2014-385# � . /. � � :� f �. ! '. # � . .. �
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AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE
EXECUTION OF A FIRST AMENDMENT TO THE EASEMENT PURCHASE
AGREEMENT, BETWEEN THE CITY OF DENTON ("CITY") AND MAHOGANY RUN
INVESTMENTS, L.P. ("OWNER") DATED FEBRUARY S, 2013, TO PROVIDE FOR THE
REIMBURSEMENT TO OWNER OF $27,051.58, AS MORE PARTICULARLY DESCRIBED
THEREIN; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, effective February 5, 2013, pursuant to City of Denton Ordinance No. 2013-
042, the City and Owner agreed to terms for the purchase of easements and compensation for
cost to cure damages to provide for the construction of sanitary sewer improvements across
Owner's land as part of the State School Sanitary Sewer Interceptor Phase II Project (the
"Original Agreement");
WHEREAS, it has been determined that the because of the nature of the construction
activities upon Owner's land, the nightly reestablishment of electronic security systems proved
to be impractical and unworkable;
WHEREAS, Owner did engage onsite manned security personnel for that period of time
that the City's construction contractor .was actively occupying Owner's land so as to reduce the
risk of personal property loss;
WHEREAS, Owner and City agree that on-site manned security was necessary to the
completion of the Project and that the amount of $27,051.58 should be included as an additional
cost to cure measure to be paid by the City to Owner;
WHEREAS, the City Council of the City deems it to be in the best interest of the City to
enter into the First Amendment to Easement Purchase Agreement with Owner; 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 the
First Amendment to Easement Purchase Agreement, for and on behalf of the City, in the form as
attached as Exhibit "A"; and (b) to make expenditures in accordance with the terms of the First
Amendment to the Easement Purchase Agreement,
SECTION 2. This Ordinance shall become effective immediately upon its passage and
approval.
SECTION 3. The recitals provided in this Ordinance, as set forth above, are specifically
and expressly adopted by the Council as express findings by the Council.
s:\legal\our documents\ordinances\14\mahogany run 1 st amendment to easement purchase agmt - ordinance - final Icc.docx
SECTION 4. 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 5. This ordinance shall become effective immediately upon its passage and
..__���....
approval.
PASSED AND APPROVED this the
��� day of ....�� ��'�"���"��_ �'�.......� 2014,
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("I .��� � [�"+�'"ATTS, MAYOR�� ..�.......___ _. .....
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
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BY:..,,� _...._�. ".�
FIRST AMENDMENT
TO
EASEMENT PURCHASE AGREEMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This First Amendment to Easement Purchase Agreement (the "Amendment") by
and between Mahogany Run Investments, L.P. ("Owner") and the City of Denton, Texas
("City"), a Home Rule Municipal Corporation of Denton County, Texas.
RECITALS
WHEREAS, the Owner and the City entered into an Easement Purchase
Agreement, dated February 5, 2013 (the "Original Agreement"), for the sale and purchase
of (a) sanitary sewer easement encumbering a 0.438 acre tract, and (b) a temporary
construction, grading and access easement encumbering a 0.134 acre tract, both pursuant
to, and more particularly described in, City of Denton Ordinance 2013-042, for the
construction of the improvements for the City of Denton's State School Sanitary Sewer
Interceptor Project — Phase II (the "Project").
WHEREAS, the improvements for the Project traverse the Owner's property; and
WHEREAS, the Owner owns and operates on its property an ongoing business,
ExploreUSA RV Supercenter, and has approximately 150 recreational vehicles with a
value in excess of $5,000,000.00 on the property either for sale or being serviced; and
WHEREAS, Owner has its property secured with a formidable perimeter fence
and a monitored electronic security system to protect its RVs from break-ins, vandalism
and theft; and
WHEREAS, in the Original Agreement the parties agreed that to maintain
security at the site during the Project Construction Period any perimeter fencing disturbed
by the City would be reestablished at the end of each day of construction activities; and
WHEREAS, it was originally contemplated that the monitored electronic security
system could be reestablished nightly; however, the invasive nature of the daily
construction activities made it impractical and unworkable; and
WHEREAS, so as to expedite the progression of the construction across Owner's
property and reduce the risk of break-ins, vandalism and theft to Owner's RVs during the
Project Construction Period, Seller hired various security companies to provide manned
on-site security services for those time periods, after business hours, within the Project
Construction Period on Owner's property; and
WHEREAS, in Paragraph 2 of the Original Agreement, total compensation to
Owner was stipulated as $291,344.00 which included compensation of the purchase of
the necessary land rights and payment for "cost to cure" items being consumed by the
Project and not reconstructed by the City as part of the Project; and
WHEREAS, total compensation shall be increased by Twenty Seven Thousand
Fifty One and 58/100 Dollars ($?.7,051.58) to provide for reimbursement by City to
Owner for manned on-site security for that period of time that Project construction
activities were occurring upon Seller's property and the monitored electronic security
system was unworkable as a"cost to cure" item (further detailed in the attached
Attachment 1) and the amended total compensation amount is now $318,395.58, of
which $291,344.00 has been paid to date; and
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency of which
is herein acknowledged, the Owner and the City amend the Original Agreement as
follows:
1. To provide for reimbursement by City to Owner for manned on-site
security for the period of time that Project construction activities were occurring on
Seller's property and the monitored electronic security system was unworkable the total
compensation payable to by the City to Owner shall be increased by Twenty Seven
Thousand Fifty One and 58/100 Dollars ($27,051.58), as a"cost to cure" item (further
detailed in the attached Attachment 1) from $291,344.00 to $318,395.58 ("Amended
Total Compensation AmounY').
2. Owner acknowledges that it has previously been paid the amount of
$291,344.00.
3. The Owner hereby stipulates that the Amended Total Compensation
Amount of $318,395.58 (inclusive of the $27,051.58 as reimbursement for manned on-
site security) and the Concrete Flat Work prescribed in the Original Agreement
constitutes and includes all compensation due Owner by City related to the Project,
including without limitation, any damage or diminution in the value of the remainder of
Owner's property caused by, incident to, or related to the Project, 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 located within the Easement Lands (as
defined in the Original Agreement) related to activities conducted pursuant to the
Easement (as defned in the Original Agreement), and 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 rights granted by the Easements, whether accruing now
or hereafter, and Owner hereby releases for itself, its successors or assigns, City, its
offcers, 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.
4. Except as expressly amended herein, the Original Agreement shall remain
in full force and effect.
5. Executed and effective the date of the last party to sign.
O WNER:
MAHOGANY RUN IN 1� C��
a Texas limited ��r°d.r�c�r•�I�s"�
BY: � ���"'
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Scott Chaney, �����r
DATE: / ` ^ `� / I
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CITY OF DENTON, TEXAS
BY: ������t� �����' � � .�,� .__ ...�.
GEOR �t^ C. �:'���1''��:� �L^L, CITY MANAGER
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DATE: ,�. �� ..f.��.° �'�
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: ���,,���"" �" � ��.. r��
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DATE: �..... � �. �.�
Attachment 1- First Amendment to Easement Purchase Agreement
Roster of Security Company Invoices: Mahogany Run (ExploreUSA RV Supercenter)
Site occupation by City of Denton's Sanitary Sewer Line Contractor (State School Sanitary Sewer Interceptor - Phase II)
Date Range ��ti�+���� �
7-7-14 thru 7-13-14 � 34755
7-14-14 thru 7-20-14 J 34794
7-21-14 thru 7-27-14 J 923764
7-28-14 thru 8-3-14 � 923815
�
8-4-14 thru 8-10-14 923872
8-11-14 thru 8-13-14 � 923923
8-14-14 thru 8-16-14 1 274157
8-17-14 thru 8-23-14 � 274173
8-24-14 thru 8-30-14 � 274227
8-31-14 thru 9-6-14 � 274310
9-7-14 thru 9-13-14 � 274364
_
9-14-14 thru 9-20-14 � 274561
,_
9-21-14 thru 9-27-14 � 274978
�
9-28-14 thru 10-4-14 l 275006
��rrp��r��r Amount Adjustment *� Due
National Security Service J$ 2,407.90 �
National Security Service $ 2,407.90 �
_ �.
National Security Service �$ 2,407.90 �
National Security Service f$ 2,407.90 �
National Security Service �$ 2,407.90 �
National Security Service � $ 943.80 ;
Firstwatch Security $ 974.25 j
Firstwatch Security I$ 2,855.09 �
_.
Firstwatch Security I $ 2,625.06
Firstwatch Security G $ 2,976•88 ',
f
Firstwatch Security $ 2,706.25 „
,.. �._
Firstwatch Security � $ 2,706.25 �
� m.._.� ...... �... _.. , .. �......., �
Firstwatch Security $ 2,660.24 y
_ ... - e ._� __ __ _�
Firstwatch Security $ 2,585.01 !
OS $ 1,203.95
0.5 j $ 1,203.95
0.5 ` $ 1,203.95
0.5 � j $ 1,203.95
0.5 � $ 1,203.95
1 A $ 943.80
_
1A � $ 974.25
1A $ 2,855.09
1.0 ', $ 2,625.06
1A � $ 2,976.88
1.0 I $ 2,706.25
1.0 i $ 2,706.25
. ...._... _ .
1.0 � $ 2,660.24
1A I $ 2,584.01
Total $ 27,051.58
* split cost with Owner for that period of time Owner was also performing site work construction and fencing was down