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HomeMy WebLinkAboutResolution - 2016-R0262 - Acquisition & Funding Agreement, Irrevocable Offer - Mcdougal - North Point PID - 08/11/2016Resolution No. 2016-RO262 :Item No. 4.3 August 11, 2016 RESOLUTION WHEREAS, on October 28, 2004, the City Council of the City of Lubbock passed Resolution No. 2004-RO543 authorizing and establishing the North Point Public Improvement District for, among other things, the development of green space that is open to the public for the use as a walking trail to be located under a utility easement; and WHEREAS, the North Point Public Improvement District's Board of Directors has approved plans for the walking trail, approved the budget for the walking trail, and desires that McDougal Land Company, LLC proceed with the construction of the walking trail; and WHEREAS, the McDougal Land Company, LLC desires to undertake the construction and development of the walking trail in accordance with the plans, design, and budget for the walking trail; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock and the North Point Public Improvement District, an Acquisition and Funding Agreement and Irrevocable Offer for the construction of a public walking trail in the North Point Neighborhood, by and between the City of Lubbock and McDougal Land Company, LLC of Lubbock, Texas, and related documents. Said Acquisition and Funding Agreement and Irrevocable Offer are attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on August 11. 2016 DANIEL M. POA, MAYOR ATTEST: jo Rebec Garza, City Secretary APPROVED AS TO CONTENT: C (I JfVL -- Cheryl Brock, Executive Director of Budget APPROVED AS TO FORM: A--, -L) 1.17:14,1 Justin z tt, Assistant 'ity Attorney ccdoc& RES- Agreement - North Point PID & McDougal Land Company, LLC - Walking Trail July 13, 2016 Resolution No. 2016-R0262 ACQUISITION AND FUNDING AGREEMENT THIS ACQUISITION AND FUNDING AGREEMENT is entered into this 1 Ith day of August_, 2016, between MCDOUGAL LAND COMPANY, LLC, a Texas limited liability company, and the CITY OF LUBBOCK, TEXAS, a Texas municipal corporation on behalf of the NORTH POINT PUBLIC IMPROVEMENT DISTRICT. RECITALS WHEREAS, on October 28, 2004, the City Council of the City of Lubbock passed Resolution No. 2004-R0543 authorizing and establishing the North Point Public Improvement District for, among other things, the creation of green space that is open to the public for the use as a walking trail to be located under a utility easement; and WHEREAS, the McDougal Land Company, LLC desires to undertake the construction and development of the walking trail in accordance with the plans and design for the walking trail attached hereto as Exhibit "A" and the budget of the walking trail attached hereto as Exhibit `B"; and WHEREAS, the North Point Public Improvement District's Board of Directors has recommended the plans for the walking trail, approved the budget attached hereto as Exhibit `B," and desires that the McDougal Land Company proceed with the construction of the walking trail; and NOW THEREFORE, for good and valuable consideration, the parties agree as follows: AGREEMENT ARTICLE 1— DEFINITIONS Section 1.01— Definitions. The following terms shall have the meanings ascribed to them in this Article I for purposes of this Acquisition and Funding Agreement: "Acceptable Title" means title or other appropriate conveyance of land in form acceptable to the City, free and clear of all liens, taxes, assessments, leases, easements and encumbrances, whether or not recorded, other than exceptions that do not materially interfere with the actual or intended use of the land. "Actual Cost" means the substantiated costs with respect to the Public Improvements which costs include: (a) Construction, reconstruction, and installation of all improvements necessary to develop a landscaped walking trail, including lighting; (b) Architectural, engineering, or similar service; (c) Plans, specifications, studies, surveys, and estimates of cost and of revenues; (d) Project administration expenses, except for legal fees; and (e) Other expenses as may be necessary or incident to the construction and installation of the Public Improvements, as appropriate. Acquisition and Funding Agreement Page 1 "Agreement" means this Acquisition and Funding Agreement including the Recitals and Exhibits included herein. "Budget" means the budget included in the Service and Assessment Plan. "Budgeted Cost" means the cost of the Public Improvements as shown in Exhibit `B" attached hereto, as it may be amended or supplemented to conform to the Budget in the Service and Assessment Plan. "City" means the City of Lubbock, Texas or its authorized representative "Completion" means the time at which the Public Improvements have been finally inspected and tested by the City and have been determined by the City to be in conformance with all codes, standards and requirements of the City, and to be otherwise acceptable to the City. "Developer" means McDougal Land Company, LLC or its authorized representative. "Payment Request" means a document in a form substantially similar to the form attached hereto as Exhibit "C" or in a form otherwise agreed to by the Developer and the City, to be used by the Developer in requesting disbursements of funds by the City from the PID Fund to pay the Actual Costs of the Public Improvements. "PID" means the North Point Public Improvement District or its authorized representative. "PID Board" means the board of directors of the North Point Public Improvement District. "PID Fund" means the fund established by the City of Lubbock where all PID assessments are deposited. "Plans" means the plans, designs, specifications, schedules and related construction contracts for the Public Improvements attached hereto as Exhibit "A" and approved pursuant to the applicable standards of the City. "Property" means the land associated with the Public Improvements, and the land on which the Public Improvements are located as described as "Exhibit E" herein. "Public Improvements" means the green space that is open to the public for the use of a walking trail to be located under a utility easement constructed in accordance with the Plans and the Rendering. "Rendering" means the rendering of the Public Improvements attached hereto as Exhibit "A." "Service and Assessment Plan" means the 2015 Service and Assessment Plan approved by the City Council with Ordinance 2015-00079. ARTICLE 2 — CONSTRUCTION OF THE PUBLIC IMPROVEMENTS Section 2.01 — Plans. The Developer has caused the Plans to be prepared for the Public Improvements and has obtained the written approval of such Plans from the PID Board. Upon Acquisition and Funding Agreement Page 2 completion of the Public Improvements, the Developer shall deliver to the City a written assignment of its interest in the Plans for the Public Improvements in a form acceptable to the City. As -built drawings for the Public Improvements shall be provided to the City by the Developer as soon as such drawings are available. Section 2.02 — Duty of the Developer to Construct. The Developer shall conduct all operations with respect to the construction of the Public Improvements in accordance with the terms of this Agreement. The City and the Developer agree that the Developer shall award all contracts for the acquisition, construction, and installation of the Public Improvements in a good, workmanlike, and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons utilizing their best efforts in the performance of comparable work and in accordance with generally accepted practices appropriate to the activities undertaken. The Developer shall keep the PID Board and the City apprised of the construction progress with reports on a regular basis. Section 2.03 — Independent Contractor. In performing this Agreement, the Developer shall be considered an independent contractor and not an agent or employee of the City. The Developer has requested bids and accepted the bidder that provides goods and services at the best value for the PID. The City shall not be responsible for making any payments to any contractor, subcontractor, agent, consultant employee or supplier of the Developer. Section 2.04 — Assurance of Payment and Performance. Prior to receiving any PID funds, the Developer shall post cash with the City, provide for a letter of credit, acquire a performance bond, or produce some other security reasonably acceptable to the City, and allowable under the City's development policies and regulations, to assure the completion of the Public Improvements. The City shall determine the amount of security to assure completion of the Public Improvements. The security will remain in place until the completion of the construction of the Public Improvements and may be used for such purpose by the City, including the termination of this Agreement under the provisions of Article 6. Section 2.05 — Assurance of Conveyance. Developer hereby offers to convey to the City, in a form reasonably acceptable to the City, the Public Improvements, on the condition that an Irrevocable Offer is entered into between the Property owner and the City, an example of which is attached hereto as Exhibit F. The Property owner's offer to convey acceptable title to the Property and the Developer's offer to convey Public Improvements are irrevocable during the term of this Agreement. ARTICLE 3 — ACQUISITION AND PAYMENT Section 3.01 — Funding. All reimbursement payments for the Actual Costs of the Public Improvements shall be made from the PID Fund. The City shall not be responsible for the payment of the Actual Cost for the Public Improvements beyond the available funds in the PID Fund. Section 3.02 — Inspection. Within twenty-one (2 1) days of any Payment Request, the City shall make or cause to be made a site inspection of the Public Improvements consistent with the City's policies and procedures, and a final inspection finding that the Public Improvements are completed Acquisition and Funding Agreement Page 3 in accordance with the Plans prior to conveyance to the City. Failure to conduct such inspection during such period shall be deemed an approved inspection. Section 3.03 — Agreement to Convey. For no additional consideration other than the payment of the Actual Costs of the Public Improvements from the PID Fund, the Developer shall, upon completion, convey in fee simple absolute the Public Improvements to the City, and the City, on behalf of the PID, and on the condition that the owner of the Property irrevocably agrees to convey the Property, agrees to pay the Actual Costs of the Public Improvements from available amounts in the PID Fund, subject to the terms and conditions in this Agreement. The City shall not be obligated to accept the Public Improvements until their completion, and until an irrevocable offer to convey the Property is offered to the City by the Property owner, provided that the City agrees, consistent with the terms and provisions of this Agreement, to make progress payment for the Actual Costs of the Public Improvements. Once the Public Improvements and the Property are conveyed, the PID will be responsible for maintaining the Public Improvements and the Property. Section 3.04 — Payment Requests for the Public Improvements. In order for any payment to be made from the PID Fund for the Actual Cost of the Public Improvements, the following shall occur: (a) No more frequently than monthly, the Developer shall deliver to the City a Payment Request, together with all attachments and exhibits required by Exhibit C, to be included therewith or otherwise agreed to by the Developer and the City. Final payment requests will include releases by the general contractor of materialman's and mechanic's liens and an assignment of any warranties and guaranties or other evidence of contingent obligations of third parties for the Public Improvements. (b) The City shall have twenty-eight (28) days to approve or deny the Payment Application. If the Payment application is not expressly denied during such time period, it shall be deemed approved. (c) Subject to the foregoing, no payment hereunder shall be made from the PID Fund for the Actual Costs of the Public Improvements until the work with respect to such Actual Cost has been inspected and found to be completed in accordance with the Plans by the City. The City shall review each Payment Request (and all accompanying documentation) in order to confirm that the request is complete, that the work for which payment is requested was completed in accordance with all applicable government laws, rules, regulations, and the terms of this Agreement, and to verify and approve the Actual Cost of the work specified in the Payment Request. (d) Within the timeframe of (b), above, the City shall circulate the Payment Request among the City departments responsible for conducting inspections with regard to the portion of the Public Improvements that is the subject of the Payment Request. If the City denies the Payment Request, in whole or in part, the City shall give written notification to the Developer of the City's denial of the Payment Request, specifying the reasons for denial and the additional requirements to be satisfied before the City will issue an approval of the Payment Request. The Developer agrees to cooperate with the City during the approval process and to provide the City with the additional information and documentation reasonably necessary for the City to grant approval of the Payment Request. Acquisition and Funding Agreement Page 4 Section 3.05 — Withholding Payments. Nothing in this Agreement shall be deemed to prohibit the Developer from delaying the performance of this Agreement by contesting in good faith the validity or amount of any mechanic's or materialman's lien or judgment, nor limit the remedies available to the Developer, so long as the delay in performance shall not subject the Public Improvements or Property to foreclosure, forfeiture, or sale. ARTICLE 4 — OWNERSHIP AND TRANSFER OF PUBLIC IMPROVEMENTS Section 4.01— Title Evidence. Through an Irrevocable Offer, the Property owner shall furnish to the City a preliminary title report for the Property to be accepted by the City, for review and approval at least thirty (30) calendar days prior to the transfer of title of the Public Improvements and the Property. The City shall approve the preliminary title report on behalf of the PID unless it reveals a matter which, in the reasonable judgment of the City, could materially affect the City's use and enjoyment of any part of the Property covered by the preliminary title report. Both parties are aware that the Developer has an Encroachment Agreement with Excel, attached hereto as Exhibit "D," granting approval for building a walking track in the greenbelt under the power lines in the Easement owned by Excel, and that the Easement will not be removed prior to conveyance. In the event that the City does not approve the preliminary title report, the PID shall not be obliged to accept the title to the Public Improvements and the Property until the Property owner has cured such objections to title to the satisfaction of the City. Section 4.02 — Conveyance of Public Improvements. Acceptable Title to the Property on which the Public Improvement will be located shall be conveyed to the City through an Irrevocable Offer by the owner of the Property. The completion of the transfer of title shall be evidenced by recordation of the acceptance of title in the Official Public Records of Lubbock County, Texas. ARTICLE 5 — REPRESENTATIONS, WARRANTIES AND COVENANTS Section 5.01— Representations, Covenants and Warranties. (a) Organization. The Developer is a limited liability company duly organized and validly existing under the laws of the State of Texas, is in compliance with the laws of the State of Texas, and has the power and authority to own its properties and assets and to carry on its business in the State of Texas as now being conducted and as contemplated. (b) Authority. The Developer has the power and authority to enter into this Agreement, and has taken all action necessary to cause this Agreement to be executed and delivered, and this Agreement has been duly executed and delivered by the Developer. (c) Binding Obligation. This Agreement is a legal, valid, and binding obligation on the parties, enforceable against each party in accordance with the terms of this Agreement, and subject to bankruptcy and other equitable principles. (d) Compliance with Law. The Developer shall not with knowledge commit, suffer, or permit any act to be done in, upon, or to the Property or Public Improvements in violation of any law, ordinance, rule, regulation, order of any governmental authority, any covenant, or restriction now or hereafter affecting the Property or the Public Improvements. Acquisition and Funding Agreement Page 5 (e) Requests for Payment. The Developer represents and warrants that (i) it will not request payment from the PID Fund for the Actual Costs of any improvements that are not part of the Public Improvements, and that (ii) it will diligently follow all procedures set forth in this Agreement with respect to the Payment Requests. (f) Financial Records. Until the completion of the Public Improvements, the Developer covenants to maintain proper books of record and to account for all costs related to the construction of the Public Improvements. These accounting records shall be maintained in accordance with generally accepted accounting principles, and shall be available for inspection by the City at any reasonable time during regular business hours on reasonable notice. (g) Plans. The City represents that it has approval of the Plans from all appropriate departments of the City and from any other public entity or public utility from which approval must be obtained. The Developer agrees that, subject to the terms of this Agreement, the Public Improvements will be constructed in full compliance with the attached Plans and any City - approved change orders. (h) Financial Resources. Each party represents and warrants that it has the financial resources, or the ability to obtain sufficient financial resources, to meet its obligations under this Agreement. Section 5.02 — Indemnification and Hold Harmless. The Developer shall indemnify and hold harmless the City, including its officers, employees and agents, as well as the PID, including its board members (each an "Indemnified Party") from and against all actions, damages, claims, losses or expense of every type and description to which they may be subjected or put, by reason of, or resulting from the breach of any provision of this Agreement by the Developer, the negligent design, engineering, or construction by the Developer or any architect, engineer, or contractor hired by the Developer for the Public Improvements required from the Developer under this Agreement, the Developer's nonpayment under contracts between the Developer and its consultants, engineers, advisors, contractors, subcontractors, and suppliers in the provision of the Public Improvements, or any claims of any person employed by the Developer or its agents to construct the Public Improvements. Notwithstanding the foregoing, no indemnification is given hereunder for any action, damage, claim, loss, or expense directly attributable to the gross negligence or willful misconduct of any Indemnified Party. ARTICLE 6 — TERMINATION Section 6.01— Mutual Consent. This Agreement may be terminated by the mutual written consent of the City and the Developer. Section 6.02 — City's Election for Cause. The City, at its option, may terminate this Agreement, without the consent of the Developer if the Developer shall breach any material covenant or default in the performance of any material obligation of this Agreement. If any such event occurs, the City shall give written notice to the Developer, and the Developer agrees to meet and confer with the City and consultants as to the options available to assure timely completion of the Public Improvements, subject to the terms of this Agreement. Such options may include, but are not limited to, the termination of this Agreement by the City. If the City elects to terminate this Acquisition and Funding Agreement Page 6 Agreement, the City shall first notify the Developer of the grounds for such termination and allow the Developer a minimum of forty-five (45) days to eliminate or mitigate, to the reasonable satisfaction of the City, the grounds for termination. If at the end of such period (or any extension thereof by the City), as determined reasonably by the City, the Developer has not eliminated or completely mitigated the termination grounds to the reasonable satisfaction of the City, the City may then terminate this Agreement. Section 6.03 — Force Majeure. Whenever performance is required of a party under this Agreement, that party shall use all due diligence and take all necessary measures in good faith to perform. If completion is delayed by reasons of floods, earthquakes, other acts of God, war, civil commotion, riots, strikes, picketing, other labor disputes, damage to work in progress by casualty, or by any other cause beyond the reasonable control of the party (financial inability excepted), then the specified time for performance shall be extended by the amount of the delay actually caused. ARTICLE 7 — MISCELLANEOUS Section 7.01— Limited Liability of City. The Developer agrees that any and all obligations of the City arising out of or related to this Agreement are special obligations of the City, and the City's obligations to make any payments under this Agreement are restricted entirely to the moneys, if any, in the PID Fund and from no other source. No City employee or agent shall incur any liability under this Agreement to the Developer or any other party in its individual capacity by reason of its actions under this Agreement or by its execution of this Agreement. Section 7.02 — No Modification to the Budget. The budgeted costs of the Public Improvements are included herein as Exhibit "B" and may only be modified by an amendment to this Agreement approved by both the PID Board and the City. Section 7.03 — Audit. The City shall have the right, during normal business hours and upon giving three (3) business days' prior written notice to the Developer, to review all the books and records of the Developer pertaining to any costs and expenses incurred by the Developer with respect to the Public Improvements and any bids taken or received for the construction or materials for the Public Improvements. Section 7.04 — Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to any party shall be deemed to have been received when personally delivered or transmitted by facsimile transmission (which shall be immediately confirmed by telephone and shall be followed by mailing an original of the same within twenty- four (24) hours after such transmission), or seventy-two (72) hours following deposit in any United Stated Post Office, registered or certified mail, postage prepaid, addressed as follows: For Ci : For Developer: City of Lubbock, Texas McDougal Land Company, LLC Attention: Executive Director of Budget Attention: Delbert McDougal P.O. Box 2000 5001 W. Loop 289 Lubbock, Texas 79457 Lubbock, Texas 79414 Acquisition and Funding Agreement Page 7 Section 7.05 — Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the legal and enforceable portion of this Agreement shall remain intact and shall be given effect to the fullest extent possible. Section 7.06 — Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreement shall not be assigned without prior written consent of the other party. Any assignment shall be in writing, shall clearly identify the scope of the rights and obligations assigned, and shall not be effective until approved by the other party. Section 7.07 — Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by any other party, or the failure by a party to exercise its rights upon the default of any other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by such other party with the terms of this Agreement thereafter. Section 7.08 — Amendment & Merger. This Agreement cannot be changed or terminated except through written notification, signed by both Parties. No verbal agreement or conversation with any officer, agent or employee of any party to this Agreement, either before or after execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. No oral understandings, statements, promises, or inducements contrary to this Agreement exist. No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representative of both parties. Section 7.09 — Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. Section 7.10 — Exhibits and Recitals. The Recitals and Exhibits contained in and attached to this Agreement are hereby made a part of this Agreement and shall have the same force and effect as the terms contained herein. Section 7.11— Venue. This Agreement is subject to all present and future valid laws, orders, rules, ordinances, and regulations of the United States of America, the State of Texas, the City, and any other regulatory body having jurisdiction. This Agreement shall be construed and governed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute, or claim arising under this Agreement shall be in a court of appropriate jurisdiction in Lubbock County, Texas exclusively. Section 7.12 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 e"se as amended (the "Texas Public Information Act") the same shall be of no force and effect. Section 7.13 — No Third Party Beneficiaries. This Agreement is entered solely by and between, and may be enforced only by and among the Parties. Except as set forth above, this Agreement shall not be deemed to create any rights in or obligations to any third parties. This Agreement is Acquisition and Funding Agreement Page 8 not intended to create, and shall not be construed to create, any joint enterprise between or among the parties. Section 7.14 — Remedies & Arbitration. Each party reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. The parties execute and enter into this Agreement on thisl lth day of August , 2016. SIGNATURES CITY OF LUBBOCK, TEXAS MCDOUGAL LAND COMPANY, LLC DANIEL M. POPE, MAYOR Delbert McDougal, Manager NORTH POINT PUBLIC IMPROVEMENT DISTRICT Acquisition and Funding Agreement Page 9 ATTEST: RjbeaGarza, City Sec'X' r a APPROVED AS TO CONTENT: 04 UAJ, &GW Cheryl Bro , Executive Director of Budget APPROVED AS TO FORM: Acquisition and Funding Agreement Page 10 Exhibit "AS' — Plans io d A LIMCSCAPEDESIC+ Fa hIE y N Greenbelt Cphae 'is) � m y : s v� p gp T Lib6od� rw, m IE o j 3 i{ 4 to $fCn forth R:OM vm �; vera $dal n Z o�e��rc�. �a m Acquisition and Funding Agreement Page 11 Exhibit "B" — Budget Item Irrigation/Landscaping/Trail Lighting/Electrical Lighting Bases Electrical Lines/Meters Subtotal Performance Security (2%) Construction Management/General Conditions (5%) TOTAL Supplier Tom's Tree Place La rcon McD Construction LP&L McD Construction Cost 200,072.36 34,900.00 5,600.00 8,331.12 248,903.48 4,978.07 12,445.17 266,326.72 Acquisition and Funding Agreement Page 12 Exhibit "C" — Payment Request Amount Requested for Reimbursement This Total Amount Payment Total Completed Tom's Tree Place WaikingTrack and Landscaping 20Q072.36 Larcon Electric, LC. Purchase and Installation of Lights 34,900.00 McDougal Construction Light Bases 5,600,00 Lubbock Power and Light Electrical Hookup 8,331.12 Performance Security (2%) 4,978.07 McDougal Construction (5%) Construction Mgmt/General Conditions 12,445.17 Total 266,326.72 Detailed payment requests from the individual companies must be attached showing what has been included in this payment request Acquisition and Funding Agreement Page 13 Exhibit 'T" — Excel Easement Xce/Energy_ 11 r1 NW"7MN Mueuc SER vice c KAMAN r September 10, 2015 Delbert McDougal McDougal Companies 5001 W. Loop 289 Lubbock, TX 79414 BltnB and land IUBhta P. O. Box 1261 Amar0b, TX 79105-1261 Telephone: 606.378.202 Facsimile: 006378.2142 Emailed ENCROACHMENT AGREEMENT Project: Lubbock Northwest Passage Greenbelt Circuit V-62, See 5, Block J -S, Survey EL&RR RR CO, Lubbock County, Texas Deer Mr. McDougal; Our Transmission Engineers have reviewed the landscape and jogging track encroachment submitted by Sierra Plateau Ltd. The encroachment is acceptable to Xcel Energy by adhering to the following and is conditionally approved with the provision that working clearances to Xcel Energy's transmission lines are compiicd with during construction and subsequent operation, maintenance and future decommissioning of the requested facility. Xcel Energy's review of the proposed work indicates that the anticipated construction activities may be difficult to complete given the clearance requirements for tris transmission line. Please refer to Section (5), Clearances to equipment and workers, for working clearances for this project. no encroachment requestor is responsible for ensuring construction activities do not violate the working clearance without proper protective measures and additional review from Xcel Energy. Spherical markets or equivalent visibility markers shall be installed on any aerial crossing span located in a position above the existing Xcel Energy transmission line facilities. Additional review is required from Xcel Energy to work within the working clearance zone. To provide this review, Xcal Energy will need to be informed of the activities, methods and equipment that will be used for construction. If working clearances cannot be observed during construction, OSHA and National Ekctric Safety Code (NESC) clearances must also be checked. If it is determined that work cannot be completed with adequate OSHA and NESC required clearances, the power transmission line will have to be renwved from service ( line outage) prior to construction, see Section 5 for instructions for arranging a line outage. Due to operatiunat constraints on the electrical transmission system, aline outage may be difficult to schedule— Ilrcrcforc construction schedules should reflect the uncertainty associated with the availability of a line outage. Specifically summer and winter season outages may not be available at all for power transmission lines. page i of5 Acquisition and Funding Agreement Page 14 Page 1 aj5 9110!1015 SCOPE OF PROJECT. This project consists of a graveled walkingCogging path, free planting, and native prairie landscaping along the transmission line easement. Based on the infonnallon provided to Xcel Energy, the proposed path and landscaping will not be a concern. (1) Excavation close to structure location. A minimum distance of to feet of supported earth must be maintained from any part of the line structure. Support of the ground beyond the 10 feet may be provided by a slope no &realer than three feet horizontal to one foot vertical. Support may also be provided by the use of cribbing, sheet piling, retaining wall or tunneling. The specific plan for providing the required support and the excavation plan for the proposed project must be submitted to Xcel Energy for review and approval prior to construction start. (2) Grade change around structure location. Fill around or above steel structure foundations is not permitted. The grade around the structures must provide for surface water runoff — no surface water ponding around structures will be permitted. Any cost related to the adjustment of Xcel Energy's facilities will be at 1be requestor's expense. (3) Fill and grade change around guy wires and anchors. Fill above the steel anchor rod onto the guy wine is not permitted. The specific plan for any grade change or excavation in the vicinity of down guys and anchors must be submitted to Xcel Energy for review and approval prior to construction start (4) Grade change within easement. The ground elevation within the easement shall not be increased above the existing grade. Stockpiling of soil and/or material within the easement will not be permitted. (3) Clearances to equipment and workers, A working clearance of 25 feet between the electrical conductors and any cranes or digging equipment used at conductor elevation in or near the easement and a clearance of to feet to the physical proximity of workers must be maintained at all times. In addition, any construction near the transmission line(s) shall comply with all OSHA Safety Clearances. If this clearance cannot be maintained, the contractor or developer must anange for a line outage by calling Xcel Energy's Transmission Control center outlined in the following paragraphs. Acquisition and Funding Agreement Page 15 Page 3 of 5 gliagob Establishment of TransmLsion Work Request nrWRI A Transmission Work Request (TWR) is required for any aerial crossing of Xcel Energy's transmission facilities. To begin the process, contact Transmission Construction (Jim Woodard at 806457-6205) who will schedule a meeting at the job location with an Xcel Energy representative and verify which circuits) will be impacted by the proposed construction. Then, to initiate the request For n TWR. contact Xcel Energy's Transmission Control Center (Mike Harrison at 806640-6362 or Mike Mills at 806-640-6379) a minimum of fourteen (14) working days prior to any constriction within the easement. Construction may be requested either under dead line or a hot line conditions. If the request is for dead line conditions, studies will be performed by the Real Time Planner to determine the feasibility of the request. The results of the study will be the primary determining factor in whether dead line conditions can be permitted under the system conditions that prevail at the time of the request. If the request is for hot line conditions, the TWR will include the appropriate safety measures taken to prevent automatic reclosing of the affected breakers on any corresponding line(s). Xcel Energy personnel will perform all required switching steps to establish either a dead line or a hot line TWR Xcel Energy is not responsible for the installation and subsequent removal of protective grounds deemed necessary for construction. Xcel Energy's Transmission Control Center will be contacted at the conclusion of the TWR and the end of each work day to update the status of the work. If the work has been concluded, the TWR will be permanently released and Xcel Energy's facilities will be returned to normal conditions. If it is necessary to continue construction the following work day, arrangements will be made to re-establish the TWR. Additionally, Xcel Energy's Transmission Control Center will be notified if any changes occur while working under an established TWR. The preceding three paragraph(s) most be included in a prominent location on the plan sets and specifications given to contractors. (6) Landscaping within the easement. Detailed plans for landscaping (including light standards) must be submitted to Xcel Energy in advance of construction for review and approval prior to construction start. Generally shorter varieties of trees and shrubs, 15 feet or less mature height, may be Considered. If planting is permitted, the line's voltage and the tree's mature height and the distance from the line must be considered. For maintenance purposes there shall be no planting within 15 feet of structure sites. (7) Building on easements. ® None proposed There shall be no permanent or temporary building allowed (choose option) A) within the easement area B) or within _ feet ofthe transmission line centerline. C) except as shown on Exhibit A attached hereto. Acquisition and Funding Agreement Page 16 Page 4 of 5 911012015 (8) Fuel and refueling on easements. ® None proposed There shall be no fuel tanks stored or refueling of vehicles and equipment within the easement, (9) Streetlights and signs on easements. ® None proposed if there are to be streetlights, signboards, identification signs or any other type of non -building structure within the easement, detailed plans must be submitted to Xcel Energy prior Io construction for review and approval to verify compliance with electrical code clearances prior to construction start. The proposed cannot exceed an elevation of feet above existing grade. — — Metallic structures must be properly grounded. The same working clearance criteria as stated in Section (5) also applies, for equipment used to erect and install light standards, sign boards, etc. Any metallic structure, pole, wire or item placed in the vicinity of a high-voltage transmission line will have the potential to become electrically charged due to electrical induction. The development of an electric charge results in a potential difference between the metal installation and the ground, which can result in electrical shocks when the item is touched. Placement of such metallic installation should take into consideration the shock potential during the; constriction, intended use AND future maintenance activities. Items which become charged must be connected to a grounding rod or grounding system to prevent shocks. (10) Feuces on easements. ® None proposed If the easement area is fenced, gates must be installed to provide access to Xcel Energy for maintenance purposes. Chain link or other types offences using metal material and constricted on or near an Xcel Energy easement should be properly grounded to prevent shocks. (11) Structure protection. Where streets, parking lots or other areas are developed which expose transmission structures to vehicular (rabic, steel post or guardrail type barricades must be installed in accordance with Xcel Energy specifications. In some cases, curbing will provide adequate protection. Where a proposed aerial crossing will be located in a position above existing Xcel Energy transmission line facilities, the installation of guard structures of proper height on both sides of the crossing is required. The guard structures shall not be installed within the existing easement. (12) Notification. The contractor must notify Xcel Energy a minimum of 10 working days prior to beginning construction. Please contact Jim Woodard at 906-457-6205. It is the express condition of this consent that all other terms and conditions of that certain easement granted to Southwestern Public Service Company shall remain in full force and effect. Acquisition and Funding Agreement Page 17 Page S of 5 911012015 A copy of the signed Encroachment Agreement shall be kept on site, available for review by Xcel Energy representatives, undl all construction and site restoration has been completed. To acknowledge receipt of and agreement with the terms of this consent, prior to the commencement of Say activities, please sign this letter and return it to me by fax. Fnx sjgnnlure•4 nro accenIcd to cul editc lhis_ process. If this signed agreement is not received back within 30 days of the date of this agreement, it will be presumed that you am not in agreement with its content and this agreement will be considered Null and Vold. the file will be closed, your request will need to be resubmitted and the City or County Zoning Office will be notified of our action. Elnv chnnces_lo Ibis nriginnl nu regiment clmll males this asrccment null and void unless inilinled by both nnrlies: hrovidcd however that sillier narly cony frccly 110_11m this asrcement. Thank you for your courtesy and cooperation. Sincerely, Jason Lytal v ACCEPTED: Land Rigg Agent Sierra Plateau Ltd Siting and Land Rights Dept. 806-378-2742 By: 806-378-2724 (fax) Name: R i s � Title: co: Kent Winter, Manager Transmission Engineering Jim Woodard, Manager Transmission Line Construction (Circuit No. V-62) (Str. No. 19, 20, 21) SITING & LAND RIGHTS TRANSMISSION ENGINEERING Date v Ir. Dabs 0 01 Jason Lytal K Washer Signature Si azure Acquisition and Funding Agreement Page 18 Exhibit "E" — Property Description OWNERSHIP CERTIFICATE THE STATE OF TEXAS § COUNTY OF LUBBOCK § RECORD OWNER OF SUBJECT PROPERTY: Northwest Passage Joint Venture and Sierra Plateau, Ltd., a Texas limited partnership DESCRIPTION OF SUBJECT PROPERTY: Proposed Tract "GB -1", North Pointe, an addition to the City of Lubbock, Lubbock County, Texas and being more fully described on EXHIBIT "A" attached hereto. SUBJECT TO THE FOLLOWING: LIENHOLDER(S): F.WC Family, Ltd.; and PCD I, Ltd. TAX INFORMATION: COPY OF TAX CRRTIFiCATE(S; ATTACHED HrRETO EASEMENTS: Electric transmission line easement dated August 7.3, 1977, recorded in Volu-c 1546, Page 534, Deed Records, Lubbock County, 'texas, executed by Elmer W. Cullers and Paul S. Brandt to the City of Lubbock. Underground water line easement dated August 24, 1981, recorded in Volume 1754, Pace 867, Deed Records, Lubbock County, Texas, executed by Roger L. Kuykendall, Don R. Kuykendall, John F. Schneider and wife, Jo Ann Schneider to the City of Lubbock. Electric transmission line easement dated March 16, 2006, recorded in Volume 10423, Page 82, Official Public Records, Lubbock County, Texas, executed by Sierra Plateau, Ltd., a Texas Iimited Partnership to Southwestern Public Service. Temporary drainage easement dated October 27, 2006 and recorded October 30, 2006 under County Clerk File No. 20060451-85, Official Public Records, Lubbock County, Texas, executed by Sierra Plateau, Ltd., a Texas Limited Partnership and Northwest Passage Joint Venture, a Texas General Partnership to the City of Lubbock, Texas. Drainage easement dated October 25, 2012 and recorded October 31, 2012 under County Clerk File No. 2012043730, Official Public Records, Lubbock County, Texas, executed by Northwest Passage Joint Venture to the City of Lubbock. This certificate is certified to the 51" day of May, 2016, at 7:00 o'c'ock A.M. Acquisition and Funding Agreement Page 19 _ HUGO REED AND ASSDCIATES, INC. EM 7�. �(�,R{i(�U, 1601 AVENUE N J LUDSOCK, TEXAS 76401 18061763-5642 1 FAX 8061783-3851 t7'f2t:'twltf/ tl�1f}i1 TEXAS REGISTERED ENGINEERING FIRM F-160 TEXAS LICENSED SURVEYING FIRM 100616.00 LAND SURVEYORS CIVIL ENGINEERS METES AND BOUNDS DESCRIPTION of the plat limits of Tract "GB -1", North Pointe, an addition to the City of Lubbock, Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" iron rod with cap set In the East right-of-way line of Slide Road as described under County Clerk File Number (CCFN) 2012043729 of the Official Public Records of Lubbock County, Texas (OPRLCT), for the Northwest corner of this tract which bears S. 88"09'01•' E. a distance of 564.95 feet and N. 01'47'50" E. a distance of 40.00 feet from the Southwest comer of the Northwest Quarter of Section 5, Block JS, Lubbock County, Texas; THENCE S. 88°09'01" E. a distance of 1401.07 feet to a 1/2" iron rod with cap set for the Northeast corner of this tract; THENCE S. 01 °48'58" W. a distance of 80.00 feet to a 112" iron rod with cap set for a corner of the plat limits of Lots 332-366 and 393-534, North Pointe, an addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat, and/or dedication deed thereof recorded under CCFN 2006045604, OPRLCT, for the most Easterly Southeast corner of this tract; THENCE S. 46"49'59" W., along the Northern boundary of said plat limits, a distance of 14.14 feet to a 1/2" iron rod with cap set for a corner of said plat limits and the most Southerly Southeast corner of this tract; THENCE N. 88"09'01" W., continuing along the Northern boundary of said plat limits, a distance of 1390.99 feet to a 1/2" iron rod with cap found in the East right-of-way line of said Slide Road at the Southwest corner of this tract; THENCE N. 01°46'06° E., along said East right-of-way line, a distance of 90.00 feet to the Point of Beginning. Bearings are relative to Grid North, Texas Coordinate System of 1983, North-Central Zone, (2011, epoch 2010.0) Distances shown are surface, U.S. survey feet. Contains 2.894 acres A plat of even survey date herewith accompanies this legal description February 22, 2016 Brent Carroll Registered Professional Land Surveyor No. 5410 State of Texas Acquisition and Funding Agreement Page 20 Exhibit "F" — Irrevocable Offer THIS IRREVOCABLE OFFER (the "Agreement"), is entered into and made effective as of this day of , 2016 (the "Effective Date") by NORTHWEST PASSAGE JOINT VENTURE and SIERRA PLATEAU, LTD., a Texas limited partnership (the "Offeror"), and the CITY OF LUBBOCK, a Texas Home Rule Municipal Corporation (the "City"). RECITALS WHEREAS, the Offeror owns certain real property located in the North Point Public Improvement District (the "PID"), in the City of Lubbock, Lubbock County, Texas, being further described in the attached Exhibit A (the "Property"), upon which McDougal Land Company, LLC (the "Developer") will construct a Public Walking Trail (the "Public Improvement") to be dedicated to the City; and WHEREAS, the Developer and the City, on behalf of the PID, have entered into an Acquisition and Funding Agreement, attached hereto as Exhibit D, whereby the Developer has agreed to construct the Public Improvement on the Property on the condition that the Offeror irrevocably offers or convey to the City the title to the Property upon which the Public Improvement will be constructed; and WHEREAS, the Offeror desires at this time to irrevocably offer the Property described to the City and, upon the Developer's completion of the construction of the Public Improvement on the Property and upon acceptance of the Public Improvement by the City, to grant the Property with the Developer's Public Improvement to the City; and NOW THEREFORE, for good and valuable consideration, the Offeror agrees as follows: AGREEMENT Section 1 — Irrevocable Offer. Subject to the terms and conditions of this Agreement, including the attached Exhibits, the Offeror irrevocably offers to dedicate the Property to the City and to convey the Property to the City by a General Warranty Deed in a form substantially similar to the sample deed attached as Exhibit B. Section 2 — The Closing Date. Upon the completion of the Public Improvement on the Property, and upon the acceptance of the Public Improvement by the City, the Offeror shall dedicate and convey the Property to the City on a date not later than the day of , 2016 (the "Closing Date"). Section 3 — Adjustments at the Closing Date. Any Ad Valorem taxes relating to the Property for the calendar year in which the closing shall occur shall be adjusted or prorated between the Offeror and the City as of the Closing Date. Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section 3 shall survive the Closing Date. Acquisition and Funding Agreement Page 21 Section 4 — Legal Fees. Each party to this Agreement is responsible for paying the legal fees it accrues for itself in the negotiating, preparing, and closing of the transaction contemplated by this Agreement. Section 5 — Representations and Warranties of Offeror. Offeror represents and warrants to the City and the PID that as of the Effective Date and as of the Closing Date, except where another specific reference is made, that: (a) The descriptive information concerning the Property set forth in this Agreement is complete, true and correct; (b) That except for the Transmission Easement described as "Circuit V-62, Sec. 5, Block J -S, Survey EL&RR RR CO, Lubbock County, Texas" in the Encroachment Agreement letter from Xcel Energy dated September 10, 2015, and attached hereto as Exhibit C, there are no adverse parties or other entities in possession of the Property or any part thereof, and that no party has been granted any license, lease or other right related to the use or possession of any of the Property, or any part thereof; (c) The Offeror has good and marketable fee simple title to the Property and will convey the Property to the City subject only to the exceptions satisfactory to the City; (d) The Offeror has the full right, power, and authority to convey the Property as provided in this Agreement and to carry out the Offeror's obligations by the time of the Closing Date; (e) The Offeror 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; (f) The Offeror has disclosed to the City in writing of any and all facts and circumstances known to the Offeror that relate to the physical condition of the Property that may materially and adversely affect the Property, or any portion thereof, and the operation or intended operation thereof, and (g) The Offeror has paid all taxes, assessments, excises, and levies that are due against or related to the Property on or before the Closing Date, and (h) Offeror hereby expressly affirms to the City and the PID that the Property will be subject to no liens. Section 6 — Covenants and Agreements of Offeror. From the Effective Date until the Closing Date, the Offeror shall: (a) Not enter into any written or oral contract or 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 the City or the PID after the Closing Date; Acquisition and Funding Agreement Page 22 (b) Advise the City promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property; (c) Not take or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Offeror; (d) 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; and (e) Indemnify and hold the City and the PID harmless 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 the Closing. Section 7 — Exhibits and Recitals. The Recitals and Exhibits contained in and attached to this Agreement are hereby made a part of this Agreement and shall have the same force and effect as the terns contained herein. Section 8 — Venue. This Agreement is subject to all present and future valid laws, orders, rules, ordinances, and regulations of the United States of America, the State of Texas, the Parties, and any other regulatory body having jurisdiction. This Agreement shall be construed and governed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute or claim arising under this Agreement shall be in a court of appropriate jurisdiction in Lubbock County, Texas exclusively. Section 9 — Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et sea., as amended (the "Texas Public Information Act") the same shall be of no force and effect. Section 10 — No Third Party Beneficiaries. This Agreement is entered solely by and between, and may be enforced only by and among the Parties. Except as set forth above, this Agreement shall not be deemed to create any rights in or obligations to any third parties. This Agreement is not intended to, and shall not be construed to, create any joint enterprise between or among the parties. Section 11 — Amendments. This Agreement cannot be changed or terminated except through written notification, signed by both Parties. No verbal agreement or conversation with any officer, agent or employee of the City, either before or after execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. No oral understandings, statements, promises, or inducements contrary to this Agreement exist. No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representative of both parties. Section 12 — Remedies & Arbitration. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject Acquisition and Funding Agreement Page 23 to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. EXECUTED this day of , 2016. FOR NORTHWEST PASSAGE JOINT VENTURE and SIERRA PLATEAU, LTD. By: By: Title: THE STATE OF TEXAS § COUNTY OF LUBBOCK § Delbert McDougal Signature Delbert McDougal Printed Name The foregoing instrument was acknowledged before me on , 2016, by DELBERT MCDOUGAL as on behalf of Notary Public, State of Texas Printed Name: Commission Expires: Acquisition and Funding Agreement Page 24 Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277 CERTIFICATE OF INTERESTED PARTIES FORM 3.295 lofl Complete Nos. 1- 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2016-88064 Date Filed: 07/20/2016 Date Acknowledged: 08/24/2016 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. McDougal Land Company, LC Lubbock, TX United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided under the contract. 12996 Walking Track 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling I Intermediary McDougal Family Partnership, Ltd. Lubbock, TX United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the day of 20 , to certify which, witness my hand and seal of office. Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277 -719-M) CERTIFICATE OF INTERESTED PARTIES FORM 1295 l of l Complete Nos. 1 - 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 2016-88064 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. McDougal Land Company, LC Lubbock, TX United States Date Filed: 07/20/2016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the services, goods, or other property to be provided tinder the contract. 12996 Walking Track 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary McDougal Famlly Partnership, Ltd. Lubbock, TX United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Y. TERI A Wi/NN My commission Expires January 25, 2018 Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to rand subscribed before me, by the said, M°rr �' t� �r �• . this the (r` clay of 20 % i—• to certify which, witness my hand and seal of office. Signature of officer administa ing oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277