2009-064
sAour documents\ordinances\09\380 amended agr-allegiance hillview.doc
ORDINANCE NOJ~O g-~
AN ORDINANCE APPROVING THE ADOPTION OF AN AMENDED CHAPTER 380
AGREEMENT WITH ALLEGIANCE HILLVIEW, LP; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, Allegiance Hillview, LP ("Allegiance") has made a request of the City of
Denton ("City") to establish an economic development program under Chapter 380 of the Texas
Local Government ("Chapter 380") to stimulate the development of commercial property within
the City of Denton; and
WHEREAS, on May 15, 2007, the City Council adopted Ordinance No. 2007-113 which
included an Economic Development Grant Agreement (the "Agreement") establishing an
economic development program under Chapter 380;
WHEREAS, it is in the public interest to authorize the Mayor, or in his absence the
Mayor Pro Tem, to approve an amendment to the Agreement, which is attached hereto and made
a part of; NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitals and findings contained in the preamble of this Ordinance are
incorporated into the body of this Ordinance.
SECTION 2. The Mayor, or in his absence the Mayor Pro Tem, is hereby authorized to
execute the amended Agreement on behalf of the City of Denton and to exercise all rights and
duties of the City of Denton under this amended Agreement, including without limitation the
authorization to make the expenditures set forth in the Agreement.
SECTION 3. The Agreement executed pursuant to Ordinance No. 2007-113 is amended
and restated in its entirety.
SECTION 4. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of '2009.
B
C4U,R~R
S MAYOR
ATTEST:
JE IFER WALTERS, TY SECRETARY
BY:
APPR VEDA O LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: ~ .
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THE STATE OF TEXAS §
COUNTY OF DENTON §
ECONOMIC DEVELOPMENT PROGRAM GRANT AGREEMENT WITH
ALLEGIANCE HILLVIEW, LP
This Economic Development Program Grant Agreement ("Agreement") is made and
entered into by and between ALLEGIANCE HILLVIEW, LP ("Grantee"), a New York Limited
Partnership, and the CITY OF DENTON, TEXAS (the "City"), a Texas municipal corporation,
for the purposes and considerations stated below:
Section 1. Authorization.
This Agreement is made pursuant to the Economic Development Programs provisions of
TEXAS LOCAL GOVERNMENT CODE, Chapter 380 (the "Act") to promote local economic
development and to stimulate business and commercial activity in the City.
Section 2. Definitions.
"Eligible Improvements" means the Eligible Improvements listed in the categories set
forth on Exhibit A.
"Eligible Incentive Costs for Phase P" means the actual amount of money paid for any
Eligible Improvements in Phase I. The parties agree and understand that the actual cost of any
individual category of Eligible Improvements listed may vary from the corresponding estimated
amount listed in Exhibit A, and Grantee shall be permitted to move costs from one category to
another as long as the total Eligible Incentive Costs for Eligible Improvements in Phase I
exceeds $20 million. In order to qualify for the Program Grant for Phase I, a minimum of $20
million must be expended for Eligible Improvement Costs for Eligible Improvements in Phase I.
"Eligible Incentive Costs for Phase II" means the actual amount of money paid for any .
Eligible Improvements in Phase II. The parties agree and understand that the actual cost of any
individual category of Eligible Improvements listed may vary from the corresponding estimated
amount listed in Exhibit A, and Grantee shall be permitted to move costs from one category to
another as long as the total Eligible Incentive Costs for Eligible Improvements in Phase II
exceeds $42 million. In order to qualify for the Program Grant for Phase II, a minimum of $42
million must be expended for Eligible Improvement Costs for Eligible Improvements in Phase II.
"Grantee" means Allegiance Hillview, LP, its successors, or any party to whom
Allegiance Hillview, LP may assign this Agreement.
"Highway 380 Improvements" means the reconstruction of US 380, including but not
limited to, two additional lanes (one on the north side of US 380 and one on the south side) of
US 380 adjacent to the Property, including required utility relocations from the intersection of
US 380 and Bonnie Brae to the intersection of US 380 and the nearest service road right-of-way
for Interstate 35.
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"Monthly Sales Tax Report" means the monthly report received from the Texas State
Comptroller that shows the amount of Total Taxable Sales for a month period.
"Phase I" means the Property located on the north side of Highway 380, consisting of
approximately 153.37 acres as described in Exhibit B.
"Phase II" means the Property located on the south side of Highway 380, consisting of
approximately 256.91 acres and as shown on Exhibit B.
"Program Effective Date for Phase I" has the meaning given to such term in Section 3 of
this Agreement.
"Program Effective Date for Phase IF has the meaning given to such term in Section 3 of
this Agreement.
"Program for Phase I" means 180 consecutive monthly payments of Program Grant for
Phase I installment payments.
"Program for Phase II" means 240 consecutive monthly payments of Program Grant for
Phase II installment payments.
"Program Grant for Phase P' means a grant of a percentage of the 1.5% sales tax collected
by the City with respect to the Total Taxable Sales for a period of 180 consecutive months for
Phase I as outlined in Table 1 below. The Program Grant for Phase I shall not exceed the lesser
of $20 million or the Eligible Incentive Costs for Phase I.
Table 1.
Phase I - Property North of Highway 380
Percentage of Term
City 1%% Sales Tax
Until a total of $12 million in grant payments for
60% Phase I have been paid, or 60 months after the
Program Effective Date for Phase 1, whichever
comes first.
Until a total of $15 million in grant payments. for
50% Phase I have been paid, or 120 months after the
Program Effective Date for Phase I, whichever
comes first.
Until a total of $20 million in grant payments for
33.3% Phase I have been paid, or 180 months after the
Program Effective Date, whichever comes first.
The total term for Phase I will not exceed 180 monthly grant payments and
will not exceed a total of $20 million in grant payments.
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"Program Grant for Phase II" means a grant of a percentage of the 1.5% sales tax
collected by the City with respect to the Total Taxable Sales for a period of 240 consecutive
months for Phase 11 as outlined in Table 2 below. The Program Grant for Phase II shall not
exceed the lesser of $42 million or the Eligible Incentive Costs for Phase II.
Table 2.
Phase II - Property South of Highway 380
Percentage of
-City 1%% Sales Tag Term
Until a total of $15 million in grant payments for
60% Phase II have been paid, or 72 months after the
Program Effective Date for Phase II, whichever
comes first.
Until a total of $30 million in grant payments for
50% Phase II have been paid, or 156 months after the
Program Effective Date for Phase II, whichever
comes first.
Until a total of $42 million in grant payments for
33.3% Phase II have been paid, or 240 months after the
Program Effective Date, whichever comes first.
The total term for Phase II will not exceed 240 monthly grant payments and
will not exceed a total of $42 million in grant payments.
"Property" means that certain tract of approximately 410 acres more particularly
described in Exhibit B attached hereto.
"Required Infrastructure for Phase I" means the road and public utility infrastructure
required to support the development of the Retail Improvements in Phase 1, including but not
limited to, Highway 380 Improvements and the road and utilities in it providing service to the
contemplated residential development at the north of Phase I.
"Required Infrastructure for Phase II" means the road and public utility infrastructure
required to support the development of the Retail Improvements in Phase II, including but not
limited to, the portion of Heritage Trail located within Phase II.
"Retail Improvements in Phase I" means a minimum of_400,000 square feet of retail
shopping center buildings located in Phase I.
"Retail Improvements in Phase II" means a minimum of 600,000 square feet of retail
shopping center buildings located in Phase II, comprised of the Town Center (as described by the
zoning applicable to the Property), and other retail development in Phase 11.
"Substantial Completion" means: (i) with respect to the Retail Improvements in Phase I,
when certificates of occupancy have been issued for the Retail Improvements in Phase I; (ii) with
respect to the Required Infrastructure for Phase I, when the Required Infrastructure for Phase I
has been constructed in accordance with City and TxDot standards and inspected and accepted
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by the City or TxDot, as applicable; (iii) with respect to the Retail Improvements in Phase II,
when certificates of occupancy have been issued for the Retail Improvements in Phase II; and
(iv) with respect to the Required Infrastructure for Phase II, when the Required Infrastructure for
Phase II has been constructed in accordance with City and TxDot standards and inspected and
accepted by the City or TxDot, as applicable.
"Total Taxable Sales" means the total amount of all sales from which sales and use tax is
collected from businesses located on Phase I, or Phase II, as applicable, excluding sales
occurring at any Dillard's, J.C. Penney Co., Macy's, Sears Roebuck and Co., Bames & Noble,
DSW (Discount Shoe Warehouse), and Ross Dress for Less that locates within the Property and
closes any store located within the retail shopping area commonly known as the "Golden
Triangle Mall."
"TxDot" means the Texas Department of Transportation.
"US 380" means U.S. Highway 380.
Section 3. Term
3.1. This Agreement shall be effective as of the date of execution by both parties. At
any time following execution of this Agreement and following Substantial Completion of the
Required Infrastructure for Phase I (but not before January 1, 2010, and not later than January 1,
2013), Grantee may designate the first day of any month to be the Program Effective Date for
Phase I by providing written notice to the City at least 60 days prior to the designated Program
Effective Date for Phase I. The City will begin making Program Grant for Phase I installment
payments on the Program Effective Date for Phase I and shall continue to make such installment
payments for 180 consecutive months as provided by this Agreement. This Agreement will
terminate with respect to the Program Grant for Phase I upon the earlier to occur of. (i) the
payment to Grantee of the full amount of the Program Grant for Phase I, or (ii) the payment to
Grantee of all Program Grant for Phase I installment payments regardless of whether Grantee has
been paid the full amount of the Program Grant for Phase I.
3.2. This Agreement shall be effective as of the date of execution by both parties. At
any time following execution of this Agreement and following Substantial Completion of the
Required Infrastructure for Phase II (but not before January 1, 2010, and not later than January 1,
2015), Grantee may designate the first day of any month to be the Program Effective Date for
Phase II by providing written notice to the City at least 60 days prior to the designated Program
Effective Date for Phase II. The City will begin making Program Grant for Phase II installment
payments on the Program Effective Date for Phase II and shall continue to make such installment
payments for 240 consecutive months as provided by this Agreement. This Agreement will
terminate with respect to the Program Grant for Phase II upon the earlier to occur of. (i) the
payment to Grantee of the full amount of the Program Grant for Phase II, or (ii) the payment to
Grantee of all Program Grant for Phase II installment payments regardless of whether Grantee
has been paid the full amount of the Program Grant for Phase II.
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Section 4. Program Grant
4.1. For each month of the Program Grant for Phase I term, the City agrees, subject to
the conditions contained in this Agreement, to make a Program Grant for Phase.I installment
payment to Grantee on or before thirty days following the City's receipt from the State
Comptroller of the Monthly Sales Tax Report indicating Total Taxable Sales from businesses
located on Phase I. Monthly Program Grant for Phase I installment payments shall be calculated
as provided in Section 5 below. Issuance of the first certificate of occupancy by the City to a
tenant within Phase I shall be a condition precedent to the initiation of Program Grant for Phase I
installment payments. Program Grant for Phase I installment payments may be withheld at any
time if there are delinquent property taxes on any property located in the City of Denton owned
by Grantee and will not be resumed until such delinquency is cured. Notwithstanding anything
contained herein to the contrary, the Program Grant for Phase I installment payments will cease,
this Agreement will automatically terminate as to Phase I, and Grantee will refund to the City all
Program Grant for Phase I installment payments previously made if Substantial Completion of
the Retail Improvements in Phase I has not occurred on or before January 1, 2013. In addition,
the City, in its sole discretion, may terminate this Agreement as to Phase I if Substantial
Completion of the Required Infrastructure for Phase I has not occurred on or before January 1,
2013.
4.2. For each month of the Program Grant for Phase II term, the City agrees, subject to
the conditions contained in this Agreement, to make a Program Grant for Phase II installment
payment to Grantee on or before thirty days following the City's receipt from the State
Comptroller of the Monthly Sales Tax Report indicating Total Taxable Sales from businesses
located on Phase II. Monthly Program Grant for Phase II installment payments shall be
calculated as provided in Section 5 below. Issuance of the first certificate of occupancy by the
City to a tenant within Phase II shall be a condition precedent to the initiation of Program Grant
for Phase II installment payments. Program Grant for Phase II - installment payments may be
withheld at any time if there are delinquent property taxes on any property located in the City of
Denton owned by Grantee and will not be resumed until such delinquency is cured.
Notwithstanding anything contained herein to the contrary, the Program Grant for Phase II
installment payments will cease, this Agreement will automatically terminate as to Phase II, and
Grantee will refund to the City all Program Grant for Phase II installment payments previously
made if Substantial Completion of the Retail Improvements in Phase II has not occurred on or
before January 1, 2015. In addition, the City, in its sole discretion, may terminate this
Agreement as to Phase II if Substantial Completion of the Required Infrastructure for Phase II
has not occurred on or before January 1, 2015.
Section 5. Computation of Program Grant
5.1. Program Grant for Phase I installment payments for each month of the Phase I
term shall be made in amounts as set forth in Table 1 below based on the applicable percentage
of the 1.5% sales tax collected by the City with respect to the Total Taxable Sales for the
preceding month indicated by the most recent State Comptroller's Monthly Sales Tax Report for
Phase I. The City's obligation to make such payments is contingent upon the City's receipt of the
Monthly Sales Tax Report; provided, however, if the State Comptroller shall cease to issue
Monthly Sales Tax Reports, the City and Grantee shall cooperate to arrive at a reasonably
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equivalent and mutually agreeable alternative method of computing monthly installment
payments.
Table 1.
Phase I - Property North of Highway 380
Percentage of
-City 1%% Sales Tax Term
Until a total of $12 million in grant payments for
60% Phase I have been paid, or 60 months after the
Program Effective Date for Phase I, whichever
comes first.
Until a total of $15 million in grant payments for
50% Phase I have been paid, or 120 months after the
Program Effective Date for Phase I, whichever
comes first.
Until a total of $20 million in grant payments for
33.3% Phase I have been paid, or 180 months after the
Program Effective Date, whichever comes first.
The total term for Phase I will not exceed 180 monthly grant payments and
will not exceed a total of $20 million in grant payments.
Any adjustments resulting from overpayment or underpayment of sales tax by a retail
business(es) located within Phase I will be reflected in the monthly Program Grant for Phase I
installment payment in which such overpayment or underpayment was reported by the State
Comptroller. If for any reason the City is required to remit back to the State Comptroller sales
tax previously collected on reported sales within Phase I, the next scheduled Program Grant for
Phase I installment payment will be adjusted by the amount of overpayment or underpayment.
Should the adjustment result in a negative Program Grant for Phase I installment payment due,
Grantee will remit the balance to the City within 30 days.
5.2. Program Grant for Phase II installment payments for each month of the Phase II
term shall be made in amounts as set forth in Table 2 below based on the applicable percentage
of the 1.5% sales tax collected by the City with respect to the Total Taxable Sales for the
preceding month indicated by the most recent State Comptroller's Monthly Sales Tax Report for
Phase II. The City's obligation to make such payments is contingent upon the City's receipt of
the Monthly Sales Tax Report; provided, however, if the State Comptroller shall cease to issue
Monthly Sales Tax Reports, the City and Grantee shall cooperate to arrive at a reasonably
equivalent and mutually agreeable alternative method of computing monthly installment
payments.
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Table 2.
Phase II - Property South of Highway 380
Percentage of
-City 1%% Sales Tax Term
Until a total of $15 million in grant payments for
60% Phase II have been paid, or 72 months after the
Program Effective Date for Phase II, whichever
comes first.
Until a total of $30 million in grant payments for
50% Phase II have been paid, or 156 months after the
Program Effective Date for Phase II, whichever
comes first.
Until a total of $42 million in grant payments for
33.3% Phase II have been paid, or 240 months after the
Program Effective Date, whichever comes first.
The total term for Phase II will not exceed 240 monthly grant payments and
will not exceed a total of $42 million in grant payments.
Any adjustments resulting from overpayment or underpayment of sales tax by a retail
business(es) located within Phase II will be reflected in the monthly Program Grant for Phase II
installment payment in which such overpayment or 'underpayment was reported by the State
Comptroller. If for any reason the City is required to remit back to the State Comptroller sales
tax previously collected on reported sales within Phase II, the next scheduled Program Grant for
Phase II installment payment will be adjusted by the amount of overpayment or underpayment.
Should the adjustment result in a negative Program Grant for Phase II installment payment due,
Grantee will remit the balance to the City within 30 days.
Section 6. Other Grantee Obligations
In consideration of the Program Grant for Phase I and the Program Grant for Phase II,
Grantee agrees as follows:
(a) The Retail Improvements for Phase I and the Retail Improvements for
Phase II shall be designed and constructed to provide attractive retail environment
consistent with other first class retail centers in the Dallas-Fort Worth area. Design shall
reflect an attention to architectural details, the use of high quality materials and finishes,
visual interest, and articulation of building facades that is generally consistent with the
design features shown in Exhibit C.
(b) In the event of tenant turnover, Grantee shall diligently seek to obtain
quality retail tenants that are new to the Denton retail market. However, existing Denton
retail businesses shall not be prohibited from leasing retail space at the Property.
(c) Grantee shall fund the Highway 380 Improvements currently estimated to
be approximately $10,000,000, and shall guarantee funding by providing the City with an
irrevocable letter of credit pursuant to the Development Agreement for Rayzor Ranch
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(US 380). Failure to provide the letter of credit will be a default under this Agreement,
and the City may withhold all Program Grant payments until an executed letter of credit
is received by the City. Should Grantee receive reimbursement for the Highway 380
Improvements from TxDot, the amount of such reimbursement shall be deducted from
the total amount of the Program Grant.
(d) The Property will not be conveyed during the term of this Agreement to
any entity whose ownership of the Property would cause the Property to become exempt
from ad valorem taxes unless an agreement with the City to ensure a program of
payments in lieu of ad valorem taxes has first been agreed upon, provided, however, this
subsection shall not apply to the property designated for the future museum to be located
on the Property, or property designated for parks or other public uses.
(e) Grantee will dedicate within the Property all required right-of-way for the
future expansion of Bonnie Brae as a secondary arterial.
(f) In the event Grantee or any of its affiliates purchases any retail buildings
in the retail shopping area commonly known as the "Golden Triangle Mall," Grantee or
its affiliate shall offer in writing to sell such buildings to FMP Denton, LLC for: (i) the
then fair market value of such buildings as established by a qualified, independent MAI
appraiser, or (ii) the amount of any arms-length offer to purchase such buildings received
by Grantee or its affiliate from any third-party retail user unrelated to Grantee or any of
its affiliates, whichever is greater.
Section 7. Audits and Monitoring
During the term of this Agreement, the City reserves the right to conduct audits of the
sales and use tax records of businesses located within the Property if, in the sole opinion of the
City, such action is determined to be necessary. Grantee agrees upon request to use reasonable
efforts to assist the City in obtaining such records from tenant taxpayers. Failure to provide such
assistance shall be grounds for default, and City *may withhold any Program Grant installment
payments until such assistance is provided. During the term of this Agreement, the City will
keep, or cause to be kept, copies of the Monthly Tax Reports and proper and current books and
accounts in which complete and accurate entries shall be made of the amount of sales taxes
received by the City from the State of Texas attributed to retail sales within both Phase I and
Phase II and such other calculations, allocations and payments required by this Agreement.
During the term, the City shall prepare within 180 days after the close of each fiscal year of the
City, a complete financial statement for such year in reasonable detail covering the above
information, and shall furnish a copy of such statement to Grantee. Upon the request of Grantee,
and at Grantee's expense, City shall have the annual Program Grant for Phase I and the Program
Grant for Phase II financial statements prepared by an independent certified public accountant.
Upon request of Grantee, City shall provide copies of City records related to the Program Grant
for Phase I and/or the Program Grant for Phase II to investors, lenders, or other parties
designated by the Grantee.
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Section 8. Default
If a party fails to perform any of its obligations under this Agreement and such failure is
not cured within 30 days after written notice, the failure of the non-performing party to cure
within such 30 day period (or to commence to cure if the nature of the failure cannot reasonably
be cured within 30 days) shall constitute a default under this Agreement and shall entitle the non-
defaulting party to all remedies available at law or in equity (including injunctive relief, specific
performance, and suspending or withholding Program Grant for Phase I or Program Grant for
Phase II payments); PROVIDED, HOWEVER, NOTWITHSTANDING THE FOREGOING, (i) MONETARY
DAMAGES SHALL BE LIMITED TO THE AMOUNT NECESSARY TO ENFORCE SPECIFIC
PERFORMANCE OF THE FAILED OBLIGATION; (ii) THE CITY CANNOT TERMINATE THIS
AGREEMENT AS TO PHASE I UNLESS (1) SUBSTANTIAL COMPLETION OF THE RETAIL
IMPROVEMENTS IN PHASE I DOES NOT OCCUR ON OR BEFORE JANUARY 1, 2013 AS PROVIDED
BY SECTION 4 HEREOF, (2) SUBSTANTIAL COMPLETION OF THE REQUIRED INFRASTRUCTURE
FOR PHASE I DOES NOT OCCUR ON OR BEFORE JANUARY 1, 2013 AS PROVIDED BY SECTION 4
HEREOF, OR (3) GRANTEE IS IN DEFAULT OF ITS OBLIGATION TO PROVIDE THE LETTER OF
CREDIT AS PROVIDED BY SECTION 6(C) HEREOF; (ill) THE CITY CANNOT TERMINATE THIS
AGREEMENT AS TO PHASE II UNLESS (1) SUBSTANTIAL COMPLETION OF THE RETAIL
IMPROVEMENTS IN PHASE II DOES NOT OCCUR ON OR BEFORE JANUARY 19 2015 AS PROVIDED
BY SECTION 4 HEREOF, (2) SUBSTANTIAL COMPLETION OF THE REQUIRED INFRASTRUCTURE
FOR PHASE II DOES NOT OCCUR ON OR BEFORE JANUARY 19 2015 AS PROVIDED BY SECTION 4
HEREOF, OR (3) GRANTEE IS IN DEFAULT OF ITS OBLIGATION TO PROVIDE THE LETTER OF
CREDIT AS PROVIDED BY SECTION 6(C) HEREOF; AND (iv) THE CITY MAY NOT TERMINATE,
WITHHOLD OR SUSPEND PAYMENTS, OR TAKE ANY OTHER REMEDY WITH RESPECT TO
PROGRAM GRANT FOR PHASE I PAYMENTS OR OTHERWISE RELATED TO PHASE I EXCEPT FOR
DEFAULTS RELATED TO PHASE I AND THE CITY MAY NOT TERMINATE, WITHHOLD OR SUSPEND
PAYMENTS, OR TAKE ANY OTHER REMEDY WITH RESPECT TO PROGRAM GRANT FOR PHASE II
PAYMENTS OR OTHERWISE RELATED TO PHASE II EXCEPT FOR DEFAULTS RELATED TO
PHASE H.
Section 9. Mutual Assistance
The City and the Grantee shall do all things necessary or appropriate to carry out the
terms and provisions of this Agreement and to aid and assist each other in carrying out the terms
and provisions of this Agreement.
Section 10. Indemnity
It is understood and agreed that Grantee in performing its obligations hereunder is acting
independently and the City assumes no responsibilities or liabilities in connection therewith to
third parties and Grantee agrees to defend, indemnify and hold harmless the City from and
against any and all claims, suits, and causes of action of any nature whatsoever arising out of
Grantee's obligations hereunder. Grantee's indemnification obligations include the payment of
reasonable attorney's fees and expenses incurred by the City in connection with such claims,
suits, and causes of action.
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Section 11. Representations by the City
The City represents that:
(a) The City is a home rule Texas municipal corporation and has the power to
enter into and has taken all actions to date required to authorize this Agreement and to
carry out its obligations hereunder;
. (b) The City knows of no litigation, proceedings, initiative, referendum,
investigation or threat of any of the same contesting the powers of the City or its officials
with respect to this Agreement that has not been disclosed in writing to Grantee;
(c) The City knows of no law, order, rule or regulation applicable to the City
or to the City's governing documents that would be contravened by, or conflict with the
execution and delivery of this Agreement;
(d) This Agreement constitutes a valid and binding obligation of the City,
enforceable according to its terms, except to the extent limited by bankruptcy, insolvency
and other laws of general application affecting creditors' rights and by equitable
principles, whether considered at law or in equity. Subject to the indemnity provided by
Section 10 of this Agreement, the City will defend the validity of this Agreement in the
event of any litigation arising hereunder that names the City as a party or which
challenges the authority of the City to enter into or perform its obligations hereunder.
City recognizes that Grantee intends to commence construction and expend substantial
monies in reliance upon the accuracy of the representation and warranty of the City as set
forth in this Section 11.
Section 12. Representations and Warranties by Grantee
Grantee represents that:
(a) Grantee is a New York Limited Partnership duly organized and validly
existing under the laws of the State of Texas and is, or will prior to the effective date of
this Agreement, be qualified to do business in the State of Texas; has the legal capacity
and the authority to enter into and perform its obligations under this Agreement;
(b) The execution and delivery of this Agreement and the performance and
observance of its terms, conditions and obligations have been duly and validly authorized
by all necessary action on its part to make this Agreement;
(c) Grantee knows of no litigation proceeding, initiative, referendum, or
investigation or threat of any the same contesting the powers of the City, Grantee or any
of its principals or officials with respect to this Agreement that has not been disclosed in
writing to the City; and
(d) Grantee has the necessary legal ability to perform its obligations under this
Agreement and has the necessary financial ability, through borrowing or otherwise, to
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construct the Improvements. This Agreement constitutes a valid and binding obligation
of Grantee, enforceable according to its terms, except to the extent limited by bankruptcy,
insolvency and other laws of general application affecting creditors' rights and by
equitable principles, whether considered at law or in equity.
Section 13. Rights of Lenders and Interested Parties
The City is aware that financing for acquisition, development, and/or construction of the
Retail Improvements and Required Infrastructure may be provided, in whole or in part, from
time to time, by one or more third parties, including, without limitation, lenders, major tenants,
equity partners and purchasers or developers of portions of the Property (collectively, "Interested
Parties"). In the event Grantee fails to perform any of its obligations under this Agreement, all
notices to which Grantee is entitled under Section 8 hereof shall be provided to the Interested
Parties at the same time they are provided to Grantee (provided the Interested Parties have
previously been identified to the City and provided their notice addresses). If any Interested
Parties are permitted under the terms of its agreement with Grantee, to cure the event of default
and/or to assume Grantee's position with respect to this Agreement, the City agrees to recognize
such rights of any Interested Parties and to otherwise permit such Interested Parties to cure the
event of default and to assume all of the rights and obligations of Grantee under this Agreement.
The City shall, at any time upon reasonable request by Grantee, provide to any Interested Party
an estoppel certificate or other document evidencing that this Agreement is in full force and
effect and that no event of default by Grantee exists hereunder (or, if appropriate, specifying the
nature and duration of any existing event of default). Upon request by any Interested Party, the
City will enter into a separate assumption or similar agreement with such Interested Party,
consistent with the provisions of this Section 13.
Section 14. Compliance
This Agreement shall be conditioned upon and subject to compliance with all applicable
federal, state and city laws, ordinances, rules and regulations, including, without limitation, all
provisions of the Development Code of the City of Denton.
Section 15. Limitation
This Agreement shall never be construed as constituting permission or authority for
development or construction pursuant to Chapter 245 of the Texas Local Government Code.
Section 16. Changes and Amendments
Except as specifically provided otherwise in this Agreement, any alterations or deletions
to the terms of this Agreement shall be by written amendment executed by both parties to this
Agreement. In the event the Texas Legislature increases or decreases the City's 1 %2 per cent
sales tax allocation, and such increase or decrease is adopted by the City Council, such action
shall not constitute an amendment, change or alteration to this Agreement.
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Section 17. Successors and Assigns
This Agreement shall be binding on and inure to the benefit of the parties, their respective
successors and assigns. Grantee may assign all or part of its rights and/or obligations hereunder
as related to Phase I and/or Phase II upon written notice to the City of such assignment. If an
assignee agrees in writing to be bound by the terms and conditions of this Agreement and
executes an amendment to this Agreement, the assignor shall be released as to the obligations
assigned but not as to any obligations or liabilities of the assignor to the City that arose prior to
the assignment.
Section 18. Notice
Any notice and/or statement required or permitted to be delivered shall be deemed
delivered five business days after being deposited in the United States mail, certified with return
receipt requested, postage prepaid, addressed to the appropriate party at the following addresses,
or at such other addresses provided by the parties in writing. Any such notice and/or statement
shall also be deemed delivered when delivered by a nationally recognized delivery company
(e.g., FedEx or UPS) with evidence of delivery signed by anyone at the delivery address.
If to the Grantee:
Allegiance Hillview, LP
1345 Avenue of the Americas - 46`h Floor
New York, New York 10105
Attention: Constantine Dakolias, President
with a copy to:
Allegiance Hillview, LP
5221 North O'Connor Boulevard, Suite 700
Irving, Texas 75039
Attention: Andrew Osborne
If to the City:
City Manager
City of Denton
215 E. McKinney
Denton, Texas 76201
Phone: 940.349.8307
Fax: 940.349.8596
Page 12
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sAour documents\contracts\09\allegiance chapter 380 incentive agreement.doc
With a copy to:
City Attorney
City of Denton
215 E. McKinney
Denton, Texas 76201
Phone: 940.349.8333
Fax: 940.382.7923
Section 19. Venue
The obligations of the parties to this Agreement are performable in Denton County,
Texas, and if legal action is necessary to enforce same, exclusive venue shall lie in Denton
County, Texas.
Section 20. Applicable Laws
This Agreement is made subject to the provisions of the Charter and ordinances of City,
as amended, and all applicable state and federal laws.
Section 21. Governing Law
This Agreement shall be governed by and construed in accordance with the laws and
court decisions of the State of Texas.
Section 22. Benefit of Agreement
This Agreement is executed solely for the benefit of the parties and their successors and
assigns, and nothing in this Agreement is intended to create any rights in favor of or for the
benefit of any third party.
Section 23. Legal Construction/Partial Invalidity of Agreement
In case any one or more of the provisions contained in this Agreement 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 thereof and this Agreement shall be
considered as if such invalid, illegal, or unenforceable provision had never been contained in this
Agreement.
Page 13
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EXECUTED and effective as of th%~y of ;%-l~ '2009, by City, signing by
and through its Mayor, duly authorized to execute same by action of the City Council and by
Grantee, acting through its duly authorized officials.
2BBA. EN XS
UG G YOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
GRANTEE:
ALLEGIANCE HILLVIEW, L.P.,
a New York limited partnership
By: TH GP LLC, a Delaware limited
liability company, d/b/a TH Denton
GP LLC in the State of Texas,
its general partner
By:
Name: ~e
Title: hx+f r►? cp 5~~„a1br..
Page 14
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ACKNOWLEDGMENTS
STATE OF TEXAS }
COUNTY OF DENTON )
This instrument was acknowledged before me on the/ day of 2009, by
Mark A. Burroughs, Mayor of the City of Denton, Texas, on behalf of said city.
JENNIFER K. WAITERS
_ Nota Public, State of Texas 0 b 1 in an for the State of Texas
my Commission Expires
Decemer 2010
My Commission expires: 02 MAO
STATE OF TEXAS )
COUNTY OF )
This instrument was acknowledged before me on the ~11 day of Parch 2009 by
&A~y 6 A srne the &i6tited< t~rlbf TH GP LLC, a Delaware limited liability
company, d/b/a TH Denton GP LLC in the State of Texas, the General Partner of Allegiance
Hillview, L.P., a New York limited partnership, on behalf of the limited liability company and
limited partnership.
4NoP40blic, and for the State of exas
My Commission expires:
HEATHER N. CARTER
Notp..ry Public, State of Texas
s ' X: MyCommission Expires
nil June 06; 2012
Page 15
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EXHIBIT A
ELIGIBLE IMPROVEMENTS
Total Estimated Costs
Eligible Improvements for Phase I and Phase II
Hwy 380 Improvements $ 8,133,150
Site Drainage 4,720,750
Regional Drainage Improvements 2,696,750
Internal Commercial Roads, includes water and sewer 20,004,064
Scripture Road Improvements 675,050
Bonnie Brae Improvements 1,271,900
Public Parking Garage 6,730,375
Major Public Infrastructure Relocation 2,013,650
Miscellaneous Fees/Services 5,754,311
Interest During construction on Commercial Development 10,000,000
$ 62,000,000
A minimum of $20 million in Eligible Incentive Costs for Eligible Improvements must be
expended for Phase I of the project, including but not limited to, the construction of Hwy 380, in
order to qualify for Program Grant Payments for Phase I.
A minimum of $42 million in Eligible Incentive Costs for Eligible Improvements must be
expended for Phase II of the project, in order to qualify for Program Grant Payments for Phase
II.
Page 16
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Exhibit B
METES AND BOUNDS, PART ONE AND PART TWO
41028 ACRES (TOTAL)
FRANCIS.BATSON SURVEI, ABSTRACT NO. 43
B.B.B. & C R.R. COMPANY. SURVEY, ABSTRACT NO. 192
CITY OF DENTON, DENTON COUNTY, TEXAS
PART'ONE
BEING *tract of land situated in the Francis Batson.Survey; Abstrad No-43, in the City-of.Denton,. Denton
County, Texas, dieing all of a called 121 4759 acre tract (description of Shepherd HM Tract,; Tract 2),
descinbed'in deed to Denton:Hilivi@w, LP , _recorded in Denton Courtly Clerk's File No 2005.127450`of'the
Real.Proparty Records of Denton County, Texas,:atl'of a called 0.2254 acre-bad ffract'1)..azalled 2:101:7
acre tract.(Trad:2) and a called-2'2200 acre:tiact f ract:3)'describad Indeed to Quantum al Derrton.Self
Storage, :L p.. recorded .in.Volume 5021; Page 01847 of'.the Real Property Records of Denton County: Texas;
part,of a-called 18:269 acre tract, described in deed toDenton'Pn4*fty Joint Venture, recorded:in Denton
County Clerk's File No. 00-110101370.o f he Real Property Records_of Dent6h County; Texas, all ota called
2:999 acre; tract, described: in deed to De Hall. Propertiesi Ltd.,.recorded In Denton County Ctei i File No.
2005-4023! of the Real Pro party:Records of.Denton:County, Texas; being part of a.cafled 8.9217 acre tractof
wand described in Deed to:Mesquite Creek Development,. Inc.; rei orded in Wt.i.hne 4562, Pa9e'.0683 of.the
Real Property Records of Denton !Courity- Texas, 'and ail'of Lot 1 of.SANDY ADDITION, an addition td'the City
of. Danton,:Denton County; Texas, according Wthe plat thereof recorded in Vclurne 13. Page Oland Cabinet
J,. Slide'348_of. ",Plat . Records of Denton:Courity;. Texas, and being:more. panicularty described by metes.
and bounds,as:foilows:
BE at a 172•irich;lron:rod found for the;north.end of f-a corner'ciip a4ihe inlersedion,of_the north
right-of-way line of Vilest University Drive. (U.S. Highway No: 380; a 10020 foot wide public right•oi way) and
the .west righl,of-way'line of Bonnie:Brae Streel.(a variable width public,right-of=way);:forthe'most :easterfy
southeast'comerof the beforementioned Lot 1 of'SANDYADDITION;
THENCE: with the corner clip,- South 45'48'44' West,:a distance of 90'93:feet toga 3144nch iron rod found for
comer,
THENCE with the:north right=of-way'line of'West:University Drive: the following courses: and distances to wit: S
-North 89°07'28'•West, a distance of 773.40 feet to:a:5/&lnch Iron rod wr t . kHA" cap:set'.for comer,
-North. W%5'28"West, a distanco of 1761 77 _feet .fo a 1/2-inch Iron rod found for the.southdAst corner of
the called 8.9217!a6re,tract: _
THENCE feaving the north rlgtit=of-way line of West University Drive with,theeast line of the'8.92iTacre !reef,
North 00°23'40' East a;distance of 276.40 feet to^a point fOrcomer
q
0
THENCE. crossing the called 8.9217 acre tract, the following courses°and distances _t6,W.t;
--North 89°1052" West, a;dist'a.nca of°227:61 feet to 'a polnfforcomer 'P
=Nortfi 00'59'35' East, a distance of Z0.89 featto a.poiru fcr currier; 3 E
North 89°0025' West, .a.dlstance 6( 2§d.'60- feet too point Ibrcomerin the east,line of.Lot 1. Blodc.A,of r
PORTERIANDRUS.ADDITION. an-addition to.the Cityof.Denton; Denton County,.T.exas, according.-.tio7lhe g.
Plat thereof recorded in Cabinet O, Slide 45 ofahe Plat Records
of Denton Counly..Texas; o
r
M
,Page ! ot6
Cm0 limodatbe
FDD ith the east line of Lot 1. BlockA and-the east iineof Lot Z Bloc kA of PORTER/ANDRUS
,:an addition to the City.of Denton, Denton County, Texas; acoord'ng.to the plat thereof recorded in
Slide,856 of the:Plat Reeordsfof Denton: County, Texas, North OOISW47' West; a distance of 217.71
8-inch Iron rod Wlth "KHA' cap•set for the northeast comer.ofLot2, Block A;
ith the:north and west lines of Lott, Block A,.the following txiurses and distances to WUit88'42'36':West, a"distance of;400:01 feetto.a'5/8-inCKIron.rod With•'KHA'cep:set for
comer
h 01 °28'09'•:West, a diskance:of 28.89.feet.to;a;5/84nch'Imn rod with %W _cap s-e 4d the
ast comer of Lot 1R. Block t •of ALVIN AND CHARLOTTE,WHAL'EY ADDITION, an addition to the,
City of Denton, Denton County; Texas, according to the plat thereof recailed;in Cabinet I, SOde 148of
the Plat,Rekords. of Denton County, Texas;
THENCE leaving'the west line of lot 4 t fo& A .of PORTERlANDRUS ADDITION with the north One of Lot 1R.
Block 1. of ALVIN AND CHARLOTTE WHALEY ADDITION, North 88'3129- West; a 4istance of _399.39 feet:lo.
a 5/8-inch iron rod With 'KHA' cap -set in the nQrWdaste-ily itgtit-"y.7lne'Intastate Highway No. 35 (a
variable width public right-of-way) for,the most northerly northwest corner of,lot 1 R, Blodt1 ofALVIN AND,
CHARLOTTE WHALEY ADDITION;
'THENCE leaving the north line of Lot 1R. Block:l of ALVIN-AND Cf -ARLQTTE WHALEY ADDITION with the
northeasteily",right-ai way Gne.Interstate Highway No. 35, North '11i OT54 West, a: d6tance,of"632.67 feet to a'
5i8 inch iron n5d:vrilh iCHA' cap set. or.the southwest dan* 61 Lot-14 of,GREENWAY:CLUB ESTATES; an
addition to the City'of Denton, Denton County, Tems, according to the plat thereof recorded in'Vdume
Page 27 of the Plat Records.of Denton County, Texas;
THENCE teaving,the northeasterly right-of-way fine Interstate Highway;No. 3S with the south and east firms of
GREENWAY CLUB ESTATES,: tfie_ following Courses and.distances to wit
-North 73°1513° EasL.a:distance:of.518:797eet io a 618a*,,I ' rod With'KFIA° capsetfor.lhe
beginning of _a cu -6 to the right;
-Easterly, .with the curve to.the:righl, through acentral angle of'160
.4740', having a radius'of345.o0 feet;
and:,Oordatearing and distance otNorth'81'39'03" East; 10o.T6 feet; an arG dlstance.of 101:93 feet to a E'
inch iron rod With 'KHA' caplet for.the end of-the curve;
i;
-North 'a9_:5**8'43"'East, a distance of 364;46 feet to a5J$-inch iron and with 'KHA-:cap.setfor;
North 00°57'04' West,. a distance of 450:70;feet to a:W84rxhIron _rod with 'KHA' cap set for the o
southwest comer of lot 1 Block 10 of WESTGATE HEIGHTS an addiffon:to the City of Denton; Denton
County, Texas; according to the plat thereofrecorded In'Cabinet E. Slide 78 of the Plel Records:of h
Denton :County; Texas;
THENCE leaving;the east line of GREENWAY CLUB ESTATES with.the sotith-and,eastlines ofWESTGAT.E
HEIGHTS; the following :courses:anddistances towit
3
-North 89'3737- East, a distance of 48.23.feet to 6;5/8-inch.iron.rod with"KHA° cap'set for comer
-South 87°34'57',East a 4161ance,of 104299 feet to a 5/840ch Iron rod with'.KHA' cap "set for comer,
--North 00°3257' East,'a dtstariC* of 318.04 feet to a 5/84nch Iron rod with'KHA-,cap sat loF4he most
n6rtherty:riorthwest comerof-the beforementioned 121.4759 acre tract o
THENCE: leaving the east line of .WESTGATE HEIGHTS. with the north.Iide;of the°121.4759 acre:tract. South " E
89"1356" East, a distance of 2067.29 feet to a 518-inch iron rod.with•KHA° cap.set,in lhe`west right-0f-uray
line of Bonnie Brae Sheet;
s
P
t;
e=
Page 2 of.6
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F eaving the:north,line of the 121A759 acre tract with the west righl-0t-way line of Bonnie Brae Street.
ng courses and 66stances to wit:
uth 00°37'18' West; a distance of 1455:38 feet to a 518-Inch Iron rod with"'KHA'rap set for comer;
-South'00'26'45' West, a distance of 568.7D feet to the POINT OF BEGINNING and containing 15337
acies of land.
'Bearing'system based upon Texas State Plane Coordinate System..using monuments ROB10108.AND
:R0610060;
PART TWO
BEING: a tract of land'sitOMW In the B.B.B. 8. C.R.R. CompanySurvey, Abstract No. 192,_in.the City of
Denton, Denton County, Texas, being part of a called 265.6365 acre tract of land, (description of-Shephard
Hail Track: Tract 1), described in deed to: Denton HiIlvlew,"LP., recorded in, Denton County-Clerks File.No..
2005=127450.of the Real ,Ptoper yRecords of Denton County; Texas; andjW:of Lot3'of LOTS-1,2.1p
PEARCY/CHRISTON ADDITION ;No. 1.4n addition to. the. City of Denton, Denton County, Texas; according to
:the plat thereol'seeorded in Cabinet B, Siide.34 of the Plat'Records.of Dentoii County, Texas, ant. being more
particularly d&.dibed bvimetes and bounds;as follows:
BEGINNING at a 518-inch-iron rod .found to the south rfghHOf-way:line of West University Drfve'(U.S. Highway
No: 380, a 100.20 foot wide public right-of=way);tor'the norttieity common comer'of Lots'2 and'3 of the
befdrementiuoned LOTS 1;2;8;3 PEARCY1QHRI,STQN ADDITION;
THENCE leaving thwsouth right-0f-way Ilne of West'Unlvefsity`Drive with.the:common line of Lots 2 and 3,
.South 01'08'26' West; a distance. of•600 00 feet to a 518-Inch iron rod found for the southerly common coiner
:of Lots 2 and:3;
THENCE leaving the common tine:of Lots:2 and 3•with the south.llnes.of Lot2'and Lott-C:of-LOTS-1-A,1-B,
1-C PEARCY/CHRISTON ADDITION No. 1, an addition to the`City of :Denton„Denton County. Texas,
according to'the ;plat thereof recorded in Cabinet L, Slide'166 of the Plat•Records of.-Denton County, Texas,
South 89'04'34' East, passing the southeat Vcom6t of Lot 1-C at. a distance of 71.1.59'(W and.continuing for "
d total distance of 730.60 feetao a 5l6-inch iron fod. found in the west right-cf-way,line of Borinletras Streei:(a q
variable width public,right-o1-D+iay) for the most easterly northeast corner-cf. the _beforemerttioned.265.6365 °
acre tract;
THENCE withahe west right-of-way line of Bonnie, Bree Street, the' following.coumes anddistances1o.witz
South 66'S8'S4' .West,; a_distance:of, 1438.01 feet to a 5184hch iron'rod,wiW'KI1A' cap sat:tor carver;
-Sou1h:00°48'51" tlVest 6:6- ante of 1175:56 feet to a 5184nch'irori rod, iM'KFW-ddp set fdi the a
beginning of a curie to he fight;
-Southwesterly with the curve to.the right; through :a central aWe:of 45°0158",`having a,radus of a
321.07_feel,:and chord, bearing and d stance'of South 23.19'47-WesL-245.91 feet, an arc.distance, of
252.35 feel:to a S g4nch iron rod found for the beginning'of a reverse ciuve to the"left
--Southwesterly with the-the.airve to the ieft, through a central angle of 57 3156',:having iiradiis d- ° g
•392.01 feel: and chord bearing and distance of South'1.T04'48' West;.37.'7.30 feet, an arr;'distance of 0 t
393.63 feetto a 518-inch iron rod :found for`the;end of the curve;
South 11'41`10' East; a distance of 10.57 feel to a 618-inch Iron rod. found for the north end of a.
ccrria dip at the intersection of the northtrigWof-way Ifne of Sc iplure Street (a variable.lh public a
right-of=way) and the west:[ight=of=way1ine of Bonnie Bra&Streel;
Y
Y
THENCE with the c omerdip; South 39°33'50' West,:a distance of 11.48 feet to a.5/8-Inch Iron-rod found1or
the sorith end of Ih6:comer`dip;. u
Page 3W d
FTHENCELiwith the north right-ofway line of Scripture Street, North x°58'00' Wast, a distanceof 1265.cMron•rod.found.1n the'south line.of the 265.6365acre trad
eaving the north right-of-way line of Scripture Street; ft-following courses and distances to volt.
rth 0.1 *OZ00' East; a distance of 500.06.feetYo.a,5f8 iru~ i. rod found for comer,
rth:88'58'00' West, a distance o1f66116 a:5/8-kichIron rod found for comer;
th 0.1°02'00' West,'a distance of506.1 6 feet;to a 518=inch troll rodtaurid to the norlh:rigtit of-way
of Scripturo Street;
THENCE ti 4h the north right=of-way line of Scripture Skeet,'Qw following courses and distances to wit
-North 88°58'00' West, a distance of 318.44. feot:to a 5/84h6h lren.rod with "IM" cap:set for corner,
-North 88°48'26' West, a distance of 41.73 feet toe 5M-inch iron.rod found in the northeasterly:
right-of way:.Iine Interstate Highway No: 35.(a variable width public right-Of:way) ar d,the north'
right-of-way-1166 of Scripture Street lot the most,southedy southwest comerof the 256:6365 acre'tra tf
THENCE with the northeastbd right-of-way line'lnterstate Highway'No. 35, the.Folto ing courses and
distances'lo wit-
-.North 15'50'30' West; a disldi c& of 38:32 feet'io a 5/8-inch im rod with `KFtA`.cap:set for comer
-North I'V24'60` •West,. a distance of 3494.36 teat to _a 5/84nch Trion rod;found for corner;
-Nor1h'14°50'06" East :a.distance of 171.01 feet io:a 3-inch brass diskin concrete found for comer,
=North 46°04`127 East, 4 distance of,303 95 feet &a'518drich iron rod'found`for comer;
-North, 60°3222' East, a di'stance.of i 14.22-4et:to a 6/8-inchlron rod. found for:comar,
=North 00658'25' East; a distance of13:09 feet to a concxete.monument Found'in the south right;of-"Y
Une'of West University Drive;
THENCE. leaving thew rioittieasteify riglit-of-way line interstate Highway. No. 35 With'the south ri t-0f
9h_rraY line
of West University Qrive, the :following courses And distarioes,to Wit
-South 88'56'28'.East, a_distance of 2440.06 feet to a 5184nch`iron rod Wtth'tQiA' rap senor carrier;
South 89'01'07`'.Eas4adistance of 117.72 feet to the POINT OF BEGINNING. and containing 256.91. g
acres .of.land.
c
Bearing system based upon Texas State Plane' Coordinate System using rrioriunients.R0610108'AND n
R0610060:
This document was, prepared under. 22 TAC' §663.21`,.does rwt rettect,*e results of an on.the ground survey.
and ie not to be used to convey or establish interestsAn real`.properly exeept.those rights. and interesis:irrmplled
or established by the creatlon.or reconfiguration or the:boundary,of the political subdivision for whiCh.it was y
prepared.
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PART ON&.:15.3.37-ACRES _
FRANCIS.BATSO*SURVEY,.ABSTRAcrm0:_ 4:3
:CITY OF.DFNTON, DENTON COUNTY, TEXAS'
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