes 20 seconds, whose chord bears North 29 degrees 29 minutes 56 seconds East at 206.03 feet, having an arc length of 206.33 feet to the POINT OF BEGINNING; . THENCE North 52 degrees 16 minutes 24 seconds West, over and across said Nelms tract ,.. a distance. of 2002 feet to the beginning "of a non - tangent curve to the right, having a radius of 1126:00 feet; THENCE over and across said Nelms tract, with said curve to the right, through a central angle of.02 degrees 49.. minutes 56 seconds, whose chord bears North 36 degrees 18 minutes:38 seconds East.at 55.65 _feet having an _arc length of 55.66 feet to a point for corner; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said - elms tract, a distance of 24.37, feet to a point for corner; THENCE South 52 degrees 16 minutes 24 seconds East, over and across said Nelrrls "tract,.a distance of 20:00 feet to .a point for corner; (continued) 01107131.41 Parcel M138 -D$1 EXHIBIT "A -1" - to Drainage Easement rthur Surveying .Co :Inc. .�'xofessioizaF .�.x�,d Srxr•4re� ax's . P.O. Box 54 —Lewisville, Texas 75067 Office: (972) 221 -9439 Fax: (972).221-4675 . THENCE South 37 degrees 43 minutes 36 seconds West, over and across said Nelms tract; a distance of 24.37feet- to the beginning of a non - tangent curve to the left, having a radius of 1106.00 feet; THENCE over and across said Nelms tract, with said curve to the left; tliroiigh a.central angle of 02' degrees 53..: minutes 00 seconds, whose chord bears South 36 degrees 17 minutes 06 seconds West at 55.65 feet,: having an arc length of 55.66 feet to the POINT OF BEGINNING and.containing 0.037 acre of land: oN............. N sr JOHN M. RtlSSlrLl.. �• ., 'W if..,.. r �( N EXHIBIT "B -111 - to. Drainage Easement CURVE TABLE ## Radius jxngth Delta Chord . Cl 125.00' 95:02' 43 °3322" N66 °14'21 "E 92.75' C2 1106.00' 206,33' 10 04170 ". N29 029156'73 206.03' Q 112600' 55.66' 02 049`56" N36 °18'38 "E 55.65'. C4 1106.00' 55,-M, 02 053'00" S36 °17'06 "W 55.65' . . � I E 0 -w ^o � ' ,.. yeti • I �• a �:� . . 200 0 100 200 SCALE: l" =200' Hearings shown hereon based on the City of Kevin Nelms Denton G1S Network. - Vol. 3432, Pg. 911 d I.R.F. Tract I `te.7' yl 60' Brazos electric � S°n Richard A. Gieb & i Power Epeernpht °os°e t• Nancy A' Greb Volume 1636, Pape 436 qp9 Instr. No. ' 2008- 100770O� ejY�3 lam' Tract I •a ��° 15' Gas Easement �QyA fo4°s lnstr, No — . 20D634815 0.037 Acre 9 ,� f 20' Drainage N3704336'93 S52 0 1624 B ••N11 ..: Rw Easement 24.37 20.00' N (1,600 sq. ft.) / o C3 S37 °4336 "W - o ° N52 01624 "W C4 24.37' ii z . 20.02' C2 1 • 0 • �¢�AO eo i $ iii I'. Q C. N01 158'58"W / fence 1.1?.f 8:87 C =r "P1C" Nall (C.M.��.C_ r, S88'Oi 2i W 865.78 -- _ — 5et 55.83'x- - - - -- Donnelly Addition Cabinet 0, Page 77 �F' Providence Place U. Cabinet X, Peg- 906 , .Robert P. Donnelly �✓ j F� -.tS% ` e 905 , , Voluine 3304 Pa , �JONN M. °RUSSELL 1 5$(15 v/ NOTES: • S'•�' f LRF. =112" Iron Rod.Found ' . •� \ • • I.R.S. =1/2" iron Rod Set with yellow cap stamp. ed "Arthur Surveying Company," tip All improvements not shown hereon. Easements recorded in Vol, 190, Pgs. 620 &'622, Vol. 336; Pgs. 347,367 & 583, & A�q Vol. 391, Pg. 169 do not affect this tract to the best of my Irnowledge, y (V . Blanket Easements recorded in Vol. 357, Pg. 45 & Vol, 357, Pg. 54 as assigeed in. A . Vol. 2736, Pg. 828 includes this tract : \ • Easement recorded in Vol. 341, Pg. 222 as assigned in Vol. 367, Pg: 242 is.ceutered on a pipeline not specifically located. - - suRvEYORs CERMICAT1ON: The uado dpM dots hom_ certify to Title Reaourcea (O.F.2Io.102631 & 102632) tW 0 survey was Miltdaybms oonthegroundofthe: prop�Yl�y dexrlbed hemon and k eoanc_k add to the bait nfxgy knoWledgc, ttut a 4W rw vWble dlsarepancW,, cdntllcta, shdrtagei io urn, boundary 20 .. Drainage Easement tinecona> Kcmd ent,ora.ava'rwayggf improvenrente; eavbmeraa or dghfs ofway that I 0.037 Acres We been advised, ofowept as shown fiereon David Hough Survey, rthur Surveying Co. Inc Abstract Number 646 City of Denton 3�fessionall.�rici surveyors Texas P.O.Boa 54 -' Leirieville, Texas .76087 Denton County, Office: (979) 221 -9439 '0"..(972) 2214676 —2012— Established -1906 City of Denton, Denton uounty,, texas BEING all that certain lot, tract or parcel of land situated in the David Hough Survey, Abstract Number 646, City. of Denton, Denton County, Texas, and being part of Tract I as described by deed to Kevin Nelms, Recorded in Volume.' 3432,1?age 911, Deed Records, Denton County, Texas {D.R.D.C.T.), and being more particularly:described as. follows: COMMENCING at a "PK' nail set in Mayhill Road for the southeast corner of said Nelms tract and the northeast corner of a right -of -way dedication as shown on Providence Place 11, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet X, Page 905, Plat Records, Denton County; ;Texas;: THENCE South 88'degrees 01 minutes 21 seconds West, with the south line of said hlettns tract and the north line of said Providence Place 11, a distance-of 382.61 feet. to the POINT OF BEGINNING; THENCE South 88 degrees 01 minutes 21 seconds West, continuing withthe south line: of said Nelms tract and the north line of said Providence Place % a distance of 66.52 feet to a point for "corner; THENCE North 43 degrees 14 minutes 38 seconds West, over and across said-Nelms tracka distance of 1 12.01 feet to the beginning of a non - tangent curve to the right, having a radius of 905.00 feet; THENCE over and across said Nelms tract, with said curve to the right, through :a central angle of 02 degrees 5..7 minutes 45 seconds, whose chord bears North 36 degrees 14 minutes 44 seconds at 46.79 feet,. having an arc lehlo of 46.79 feet to a point for corner; THENCE North 37 degrees 43 minutes 36 seconds East, over and across said Nelms tract, a distance of 4.05 feet to a point for corner; THENCE South 43 degrees 14 minutes 38 seconds East, over and across said Nelms tract, a distance of 165.06'feet to the POINT OF BEGINNING and containing 0.159 acres of land. 0110713141 Parcel M138 -DE2 EXHIBIT "B -211 - to Drainage Easement 200.. 0 100 200 SCALE: V=200' Bearings shown hereon based on the City of Denton QIS Network. I.R.F. .(C.M.) (C. M.) CI \ \ R--905.00' L- 46.79' \ \ Q=02 057'45" \ \ Chd N36 °14'44" B \ 46.79' \/ 9 Kevin. Nelms `i0 4 Vol 3432,. Pg. 911 b o4pe av Tract I Richard A. Greb & '�• :Nancy A Greb Inste. No. 2006- 10770 NN t v. I U) Do �..zo - I 80' Brazos ,Electric Easement (C. M.) CI \ \ R--905.00' L- 46.79' \ \ Q=02 057'45" \ \ Chd N36 °14'44" B \ 46.79' \/ 9 Kevin. Nelms `i0 4 Vol 3432,. Pg. 911 b o4pe av Tract I Richard A. Greb & '�• :Nancy A Greb Inste. No. 2006- 10770 Tradt I ' 0.159 Acre 50t Drainage. . f N37 °43'36T 1 4.05' Easement , (6,939 sq. ft,): Cl (.. N43 °14'38 "W 1 0 C # 112.01' J A. "_ S X21,- �S88'Oi 2W�382.61� -- "P Set all »-- S88 01 S88'01.' 21;W efent _. 66.52'--._— - -- - - -- -- - - - - -- 1372.49 - ------ ---� -- --- - -- - -- .. -- - Donnell Addition ---,T* i; Cabinet 0, Page 77 \ �Providence Place II I ` t Cabinet X Page. 906 i. T ; Robet P. Donnelly 5`91 , Volume. 3364, Pa a 905 t Q ('re m SELL . NOTES: LN . I.R.F. =1/2" Iron Rod Found 'r` • I.RS. ° 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" �. • All improvements not shown hereon, • Easements recorded in Vol,-190, Pgs. 620 & 622, V01336,1 gs, 347,.367 & 583, & Vol. 391, Pg. 169 do not Wffect.this tract to the best of my knowledge. �' • Blanket Easements recorded in Vol. 357, Pg: 45 & Vol. 357,.Pg. 54 as assigeiid in Vol. 2736, Pg. 828 includes this tract: • Easement recorded. in Vol. 341, Pg. 222 as assigned In Vol. 367, Pg. 242 is centered . on a pipeline not speeifibally located. ¢URVEYORSCRRTMCAT16N, Tlmunderblgncddaa+LorobY tootle Rtsoumaa'(O.F. M. 102631 & 102632) that this sutvoy was this day mgde on the gmund afth° :P is caUW4 and to ills best ofmyl<nowltdge, tLete are no vbfbfe >t disOW"Cles,,conmets,, sha+twu in aft% bomd&w 50 Dra inage Easement f ineaontliet�eaoroecbments ,overlappfnguP 1 n iaq- vemanta ,eu�euMorilghteofsveythatl 0.158 Acre Lave beenadvisedofozaptasshawnfieroon David Hough Survey, Abstract Number 646 rthUr Suive Ing y Co.) Inc, City of Denton proles s>> Yo Denton County, Texas P•0•Box. 64 = Lewisville Cesas 76067 y Office: (972) 221 -9439 Faxf (972) 221 -4875 --2012-- "Established 1986 .uc::r �:.na.•.�.'_�:._ .�, r. - _ ..:. , ...,. -. �.: .. ... . �. - . . _ . .. ...,..._ .. :.. . .. ......... ..... -.u,,. - ..:ate' t v. I - I 80' Brazos ,Electric Easement Power Volume 1636• ,Page 438, ^' 15' Cos' Easement insir. No. 2006-34815!: Tradt I ' 0.159 Acre 50t Drainage. . f N37 °43'36T 1 4.05' Easement , (6,939 sq. ft,): Cl (.. N43 °14'38 "W 1 0 C # 112.01' J A. "_ S X21,- �S88'Oi 2W�382.61� -- "P Set all »-- S88 01 S88'01.' 21;W efent _. 66.52'--._— - -- - - -- -- - - - - -- 1372.49 - ------ ---� -- --- - -- - -- .. -- - Donnell Addition ---,T* i; Cabinet 0, Page 77 \ �Providence Place II I ` t Cabinet X Page. 906 i. T ; Robet P. Donnelly 5`91 , Volume. 3364, Pa a 905 t Q ('re m SELL . NOTES: LN . I.R.F. =1/2" Iron Rod Found 'r` • I.RS. ° 1/2" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" �. • All improvements not shown hereon, • Easements recorded in Vol,-190, Pgs. 620 & 622, V01336,1 gs, 347,.367 & 583, & Vol. 391, Pg. 169 do not Wffect.this tract to the best of my knowledge. �' • Blanket Easements recorded in Vol. 357, Pg: 45 & Vol. 357,.Pg. 54 as assigeiid in Vol. 2736, Pg. 828 includes this tract: • Easement recorded. in Vol. 341, Pg. 222 as assigned In Vol. 367, Pg. 242 is centered . on a pipeline not speeifibally located. ¢URVEYORSCRRTMCAT16N, Tlmunderblgncddaa+LorobY tootle Rtsoumaa'(O.F. M. 102631 & 102632) that this sutvoy was this day mgde on the gmund afth° :P is caUW4 and to ills best ofmyl<nowltdge, tLete are no vbfbfe >t disOW"Cles,,conmets,, sha+twu in aft% bomd&w 50 Dra inage Easement f ineaontliet�eaoroecbments ,overlappfnguP 1 n iaq- vemanta ,eu�euMorilghteofsveythatl 0.158 Acre Lave beenadvisedofozaptasshawnfieroon David Hough Survey, Abstract Number 646 rthUr Suive Ing y Co.) Inc, City of Denton proles s>> Yo Denton County, Texas P•0•Box. 64 = Lewisville Cesas 76067 y Office: (972) 221 -9439 Faxf (972) 221 -4875 --2012-- "Established 1986 .uc::r �:.na.•.�.'_�:._ .�, r. - _ ..:. , ...,. -. �.: .. ... . �. - . . _ . .. ...,..._ .. :.. . .. ......... ..... -.u,,. - ..:ate' EXHIBIT 3 attachment to AIS Minutes of the Public Utilities Board Meeting June 24, 2013 Page 3 of 8 awarded to Rush Truck Center in the amount of $1,315,173 McNeilus Truck Manufacturing in the amount of $513,536 and DaDee Manufacturing, LLC in the amount of $447,353.46 for a total award amount of $2,276,062.46). Board Member Robinson motioned to approve item 3 with a second from Board Member Gallivan. The vote was 6 -0 approved. 4) Consider recommending approval of the purchase of one dry pit submersible pump for the Raw Sewage Pump Station Number 2 at the Pecan Creek Water Reclamation Plant from DXP Enterprises for the amount of $67,925. Board Member Herring asked why there were no bids on this item. Martin answered this is a single source item. It has to do with the rebuilding of a lift station. With the existing piping and pump bases, a certain area has to be fitted with the pump. P.S. Arora, Division Manager, stated they looked at several vendors but this vendor is the only one that could fit the dimensions they needed. Board Member Herring motioned to approve item 4 with a second from Board Member Russell. The vote was 6 -0 approved 5) Consider recommending approval of the acquisition of real property tracts of (1) 4.508 acres; (2) 0.624 acre; (3) 2.151 acre; and (4) 0.125 acre for municipal landfill use, as a concurrent matter with the acquisition of the necessary land rights required for the Mayhill Widening and Improvements project. Board Member Robinson motioned to approve item 5 with a second from Board Member Gallivan. The vote was 6 -0 approved. ITEMS FOR INDIVIDUAL CONSIDERATION: 6) Consider recommending approval of the Public Utilities Board Meeting minutes of: a) June 10, 2012 Date should be June 10, 2013 not June 10, 2012. 7) Consider a recommendation of approval of the FY 2014 -2018 Electric Capital Improvement Plan (CIP). Phil Williams, General Manager DME, stated there are no changes staff is asking for approval from this Board. Board Member Robinson motioned to approve item 7 with a second from Board Member Russell. The vote was 6 -0 approved. AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Engineering Services ACM: Jon Fortune SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Purchase Agreement, by and between the City of Denton, Texas ( "City "), as buyer, and Jerry M. Kelsoe (the "Owner "), as seller, to acquire (1) fee simple to a 0.216 acre tract; and (11) a temporary constriction, grading and access easement, encumbering a 0.152 acre tract, all tracts situated in the M.E.P. & P.R.R. Co. Survey, Abstract No. 1469, located in the City of Denton, Denton County, Texas, and being generally located in the 1500 block of North Mayhill Road; for the purchase price of Three Hundred Thirty Nine Thousand Two Hundred Forty Five Dollars and No Cents ($339,245.00), and other consideration, as prescribed in the Purchase Agreement (the "Agreement "), as attached hereto and made a part hereof as Exhibit "A ", authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. ( Mayhill Road Widening and Improvements project — Kelsoe Parcel M024) BACKGROUND The City Council considered and approved an offer (August 7, 2012) pursuant to Ordinance No. 2012 -170, to purchase the captioned land rights. The Owner has engaged in formal negotiation dialogue and counters with the captioned purchase amount, along with some agreement term aspects, as settlement of the matter. The Owner desires to retain a portion of the existing building stricture being bisected by the road widening initiative. In the context of the Purchase Agreement, the Owner, at owner's expense, can elect to pursue a partial demolition /removal of that part of the building stricture that is situated upon the fee tract to be acquired by the City. Approval of the ordinance under consideration authorizes staff to proceed to closing the purchase transaction with the property owner. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. Agenda Information Sheet January 7, 2014 Page 2 PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council August 7, 2012 (Offer to Purchase Ordinance 2012 -170) FISCAL INFORMATION The overall Mayhill Road Widening and Improvements project is being funded with a combination of Regional Toll Revenue (RTR) funds, Denton County Transportation Road Improvement Program (TRIP `08) funds and City of Denton local match funds. The recommended settlement amount is $339,245.00 plus closing costs, as prescribed in the Agreement. EXHIBITS 1. Location Map 2. Ordinance Respectfully submitted, Paul Williamson, Real Estate Manager Location Map EXHIBIT I attachment to AIS KELSOE — Parcel M024 Mayhill Road Widening and Improvements FISH TRAP N 0 �a M�N�O w � ry U W J n" W TWILIGHT Q n 3g0 z ° H WY 377 CD z us zMORNI 0 SIDE Kelso e UN�vERS�TY Property Q Location 0 J _J Q 2 BLAGG AUDRA HOLLAND Location Map EXHIBIT I attachment to AIS KELSOE — Parcel M024 Mayhill Road Widening and Improvements s: cpAour documentslordinances1141ke1soe ordinance.doc EXHIBIT 2 attachment to AIS ORDINANCE NO. 2014- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PURCHASE AGREEMENT, BY AND BETWEEN THE CITY OF DENTON, TEXAS ( "CITY "), AS BUYER, AND JERRY M. KELSOE (THE "OWNER"), AS SELLER, TO ACQUIRE (I) FEE SIMPLE TO A 0.216 ACRE TRACT; AND (1I) A TEMPORARY CONSTRUCTION, GRADING AND ACCESS EASEMENT, ENCUMBERING A 0.152 ACRE TRACT, ALL TRACTS SITUATED IN THE M.E.P. & P.R.R. CO. SURVEY, ABSTRACT NO. 1469, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING GENERALLY LOCATED IN THE 1500 BLOCK OF NORTH MAYHILL ROAD; FOR THE PURCHASE PRICE OF THREE HUNDRED THIRTY NINE THOUSAND TWO HUNDRED FORTY FIVE DOLLARS AND NO CENTS ($339,245.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE PURCHASE AGREEMENT (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A ", AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING RELOCATION EXPENDITURES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute for and on behalf of the City (i) the Agreement, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $339,245.00, as prescribed in the Agreement; and (ii) any other documents necessary for closing the transactions contemplated by the Agreement. SECTION 2. The City Manager is authorized to make expenditures in accordance with (i) the terms of the Agreement; and (ii) Ordinance No. 2012 -073, dated April 17, 2012, pertaining to relocation related expenses and advisory services. SECTION 3. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: L . �z 'J —b. --c Page 2 PURCHASE AGREEMENT NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. THIS PURCHASE AGREEMENT (the "Agreement ") is dated // —% 3 — 2013, but effective as of the date provided below, between Jerry M. Kelsoe (referred to herein as "Owner ") and the City of Denton, Texas ( "City") WITNESSETH: WHEREAS, Jerry M. Kelsoe is the Owner of a tract of land (the "Land ") in the M.E.P. & P.R.R. Co. Survey, Abstract Number 1469, being affected by the public improvement project called the Mayhill Road Widening and Improvements Project ( "Project "); and WHEREAS, City is in need of certain (i) fee simple lands, being a part of the Land; and (ii) an easement in, along, over, upon, under and across, a portion of the Land, each related to the Project; and WHEREAS, it is desirous of both parties to stipulate and agree to the terms and conditions associated with the purchase of the necessary real property interests for the Project; NOW, THEREFORE, for Ten and No /100 Dollars ($10.00), and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged,the parties agree as follows: 1. A. At Closing, the Owner shall grant, execute, and deliver to the City (i) a Special Warranty Deed (herein so called), conveying to the City, subject to the reservations described 1 1 below, the tract of land being described in Exhibit "A" and depicted in Exhibit "B" to that certain Special Warranty Deed, and other interests as prescribed therein (the "Fee Lands "), the Special Warranty Deed being attached hereto as Attachment l and made a part hereof; and (ii) a Temporary Construction, Grading and Access Easement (the "Easement "), in, along, upon, under, over and across the tract of land being described in Exhibit "A" and depicted in Exhibit "B" (the "Easement Lands "), to that certain Temporary Construction, Grading and Access Easement, attached hereto as Attachment 2 and made a part hereof, for temporary construction, grading and access purposes, as more particularly described therein. The (i) Special Warranty Deed shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 1 "; and (ii) the Easement shall be in the form and upon the terms as attached hereto and incorporated herein as "Attachment 2" (the Fee Lands and the Easement are collectively referred to herein as the "Property "). B. Owner, subject to the limitation of such reservation made herein, shall reserve, for himself, his heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Fee Lands. Owner, his heirs, devisees, successors and assigns, shall not have the right to use or access the surface of the Fee Lands, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Fee Lands for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, deplete or destroy the surface of the Fee Lands; and (ii) all substances which are at or near the surface of the Fee Lands. The intent 2 of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Fee Lands" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. Subject to the terms hereof, as consideration for (i) the granting and conveying of the Fee Lands and the Easement to the City; and (ii) damages to the Owner's remaining property, the City shall pay to Owner the sum of Three Hundred Thirty Nine Thousand Two Hundred Forty Five and No /100 Dollars ($339,245.00). The monetary compensation prescribed in this Section 2 is herein referred to as the "Total Monetary Compensation". 3. Owner shall remove from the Fee Lands all improvements now located on the Fee Lands, including without limitation, all pipe and chain link fencing, that certain portion of the existing office building and shop, along with the foundation and all components thereof or related thereto, now located on the Fee Lands, and along with all personal property and any and all waste and debris related thereto (collectively, the "Removal Improvements "), on or before ninety (90) days , �f after Closing (the "Removal Period "). In connection with such activities, Owner shall disconnect and retire all utilities or reroute such utilities related to the Removal Improvements, in accordance with the Denton Building Code requirements of the City of Denton, Texas. All activities contemplated herein, including the disposal of any of the Removed Improvements after their removal from the Fee Lands, shall be conducted in accordance with all applicable statutes, rules, regulations and ordinances, including without limitation, the Code of the City of Denton, Texas. To secure the obligations of Owner related to the timely removal of the Removal Improvements, City shall retain the sum of Fifty Thousand and no /100 Dollars ($50,000.00) (the "Retained Amount ") at Closing from the amount due Owner hereunder, leaving the sum of Two Hundred Eighty Nine Thousand Two Hundred Forty Five and no /100 Dollars ($289,245.00) due Owner by City at Closing. Upon (i) the timely completion of the removal of the Removal 3 Improvements from the Fee Lands, as determined in the reasonable discretion of City; and (ii) execution and delivery by Owner to City of a written stipulation that (a) all of the Removal Improvements have been removed and disposed of in accordance with the terms hereof; and (b) Owner waives, quitclaims and relinquishes any and all rights to any personal property and trade fixtures of Owner that may be located on the Fee Lands, if any, and the Removal Improvements, nifal the Retained Amount shall be disbursed to Owner. to City Any property, of any kind or type, remaining on the Fee Lands after the expiration of the Removal Period shall be deemed abandoned and City may retain, destroy or dispose of any such matters or property, of any kind or type, including without limitation, any personal property or trade fixtures of Owner or any other party, left remaining on the Fee Lands without liability of any kind to City and without payment of consideration of any kind to Owner or any other party. Notwithstanding anything to the contrary herein, Owner shall have no right to, and shall not in any event, occupy any portion of the Fee Lands from and after the expiration of the Removal Period, except that to which may be enjoyed as a member of the traveling public upon Mayhill Road. In the event Owner shall default in its obligations under this Agreement, including without limitation, the obligation to remove the Removal Improvements from the Fee Lands in accordance with the terms hereof, City shall be entitled to retain the Retained Amount and City shall be entitled to exercise any and all rights provided to it under the Temporary Construction, Grading and Access Easement, including without limitation, the removal of any structures located within the Fee Lands and Easement Lands, Owner expressly stipulating that all structures located on the Fee Lands and Easement Lands are to be removed by City in the event of such default by Owner. FROM AND AFTER THE DATE OF CLOSING TO THE EXPIRATION OF THE REMOVAL PERIOD, OWNER SHALL MAINTAIN IN EFFECT ALL INSURANCE COVERAGES DESCRIBED IN ATTACHMENT 3, ATTACHED HERETO AND MADE A PART HEREOF. FURTHER, OWNER SHALL INDEMNIFY, DEFEND AND HOLD CITY, ITS OFFICERS, ELECTED OFFICIALS, AGENTS AND EMPLOYEES HARMLESS FROM ANY DAMAGE OR INJURY (AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS, LIABILITY OR REASONABLE EXPENSE, INCLUDING ATTORNEY'S FEES AND OTHER FEES 4 AND COURT COSTS), CAUSED BY OR RELATED TO OWNER'S OCCUPANCY OF THE FEE LANDS, DEFAULT UNDER THIS AGREEMENT AND /OR THE ACTIVITIES CONTEMPLATED HEREIN, INCLUDING WITHOUT LIMITATION, ANY CLAIM OF ANY KIND RELATED TO TENANTS, LICENSEES OR ANY OTHER THIRD PARTY OCCUPYING OR CLAIMING ANY RIGHTS TO THE FEE LANDS, OR ANY PORTION THEREOF, SUCH OBLIGATIONS (A) TO BE INDEPENDENT OF OWNER'S INSURANCE; (B) TO NOT BE LIMITED BY COMPARATIVE NEGLIGENT STATUTES OR DAMAGES PAID UNDER THE WORKERS' COMPENSATION ACT OR SIMILAR EMPLOYEE BENEFIT ACTS; (C) WITHOUT LIMITING THE GENERAL NATURE OF SECTION 14, BELOW, TO SURVIVE CLOSING, AND NOT BE MERGED IN THE SPECIAL WARRANTY DEED OR TEMPORARY CONSTRUCTION, GRADING AND ACCESS EASEMENT; AND (D) SHALL APPLY EVEN IF AN INJURY OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE, BUT SHALL NOT APPLY IN THE CASE OF SOLE OR GROSS NEGLIGENCE, OF CITY. Upon timely completion of the obligations of Owner in this Section 3, City shall release the Temporary Construction, Grading and Access Easement, and file a release of same of record in the Real Property Records of Denton County, Texas. 3.A. During the period commencing with the Effective Date of this Agreement and ending forty five (45) calendar days thereafter (the "Review Period"), the City shall have the right to conduct such tests, examinations, studies, investigations and inspections of the Property and improvements located thereon the City deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at City's sole cost. City is granted the right to conduct a physical inspection of the Property and improvements Iocated thereon, including inspections that invade the surface and subsurface of the Property. If City determines, in its sole judgment, that the insurance required by Owner under this Agreement is not sufficient in regard to scope and/or amounts of coverage, City may request owner to amend this Agreement in respect to the insurance coverage required herein. Owner shall not be required to enter into any such amendment. However, any term or provision of this Agreement notwithstanding, in the event Owner shall refuse to so amend this Agreement 5 as requested by City prior to Closing, City may terminate this Agreement by written notice to the Owner, as soon as reasonably practicable, but in any event prior to Closing, in which case neither City nor Owner shall have any further duties or obligations hereunder. 4. The Owner shall convey and grant to the City the Fee Lands and the Easement free and clear of all debts, liens and other encumbrances (the "Encumbrances"). The Owner shall assist and support satisfaction of all closing requirements of the City in relation to solicitation of releases or subordinations of the Encumbrances and other curative efforts affecting the Fee Lands and/or Easement Lands, if necessary in the discretion of the City. In the event that all Encumbrances are not cured to the satisfaction of City prior to Closing, such shall not be a default hereunder, although Owner may otherwise be in default under Section 11, below. However, if the Encumbrances are not cured as provided herein, City has the option of either (i) waiving the defects related to the remaining Encumbrances by notice in writing to Owner on or prior to the Closing Date, upon which the remaining Encumbrances shall become Permitted Exceptions (herein so called), and proceed to close the transaction contemplated by this Agreement; or (ii) terminating this Agreement by notice in writing to Owner, in which latter event Owner and City shall have no further obligations under this Agreement. S. Owner stipulates that the Total Monetary Compensation payment constitutes and includes all compensation due Owner by City related to the Project, including without limitation, any damage to or diminution in the value of the remainder of Owner's property caused by, incident to, or related to the Project and the transactions contemplated under this Agreement, value of, damage to and/or costs of repair, replacement and/or relocation of any improvements, turf, landscape, vegetation, or any other structure or facility of any kind, including without limitation, commercial structures, located within the Easement Lands and/or Fee Lands, related to activities conducted pursuant to the Easement or City ownership of the Fee Lands, interference with Owner's activities on the Easement Lands or other property interests of Owner, caused by or related to activities within the scope of the rights granted by the Easement, whether accruing now or hereafter, and Owner hereby releases for themselves, their heirs, devisees, successors and assigns, City, it's officers, employees, elected officials, agents and contractors from and C against any and all claims they may have now or in the future, related to the herein described matters, events and/or damages. In the event Owner shall timely perform all of its obligations under Section 3, above, and City shall terminate its rights under the Easement, all references herein to the Easement and/or Easement Lands shall be deemed to be deleted from this Section 5. 6. The Closing (herein so called) shall occur in and through the office of Title Resources, LLC, 525 South Loop 288, Suite 125, Denton, Texas 76205 {"Title Company "), with said Title Company acting as escrow agent, on the date which is 180 days after the Effective Date, unless the Owner and the City mutually agree, in writing, to an earlier or later date ("Closing Date "). In the event the Closing Date, as described above, occurs on a Saturday, Sunday or Denton County holiday, the Closing Date shall be the next resulting business day. 7. The stipulated Total Monetary Compensation amount shall be paid by the City to the Owner, through the Title Company, in accordance with the terms hereof. Ad valorem taxes relating to the Fee Lands for the calendar year in which Closing shall occur shall be prorated between Owner and City as of the Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Fee Lands for the preceding calendar year, and shall be readjusted in cash as soon as the amount of taxes levied against the Fee Lands for the calendar year in which Closing shall occur is known. The result of such proration is that the Owner shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to Closing) and City shall pay for those taxes attributable to the period commencing as of the Closing Date. All other typical, customary and standard closing costs associated with this transaction shall be paid specifically by the City, except for Owner's attorney's fees, if any, which shall be paid by Owner. 8. The date on which this Agreement is executed by the City shall be the "Effective Date" of this Agreement. 7 9.A. In the event Owner shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, City may exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, the remedy of specific performance. B. In the event City shall default in the performance of any covenant or term provided herein, and such default shall be continuing after ten (10) days written notice of default and opportunity to cure, Owner may, as its sole and exclusive remedy, either (i) terminate this Agreement prior to Closing by written notice of such election to City; or (ii) enforce specific performance of this Agreement. 10. THE LAWS OF THE STATE OF TEXAS SHALL CONTROL AND APPLY TO THIS AGREEMENT FOR ALL PURPOSES. THIS AGREEMENT IS PERFORMABLE IN DENTON COUNTY, TEXAS. VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE SOLELY IN THE COURTS OF COMPETENT JURISDICTION OF DENTON COUNTY, TEXAS. 11. From and after the Effective Date of this Agreement, through and including the Closing Date, Owner shall not (i) convey or lease any interest in the Fee Lands or Easement Lands; (ii) enter into any Agreement that will be binding upon the Fee Lands or upon the Owner with respect to the Fee Lands after the date of Closing; or (iii) enter into any agreement that will be binding on the Easement Lands, or upon Owner with respect to the Easement Lands, prior to the termination of the Easement. 12. Any notices prescribed or allowed hereunder to Owner shall be in writing and shall be delivered by telephonic facsimile, hand delivery or by United States Mail, as described herein, and shall be deemed delivered and received upon the earlier to occur of (a) the date provided if hand delivered or delivered by telephonic facsimile; and (b) on the date of deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: 8 OWNER: CITY: Jerry M. Kelsoe City of Denton Paul Williamson Real Estate and Capital Support X901 -A Texas Street P one o Denton, Texas 76209 Telecopy: (940) 349 -8951 Copies to: For Owner: For CjW. %J f Richard Casner, First Assistant City Attorney City Attorney's Office ,jpYL 215 E. McKinney Denton, Texas 76201 V Telecopy: (940) 382 -7923 13. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties with respect to the subject matter of this Agreement. Time is of the essence with respect to this Agreement. Relocation advisory services and relocation financial assistance, if applicable pursuant to Ordinance No. 2012 -073 (the "Relocation Ordinance "), shall be administered as provided by the Relocation Ordinance, aside and apart from the transaction contemplated by this Agreement. 14. Owner represents and warrants to the City that Owner possesses the legal authority to enter into this Agreement and to perform all actions prescribed hereunder without joinder of any other party. The representations, warranties, agreements and covenants contained herein shall survive the Closing and shall not merge with the Special Warranty Deed and/or Easement. 15. In the event prior to the Closing Date, condemnation or eminent domain proceedings are threatened or initiated by any entity or party other than the City that might result in the taking of any portion of the Property, City may, at its election, terminate this Agreement at any time prior to Closing. 0 16. Authority to take any actions that are to be, or may be, taken by City under this Agreement and/or Easement, including without limitation, adjusting the Closing Date of this Agreement and/or the termination date of the Easement, and the execution and recordation of the termination and release of the Easement, are hereby delegated by City, pursuant to action by the City Council of Denton, Texas, to Frank G. Payne, P.E., City Engineer of City, or his designee. CITY OF DENTON, TEXAS By: GEORGE C. CAMPBELL, CITY MANAGER Date: , 2013 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Date: .2013 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Date:, 2013 OWNER: AY M. LSOE Z�Z'4 , Date: / /— / :3 , 2013 10 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of one (1) executed copy of this Agreement. Title Company agrees to comply with, and be bound by, the terms and provisions of this Agreement to perform its duties pursuant to the provisions of this Agreement and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 Printed Name: Title: Contract receipt date: , 2013 11 ATTACHMENT I TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS; YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § That JERRY M. KELSOE (referred to herein as "Grantor"), not joined by his spouse due to the Property (as defined below) comprising no part of the homestead of Grantor and spouse, for and in consideration of the sum of TEN AND N0 1100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A" and depicted on Exhibit "B ", both attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property'). Grantor, subject to the limitation of such reservation made herein, reserves, for himself, his heirs, devisees, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, his heirs, devisees, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall include oil, gas and all associated hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] The Special Warranty Deed is subject to that certain Purchase Agreement, dated effective 2013, by and between Grantor and Grantee. Page 2 of 3 Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims or causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of 2013. Y THE STATE OF TEXAS § COUNTY OF rna� § This instrument was acknowledged before me on _ J '�_-) , 2013 by Jerry M. Kelsoe. " SUE LIND My Commission Expires July 10. 2017 Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 Page 3 of 3 Not3ry'Public, State of Texas My commission expires: -1 -1 b- l Property Tax Bills To: City of Denton Finance Department 215 E. McKinney Street Denton, Texas 76201 4 rthur Surveying Co., Inc. P.Q_ Box 54 — Lawisville, Texas 75067 Office. (972) 221- 9439 --- Fax: (972) 221 -4675 EXHIBIT "A" MAYRELL ROAD RIGHT -OF -WAY PARCEL M024 0116 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the M.E.P. & P.R.& Co. Survey, Abstract Number 1469 and being part of that certain tract of land described by deed to Jerry M. Kelsoe, recorded in Volume 1823, Page 134 of the Real Property Records of Denton County, Texas (R.P.R.D.C.T.), and being more particularly described as follows: BEGINNING at a "PK" Nail set in Mayhill Road for the southeast corner of said Kelsoe tract and the northeast corner of a tract of land described by deed to Earl Edwards and wife, Ruth Edwards, recorded in Volume 1546, Page 775, R.P.R.D.C.T; THENCE South 80 degrees 18 minutes 15 seconds West, with the south line of said Kelsoe tract and the north line of said Edwards tract, a distance of 66.55 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for corner, THENCE North 02 degrees 46 minutes 43 seconds East, over and across said Kelsoe tract, a distance of 178.06 feet to a 112 inch iron rod with yellow cap stamped "A.S.C." set for corner in a northeasterly line of said Kelsoe tract and a southwesterly right -of -way line of U.S. Highway No. 380; THENCE South 48 degrees 53 minutes 46 seconds East, with a southwesterly right-of-way line of said U.S. Highway No. 380, a distance of 82.56 feet to a "PK" Nail set in said Mayhill Road for corner; THENCE South 02 degrees 40 minutes 25 seconds West, in said Mayhill Road, a distance of 112.49 feet to the POINT OF BEGINNING and containing 0216 acre of land, of which 0.073 acre lies within the existing Mayhill Road. C1107131-8 P-i wi n7d '380 t=orte O, 1loaume►+t round (e.�r.) r 7� %RS. �(y 60 0 30 60 \ P S3� New Right -of -way 0.143 ac (6,232 sq. 8.) _ 6 1 0' Existing lmpfied Dedication 0.073 ac. (3,191 sq. 1) ♦ SCALE: " 0.216 Acre (9,423 sq. fl.) � Bearings shown hereon based on the City of ? Denton G[S Network. Right-of-Way •Pc' Nag Parcel M024 sit �i Jerry ii. Kelsoe i-'�ry Volume 2971 P Page 17"! l Volume 1823, Page 134 ��Vp rya o V M o 1 c v Pi 3 O1 Z 2° q o r � N � ��• �tstln9 ��din4 C� bv- dt.44` .pg. S80- 1e�,�'w 5nW r1a7 r r 10 r r.R.s. S8Qp�8 1 set as S8!*,'1"421"- w 66. + x F.1.R. (C-M-) I ",�' 1 197� I� fig. � r f M I I a; 13t i� Earl Edwards and wife, Ruth Edwards N Volume 1548, Page 775 I I i) Sg0.18'15 "W r� 50.99 EXHIBIT IT" Mayhill Road Ri ht--of —Wa Parcel M024 0.218 acre in the M.E.P. & P.R.R. Co. Survey, Abstract Number 1489, City of Denton Denton County, Texas M •o 3 Z t Fi, �v NOTES: • I.R.F. = 12" iron Rod Found • I.RRS. = Ur Iron Rod Set with yellow cap stamped "Arthur Surveying Company" reoa. ,Y dur Surveying Co., Inc. urve>vm Prl� P.D.Box 54 — Lewisville, Texas 75087 ffi Oce: (972) 221 -9439 Fax: (972) 221 -4678 Estathlished 1986 A ATTACHMENT 2 TO PURCHASE AGREEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. TEMPORARY CONSTRUCTION, GRADING AND ACCESS EASEMENT THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT Jerry M. Kelsoe (referred to herein as "Grantor"), not joined by his spouse due to the Property (as defined below) comprising no part of the homestead of Grantor and spouse, in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration in hand paid by the City of Denton, Texas, 215 East McKinney Street, Denton, Texas 76201, receipt and sufficiency of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD and CONVEYED and does by these presents GRANT, BARGAIN, SELL and CONVEY unto the City of Denton, Texas ( "Grantee ") a temporary construction, grading and access easement in, along, upon, under, over and across the following described property (the "Property'), owned by Grantor, and situated in Denton County, Texas, located in the M.E.P. & P.R.R. Co. Survey, Abstract Number 1469, to wit: PROPERTY DESCRIBED IN EXHIBIT "A" AND DEPICTED IN EXHIBIT "B ", BOTH ATTACHED HERETO AND MADE A PART HEREOF It is agreed that the said Grantee, in consideration of the benefits above set out, may remove from the Property above described, such fences, signage, buildings and other obstructions as may now be found upon said Property, for the purpose of construction activities, grading activities and access in, along, upon, under, over and across said Property. It is specifically stipulated by Grantor that the scope of the access, construction and grading activities shall include the clearing and removal of the commercial structure and vegetation and trees that exist within the Property. The Grantee, its agents, employees, contractors, workmen, and representatives shall have the right of ingress, egress and regress in, along, upon, under, over and across said Property for the purpose of access, construction and grading activities and other activities prescribed herein, or any part thereof. This Temporary Construction, Grading and Access Easement is subject to that certain Purchase Agreement (herein so called), dated effective , 2013, by and between Grantor and Grantee. The term of this Temporary Construction, Grading and Access Agreement shall commence on the date of the execution hereof by Grantor and shall terminate upon the earlier to occur of (i) December 31, 2015; or (ii) as provided in the Purchase Agreement. TO HAVE AND TO HOLD unto the said City of Denton, Texas as aforesaid for the purposes aforesaid the premise above described. Witness my hand, this the day of 2013. GRANTOR: By: ate: ' �! bV , 2013. n'Y M. Ke ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF'1�f -i This instrument was acknowledged before me on 2013, by Jerry M. Kelsoe. r N SUE LIND Illy Commission Expires July to, 2017 Notary Public, in and for the State of Texas er�h cx Er.: My Commission Expires: I- lb -1`I AFTER RECORDING RETURN TO: City of Denton — Engineering Department 901 -A Texas Street Denton, Texas 75209 Attn: Paul Williamson 2 rthur Surveying Co., Inc. Xlama P.O. Box 54 — Lewisville, Texas 75067 offlce: (972) 221 -9439 — Fax: (972) 221 -4.675 E)CMff "A" 60' TEMPORARY CONSTRUCTION EASEMENT 0.152 Acre City of Denton, Denton County, Texas BEING all that certain lot, tract or parcel of land situated in the M.E.P. & P.PLK Co. Survey, Abstract Number 1469 and being part of that certain tract of land described by deed to Jerry M. Kelsoe, recorded in Volume 1923, Page 134 of the Real Property Records of Denton County, Texas (RP.RD.C.T.), and being more particularly described as follows: COMMENCING at a `TK" Nail set in Mayhill Road for the southeast corner of said Kelsoe tract and the northeast corner of a tract of land described by deed to Earl Edwards and wife, Ruth Edwards, recorded in Volume f546, Page 775, RP.R.D.C.T.; THENCE South 80 degrees 18 minutes 15 seconds West, with the south line of said Kelsoe tract and the north line of said Edwards tract, a distance of 66.55 feet to a V2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for the POINT OF BEGINNING; THENCE South 80 degrees 18 minutes 15 seconds West, continuing with the south lime of said Kelsoe tract-and the north line of said Edwards tract, a distance of 107.32 feet to a point for the southwest corner of said Kelsoe tract and the southeast comer of a tract of land described by deed to Noah L. Tttrrubiarte, recorded in Volume 2971, Page 177, R3'.R.D.C.T., and being in the north line of said Edwards tract; THENCE North 02 degrees 46 minutes 16 seconds West, with the west line of said Kelsoe tract and the east line of said Tumlbiarte tract, a distance of 60.44 feet to a point for corner; THENCE North 80 degrees 18 minutes 15 seconds East, over and across said Kelsoe tract, a distance of 113.31 feet to a point for comer; THENCE South 02 degrees 46 minutes 43 seconds West, over and across said Kelsoe tract', a distance of 61.45 feet m the POINT OF BEGINNING and containing 0.152 acre of land, more or less. C1107131 -40 Pawl M024 EXMBITi' B - to Temporary Construction, Grading and Access Easement 131BO Concrete �, Monument Found (C -Ad.) f I .0 vo roI Ni �0 Noah I. Turrubtarte Volume 2971, Page P 177 �" Terry K -Volume '1823, Page 134 �) I I zl Proposed I Rlgl1 t--of —Way Porcel MQ24 gO�,- „�1�.3�� I N� CP• 2 acre i d(�,.Texrtp °ra�Wenl �N � '-, ase ~Px a ��• N �� Cons 6 9n� ft� 5 Sg 55 yy Set z r sa g2 a2 ��— 58058 5' 107.32 F.I.R. fc M-) F P. 0. B. � . I i I� Earl Edwards and wife,' Ruth Edwards �y Volume 1548, Page 775 ti I _ I I I (BEM.) ` sao� "w 30.98 E )(HIBIT "B" Parcel M024 6 a' Temp orary Construction Easement 0.152 acre in the M.E.P. & P.R.R. Co. Survey, Abstract Number 1489, . City of Denton Denton County, Texas . -1- 2012 -- A N 60 0 30 60 SCALE: l” - 60' Bearings shown hereon based on the City of Denton ClS Network. Q P4a dt F NOTES: • I.R.F. - 112" Iron Rod Found • I.R.S. =1/i" Iron Rod Set with yellow cap stamped "Arthur Surveying Company" • Implied Dedication - apparent prescriptive right -of- -way. ereon. A �. . rthur Surveying Co., Inc. P"&�ssiax t a lu ry P.O.Bor 54 — Lewisville, Texas 75087 Offloe: (972) 221 -9439 Fax: (972) 221 -4876 Estatblished 1988 ATTACHMENT 3 TO PURCHASE AGREEMENT Insurance Requirements Owner shall procure and carry, at its sole cost and expense, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company (or companies) authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with the Purchase Agreement. Owner shall obtain and maintain the following insurance coverages in full force and effect from Closing to the expiration of the Removal Period: Commercial _General Liability: Per Occurrence Limit: Aggregate Limit: $1,000,000 $2,000,000 Business Automobile Liability (providing coverage for owned, non -owned and hired automobiles): Per Occurrence Limit Aggregate Limit: $ 500,000 $1,000,000 The City shall be listed as an Additional Insured with respect to the Commercial General Liability and Business Automobile Liability and shall be granted a waiver of subrogation under both policies. Owner shall provide a Certificate of Insurance on or before the date of Closing to City as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the certificate. All insurance carriers must be admitted to do business in the state of Texas and have an AM Best's Rating of A -VII or better. All policies should be written on an occurrence basis. Corr se i3O geu..A AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Solid Waste ACM: Jon Fortune W SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale, by and between the City of Denton, Texas ( "City "), as Buyer, and Shiron Investments, LLC, a Texas limited liability company (the "Owner"), as Seller, to acquire fee simple to a 0.418 acre tract situated in the Gideon Walker Survey, Abstract No. 1330, located in the City of Denton, Denton County, Texas, and being generally located at 781 and 801 South Mayhill Road; for the purchase price of One Hundred Sixty Thousand Dollars and No Cents ($160,000.00), and other consideration, as prescribed in the Contract of Sale (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", authorizing the expenditure of funds therefor; authorizing relocation expenditures; and providing an effective date. (Municipal Landfill Acquisition Tract) BACKGROUND This tract is necessary to provide additional land and infrastructure for future solid waste operations. The acquisition is included as part of the Solid Waste Department's overall strategic plan. An offer was submitted to the Owner based on the appraised value of $142,000.00. Upon further negotiations with the Owner, a purchase price of $160,000.00 is recommended for settlement of the matter. The Public Utility Board (PUB) was not able to consider this matter due to the cancellation of their meeting scheduled for December 22, 2013. A component of the settlement is a compressed closing and funding schedule; therefore this item is being presented to City Council prior to PUB consideration. However, the PUB members have each been provided a summary of this purchase transaction, and the PUB will be briefed on the matter at their next meeting. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) PUB Executive Session January 23, 2012 City Council Executive Session February 7, 2012 Public Utility Board Consent Agenda May 6, 2013 (Approved 5 -0) City Council May 7, 2013 Executive Session and Consent Agenda (Ordinance No. 2013 -123) FISCAL INFORMATION The acquisition will be funded from Solid Waste Long Term Bonds in the amount of the purchase price $160,000.00 plus transaction closing costs. BID INFORMATION Not applicable EXHIBITS 1. Location Map 2. Ordinance Respectfully submitted, Vance Kemler, General Manager Solid Waste Prepared by, Pamela England, Real Estate Specialist Legend Denton Municipal Landfill Proposed Acquisition SITE N Illf Parcels Shiron .418 Acres 160 80 0 160 Feet S ^ L. Streets s:Uegakour documents \ordinances \14 \shiron 0.418 ordinance.doc ORDINANCE NO. 2013- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT OF SALE, BY AND BETWEEN THE CITY OF DENTON, TEXAS ( "CITY "), AS BUYER, AND SHIRON INVESTMENTS, LLC, A TEXAS LIMITED LIABILITY COMPANY (THE "OWNER "), AS SELLER, TO ACQUIRE FEE SIMPLE TO A 0.418 ACRE TRACT SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT NO. 1330, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING GENERALLY LOCATED AT 781 AND 801 SOUTH MAYHILL ROAD; FOR THE PURCHASE PRICE OF ONE HUNDRED SIXTY THOUSAND DOLLARS AND NO CENTS ($160,000.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE CONTRACT OF SALE (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A "; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING RELOCATION EXPENDITURES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute for and on behalf of the City (i) the Agreement, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $160,000.00, as prescribed in the Agreement; and (ii) any other documents necessary for closing the transactions contemplated by the Agreement. SECTION 2. The City Manager is authorized to make expenditures in accordance with (i) the terms of the Agreement; and (ii) Ordinance No. 2012 -073, dated April 17, 2012, pertaining to relocation related expenses and advisory services. SECTION 3. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2013. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: Page 2 STATE OF TEXAS § CKIIII►(1 Il•(Il Ol 17 �1►Y 1C1]►`E� EXHIBIT "A" TO ORDINANCE CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract") is made this /6t4-,day of 3 CE vit ea "e- , 2013, effective as of the date of the execution hereof by Buyer, as defined herein (the "Effective Date "), by and between Shiron Investments, LLC, a Texas limited liability company (referred to herein as "Seller ") and the City of Denton, Texas, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer "). RECITALS WHEREAS, Seller owns that certain tract of land being more particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property "). ARTICLE I SALE OF PROPERTY For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, and subject to the reservations herein, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for itself, its, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, its successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid jointly to Seller for the Property is the sum of One Hundred Sixty Thousand and No /100 Dollars ($160,000.00) (the "Purchase Price "). 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No /100 Dollars ($1,000.00), as Earnest Money (herein so called) with Title Resources, LLC, 525 South Loop 288 , Suite 125, Denton, Texas, 76205, (the "Title Company "), as escrow agent, within fourteen (14) calendar days of the Effective Date hereof. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in Contract of Sale Page 2 of 21 addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and /or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and /or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05, below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of Contract of Sale Page 3 of 21 the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, as may be extended by Buyer, in its sole and absolute discretion, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession ", unless agreed otherwise by Buyer; (d) no liens will be shown on Schedule B. Contract of Sale Page 4 of 21 Notwithstanding the enumeration of the following exceptions, amendments and /or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the day after the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the "Absolute Review Period "), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, unless specifically provided otherwise herein, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) The descriptive information concerning the Property and the owners thereof being the Seller, as set forth in this Contract, is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) Seller has good and marketable fee simple title to the Property, subject only to the Contract of Sale Page 5 of 21 Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder, each party executing this Contract for and on behalf of Seller has been duly authorized to act in such behalf to bind Seller to the terms hereof, and this Contract is valid and enforceable against Seller as provided herein. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (h) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (i) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos - containing material, petroleum products and raw materials, that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean -up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state Contract of Sale Page 6 of 21 superlien and environmental clean -up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (j) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise terminated and, any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property on or before the date of Closing. (k) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, within ten (10) calendar days after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All lease, sub -lease and /or occupancy agreements and /or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, sublease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease, sublease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached Contract of Sale Page 7 of 21 or perfected, any lien, encumbrance, or charge thereon, or amend or modify any of the Leases. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 5.02A Covenants and Agreements of Buyer. Buyer covenants and agrees with Seller as follows: (a) From the Effective Date until the date of Closing, Seller may: (i) Remove from the residential structure located at the physical address of 801 Mayhill Road, being a part of the Property, the stove, refrigerator and HVAC system. (ii) Remove from the residential structure located at the physical address of 781 Mayhill Road, being a part of the Property, the stove and refrigerator. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned by an entity other than Contract of Sale Page 8 of 21 Buyer, or is the subject of condemnation, eminent domain, or other material proceeding initiated by an entity other than Buyer, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct the Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall be not prior to January 15, 2014 and not after January 30, 2014, on a date mutually agreed to Buyer and Seller unless otherwise mutually agreed upon by Buyer and Seller. In the event a Closing Date shall not be agreed upon by Buyer and Seller, the Closing Date shall be January 30, 2014. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller, shall deliver or cause to be delivered to Buyer or the Title Company for the benefit of Buyer, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; Contract of Sale Page 9 of 21 (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to Seller jointly or the Title Company for the joint benefit of Seller, except as otherwise provided herein, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between each applicable Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closing. Possession of the Property, subject to the Relocation Ordinance, as defined below, shall be delivered to Buyer at Closing. 7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs and expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Contract of Sale Page 10 of 21 Denton County, Texas. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall be entitled to assert any rights for damages based on Seller's representations, warranties and obligations that are not waived by Buyer by its acceptance of Seller's title; and (iii) Seek other recourse or relief as may be available to Buyer at or by law, equity, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. Contract of Sale Page 11 of 21 (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedies for the default, may, at Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered and received, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: BUYER: Shiron Investments, LLC City of Denton 9 �o ttrJ S JHIt,'I�.C.�ti% qqo �k'��Tk� b r �� Paul Williamson Real Estate and Capital Support 901 -A Texas Street , 1) e ,, , --7-X o t Denton, Texas 76209 g f 2,- 6q1- 70 Y3 Telecopy: (940) 349 -8951 Copies to: For Seller: For Buyer: Richard Casner, First Assistant City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Contract of Sale Page 12 of 21 Telecopy: Telecopy: (940) 382 -7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties, subject to the Relocation Ordinance, and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to the Property, including without limitation, any improvements located on the Land, shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, all insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have a period of ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction to the Property, including, without limitation, any improvement located on the Property, in which to make Buyer's election. In the event Buyer elects to close prior to such final settlement, then the Closing shall take place as provided in Article VII, above, and there shall be assigned, in form and substance satisfactory to Buyer, by Seller to Buyer at Closing, all interests of Seller in and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as Contract of Sale Page 13 of 21 described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and /or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and /or deliver, or cause to be performed, executed and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to Vance Kemler, Solid Waste General Manager of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 9.12 Relocation. Relocation advisory services and relocation financial assistance, if applicable pursuant to Ordinance No. 2012 -073 (the "Relocation Ordinance "), shall be administered as provided by the Relocation Ordinance, aside and apart from the transaction contemplated by this Contract. 9.13 Related Contract. Buyer and Seller have entered into a Contract of Sale (the "Related Contract ") on or about even date hereof, contemplating the sale and purchase of certain other real property interests contiguous to the Property referenced in this Contract of Sale. Notwithstanding anything to the contrary in this Contract of Sale, it is a condition precedent to Seller's obligation to close the transaction contemplated herein that the transaction contemplated by the Related Contract between Seller and Buyer also closes. Both Contracts of Sale referenced herein must close on the same calendar day, or none will close unless otherwise agreed to Buyer and Seller. Contract of Sale Page 14 of 21 SELLER: Shiron Investments, LLC, a Texas limited liability company By: f V Name: e j}1 QTc> 3C, Title: (-) U--� bvA -P®..- Executed by Seller on the day of , 2013. BUYER: GEORGE C. CAMPBELL, CITY MANAGER Executed by Buyer on the day of , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY M. APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY:a Contract of Sale Page 15 of 21 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of an executed copy of this Contract. Title Company agrees to comply with the terms and provisions of this Contract to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Title Resources, LLC 525 South Loop 288, Suite 125 Denton, Texas 76205 Telephone: (940) 381 -1006 Telecopy: (940) 898 -0121 S Printed Name: Title: Contract receipt date: , 2013 Contract of Sale Page 16 of 21 EXHIBIT "A" Legal Description Of Property BEING all that certain lot, tract or parcel of land, situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Shiron Investments, LLC., recorded under Instrument Number 2007 - 34590, Official Public Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod with cap stamped "Coleman" found for the northwest corner of said Shiron tract and a westerly corner of a tract of land described by deed to the City of Denton, recorded in Volume 2431, Page 843, Deed Records, Denton County, Texas, and being in the apparent east line of Mayhill Road; THENCE South 88 degrees 37 minutes 28 seconds East, with the north line of said Shiron tract and a south line of said City of Denton tract, a distance of 134.94 feet to a 1/2 inch iron rod with cap stamped "Coleman" found for the northeast corner of said Shiron tract and an inner ell corner of said City of Denton tract; THENCE South 01 degrees 59 minutes 44 seconds West, with the east line of said Shiron tract and a west line of said City of Denton tract, a distance of 134.97 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for corner in the east line of said Shiron tract and a west line of said City of Denton tract; THENCE North 88 degrees 50 minutes 43 seconds West, over and across said Shiron tract, a distance of 134.59 feet to a 1/2 inch iron rod with yellow cap stamped "A.S.C." set for corner in the west line of said Shiron tract and the said east line of Mayhill Road; THENCE North 01 degrees 50 minutes 42 seconds East, with the west line of said Shiron tract and the said east line of Mayhill Road, a distance of 135.49 feet to the POINT OF BEGINNING and containing 0.418 acres of land, more or less. Contract of Sale Page 17 of 21 EXHIBIT "B" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Shiron Investments, LLC, a Texas limited liability company (herein called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, subject to the reservations set forth below, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, reserves, for itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, its successors and assigns shall not have Contract of Sale Page 18 of 21 and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise. EXECUTED the / to `f�" - day off G` >c r� e =— , 2013. Shiron Investments, LLC, a Texas limited liability company By: Name: Title: ACKNOWLEDGMENT THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , , 2013 by , of Shiron Investments, LLC, a Texas limited liability company, on behalf of said limited liability company. Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 Contract of Sale Page 20 of 21 Notary Public, State of Texas My commission expires: Send Tax Billing Statements To: The City of Denton Attn: Finance Department 215 East McKinney Street Denton, Texas 76201 EXHIBIT "A" TO SPECIAL WARRANTY DEED Legal Description Of Property BEING all that certain lot, tract or parcel of land, situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, and being a part of that certain tract of land described by deed to Shiron Investments, LLC., recorded under Instrument Number 2007 - 34590, Official Public Records, Denton County, Texas, and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod with cap stamped "Coleman" found for the northwest corner of said Shiron tract and a westerly corner of a tract of land described by deed to the City of Denton, recorded in Volume 2431, Page 843, Deed Records, Denton County, Texas, and being in the apparent east line of Mayhill Road; THENCE South 88 degrees 37 minutes 28 seconds East, with the north line of said Shiron tract and a south line of said City of Denton tract, a distance of 134.94 feet to a 1/2 inch iron rod with cap stamped "Coleman" found for the northeast corner of said Shiron tract and an inner ell corner of said City of Denton tract; THENCE South 01 degrees 59 minutes 44 seconds West, with the east line of said Shiron tract and a west line of said City of Denton tract, a distance of 134.97 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" (A.S.C.) set for corner in the east line of said Shiron tract and a west line of said City of Denton tract; THENCE North 88 degrees 50 minutes 43 seconds West, over and across said Shiron tract, a distance of 134.59 feet to a 1/2 inch iron rod with yellow cap stamped "A.S.C." set for corner in the west line of said Shiron tract and the said east line of Mayhill Road; THENCE North 01 degrees 50 minutes 42 seconds East, with the west line of said Shiron tract and the said east line of Mayhill Road, a distance of 135.49 feet to the POINT OF BEGINNING and containing 0.418 acres of land, more or less. Contract of Sale Page 21 of 21 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Solid Waste ACM: Jon Fortune SUBJECT Consider adoption of an ordinance authorizing the City Manager or his designee to execute a Contract of Sale, by and between the City of Denton, Texas ( "City "), as Buyer, and Shiron Investments, LLC, a Texas limited liability company (the "Owner"), as Seller, to acquire fee simple to a 2.141 acre tract situated in the Gideon Walker Survey, Abstract No. 1330, located in the City of Denton, Denton County, Texas, and being generally located at 961 S. Mayhill Road; for the purchase price of Five Hundred Ninety Thousand Dollars and No Cents ($590,000.00), and other consideration, as prescribed in the Contract of Sale (the "Agreement "), as attached to the ordinance and made a part thereof as Exhibit "A ", authorizing the expenditure of funds therefor; and providing an effective date. (Municipal Landfill Acquisition Tract) BACKGROUND This acquisition is included as part of the Solid Waste Department's overall strategic plan. Upon negotiations with the land owner a purchase price of $590,000.00 was determined. There are nine homes located upon the 2.141 acre tract in varying stages of decline. All homes are presently occupied by tenants under Rental Agreements. Those tenants will vacate, as per the terms of the Rental Agreements, the longest term expiring in August 2014. Vacant houses will be removed as those move -outs occur. There is a small component of the 2.141 acre tract that is also needed for the Mayhill road widening and improvement project. The Public Utility Board (PUB) was not able to consider this matter due to the cancellation of their meeting scheduled for December 22, 2013. A component of the settlement is a compressed closing and funding schedule; therefore this item is being presented to City Council prior to PUB consideration. However, the PUB members have each been provided a summary of this purchase transaction, and the PUB will be briefed on the matter at their next meeting. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) None FISCAL INFORMATION The acquisition will be funded from Solid Waste Long Term Bonds in the amount of the purchase price $590,000.00 plus transaction closing costs. BID INFORMATION Not applicable EXHIBITS 1. Location Map 2. Ordinance Respectfully submitted, fZ Vance Kemler, General Manager Solid Waste Prepared by, Pamela England, Real Estate Specialist Location Map Shiron 2.141 Acre Tract December 23, 2013 Override 1 SAR Override 1 HydroLines_4800 Parcels Buildings ETJ- Regulatory Schools 4800 County Parks andPreserves_4800 Railroad ET WaterBodies COD COL 5YEAR MIN 7 YEAR MAR Land PAR PVT RES 1:4,800 0 0.05 0.1 0 0.075 0.15 0.2 mi 0.3 km sAlegal \our documents \ordinances \14 \shiron 2.141 ordinance.doe ORDINANCE NO. 2013- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT OF SALE, BY AND BETWEEN THE CITY OF DENTON, TEXAS ( "CITY "), AS BUYER, AND SHIRON INVESTMENTS, LLC, A TEXAS LIMITED LIABILITY COMPANY (THE "OWNER "), AS SELLER, TO ACQUIRE FEE SIMPLE TO A 2.141 ACRE TRACT SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT NO. 1330, LOCATED IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING GENERALLY LOCATED AT 961 S. MAYHILL ROAD; FOR THE PURCHASE PRICE OF FIVE HUNDRED NINETY THOUSAND DOLLARS AND NO CENTS ($590,000.00), AND OTHER CONSIDERATION, AS PRESCRIBED IN THE CONTRACT OF SALE (THE "AGREEMENT "), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A "; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, after due consideration of the public interest and necessity and the public use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized (a) to execute for and on behalf of the City (i) the Agreement, by and between the City and Owner, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $590,000.00, as prescribed in the Agreement; and (ii) any other documents necessary for closing the transactions contemplated by the Agreement; and (b) to make expenditures in accordance with the terms of the Agreement. SECTION 2. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY i APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: Page 2 STATE OF TEXAS § COUNTY OF DENTON § EXHIBIT "A" TO ORDINANCE CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF DENTON'S ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract ") is made this /W -day of ePr pt '2013, effective as of the date of the execution hereof by Buyer, as defined herein (the "Effective Date "), by and between Shiron Investments, LLC, a Texas limited liability company (referred to herein as "Seller ") and the City of Denton, Texas, a Texas home rule municipal corporation of Denton County, Texas (referred to herein as "Buyer "). RECITALS WHEREAS, Seller owns that certain tract of land being more particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (the "Land "); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures (including, without limitation, trade fixtures) thereon and all other rights and appurtenances to the Land (collectively, the "Property "). ARTICLE I SALE OF PROPERTY For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, and subject to the reservations herein, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for itself, its, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, its successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Five Hundred Ninety Thousand and No /100 Dollars ($590,000.00) (the "Purchase Price "). 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No /100 Dollars ($1,000.00), as Earnest Money (herein so called) with Title Resources, LLC, 525 South Loop 288 , Suite 125, Denton, Texas, 76205, (the "Title Company "), as escrow agent, within fourteen (14) calendar days of the Effective Date hereof. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No /100 Dollars ($100.00) (the "Independent Contract Consideration "), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment ") for the Property, Contract of Sale Page 2 of 34 issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception "). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents "), including those described in the Title Commitment as exceptions to which the conveyance will be subject and /or which are required to be released or cured at or prior to Closing. (c) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Seller's expense, a currently dated uniform commercial code financing statement search from the Secretary of State of the State of Texas, and the appropriate county official responsible for filing UCC financing statements, covering (i) Seller; (ii) the Property; (iii) Seller's managing agent or other manager related to the Property, if any; (iv) Seller's Manager; and (v) any other known owner of the Property during the past five (5) years, together with any and all financing statements listed in the search. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall cause to be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey "). The contents of the Survey shall be prepared by a surveyor selected by Buyer and shall include the matters prescribed by Buyer, which may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind and matters set forth in Items 1, 2, 3, 4, 6, 7, 8, 11, 13 and 13 of Table A of the Minimum Standard Detail Requirements for ALTA /ACSM Land Title Surveys. The Survey shall describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and /or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05, below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period ") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ( "Objections "), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not Contract of Sale Page 3 of 34 satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, as may be extended by Buyer, in its sole and absolute discretion, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner's Policy of Title Insurance ( "Title Policy ") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession ", unless agreed otherwise by Buyer; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and /or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the day after the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the "Absolute Review Period "), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to (i) inspect the interior and exterior of any Contract of Sale Page 4 of 34 improvements located on the Property; (ii) conduct engineering studies of the Property, and (iii) to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non - confidential and non - privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) The descriptive information concerning the Property and the owner thereof being the Seller, as set forth in this Contract, is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder, the party executing this Contract for and on behalf of Seller has been duly authorized to act in such behalf to bind Seller to the terms hereof, and this Contract is valid and enforceable against Seller as provided herein. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. Contract of Sale Page 5 of 34 (h) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (i) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos - containing material, petroleum products and raw materials, that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean -up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state superlien and environmental clean -up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (j) To the best of Seller's knowledge, all improvements located on the Property are free from any condition which would materially affect the physical health or safety of any party who has the right to occupy all or any portion of the Property ( "Tenant ") and that all such improvements are in compliance with all Applicable Laws (as defined below) relating to the use, condition and occupancy of the Property. As used in this Contract, "Applicable Laws" means (a) any and all judicial decisions, orders, injunctions, statutes, rulings, rules, regulations, permits, certificates, or ordinances, in any way applicable to the Property, including without limitation, any of the above mentioned pertaining or relating to the design, construction, ownership, use, leasing, maintenance, service, operation, occupation or condition of real property, or zoning or environmental matters; and (b) the terms of any other written or oral agreements, and any and all insurance requirements, documents or other instruments relating to the Property, to which the Property, or its owners, may be bound or encumbered. (k) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. (1) Seller has not received written notice from any governmental or quasi governmental entity or agency requiring Seller to correct any condition with respect to the Property. (m) Seller has not received, and has no other knowledge or information of, any notice from any insurance company or board of fire underwriters requesting the performance of any work or alteration with respect to the Property that has not been performed, or requiring an increase in the insurance rates applicable to the Property, or is aware of any defects or inadequacy of the Contract of Sale Page 6 of 34 Property, which, if not corrected, would result in the termination of insurance coverage or an increase in the cost thereof. (n) To the best of Seller's knowledge, all improvements located on the Property are free from infestation by termites or other insects or animals. (o) Each Lease, as defined below, is in good standing and in full force and effect, and has not been amended, modified, or supplemented in any way that has not been disclosed to Buyer pursuant to this Contract; that the Leases constitute the only written and oral agreements of any kind for the leasing, rental or occupancy of any improvements, or any portion thereof, on the Property; that except as expressly disclosed to Buyer in writing on the rent rolls furnished to Buyer pursuant to this Contract, no rental under any Lease has been collected in advance of the current month, and except as so disclosed to Buyer in writing on the rent rolls, there are no concessions, bonuses, free months rental, rebates or other matters affecting the rental for any Tenant under a Lease; that Seller is the owner of the entire lessor's interest in and to the Leases; that neither the Leases nor the rentals or other sums payable thereunder have been assigned or otherwise encumbered; and that no Tenant is in default under any Lease, and there are no facts or circumstances that, with or without notice, or the passage of time or both, could constitute a default of a Tenant under any Lease, and, there are no defaults of Seller under any Lease and Seller has received no notice from any Tenant alleging a default by Seller or threatening suit or other legal action for an alleged default by Seller as landlord or lessor under any Lease. (p) Any commission or referral fee with respect to any Lease, including without limitation, any present or future renewal of any Lease, shall be paid or otherwise discharged by Seller on or before the Closing Date; and that Buyer shall have no obligation to pay any commission or referral fee with respect to any Lease, including without limitation, any present or future renewal of any Lease. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, within ten (10) calendar days after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All lease, sub -lease and /or occupancy agreements and /or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "). (ii) All building permits and certificates of occupancy with respect to the construction, ownership and /or occupation of the Property that are in Seller's current possession or to which Seller has access. (iii) All fire, hazard, liability, builders risk and other insurance policies held by Seller on the Property. (iv) The plans and specifications with respect to the Property that are in Seller's current Contract of Sale Page 7 of 34 possession or to which Seller has access. (v) A current rent roll in form and substance satisfactory and acceptable to Buyer, certified by Seller to be true and correct as of the date of delivery. (vi) All operating statements and schedules of receipts and expenditures pertaining to the Property for each fiscal year in which the Property has been owned by Seller. (vii) Copies of all brokerage, commission, management, leasing, maintenance, repair, service, pest control and supply contracts, equipment rental agreements and master antenna agreements, and any other contracts or agreements relating to or affecting the Property, including any modifications, supplements and amendments thereto. (viii) Copies of all contracts for repairs or capital replacements performed during the two (2) years immediately preceding the Effective Date for a contract price in excess of Five Thousand Dollars ($5,000.00). (ix) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, sublease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease, sublease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon, or amend or modify any of the Leases. (v) Operate and maintain the Property in the ordinary course of business and use reasonable efforts (without making any commitment on behalf of or which would be binding upon Buyer without first obtaining Buyer's consent) to reasonably preserve for Buyer the relationships of Seller and Seller's suppliers, Tenants and others having ongoing business relations with Seller relating to the Property. (vi) Comply with all Applicable Laws affecting the Property. (vii) Keep, observe and perform all of Seller's obligations as landlord or lessor under each of Contract of Sale Page 8 of 34 the Leases, and not terminate or cause a termination of any Lease without first obtaining Buyer's written consent. (viii) Not grant any bonus, free months rental, rebate, or other concession to any present or future Tenant of the Property that would extend beyond the Closing, without first obtaining Buyer's written consent. (ix) To provide notice to the Tenants of the Property of this Contract and /or the transactions contemplated herein, if required by any Lease or Applicable Laws ( "Notice Letters ") in the form or the manner required. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a), or any other document to be delivered at Closing by Seller. ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned by an entity other than Buyer, or is the subject of condemnation, eminent domain, or other material proceeding initiated by an entity other than Buyer, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Estoppel Certificate from Tenants. Buyer shall not be obligated to perform under this Contract of Sale Page 9 of 34 Contract unless on or before the Closing Date, Buyer receives from the Tenants under all Leases, an Estoppel Letter (herein so called) addressed to Buyer, dated not more than ten (10) days prior to the Closing Date, in the form, or substantially the form, attached hereto as Exhibit "E ". 6.06 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.07 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct the Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall not be prior to January 15, 2014 and not after January 30, 2014, on a date mutually agreed to Buyer and Seller, unless otherwise mutually agreed upon by Buyer and Seller. In the event a Closing Date shall not be agreed upon by Buyer and Seller, the Closing Date shall be January 30, 2014. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller, shall deliver or cause to be delivered to Buyer or the Title Company for the benefit of Buyer, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B ", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) The original Leases; (iv) The Assignment of Leases (herein so called), substantially in the form as attached hereto as Exhibit C, duly executed by Seller and acknowledged; (v) The Bill of Sale (herein so called), substantially in the form as attached hereto as Exhibit "D ", duly executed by Seller; Contract of Sale Page 10 of 34 (vi) Confirmation of the Estoppel Letters, duly executed by the Tenant, if applicable; (vii) Keys to all locks located on the Property, which keys shall be properly tagged for identification and, to the extent available, an accounting of keys in the possession of others; (viii) A certificate executed by Seller to the effect that all representations and warranties made by Seller in this Contract continue to be true and correct on the Closing Date, and that all documents, items and information delivered by Seller to Buyer pursuant to this Contract are free from material changes and remain true and correct in all material respects, as of the Closing Date; (ix) An updated rent roll for the Project, certified by Seller to be true and correct as of the Closing Date and a schedule certified by Seller itemizing all security deposits, prepaid rent and other money held by Seller for the account of the tenants; (x) Notice letters, if applicable; (xi) A written report by a structural pest control business or entity, suitable to Buyer, dated not more than ten (10) days prior to the Closing Date, stating that the Property is free from any active infestation by ants, termites or other wood boring insects and any damage therefrom. (xii) Originals of all contracts, plans, governmental approvals, warranties, guarantee's and other contracts and agreements relating to the ownership and operation of the Property, and the improvements located thereon; (xiii) Originals, or true and correct copies thereof if originals are not available, of all the books and records and instruments reasonably necessary for the continued operation of the Property which are either in Seller's possession or obtainable by Seller; and (xiv) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to Seller jointly or the Title Company for the joint benefit of Seller, except as otherwise provided herein, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a check or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between each applicable Seller and Buyer with respect to the Property: Contract of Sale Page 11 of 34 (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. (b) Rents payable with respect to the Property for the then current month shall be prorated as of the Closing Date. With respect to any delinquent rents, Buyer may, if it chooses to do so, in its sole and absolute discretion, make a reasonable attempt to collect the same after Closing, in the usual course of operation of the Property, and such collections, if any, less Buyer's reasonable costs of collection, shall be remitted to Seller promptly after receipt by Buyer; provided however, that nothing contained herein shall operate to assign Seller's cause of action for delinquent rents to Buyer nor require Buyer to institute any lawsuit or other collection procedures to collect delinquent rents. In this connection, first monies collected from Tenants who owe delinquent rents shall be applied to current rents and costs of collection procedures described above. (c) Seller shall deliver to Buyer an accounting for all of the following: unforfeited deposits paid to Seller by the Tenants, including without limitation, all rental, security, utility, key, damage and other deposits; prepaid rents paid to Seller by the Tenants for periods subsequent to the Closing Date; and any other money held by or for the account of the Tenants. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing subject to tenants possessing a portion of the Property under valid and subsisting Leases. 7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs and expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Denton County, Texas. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or Contract of Sale Page 12 of 34 (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do any of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall be entitled to assert any rights for damages based on Seller's representations, warranties and obligations that are not waived by Buyer by its acceptance of Seller's title; and (iii) Seek other recourse or relief as may be available to Buyer at or by law, equity, contract or otherwise. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedies for the default, may, at Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer. ARTICLE IX MISCELLANEOUS Contract of Sale Page 13 of 34 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered and received, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Shiron Investments, LLC vac..), G 0 62 - Copies to: For Seller: Telecopy: BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901 -A Texas Street Denton, Texas 76209 Telecopy: (940) 349 -8951 For Buyer: Richard Casner, First Assistant City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382 -7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. THIS CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON COUNTY, TEXAS. 9.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to the Property, including without limitation, any improvements located on the Land, shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or Contract of Sale Page 14 of 34 (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, all insurance proceeds, together with the deductible amount under Seller's insurance policy covering the Property, or portion thereof, as applicable; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have a period of ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction to the Property, including, without limitation, any improvement located on the Property, in which to make Buyer's election. In the event Buyer elects to close prior to such final settlement, then the Closing shall take place as provided in Article VII, above, and there shall be assigned, in form and substance satisfactory to Buyer, by Seller to Buyer at Closing, all interests of Seller in and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and /or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and /or deliver, or cause to be performed, executed and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to Vance Kemler, Solid Waste General Manager of Buyer, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. 9.12 Related Contract. Buyer and Seller have also entered into a Contract of Sale ( "Related Contract") on or about even date hereof, contemplating the sale and purchase of certain other real property contiguous to the Property referenced in this Contract of Sale. Notwithstanding anything to the Contract of Sale Page 15 of 34 contrary in this Contract of Sale, it is a condition precedent to Seller's obligation to close the transaction contemplated herein that the transaction contemplated by the Related Contract between Seller and Buyer also closes. Both Contracts of Sale referenced herein must close on the same calendar day or none will close, unless otherwise agreed to by Buyer and Seller. SELLER: Shiron Investments, LLC, a Texas limited liability company i' By: Name: H ik'!ti Title: CJ�rJ lam' Executed by Seller on the &Y-4— day of � �° �yc rte" , 2013. BUYER: C GEORGE C. CAMPBELL CITY MANAGER Executed by Buyer on the day of ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: Contract of Sale Page 16 of 34 2013. EXHIBIT "A" to Contract of Sale Legal Description of Property BEING all that certain lot, tract or parcel of land situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, and being part of that certain tract of land described by deed to Shiron Investments, LLC., recorded under Instrument Number 2007 - 34590, Official Public Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod with cap stamped "Coleman" found for the northwest corner of said Shiron tract and a westerly corner of a tract of land described by deed to the City of Denton, recorded in Volume 2431, Page 843, Deed Records, Denton County, Texas, same point being in the occupied east line of Mayhill Road; THENCE South 01 degrees 50 minutes 42 seconds West, with the west line of said Shiron tract and the occupied east line of Mayhill Road, a distance of 135.49 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for the POINT OF BEGINNING; THENCE South 88 degrees 50 minutes 43 seconds East, over and across said Shiron tract, a distance of 134.59 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for corner in the east line of said Shiron tract and the west line of Tower Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet M, Page 115, Plat Records, Denton County, Texas; THENCE South 01 degrees 59 minutes 44 seconds West, with the west line of said Tower Addition, a distance of 233.87 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 88 degrees 33 minutes 24 seconds East, with a south line of said Tower Addition, a distance of 31.00 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 00 degrees 05 minutes 10 seconds West, with the west line of said Tower Addition, a distance of 44.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 86 degrees 21 minutes 19 seconds West, with a south line of said Tower Addition, a distance of 24.45 feet to a railroad spike found for an inner ell corner of said Tower Addition; THENCE South 03 degrees 18 minutes 11 seconds West, with the west line of said Tower Addition, a distance of 385.02 feet to a 1/2 inch iron rod found for an inner ell corner of said Tower Addition; THENCE South 82 degrees 55 minutes 09 seconds East, with a south line of said Tower Addition, a distance of 1.18 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 02 degrees 01 minutes 47 seconds West, with the west line of said Tower Addition, a distance of 15.72 feet to a 1/2 inch iron rod found for the southeast corner of said Shiron tract and the southwest corner of said Tower Addition, same point being in the north line of Ronjon Group Business Park Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet Q, Page 350, Plat Records, Denton County, Texas; THENCE North 89 degrees 33 minutes 14 seconds West, passing at 106.93 feet an "X" found in concrete for the northwest corner of said Ronjon Group Business Park Addition, continuing on for a total distance of 133.20 feet to a "PK" Nail set in Mayhill Road for the southwest corner of said Shiron tract, THENCE North 01 degrees 50 minutes 42 seconds East, with the west line of said Shiron tract and with Mayhill Road, a distance of 677.96 feet to the POINT OF BEGINNING and containing 2.141 acres of land, more or less. Contract of Sale Page 18 of 34 EXHIBIT "B" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS That Shiron Investments, LLC, a Texas limited liability company (herein called "Grantor "), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas home rule municipal corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, subject to the reservations set forth below, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property ") Grantor, subject to the limitation of such reservation made herein, reserves, for itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, its successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and /or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, Contract of Sale Page 19 of 34 seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. As used herein, the term "other minerals" shall include oil, gas and all associated hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining or other exploration and /or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "other minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. Exceptions to conveyance and warranty: [Insert Permitted Exceptions, if any] Grantor hereby assigns, without recourse or representation, to Grantee, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise. Contract of Sale Page 20 of 34 EXECUTED the /16 `4-- day of rldZ -/ 2013. Shiron Investments, LLC, a Texas limited liability company By: Name:r Title: Gad ? i0 iE -fi='L ACKNOWLEDGMENT THE STATE OF ��I�% § COUNTY OFv�►Vl § This ipstrumentnwa acknowledged before me on W'(1 I , �� 2013 by j d� so IQ 0 w N a_ of Shiron Investments, LLC, a Texas limited liability company, on behalf of said limited liability company. DOREEN ELIZABETH BLACKSTONE Notary Public, State of Texas N•, :�4 My Commission Expires Decembef 04, 2016 !ry{yta Upon Filing Return To: The City of Denton - Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 V ;l<cs Notary Public, State of Texas � My commission expires: Send Tax Billing Statements To: The City of Denton Attn: Finance Department 215 East McKinney Street Denton, Texas 76201 Contract of Sale Page 21 of 34 EXHIBIT "A" TO SPECIAL WARRANTY DEED Legal Description of Property BEING all that certain lot, tract or parcel of land situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, and being part of that certain tract of land described by deed to Shiron Investments, LLC., recorded under Instrument Number 2007 - 34590, Official Public Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod with cap stamped "Coleman" found for the northwest corner of said Shiron tract and a westerly corner of a tract of land described by deed to the City of Denton, recorded in Volume 2431, Page 843, Deed Records, Denton County, Texas, same point being in the occupied east line of Mayhill Road; THENCE South 01 degrees 50 minutes 42 seconds West, with the west line of said Shiron tract and the occupied east line of Mayhill Road, a distance of 135.49 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for the POINT OF BEGINNING; THENCE South 88 degrees 50 minutes 43 seconds East, over and across said Shiron tract, a distance of 134.59 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for corner in the east line of said Shiron tract and the west line of Tower Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet M, Page 115, Plat Records, Denton County, Texas; THENCE South 01 degrees 59 minutes 44 seconds West, with the west line of said Tower Addition, a distance of 233.87 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 88 degrees 33 minutes 24 seconds East, with a south line of said Tower Addition, a distance of 31.00 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 00 degrees 05 minutes 10 seconds West, with the west line of said Tower Addition, a distance of 44.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 86 degrees 21 minutes 19 seconds West, with a south line of said Tower Addition, a distance of 24.45 feet to a railroad spike found for an inner ell corner of said Tower Addition; THENCE South 03 degrees 18 minutes l l seconds West, with the west line of said Tower Addition, a distance of 385.02 feet to a 1/2 inch iron rod found for an inner ell corner of said Tower Addition; THENCE South 82 degrees 55 minutes 09 seconds East, with a south line of said Tower Addition, a distance of 1.18 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 02 degrees 01 minutes 47 seconds West, with the west line of said Tower Addition, a distance of 15.72 feet to a 1/2 inch iron rod found for the southeast corner of said Shiron tract and the southwest corner of said Tower Addition, same point being in the north line of Ronjon Group Business Park Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet Q, Page 350, Plat Records, Denton County, Texas; THENCE North 89 degrees 33 minutes 14 seconds West, passing at 106.93 feet an "X" found in concrete for the northwest corner of said Ronjon Group Business Park Addition, continuing on for a total distance of 133.20 feet to a "PK" Nail set in Mayhill Road for the southwest corner of said Shiron tract, THENCE North 01 degrees 50 minutes 42 seconds East, with the west line of said Shiron tract and with Mayhill Road, a distance of 677.96 feet to the POINT OF BEGINNING and containing 2.141 acres of land, more or less. Contract of Sale Page 22 of 34 EXHIBIT "C" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. ASSIGNMENT OF LEASES STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS This Assignment of Leases (hereinafter referred to as the "Assignment "), is made and entered into as of the ,� - day ofd) & -c tic &h , 2013, by and between Shiron Investments, LLC, a Texas limited liability company ( "Assignor "), and the City of Denton, Texas, a Texas home rule municipal corporation ( "Assignee "). WITNESSETH WHEREAS, Assignor has this day conveyed to Assignee the real property described in Exhibit "A ", attached hereto and incorporated herein by reference, including the improvements situated thereon (together, the "Premises "); WHEREAS, Assignor has entered into or is the owner of those certain lease or occupancy agreements (the "Leases ") with those certain Tenants (herein so called), shown on the Rent Roll (herein so called), attached hereto as Exhibit "B ", covering those portions of the Premises shown on the Rent Rolls; and WHEREAS, Assignor desires to convey to Assignee all of Assignor's right, title and interest in and to the Leases, and in and to all security and other deposits for or related to the Leases (the "Deposits ") Contract of Sale Page 23 of 34 NOW, THEREFORE, for and in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Assignor, Assignor and Assignee do hereby covenant and agree as follows: 1. ASSIGNMENT Assignor does hereby GRANT, BARGAIN, SELL, CONVEY, ASSIGN, TRANSFER, SET OVER AND DELIVER unto Assignee, it's successors and assigns, all of the right, title and interest of Assignor in and to the Leases and Deposits. 2. ASSUMPTION Assignee shall and does hereby assume and agree to observe and perform all obligations and duties of Assignor as landlord or lessor under the Leases, that arise from and after [insert Closing Date] (the "Determination Date ") and that relate to the period of time after the Determination Date. 3. COMMISSIONS Any commissions or referral fees of any kind or type with respect or relating to the Leases, and present or future renewals thereof (collectively the "Commissions "), have been paid or otherwise discharged by Assignor. Assignee shall have no obligation to pay any commissions, and Assignor hereby indemnifies and holds Assignee harmless from and against any and all claims, liabilities, losses, damages, causes of action and expenses (including without limitation, court costs and reasonable attorneys fees relating thereto) incurred by Assignee in connection with or arising out of the Commissions. 4. INDEMNIFICATION Assignor hereby indemnifies and holds Assignee harmless from and against any and all claims, liabilities, losses, damages, causes of action, and expenses (including without limitation, court costs and reasonable attorneys fees relating thereto) incurred in connection with, arising out of, resulting from, or Contract of Sale Page 24 of 34 relating to (i) the ownership and operation of the Premises prior to and through the Determination Date; (ii) the obligations of the landlord or lessor under the Leases prior to and through the Determination Date; (iii) the failure of Assignor to deliver to Assignee, in accordance with the terms of this Assignment, all Deposits under the Leases; and (iv) the material untruth of any representation or warranty made to Assignee by Assignor with respect to the Leases, the Premises, the Deposits or the operation of the Premises as of the date made, whether made herein, in the Contract of Sale (herein so called), dated on or about , by and between Assignor and Assignee, contemplating the sale and purchase of the Premises, or otherwise. 5 REPRESENTATIONS AND WARRANTIES OF ASSIGNOR Assignor represents and warrants to Assignee the following as of the date hereof: (a) There are no adverse or other parties in possession of the Premises, or any part thereof, except Assignor and the Tenants under the Leases. No party has been granted any license, lease or any other right of any kind relating to the use, occupation or possession of the Premises, or any part thereof, except the Tenants under the Leases delivered to Assignee. The Leases delivered to Assignee in connection with this Assignment constitute all of the written and oral agreements of any kind (including amendments or modifications) for the leasing, rental or occupancy of all or any portion of the Premises. (b) (i) Each of the Leases is in full force and effect and has not been amended, modified or supplemented; (ii) there exists no default and no unresolved disputes under any of the Leases; (iii) each of the Tenants under the Leases actually occupies the Premises leased thereunder; (iv) no rental under any of the Leases has been collected more than one (1) month in advance of the current month; and (v) there are no concessions, bonuses, free months rental, rebates or other matters affecting any rental for any Tenant under any of the Leases. (c) Assignor is the owner of the entire landlords or lessor's interest in and to each of the Leases, with full power and authority to convey them to Assignee pursuant to the terms of this Assignment, and neither the Leases, Deposits, nor the rentals or other sums payable thereunder have been assigned or otherwise encumbered. Contract of Sale Page 25 of 34 6. MISCELLANEOUS The agreements, covenants, warranties and representations contained in this Assignment are binding on and shall inure to the benefit of Assignor and Assignee, and their respective successor and assigns. Notwithstanding the above, nothing contained herein shall operate to assign Assignor's cause of action for delinquent rents, if any, to Assignee, nor shall Assignee be obligated in any manner beyond that stated in the Contract of Sale to collect those rents for or on behalf of Assignor. IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed as of the day first above written. ASSIGNOR: Shiron Investments, LLC, a Texas limited liability company n By:c Name: 64-121 Ecz �,J0?y;4 ),Sc Title: 060/,- EIV ASSIGNEE: THE CITY OF DENTON By: GEORGE C. CAMPBELL, CITY MANAGER Contract of Sale Page 26 of 34 ATTEST: JENNIFER WALTERS, CITY SECRETARY C APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on 11f �I)ata cy , 2013 by 3PI V1 P JOAS01111 N lL of Shiron Investments, LLC, a Texas limited liability company, on behalf of said limited liability company. REEN ELIZABETH BLACKSTONE Notary Public. State of Texas +q My Commission Expires December 04, 2016 THE STATE OF TEXAS COUNTY OF DENTON Notary Public, State of Texas G W/(") My commission expires: ACKNOWLEDGMENT This instrument was acknowledged before me on , 2013 by George C. Campbell, City Manager of the City of Denton, Texas on behalf of said municipality. Notary Public, State of Texas My commission expires: Contract of Sale Page 27 of 34 EXHIBIT "A" TO ASSIGNMENT OF LEASES [ Description of Premises ] BEING all that certain lot, tract or parcel of land situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, and being part of that certain tract of land described by deed to Shiron Investments, LLC., recorded under Instrument Number 2007 - 34590, Official Public Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod with cap stamped "Coleman" found for the northwest corner of said Shiron tract and a westerly corner of a tract of land described by deed to the City of Denton, recorded in Volume 2431, Page 843, Deed Records, Denton County, Texas, same point being in the occupied east line of Mayhill Road; THENCE South 01 degrees 50 minutes 42 seconds West, with the west line of said Shiron tract and the occupied east line of Mayhill Road, a distance of 135.49 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for the POINT OF BEGINNING; THENCE South 88 degrees 50 minutes 43 seconds East, over and across said Shiron tract, a distance of 134.59 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for corner in the east line of said Shiron tract and the west line of Tower Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet M, Page 115, Plat Records, Denton County, Texas; THENCE South 01 degrees 59 minutes 44 seconds West, with the west line of said Tower Addition, a distance of 233.87 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 88 degrees 33 minutes 24 seconds East, with a south line of said Tower Addition, a distance of 31.00 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 00 degrees 05 minutes 10 seconds West, with the west line of said Tower Addition, a distance of 44.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 86 degrees 21 minutes 19 seconds West, with a south line of said Tower Addition, a distance of 24.45 feet to a railroad spike found for an inner ell corner of said Tower Addition; THENCE South 03 degrees 18 minutes 11 seconds West, with the west line of said Tower Addition, a distance of 385.02 feet to a 1/2 inch iron rod found for an inner ell corner of said Tower Addition; THENCE South 82 degrees 55 minutes 09 seconds East, with a south line of said Tower Addition, a distance of 1.18 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 02 degrees 01 minutes 47 seconds West, with the west line of said Tower Addition, a distance of 15.72 feet to a 1/2 inch iron rod found for the southeast corner of said Shiron tract and the southwest corner of said Tower Addition, same point being in the north line of Ronjon Group Business Park Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet Q, Page 350, Plat Records, Denton County, Texas; THENCE North 89 degrees 33 minutes 14 seconds West, passing at 106.93 feet an "X" found in concrete for the northwest corner of said Ronjon Group Business Park Addition, continuing on for a total distance of 133.20 feet to a "PK" Nail set in Mayhill Road for the southwest corner of said Shiron tract, THENCE North 01 degrees 50 minutes 42 seconds East, with the west line of said Shiron tract and with Mayhill Road, a distance of 677.96 feet to the POINT OF BEGINNING and containing 2.141 acres of land, more or less. Contract of Sale Page 28 of 34 EXHIBIT "B" TO ASSIGNMENT OF LEASES [ Rent Rolls ] Contract of Sale Page 29 of 34 Rent Roll for 821 -981 Mayhill House # Rent Tenant Lease Expires 821 $825 Beard 30- Apr -14 841 $785 Patterson 31- May -14 861 $785 Aguilar- Olvera, Puga 31- Aug -14 881 $785 Oglesby 30- Jun -14 901 $750 Rener, Trevino 30- Jun -14 921 $650 Rodriguez 31- Jul -14 941 $750 Shasteen 30- Jun -14 961 $750 Olney. Wilson 30- Jun -14 981 $900 Harris 31- May -14 EXHIBIT "D" to Contract of Sale BILL OF SALE STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS The undersigned, Shiron Investments, LLC, a Texas limited liability company ( "Grantor "), for and in consideration of the sum of Ten and No /100 Dollars ($10.00) and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas home rule municipal corporation ( "Grantee "), the receipt and sufficiency of which are hereby acknowledged, has BARGAINED, SOLD AND CONVEYED and by these presents does BARGAIN, SELL AND CONVEY unto Grantee all of Grantor's right, title and interest, if any, to the personal property which is located on or used in connection with that certain property located in Denton County, Texas, being more fully described in Exhibit "A ", attached hereto and made a part hereof (collectively, the "Property "). TO HAVE AND TO HOLD all of Grantor's right, title and interest in and to the Property, unto said Grantee and Grantee's successors and assigns forever, so that neither Grantor nor Grantor's successors and assigns shall have, claim or demand any right or title to the Property. EXECUTED and effective as of the /6V�- day of 2013. GRANTOR: Shiron Investments, LLC, a Texas limited liability company Name: Title: No x-) e.r/' Contract of Sale Page 30 of 34 EXHIBIT "A" to Bill of Sale [ Description of the subject real property ] BEING all that certain lot, tract or parcel of land situated in the Gideon Walker Survey, Abstract Number 1330, City of Denton, Denton County, Texas, and being part of that certain tract of land described by deed to Shiron Investments, LLC., recorded under Instrument Number 2007 - 34590, Official Public Records, Denton County, Texas, and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod with cap stamped "Coleman" found for the northwest corner of said Shiron tract and a westerly corner of a tract of land described by deed to the City of Denton, recorded in Volume 2431, Page 843, Deed Records, Denton County, Texas, same point being in the occupied east line of Mayhill Road; THENCE South 01 degrees 50 minutes 42 seconds West, with the west line of said Shiron tract and the occupied east line of Mayhill Road, a distance of 135.49 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for the POINT OF BEGINNING; THENCE South 88 degrees 50 minutes 43 seconds East, over and across said Shiron tract, a distance of 134.59 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for corner in the east line of said Shiron tract and the west line of Tower Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet M, Page 115, Plat Records, Denton County, Texas; THENCE South 01 degrees 59 minutes 44 seconds West, with the west line of said Tower Addition, a distance of 233.87 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 88 degrees 33 minutes 24 seconds East, with a south line of said Tower Addition, a distance of 31.00 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 00 degrees 05 minutes 10 seconds West, with the west line of said Tower Addition, a distance of 44.31 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE North 86 degrees 21 minutes 19 seconds West, with a south line of said Tower Addition, a distance of 24.45 feet to a railroad spike found for an inner ell corner of said Tower Addition; THENCE South 03 degrees 18 minutes 11 seconds West, with the west line of said Tower Addition, a distance of 385.02 feet to a 1/2 inch iron rod found for an inner ell corner of said Tower Addition; THENCE South 82 degrees 55 minutes 09 seconds East, with a south line of said Tower Addition, a distance of 1.18 feet to a 1/2 inch iron rod with yellow cap stamped "Arthur Surveying Company" set for an inner ell corner of said Tower Addition; THENCE South 02 degrees 01 minutes 47 seconds West, with the west line of said Tower Addition, a distance of 15.72 feet to a 1/2 inch iron rod found for the southeast corner of said Shiron tract and the southwest corner of said Tower Addition, same point being in the north line of Ronjon Group Business Park Addition, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet Q, Page 350, Plat Records, Denton County, Texas; THENCE North 89 degrees 33 minutes 14 seconds West, passing at 106.93 feet an "X" found in concrete for the northwest corner of said Ronjon Group Business Park Addition, continuing on for a total distance of 133.20 feet to a "PK" Nail set in Mayhill Road for the southwest corner of said Shiron tract, THENCE North 01 degrees 50 minutes 42 seconds East, with the west line of said Shiron tract and with Mayhill Road, a distance of 677.96 feet to the POINT OF BEGINNING and containing 2.141 acres of land, more or less. Contract of Sale Page 31 of 34 EXHIBIT "E" to Contract of Sale Re: Lease Agreement dated , 20, regarding that certain property located at , , Denton County, Texas (the "Property ") Gentlemen: The undersigned ( "Tenant ") has executed and entered into a certain lease agreement (the "Lease "), a true and complete copy of which is attached hereto as Exhibit "A ". Tenant understands that Shiron Investments, LLC, a Texas limited liability company ( "Landlord "), the owner of the Property and the Landlord's interest in the Lease, intends to transfer, sell, assign and convey the Property, the Lease and Landlord's interest in the Lease, to the City of Denton, Texas ( "Buyer "). With respect to the Lease and the transfer to Buyer, Tenant hereby certifies to Buyer as follows: The Lease is in good standing and in full force and effect. 2. There are presently no existing events of default by Landlord under the Lease and no event has occurred which, with or without notice or the passage of time, or both, would constitute a default under the Lease by Landlord or Tenant. Furthermore, there are no items or matters currently in dispute and no pending requests made by Tenant to which Landlord has not responded. 3. Unless indicated in the space following this sentence, there are no modifications or amendments with respect to the Lease, and there have been no security or other deposits, payments of rent, or other amounts delivered to Landlord in connection with this Lease: 4. There do not exist any set -offs, defenses or claims in favor of Tenant against Landlord or against enforcement by Landlord of any of the terms or conditions of the Lease. 5. Tenant has accepted and is actually occupying the space covered by its Lease, and there are no other parties in possession of that space. Contract of Sale Page 32 of 34 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Denton Municipal Electric UTILITIES ACM: Howard Martin, 349 -8232 �. SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, authorizing the City Manager or his designee to execute a Contract of Sale (herein so called), by and between the City of Denton (the "City "), and Westpark Group, L.P., a Texas Limited Partnership (the "Seller") contemplating the sale by Seller and purchase by the City of a 3.00 acre tract of land, more or less, for the purchase price of One Hundred Eighty Thousand Nine Hundred Ninety One and 80/100 Dollars ($180,991.80), said Real Property being generally located east of Western Boulevard and North of Airport Road, and located in the James Perry Survey, Abstract 1040, and the John Davis Survey, Abstract 326, Denton County, Texas, authorizing the City Manager, or his designee, to execute and deliver any and all other documents necessary to accomplish closing of the transactions contemplated by the Contract of Sale; authorizing the expenditure of funds therefore; and providing an effective date. BACKGROUND In preparation for future projects involving the expansion of electric and natural gas infrastructure, DME proposed to secure easements, tracts of land, and access. The projects necessitate the acquisition of a 3.00 acre tract of land located north of Airport Road, and east of Western Boulevard. Staff has been actively pursuing the transaction acquisition terms with the affected property owner beginning in September 2010, the result of which are embodied in the Contract of Sale. Staff recommends approval of the Contract of Sale in the substantial form as attached. Recommended approval authorizes staff to proceed to closing the purchase transaction with the Seller upon City Council approval of the ordinance. OPTIONS Recommend approval of the Ordinance 2. Do not recommend approval RECOMMENDATION Staff endorses approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council Closed Session Briefing on the utility project September 14, 2010 City Council Closed Session Briefing on the utility project January 4, 2011 Public Utility Board Approval April 5, 2011 City Council Approval April 19th Ordinance 2011 -063 Public Utility Board Closed Session briefing July 22, 2 -013 City Council Closed Session briefing August 6, 2013 Public Utility Board Closed Session and Consent agenda approvals October 28, 2013 City Council Executive Session November 5, 2013 Public Utility Board Executive Session November 11, 2013 City Council Executive Session December 3, 2013 City Council Executive Session December 17, 2013 FISCAL INFORMATION $180,991.80 plus standard and customary closing costs. BID INFORMATION N/A EXHIBITS 1. Location Map 2. Ordinance Prepared by: Pamela England Real Estate Specialist Real Estate and Capital Support Engineering Service Respectfully submitted: Mike Grim Executive Manager Power Legislative and Regulatory Affairs salegahour docurnentslordinances1141rd wells contract of sale ord.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT OF SALE (HEREIN SO CALLED), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A ", BY AND BETWEEN THE CITY OF DENTON (THE "CITY "), AND WESTPARK GROUP, L.P., A TEXAS LIMITED PARTNERSHIP (THE "SELLER "), CONTEMPLATING THE SALE BY SELLER AND PURCHASE BY CITY OF A 3.0 ACRE TRACT OF LAND, MORE OR LESS, FOR THE PURCHASE PRICE OF ONE HUNDRED EIGHTY THOUSAND NINE HUNDRED NINETY ONE AND 801100 DOLLARS ($180,991.80), SAID REAL PROPERTY BEING GENERALLY LOCATED EAST OF WESTERN BOULEVARD AND NORTH OF AIRPORT ROAD, AND LOCATED IN THE JAMES PERRY SURVEY, ABSTRACT 1040, DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE AND DELIVER ANY AND ALL OTHER DOCUMENTS NECESSARY TO ACCOMPLISH CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to (a) execute (i) the Contract of Sale, by and between the City of Denton, as buyer and Westpark Group, L.P., as seller, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $180,991.80, plus certain costs as prescribed in the Contract of Sale; and (ii) any and all other documents necessary for closing the transaction contemplated by the Contract of Sale, as more particularly described therein; and (b) extend the closing date of the Contract of Sale, as more particularly described therein. SECTION 2. The City Manager is hereby authorized to make expenditures as set forth in the Contract of Sale. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: V 12 -26 -13 CONTRACT OF SALE THIS CONTRACT OF SALE ( "Contract ") is dated the 7th day of January, 2014 ( "Effective Date "), and is made by and between Westpark Group, LP, a Texas limited partnership ("Westpark") and the City of Denton, a Texas home rule municipal corporation ( "Denton "). RECITALS A. Westpark owns a certain tract of land being more particularly described hereinbelow. B. Westpark desires to sell to Denton, and Denton desires to buy from Westpark, said tract of land located in the corporate limits of the City of Denton, Texas, as specifically described hereinbelow. NOW THEREFORE, in consideration of the exchange of real property, mutual covenants and agreements set forth in the Contract, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Westpark and Denton hereby agree to the following: ARTICLE I: CONVEYANCES OF PROPERTY On the Closing Date (as hereinafter defined), Westpark shall grant and convey the below described Property interests to Denton, subject to the terms and provisions set forth below: 1.1 Sale and Purchase of the Property. Westpark agrees to sell and convey to Denton, and Denton agrees to purchase from Westpark the Property (as hereinafter defined), for the Purchase Price (as hereinafter defined), on and subject to the terms and conditions set forth in this Contract, the following grants and conveyances: 1.1.1 Fee Title to Land. Fee simple title to a certain 3.0 acre tract of land ( "Land "), pursuant to the Special Warranty Deed ( "Deed ") attached hereto as Appendix 7 (said Land being more particularly described in said Deed attached as Appendix 1), together with all of Westpark's rights and interests in and to all roads, streets, alleys, surface water privileges, association rights and easements belonging or appurtenant to the Land, rights of way, licenses, interests, and other rights and appurtenances appertaining thereto, as provided in the Deed. The fee simple interest in the Land and appurtenant rights and interests granted pursuant to the foregoing are referred to herein as the "Property ". The physical land area covered by the fee simple interest in the Land is referred to herein as the "Property Area ". 1.2 Minerals Excluded. Westpark has previously sold and conveyed to RIL Mineral Holdings, LP ( "RILMH ") all of Westpark's right, title and interest in all minerals of every kind, including oil, crude oil, natural gas, casing -head gas, other gas, other gaseous or liquid hydrocarbon minerals or substances, condensate, coal, ores, sulfur and other minerals of every kind and nature in and under and/or that may be produced from the Land (and other Property Areas) pursuant to those certain Mineral Deeds recorded as Document No. 2011 -67794 and Document No. 2011 -67798 of the Official Records of Denton County, Texas ( "Prior Mineral Conveyance "). Westpark shall be permitted to execute and record a confirmatory Mineral Deed in form similar to and in furtherance of said existing Mineral Deeds to RILMH but with the final legal description of the Land or any other Property Area attached thereto ( "Confirmatory Mineral Deed "). Nonetheless, to the extent Westpark continues to hold as of Closing any such minerals in and under and /or that may be produced from the Land (or any other Property Areas), Westpark, subject to the limitation of such reservation made herein, shall reserve, for itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Land ( "Mineral Reservation "). Westpark, its successors and assigns shall not have the right to use or access the surface of the Land, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and /or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Land for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and /or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and /or related to the exploration or production of same. With respect to the Prior Mineral Conveyance, Westpark also agrees to cause RILMH to deliver, at or prior to Closing, a surface waiver agreement waiving RILMH's rights to use the surface of the Land in the form attached hereto and made a part hereof as Appendix 2 (the " RILMH Surface Waiver "). As used herein, the term "surface of the Land" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE II: PURCHASE PRICE AND EARNEST MONEY 2.1 Purchase Price. The Purchase Price to be paid to Westpark for the Property is the sum of $180,991.80 ( "Purchase Price "). 2.2 Earnest Money. Denton shall deposit the sum of one thousand and No /100 Dollars ($1,000.('0), as Earnest Money (herein so called) with Republic Title of Texas, Inc., 550 Bailey Avenue, Suite 100, Fort Worth, Texas 76107 (the "Title Company "), as escrow agent, on or before the Closing Date. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. RD Wells Expansion Tract Page 2 2.3 Independent Contract Consideration. On or before the Closing Date, Denton shall deliver to the Title Company, payable to and for the benefit of Westpark, a check in the amount of One Hundred and No/100 Dollars ($100.D0) (the "Independent Contract Consideration "), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Westpark's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non - refundable, and shall be retained by Westpark notwithstanding any other provision of this Contract. ARTICLE III: TITLE AND SURVEY 3.1 Title Commitment. Denton may cause to be issued a current Commitment for Title Insurance (the "Title Commitment ") for the Property, issued by the Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of any defects, encumbrances and other exceptions to title, and outstanding claims, interests or equities of any nature (each of which referred to herein as an 4Exception "). 3.2 Survey. Denton may, at its expense, cause a current on the ground survey of the Property Area, or any part thereof, to be prepared by Gerry Curtis Associates or any other surveyor approved by both parties (the "Survey "). The Survey may include all matters prescribed by Denton. In any case, the description of the Land as set forth in Appendix 1 hereto shall be used to describe the Land in the Deed conveying the Land to Denton and shall be the description of the Land set forth in the Title Policy. 3.3 Westpark's Efforts to Cure. Westpark shall take good faith efforts to assist Denton in curing or satisfying any Exceptions or defects depicted or revealed in the Title Commitment and/or Survey, as set forth in a notice to Westpark by Denton ( "Objections "). Notwithstanding the obligation of Westpark to provide good faith efforts in its assistance to Denton to cure any defects depicted or revealed in the Title Commitment or Survey, Westpark shall not be obligated to expend funds in such efforts or incur any liability or otherwise incur any economic burden. In the event Denton and Westpark cannot cure the Objections prior to Closing, Denton may elect to either (i) terminate this Contract; or (ii) waive the uncured Objections, which shall become Permitted Exceptions (as defined below), and upon such waiver, close the transaction contemplated by this Contract. The term "Permitted Exceptions" as used herein shall mean (i) the Roll -Back Taxes (as hereinafter defined), (ii) the Prior Mineral Conveyance and the Mineral Reservation, (iii) easements, restrictions, claims, rights of way, encroachments or other encumbrances or other matters whatsoever affecting the Property as shown in the Title Commitment or Survey, but excluding any matters which were subject to Objections and which Westpark actually cures, (iv) all municipal or other governmental zoning laws, regulations and ordinances, if any, affecting the herein - described Property and (v) any other matters affecting the Property which are of public record or would be disclosed by a physical inspection of the Property and /or an accurate survey of the Property. Notwithstanding anything to the contrary herein, Westpark shall provide to Denton, at or prior to Closing, the RILMH Surface Waiver, and shall use reasonable efforts to provide to Denton, at or prior to Closing, evidence satisfactory to RD Wells Expansion Tract Page 3 Denton and Westpark that any other owners of the rights to conduct mineral exploration and production activities (the "Operations") on the Property are prohibited from using or occupying in any way the surface of the Property in connection with such Operations. 3.4 Title Policy. At Closing, Denton, at Denton's sole cost and expense, may cause a standard Texas Owner Policy of Title Insurance ( "Title Policy "), along with a T -19.1, T -19.2 or T -19.3 endorsement, as applicable, to be furnished to Denton, to the extent available. The Title Policy shall be issued by the Title Company, in the amount of the fair market value of the Property and insuring that Denton has indefeasible fee simple title to the Land, subject only to the Permitted Exceptions. ARTICLE IV: AS -IS SALE 4.1 AS -IS Sale. Denton expressly acknowledges that the Property is being sold, conveyed, granted and accepted AS -IS, WHERE -IS WITH ALL FAULTS, and, except as expressly set forth in Article VI, below, Westpark makes no representations or warranties, express or implied, with respect to the physical condition or any other aspect of the Property or any real property encumbered by the Property, including without limitation: (i) the structural integrity of improvements on such properties, if any; (il) the manner, construction, condition and state of repair or lack of repair of any improvements on such properties; (iii) the conformity of any improvements to any plans or specifications for such properties, including but not limited to any plans and specifications that may have been or which may be provided to Denton; (iv) the conformity of such properties to past, current or future applicable zoning or building code requirements or such properties' compliance with any other laws; (v) the financial earning capacity or history or expense history of the operation of such properties; (vi) the existence of soil instability, past soil repairs, soil additions or conditions of soil fill, such properties' susceptibility to landslides, sufficiency of undershoring or sufficiency of drainage to, from or across such properties; (vii) whether such properties are located wholly or partially in a flood plain or a flood hazard boundary or similar area or within any area that may be considered wetlands or jurisdictional waters of the United States; (viii) the existence or non - existence of underground or above ground storage tanks, asbestos, hazardous waste or other toxic or Hazardous Materials (as hereinafter defined) of any kind or any other environmental condition or whether such properties are in compliance with applicable laws; (ix) such properties' investment potential or resale at any future date, at a profit or otherwise; (x) any tax consequences of ownership of such properties, except as provided in Section 7.3, below; or (xi) any other matter whatsoever affecting the stability, integrity, other condition or status of the Property (collectively, the "Property Conditions "). EXCEPT AS PROVIDED IN ARTICLE Vl, BELOW, DENTON HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS IT MIGHT HAVE REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATED TO THE PROPERTY, ANY IMPROVEMENTS THEREON OR THE PROPERTY CONDITIONS, SUCH WAIVER BEING ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY. This waiver fully applies to Westpark as well as all other Westpark Parties (as RD Wells Expansion Tract Page 4 hereinafter defined) but does not apply to Westpark's predecessors in title to the Property who are not Westpark Parties. As used herein the "Westpark Parties" shall mean Westpark, Rayzor Investments, Ltd. ( "RIL "), Jesse Newton Rayzor and Eugenia Porter Rayzor, and any other person that was a spouse, descendant or other relative of Jesse Newton Rayzor and /or Eugenia Porter Rayzor, or an affiliated entity of any of the foregoing. 4.2 Information Disclaimer. Any and all information related to the Property provided to Denton by Westpark (without implying any obligation to deliver such information, however) ( "Information "), shall be delivered as an accommodation to Denton only, without any representation or warranty as to the completeness or accuracy of the data or other information contained therein, and all such Information is furnished to Denton solely as a courtesy, and Westpark has not verified the accuracy of any statements or other information therein contained, the method used to compile such Information nor the qualifications of the persons preparing such Information. The Information is provided on an AS -IS, WHERE -IS BASIS, AND DENTON EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS HEREIN, WESTPARK MAKES NO REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE INFORMATION. 4.3 Waiver of Compliance with Requirements. Denton expressly acknowledges that it is not relying on (and hereby disclaims and renounces) any representations or warranties made by or on behalf of Westpark of any kind or nature whatsoever, except as expressly provided in Article VI, below. Denton acknowledges that the Property may not be in compliance with all laws that may apply to such Property or any part thereof and the continued ownership, maintenance, management and repair of such properties ( "Requirements "). Denton shall be solely responsible for any and all Requirements. 4.4 Environmental Waiver. Without limitation, to the fullest extent permitted by law, and except as provided in Article VI, below, Denton, for itself and its successors and assigns, hereby releases Westpark from and waives any and all claims and liabilities against Westpark, related to or in connection with any environmental condition at such Property (or the presence of any matter or substance relating to the environmental condition of such Property), including, but not limited to, claims and/or liabilities relating to (in any manner whatsoever) any hazardous, toxic or dangerous materials or substances located in, at, about or under such Property, or for any and all claims or causes of action (actual or threatened) based upon, in connection with or arising out of: (i) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § §9601 et seq.) ( "CERCLA "); (ii) the Resource Conservation and Recovery Act (42 U.S.C. § §6901 et seq.) ( "RCRA "); (iii) the Superfund Amendments and Reauthorization Act (42 U.S.C. § §9601 et seq.) ( "SARA "); or (iv) any other claim or cause of action (including any federal or state based statutory, regulatory or common law cause of action, including without limitation, the Texas Solid Waste Disposal Act) related to environmental matters or liability with respect to or affecting the Property. This waiver fully applies to Westpark as well as all other Westpark Parties but does not apply to Westpark's predecessors in title to the Property who are not Westpark Parties. RD Wells Expansion Tract Page 5 4.5 Assumption of Hazardous Materials Risks. Without limitation to any of the above, Denton assumes the risk that Hazardous Materials may be present in, on or under the Property, and except as provided in Article V, and Article Vl, below, hereby waives, releases and discharges forever, Westpark from any and all present or future claims or demands, and any and all damages, loss, injury, claims or costs, including fines, penalties and judgments arising from or in any way related to the condition of the Property or presence of any Hazardous Materials in, on or under the Property, whether or not arising from or attributed to the sole or concurrent negligence of Westpark. This waiver fully applies to Westpark as well as all other Westpark Parties but does not apply to Westpark's predecessors in title to the Property who are not Westpark Parties. 4.6 Parties Relying on Own Inspections. Denton acknowledges and agrees that Westpark was unwilling to convey, grant and sell the Property unless Westpark was released as expressly set forth above. With respect to the waivers and agreements contained in Article IV, Sections 4.1 through 4.5, above, Denton and Westpark represent and warrant to the other that: they are (i) represented by legal counsel in connection with the sale contemplated by this Contract; (ii) each, with its counsel, has fully reviewed the disclaimers and waivers and agreements set forth in this Contract and understands their significance and effect; (iii) each is knowledgeable and experienced in the purchase, operation, ownership, refurbishing and sale of commercial real estate, and is fully able to evaluate the merits and risks of this transaction; and (iv) each is not in a significantly disparate bargaining position. As part of the provisions of this Article IV, but not as a limitation thereon, Denton agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed. To the extent permitted by law, Denton hereby agrees, represents and warrants that it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Denton further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Denton nevertheless hereby intends to release, discharge and acquit Westpark from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included in the waivers and matters released as set forth in this Article IV. 4.6A. Waivers Limited. Notwithstanding anything to the contrary herein, any and all representations, disclaimers and waivers of any claims by Denton, all as may be prescribed in this Article IV, are made to the extent, and only to the extent, such is authorized or permitted under existing laws. 4.7 Survival. Notwithstanding anything herein to the contrary, all of the terms and provisions of Article IV, Sections 4.1 through 4.6A shall survive the Closing. ARTICLE V: INSPECTION RD Wells Expansion Tract Page 6 5.1 Tests. Until the Closing, Denton and its agents, employees and contractors, at their sole risk and expense, shall have the right to enter upon the Property Area during normal business hours (and subject to advance notice as required below) for inspections, surveying, engineering and other reasonable testing and inspection purposes ( "Tests "). All such inspections may include both non - intrusive inspections and studies (such as non - intrusive "Phase I Level" type tests with respect to environmental matters) which do not involve borings or any sampling of any material or media, including soil, surface water, or ground water and intrusive "Phase Il Level" environmental or other intrusive testing or any borings or sampling of any material or media, including soil, surface water, or ground water. Without limiting the general authorization provided herein, Denton may conduct soil borings on the Property Area for the purpose of evaluating soil stability and characteristics for typical construction industry purposes related to its intended use of the Properly without obtaining Westpark's prior approval. All soil borings shall be conducted in a commercially reasonable manner in accordance with generally accepted construction industry standards, and upon completion of all such soil borings, Denton shall restore the affected portion of the Property to substantially the same condition as existed prior to such soil borings. Any and all activities conducted by Denton shall be in accordance with applicable laws. Any entry upon the Property Area is referred to herein as an "Entry". All such activities shall be conducted in such a fashion so as to minimize interference with the use of the properties being inspected. Denton shall promptly repair any damage to the affected portion of the Property as a result of such Tests and restore same to its condition which existed prior to such Tests. Denton shall deliver to Westpark a copy of any report, summary or other documentation of the findings produced by or resulting from the Tests. 5.2 Notice of Entry. Prior to any Entry upon the Property Area to be inspected for any purpose permitted herein, Denton shall give prior notice to and shall coordinate such access as follows: Mr. Philip A. Baker (telephone 9401387 -8711, fax 9401566 -1591, The Rayzor Company, 400 West Oak Street, Suite 200, Denton, Texas 76201) or his successor or designee who will act as Westpark's agent with respect thereto. Such notice shall be given at least 24 hours prior to the proposed Entry and shall include the names of the individuals who will be entering the Property Area and the name of such individual's firm or company, the purpose of the inspection and specific activities which will be conducted by such individuals on such Property Area, the times during which such Entry shall occur and such other information as may be reasonably requested by Mr. Baker. The inspecting party shall fully cooperate with and follow any reasonable additional requirements or instructions given by Mr. Baker with respect to such Entry. 5.3 Insurance. Any consultant or contractor of Denton desiring to enter the Property to be inspected for any Tests shall only enter such Property Areas after submitting to Westpark certificates of insurance evidencing Commercial General Liability Insurance coverage in the amount of Five Hundred Thousand and No1100 Dollars ($500,000.00), covering such consultant's or contractor's operations on the Property to be inspected, with Westpark included as an additional insured thereunder and stating that such insurance is primary with regard to any other insurance maintained by Westpark. RD Wells Expansion Tract Page 7 5.4 Termination. Any term or provision of this Contract notwithstanding, the obligations of Denton specified in this Contract are wholly conditioned on Denton's having determined, in Denton's sole and absolute discretion, during the inspection provided by this Article V, based on such tests, examinations, studies, investigations and inspections of the Property Denton deems necessary or desirable, that Denton finds the Property suitable for Denton's purposes. If Denton determines, in its sole judgment, that the Property is not suitable, for any reason, for Denton's intended use or purpose, Denton may terminate this Contract by written notice to Westpark, as soon as reasonably practicable, but in any event prior to the Closing. In the event Denton elects to terminate this Contract pursuant to the terms of this Section 5.4, Denton will provide to Westpark copies of any and all non - confidential and non - privileged reports and studies obtained by Denton during or resulting from the Tests. ARTICLE VI: REPRESENTATIONS WARRANTIES COVENANTS AND AGREEMENTS 6.1 Representations and Warranties of Westpark. Westpark represents and warrants to Denton, as of the Effective Date of this Contract and as of the Closing Date, except where specific reference is made to another date that: (a) Westpark has the full right, power and authority to sell and convey the Property as provided in this Contract and to carry out Westpark's obligations hereunder and this Contract, and all documents to be delivered by Westpark hereunder, are and shall be legal and binding upon Westpark. (b) Westpark has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (c) Westpark has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (d) All Leases, as defined in Section 6.3(a), relating to the Property shall have expired or otherwise terminated on or before the date of Closing. (e) Westpark has not received notice of any violation of any law, statute, rule, regulation or ordinance related to or affecting the Property or Westpark's obligations under this Contract. (f) To Westpark's actual knowledge, without independent investigation, there are no Hazardous Materials (as hereinafter defined) which are or have been used, manufactured, placed or stored on the Property. As used above, the term "Hazardous Materials" means any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous RD Wells Expansion Tract Page 8 waste," "hazardous material," "hazardous substance," or any similar formation under or pursuant to any state or federal statute or common law rule, (ii) designated as a "hazardous waste" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. §1251 et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317), (iii) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 44 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (iv) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C. §9601); provided, however, "Hazardous Materials" shall not, for purposes of this representation, include gasoline, diesel fuel or other petroleum products routinely used in connection with farm and ranch operations, nor shall such term include any pesticides, herbicides, cattle dipping solutions and other substances which are now or ever have been customarily used in connection with farm and ranch operations (and such exclusion from such term shall include items which were historically used in the farm and ranching industry for such purposes but which may now be banned or otherwise not so used). Westpark hereby informs Denton that it has not conducted an independent investigation in connection with the above representation and that Westpark has limited knowledge as to such matters and advises Denton to conduct independent investigations with respect to such matters as Denton may deem necessary or desirable to fully satisfy itself with respect to the environmental condition of the Property and/or real property encumbered by the Property, it being understood that the above representation is limited in nature and is only to Westpark's actual knowledge, and does not give a complete understanding of the environmental condition of the Property and /or real property encumbered by the Property. (g) Westpark is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. (h) Mr. Baker shall serve as the representative or agent of Westpark with respect to this Contract. 6.2 Representations and Warranties of Denton and Westpark. Denton and Westpark represent and warrant to each other that they have the power to execute, deliver and perform under this Contract, have taken all actions necessary to authorize the execution, delivery and performance of this Contract and that the parties executing this Contract and the conveyance documents exhibited hereto for and on behalf of Denton and Westpark have been duly authorized by Denton and Westpark to act in such capacity. 6.3 Covenants and Agreements of Westpark. Westpark covenants and agrees with Denton as follows: (a) Within ten (10) business days after the Effective Date, Westpark shall deliver to Denton, true, correct and complete copies of the following: RD Wells Expansion Tract Page 9 (i) All lease agreements and/or occupancy agreements and/or licenses of any kind or nature (if oral, Westpark shall provide to Denton in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases "), provided that only those Leases which will remain in force after the Closing, if any, must be delivered to Denton. (b) From the Effective Date until the date of Closing and with respect to the Property, Westpark, shall: 0) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Denton or the Property after the date of Closing. (ii) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, or permit to exist, any lien, encumbrance, or charge thereon. (c) Westpark shall assist and cooperate in the platting activities of Denton, as set forth in Section 6.4 below, including without limitation, execution of any applications or other materials related to ownership of the Land, in such processes. 6.4 Covenants and Agreements of Denton. (a) Denton shall, prior to Closing, have obtained approval of a conveyance plat or other plat of the Land from the Planning and Zoning Commission or the Development Review Committee in accordance with the terms of the Denton Development Code, including without limitation, Sections 35.16.6, 35.16.17, 35.16.17.1 and 35.16.17.2 thereof, or, alternatively to the foregoing, Denton shall obtain any necessary approval of the transaction herein contemplated in lieu of a conveyance plat from the Planning and Zoning Commission and/or Development Review Committee. In the event Denton produces a conveyance plat or other plat in connection with this Contract, Westpark shall reasonably cooperate in the platting process and shall either execute a conveyance plat provided to it by Denton or provide objections to same to Denton, on or before five (5) business days after the conveyance plat or other plat is submitted to it by Denton. Notwithstanding anything herein to the contrary, in no event shall a conveyance plat impose obligations on Westpark to dedicate easements or rights of way across any of Westpark's other lands or impose any restrictions or other requirements with respect to WestparWs such other lands. RD Wells Expansion Tract Page 10 6.5 Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Westpark contained in this Contract shall survive the Closing for a period of one year after the Closing Date, and shall not, in any circumstance, be merged with the Deed to be delivered at Closing pursuant to Section 7.2; provided, however, that the limitation upon the duration of the warranties of this Section 6.5 shall not apply to the warranties provided in the Deed. ARTICLE VII: CLOSING 7.1 Date and Place of Closing. The "Closing" (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as escrowee. The "Closing Date" (herein sometimes called), shall occur before 5:00 PM on the date which is 10 business days after Council Acceptance (as herein after defined), unless otherwise mutually agreed to in writing by Denton and Westpark (with the City Manager of Denton to have authority to agree to any such extension on behalf of Denton acting in his sole discretion). The Closing Date as defined in this Section 7.1, subject to possible extension by mutual written agreement as provided above, is the deadline by which Closing must occur and is intended to prevail over any conflicting terms provided in this Contract or the Appendices attached hereto. 7.2 Items to be Delivered at the Closing. (a) At the Closing, Westpark shall deliver or cause to be delivered to the Title Company, the following items: (i) The Deed for the Land, in form and substance identical to that attached hereto as Apeendix 1, subject only to the Permitted Exceptions, duly executed by Westpark and acknowledged. (ii) The RILMH Surface Waiver, in the form as attached hereto as Appendix 2, executed by RILMH and acknowledged. (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) At the Closing, Denton shall deliver to the Title Company, the following items: (i) The sum equal to the Purchase Price as required by Article IL (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.3 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 6.5, above, the RD Wells Expansion Tract Page 11 provisions of this Section 7.3 shall survive the Closing. The following items shall be adjusted or prorated between Westpark and Denton with respect to the Property: 7.3.1 General Proration. Ad valorem and similar taxes and assessments (the "Taxes ") relating to the Property for the year in which the Closing occurs shall be prorated between Westpark and Denton as of the Closing Date, in accordance with Section 26.11 of the Texas Tax Code. In this regard the Title Company shall have each taxing unit certify Westpark's prorated tax liability for the year of closing which amounts will be paid by Westpark out of the proceeds of the sale. 7.3.2 Roll -Back Taxes. Westpark stipulates that, for purposes of assessing Taxes against the Property for prior years, the applicable central appraisal district has applied agricultural, open -space or other special use valuation methods ( "Special Use Valuation ") to arrive at the taxable value of the Property as permitted under the Texas Tax Code, and accordingly a change in land usage of the Property may result in an additional tax (in addition to Taxes for the year in which the Roll -Back Event, as hereinafter defined, occurs) being assessed against the Property (any such additional taxes, together with interest thereon, being referred to herein as "Roll -Back Taxes "). To the extent any Roll -Back Taxes exist, Westpark shall not be responsible for same. 7.4 Possession at Closing. Possession of the Property shall be delivered to Denton at Closing, subject to the Permitted Exceptions. 7.5 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Westpark is responsible for paying fees, costs and expenses identified herein as being the responsibility of Westpark. Denton is responsible for paying fees, costs and expenses identified herein as being the responsibility of Denton. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Denton County, Texas. ARTICLE Vlll: DEFAULTS AND REMEDIES 8.1 Westpark's Defaults and Denton's Remedies. 8.1.1 Westpark's Defaults. Westpark is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Westpark's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Westpark fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Westpark's part required within the time limits and in the manner required in this Contract; or RD Wells Expansion Tract Page 12 (iii) Westpark fails to deliver at Closing, the items specified herein at Section 7.2(a) for any reason other than a default by Denton or termination of this Contract by Denton pursuant to the terms hereof prior to Closing. 8.1.2 Denton's Remedies. If Westpark is in default under this Contract, Denton, as Denton's sole and exclusive remedies for the default, may, at Denton's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Westpark; or (ii) Enforce specific performance of this Contract against Westpark, requiring Westpark to convey the Property to Denton subject to no liens, encumbrances, exceptions, and conditions other than the Permitted Exceptions. 8.2 Denton's Default and Westpark's Remedies. 8.2.1 Denton's Default. Denton is in default under this Contract on the occurrence of any one or more of the following events: (i) Denton fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Denton's part required within the time limits and in the manner required by this Contract; or (ii) Denton fails to deliver at Closing, the items specified in Section 7.2(b) of this Contract for any reason other than a default by Westpark under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. 8.2.2 Westpark's Remedy. If Denton is in default under this Contract, Westpark, as Westpark's sole and exclusive remedy for the default, may terminate this Contract by written notice delivered to Denton, whereupon neither party shall have any further rights or obligations hereunder. 8.3 Notwithstanding the foregoing, Westpark may pursue all rights and remedies available at law or in equity against Denton with respect to (1) any damages incurred by Westpark as a result of Denton's failure to comply with the insurance requirements provided for in this Contract, and (ii) all obligations under the various closing documents executed at Closing ARTICLE IX: MISCELLANEOUS PROVISIONS 9.1 Notice. Unless otherwise specified in a recorded instrument of conveyance of the Property under this Contract, all notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile, and (b) the date of the deposit RD Wells Expansion Tract Page 13 of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: DENTON: WESTPARK: Richard Casner, First AssistantCity Attorney David Mellina City of Denton, Texas Mellina & Larson, P.C. 215 E. McKinney Street 1128 Fairmount Avenue Denton, Texas 76201 Fort Worth, Texas 76104 Phone: (940) 349 -8333 Phone: (817) 335 -1200 Fax: (940) 382 -7923 Fax: (817) 335 -1221 Richard.Casner @cityofdenton.com Dmellina @mellinalarson.com Paul Williamson, Real Estate Manager Philip A. Baker, Vice President City of Denton Texas The Rayzor Company Phone: (940) 349 -8921 P.O. Box 336 Fax: (940) 349 -8951 Denton, Texas 76202 Paul .Williamson @cityofdenton.com Phone: (940) 387 -8711 Fax: (940) 566 -1591 pabaker @rayzorcompany.com With Copies To: Pamela England, Real Estate Specialist Joanna Cloud City of Denton, Texas Republic Title of Texas, Inc. Phone: (940) 349 -8928 550 Bailey Avenue, Suite 100 Fax: (940) 349 -8951 Fort Worth, Texas 76107 Pamela.England @cityofdenton.com Phone: (817) 877 -1481 Fax: (817) 654 -0008 joannacloud @republictitle.com Michael S. Grim Executive Manager Power, Legislative and Regulatory Affairs City of Denton Texas Phone: (940) 349 -7565 Fax: (940) 349 -7334 Mike.grim @cityofdenton.com 9.2 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas. The laws of Texas governing the validity, construction, enforcement and interpretation of this Contract shall apply. This Contract is RD Wells Expansion Tract Page 14 performable in, and the exclusive venue for any action brought with respect hereto shall lie in, COURTS OF COMPETENT JURISDICTION IN Denton County, Texas. 9.3 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed and authorized by the party against whom enforcement is sought. 9.4 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and/or delivered by Westpark and Denton, Westpark and Denton agree to perform, execute and /or deliver, or cause to be performed, executed and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract, the provisions of this Section 9.4 shall survive Closing. 9.5 Appendices. Each Appendix which is referenced in, and attached to this Contract, is incorporated in and made a part of this Contract for all purposes. 9.6 Assigns. This Contract shall inure to the benefit of and shall bind the parties hereto and their respective legal representatives, successors and assigns; provided, however, no party may assign its rights under this Contract without the prior written consent of the other party. 9.7 Time of the Essence. Time is of the essence of this Contract. 9.8 Taking Prior to Closing. if the Property, or any portion thereof, becomes subject to a taking under the provisions of eminent domain prior to the Closing, Denton shall have the option of: (i) closing this transaction as provided herein (with no reduction in consideration), in which event Westpark shall assign to Denton at Closing all condemnation proceeds, if any, but only to the extent such proceeds accrue from a taking of the Land, as a result of such proceeding; or (ii) terminating this Contract, either in its entirety (an "Entire Termination") or only as to the portion of the Property subject to or affected by a taking (a "Partial Termination" and the portion of the Property so terminated, the "Affected Areas "), by giving Westpark written notice thereof within ten (14) business days from the date such party receives notice of such taking, and in the event of an Entire Termination this Contract shall be deemed null and void in its entirety and the parties hereto shall have no further obligations to or recourse against each other under this Contract, and in the event of a Partial Termination this Contract shall be deemed null and void with respect to the portion of the Property affected by the Affected Areas and the parties hereto shall have no further obligations to or recourse against each other under this Contract with respect to the portion of the Property affected by the Affected Areas. In the event Denton shall elect a Partial Termination as to the Affected Areas, the Purchase Price, as provided in Section 1.3 and Section 2.1, above, shall be reduced by the product of $1.385 times the square footage included in the Affected Areas. RD Wells Expansion Tract Page 15 9.9 Severability. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 9.10 Rule of Construction. The parties acknowledge that each party and its counsel has reviewed and revised this Contract, and the parties hereby agree 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. 9.11 Business Days and Time References. All references to "days" in this Contract shall be deemed for all purposes to be "business days" provided that the Closing Date as defined at Section 7.1 herein prevails over any other timeframe which may arguably affect Closing. If the Closing Date or the day of performance of any act required under this Contract falls on a Saturday, Sunday or legal holiday ( "All agencies closed" days defined by Texas State Auditor's office), then the Closing Date or the day for such performance, as the case may be, shall be the next following regular business day. References to particular times of day correspond to the time in Denton, Texas. 9.12 Designation of Reporting Person. Denton and Westpark hereby designate the Title Company as the "Reporting Person" with respect to the transaction contemplated under this Contract for purposes of complying with the regulations set forth in 26 C.F.R. Section 1.6045 - 4(e)(5). 9.13 Counterparts. This Contract may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original, but which together shall constitute one and same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Contract may also be exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be deemed to be an original signature for all purposes; provided, however, that any signature pages transmitted by electronic facsimile shall nevertheless be followed by the exchange of hard copy originals. 9.14 Waiver. The waiver by any party of a breach of any provision of this Contract shall not be deemed a continuing waiver or a waiver of any subsequent breach whether of the same or another provision of this Contract. 9.15 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Denton under this Contract are hereby delegated by Denton, pursuant to approval of this Contract by the City Council of Denton, Texas, to (i) the General Manager of Denton Municipal Electric, or his designee and (ii) the City Manager of Denton, Texas, or his designee. 9.16 Expiration of Offer. The execution of this Contract by Westpark constitutes, subject to the terms hereof, an irrevocable offer to sell the Property to Denton. Unless by 5.00 p.m., on RD Wells Expansion Tract Page 16 January 31, 2014, this Contract is accepted by Denton by action of the City Council of Denton ("Council Acceptance "), the offer of this Contract shall be automatically revoked and terminated. 9.17 Appendices. The following Appendices are attached hereto and made a part hereof: • Appendix 1 — Deed • Appendix 2 — RILMH Surface Waiver IN WITNESS WHEREOF, this Contract is hereby executed as of the Effective Date. IThe Balance of This Page Has Been Intentionally Left Blank — Signature Pages Follow.] RD Wells Expansion Tract Page 17 WESTPARK SIGNATURE PAGE k1h *1 Wc1 G7:� WESTPARK GROUP, LP, a Texas limited partnership By: Westpark Group GP, LLC, a Texas limited liability company, its general partner By: The Rayzor Company, a Texas corporation, its sole managpr By: -. &�ie Philip A. B er, Vice President Executed by Westpark on the 301h day of December, 2013. RD Wells Expansion Tract Page 18 DENTON SIGNATURE PAGE DENTON: CITY OF DENTON, a Texas municipal corporation GEORGE C. CAMPBELL, CITY MANAGER Executed by City of Denton on the day of January 2414. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: RD Wells Expansion Tract Page 19 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of an executed copy of this Contract. Title Company agrees to comply with, and be bound by, the terms and provisions of this Contract to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: REPUBLIC TITLE OF TEXAS, INC. By: Printed Name: Title: Contract receipt date: January , 2014 RD Wells Expansion Tract Page 20 APPENDIX 1 Attached hereto and made a part hereof is the Deed. NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS COUNTY OF DENTON § That Westpark Group, LP, a Texas limited partnership (herein called "Grantor"), for and in consideration of the sum of TEN AND NO /100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Denton, Texas, a Texas Home Rule Municipal Corporation (herein called "Grantee "), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, subject to the reservations set forth below, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee the real property in Denton County, Texas being particularly described on Exhibit "A ", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property "). Grantor, subject to the limitation of such reservation made herein, shall reserve, for itself, its successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property which Grantor may hold, if any. Grantor, its successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same; provided, further, however, that the parties acknowledge that the minerals held by Grantor, if any, may not constitute all of the minerals under the Property and there may be third party holders of mineral rights ( "Other Mineral Rights Holders ") and/or the minerals may be subject to one or more existing oil and gas or other mineral leases, to the extent same are valid and subsisting ( "Existing Mineral Leases ") in favor of lessees thereunder ( "Mineral Lessees "), and the forgoing waiver as to surface use shall not be construed to limit any of the existing rights of the Other Mineral Rights Holders or Mineral Lessees under the Existing Mineral Leases, nor shall Grantor have any duty or obligation to obtain any waivers or other agreements from any such Other Mineral Rights Holders or Mineral Lessees with respect to limitations on surface use or otherwise, and in no event shall Grantor have any liability or responsibility for any surface damage or injury to property or person as a result of the exploration and /or production of minerals by any Other Mineral Rights Holders or any Mineral Lessee, and Grantee shall pursue any such claims solely against such Mineral Lessee or Other Mineral Rights Holder, as applicable. As used herein, the term "minerals" shall mean all minerals of every kind, including oil, crude oil, natural gas, casing -head gas, other gas, other gaseous or liquid hydrocarbon minerals or substances, condensate, coal, ores, sulpher and other minerals of every kind and nature in and under and /or that may be produced from the Property. As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth. This Deed is executed by Grantor and accepted by Grantee subject to the following (collectively, the "Permitted Exceptions "): ;(i) the Roll -Back Taxes as hereinafter defined, (ii) the prior conveyance of all minerals associated with the Land as contained in mineral deeds recorded under Instrument Number 2011 -67794 and /or Instrument Number 2011 -67798 and /or Instrument Number 2013 - 142128 in the official property records of Denton County, Texas; (iii) the encumbrances and matters listed in Exhibit "B" hereto [attach list of all "Permitted Exceptions" as defined in the Agreement] and (iv) all municipal or other governmental zoning laws, regulations and ordinances, if any, affecting the Property, and (v) any other matters affecting the Property of public record or which would be disclosed by a physical inspection of the Property or an accurate survey of the Property. "Roll -Back Taxes" as used herein shall mean any taxes or assessments assessed against the Property as a result of any change in land usage or ownership based on the Property having been assessed under any agricultural, open -space or other special use valuation methods ( "Special Use Valuation ") to arrive at the taxable value of the Property as permitted under the Texas Tax Code. Grantor hereby assigns to Grantee, without recourse or representation, any and all claims and causes of action that Grantor may have for or related to any defects in, or injury to, the Property. TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever, subject to the Permitted Exceptions; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property, subject to the Permitted Exceptions, unto Grantee and Grantee's successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of January, 2014 WESTPARK GROUP, LP, a Texas limited partnership By: Westpark Group GP, LLC, a Texas limited liability company, its general partner By: The Rayzor Company, a Texas corporation, its sole member By: Philip A. Baker, Vice President ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the day of January, 2014, by Philip A. Baker, Vice President of The Rayzor Company, a Texas corporation, sole member of Westpark Group GP, LLC, a Texas limited liability company, general partner of Westpark Group, LP, a Texas limited partnership, on behalf of said limited partnership. GIVEN under my hand and seal of office this day of January, 2014. Notary Public, State of Texas Upon Filing Return To: The City of Denton- Engineering Attn: Paul Williamson 901 -A Texas Street Denton, TX 76209 Exhibit "A" Lot 9, in Block A, of WESTPARK ADDITION, Phase 2, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof recorded in CC# 2013 -318, Plat Records, Denton County Exhibit "B" Permitted Exceptions [Specific Exceptions as Defined in Section 3.3 to be Attached at Closing] WAIVER AND RELEASE OF SURFACE RIGHTS AGREEMENT STATE OF TEXAS § $ KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF DENTON § This Waiver and Release of Surface Rights Agreement ( "Agreement ") is made and entered into as of day of January, 2014 by RIL MINERAL HOLDINGS, LP, a Texas limited partnership ( "Mineral Owner") for the benefit of WESTPARK GROUP, LP, a Texas limited partnership ( "Westpark ") and any other successor owners of the certain tract of land described hereinbelow as the Waiver Property (any successors and assigns who own any portion of the surface of the Waiver Property is referred to as a "Surface Owner" with respect to the surface lands owned by it). RECITALS: A. Westpark is the surface owner of certain real property located in Denton County, Texas as more particularly described on Exhibit "A" (the "Waiver Property"). B. Mineral Owner is the owner of the mineral estate relating to the Waiver Property (such minerals owned by Mineral Owner being referred to as the "RILMH Minerals "). C. Westpark is selling and conveying the surface of the Waiver Property to the City of Denton, Texas (the "City ") on or about the date hereof. D. Mineral Owner, as the current holder of the RILMH Minerals, has agreed to execute this instrument to confirm and agree that Mineral Owner waives and releases its right to use the surface of the Waiver Property as provided below. AGREEMENTS: NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, Mineral Owner covenants and agrees as follows: 1. Release and Waiver. Mineral Owner waives and releases, on behalf of Mineral Owner and Mineral Owner's successors and assigns, all rights of ingress and egress and all other rights to enter upon or to use the surface of the Waiver Property or any part thereof in any way, manner or form, in connection with or related to the RILMH Minerals and/or related to exploration and /or production of the RILMH Minerals, including without limitation, use or access of the surface of the Waiver Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the RILMH Minerals, and/or related to the exploration or production of same; provided further, however, nothing herein shall prevent Mineral Owner or its successors and assigns from exploring for, developing and /or producing the RILMH Minerals in and under the Waiver Property by pooling or by directional drilling under the Waiver Property from well sites or mining sites located on other property; provided, further, however, that the parties acknowledge that the RILMH Minerals may not constitute all of the minerals under the Waiver Property and there may be third party holders of mineral rights ( "Other Mineral Rights Holders ") and /or the RILMH Minerals may be subject to one or more existing oil and gas or other mineral leases ( "Existing Mineral Leases ") in favor of lessees thereunder ( "Mineral Lessees "), and the forgoing waiver as to surface use shall not be construed to limit any of the existing rights of the Other Mineral Rights Holders or Mineral Lessees under the Existing Mineral Leases, nor shall Mineral Owner have any duty or obligation to obtain any waivers or other agreements from any such Other Mineral Rights Holders or Mineral Lessees with respect to limitations on surface use or otherwise, and in no event shall Mineral Owner have any liability or responsibility for any surface damage or injury to property or person as a result of the exploration and /or production of minerals by any Other Mineral Rights Holders or any Mineral Lessee, and all Surface Owners shall pursue any such claims solely against such Mineral Lessee or Other Mineral Rights Holder, as applicable. As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 2. Current Holder of Rights. Mineral Owner represents and warrants that Mineral Owner is the current holder of the RILMH Minerals. 3. Successors and Assigns. The acknowledgements and agreements of Mineral Owner hereunder shall (i) run with the Waiver Property for the benefit of Westpark and any future Surface Owner, specifically including, without limitation, the City, (ii) inure to the benefit of and be enforceable by Westpark as well as any future Surface Owner, specifically including, without limitation, the City, and its respective heirs, legal representatives, successors and assigns of and (iii) be binding upon and enforceable against Mineral Owner and its legal representatives, successors and permitted assigns. 4. Other /Miscellaneous. (a) Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA AND THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF RULES. THIS AGREEMENT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN COURTS OF COMPETENT JURISDICTION IN DENTON COUNTY, TEXAS. (b) Headings. The titles and article headings contained herein are for purposes of identification only and shall not be considered in construing this Agreement. (c) Notices. Any notice, report or demand by Westpark and /or Surface Owner to Mineral Owner with respect to this Agreement shall be in writing and shall be deemed to have been sufficiently given or served to Mineral Owner for all purposes upon Mineral Owner's receipt or refusal of receipt when sent by (i) registered or certified mail, return receipt requested, or (ii) personal hand delivery, or (iii) overnight courier service, to the Mineral Owner at the address shown beneath Mineral Owner's signature below. EXECUTED to be effective as of the first date hereinabove written. MINERAL OWNER: RIL MINERAL HOLDINGS, LP, a Texas limited partnership By: RIL Mineral Holdings GP, LLC, a Texas limited liability company, its general partner By: The Rayzor Company, a Texas corporation, its sole member By: Philip A. Baker, Vice - President Address: c/o The Rayzor Company 400 W. Oak, Suite 200 Denton, Texas 76201 Tel. No. (940) 387 -8711 Fax No. (940) 566 -1591 THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the day of January, 2014 by Philip A. Baker, Vice - President of The Rayzor Company, a Texas corporation, sole member of RIL Mineral Holdings GP, LLC, a Texas limited liability company, sole general partner of RIL Mineral Holdings, LP, a Texas limited partnership, on behalf of said limited partnership. Notary Public, State of Texas After Recordina Return To: c/o The Rayzor Company 400 W. Oak, Suite 200 Denton, Texas 76201 EXHIBIT "A" to Waiver and Release of Surface Rights Agreement Lot 8, in Block A, of WESTPARK ADDITION, Phase 2, an Addition to the City of Denton, Denton County, Texas, according to the Plat thereof recorded in CC# 2013 -318, Plat Records, Denton County RD Wells Lot 9 Expansion Location Map December 31, 2013 1:18,000 Override 1 HydroLines_18K 0 0.2 0.4 0.8 mi Parcels Parks and Preserves-18K 0 0.325 0.65 1.3 km ETJ- Regulatory ET County COD Railroad 5YEAR WaterBodies 7 YEAR COL Land MIN MAR PAR PVT RES SA R AGENDA DATE DEPARTMENT: AGENDA INFORMATION SHEET January 7, 2014 Denton Municipal Electric UTILITIES ACM: Howard Martin, 349 -8232 SUBJECT Consider adoption of an ordinance of the City of Denton, Texas, abandoning and vacating an Access Easement (the "Original Easement'), granted by Westpark Group, LP, to the City of Denton, Texas, pursuant to that certain Original Easement, dated December 29, 2006, and recorded as document number 2007 - 20897, Real Property Records, Denton County, Texas, said Original Easement encumbering 3.874 acres of land located in the James Perry Survey, Abstract No. 1040, Denton County, Texas, and authorizing the City Manager or his designee to accept an Alternative Access Easement (herein so called), as attached hereto and made a part hereof as Exhibit "A ", by and between the City of Denton (The "Grantee "), and Westpark Group, LP, A Texas Limited Partnership (The "Grantor "), contemplating the grant by Grantor and acceptance by Grantee of an Alternative Access Easement encumbering a 4.1880 acre tract of land, more or less, for the purchase price of ten and no /100 Dollars ($10.00), said Alternative Access Easement generally located east of Western Boulevard and south of Jim Christal Road, and located in the John Bacon Survey, Abstract No. 1541, and the James Perry Survey, Abstract No. 1040, Denton County, Texas; authorizing the expenditure of funds therefor; and providing an effective date. BACKGROUND On February 7, 2006, City Council approved a Real Estate Exchange and Purchase Agreement (Ordinance 2006 -048) with Westpark Group, LP (Owner), (subsequently corrected and ratified by Ordinance 2006 -352). A component of that transaction was the grant of a 3.874 acre Access Easement to provide a means of legal access from the northern terminus of Precision Drive (a public street) to the proposed 6.889 acre R.D. Wells electric substation fee tract (also a component of that transaction). Embodied in the terms of the Real Estate Exchange and Purchase Agreement was a provision that if the Owner was to provide the City with an Alternate Access Tract to the 6.889 acre R.D. Wells fee tract, providing ingress /egress from a public street to the R.D. Wells fee tract at a different location, then the City would substitute that Alternative Access Tract upon request by Owner. The Owner has now elected to provide the City the Alternative Access Tract contemplated in the 2006 Agreement, in the form of a 4.1880 acre Alternative Access Easement, in which the legal access to the R.D. Wells electric substation would now be from Jim Christal Road, which is supported by staff. Recommended approval authorizes the City Manager to accept the 4.1880 acre Alternative Access Easement, and formally abandons the 3.874 acre Original Easement upon City Council approval of the ordinance. OPTIONS 1. Recommend approval of the Ordinance 2. Do not recommend approval RECOMMENDATION Staff endorses approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) City Council Closed Session Briefing on the utility project September 14, 2010 City Council Closed Session Briefing on the utility project January 4, 2011 Public Utility Board Approval April 5, 2011 City Council Approval April 19th Ordinance 2011 -063 Public Utility Board Closed Session briefing July 22, 2 -013 City Council Closed Session briefing August 6, 2013 Public Utility Board Closed Session and Consent agenda approvals October 28, 2013 City Council Executive Session November 5, 2013 Public Utility Board Executive Session November 11, 2013 City Council Executive Session November 19, 2013 City Council Executive Session December 3, 2013 City Council Executive Session December 17, 2013 FISCAL INFORMATION N/A EXHIBITS 1. Location Map 2. Ordinance Prepared by: Pamela England Real Estate Specialist Real Estate and Capital Support Engineering Service Respectfully submitted: Mike Grim Executive Manager Power Legislative and Regulatory Affairs sAlegal\ our documents \ordinances \14 \alternative access draft ord.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS, ABANDONING AND VACATING AN ACCESS EASEMENT (THE "ORIGINAL EASEMENT "), GRANTED BY WESTPARK GROUP, LP, TO THE CITY OF DENTON, TEXAS, PURSUANT TO THAT CERTAIN ORIGINAL EASEMENT, DATED DECEMBER 29, 2006, AND RECORDED AS DOCUMENT NUMBER 2007 - 20897, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS, SAID ORIGINAL EASEMENT ENCUMBERING 3.874 ACRES OF LAND LOCATED IN THE JAMES PERRY SURVEY, ABSTRACT NO. 1040, DENTON COUNTY, TEXAS, AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO ACCEPT AN ALTERNATIVE ACCESS EASEMENT (HEREIN SO CALLED), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A ", BY AND BETWEEN THE CITY OF DENTON (THE "GRANTEE "), AND WESTPARK GROUP, LP, A TEXAS LIMITED PARTNERSHIP (THE "GRANTOR "), CONTEMPLATING THE GRANT BY GRANTOR AND ACCEPTANCE BY GRANTEE OF AN ALTERNATIVE ACCESS EASEMENT ENCUMBERING A 4.1880 ACRE TRACT OF LAND, MORE OR LESS, FOR THE PURCHASE PRICE OF TEN AND NO /100 DOLLARS ($10.00), SAID ALTERNATIVE ACCESS EASEMENT GENERALLY LOCATED EAST OF WESTERN BOULEVARD AND SOUTH OF JIM CHRISTAL ROAD, AND LOCATED IN THE JOHN BACON SURVEY, ABSTRACT NO. 1541, AND THE JAMES PERRY SURVEY, ABSTRACT NO. 1040, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Westpark Group, LP, a Texas Limited Partnership is the underlying fee simple owner of lands encumbered by the Original Easement; WHEREAS, the Owner, pursuant to the terms embodied in an Exchange and Purchase Agreement approved under Ordinance 2006 -352, has requested the City of Denton to abandon the Original Easement; WHEREAS, staff has reviewed the requested abandonment by Owner of the Original Easement, as provided above, and has recommended approval of such abandonment; and WHEREAS, an Alternative Access Easement has been delivered by Owner to City; WHEREAS, the City Council of the City of Denton, Texas has determined that it is in the public interest to abandon the Original Easement; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and findings contained in this ordinance are incorporated herein by reference the same as if fully set forth in this Section 1. SECTION 2. The Original Easement is hereby permanently abandoned and, subject to the reservations set forth in this ordinance, all of the City's right, title and interest in the Original Easement, as abandoned herein, is hereby released to the Owner. A certified copy of this ordinance may be recorded in the Real Property Records of Denton County, Texas to evidence this abandonment and release. SECTION 3. Notwithstanding anything to the contrary contained in this ordinance, the City of Denton hereby retains and reserves any and all easements, rights of way and any other rights or interests, other than the Original Easement, whether acquired, obtained, owned or claimed by the City of Denton or public, by, through or under conveyance, dedication by plat or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Original Easement may cover, encumber, include cross or overlap. SECTION 4. The City Manager, or his designee, is hereby authorized to accept the Alternative Access Easement, by and between the City of Denton, as Grantee and Westpark Group, LP, as Grantor, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price of $10.00. SECTION 5. The City Manager is hereby authorized to make expenditures as set forth in the Alternative Access Easement. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014 ATTEST: JENNIFER WALTERS, CITY SECRETARY :_ APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: NA MARK A. BURROUGHS, MAYOR ALTERNATIVE ACCESS EASEMENT NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § THAT, WESTPARK GROUP, LP (the "GRANTOR ") for and in consideration of Ten Dollars ($ 10.00), and other good and valuable consideration, to GRANTOR in hand paid by the CITY OF DENTON, a municipal corporation, which is located in Denton County, Texas, and whose mailing address is 215 E. McKinney, Denton, Texas 76201 ( "GRANTEE ") has granted, sold and conveyed and by these presents does grant, sell and convey unto GRANTEE an access easement (the "ACCESS EASEMENT ") in, over, under, through, across and along all that certain lot, tract, or parcel of land situated in Denton County, Texas, and more particularly described in Exhibit "A" and illustrated in Exhibit "B ", both attached hereto and incorporated into this document by reference (the "EASEMENT PROPERTY "). It is agreed that GRANTEE shall have the right to remove from the EASEMENT PROPERTY such fences, buildings and other obstructions as may now be found upon said EASEMENT PROPERTY for the purpose of access in, along, upon and across said premises. GRANTEE, its agents, employees, workmen and representatives shall have ingress, egress, and regress in, along, upon and across said premises for the purpose of access including the right, but not the obligation, to establish and maintain road improvements ancillary to passage (collectively, the "PERMITTED USES "). This ACCESS EASEMENT grant is specifically provided as means of access to the 6.889 acre tract conveyed to GRANTEE by the instrument recorded in the Real Property Records of Denton County, Texas as Document No. 2007 - 20896. GRANTEE shall have no right to fence or enclose such EASEMENT PROPERTY or to use it for any purpose other than the PERMITTED USES set forth above. GRANTOR and GRANTEE acknowledge and agree that this grant of ACCESS EASEMENT is being provided by GRANTOR as an Alternative Access Tract to the 6.889 acre electric substation tract, in a location acceptable to GRANTEE. GRANTOR AND GRANTEE further agree that this ACCESS EASEMENT hereby replaces for all purposes the access easement and all rights granted to GRANTEE by that certain easement instrument recorded in the Real Property Records of Denton County, Texas as Document No. 2007 -20897 (that record instrument, the "ORIGINAL EASEMENT "). GRANTOR and GRANTOR further agree that this ACCESS EASEMENT is evidence of the parties' intent to release, abandon and terminate for all purposes the ORIGINAL EASEMENT, and GRANTEE does hereby expressly terminate, release and abandon for all purposes all of GRANTEE'S rights and interests in and to the ORIGINAL EASEMENT, such termination, release and abandonment becoming effective three years from Alternative Access Easement 1 of 4 the Effective Date hereof ( "FUTURE RELEASE DATE "). GRANTOR and GRANTEE agree that the foregoing paragraph should be construed to allow for GRANTEE's continued use of the land encumbered by that ORIGINAL EASEMENT until the FUTURE RELEASE DATE, but all rights under the ORIGINAL EASEMENT shall automatically and absolutely cease and become void and of no further effect on the FUTURE RELEASE DATE, without the need for any further acknowledgment, written confirmation, recorded document or other act or instrument. GRANTOR, for itself and its successors and assigns, expressly reserves the right to occupy and use the above described EASEMENT PROPERTY for all other purposes that will not materially interfere with the GRANTEE'S full enjoyment of the PERMITTED USES and its exercise of its rights hereunder, including (i) the right of passage over the EASEMENT PROPERTY, and (ii) the right, but not the obligation, to erect or maintain fencing along either side of the EASEMENT PROPERTY, (iii) the right to erect and maintain gates and associated fencing not more than 8 feet high across such EASEMENT PROPERTY, provided that gates or openings 12 feet wide or more are installed therein (collectively, "GRANTOR FACILITIES "), to provide GRANTEE reasonable access to all parts of such EASEMENT PROPERTY. GRANTEE, at GRANTEE'S sole cost and expense, shall have the right to trim or remove trees and shrubbery on the EASEMENT PROPERTY to the extent necessary, in the reasonable judgment of GRANTEE, to prevent possible interference with the PERMITTED USES or to remove possible hazards thereto, together with the right to put gates in existing fences within such EASEMENT PROPERTY; provided further that GRANTEE shall promptly remove from the EASEMENT PROPERTY tree limbs, cuttings and other debris resulting from GRANTEE'S operations or occupancy of the EASEMENT PROPERTY pursuant to its rights under this EASEMENT. The ACCESS EASEMENT as provided for herein is made on an "AS IS" basis, and GRANTEE expressly acknowledges that, in consideration of the agreements of GRANTOR herein, GRANTOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW as to the condition or suitability of the EASEMENT PROPERTY for GRANTEE'S PERMITTED USES hereunder. GRANTOR and GRANTEE acknowledge and agree that at the execution date hereof building structures do not exist on the EASEMENT PROPERTY. GRANTEE shall have the right to prevent the construction of future buildings, structures, signs and obstructions on the EASEMENT PROPERTY, and if any such buildings, structures, signs or obstructions are hereafter constructed or permitted by GRANTOR to exist within the EASEMENT PROPERTY without prior written consent of GRANTEE, then GRANTEE shall have the right to remove the same and GRANTOR agrees to pay to GRANTEE the reasonable actual cost of such removal. The payment of consideration herein made includes any damage or loss to crops sustained in the future by GRANTOR resulting from the GRANTEE'S PERMITTED USES in accordance with the terms of the EASEMENT. The EASEMENT shall constitute a covenant running with the land for the benefit of GRANTEE, its successors and assigns. The rights hereby granted may not be assigned, either in whole or in part, without GRANTOR'S prior written consent, which consent shall not be unreasonably withheld. Alternative Access Easement 2 of 4 In the event that GRANTOR provides and or facilitates an Alternative Access Tract to the 6.889 acre electric substation tract through other lands, in a location acceptable to GRANTEE, then GRANTEE, at GRANTEE'S sole cost and expense, shall petition for the abandonment of the EASEMENT contemplated herein and substitute the Alternative Access Tract within the body of the grant herein, such substitution shall not be unreasonably withheld. TO HAVE AND TO HOLD the above EASEMENT unto GRANTEE, its successors and assigns, and GRANTOR hereby warrants and forever agrees to defend the above described EASEMENT unto GRANTEE, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or under GRANTOR, and not otherwise, subject, however, to the rights of the owner or owners of any existing easements or other encumbrances affecting the EASEMENT PROPERTY herein described. Date "). WITNESS THE EXECUTION HEREOF as the day of January, 2014 ( "Effective GRANTOR: WESTPARK GROUP, LP, a Texas limited partnership By: Westpark Group GP, LLC, a Texas limited liability company, its general partner By: The Rayzor Company, a Texas corporation, its sole member i��' By: K� Philip A. V ker, Vice President ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the day of December, 2013 by Philip A. Baker, Vice President of the Rayzor Company, a Texas corporation, sole member of the Westpark Group GP, LLC, a Texas limited liability company, the general partner of Westpark Group, LP, a Texas limited partnership, on behalf of said limited partnership. DEANNAMCCLESKEY My COMMISSION EXPIRES March te,2ota Notary Public, State of Texas Alternative Access Easement 3of4 BY ITS EXECUTION HEREOF GRANTEE HEREBY ACCEPTS THIS ALTERNATIVE ACCESS EASEMENT AND EXPRESSLY RELEASES, ABANDONS AND TERMINATES ITS INTEREST IN AND TO THE ORIGINAL EASEMENT, PURSUANT TO THE TERMS HEREIN: Accepted this day of January 2014 for the City of Denton, Texas (Ordinance No. CITY OF DENTON, TEXAS M GEORGE C. CAMPBELL, City Manager Date: ATTEST: JENNIFER WALTERS, City Secretary M 2014 Date: 2014 APPROVED AS TO LEGAL FORM: ANITA BURGESS, City Attorney By: Date: 112— .2014 Alternative Access Easement 4of4 EXHIBIT "A" DESCRIPTION OF THE EASEMENT PROPERTY Alternative Access Easement EXHIBIT "A" Access Easement for DME to Wells Subdivision DESCRIPTION OF ACCESS EASEMENT SITUATED in the City of Denton, Denton County, Texas, and being a strip of land across parts of LOTS 3 and 13, in BLOCK A, WESTPARK ADDITION, Phase 2, as shown on Conveyance Plat thereof recorded in Denton County Clerk's (Clerk's) File No. 2013 -318, and said strip being more fully described as follows: BEGINNING at the most southerly southwest corner of said Lot 3, and and "L" corner in Lot 5, in said Block A, from which point an "Arthur Surveying Company" capped 5/8" iron rod found in place for the northwest corner of said Lot 1, Block 1, R. D. Wells Interchange, as shown on plat thereof recorded in Cabinet Y, Page 619, of the Denton County Plat Records, bears North 89 degrees West, 34.45 feet, said beginning point being also in the east line of that certain railroad spur easement referenced in Confirmation and Restatement of Easement Rights recorded under Clerk's File No. 2013 - 137158; THENCE North 1 degree, 09 minutes, 35 seconds East with the west line of said Lot 3 an east line of said Lot 5 and said east line of rail spur easement, 143.0 feet; THENCE South 88 degrees, 50 minutes, 20 seconds East, across a portion of said Lot 3, 35.0 feet; THENCE North 1 degree, 09 minutes, 35 seconds East and parallel with and 35 feet east from the east line of said railroad spur easement and the west line of said Lot 3 and east lines of Lots 5, 413, and 4A, in said Block A, passing the most northerly north line of said Lot 3 and a south line of said Lot 13, at 3473.18 feet passing the north line of said Lot 13 and the south line of a 25 foot wide right -of -way dedication by said plat of Westpark Addition, continuing in all 3498.18 feet to a point in the existing occupied south line of Jim Christal Road (approximately 60 foot wide occupied right -of -way at this point); THENCE North 89 degrees, 23 minutes, 35 seconds East with said existing occupied south line of Jim Christal Road, 71.51 feet; THENCE South 15 degrees, 32 minutes, 25 seconds West, again crossing said north line of Lot 13 and south line of dedicated right -of -way, 70.11 feet to the beginning of a curve whose center bears North 74 degrees, 27 minutes, 35 seconds West, 156.84 feet; THENCE southerly with said curve, a distance of 33.42 feet to the end of said curve and the beginning of a second curve whose center bears South 62 degrees, 14 minutes, 58 seconds East, 1 17.10 feet; THENCE southerly with said second curve, a distance of 54.35 feet to the end of said curve; THENCE South 1 degree, 09 minutes, 35 seconds West and parallel with and 65.0 feet east from said east line of rail spur easement across a part of said Lot 13, to the northwest corner of said Lot 12, continuing with an east line of said Lot 13 and west line of said Lot 12, passing the most northerly northeast corner of said Lot 3 and continuing with the most westerly east line of said Lot 3 and west lines of said Lot 12 and Lots 1 1 and 10, in all 3348.81 feet to the southwest corner of said Lot 10 and an "L" corner in said Lot 3, from which point an "Arthur Surveying Company" capped 5/8" iron rod found in place bears South 89 degrees, 0.52 foot; THENCE North 88 degrees, 50 minutes, 20 seconds West with the most southerly south line of said Lot 3 and the most northerly south line of said Lot 10, 456.01 feet to the most southerly northeast corner of said Lot 3 and the northwest corner of Lot 9, in said Block A; THENCE South 1 degree, 20 minutes, 40 seconds West with the most easterly east line of said Lot 3 and the west line of said Lot 9, 143.0 feet to a p -k nail found in place for the southeast corner of said Lot 3 and the northeast corner of said Lot 1, Block 1, R. D. Wells Interchange; page 2 THENCE North 88 degrees, 50 minutes, 20 seconds West with the most southerly south line of Lot 3 and the north line of said Lot 1, 520.55 feet to the PLACE OF BEGINNING, and containing 4.1880 acres. Bearings used herein are based on Texas Coordinate System, North Central Zone, NAD 83. This description prepared to accompany a survey map of the described parcel. GERRY CURTIS ASSOCIATES, INC., Surve -ors er' A. 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O R $l v e gig$ �$ �a g 7g z t L ( ( y Alternative Access Easement Location Map December 31, 2013 1:18,000 Override 1 SAR 0 0.2 0.4 0.8 mi Override 1 HydroLines_18K 0 0.325 0.65 1.3 km Parcels Parks and Preserves 18K ETJ- Regulatory ET County COD Railroad 5YEAR WaterBodies 7 YEAR COL Land MIN MAR PAR PVT RES AGENDA DATE DEPARTMENT: ACM: SUBJECT AGENDA INFORMATION SHEET January 7, 2014 Materials Management Bryan Langley i -A Coit�sei�,.0 .nru..A Questions concerning this acquisition may be directed to Scott Payne at 349 -7836 Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of Excess Liability Insurance Coverage for the City of Denton, through the City's sole broker of record, McGriff, Seibels, and Williams of Texas, Inc., and in accordance with Chapter 252.024 of the Texas Local Government Code such coverage is exempt from the requirements of competitive bidding; and providing an effective date (File 5454 awarded to Starr Indemnity in the one (1) year not -to- exceed amount of $208,000 and a three (3) year not -to- exceed amount of $688,480). BACKGROUND The City of Denton currently has a combined excess insurance policy that includes all liability exposures (general, auto, public officials, law enforcement, and employment practices), as well as workers' compensation, through Star Insurance Company. The City has a $500,000 per occurrence Self- Insured Retention (SIR) under this policy with insurance coverage up to $5,000,000 on all liability exposures, and up to the statutory benefit levels under workers' compensation. Although the City is self - funded for our liability and workers' compensation exposures, and relies on the immunities and damage caps contained in the Texas Tort Claims Act (TTCA), there are several areas that do not fall under the TTCA and therefore the City has potentially unlimited liability: • Workers' Compensation — although the City has had no workers' compensation claims that have exceeded $500,000, the City is still liable for all reasonable and necessary medical expenses, indemnity benefits, impairment benefits, and other related expenses if an employee is injured on the job while in the course and scope of employment. There is no cap on the potential costs of a workers' compensation claim. • Law Enforcement Liability —the City has potentially no limits for liability claims alleging violations of Civil Rights due to police activity. These claims could stem from charges of wrongful arrest/detention, unlawful search and seizure, deprivation of Civil Rights, and excessive force. As with workers' compensation, the City has had a good claim history as it relates to this type of exposure. Agenda Information Sheet January 7, 2014 Page 2 BACKGROUND, CONTINUED • Electric Utility Operations —by definition, the operation of a public utility by a municipality, in this case the operations of Denton Municipal Electric (DME), are considered to be proprietary functions and are excluded from any immunities or damage caps provided under the TTCA. Any operation of DME that resulted in property damage, injury or death could have the potential for a claim with unlimited liability. Employment Practices Liability —in many cases these types of claims contain an allegation that the Civil Rights of an employee, or of a prospective employee, were violated, so no limit on liability applies. Examples of these types of claims could include discrimination, harassment, violations of the Americans with Disabilities Act (ADA), and /or violations of the Family Medical Leave Act (FMLA). Although these claims are not commonplace, the City recently settled an employment related claim with a former employee. Because of these exposures, the City has purchased the excess policy to provide an added layer of protection to our self - funded program. We have also been fortunate to find a single excess policy that covers both workers' compensation and liability exposures within the same policy. Unfortunately, Star has withdrawn its public entity excess insurance program from the market so the City has been forced to seek coverage elsewhere. Our expiring premium with Star Insurance Company was $235,137. INSURANCE SOLICITATION Given the complexities of this insurance product solicitation as described in greater detail below, and given that Chapter 252.024 of the Texas Local Government Code provides that such products are exempt from the requirements of competitive bidding, the City utilized the services of our sole broker of record, McGriff, Seibels, and Williams (McGriff), to assist us in procuring these coverages without going through the Request for Proposal (RFP) process. Over the past six months, McGriff has been actively engaged in the global excess market on behalf of all their Texas public entity clients. Unfortunately, no insurance carrier in the current market offers a combined program that includes both the excess workers' compensation and the excess liability coverages on one policy. Additionally, the current excess insurance market has "hardened" significantly which means that annual premiums for this product have increased significantly and many insurance carriers have left the market entirely. Those insurance carriers who remain in the market are seeking higher SIR's, especially for public entities with fire and law enforcement exposures. Also, underwriters for these excess insurance companies are requiring much more information from a prospective insured than they have in the past. As a result, McGriff received responses from three excess liability insurance companies (excluding excess workers' compensation carriers): Agenda Information Sheet January 7, 2014 Page 3 INSURANCE SOLICITATION, CONTINUED Starr Indemnity Insurance Company provided two options: • $330,400 for a $500,000 SIR; and • $208,000 for a $500,000 SIR on Employment Practices Liability only and $750,000 on all other liability exposures Genesis Insurance Company provided one option: • $297,964 for a $500,000 SIR Ironshore Insurance Company provided one option: • $288,503 for a $500,000 SIR All terms, conditions, and policy limits proposed by all three companies meet or exceed the City's current policy. A detailed analysis of the proposals from Starr Indemnity, Genesis, and Ironshore can be found in Exhibit 1. Based on the evaluation of the proposals, both staff and our broker of record, McGriff, recommend the purchase of excess liability insurance from Starr Indemnity Insurance Company (no connection with previous insurance carrier) with the $500,000 Employment Practices Liability SIR and $750,000 SIR for all other liability exposures, for an annual premium of $208,000. This combination of premium and SIR proposed by Starr Indemnity represent the lowest overall upfront total cost to the City. The increase in SIR to $750,000 for all liability exposures, except for Employment Practices, does mean that the City could take on an additional $250,000 in potential claims cost in those areas. However, the areas of general liability (non -DME), auto liability (non -DME), and most public officials liability are limited to a maximum of $500,000 under the TTCA so the City is not taking on much additional risk in those areas. The City does retain the $500,000 SIR for Employment Practices Liability. By moving to the higher SIR the City can save approximately $80,000 per year in premium when compared with the lowest other premium offered at that same SIR level ( Ironshore - $288,503). RECOMMENDATION Staff recommends awarding a one -year initial contract to Starr Indemnity Company for Excess Liability insurance, with options for two additional one -year renewals. Starr Indemnity is an A rated carrier by AM Best with a financial strength rating of XIV ($1,500,000,000+ in assets). PRINCIPAL PLACE OF BUSINESS Starr Indemnity Company is headquartered in New York, New York. Agenda Information Sheet January 7, 2014 Page 4 ESTIMATED SCHEDULE OF PROJECT Excess liability insurance coverage will be effective January 1, 2014 for an initial one (1) year period. The City of Denton shall have the option to renew for two (2) additional one (1) year periods. FISCAL INFORMATION Excess liability insurance is funded out of the Risk Retention Fund 4860002.6719. FXHTUTTC Exhibit 1: Excess Liability and Workers' Compensation Evaluation Document Exhibit 2: Marketing List Exhibit 3: Recommendation Letter from Broker Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance I -AIS -FILE 5454 Exhibit 1 City of Denton 2014 Excess Liability "d Workers' Compensation Comparison x..ss iablllty ...- & Hlllgh- In Yellow^ ®®®®®®®®®® ----- ---------- - - - - -- ----------- ----- - - - - -- ----- - - - - -- ----- ®®®®®®®®®® - - - - -- ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ®® ®® ® ® ® ® ® ® ® ® ®® ----- - - - - -- ®®®®®®®®®®® ----- - - - - -- ----------- ----- - - - - -- Exhibit 2 Marketing List 2013 -14 Excess Liability and Workers' Compensation Market Response Arch / pY / %jd�IIlI I State National Decline ACE lj Safety National � Midwest Employers Casualty Quoted — XS WC — 3 options Genesis Quoted — XS Casualty Starr Indemnity Quoted — XS Casualty — 2 options Ironshore Quoted — XS Casualty Brit Decline Exhibit 2 Marketing List 2013 -14 Excess Liability and Workers' Compensation Market Response Arch Decline — Minimum $Im SIR Police & Fire NY Magic Decline — Minimum $Im SIR Police & Fire State National Decline ACE Indicated SIR attachment around $7504)000 All Other /$1,000,000 Police & Fire with a minimum premium of $200,000 Safety National Quoted — XS WC — 2 options Midwest Employers Casualty Quoted — XS WC — 3 options Genesis Quoted — XS Casualty Starr Indemnity Quoted — XS Casualty — 2 options Ironshore Quoted — XS Casualty Brit Decline M S W i1i'i'l,I'; i,';d, 3 ��\1\4!1 Exhibit 3 MCGRIFF, SEIBELS & WILLIAMS OF TEXAS, INC. 5080 Spectrum Drive, Suite 900E, Addison, TX 75001 Tel (469) 232 -2100 Fax (469) 232 -2101 December 20, 2013 Mr. Scott Payne Risk Management Department City of Denton 601 E. Hickory Denton, TX 76205 Re: Excess Liability and Workers' Compensation Insurance Coverage Scott, Thank you for the opportunity to assist the City of Denton in placing your Excess Liability and Excess Workers' Compensation Insurance. With the challenges that are being faced in the Excess market for entities with police and fire employees, the program was competitively marketed to the global insurance marketplace to obtain the best coverage available at the best price. The City's current insurance carrier for Excess Liability and Excess Workers' Compensation, Star Insurance Company, has withdrawn its Public Entity Excess program from the market and will no longer be writing Excess Liability and Excess Workers' Compensation through that program. The City's current policy will remain valid until expiration but will not be renewed. The Star program offered several beneficial terms including lower rates, no audits, and combined lines of coverage into one policy form, that are not currently available in the insurance marketplace. Additionally, the current Excess market has hardened significantly with increased rates and increased self - insured retention requirements, especially for public entities with police and fire fighter exposures. Over the last six months, McGriff has been actively engaged in the global Excess Insurance market, soliciting quotes and negotiating with carriers on behalf of our Texas Public Entity clients to obtain the best terms and pricing currently available. Through this marketing process, ten (10) carriers were approached with five (5) carriers responding with competitive options. Attached is a spreadsheet detailing the markets approached and responses. The proposals received were compared for coverage terms, conditions and premiums. Please see attached the comparison spreadsheet. Excess Liability and Workers' Compensation No carrier in the current market offers a combined program that includes the Excess Liability lines and Excess Workers' Compensation on one policy form. The City received quotes from Safety National Corporation and Midwest Employers for Excess Workers' Compensation, and quotes from Starr Indemnity, Genesis, and Ironshore for Excess Liability. Exhibit 3 Both Safety National and Midwest offered Excess Workers' Compensation quotes that meet City specifications, with both carriers providing a $500,000 SIR option that maintains the City's current SIR, as well as higher SIR options with reduced premium pricing. However, from the best priced options received, the City would only save $11,000 in premium to increase the retention by $100,000. Workers' Compensation exposures present significant potential for high cost losses and maintaining the $500,000 SIR is determined to be the most advantageous for the City. After thorough review, McGriff recommends the City purchase Excess Workers' Compensation insurance from Midwest Employers Casualty with a $500,000 SIR for an annual premium of $91,996. For Excess Liability, the lowest cost proposal received is from Starr Indemnity with a $750,000 SIR (except a $500,000 SIR for Employment Practices) for an annual premium of $208,000. The lowest cost proposal to maintain a $500,000 SIR on all lines was received from Ironshore for an annual premium of $288,503. Due to statutory immunities and limitations on liability, the City's primary exposures to claims exceeding $500,000 arise from Public Officials, Law Enforcement, and Employment Practices liabilities, however as stated, the Starr Indemnity $750,000 SIR proposal limits the Employment Practices retention to $500,000. Upon analysis of the City's claims experience and evaluation of the quote options received, the Starr Indemnity $750,000 SIR option is determined to be the lowest and most advantageous proposal available. McGriff recommends the City purchase Excess Liability insurance from Starr Indemnity with a $750,000 SIR/$500,000 SIR for Employment Practices for an annual premium of $208,000. Thank you for the opportunity to work with the City of Denton. Please let us know if you have any questions regarding these evaluations. Sincerely,,,,,,,,: ' V `4 Johnny Fontenot, CPCU, ARM, AIC Executive Vice President ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF EXCESS LIABILITY INSURANCE COVERAGE FOR THE CITY OF DENTON, THROUGH THE CITY'S SOLE BROKER OF RECORD, MCGRIFF, SEIBELS AND WILLIAMS OF TEXAS, INC., AND IN ACCORDANCE WITH CHAPTER 252.024 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH COVERAGE IS EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5454 AWARDED TO STARR INDEMNITY IN THE ONE (1) YEAR NOT -TO- EXCEED AMOUNT OF $208,000 AND A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $688,480). WHEREAS, Section 252.024 of the Local Government Code provides that a municipality may select a licensed insurance broker as the sole broker of record to obtain proposals and coverages for excess or surplus insurance that provides necessary coverage and adequate limits of coverage in structured layered excess coverages in all areas of risk requiring special consideration, including public official liability, police professional liability, and airport liability; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 5454 Starr Indemnity $688,480 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5454 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014 MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY IC • APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 5 -ORD -File 5454 AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 Questions concerning this acquisition may be directed DEPARTMENT: Materials Management to Scott Payne at 349 -7836 ACM: Bryan Langley �_A SUBJECT Consider adoption of an ordinance of the City of Denton, Texas providing for, authorizing, and approving the purchase of Excess Workers' Compensation Insurance Coverage for the City of Denton, through the City's sole broker of record, McGriff, Seibels, and Williams of Texas, Inc., and in accordance with Chapter 252.024 of the Texas Local Government Code such coverage is exempt from the requirements of competitive bidding; and providing an effective date (File 5455 awarded to Midwest Employers Casualty Company in the one (1) year not -to- exceed amount of $91,996 and a three (3) year not -to- exceed amount of $304,408). BACKGROUND The City of Denton currently has a combined excess insurance policy that includes all liability exposures (general, auto, public officials, law enforcement, and employment practices), as well as workers' compensation, through Star Insurance Company. The City has a $500,000 per occurrence Self- Insured Retention (SIR) under this policy with insurance coverage up to $5,000,000. Although the City is self - funded for our liability and workers' compensation exposures, and relies on the immunities and damage caps contained in the Texas Tort Claims Act (TTCA), there are several areas that do not fall under the TTCA and therefore the City has potentially unlimited liability: • Workers' Compensation — although the City has had no workers' compensation claims that have exceeded $500,000, the City is still liable for all reasonable and necessary medical expenses, indemnity benefits, impairment benefits, and other related expenses if an employee is injured on the job while in the course and scope of employment. There is no cap on the potential costs of a workers' compensation claim. • Law Enforcement Liability —the City has potentially no limits on liability for claims alleging violations of Civil Rights due to police activity. These claims could stem from charges of wrongful arrest/detention, unlawful search and seizure, deprivation of Civil Rights, and excessive force. As with workers' compensation, the City has had a good claim history as it relates to this type of exposure. Agenda Information Sheet January 7, 2014 Page 2 BACKGROUND, CONTINUED • Electric Utility Operations —by definition, the operation of a public utility by a municipality, in this case the operations of Denton Municipal Electric (DME), are considered to be proprietary functions and are excluded from any immunities or damage caps provided under the TTCA. Any operation of DME that resulted in property damage, injury or death could have the potential for a claim with unlimited liability. • Employment Practices Liability —in many cases these types of claims contain an allegation that the Civil Rights of an employee, or of a prospective employee, were violated, so no limit on liability applies. Examples of these types of claims could include discrimination, harassment, violations of the Americans with Disabilities Act (ADA), and /or the Family Medical Leave Act (FMLA). Although these claims are not commonplace, the City recently settled an employment related claim with a former employee. Because of these exposures, the City has purchased the excess policy to provide an added layer of protection to our self - funded program. We have also been fortunate to find a single excess policy that covers both workers' compensation and liability exposures within the same policy. Unfortunately, Star has withdrawn its public entity excess insurance program from the market so the City has been forced to seek coverage elsewhere. Our expiring premium with Star Insurance Company was $235,137. INSURANCE SOLICITATION Given the complexities of this insurance product solicitation as described in greater detail below, and given that Chapter 252.024 of the Texas Local Government Code provides that such products are exempt from the requirements of competitive bidding, the City utilized the services of our sole broker of record, McGriff, Seibels, and Williams (McGriff), to assist us in procuring these coverages without going through the Request for Proposal (RFP) process. Over the past six months, McGriff has been actively engaged in the global excess market on behalf of all their Texas public entity clients. Unfortunately, no insurance carrier in the current market offers a combined program that includes both the excess workers' compensation and the excess liability coverages on one policy. Additionally, the current excess insurance market has "hardened" significantly which means that annual premiums for this product have increased significantly and many insurance carriers have left the market entirely. Those insurance carriers who remain in the market are seeking higher SIR's, especially for public entities with fire and law enforcement exposures. Also, underwriters for these excess insurance companies are requiring much more information from a prospective insured than they have in the past. As a result, McGriff received responses from two excess workers' compensation insurance companies: Agenda Information Sheet January 7, 2014 Page 3 INSURANCE SOLICITATION, CONTINUED Safety National provided two options: • $105,595 for a $750,000 SIR; and • $169,250 for a $500,000 SIR Midwest Employers Casualty Company (MECC) provided three options: • $91,996 for a $500,000 SIR; • $85,130 for a $550,000 SIR; and • $80,512 for a $600,000 SIR A detailed analysis of the proposals from Safety National and MECC can be found in Exhibit 1. Based on the evaluation of the proposals, both staff and our broker of record, McGriff, recommend the purchase of excess workers' compensation insurance from Midwest Employers Casualty Company (MECC) with the $500,000 SIR, for an annual premium of $91,996. This combination of premium and SIR proposed by MECC does not represent the lowest overall upfront total cost to the City. However, the premium savings of approximately $6,800 to take on an additional $50,000 in potential risk to move to a $550,000 SIR, or the premium savings of approximately $11,500 to take on an additional $100,000 in potential risk to move to a $600,000, does not seem to be in the best interest of the City, since workers' compensation claims do not have any type of cap on total claim cost. RECOMMENDATION Staff recommends awarding a one (1) -year initial contract to MECC for Excess Liability insurance, with options for two (2) additional one -year renewals. MECC is an A+ rated carrier by AM Best with a financial strength rating of XV ($2,000,000,000+ in assets). PRINCIPAL PLACE OF BUSINESS MECC is headquartered in Chesterfield, Missouri. ESTIMATED SCHEDULE OF PROJECT Excess workers' compensation insurance coverage will be effective January 1, 2014, for an initial one (1) year period. The City of Denton shall have the option to renew for two (2) additional one (1) year periods. FISCAL INFORMATION Excess workers' compensation insurance is funded out of the Risk Retention Fund 4860002.6719. Agenda Information Sheet January 7, 2014 Page 4 EXHIBITS Exhibit 1: Excess Liability and Workers' Compensation Evaluation Document Exhibit 2: Marketing List Exhibit 3: Recommendation Letter from Broker Respectfully submitted: Chuck Springer, 349 -8260 Director of Finance I -AIS -FILE 5455 Exhibit 1 City of Denton 2014 Exceaa Liability a,d Workers' Compensation Comparison ,W-- Comp 0.— HIghIlgMetl In Yellow' ®®®®®®®®®® ----- ---------- - - - - -- ----- - - - - -- ----- - - - - -- ----------- ®®®®®®®®®® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ® ®® ®® ® ® ® ® ® ® ® ® ®® ----- ®®®®®®®®®®® - - - - -- ----- ----------- - - - - -- ----- ®®®®®®®®®® - - - - -- Exhibit 2 Marketing List 2013 -14 Excess Liability and Workers' Compensation Market Response Arch / pY / %jd�IIlI I State National Decline ACE lj Safety National � Midwest Employers Casualty Quoted — XS WC — 3 options Genesis Quoted — XS Casualty Starr Indemnity Quoted — XS Casualty — 2 options Ironshore Quoted — XS Casualty Brit Decline Exhibit 2 Marketing List 2013 -14 Excess Liability and Workers' Compensation Market Response Arch Decline — Minimum $Im SIR Police & Fire NY Magic Decline — Minimum $Im SIR Police & Fire State National Decline ACE Indicated SIR attachment around $7504)000 All Other /$1,000,000 Police & Fire with a minimum premium of $200,000 Safety National Quoted — XS WC — 2 options Midwest Employers Casualty Quoted — XS WC — 3 options Genesis Quoted — XS Casualty Starr Indemnity Quoted — XS Casualty — 2 options Ironshore Quoted — XS Casualty Brit Decline M S W i1i'i'l,I'; i,';d, 3 ��\1\4!1 Exhibit 3 MCGRIFF, SEIBELS & WILLIAMS OF TEXAS, INC. 5080 Spectrum Drive, Suite 900E, Addison, TX 75001 Tel (469) 232 -2100 Fax (469) 232 -2101 December 20, 2013 Mr. Scott Payne Risk Management Department City of Denton 601 E. Hickory Denton, TX 76205 Re: Excess Liability and Workers' Compensation Insurance Coverage Scott, Thank you for the opportunity to assist the City of Denton in placing your Excess Liability and Excess Workers' Compensation Insurance. With the challenges that are being faced in the Excess market for entities with police and fire employees, the program was competitively marketed to the global insurance marketplace to obtain the best coverage available at the best price. The City's current insurance carrier for Excess Liability and Excess Workers' Compensation, Star Insurance Company, has withdrawn its Public Entity Excess program from the market and will no longer be writing Excess Liability and Excess Workers' Compensation through that program. The City's current policy will remain valid until expiration but will not be renewed. The Star program offered several beneficial terms including lower rates, no audits, and combined lines of coverage into one policy form, that are not currently available in the insurance marketplace. Additionally, the current Excess market has hardened significantly with increased rates and increased self - insured retention requirements, especially for public entities with police and fire fighter exposures. Over the last six months, McGriff has been actively engaged in the global Excess Insurance market, soliciting quotes and negotiating with carriers on behalf of our Texas Public Entity clients to obtain the best terms and pricing currently available. Through this marketing process, ten (10) carriers were approached with five (5) carriers responding with competitive options. Attached is a spreadsheet detailing the markets approached and responses. The proposals received were compared for coverage terms, conditions and premiums. Please see attached the comparison spreadsheet. Excess Liability and Workers' Compensation No carrier in the current market offers a combined program that includes the Excess Liability lines and Excess Workers' Compensation on one policy form. The City received quotes from Safety National Corporation and Midwest Employers for Excess Workers' Compensation, and quotes from Starr Indemnity, Genesis, and Ironshore for Excess Liability. Exhibit 3 Both Safety National and Midwest offered Excess Workers' Compensation quotes that meet City specifications, with both carriers providing a $500,000 SIR option that maintains the City's current SIR, as well as higher SIR options with reduced premium pricing. However, from the best priced options received, the City would only save $11,000 in premium to increase the retention by $100,000. Workers' Compensation exposures present significant potential for high cost losses and maintaining the $500,000 SIR is determined to be the most advantageous for the City. After thorough review, McGriff recommends the City purchase Excess Workers' Compensation insurance from Midwest Employers Casualty with a $500,000 SIR for an annual premium of $91,996. For Excess Liability, the lowest cost proposal received is from Starr Indemnity with a $750,000 SIR (except a $500,000 SIR for Employment Practices) for an annual premium of $208,000. The lowest cost proposal to maintain a $500,000 SIR on all lines was received from Ironshore for an annual premium of $288,503. Due to statutory immunities and limitations on liability, the City's primary exposures to claims exceeding $500,000 arise from Public Officials, Law Enforcement, and Employment Practices liabilities, however as stated, the Starr Indemnity $750,000 SIR proposal limits the Employment Practices retention to $500,000. Upon analysis of the City's claims experience and evaluation of the quote options received, the Starr Indemnity $750,000 SIR option is determined to be the lowest and most advantageous proposal available. McGriff recommends the City purchase Excess Liability insurance from Starr Indemnity with a $750,000 SIR/$500,000 SIR for Employment Practices for an annual premium of $208,000. Thank you for the opportunity to work with the City of Denton. Please let us know if you have any questions regarding these evaluations. Sincerely,,,,,,,,: ' V `4 Johnny Fontenot, CPCU, ARM, AIC Executive Vice President ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE PURCHASE OF EXCESS WORKERS; COMPENSATION INSURANCE COVERAGE FOR THE CITY OF DENTON, THROUGH THE CITY'S SOLE BROKER OF RECORD, MCGRIFF, SEIBELS AND WILLIAMS OF TEXAS, INC., AND IN ACCORDANCE WITH CHAPTER 252.024 OF THE TEXAS LOCAL GOVERNMENT CODE SUCH COVERAGE IS EXEMPT FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 5455 AWARDED TO MIDWEST EMPLOYERS CASUALTY IN THE ONE (1) YEAR NOT -TO- EXCEED AMOUNT OF $91,996 AND A THREE (3) YEAR NOT -TO- EXCEED AMOUNT OF $304,408). WHEREAS, Section 252.024 of the Local Government Code provides that a municipality may select a licensed insurance broker as the sole broker of record to obtain proposals and coverages for excess or surplus insurance that provides necessary coverage and adequate limits of coverage in structured layered excess coverages in all areas of risk requiring special consideration, including public official liability, police professional liability, and airport liability; and need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following purchase of materials, equipment or supplies, as described in the "File" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached are hereby approved: FILE NUMBER VENDOR AMOUNT 5455 Midwest Employers Casualty $304,408 SECTION 2. The City Council hereby finds that this bid, and the award thereof, constitutes a procurement of items that are available from only one source, including, items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; electricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only from the persons holding exclusive distribution rights to the materials; and need not be submitted to competitive bids. SECTION 3. The acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 4. The City Manager is hereby authorized to execute any contracts relating to the items specified in Section 1 and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 5. The City Council of the City of Denton, Texas hereby expressly delegates the authority to take any actions that may be required or permitted to be performed by the City of Denton under File 5455 to the City Manager of the City of Denton, Texas, or his designee. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY n-M APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: 5 -ORD -File 5455 hi,dM6 aa� l Vu:druffl AGENDA INFORMATION SHEET AGENDA DATE: January 7, 2014 DEPARTMENT: Solid Waste ACM: Jon Fortune n SUBJECT Consider adoption of an ordinance approving a lease agreement to be executed by the City Manager, by and between the City of Denton, Texas and American Biosource, LLC, a Texas Domestic Limited Liability Company, for a certain approximate 1.004 acre tract of land situated in the Gideon Walker Survey, Abstract Number 1330, in the City of Denton, Denton County, Texas, located in the vicinity of 1527 South Mayhill Road, Denton, Denton County, Texas; providing an effective date. BACKGROUND American BioSource approached the Solid Waste Department staff and presented a proposal to lease 1+ acres of property and a metal building near the DTE Biomass Energy Landfill Gas -to- Energy plant site which was previously leased to Biodiesel Industries, LLC. American BioSource is a local restaurant oil and grease collection company that is interested in relocating its operation into the city limits of Denton. The owners of American BioSource have previously operated biodiesel production facilities, and have the financing, technical knowledge and skills to return the "mothballed" facility to full production. The proposed lease would be for an initial term of five years from the effective date of the lease. The lease may be extended for two additional five year terms. The lease rate is $1,200 per month with a Producer Price Index escalator to be used to adjust the rate every five years, and a royalty of 0.85 cents per gallon on biodiesel sold. OPTIONS 1. Approve the proposed Ordinance. 2. Decline to approve the proposed Ordinance. 3. Table for future consideration. RECOMMENDATION Recommend approval of the Ordinance. PRIOR ACTION/REVIEW (Council, Boards, Commissions) On October 22, 2012, the PUB directed City staff to develop a lease agreement to lease the property and plant equipment to American BioSource. PUB recommended approval of the lease on December 9, 2013. Agenda Information Sheet January 7, 2014 Page 2 FISCAL INFORMATION The revenue from this lease will be deposited into the Solid Waste Fund. BID INFORMATION Not applicable EXHIBITS 1. Ordinance 2. Lease Respectfully submitted, Vance Kemler, General Manager Solid Waste ORDINANCE NO. 2014 - AN ORDINANCE APPROVING A LEASE AGREEMENT TO BE EXECUTED BY THE CITY MANAGER, BY AND BETWEEN THE CITY OF DENTON, TEXAS AND AMERICAN BIOSOURCE, LLC, A TEXAS DOMESTIC LIMITED LIABILITY COMPANY, FOR A CERTAIN APPROXIMATE 1.004 ACRE TRACT OF LAND SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT NUMBER 1330, IN THE CITY OF DENTON, DENTON COUNTY, TEXAS, LOCATED IN THE VICINITY OF 1527 MAYHILL ROAD, DENTON, DENTON COUNTY, TEXAS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the City and American Biosource, LLC, a Texas Domestic Limited Liability Company ( "American ") have completed their negotiations which have culminated in the proposed Lease Agreement which is attached hereto as Exhibit "A;" and WHEREAS, on , 201_ this item was presented to the Public Utilities Board, and the Board recommended approval of the same; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The recitations and statements contained in the Preamble hereto are incorporated herewith by reference for all purposes, and made a part of this ordinance. SECTION 2. The City Manager or his designee is hereby authorized to execute the "Lease Agreement" by and between the City of Denton, Texas and American Biosource, LLC, a Texas Domestic Limited Liability Corporation; which Lease Agreement is attached hereto as and is incorporated herewith by reference as Exhibit "A," in substantially the form of the "Lease Agreement" which is attached hereto and made a part of this ordinance for all purposes. SECTION 3. The City Manager is authorized to make any expenditures and to perform such duties as are set forth in the Lease Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of , 2014. MARK A. BURROUGHS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY Page 2 STATE OF TEXAS COUNTY OF DENTON LEASE AGREEMENT This Lease Agreement (hereafter the "Lease Agreement ") is made and entered into effective as of the Effective Date, as set forth below, by and between THE CITY OF DENTON, TEXAS (hereinafter sometimes referred to as "LESSOR" and /or "the City "), a Texas municipal corporation and a home -rule City, and AMERICAN BIOSOURCE, LLC, a Texas Domestic Limited Liability Company ( "LESSEE "). WHEREAS, LESSOR owns the City's Solid Waste Services Site (the "Site "), located in the vicinity of 1527 Mayhill Road, City of Denton, Denton County, Texas and operates a landfill on the Site (the "Landfill "); and WHEREAS, the City desires to lease to LESSEE two tracts of land totaling approximately 1.004 acres of land located within the Site, which real property is more specifically set forth and described, by metes and bounds on Exhibit "Al" and "A2" (hereinafter the "Leased Premises "); and WHEREAS, LESSEE desires to lease the Leased Premises from the City for purposes of operating its waste grease recycling and rendering business and for the purpose of locate its waste oil collection vehicles, and optionally, a mobile office on the Leased Premises; and NOW, THEREFORE, for and in consideration of the mutual promises, covenants and agreements herein contained, and for $10.00 other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, LESSOR and LESSEE, intending to be legally bound, do hereby AGREE as follows: ARTICLE 1 PREMISES 1.1 Leased Premises. LESSOR hereby leases and lets unto LESSEE, and LESSEE hereby leases and lets from LESSOR the Leased Premises, which are two (2) certain tracts or parcels of real property totaling approximately 1.004 acres, more or less; Tract Al being a 0.514 acre tract of land and Tract A2 being a 0.490 acre tract of land, located at the Site, City of Denton, Denton County, Texas, as is more particularly described by metes and bounds attached hereto as Exhibits "Al" and "A2" and also as depicted by the field notes attached hereto as Exhibit "B1" and "132," al four of which exhibits are attached hereto and incorporated by reference herein. 1.2 Use of Premises. The Leased Premises are to be occupied and used by LESSEE solely for the operation of its waste grease recycling and rendering business, to maintain and store its waste oil collection vehicles, and to maintain a mobile office. LESSEE may operate a Bio- Diesel Plant ( "Plant ") on the Leased Premises. In the event LESSEE for any reason desires hereafter to substantially modify and /or substantially change its use of any of the Leased Premises, the nature and terms of such modification and change must be approved in writing by LESSOR and this Lease Agreement must be amended in writing to authorize the same. 1.3 Lessee Construction on Lease Premises. LESSEE shall have the right to construct improvements on the Leased Premises and this right shall continue in effect throughout the term of this Lease Agreement. LESSEE will, as a consideration for LESSOR's obligations set forth herein and this Lease Agreement, construct, at LESSEE's sole cost, any structure on the Leased Premises that is related to its business. Throughout the term of this Lease Agreement and any extension thereof, LESSEE shall have the right to alter, modify, remodel and demolish any improvements LESSEE has constructed on the Leased Premises. LESSEE agrees to provide to LESSOR a complete set of plans and specifications detailing each improvement which LESSEE proposes to construct on the Leased Premises prior to commencing any construction. The plans and specifications will be reviewed by LESSOR only for compliance with the municipal code of Denton, Texas as well as any applicable environmental laws and /or regulations that are applicable to the LESSEE's operations. LESSOR's Solid Waste Division must approve, within twenty (20) days, or must provide LESSEE a written statement advising why the construction plans are not approved. Such approval by the Solid Waste Division will not be unreasonably withheld or delayed. Provided however, the Solid Waste Division's approval does not apply to any other approval required from the City's Planning Department, Permitting or Building Permit Departments, or other City departments. No approval of LESSOR shall be required with respect to any modifications or alterations or remodeling of the interior of any of the improvements. All real property improvements or fixtures constructed or placed on the Leased Premises by LESSEE shall remain the property of LESSEE during the term of this Lease Agreement and any renewal or extension thereof. For real property fixtures, they shall revert to LESSOR, upon the termination of this Lease. The LESSEE is under a duty to promptly, within thirty (30) days following the date of expiration of the term of this Lease Agreement, or any extension thereof, to remove any and all personal property improvements installed or constructed or placed by LESSEE within or upon the Leased Premises, by LESSEE with no damage to the Leased Premises. LESSEE agrees to surrender the premises to LESSOR in broom -clean condition. The LESSEE covenants to LESSOR that upon termination of this Lease the subject real property shall be free and clear of any and all materials or waste that LESSEE abandons on the subject real property. Once the premises have been surrendered by LESSEE, and once both Phase I and Phase II Environmental Studies, referenced below in Paragraph 1.5, have been conducted on the Leased Premises and provided to the LESSOR, then LESSOR shall determine within twenty (20) days the disposition of the $7,200 security deposit which LESSEE shall pay to LESSOR before taking possession of the above - described Leased Premises at the beginning of this Lease. LESSOR shall advise LESSEE in writing at its address, as shown herein, of any deductions made regarding any damages suffered by the LESSOR by reason of LESSEE'S default regarding LESSEE'S -2- covenant to surrender the leased premises in broom -clean condition, or by LESSEE'S failure to remove any personal property from the Leased Premises, or to remedy any environmental problems raised by the Environmental Studies. 1.4 Easements. LESSOR shall provide to LESSEE, when reasonably required by LESSEE in the conduct of its business on the Leased Premises, but in no event later than completion of construction, at no additional consideration, non - exclusive rights -of -way or easements that it has the right to grant over, across and through the Leased Premises; ingress and egress onto the Leased Premises which are necessary for the operation of LESSEE's facilities on the Leased Premises as follows: (a) For connection of water and sanitary sewer facilities to the boundary of the Leased Premises; (b) For connection of telephone, electric and gas lines, as approved by the appropriate utility companies, to those installed at or upon the Leased Premises; and (c) For connection of or reasonable access to on -site streets and /or roads for vehicular traffic, only to roads immediately adjacent to or near the Leased Premises. All rights -of -way or easements granted by LESSOR or to be granted shall be located in such a way as to not unreasonably interfere with the orderly utilization of the LESSOR'S Landfill operations. 1.5 Environmental Assessments Required by Lessor — Phase I and Phase II. Preliminarily, LESSOR shall arrange a Phase I Environmental Study which will assess whether there are any known environmental hazards regarding the Leased Premises. This Phase I study is for the protection of LESSOR and LESSEE in determining the environmental condition and status of the Leased Premises at the time of the commencement of this Lease. LESSOR shall select the firm which will conduct the Phase I study. LESSOR shall pay for one - half of the study. LESSEE shall pay for one -half of the study. LESSOR and LESSEE shall each receive a copy of the Phase I final report. Then, both a Phase I and Phase I1 final Environmental Study ( "Studies ") shall be conducted on the Leased Premises upon the termination of the Lease Agreement, by LESSEE's licensed professional consultant, with the cost of the Phase I study to be paid one -half by LESSOR and one -half by LESSEE; and the cost for the Phase 1I, if it is necessary, to be paid for solely by LESSEE. The final Phase I and Phase II (if necessary) Environmental Studies shall commence no later than fifteen (15) days following the termination date of this Lease Agreement. LESSEE agrees to provide LESSOR with exact copies of all such studies within five (5) days following LESSEE'S receipt of such Studies. The parties agree that the LESSEE shall be solely and exclusively responsible for the satisfactory cleanup of any environmental contamination disclosed by the final Studies. -3- 1.6 Signs. LESSEE shall be entitled to erect, install, and maintain on the Leased Premises identification and advertising signs appropriate to its business; provided, however, that all such signs at all times shall be subject to the prior written approval of LESSOR as to location, size, shape, color and content. Said approval is conditioned upon the signs meeting the requirements of the applicable City ordinances of the City of Denton, Texas. 1.7 Lien Claims. LESSEE hereby covenants to unconditionally indemnify LESSOR from and against, and hold LESSOR harmless from any and all lien claims of any nature whatsoever arising out of or in any manner connected with the construction, installation, erection, maintenance, repair, occupancy, use and /or operation of any improvements, facilities and /or equipment of LESSEE or any third person on or about the Leased Premises by or at the direction of or with the permission of LESSEE; and LESSEE further agrees that it shall, in the event any such liens are filed, forthwith effect their removal and /or satisfaction. Provided, however, LESSEE shall have the right, at its sole cost and expense, and after having given LESSOR prior written notice of its intent to do so, to promptly contest by appropriate legal proceedings diligently conducted in good faith, the amount, validity or application, in whole or in part, of any such lien or liens, provided (i) such proceedings shall suspend the collection of such lien(s); (ii) neither the Leased Premises nor any rent therefor, nor any portion of same, would be in danger of attachment, forfeiture, loss or similar consequence; and (iii) that LESSEE shall first furnish security to the City's reasonable satisfaction to bond said lien or liens off of the Leased Premises. 1.8 Inspection and /or Repair of Leased Premises. LESSEE shall at all times maintain the Leased Premises including all improvements thereon in good condition. LESSEE shall be responsible for all maintenance, repair and replacement of the Leased Premises and all improvements thereon except for repairs or replacements caused by the acts or negligence of LESSOR, its agents or employees. 1.9 Warranty. LESSOR represents and warrants that it owns the Leased Premises and that LESSOR is fully authorized to enter into this Lease Agreement with LESSEE. In addition, LESSOR represents and warrants that it has not granted any mortgages or pledges of the tract of real property leased hereunder. It is understood and agreed that any mortgage, pledge, or other encumbrance of the property leased hereunder shall be subordinate to this Lease Agreement and that any such mortgage, pledge, or other encumbrance shall contain specific provisions providing that all of LESSEE's improvements or appurtenances on the property leased hereunder, as well as any products or other contents in or on said improvements or appurtenances, are excluded from such mortgage, pledge or encumbrance, and that LESSEE hereunder retains the right to remove any and all such improvements or appurtenances, as well as any products or other contents in or on said improvements or appurtenances, in accordance with the terms of this Lease -4- Agreement, and that in the unlikely event of a foreclosure, LESSEE shall have the right to continue to occupy the Leased Premises pursuant to the terms of this Lease Agreement so long as LESSEE is not in default hereunder. ARTICLE 2 LEASE TERM 2.1 Primary Term. The Primary Term of this Lease Agreement shall be for a term of five (5) years from and after the Effective Date of this Lease Agreement, unless sooner terminated as provided for herein. The "Effective Date" of this Lease Agreement shall be the date on which LESSOR executes this Lease Agreement and has obtained an ordinance of the City Council approving same. 2.2 Renewal Terms. Provided that LESSEE is not in default under this Lease Agreement; and provided that this Lease Agreement is otherwise in full force and effect, this Lease Agreement may be extended for two (2) additional terms of five (5) years each. The decision to extend the Lease Agreement must be a mutual decision made by both LESSOR and LESSEE. Negotiations to extend this Lease Agreement are to begin approximately one (1) year before the end of the Primary Term or the First Renewal Term (as the case may be) of this Lease Agreement, provided that the Lease Agreement is not in default at the time negotiations for extension are entered into and at any time prior to the date of renewal.. 2.3 Assignment of Lease Agreement LESSEE shall not assign, sublet, mortgage or pledge this Lease Agreement or any interest herein or in the Leased Premises or any part thereof, nor shall any assignment, sublease or transfer of whatever kind of any interest of LESSEE herein by operation of law or by reason of LESSEE's bankruptcy become effective, without the prior written consent of LESSOR, which consent shall not be unreasonably withheld; provided however, that the City's refusal to give the City's consent to a potential assignee who is not as creditworthy as LESSEE, shall be deemed to be reasonable. Notwithstanding the foregoing, LESSEE shall have the right to assign this Lease Agreement or sublet the Lease Premises to an entity that is controlled by, or under common control with LESSEE, provided that LESSEE remains fully and primarily liable for all of its obligations under this Lease Agreement. ARTICLE 3 RENTALS 3.1 Monthly Rental. The Monthly Rental for the Leased Premises shall be ONE THOUSAND TWO HUNDRED DOLLARS ($1,200) per month for the first five (5) years of the Lease Term. For purposes of this Lease Agreement the "Certificate of Occupancy Date" is the date upon which -5- LESSOR issues the building occupancy permit. The first monthly rental payment due from LESSEE to LESSOR, is payable at the offices of LESSOR as set forth in Article 6.2 hereinbelow, on or before the first day of the second month following the issuance of a certificate of occupancy. No rental is being collected for only the first month following the issuance of the certificate of occupancy, as a concession, to allow LESSEE an opportunity to move -in and make -ready the Leased Premises, considering the condition of the Leased Premises as left by the previous tenant. Monthly rental is payable in advance, with equal payments of rental to be made on the first day of each month thereafter throughout the term of the Lease. 3.2 Monthly Rental Prior to the Issuance of the Certificate of Occupancy. LESSOR and LESSEE agree that from the Effective Date of this Lease to the date of issuance of the certificate of occupancy by the City, the rent shall be 50% of the Monthly Rental rate set forth above in Article 3.1 for the real property described in this Lease. LESSOR and LESSEE agree that but for the one month's free rent of $1,200, as set forth in 3.1. above, occurring after issuance of the Certificate of Occupancy, that the provisions of this Article shall apply and be 50% of the Monthly Rental rate. Further, the monthly rental for purposes of this Lease Agreement shall be prorated and is payable on the date that the first Monthly Rental payment is due. 3.3 Permitted Uses by Lessee Prior to Certificate of Occupancy Issuance. LESSOR understands that LESSEE, once this Lease Agreement is Effective, shall have the right to take whatever steps are necessary and appropriate in order to bring the Plant equipment back up and operational. LESSOR understands that once the Plant equipment is operational and all necessary licensing, in order for LESSEE to operate a Bio- Diesel Plant, has been obtained, then LESSEE shall be entitled to run the first one - hundred batches of biofuels as a test phase. 3.4 Monthly Rental for Lease Renewal Option Period(s). LESSOR and LESSEE agree that the rental amount is also subject however, to the terms of Rental Adjustment (indexing) that is reserved in this Article 3.3. The rental rate set forth hereinabove is for purposes of the Lease and shall be defined as the "Initial Base Rental Payment." Such Initial Base Rental Payment will be the rental due under the Lease for years one (1) through five (5) of the initial five year (5) year term of the Lease (the "Primary Term "). On the first day of the first term of Lease Renewal, ( "First Renewal Term ") the Monthly Rental to be paid by LESSEE to LESSOR under the Lease Agreement shall be subject to adjustment based upon adjustments in the Consumer Price Index, as hereinafter defined. The Monthly Rental of $1,200 established in Article 3.1 above, shall be adjusted upward, downward, or unchanged at the expiration of the five -year Primary Lease Term to conform to that certain United States Bureau of Labor Statistics "Producer Price Index" now known as Series ID# PCU531210531210602. That index is named: Real estate brokerage, nonresidential property leases including land leases. Its base date is December, 2009. The starting date, for purposes of this Rental Adjustment is January 1, 2019. The adjustment of rental at the commencement of the beginning of year six (6), the beginning of the First Renewal Term of the Lease Agreement will -6- be accomplished by multiplying the initial base rental payment by a fraction, the numerator of which shall be such index as of the most recent date published prior to the date of adjustment and the denominator of which shall be the most recently published index as of the Commencement Date. The adjustment for each subsequent five (5) year Lease Renewal ( "Second Renewal Term ") period will be calculated in a similar manner; except that rather than using the initial base rental payment as the base rentals from which adjustments will be made, the rental figure for the then current year will be substituted for such initial base rental payment. Provided however, in no five (5) year period subsequent to the Effective Date of this Lease Agreement (i.e. the First Renewal Term and the Second Renewal Term), may the rental be increased or decreased more than twenty -five percent (25 %) of the rental applicable during the five (5) year period immediately preceding the five (5) year period for which an adjustment is to be made. If the index above referred to shall be discontinued, the parties hereto shall attempt to agree upon a substitute index or formula. In the event of dispute between the parties as to the amount of any adjustment, the rates shall be established through the dispute resolution procedures. 3.5 Taxes. LESSEE agrees to pay all sales and /or use taxes and any and all ad valorem assessments and /or taxes which may be legally exacted, made, and charged upon and /or levied and /or assessed against LESSEE's property on the Leased Premises, before the same shall become delinquent; provided, however, LESSEE shall have the right, at its sole cost and expense and after having given LESSOR prior written notice of its intention to do so, to contest by appropriate legal proceedings diligently conducted in good faith, the validity, amount or application, in whole or in part, of such taxes, levies and /or assessments provided (i) such proceedings will suspend the collection of the tax, levy, or assessment; and (ii) the Lease Premises, nor any rent therefrom, nor any portion of it is in danger of seizure, forfeiture, sale, loss or similar consequences. 3.6 Late Charges on Rentals. If any installment of rental due from LESSEE is not received by LESSOR within twenty (20) days of the date upon which it is due, without any notice or demand for payment to LESSEE being necessary, LESSEE will pay to LESSOR the additional sum of Fifty Dollars ($50.00) as a late charge for each late payment. The late charge represents the reasonable time and efforts of City staff expended in order to enforce and collect the rental obligation. Acceptance of any late charge shall not constitute a waiver of LESSEE's default with respect to the overdue amount, nor prevent LESSOR from exercising any other rights and remedies available to LESSOR. 3.7 No Additional Fees. There shall be no additional fees or assessments made by LESSOR for LESSEE's use or occupancy of the Lease Premises except for the Additional Rental payable by LESSEE to LESSOR pursuant to the terms of Article 3.8 herein. Provided however, LESSEE shall remain solely responsible for any impact fee, connection fee, tap fee, building fees, permits fees, any State regulatory fees, or any other municipal fees charged by the City of Denton, Texas that are applicable to the Leased Premises; and shall timely pay same. -7- 3.8 Additional Rental. LESSEE shall pay to LESSOR a payment of Additional Rental on a quarterly basis during the Primary Term of this Lease Agreement and any renewal thereof. The Additional Rental is based upon LESSEE'S sale of any biofuel sold by LESSEE to any third - party. The amount of the Additional Rental shall be $0.0085 per gallon sold. The Additional Rental shall be accounted for and determined by a Quarterly Report of Production and Sales (the "Quarterly Report"). The Quarters shall be: January 1 through March 31; April I through June 30; July 1 through September 30; and October 1 through December 31. The Quarterly Report shall be prepared by LESSEE and shall be delivered to LESSOR no later than the twentieth (20th) day of the month next following the quarter of each report (i.e. April 20 for the quarter beginning January 1 and ending March 31). The Quarterly Report shall state at a minimum, for that quarter, the following information: Number of days that the Plant was operational; the total production of biofuels in gallons; the total amount of biofuels sold to third - parties stated in gallons; the breakdown in gallons of the types of biofuel and any other fuel produced at the Leased Premises, 3.9 Late Charge for Late Filing of Quarterly Report of Production and Sales. If the Quarterly Report is not received by LESSOR from LESSEE within twenty (20) days of the date such report is due, then LESSEE, without any notice or demand for payment to LESSEE being necessary, LESSEE shall pay to LESSOR the additional sum of TWENTY FIVE DOLLARS ($25.00) as a late filing penalty for each late Quarterly Report. This charge represents the reasonable time and efforts of City staff expended in order to enforce the Additional Rental obligation of LESSEE and the City's ability to determine what amount of Additional Rent is due and owing under Article 3.8 above. 3.10 Requirement of Lessee's Maintenance of Detailed Accurate Financial Records. LESSEE is obligated to maintain full and detailed adequate accurate financial and tax accounting records at all times during the Term of this Lease Agreement and any extension thereof. LESSEE shall allow LESSOR reasonable access to all such records upon five (5) days written request. ARTICLE 4 OPERATIONS 4.1 Pollution Control. LESSEE agrees that it shall use its commercially reasonable best efforts to comply with all applicable federal, state and local laws, regulations and the common law, as they may exist currently, or as they may be amended in the future, pertaining to protection of the environment or human health and safety at the Leased Premises and /or in the vicinity of any of its operations or activities that may be permitted hereunder. M:2 4.2 Compliance with Environmental Laws and Indemnification. During the Term and any renewal of this Lease Agreement, LESSEE shall fully comply with all applicable federal, state and local laws, regulations and the common law, as they may exist currently or as they may be amended in the future, pertaining to protection of the environment or human health and safety at the leased premises. LESSOR warrants and represents that at the commencement of this Lease Agreement, that to the best of its knowledge and belief there is no Hazardous Substance (as defined hereinbelow) including any petroleum, petroleum product, or other types of hydrocarbons in or on the Leased Premises in contravention of any federal, state or local laws, regulations or the common law pertaining to protection of the environment or human health and safety. Notwithstanding any provision in this Lease Agreement to the contrary, it is expressly understood and agreed that the LESSOR hereby agrees to indemnify to the extent provided by applicable law, defend and hold harmless the LESSEE, only to the extent permitted by applicable law, its officers, employees, contractors, agents, customers, licensees, invitees and /or visitors and any other person for or on whose behalf LESSOR is liable, harmless from and against any and all claims, obligations, liabilities, costs, expenses (including attorney's fees), losses, suits, fines, penalties or demands, made or sought by or on behalf of any person, firms, corporation or government authority whomsoever, based upon or arising out of any obligation, liability, loss, damage or expense, of whatever nature or kind, contingent or otherwise, known or unknown, incurred under or imposed by any provision of federal, state or local law or regulation, or common law, pertaining to protection of the environment or human health and safety in or on the Leased Premises. Notwithstanding any other provision in this Lease Agreement to the contrary, it is expressly understood and agreed that the LESSOR does not assume or agree to be responsible for, and LESSEE hereby agrees to indemnify, defend and hold LESSOR, its officers, employees, contractors, agents, customers, licensees, invitees and /or visitors and any other person for or on whose behalf LESSOR is liable, harmless from and against any and all claims, obligations, liabilities, costs, expenses (including attorney's fees), losses, suits, fines, penalties, or demands, made or sought by or on behalf of any person, firm, corporation or government authority whomsoever, based upon or arising out of the handling, storage or disposal of Hazardous Substances by LESSEE, LESSEE's agent or anyone on or about the Leased Premises by or at the direction of LESSEE or with the permission of LESSEE during the term of this Lease Agreement. For purposes of this Lease Agreement, the term "Hazardous Substance" or "Hazardous Substances" means that term as defined in Section 9601(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ( "CERCLA "), but it also includes the term "Regulated Substance" as defined in Section 6991(2), and the term "Hazardous Waste" as defined in Section 6903(5), of the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901, et seq. ( "RCRA "), including all regulations issued pursuant to any of the above statutes, as well as any other contaminant, oil, petroleum, petroleum product or byproduct, radioactive material or -9- byproduct and any unsafe, noxious, toxic or hazardous substance or similar material regulated as a hazardous substance under any applicable state, federal or local law, and any other applicable environmental, land use or similar act, statute or regulation existing as of the date of this Lease Agreement or thereafter. The indemnifications provided by this Article shall specifically and reciprocally cover, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision or other third party. The foregoing environmental indemnity provisions provided in this Article 4.2 shall survive for a period of five (5) years after the expiration or termination of this Lease Agreement and any renewals hereof. 4.3 Compliance with Laws and Regulations. LESSEE's exercise of such rights and /or privileges as may be extended it hereunder shall at all times be in full compliance with all applicable laws, rules, and regulations, including safety regulations, of the City of Denton, Texas, the State of Texas, the United States, and other governmental authorities now or hereafter having jurisdiction thereof and /or any of their duly empowered agencies and /or instrumentalities. A copy of all building permits, licenses, and similar authorizing documents will be promptly provided to the LESSOR. 4.4 Lessee Insurance. For the term of this Lease Agreement and any renewal thereof, LESSEE will maintain, at its own expense, the following insurance coverage: (a) Workers' Compensation providing statutory benefits, and Employers' Liability coverage with minimum limits of $1,000,000 per each occurrence; and (b) Comprehensive General Liability insurance coverage with minimum limits of $2,000,000 per occurrence, combined single limit, for bodily injury and property damage. Coverage shall include contractual liability; and (c) Automobile liability insurance coverage with minimum limits of $1,000,000 per occurrence, combined single limit; and (d) Casualty property insurance on any LESSEE - constructed facilities on Site in an appropriate amount reasonably determined by the agreement of LESSEE and LESSOR, which amount shall take into account the construction costs of the LESSEE's facilities and other relevant factors. LESSEE shall provide LESSOR with a certificate evidencing the insurance required hereunder together with written evidence of premium payment. All such policies of insurance shall require that LESSOR and LESSEE be given at least thirty (30) days prior written notice of any modification, termination and /or cancellation of coverage. The insurance policies described -10- in (b) and (c) above shall name LESSOR as an additional insured party. All insurance policies belonging to LESSEE shall be issued through companies that shall have a minimum A.M. Best Company rating of "A -" in addition to a minimum financial size category of "VI" or "VII," or alternatively, a Standard and Poor's rating of "BBB" or better. 4.5 Lessee's Provision of Discounted Fuel to Lessor. LESSOR agrees to accept from LESSEE during the Term of this Lease Agreement, subject to LESSEE'S Plant being licensed and operational, deliveries of biofuel which have been ordered by LESSOR, which deliveries shall be provided to City at a discounted rate of two (2 %) to two - and -a -half (2.5 %) percent below than the then current market rate for such biofuel. LESSEE shall certify to LESSOR the market rate of such fuel at the time of each such delivery of fuel to the City. LESSOR and LESSEE may re- negotiate this discount should market conditions change, but LESSOR shall be guaranteed at least a two (2 %) discount on biofuel by LESSEE at all times. 4.6 Termination. This Lease Agreement shall terminate pursuant upon the expiration of its Term, or extension of Term (if applicable), or upon the mutual written agreement of LESSOR and LESSEE. Upon termination, LESSEE shall be entitled to remove all of its personal property from the building(s) and any equipment, which is not characterized as a real property fixture, that LESSEE has installed in the building, and shall thereafter promptly quit and surrender the Leased Premises to LESSOR in broom -clean condition. LESSEE shall additionally remove all feedstock, recyclables and recycling materials, by- products, end - products, and chemical supplies from the Leased Premises, and shall thereafter quit and surrender the Leased Premises to LESSOR; subject to the provisions of Article 1.3 hereinabove. 4.7 Events of Default. The following shall be "Events of Default' under this Lease Agreement and the terms "Event of Default" or "Default" shall mean whenever they are used in this Lease Agreement, any one or more of the following events: (a) The insolvency, assignment for the benefit of creditors, adjudication as a bankrupt of LESSEE or the appointment of a receiver for substantially all of the LESSEE's property and /or LESSEE's interest in this Lease Agreement; or (b) The issuance of execution against LESSEE's interest in this Lease Agreement or any legal process which by operation of law would cause LESSEE's interest in this Lease Agreement to pass to any person other than LESSEE or its successor assignee or sublessee; or (c) The failure or refusal of LESSEE to pay or cause to be paid any lease rental payment, charge and /or assessment hereunder or any installment thereof when due and the continuance of such failure for a period of twenty (20) days after written notice thereof has been sent by LESSOR to LESSEE at the address shown herein for LESSEE; or (d) The failure or refusal of LESSEE and /or LESSOR to perform any agreement, covenant, condition, obligation and /or undertaking herein contained or required by operation of law and /or to observe or comply with any of the terms provisions or conditions of this Lease Agreement, and the continuance of such for a period of thirty (30) days after written notice thereof has been sent by LESSOR to LESSEE at the address shown herein for LESSEE; or (e) The failure of LESSEE and /or LESSOR in the observance or performance of any material term, obligation or covenant required to be performed by LESSEE and /or LESSOR under this Lease Agreement or by operation of law, and the continuance of such for a period of thirty (30) days after written notice thereof has been sent by LESSOR to LESEE at the address shown herein for LESSEE. 4.8 Holding Over. If LESSEE shall, with or without the consent of LESSOR, hold over after the expiration or sooner termination of the term of this Lease Agreement, the resulting tenancy shall, unless otherwise mutually agreed upon in writing, shall be on a month -to -month basis only. During such month -to -month tenancy, LESSEE shall pay to LESSOR the same rentals, plus an additional payment of holdover rent of twenty (20) percent, per month, of the then applicable rent, payable monthly along with its other rental payments due hereunder, as set forth herein, unless a different rate(s) shall be agreed upon, and LESSEE shall be bound by all of the provisions of this Lease Agreement insofar as they may be pertinent. LESSOR shall have the right, after the expiration of the term and /or extension to provide LESSEE with a 30 -day notice letter notifying LESSEE that the holdover tenancy will end thirty (30) days thereafter and that LESSEE must therefore, vacate the Leased Premises. 4.9 Waiver of Breach of Default -- Cumulative Remedies. Waiver by any party of any breach or Default of this Lease Agreement shall not be deemed a waiver of similar or other breaches or Defaults, nor shall the failure of any party to take action by reason of any such breach or Default deprive such party of the right to take action at any time while such breach or Default continues. The rights and remedies created by this Lease Agreement shall be cumulative and nonexclusive of those to which the parties may be entitled pursuant to law. Right of exercise of all such rights and remedies is hereby reserved. The use and availability of one remedy shall not be taken to exclude or waive the right to use of another. In order to entitle any party to exercise any remedy reserved to it in this Lease Agreement, it shall not be necessary to give any notice, other than such notice as is herein expressly required. 5.1 Quiet Enjoyment. ARTICLE 5 MISCELLANEOUS Eva LESSOR covenants that during the term of this Lease Agreement and for so long as LESSEE shall make timely payment of rentals due hereunder, and LESSEE shall perform all covenants on its part to be performed, LESSEE shall and may peaceably and quietly have, hold and enjoy the Leased Premises. In the event of bankruptcy, insolvency, assignment for benefit of creditors, or foreclosure of any mortgage or other encumbrances, by entry or by sale, LESSEE, if it is not then in default, shall peaceably hold and enjoy the Leased Premises for the remainder of the unexpired term of the Lease Agreement upon the same terms, covenants, and conditions as in this Lease Agreement. 5.2 Notices. All notices and other communications required or permitted to be given by any provision of this Agreement shall be in writing and mailed (certified or registered mail, postage prepaid, return receipt requested) or sent by hand or overnight courier, and such notices shall also be sent by facsimile transmission (with acknowledgment received), charges prepaid and addressed to the intended recipient as follows, or to such other address or number as may be specified from time to time by like notice to the Parties. A courtesy copy of such notice or other communication shall also be sent electronically via e -mail to the e -mail addresses provided in the contact information below; provided, however, that such e -mail copies will not constitute Notice as defined in this Section 5.2: (a) If to the City: City of Denton, Texas 215 East McKinney Street Denton, TX 76201 Attention: City Manager Facsimile: 940 - 349 -8596 With a copy to: City of Denton, Texas 1527 South Mayhill Road Denton, TX 76208 Attention: General Manager of Solid Waste Services Telephone: 940 - 349 -8044 Email: Vance.Kemlero cityofdenton.com (b) If to Lessee: American BioSource, LLC Walter Dobson, President 624 West University Drive, Suite 359 Denton, Texas 76201 Telephone: (214) 280-0112 BRIE Email: Walter a AmericanBioSource.com Any Party may from time to time specify a different address for notices by like notice to the other Party. All notices and other communications given in accordance with the provisions of this Lease Agreement shall be effective upon receipt of the same. 5.3 Substitution of Performance by Lessor. If LESSEE shall fail to do anything required to be done by it under the terms of this Lease Agreement, except to pay rent and other charges, LESSOR may, after thirty (30) days written notice to LESSEE, at LESSOR's sole option, do such act or thing on behalf of LESSEE, and upon notification of the cost thereof to LESSOR, LESSEE shall promptly pay to LESSOR the amount of that cost. In case of emergency, LESSOR may perform, but is not obligated to perform, any act or do anything reasonably necessary on behalf of LESSEE and upon notification of the cost thereof to LESSEE, LESSEE shall pay said cost to LESSOR within thirty (30) days from the date of LESSOR'S written claim to LESSEE. 5.4 Eminent Domain. If all or a portion of the Leased Premises or all or any portion of LESSOR's other property comprising the Leased Property shall be taken or sold in any proceeding by public authorities, by means of condemnation, expropriation, appropriation or otherwise be acquired for public or quasi - public purposes, there shall be an equitable abatement or refund of the rental paid by LESSEE under Article 3.1 above from any date of award to LESSOR proportionate to the amount taken. Nothing herein shall affect or diminish LESSEE's right to seek compensation for any portion of the Leased Premises taken and LESSEE shall be entitled to all such compensation for its provable loss or damage. In the event the taking of the Leased Premises or all or a part of LESSOR's other property comprising the Leased Premises is total, this Lease Agreement shall terminate, and LESSEE shall be released from all obligations hereunder; except for any sums of money owed to LESSOR at the date of termination of this lease, which amounts shall be paid to LESSOR within thirty (30) days. In the event the taking of the Leased Premises or LESSOR's other property comprising the Landfill is less than total, then LESSEE shall have the option to terminate this Lease Agreement if continuation of its operations on the Lease Premises is substantially impaired and economically impractical. 5.5 Substitution of Performance by Lessee. If LESSOR shall fail to do anything required to be done by it under the terms of this Lease Agreement, LESSEE may, after sixty (60) days written notice to LESSOR, at LESSEE's sole option, do such act or thing on behalf of LESSOR, and upon notification of the reasonable cost thereof to LESSOR, may deduct said amount from any amount owed by LESSEE to LESSOR. In case of emergency, LESSEE may perform any act or do anything reasonably necessary on behalf of LESSOR and upon notification of the cost thereof to LESSOR, may EM deduct said amount from the amount of rental then owed by LESSEE to LESSOR. If no amount is presently owed by LESSEE to LESSOR, then LESSOR shall pay such amount to LESSEE on demand. 5.6 Recordation. Neither LESSOR nor LESSEE shall record this Lease Agreement without the prior written consent of the other party. LESSOR and LESSEE may execute and acknowledge a "short form" memorandum of this Lease Agreement for recording purposes. 5.7 Entire Agreement. This Lease Agreement embodies the entire agreement between the parties with respect to the leasing and use of the Leased Premises. There are no representations, terms, conditions, covenants or agreements between the parties which are not mentioned or contained herein. This Lease Agreement shall completely and fully supersede all other prior agreements both written and oral, between the parties pertaining to the Leased Premises. No party to any such prior agreement hereafter will have any rights thereunder, but shall look solely to this Lease Agreement for definition and determination of its rights, liabilities, or responsibilities relating to the aforesaid matters set forth herein. 5.8 Captions. The article and the subsection headings and captions contained herein are included for convenience only and shall not be considered a part hereof or affect in any manner the construction or interpretation of this Lease Agreement. 5.9 Severability. The parties agree that if it should ever be held by a court of competent jurisdiction that any one or more articles, subsections, clauses or provisions of this Lease Agreement are invalid or ineffective for any reason, any such article, subsection, clause or provision shall be deemed separate from the remainder of this Lease Agreement and shall not affect the validity and enforceability of such remainder. 5.10 Successors and Assigns. The covenants, terms, conditions and obligations set forth and contained in this Lease Agreement shall be binding upon and inure to the benefit of LESSOR and LESSEE and their respective successors and assigns. 5.11 Disputes and Governing Law. This Lease Agreement shall be governed by and construed solely in accordance with the laws of the State of Texas. Exclusive venue for any claim or cause of action under this Agreement shall be, as the case may be, either in the District Courts of Denton County, Texas, or the Federal District Courts of the Eastern District of Texas, Plano or Sherman Division. - 15 - IN WITNESS WHEREOF, this Lease Agreement has been executed by the duly authorized City Manager of LESSOR; and by the duly- authorized officer of LESSEE, in multiple counterparts, each of which, for all purposes, shall be deemed an original and all of which shall evidence but one agreement. EXECUTED on this day , 201 "LESSOR" THE CITY OF DENTON, TEXAS A Texas Municipal Corporation an ATTEST: JENNIFER WALTERS, CITY SECRETARY al APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By :� i �r IN WITNESS WHEREOF, this Lease Agreement has been executed by LESSEE in the presence of the undersigned witness, in multiple copies, each of which, for all purposes, shall be deemed an original and all of which shall evidence but one agreement. "LESSEE" AMERICAN BIOSOURCE, LLC. A Texas Limited Liability Company By; Title:�S %� -16- WITNESS: APPROVED AS TO LEGAL FORM: Loan ITS LEGAL COUNSEL -17- Date: / Z . z C , l: �s