HomeMy WebLinkAbout2011.01.04 City Council AgendaCITYOFUNIVERSITYPARK
REGULARCITYCOUNCILMEETING
LOCATION:CITYHALLCOUNCILCHAMBER
AGENDA#2804
JANUARY4,2011
CALLTOORDER:5:00P.M.
3:00-4:00P.M.EXECUTIVESESSION:TheCouncilwillconveneintoclosedExecutiveSession
underTexasGovernmentCode551.072toreceiveadvicefromtheCityAttorney
regardingrealestatetransactionswithSMUandPrestonCenterEast.Noactionwill
betaken.ExecutiveConferenceRoom,CityHall.
4:00-5:00P.M.WORKSESSIONFORAGENDAREVIEW:CouncilConferenceRoom,CityHall
TOSPEAKONANAGENDAITEM
AnyonewishingtoaddresstheCouncilonanyitemmustfilloutagreen“RequesttoSpeak”formand
returnittotheCitySecretary.Whencalledforwardby theMayor,beforebeginningtheirremarks,speakers
areaskedtogotothepodiumandstatetheirnameandaddressfortherecord.
I.CALLTOORDER
A.INVOCATION:MayorW.RichardDavis
B.PLEDGEOFALLEGIANCE:MayorW.RichardDavis/BoyScouts
C.INTRODUCTIONOFCOUNCIL:MayorW.RichardDavis
D.INTRODUCTIONOFSTAFF:CityManagerBobLivingston
II.CONSENTAGENDA
A.CONSIDERANDACT:onapprovaloftheamendedGermanyParkJointUse
AgreementandanordinanceamendingtheFieldUseAgreement - Bradley Pg 3
B.CONSIDERANDACT:onapprovalofminutesoftheDecember7,2010City
CouncilMeeting - Spector Pg 12
III.MAINAGENDA
A.CONSIDERANDACT:onapprovaloffinalagreementwithCaruth/PrestonRoad
AssociatestoexchangeCityrights-of-wayinthePlazaatPrestonCenterforUniversity
ParkPublicLibrarysite - Livingston Pg 29
B.CONSIDERANDACT:onanagreementbetweentheCityofUniversityParkand
FriendsoftheUniversityParkPublicLibraryforoperationandlocationofapublic
library - Austin Pg 79
C.CONSIDERANDACT:onarequesttoamendtheCodeofOrdinancestodesignate
the3400blockofShenandoahaResident-OnlyPermitParkingZone - Adams Pg 84
D.CONSIDERANDACT:onawardofBid#11-01,forthepurchaseoftwotransfer
trailersfortheSanitationDivision - Green Pg 89
E.DISCUSS:anamendmenttoOrdinance09/08addressingalleyencroachments - Corder Pg 104
Page 1 of 109
IV.PUBLICCOMMENTS
AnyonewishingtoaddressanitemnotontheAgenda shoulddosoatthistime.Pleasebe
advisedthatundertheTexasOpenMeetingsAct,the Councilcannotdiscussoractatthis
meetingonamatterthatisnotlistedontheAgend a.However,inresponsetoaninquiry,a
Councilmembermayrespondwithastatementofspec ificfactualinformationora
recitationofexistingpolicy.ItistheCouncil’spolicytorequestthatcitizensnotaddress
itemsthatarecurrentlyscheduledforafutureage ndaorpublichearing.Instead,theCouncil
requeststhatcitizensattendthatspecificmeeting toexpresstheiropinions,orcommentto
theCouncilbye-mailatCity-Council@uptexas.orgorletteraddressedtotheMayo rand
Councilat3800UniversityBlvd.,UniversityPark,Texas75205.Otherquestionsorprivate
commentsfortheCityCouncilorStaffshouldbedi rectedtothatindividualimmediately
followingthemeeting.
AsauthorizedbySection551.071(2)oftheTexasGo vernmentCode,thismeetingmaybeconvened
intoClosedExecutiveSessionforthepurposeofse ekingconfidentiallegaladvicefromtheCity
AttorneyonanyAgendaitemslistedherein.
Page 2 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:GerryBradley,ParksDirector
SUBJECT:CONSIDERANDACT:onapprovaloftheamendedGermanyParkJointUse
AgreementandanordinanceamendingtheFieldUseA greement
BACKGROUND:
OnDecember7,2010,theCityCouncilapprovedthe requestfromHPISDtoprovideexclusiveuseof
theJohnRoachTrackfromthehoursof3:00-5:00 p.m.,JanuarythroughMay.
AcopyoftherevisedGermanyParkJointUseAgreem entandtherevisedPlayingFieldOrdinanceis
includedforreview.
FUNDINGSOURCE:
N/A
ATTACHMENTS:
PlayingFieldOrdinance
AmendedJointUseAgreement12.2010
Page 3 of 109
ORDINANCE NO. _____
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING
THE CODE OF ORDINANCES OF THE CITY OF UNIVERSITY PARK BY
AMENDING SECTION 13.502 TO PROHIBIT ENTERING INTO A CITY PARK
FACILITY DURING THE TIME SUCH PARK FACILITY IS RESERVED FOR THE
EXCLUSIVE USE OF AN INDIVIDUAL OR ORGANIZATION; PROVIDING FOR
THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED
THE SUM OF FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE; AND
PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF UNIVERSITY
PARK, TEXAS:
SECTION 1. That Chapter 13, Article 13.500, of the Code of Ordinances, City of
University Park, Texas, is hereby amended by amending Section 13.502 in part as follows:
“Sec. 13.502 Playing Field Reservations
…
(6) It shall be unlawful for any person to loiter, remain or be in or upon any park, field, playground
or park facility, including the city swimming pool, city tennis courts, and the track and field at
Germany Park (“park facility”) in the City of University Park during a period of time when such
park facility has been reserved by the city for use by another individual or organization for his or its
exclusive use.”
SECTION 2. All provisions of the ordinances of the City of University Park in conflict
with the provisions of this ordinance are hereby repealed.
SECTION 3. The provisions of this ordinance are severable and should any such provision
be declared unconstitutional, such shall not affect any of the remaining provisions hereof or the
Code of Ordinances as amended hereby.
SECTION 4. Any person violating any of the provisions of this ordinance or the Code of
Ordnances as amended hereby, shall be deemed guilty of a misdemeanor and upon conviction in the
Page 4 of 109
35911
Municipal Court shall be subject to a fine not exceeding five hundred dollars ($500.00) for each
offense.
SECTION 5. This ordinance shall take effect immediately from and after its passage and
the publication of the caption, as the law and Charter in such cases provide.
DULY PASSED by the City Council of the City of University Park, Texas, on this 4th day
of January 2011.
APPROVED:
______________________________
W. RICHARD DAVIS, MAYOR
APPROVED AS TO FORM: ATTEST:
_______________________________ ________________________________
CITY ATTORNEY LIZ SPECTOR, CITY SECRETARY
(rld/12-9-10/46865)
Page 5 of 109
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING
THE CODE OF ORDINANCES OF THE CITY OF UNIVERSITY PARK BY
AMENDING SECTION 13.502 TO PROHIBIT ENTERING INTO A CITY PARK
FACILITY DURING THE TIME SUCH PARK FACILITY IS RESERVED FOR THE
EXCLUSIVE USE OF AN INDIVIDUAL OR ORGANIZATION; PROVIDING FOR
THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED
THE SUM OF FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE; AND
PROVIDING AN EFFECTIVE DATE.
DULY ADOPTED by the City Council of University Park, Texas on the 4th day of January
2011.
APPROVED:
__________________________________
MAYOR
ATTEST:
__________________________________
CITY SECRETARY
Page 6 of 109
Page 7 of 109
Page 8 of 109
Page 9 of 109
Page 10 of 109
Page 11 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:LizSpector
SUBJECT:CONSIDERANDACT:onapprovalofminutesoftheDecember7,2010City
CouncilMeeting
BACKGROUND:
Minutesareattached.
ATTACHMENTS:
12.07.2010CouncilMtgMinutes
Page 12 of 109
MINUTES
AGENDA #2803
CITY COUNCIL MEETING
CITY OF UNIVERSITY PARK, TEXAS
COUNCIL CHAMBER – CITY HALL
TUESDAY, DECEMBER 7, 2010, 5:00 P.M.
2:45 - 3:00 P.M. DISCUSS UNIVERSITY PARK CIVIC FOUNDATION BOARD
OF DIRECTORS MEETING, EXECUTIVE CONFERENCE ROOM, CITY HALL
3:00 - 4:00 P.M. EXECUTIVE SESSION UNDER TEXAS GOVERNMENT CODE
SECTION 551.071, THE COUNCIL CONVENED INTO CLOSED EXECUTIVE
SESSION TO RECEIVE ADVICE FROM THE CITY ATTORNEY REGARDING
REGULATIONS FOR THE SALE OF ALCOHOL IN THE CITY. NO ACTION
WAS TAKEN. EXECUTIVE CONFERENCE ROOM, CITY HALL.
4:00 - 5:00 P.M. WORK SESSION FOR AGENDA REVIEW COUNCIL
CONFERENCE ROOM, SECOND FLOOR, CITY HALL
The Regular City Council Meeting was called into session at 5:00 p.m. in the Council
Chamber at City Hall. Present were Councilmember Stewart, Mayor Pro Tem Grable,
Mayor Davis, Councilmember Clark, and Councilmember Begert. Also in attendance
were City Manager Livingston, and City Attorney Representative Dodd.
Several Boy Scouts from Troop 82 addressed the Council. They introduced
themselves and each stated they were attending the meeting as part of a
requirement to obtain their Citizenship in the Community merit badge.
City Manager Livingston introduced City staff in attendance as Director of
Information Services Jim Criswell, Community Information Officer Steve
Mace, Director of Public Works Bud Smallwood, Police Chief Gary Adams,
Director of Finance Kent Austin, City Secretary Liz Spector, Fire Chief
Randy Howell, Administrative Assistant George Ertle, Fleet Manager Jim
Gau, Purchasing Agent Christine Green, Director of Human Resources
I. CALL TO ORDER
A. INVOCATION: Director of Human Resources Luanne Hanford
B. PLEDGE OF ALLEGIANCE: Director of Human Resources Luanne
Hanford / Boy Scouts
C. INTRODUCTION OF COUNCIL: Mayor W. Richard Davis
D. INTRODUCTION OF STAFF: City Manager Bob Livingston
Page 13 of 109
Luanne Hanford, Director of Community Development Robbie Corder,
Director of Parks Gerry Bradley, Chief Planning Official Harry Persaud and
Assistant Director of Public Works Jacob Speer.
City Manager Livingston read through the Consent Agenda items.
RESOLUTION NO. 10-24
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNIVERSITY PARK, EXAS, APPROVING THE TERMS AND
CONDITIONS OF AN AGREEMENT FOR MUTUAL AID BY AND
BETWEEN THE CITY OF UNIVERSITY PARK, TEXAS AND
OTHER PARTICIPATING LOCAL GOVERNMENTS OF THE
STATE OF TEXAS FOR THE PURPOSE OF PROVIDING FIRE
PROTECTION SERVICES IN THE EVENT OF AN EMERGENCY,
DISASTER AND/OR CIVIL DISASTER AS PROVIDED IN THE
AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
RESOLUTION NO. 10-25
A RESOLUTION OF THE CITY OF UNIVERSITY PARK, TEXAS,
AUTHORIZING THE CITIES AGGREGATION POWER PROJECT,
INC. (CAPP) TO NEGOTIATE AN EXTENSION TO THE CURRENT
ELECTRIC SUPPLY AND NECESSARY RELATED SERVICES
AGREEMENT WITH NEXT ERA FOR A FIXED PRICE PER KWH
THAT IS LOWER THAN CONTRACT RATES FOR 2011-2013, SAID
EXTENSION TO CONTINUE UNTIL DECEMBER 31, 2018;
AUTHORIZING CAPP TO ACT AS AN AGENT ON BEHALF OF
THE CITY TO ENTER INTO A CONTRACT FOR ELECTRICITY;
AUTHORIZING THE CHAIRMAN OF CAPP TO EXECUTE AN
EXTENSION TO THE CURRENT ELECTRIC SUPPLY
AGREEMENT FOR DELIVERIES OF ELECTRICITY EFFECTIVE
JANUARY 1, 2011 OR AS SOON AFTER FINALIZATION OF A
CONTRACT AS POSSIBLE; COMMITTING TO BUDGET FOR
ENERGY PURCHASES AND TO HONOR THE CITY’S
COMMITMENTS TO PURCHASE POWER THROUGH CAPP FOR
ITS ELECTRICAL NEEDS THROUGH DECEMBER 31, 2018.
II. CONSENT AGENDA
A. CONSIDER AND ACT: on approval of a resolution accepting the terms and
conditions of the revised Dallas County Mutual Aid Agreement
B. CONSIDER AND ACT: on approval of resolution authorizing CAPP to
negotiate an extension of the electric supply agreement
C. CONSIDER AND ACT: on approval of State Contract Purchase of a 2011
Chevrolet Tahoe in the amount of $31,909.00 for the Fire Department and a
Page 14 of 109
Councilmember Clark made a motion to approve the Consent Agenda with the
exception of Item D, approval of purchase of the transfer trailers. Mayor Pro Tem
Grable seconded, and the motion carried unanimously.
Mr. Mack Reed, the Texas Sales Manager for Warren Truck and
Trailer addressed the Council. Mr. Reed said his firm submitted the low bid
for the transfer trailers but was not awarded the contract. He stated he
met all of the bid specifications as written, with no exceptions, and was
confident his firm should have been awarded the contract. Mr. Reed said
Warren Truck and Trailer has an impeccable reputation and supplies
equipment to many municipalities including Dallas, Fort Worth and San
Antonio. He said his company had manufactured trailers since 1985 and
made an equal or better trailer than Steco. Mr. Reed offered to build the first
trailer, deliver it to the City and allow use of it for 60 days, and if staff was
not completely satisfied with the product, Mr. Reed would take back the
trailer at no cost to the City. He asked the Council to reconsider the
recommendation of staff, and offer the contract to the low bidder, Warren
Truck and Trailer.
City Fleet Manager Jim Gau addressed the Council. Mr. Gau stated he was
reluctant to use an unfamiliar product for minimal cost savings. He said City
staff had been satisfied with Steco trailers for many years.
Purchasing Agent Christine Green addressed the Council. She said the
recommendation to award the bid was not taken lightly. Ms. Green stated
that she reviewed the decision with the City Attorney and he stated that the
City Council has the authority by state statute to reject any bids.
Councilmember Stewart asked if Mr. Reed’s company visited the City
2011 Ford Escape in the amount of $17,684.41 for a Police Department
Parking Enforcement Vehicle
E. CONSIDER AND ACT: on an interlocal purchasing agreement for
cooperative purchasing with Purchasing Solutions Alliance
F. CONSIDER AND ACT: on approval to purchase seven high efficiency air
conditioning units from Trane in the amount of $153,068.00 to be offset with
the funds received from the State Energy Conservation Office Grant in the
amount of $86,365
G. CONSIDER AND ACT: on approval of minutes of the November 16, 2010
City Council Meeting
D. CONSIDER AND ACT: on approval of purchase of two transfer trailers for
the Sanitation Division
Page 15 of 109
facilities. Mr. Reed said they had not felt it necessary because all of
the details to make an accurate bid were included in the bid specifications.
Councilmember Stewart asked to table the motion. He asked that Mr. Gau
meet with Mr. Reed and discuss the bid again.
Councilmember Stewart made a motion to table the purchase of two transfer
trailers for the Sanitation Division for further review. Councilmember Clark
seconded, and the motion carried.
The vote to table the purchase was split with 4 in favor and Mayor Davis
opposed.
Director of Parks Gerry Bradley addressed the Council. He reminded them
that at the November 21 Council Meeting they directed staff to advertise for
a public hearing to allow resident input regarding proposed changes to the
Germany Park Use Agreement as requested by HPISD. Mr. Bradley stated
the major change to the agreement was the request for exclusive use of the
track weekdays from 3 to 5 p.m. during the months of January through May
to allow the track team sole access to all lanes during team practices. Mr.
Bradley explained that letters were sent to approximately 100 addresses in
the neighborhood surrounding the track to inform residents of the proposed
change. Mr. Bradley also posted notices of the public hearing and proposed
changes at the track. Mr. Bradley said several residents were present to
address the Council and representatives from the school district were present
as well.
Mayor Davis opened the public hearing and called the first speaker to the
lectern.
Mr. Brett Wiggs, 2709 Purdue, addressed the Council regarding HPISD's
request to amend the track agreement. He stated his support for the request
to close the track during team practice from 3 - 5 p.m. on school days. He
said it is a responsibility of the Council to support the school programs and
to protect safety of all track users.
Mr. David Wright, 4216 University, addressed the Council. He said as a
parent of an HPISD high school track and field athlete, he supported the
school district’s request. He stated that most of the track teams that the
Highland Park team competes against practice on eight-lane tracks. He said
the Germany Park track has only six lanes, which places the team at a
IV. MAIN AGENDA
A. PUBLIC HEARING: to receive resident input on HPISD request to modify
Germany Park Use Agreement
Page 16 of 109
disadvantage. Mr. Wright said allowing the track team exclusive use of
those six lanes would be beneficial. He urged the Council to approve the
request by HPISD.
Mr. Shawn Todd, 4401 Westway, addressed the Council. He spoke in favor
of granting the HPISD track teams exclusive use of the track during the track
season. Mr. Todd stated that the track program has grown phenomenally
over the past few years making it even more necessary to allow the teams
sole use of the track during afternoon practice. He said that his children have
been team members the past six years and he has observed the lack of respect
given to the track team by others using the track. He said that he has
watched other track users ignore the requests of coaches and parents to be
mindful of the closed lanes. He said this puts all involved in an unsafe
situation. He asked the Council to approve the request by HPISD.
Ms. Diane Couchman, a resident on Grassmere, addressed the Council. She
said Germany Park is a public track paid for by the residents and she does
not understand what legal authority the City Council has to prohibit its use.
She asked the Council to consider how the track could be made safer for
residents to use and said she was concerned about non-authorized use of the
track by children on bicycles, walkers with dogs, and those using motorized
vehicles.
Mayor Davis asked Mr. Bradley if he had received any other responses. Mr.
Bradley said he received approximately 65 written responses via e-mail and
regular mail. He said six responses were in opposition and 55 were in favor
of the proposed change.
As there were no further requests to address this agenda item, Mayor Davis
closed the public hearing.
Councilmember Begert made a motion to approve the HPISD request to
modify Germany Park Use Agreement. Councilmember Clark seconded, and
the motion carried unanimously.
Director of Public Works Bud Smallwood addressed the Council. He stated
that earlier in the year, an accident involving a bicyclist and an automobile
occurred at the intersection of Hillcrest and Purdue. He said this accident
triggered neighborhood residents to submit a petition. Signed by 55
homeowners, it requests the City install a crosswalk across Hillcrest at
B. CONSIDER AND ACT: on HPISD request to modify Germany Park Use
Agreement
C. CONSIDER AND ACT: on a request to install a crosswalk across Hillcrest
at Purdue
Page 17 of 109
Purdue. Mr. Smallwood mentioned that one resident returned a response
opposed to the crosswalk.
Mr. Smallwood said the primary concern of the petitioners was for the safety
of elementary school children who cross Hillcrest at this location. He said
that staff explored several options and contracted with traffic engineer
Dannie Cummings to study this location.
He said four alternatives were considered by staff to address this concern.
He said those options include a standard crosswalk installation with
pavement marking and signs, a crosswalk with pedestrian-activated beacons,
a lighted in-pavement flashing crosswalk, or, a traffic signal option if traffic
warrants were met.
He said after careful consideration, staff and Mr. Cummings recommend no
crosswalk be installed at this location so that pedestrians are encouraged to
walk south to Lovers Lane or north to Southwestern Blvd. to cross Hillcrest.
Mr. Smallwood said crosswalks give a false sense of safety to children
attempting to cross at this site and he fears that installing a crosswalk would
be more dangerous than encouraging them to cross at controlled
intersections.
Mayor Davis stated the Council recognizes the seriousness of the situation
and said it warrants careful consideration. Mayor Davis said the Council
would like more information before making any decision on this issue. He
asked that a survey be done to determine how many people cross Hillcrest at
this intersection.
Councilmember Clark stated that the only reason to make changes to this
intersection would be to improve safety. He requested that once detailed
information regarding the pedestrian traffic is available that the request be
deferred to the Public Safety Committee for their study and recommendation.
Ms. Elizabeth Helton, 3505 Purdue, addressed the Council. She said
her three children do not use that intersection to get to school, but do use it to
get to friends’ houses. She stated there is a six block stretch with no safe
crossing areas. Ms. Helton said that there should be more access to
cross Hillcrest. She said that children cross Hillcrest for reasons other than
getting to school and going north or south four blocks to cross Hillcrest isn’t
necessarily the best option.
Mayor Pro Tem Grable made a motion to table any decision on the
resident request for a crosswalk across Hillcrest at Purdue until a traffic
study has been performed and the results of that study are reviewed by
the Public Safety Committee. Councilmember Clark seconded, and the
motion carried unanimously.
Page 18 of 109
Chief Planning Official Harry Persaud addressed the Council regarding a
request by SMU to change zoning in a portion of the university campus. He
displayed a map showing the area in question. He said the zoning would
change from D-2 and UC-2 to zone the entire site UC-1. Mr. Persaud this
would give the university better building development on the approximately
25-acre site.
He said property owners within 200 feet of the site were notified. He said no
responses in opposition were received.
Mr. Persaud said as part of the redevelopment, SMU is proposing to move
Airline Road south, creating a contiguous site for development in that area.
Mr. Persaud displayed a conceptual site plan submitted for informational
purposes by SMU. He reminded the Council they were not approving the
site plan at this time. He said SMU has plans for a residential commons area
to house 1,250 students on that site. He said an 825-space parking garage is
also proposed for the site.
Mr. Persaud said SMU conducted a traffic study as part of their rezoning
request. He said the study determined there would be no significant impact
to traffic.
Mr. Persaud said that a public hearing was held at P & Z and they voted
unanimously to approve the zoning change.
Mayor Pro Tem Grable asked if the road would be relocated at SMU’s
expense. Mr. Smallwood said the cost of the relocation would be totally
borne by SMU. City Manager Livingston said the City would need to swap
the right-of-way with SMU to construct the new street.
Mr. John Harris, 2936 Dyer, asked if an impact study was made as part of the
traffic study to determine how the neighborhood to the north would be
affected if southern access to Mockingbird was blocked off.
Mr. Smallwood said DeShazo Tang did a Traffic Impact Analysis and did
take into consideration the impact of eliminating traffic at Dublin and
D. PUBLIC HEARING: on a request by SMU to change the zoning from
Duplex, D-2 and University Campus, UC-2 to University Campus, UC-1
zoning district classification in accordance with the comprehensive zoning
ordinance. The subject tract is approx. 25 acres more or less and located
north of Potomac Avenue and west of Dublin Street and situated in the Joel
Sykes Survey Abstract No. 1338, City of University Park, Dallas County,
Texas.
Page 19 of 109
Mockingbird.
As there were no further requests to address the Council, Mayor Davis
closed the public hearing.
Councilmember Stewart made a motion to approve an ordinance granting a
change of zoning from Duplex, D-2 and University Campus, UC-2, to
University Campus, UC-1 zoning district classification in accordance with
the comprehensive zoning ordinance. The subject tract is approx. 25 acres
more or less and located north of Potomac Avenue and west of Dublin Street
and situated in the Joel Sykes Survey Abstract No. 1338, City of University
Park, Dallas County, Texas. Mayor Pro Tem Grable seconded, and the
motion carried unanimously.
ORDINANCE NO. 10/45
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS,
AMENDING THE COMPREHENSIVE ZONING ORDINANCE AND
MAP OF THE CITY OF UNIVERSITY PARK, AS HERETOFORE
AMENDED, SO AS TO GRANT UNIVERSITY CAMPUS-1 “UC-1”
ZONING DISTRICT CLASSIFICATION FOR THE PROPERTY
DESCRIBED AS 25.0093 ACRES, MORE OR LESS, BEING ALL OF
LOTS 1 THROUGH 22, BLOCK 1, AND LOTS 12 THROUGH 22,
BLOCK 8, EAST UNIVERSITY PLACE ADDITION, AN ADDITION
TO THE CITY OF UNIVERSITY PARK, DALLAS COUNTY,
TEXAS, BEING MORE PARTICULARLY DESCRIBED IN EXHIBIT
“A” ATTACHED HERETO AND DEPICTED IN EXHIBIT “B”
ATTACHED HERETO; PROVIDING FOR THE REPEAL OF ALL
ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY
CLAUSE; PROVIDING FOR A PENALTY OF FINE NOT TO
EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00)
FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE.
City Manager Livingston stated the next three agenda items addressed the
E. CONSIDER AND ACT: on an ordinance granting a change of zoning from
Duplex, D-2 and University Campus, UC-2, to University Campus, UC-1
zoning district classification in accordance with the comprehensive zoning
ordinance. The subject tract is approx. 25 acres more or less and located
north of Potomac Avenue and west of Dublin Street and situated in the Joel
Sykes Survey Abstract No. 1338, City of University Park, Dallas County,
Texas.
F. PUBLIC HEARING: on an ordinance amending the Comprehensive Zoning
Ordinance to provide for the sale of mixed alcoholic beverages for on-
premise consumption and the retail sale of beer and wine for off-premise
consumption and to provide definitions related to those uses.
Page 20 of 109
City’s adoption of ordinances and resolutions related to the legal sale of
alcohol in the City. He said that the City was proposing to adopt ordinances
to mirror state laws, establish required zoning designations and approve
certain municipal fees. Chief Planning Official Harry Persaud addressed the
Council.
Mr. Persaud said the City is formally setting up the framework to
address sales of alcohol in the City as approved in the November 2, 2010
election. He stated the zoning ordinance needed to be amended to be
consistent with state regulations and to add the approved definitions. He also
said a table of permitted uses allowed in each district needed to be added to
the zoning ordinance. Mr. Persaud said the required public hearing was held
on November 30, 2010 at P & Z and they unanimously approved the
recommendations of staff.
Mayor Davis asked if anyone wished to address this agenda item. As there
were no requests to speak to the Council, Mayor Davis closed the public
hearing. He also requested that agenda items G and H be considered
together.
During the work session, Chief Planning Official Harry Persaud explained
the proposed amendments to the Code of Ordinances to the Council. He
stated the amended ordinance will provide a regulatory framework to review
and approve permits for the sale of beer and wine for off-premise
consumption and the sale of mixed beverages (with Food and Beverage
Certificate) for on-premise consumption. Mr. Persaud explained that the
specific distance requirements proposed in the ordinance are consistent
with state law and do not allow such establishments to be within 300 feet of
a church, public or private school, or public hospital without specific Council
action. He said the ordinance also includes a provision to allow the
governing body of a private school to request that the Council restrict such
establishments within 1000 feet of the private school as set out in the
G. CONSIDER AND ACT: on an ordinance amending the Comprehensive
Zoning Ordinance to provide for the sale of mixed alcoholic beverages for
on-premise consumption and the retail sale of beer and wine for off-premise
consumption and to provide definitions related to those uses.
H. CONSIDER AND ACT: on an ordinance amending the Code of
Ordinances by adding Article 4.1300 Sale of Alcoholic Beverages to
establish regulations governing the sale and service of alcoholic beverages;
adopting distance regulations from churches, public hospitals, and public and
private schools; authorizing annual license and permit fees; providing a
repealing clause; providing a severability clause; providing for a penalty of
fine not to exceed the sum of five hundred dollars ($500.00) for each
offense; providing a savings clause; and providing an effective date.
Page 21 of 109
Alcoholic Beverage Code.
Mr. Persaud said the City Council may allow variances to the requirements if
they determine that enforcement of the regulation in a particular instance is
not in the best interest of the public, constitutes waste or inefficient use of
land or other resources, creates an undue hardship on an applicant, does not
serve its intended purpose, is not effective or necessary, or for any other
reason is not in the best interest of the City.
Mr. Persaud told the Council that the ordinance also provides that the City
shall charge an annual permit fee in an amount equal to one-half (1/2) of the
fee charged by the State of Texas for each particular permit or license. The
fee shall be paid to the City Secretary at the time of application. The amount
of the fee shall be set by appropriate Resolution of the City Council
amending the City’s Master Fee Schedule.
Mayor Davis asked the Council to vote on Item G and Item H in one motion
unless they requested otherwise.
Mayor Pro Tem Grable made a motion to approve an ordinance
amending the Comprehensive Zoning Ordinance to provide for the sale of
mixed alcoholic beverages for on-premise consumption and the retail sale of
beer and wine for off-premise consumption and to provide definitions related
to those uses and an ordinance amending the Code of Ordinances by adding
Article 4.1300 Sale of Alcoholic Beverages to establish regulations
governing the sale and service of alcoholic beverages; adopting distance
regulations from churches, public hospitals, and public and private schools;
authorizing annual license and permit fees; providing a repealing clause;
providing a severability clause; providing for a penalty of fine not to exceed
the sum of five hundred dollars ($500.00) for each offense; providing a
savings clause; and providing an effective date. Councilmember Stewart
seconded, and the motion carried unanimously.
ORDINANCE NO. 10/46
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS,
AMENDING THE COMPREHENSIVE ZONING ORDINANCE OF
THE CITY OF UNIVERSITY PARK, AS HERETOFORE AMENDED,
BY AMENDING SECTION 40 “GENERAL DEFINITIONS” TO ADD
IN ALPHABETICAL ORDER DEFINITIONS FOR SALES OF
ALCOHOLIC BEVERAGES; AMENDING SECTION 20-102 TO ADD
ALCOHOLIC BEVERAGE SALES USES AS PERMITTED OR
ACCESSORY USES IN THE NONRESIDENTIAL DISTRICTS USE
TABLE; PROVIDING FOR THE REPEAL OF ALL ORDINANCES
IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE;
PROVIDING FOR A PENALTY OF FINE NOT TO EXCEED THE
SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH
Page 22 of 109
OFFENSE; AND PROVIDING AN EFFECTIVE DATE.
ORDINANCE 10/47
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS
AMENDING THE CODE OF ORDINANCES BY AMENDING
CHAPTER 4 “BUSINESS & COMMERCE” BY ADDING ARTICLE
4.1300 “SALE OF ALCOHOLIC BEVERAGES” TO ESTABLISH
REGULATIONS GOVERNING THE SALE AND SERVICE OF
ALCOHOLIC BEVERAGES WITHIN THE CITY OF UNIVERSITY
PARK; ADOPTING DISTANCE REGULATIONS FROM
CHURCHES, PUBLIC HOSPITALS, AND PUBLIC AND PRIVATE
SCHOOLS; AUTHORIZING ANNUAL LICENSE AND PERMIT
FEES; PROVIDING A REPEALING CLAUSE; PROVIDING A
SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY OF FINE
NOT TO EXCEED THE SUM OF FIVE HUNDRED DOLLARS
($500.00) FOR EACH OFFENSE; PROVIDING A SAVINGS CLAUSE;
AND PROVIDING AN EFFECTIVE DATE;
City Manager Livingston summarized the amendments to the Master Fee
Schedule. He explained that the City was increasing the fee for
fingerprinting from $10 to $15 and a City permit review fee of $250 was
being incorporated in the fee schedule. Mr. Livingston also said that the
muncipal fees allowed by the TABC for alcohol licensing were being added
to the fee schedule. He said those fees were 1/2 of the state fees and
followed a specific schedule set out by the TABC.
Mayor Davis asked if anyone wished to discuss the amendments to the fee
resolution. There were no requests to speak and Mayor Davis asked for a
motion.
Mayor Pro Tem Grable made a motion to approve a resolution amending the
master fee schedule to include fingerprinting fees and license and permit fees
for alcoholic beverage sales. Councilmember Clark seconded, and the
motion carried unanimously.
RESOLUTION NO. 10-26
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNIVERSITY PARK, TEXAS, AMENDING RESOLUTION NO. 08-
18, EXHIBIT “A,” SECTION I “ADMINISTRATIVE SERVICES,” BY
PROVIDING AN ADMINSTRATIVE FEE FOR REVIEW OF STATE
LICENSE OR PERMIT APPLICATION; AM ENDING SECTION II
“BUILDING AND ZONING” BY PROVIDING LICENSE AND
I. CONSIDER AND ACT: on a resolution amending the master fee schedule to
include fingerprinting fees and license and permit fees for alcoholic beverage
sales
Page 23 of 109
PERMIT FEES FOR ALCOHOLIC BEVERAGE SALES;
AMENDING SECTION IV “PUBLIC SAFETY AND JUDICIAL” BY
PROVIDING A FINGERPRINTING FEE; AND PROVIDING AN
EFFECTIVE DATE.
City Manager Bob Livingston addressed the Council regarding a proposed
agreement with the owner of Preston Center East to exchange properties in
order to provide 17,500 square feet for a library, with the space owned by the
City and constructed at no substantial outlay by the City or the Friends of the
Library. Mr. Livingston stated this agreement would allow the Friends of the
Library to concentrate on raising endowments to sustain the library. He said
this would potentially allow the taxpayers to reduce their financial support of
daily library operations.
Mr. Livingston said the proposal would put in place a process to transfer
rights-of-way from the City to the property owners of the Center in return for
ownership of one floor of an office building proposed by the Center. Mr.
Livingston said this would include adequate parking space for library
patrons as well as 500 square feet on the first floor for a separate lobby
and entrance for library and 2,000 square feet on the 3rd floor for additional
meeting space. Mr. Livingston said the agreement included a provision to
lease the secondary area to the City in a 50-year lease. He also stated that
the Center’s owners proposed to provide $50 per square foot for a finish-out
allowance.
Mr. Livingston stated that several appraisals were obtained. He said the
most recent appraisal was from the Henry S. Miller Company which
estimated the value of the rights-of-way at $80 per square foot for a net value
of $14 million. Mr. Livingston stated he calculated the value of what is
being offered to the City in exchange is in excess of $9 million, however, he
said the rights-of-way traded to the center only hold value to the Center. Mr.
Livingston stated that not only would the City receive the library space in
trade, the City would also be relieved of any maintenance on those rights-of-
way which is an additional incentive for the City. He also said property
taxes received from the Center would increase due to the increase in
valuation. He also stated that the City would receive construction building
permit revenues from the Center.
City Manager Livingston asked the Council to approve the agreement in
concept and to approve the ordinance transferring the rights-of-way to the
Center. He stated that under the agreement, the ordinance would not go into
effect until the agreement is finalized. He said preliminary approval of the
J. CONSIDER AND ACT: on approval of an agreement for transfer of rights-
of-way in The Plaza at Preston Center in return for University Park Public
Library space in office building
Page 24 of 109
plans would show a good-faith effort to the owners of Preston Center East
that the City is willing to move forward with the arrangement. He said in the
long term, the agreement would provide the City’s residents with a
permanent library facility with little cash outlay by the City or the Friends of
the Library. He said the agreement had been crafted in partnership with the
Friends of the Library who have been successfully operating the library for
many years in the City. Mr. Livingston said it would provide the library an
opportunity to fund an endowment to reduce the burden of funding operating
costs for the taxpayers and potentially increase revenues for the City.
Mayor Davis asked Susan Hall, President of the University Park Friends of
the Library, to address the Council.
Mrs. Hall said the mission of the Friends of the Library was to provide
exemplary library service. She said the library relies on donations and grants
as well as the City’s monthly contribution to operate. Mrs. Hall asked the
library board members and staff present at the meeting to stand. She said
they were all committed to finding a permanent home for the Library and in
a vote taken at the last board meeting expressed support for the current City
effort to provide a permanent library site. Mrs. Hall said the members are
committed to the fundraising necessary to make this plan a reality.
She stated they pledge to continue to work to build an institution worthy of
the community.
Mr. John Stuart, a former President of the library board and current
committee member, addressed the Council. He expressed his thanks to this
Council and prior Councils for their continued efforts to give the library a
permanent home. He said everyone worked together in a great partnership to
develop a libary of which the community will be proud. Mr. Stuart
acknowledged his support for this partnership with the City.
Mr. Kirk Williams requested to address the Council. He said is an attorney
who represents the Hillstone Restaurant Group. Mr. Williams said Hillstone
operates two restaurants in the Center and said Hillstone is the largest sales
tax payer in the City. He said his client has a huge investment in the area
and they are concerned about the potential removal of required parking
during the construction period. Mr. Williams said the most current site
plan shows a construction entrance is planned between the two restaurants.
He stated this may take up all the restaurants’ parking spaces. Mr. Williams
said the concept planned for the development is great, but there are issues
that need to be resolved with the existing tenants. He stated his
concern about a potential breach of their leases which include the right to use
the property along with parking. He also said the new building as proposed
should be required to be in a Planned Development District due to the size
and/or parking requirements and it has not been reviewed as such.
Page 25 of 109
Mr. Williams requested neither the City Council nor the City Manager
execute the contract as presented due to its incomplete state.
Mayor Davis said the City was not suggesting that the agreement is final, but
the issues Mr. Williams mentioned are primarily between the leaseholder and
his client, not the City. Mayor Davis asked the City Attorney to address Mr.
Williams' statement regarding the necessity of a PD.
City Attorney representative David Dodd addressed Mr. Williams' questions
regarding a Planned Development. Mr. Dodd stated that if the applicant
came to the City with a project that met all the zoning requirements existing
on the property, the City had a ministerial duty under state law to permit the
project.
Mayor Davis said if the Council approved in the agreement in concept, there
would be another opportunity for interested parties to address the Council
before approval of the finalized agreement. As there were no further
requests to discuss the agreement, Mayor Davis asked for a motion.
Councilmember Begert made a motion to approve the agreement in concept
subject to submission and approval of final site plans, concept plans and
exhibits, a third appraisal of the streets and alley ways must be obtained at
the expense of the Plaza at Preston Center and receipt of the appropriate
closing documents. Councilmember Clark seconded, and the motion carried
unanimously.
Councilmember Begert made a motion to approve an ordinance abandoning
certain street and alley rights-of-way subject to execution of the final
agreement with the Plaza at Preston Center to transfer street and alley rights-
of-way in exchange for library space in an office building (Item J). A
certified copy of the abandonment ordinance will not be filed until the
agreement has been finalized. Councilmember Clark seconded, and the
motion carried unanimously.
Director of Community Development Robbie Corder addressed the Council.
He reminded them of the City program in place since 2005 which reimburses
property owners who receive notices of code violation for defective
sidewalks 50% of the cost of such replacement. Mr. Corder said it had been
an effective program but staff had concerns about the wide variance in prices
charged to residents and reimbursed by the City. He said $80,000 was
K. CONSIDER AND ACT: on an ordinance abandoning certain street and alley
rights-of-way
L. DISCUSS: proposed revisions to the City’s Sidewalk Replacement Program
Page 26 of 109
budgeted each year to fund these reimbursements.
Mr. Corder said he requested his staff solicit bids for replacement prices for
City sidewalk projects. Mr. Corder said the low bid was received from
Hughes Material at $3.75 per square foot. Mr. Corder said this was a
substantial reduction over what staff has seen residents pay other contractors
for identical work.
Mr. Corder said staff still recommends the 50/50 replacement program. He
said now, along with notices of code violation and information about the cost
sharing program, the City will send contact information for Hughes Material
Construction. Mr. Corder said the City will reimburse the homeowner at the
rate of one-half of the price quoted by Hughes Material, which will be
$1.875 per square foot but only if the homeowner contracts with Hughes
Material for the replacement work.
Councilmember Stewart asked how long Hughes Material Construction
guaranteed their price would remain $3.75 per square foot. Director of
Public Works Smallwood stated that the price was guaranteed for one year in
the bid specifics. Mr. Corder also stated he planned to revisit the plan
specifics in one year. In addition, Mr. Corder said the City did not guarantee
Hughes Material any work and was not obligated to pay them anything.
Councilmember Begert made a motion to approve proposed revisions to the
City’s Sidewalk Replacement Program. Mayor Pro Tem Grable seconded,
and the motion carried unanimously.
City Manager Bob Livingston said staff had not scheduled any agenda items
for the December 21 City Council meeting. Mayor Davis said if it
became necessary, a meeting could be scheduled. Mayor Davis asked for a
motion to cancel the December 21 meeting.
Councilmember Stewart made a motion to approve the cancellation of the
December 21, 2010 City Council Meeting. Councilmember Clark seconded,
and the motion carried unanimously.
Resident Kitty Holleman asked the City Council to look into putting all electrical
wires underground. Mayor Davis said pricing had been received, and the cost to
bury all electrical utilities in the City was vastly expensive. He offered to meet
with Ms. Holleman at a later date to show her the work City staff had previously
done to determine the financial feasibility of this effort.
M. CONSIDER AND ACT: on cancellation of the December 21, 2010 City
Council Meeting
V. ITEMS FROM THE FLOOR
Page 27 of 109
As there were no further requests to address the Council, Mayor Davis adjourned
the meeting.
Considered and approved this 4th day of January 2011.
__________________________________
W. Richard Davis, Mayor
ATTEST:
____________________________
Elizabeth Spector, City Secretary
Page 28 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:BobLivingston,CityManager
SUBJECT:CONSIDERANDACT:onapprovaloffinalagreementwithCaruth/Preston Road
AssociatestoexchangeCityrights-of-wayinthePlazaatPrestonCenterfor
UniversityParkPublicLibrarysite
BACKGROUND:
AtitsDecember7,2010meetingtheCouncilapprove dinconcepttheAgreementsubjectto
finalizationofthenecessaryexhibitsandotherde tails.TheattachedAgreementisinfinalform
approvedbytheCityAttorney.
AsstatedintheDecember7Agendamemo,theAgreem entisatradearrangementbetweentheCity
andCaruth/PrestonRoadAssociates,LTD(PrestonCe nter).Majorconsiderationsinclude:
•TheCityofUniversityParkwillagreetotransfer ownershipofthestreetandalleyrights-of-
waylocatedinthePlazaPrestonCenter.
•Inreturn,PrestonCenteragreestogivetheCityo wnershipofonefloor(15,000s.f.)ofan
officebuildingtobeconstructedinthePlazaatP restonCenter.
•PrestonCenterwillprovideallrequiredparkingsp acesfortheLibrary.
•Additionally,PrestonCenterwillprovidea50year ,nocostleaseformeetingroomspaceon
thethirdfloorofthebuildingandaseparatelobb yandentranceforthelibrary(2,500s.f.).
AdvantagestotheCityandtheFriendsoftheLibra ry(FOL)include:
Ownershipofapermanent,dedicatedsitefortheli braryalongwithrequiredparking.
Alocationthatisspecificallydesignedandfurnis hedasalibrary.
Abilitytoacquirethesiteandfinishoutthespac ewithlittleoutlayoftaxdollars.
AnopportunityforFOLtoconcentrateitseffortso nfundinganendowmentforongoing
libraryoperations.
IncreasedrevenuefortheCityfromconstruction,e xpandedparking,andpropertytaxrevenues
fromthenewbuildingandrights-ofwaybeingretur nedtothetaxroll.
EliminationoftheCity’smaintenanceresponsibilit yforstreetsandalleyswithinthePlazaat
PrestonCenter.
RECOMMENDATION:
CitystaffrecommendsapprovaloftheAgreement.
Page 29 of 109
ATTACHMENTS:
Exchangeanddevelopmentagreement
Page 30 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT
between
THE CITY OF UNIVERSITY PARK,
a municipal corporation organized under the laws of the State of Texas
and
CARUTH/PRESTON ROAD ASSOCIATES, LTD.,
a Texas limited partnership
dated
January 4, 2011
Page 31 of 109
TABLE OF CONTENTS
Article I. Abandonment of the City Property.................................................................................. 2
Section1.01 City’s Agreement to Convey ...........................................................................2
Section1.02 Accommodation of Caruth’s Like Kind Exchange ..........................................2 Section1.03 Title Commitment ............................................................................................2
Section1.04 Survey ..............................................................................................................2
Section1.05 Date of Abandonment ......................................................................................3
Section1.06 As-Is Conveyance ............................................................................................3
Section1.07 Title Policy .......................................................................................................3 Section1.08 Replat of Caruth Land and City Property ..........................................................
Section1.09 Right to Construct ............................................................................................3
Article II. Construction of Underground Parking Structure and Mixed Use Building ................... 4
Section2.01 Underground Parking Structure .......................................................................4 Section2.02 Mixed Use Building .........................................................................................4 Article III. Condominium Ownership of Mixed Use Building ....................................................... 4
Section3.01 Establishment of Condominium ......................................................................4
Section3.02 Description of Condominium Units .................................................................4
Section3.03 Condominium Declaration ...............................................................................5 Article IV. Agreement to Convey the Library Unit and Parking Easement ................................... 6 Section4.01 Caruth’s Agreement to Convey the Library Unit ............................................6
Section4.02 Reports and Access ..........................................................................................6
Section4.03 Title Commitment ............................................................................................6
Section4.04 Title Objections ................................................................................................6
Section4.05 As-Is Conveyance ............................................................................................7 Section4.06 Title Policy .......................................................................................................7
Article V. Right of First Refusal, Right to Purchase, and Parking Easement ................................. 8
Section5.01 Right of First Refusal .......................................................................................8
Section5.02 Parking Easement.............................................................................................8
Article VI. The Exchange Closing .................................................................................................. 8 Section6.01 Closing .............................................................................................................8
Section6.02 Deliveries by Caruth ........................................................................................9
Section6.03 Deliveries by the City ......................................................................................9
Section6.04 Other Deliveries .............................................................................................10
Section6.05 Taxes ..............................................................................................................10 Section6.06 Closing Costs .................................................................................................10
Article VII. Buildout of Library Unit ........................................................................................... 10
Section7.01 Preliminary Plans ...........................................................................................10
Section7.02 Construction Plans .........................................................................................10
Section7.03 Construction ...................................................................................................11 Section7.04 Allowance ......................................................................................................11
Page 32 of 109
TABLE OF CONTENTS, PAGE2
Section7.05 Reviews ..........................................................................................................11 Section7.06 Construction Representatives .........................................................................11
Article VIII. Representations and Warranties ............................................................................... 12
Section8.01 By Caruth .......................................................................................................12
Section8.02 By the City .....................................................................................................12 Article IX. Defaults and Remedies ............................................................................................... 13 Section9.01 Events of Default ...........................................................................................13
Section9.02 Remedies ........................................................................................................13
Section9.03 Limited Waiver of Sovereign Immunity ........................................................13
Article X. Miscellaneous .............................................................................................................. 13 Section10.01 Independent Contractor ................................................................................13 Section10.02 Brokers .........................................................................................................13
Section10.03 No Assignment.............................................................................................14
Page 33 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXCHANGE AND DEVELOPMENT AGREEMENT
This Agreement (this “Agreement”) dated January 4, 2011, is made and entered into by and between THE CITY OF UNIVERSITY PARK, a home rule municipal corporation
organized under the laws of the State of Texas (the “City”) and CARUTH/PRESTON ROAD
ASSOCIATES, LTD., a Texas limited partnership (“Caruth”).
BACKGROUND
A. Caruth owns the land and buildings that make up the shopping center commonly known
as The Plaza at Preston Center (the “Shopping Center”), which is shown on the site plan attached to this Agreement as Exhibit A (the “Site Plan”).
B. Caruth also owns the land described by metes and bounds on Exhibit B and labeled
“Caruth Land” on the Site Plan (the “Caruth Land”).
C. The City ownsthe land described by metes and bounds on Exhibit C and labeled “City
Land” on the Site Plan (the “City Land”). The City Land consists of streets and alleys, as shown on the Site Plan. The City Land and Caruth Land are collectively referred to as the
“Land”.
D. Caruth has requested that the City abandon the City Land to Caruth, the abutting owner,
by appropriate ordinance enacted by the City Council in accordance with applicable law.
E. Following the abandonment of the City Land, Caruth plans to construct a two-level underground parking structure beneath the Land (the “Underground Parking Structure”).
F. Caruth also plans to demolish the building currently existing at the location labeled
“Building J” on the Site Plan, and replace it with a new five story building (the “Mixed Use
Building”). Caruth intends that the first floor of the Mixed Use Building will be used for lobby
and retail space, the second floor as a City library (the “Second Floor”), and the third through fifth floors (the “Office Floors”) for (1) library meeting room and library office space in the Third Floor Leased Space (defined in (G) below) and (2) otherwise for general office use.
G. This Agreement describes the terms and conditions pursuant to which:
(1) the City will abandon the City Land to Caruth (but retain a 37,500 square foot water
line easement, storm sewer easements, and a 16,020 square foot sanitary sewer line easement, referred to as the “Retained Easements”), and
(2) Caruth will (a) construct the Mixed Use Building, (b) subject the Mixed Use Building
to a condominium regime, (c) convey all of the Second Floor (in the form of a
condominium unit, referred to as the “Library Unit”) to the City for use as a City library,
which will include, as limited common elements appurtenant to the Library Unit, (i) a lobby containing approximately 500 square feet on the first floor of the Mixed Use Building (the “Library Lobby”) and (ii) an elevator shaft and cab providing access to the
two levels of the parking garage, the Library Lobby, and the Library Unit (the “Library
Elevator”); (d)lease two thousand square feet of space on the third floor of the Mixed
Use Building(the “Third Floor Leased Space”) to the City,library meeting room and library office space only,for a term of fifty years, with base rent waived for the entire
Page 34 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE2
term; (e) provide parking spaces for the Library Unitand Third Floor Leased Space;and (f) andprovide a finish allowance to the City to be used for improvements to the Library
Unit, Library Lobby, and Third Floor Leased Space.
H. This Agreement also sets forth agreements between the parties related to the foregoing,
includingagreements concerning (1) some pertinent terms that will be part of the condominium documents, (2) agreements regarding cost sharing for common expenses, (3) rights in favor of Caruth of first refusal and upon the Library Unit being dark for a certain period of time to
repurchase the Library Unit, and (4) an alternative use of the Library Unit if the Library Unit is
not initially opened and operated as a library.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Article I. Abandonment of the City Property
Section1.01 City’s Agreement to Convey. The City agrees to abandon the following
interests in favor of Caruth, the abutting owner, and Caruth agrees to accept the abandonment of
such interests from the City, on and subject to the terms and conditions contained in this
Agreement, but subject to the Retained Easements and the City Property Permitted Encumbrances: (a) the City Land, (b) the paving and other improvements (if any) situated on the
City Land, and (c) all right, title, and interest of the City in and to any strips and goresbetween
the City Land and the Caruth Land (collectively, the “City Property”).
Section1.02 Accommodation of Caruth’s Like Kind Exchange. Caruth’s receipt of title
to the City Property will be part of a like kind exchange pursuant to Section 1031 of the U.S.
Internal Revenue Code (the “Exchange”). To facilitate the exchange, the City will abandon the
City Property to an exchange accommodation titleholder (the “EAT”). The EAT will hold title
to the City Property until the Exchange Closing.
Section1.03 Title Commitment. Republic Title of Texas, Inc. located at 2626 Howell
Street, Dallas, Texas 75204 (the “Title Company”)has issued and delivered to the parties a preliminary commitment for title insurance dated effective September 20, 2010, issued
November 18, 2010,committing to issue a Texas owner’s policy of title insurance covering the
Land(the “Commitment”) as well as copies of the documents and instruments listed or referred
to in the Commitment).Tracts 1 through 10 of the Commitment describe the Caruth Land, and
Tracts 11 and 12 of the Commitment describe the City Land. The City will satisfy all matters identified on Schedule C to the Commitment that relate to the City Land so that none of such
matters appear on the title policy to be issued on the Abandonment Date. All other matters
shown on the Commitment and the Survey that affect the City Property are referred to as the
“City Property Permitted Encumbrances.”
Section1.04 Survey. Caruth has delivered to the City an on-the-ground survey covering both the City Property and the Caruth Land dated October 20, 2010, revised November 2, 2010,
and prepared by Gregory B. Iffland, RPLS No. 4351 (the “Survey”), and certified to Caruth, the
City, and First American Title Insurance Company (the “Underwriter”).
Page 35 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE3
Section1.05 Date of Abandonment. On or before January 31, 2011, the City will enact an abandonment ordinance (and deliver a certified copy of the ordinance to Caruth) and take such
other actions as are necessary to abandon the City Property to the EAT as required by this
Agreement. The date that the City Property is abandoned to the EAT is called the
“Abandonment Date”.
Section1.06 As-Is Conveyance. OTHER THAN EXPRESSLY PROVIDED HEREIN AND IN THE
DOCUMENTS TO BE EXECUTED ON THE ABANDONMENT DATE OR IN CONNECTION WITH THE
ABANDONMENT OF CITY PROPERTY, THE ABANDONMENT AND CONVEYANCE OF CITY PROPERTY IS
MADE ON AN “AS IS, WHERE IS AND IS WITH ALL FAULTS” BASIS, AND CARUTH ACKNOWLEDGES
AND AGREES THAT THE CITY HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, AGREEMENTS, OR GUARANTEES OF ANY KIND, WHETHER
STATUTORY, EXPRESS, OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT
TO: (A) THE NATURE, QUALITY, OR CONDITION OF CITY PROPERTY; (B) THE SUITABILITY OF CITY
PROPERTYFOR ANY PARTICULAR PURPOSE; OR (C) OTHERWISE WITH RESPECT TO CITY PROPERTY.
CARUTH FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE OPPORTUNITY TO
INSPECT CITY PROPERTY, CARUTH WILL BE ACCEPTING OWNERSHIP OF THECITY PROPERTY
PURSUANT TO ITS INDEPENDENT EXAMINATIONS, STUDIES, INSPECTIONS, AND KNOWLEDGE OF CITY
PROPERTY AND CARUTHWILL RELY UPON ITS OWN DETERMINATION OF THE VALUE OF CITY
PROPERTY AND USES TO WHICH CITY PROPERTY MAY BE PUT, AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY THE CITY. The acknowledgments and agreements of Caruth set forth in this paragraph maybe expressly incorporated (at the City’s option) into the abandonment ordinance conveying City Property to Caruth.
Section1.07 Title Policy. On the Abandonment Date, the City will cause the Title
Company to deliver a Texas owner’s policy of title insurance (the “City Property Title Policy”)
to Caruth written by the Underwriter, insuring good and indefeasible title to the City Property in Caruth, subject only to the City Property Permitted Encumbrances and the standard printed exceptions, except (i) the exception relating to restrictions against the City Property will be
deleted or endorsed to specify only the restrictions that are included in the Library Unit
Permitted Encumbrances, (ii) the exception relating to discrepancies, conflicts, shortages in area
or boundary lines, or any encroachment or any overlapping of improvements that a survey might show will be deleted, except as to shortages in area, (iii) the exception relating to property taxes will except only to standby fees and taxes owing for the current and subsequent years, (iv) there
will be no general exception for visible and apparent easements or roads and highways or similar
items (and any exception will be specifically referenced to and shown on the Survey and
identified by applicable recording data), and (v) there will be no exception for parties in possession. Caruth will pay the title premium for the City Property Title Policy and for all title endorsements required by Caruth.
Section1.08 Right to Construct. The City understands that until the Exchange Closing,
title to the City Property will be held by the EAT rather than by Caruth; and the City confirms
that under City ordinances and State laws typically enforced by the City, this will not impact
Caruth’s rights to obtain a replat, a building permit, or any other City permit or license necessary to construct and operate either the Underground Parking Structure or the Mixed Use Building.
Page 36 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE4
Article II. Construction of Underground Parking Structure and Mixed Use Building
Section2.01 Underground Parking Structure. Caruth has caused Good Fulton & Farrell
Architects (“Caruth’s Architect”) to prepare a preliminary site plan for the Underground
Parking Structure, last revised October 21, 2010,a copy of which is attached as Exhibit D (the
“Underground Parking StructureSite Plan”). Caruth will cause the Underground Parking Structure to be constructed generally in accordance with the Underground Parking Structure Site Plan and in accordance with Applicable Law in all material respects.
Section2.02 Mixed Use Building. Caruth has caused Caruth’s Architect to prepare a
preliminary site plan and floor plans for the Mixed Use Building last revised October 21, 2010,
copies of which are attached as Exhibit E(the “Base Building Conceptual Plans”). Caruth will cause the core and shell elements of the Mixed Use Building described on Exhibit F (the “Base Building”) to be constructed generally in accordance with the Building Conceptual Plans and in
accordance with Applicable Law in all material respects. The exterior gross area of the Second
Floor will be at least 14,500 square feet (determined by Caruth’s Architect in accordance with
Gross Areas of a Building: Standard Methods of Measurement (ANSI/BOMA Z65.3 – 2009). Caruth anticipates that the Base Building will be substantially complete on or before July 31, 2013.
Article III. Condominium Ownership of Mixed Use Building
Section3.01 Establishment of Condominium. Caruth will file a condominium declaration
(the “Condominium Declaration”) in the real property records of Dallas County, Texas, covering the Mixed Use Building and the land beneath the Mixed Use Building (such land and
the Mixed Use Building are referred to as the “Condominium Property”), dividing the
Condominium Property into at least three condominium units and associated common elements,
in accordance with the Texas Uniform Condominium Act, Texas Property Code, Chapter 82 (the
“Condominium Act”). Caruth will also cause to be prepared and filed a condominium plat
containing the information required by §82.059 of the Condominium Act.Access, parking, and
other rights over the Land and Underground Parking Structure, as well as access and related
rights in favor of the owner of the shopping center covering the elevators and lobbies in the
Mixed Use Building, will be covered by a reciprocal easement or similar agreement between the Association (defined below) and the owner of the shopping center. As soon as it is available, Caruth will provide a condominium information statement to the City, and the City will promptly
acknowledge receipt of the condominium information statement.
Section3.02 Description of Condominium Units. The condominium units will consist of
(a) the Library Unit, (b) at least one unit covering the Office Floors (or, at Caruth’s option, one unit for each floor) (whether one or more, the “Office Unit”), and (c) a unit covering the first
floor of the Mixed Use Building (the “Retail Unit”). The Retail Unit will not include the
Library Lobby (which will be a limited common element appurtenant to the Library Unit for so
long as the City owns the Library Unit) or the lobby serving the Office Unit (which will be a
limited common element appurtenant to the Office Unit). The boundaries of each unit will extend vertically from the top of the subfloor below such unit to the bottom of the subfloor of the next higher unit (or to the bottom of the rafters, in the case of the fifth floor unit), and
horizontally to (but not including) the exterior windows and exterior shell wall of such unit.
Each unit will include space above drop ceilings (if any), below installed floors, and between
Page 37 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE5
exterior shell walls and finished exterior walls. Units will not, however, include wiring, conduits, pipes, and other utility installations that serve more than one unit (all of which will be
general common elements). The Library Elevator (including the shaft, cab, and mechanical
equipment) and the internal staircase between the Library Unit and the Lobby Library will be
limited common elements appurtenant to the Library Unit for so long as the City owns the Library Unit.
Section3.03 Condominium Declaration. The Condominium Declaration will contain
terms and conditions customarily found in declarations for commercial mixed use condominium
projects with no residential use. The Condominium Declaration will also provide as follows:
(a) Use. The use of the Library Unit will be restricted to use as a public library and ancillary uses associated with a public library and for which other libraries in the City are also used.The Library Unit may not be used for retail sales or as a child care
facility, or for any use that emits obnoxious odors or sound that can be smelled or heard
outside of the Library Unit. The Association may adopt rules and regulations for the
safety, care, operation, and cleanliness of the Condominium Property.
(b) Alternate Use. If before the Library Unit is first opened to the general public as a public library, the City delivers a notice to Caruth that the City has elected not to use
the Library Unit as a library, then notwithstanding provisions to the contrary in other
parts of this Agreement, (i) the use of the Library Unit and Third Floor Leased Space will
be restricted to general office use; (ii) the Library Lobby will not be a limited common elements appurtenant to the Library Unit; rather, the space comprising or that was to comprise the Library Unit will be part of the Retail Unit, and Caruth will not pay an
Allowance for the Library Lobby (i.e., the total amount of the Allowance will be reduced
by the amount that would have been paid for the Library Lobby), (iii) the space
comprising or that was to comprise (A) the shaft and related areas for the Library Elevator and (B) the area where the internal staircase is constructed or would have been constructed between the Library Unit and the Third Floor Leased Space will instead be
general common elements (and if constructed, such elevator shaft and internal staircase
may be removed by Caruth), and (iv) any parts of the Library Unit and Third Floor
Leased Space that the City elects to lease or sublease (as applicable) to third parties (rather than use such space as office space for the City) will be managed by the management company that manages the Office Unitsfor the owners of such units (the
“Office Units Owner”) and leased by the brokerage company that leases the Office Units
for the Office Units Owner, on substantially the same terms agreed upon by the Office
Units Owner for such management and brokerage services from time to time. The Office Units Owner and the City will work together in good faith to prohibit the brokerage company and management company from discriminating if favor of the Office Units
Owner or the City when making decisions such as whose space to lease to a prospective
tenant.
(c) Assessments; Cost Sharing with Shopping Center. Each unit owner will pay monthly assessments for maintenance, repairs, and replacements to general common elements and common areas; insurance coverage maintained by the Association; utilities
relating to the common areas; proportionate share of any utilities not separately metered;
professional services, such as management, accounting, and legal services; amounts
Page 38 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE6
payable under reciprocal easement or similar agreements with the shopping center, a proportionate share of shopping center operating expenses and charges, but not including
any share of marketing or promotional funds or services that by their nature exclusively
benefit retail businesses;and customary reserves.Each unit owner will pay hookup and
service charges for all utilities used in its unit directly to the applicable utility.
(d) Signage. The right to install signage on the exterior of the Mixed Use Building in the location and subject to the terms and conditions specified in Exhibit G
will be a limited common element appurtenant to the Library Unit.
(e) Elevator and Lobby Access. The owners of the units to whom the elevators
and lobbies are appurtenant will be required to keep the elevators and lobbies open to the public for access between the ground and underground parking levels during hours that the a majority of tenants in the shopping center are open for business.
(f) Association. Caruth will form a Texas non-profit corporation to act as the unit
owners’ association, as required by the Condominium Act (the “Association”) and
prepare the bylaws of the Association. Matters within the purview of the Association include repairs, maintenance, and replacement of common elements and common areas; insurance; working capital and reserves; assessments; budgeting; and other matters
contemplated by the Condominium Act. The board of directors of the Association will
consist of five directors, one to be appointed by and represent each Unit (or if the Office
Unit is divided into more than one Unit, one director for each floor of the Office Unit). On all matters to be decided by the Association, each director will be entitled to one vote, and each vote will be of equal weight.
Article IV. Agreement to Convey the Library Unit and Parking Easement
Section4.01 Caruth’s Agreement to Convey the Library Unit. Caruth agrees to sell the
Library Unit to the City, and the City agrees to purchase the Library Unit from Caruth, on and subject to the terms and conditions contained in this Agreement, but subject to the Library Unit Permitted Encumbrances.
Section4.02 Reports and Access. Following the demolition of the existing building, if
Caruth conducts environmental, geotechnical, or soils tests on the site of the Mixed Use
Building, Caruth will deliver copies of such reports to the City.Following the demolition of the existing building and prior to commencement of construction of the Mixed Use Building, the City may perform environmental and similar tests on the new building site, following notice to
Caruth of the date and time when such tests will be performed. Caruth may elect to have a
representative present when any such tests are performed. The City will deliver copies of reports
resulting from any such tests to Caruth.
Section4.03 Title Commitment. Within 15 days after Substantial Completion of the Base Building, Caruth will cause the Title Company update the Commitment and to provide legible
copies of all documents and instruments listed or referred to in the Commitment not already
delivered to the parties.
Section4.04 Title Objections. The City may object to any matter contained or referenced in the UpdatedCommitmentaffecting the Library Unit or the Third Floor Leased Space that is not
Page 39 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE7
shown as an encumbrance to title on Commitmentor expressly contemplated by this Agreement or required by the Condominium Act by providing notice of such objections to Caruth (an
“Objection Notice”) on or before the 15th day after the City’s receipt of the last of such items.
Caruth may cure such objections, but will not be obligated to do so, unless the matters to which
the City objects are not listed as encumbrances on the Commitment andare not documents or instruments expressly contemplated by this Agreement or required to be filed by the Condominium Act, and are reasonably likely to have a material adverse effect on either the
Library Unit or the Third Floor Leased Space or the City’s intended use of the Library Unit as a
public library. Caruth will cure and satisfy any matters that are properly the subject of an
Objection Notice and all matters shown on Schedule C of the Updated Commitment prior to Exchange Closing.All easements and other matters shown on the UpdatedCommitment or
Survey will be “Library Unit Permitted Encumbrances.”
Section4.05 As-Is Conveyance. OTHER THAN EXPRESSLY PROVIDED HEREIN AND IN THE
DOCUMENTS TO BE EXECUTED AT THE EXCHANGE CLOSING, THE SALE AND CONVEYANCE OF THE
LIBRARY UNIT IS MADE ON AN “AS IS, WHERE IS AND IS WITH ALL FAULTS” BASIS, AND THE CITY
ACKNOWLEDGES AND AGREES THAT CARUTH HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, AGREEMENTS, OR GUARANTEES OF ANY KIND,
WHETHER STATUTORY, EXPRESS, OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH
RESPECT TO: (A) THE NATURE, QUALITY, OR CONDITION OF THE CONDOMINIUM PROPERTY OR THE
LIBRARY UNIT; (B) THE SUITABILITY OF THE CONDOMINIUM PROPERTY OR THE LIBRARY UNIT FOR
ANY PARTICULAR PURPOSE; OR (C) OTHERWISE WITH RESPECT TO THE CONDOMINIUM PROPERTY
OR THE LIBRARY UNIT. THE CITY FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN
GIVEN THE OPPORTUNITY TO INSPECT THE CONDOMINIUM PROPERTY, THE CITY WILL BE
PURCHASING THE LIBRARY UNIT PURSUANT TO ITS INDEPENDENT EXAMINATIONS, STUDIES,
INSPECTIONS, AND KNOWLEDGE OF THE LIBRARY UNIT AND THE CITY WILL RELY UPON ITS OWN
DETERMINATION OF THE VALUE OF THE LIBRARY UNIT AND USES TO WHICH THE LIBRARY UNIT
MAY BE PUT, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY CARUTH. The
acknowledgments and agreements of the City set forth in this paragraph will be expressly
incorporated into the deed conveying the Library Unit to the City.
Section4.06 Title Policy. At the Exchange Closing, Caruth will cause the Title Company to deliver aTexas owner’s policy of title insurance (the “Library Unit Title Policy”) to the City written by an underwriter satisfactory to the City, insuring good and indefeasible title to the
Library Unit in the City, subject only to the Library Unit Permitted Encumbrances and the
standard printed exceptions, except (i) the exception relating to restrictions against the Library
Unit will be deleted or endorsed to specify only the restrictions that are included in the Library Unit Permitted Encumbrances, (ii) the exception relating to discrepancies, conflicts, shortages in area or boundary lines, or any encroachment or any overlapping of improvements that a survey
might show will be deleted, except as to shortages in area, (iii) the exception relating to property
taxes will except only to standby fees and taxes owing for the current and subsequent years, (iv)
there will be no general exception for visible and apparent easements or roads and highways or similar items (and any exception will be specifically referenced to and shown on the Survey and identified by applicable recording data), and (v) there will be no exception for parties in
possession. Caruth will pay the base title premium for the Library Unit Title Policy and the City
will pay for all title endorsements required by the City.
Page 40 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE8
Article V. Right of First Refusal, Right to Purchase, and Parking Easement
Section5.01 Right of First Refusal. At the Exchange Closing, the parties will execute and
acknowledge an evergreen right of first refusal agreement (the “ROFR Agreement”), which will
provide that if the City receives a bona fide offer for the purchase of all or any interest in or part
of the Library Unit that is acceptable to the City (an “Offered Interest”), the City will notify Caruth (an “ROFR Notice”). An ROFR Notice must set forth the name of the proposed purchaser, the amount of the purchase price, and all other terms and conditions for the proposed
sale of the Library Unit. Caruth will have the option to purchase the Offered Interest on the
same terms as set forth in the ROFR Notice by so notifying the City within 30 days following
Caruth’s receipt of an ROFR Notice. If Caruth does not exercise such option, then the City may sell the Offered Interest to the person or entity identified in, and on and subject to the terms of, the ROFR Notice, within 180 days after the date of the ROFR Notice; after which time, the City
must again provide an ROFR Notice to Caruth before conveying the Offered Interest. The
ROFR Agreement will also provide that following the initial opening of the Library Unit, if the
City fails to continuously operate a library from substantially all of the Library Unit (other than closure due to casualty), and such failure continues for at least 180 days, then Caruth will have the option to purchase the Library Unit from the City for its then-current fair market value. The
fair market value of the Library Unit will be determined by an appraisal process using MAI
certified appraisers, such process to be set forth in the ROFR Agreement.Within 30 days after the
Effective Date, Caruth will deliver the form of ROFR Agreement to the City. If the City submits specific proposed changes to such within 10 days after its receipt of such form, the parties will
work together in good faith to resolve their differences; and the form agreed upon by the parties
will be the form to be executed at the Exchange Closing; otherwise, the City will be deemed to
have approved the form submitted by Caruth.
Section5.02 Parking Easement. At the Exchange Closing, Caruth will execute and file for record in the real property records or map records (as applicable) of Dallas County, Texas an easement agreement appurtenant to the Library Unit and binding upon the Caruth Property,
granting the owner of the Library Unit a perpetual non-exclusive easement to park 3.3 passenger
vehicles per 1,000 square feet of the exterior gross area of the Library Unit in parking areas
available from time to time for parking of tenants, customers, and invitees of the Plaza at Preston Center shopping center, including both surface spaces and spaces in the Underground Parking Structure, subject to the rules and regulations in effect from time to time governing parking
(including rules governing the location of employee parking) and subject to an obligation to
cooperate with Caruth regarding the location of guest parking for library events.
Article VI. The Exchange Closing
Section6.01 Closing. The closing of the conveyance of the City Property from the EAT to Caruth and of the Library Unit from Caruth to the City (the “Exchange Closing”) will occur
on a date mutually selected by the parties, but no later than 30 days after the date that all of the
following conditions have been satisfied (the “Exchange Closing Date”): (x) Caruth notifies the
City that the Base Building has been substantially completed in accordance with the Base Building Conceptual Plans, (y) a temporary or permanent certificate of occupancy has been issued for the Base Building (i.e., for the shell), and (z) the Condominium Declarationand other
documents necessary to create a condominium regime pursuant to the Condominium Act have
Page 41 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE9
been filed in the real property records of Dallas County, Texas.At the Exchange Closing the following will occur, each of which will be a concurrent condition to the Exchange Closing:
Section6.02 Deliveries by Caruth. At the Exchange Closing, Caruth will execute and
acknowledge (as appropriate) and deliver the following to the City (and to the Title Company, as
appropriate):
(a) Deed. A Special Warranty Deed conveying good and indefeasible title to the Library Unit to the City, subject only to the Library UnitPermitted Encumbrances (the
“Caruth Deed”), in the form attached hereto as Exhibit G.
(b) ROFR Agreement. The ROFR Agreement.
(c) Parking Easement. The Parking Easement.
(d) Affidavit of Debts and Liens. An affidavit in form and substance required by the Title Company stating that no labor, services, or materials have been made or
delivered to Caruth by any person that could give rise to any lien and containing such
other statements as the Title Company may require.
(e) Resolutions. Certified resolutions of Caruth authorizing Caruth to enter into and perform its obligations under this Agreement.
(f) Closing Statement.A closing statement prepared by the Title Company and
approved by the City and Caruth adjusting the amount paid or received by the parties in
accordance with this Agreement (the “Closing Statement”).
(g) Lease of Third Floor Space. A written lease, in the standard form used by Caruth for other space in the Mixed Use Building, with Caruth as Lessor and City as Lessee, for two thousand square feet of space, for library uses only, on the third floor of
the Mixed Use Building, for a term of 50 years, for base rent of $0, but with the City, as
tenant under the Lease, obligated to pay its proportionate share (based upon the number
of rentable square feet in the Mixed Use Building) of taxes, insurance, and operating expenses of the Mixed Use Building (rather than its share of taxes, insurance, and operating expenses over a base year, even though the other leases in the Mixed Use
Building might be structured to include expenses in base rent, with the tenants thereunder
paying an excess over a base year), and with Caruth providing a finish allowance of $50
per rentable square foot of the Third Floor Leased Space to the City to be used for tenant finish improvements (the “Third Floor Lease”).
(h) Additional Documents. Such other instruments, documents, and assignments
that the City requests to effect the transfer of the Library Unit to the City.
Section6.03 Deliveries by the City. At the Exchange Closing, the City will execute and
acknowledge (as appropriate) and deliver the following to Caruth (and to the Title Company, as appropriate):
(a) ROFR Agreement. The ROFR Agreement
(b) Evidence of Authority. Written evidence thatthe Cityis authorized to enter
into and perform its obligations to be performed at or as part of the Exchange Closing.
Page 42 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE10
(c) Third Floor Lease. An executed original of the Third Floor Lease.
(d) Closing Statement. The Closing Statement.
Section6.04 Other Deliveries.
(a) Conveyance by EAT. Caruth will cause the EAT to deliver a deed conveying
the City Property to Caruth.
(b) Tax Party. An agreement designating the Title Company as the person responsible for reporting this transaction to the Internal Revenue Service pursuant to 26
C.F.R. 1.6045-4(e)(5) executed by both parties and the Title Company.
Section6.05 Taxes. If for any reason, property taxes continue to be payable for the
Library Unit after the Exchange Closing, including the conveyance by the City of the right to take title to the Library Unit to an entity that is required to pay such taxes, general real estate taxes payable with respect to the Library Unit for the then current year will be prorated as of the
Exchange Closing Date.
Section6.06 Closing Costs. Caruth will pay for the title policies to be issued pursuant to
this Agreement (other than endorsements to the Library Unit Title Policy, which will be paid by the City).The parties will each pay 1⁄2 of all recording fees and any escrow fees payable to the
Title Company. Each party will pay its own attorneys’ fees. Each party will pay all other costs,
fees, taxes, and assessments that it incurs.
Article VII. Buildout of Library Unit
Section7.01 Preliminary Plans. Following the Exchange Closing, the City will cause an
architect selected by the City (the “City’s Architect”) to prepare and deliver to Caruth a preliminary space plan of the Library Unit and the Third Floor Leased Space, showing the
location of all partitions, doors, demising walls, and other information that the City’s Architect
deems pertinent (the “Proposed Space Plan”). Within ten days after Caruth receives the
Proposed Space Plan, Caruth will notify the City whether it approves or disapproves the
Proposed Space Plan (a “Space Plan Notice”). Caruth may only disapprove a Proposed Space Plan if the proposed construction is likely to have an adverse effect on building structure or
systems or with regard to buildout, if any, visible from the exterior of the Mixed Use Building.
If Caruth so disapproves, Caruth will provide the City with its reasons for disapproval and the
City will cause the City’s Architect to revise and redeliver the Proposed Space Plan to Caruth within 7 days after receipt of a Space Plan Notice. This process will be repeated until Caruth
approves the Proposed Space Plan (as approved, referred to as the “Space Plan”).
Section7.02 Construction Plans. After Caruth approves the Proposed Space Plan, the
City will cause the City’s Architect to prepare fully dimensioned one-quarter inch scale plans
and specifications in the form of working drawings based on and consistent with the Space Plan, showing the full detailed scope of all work to be performed in the Premises, containing all information and supporting diagrams, schedules, and related data required for the construction of
the work, including include a fixture plan and show plumbing locations, air conditioning duct
work locations, lighting plans, telecommunication and computer cabling plans, security systems,
finish schedules, location of electrical, telephone, and data outlets, and including complete sets of detailed architectural, structural (if applicable), mechanical, electrical, and plumbing working
Page 43 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE11
drawings (the “Proposed Construction Plans”). The City will deliver the Proposed Construction Plans to Caruth within 15 days after the date that Caruth approves the Proposed
Space Plan. Within 5 days after Caruth receives the Proposed Construction Plans, Caruth will
notify the City whether it approves or disapproves the Proposed Construction Plans, with
Caruth’s approval rights limited in the same manner as described in Section 7.01 (a
“Construction Plan Notice”). If Caruth disapproves, Caruth will provide the City with its
reasons for disapproval and the City will cause the City’s Architect to revise and redeliver the
Proposed Construction Plans to Caruth within seven days after receipt of a Construction Plan
Notice. This process will be repeated until Caruth approves the Proposed Construction Plans (as
approved, and including changes modifications agreed to by the parties, referred to as the
“Construction Plans”).
Section7.03 Construction. The City will cause a contractor selected by the City (the
“General Contractor”) to construct the improvements described in and contemplated by the
Construction Plans (the “Work”) in a good and workmanlike manner and in accordance with
Applicable Law, at the City’s sole cost and expense. The City will not make or permit changes
to the Construction Plans without Caruth’s consent(other than minor changes required to conform the Construction Plans to on-the-ground conditions).The City will cause all of its
contractors to maintain insurance required by and comply with the covenants, terms, and
conditions of the insurance and other provisions of the Condominium Declaration and all rules
and regulations that Caruth adopts for the safety, care, operation, and cleanliness of the worksite.The City will pay all costs incurred to perform the Work or arising out of the Work.
Section7.04 Allowance. Caruth will reimburse the City (as provided below) up to $50.00
per square foot of the rentable area of the Library Unit and the Library Lobby(the “Allowance”)
to be applied only toward the design, permitting, and construction of the Work (but not towards
the costs of furniture, trade fixtures, equipment, or personal property), within 30 days after the following requirements have been satisfied: (a) the Work is complete in accordance with the Construction Plans, (b) the City has delivered to Caruth a copy of the City’s certificate of
occupancy for the Library Unit, (c) the City has provided copies of lien waivers from each of its
contractors, and (d) the City has delivered to Caruth a set of as-built drawings for the buildout of
the Library Unit.
Section7.05 Reviews. Caruth and its employees, contractors, and agents (each an
“Inspecting Party”), upon giving reasonable notice to the City and the City’s contractor,may
inspect work performed by or for the City (“Inspected Work”) and review plans, specifications,
designs, drawings, and renderings prepared by or for the City (“Reviewed Materials”) solely to
protect Caruth’s interest. No Inspecting Party will be liable to the City for, and the City releases each Inspecting Party from, every claim or loss (EVEN IF THE RELEASED PARTY IS NEGLIGENT
OR WOULD OTHERWISE BE STRICTLY LIABLE UNDER APPLICABLE LAW) caused by or arising
out of the failure of Inspected Work or Reviewed Materials to comply with good building
practices, Caruth’s standards, or Applicable Law.
Section7.06 Construction Representatives. Before construction begins, each party will designate one person to act as its representative for coordination of construction and approval of change orders. To expedite approvals of change orders, Caruth’s representative (but no other
person) is authorized to sign change orders changing the Construction Plans and receipt other
Page 44 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE12
document on behalf of Caruth related to the Work. Either party may change its representative by delivering notice of the change to the other party.
Article VIII. Representations and Warranties
Section8.01 By Caruth. Caruth represents to the City that on the Exchange Closing Date,
Caruth will have and will convey to the City good and indefeasible fee simple title to the Library Unit, subject only to the Library Unit Permitted Encumbrances. Caruth further represents to the City as follows:
(a) Authority. Caruth is duly organized and validly existing in the State of Texas.
Caruth has the authority and has obtained all consents or authorizations required to
execute and deliver this Agreement and perform the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transaction contemplated hereby will not conflict with or result in a breach of any of the terms of, or
constitute a default under, any agreement to which Caruth is a party or by which Caruth
is bound.
(b) Ownership. Caruth owns good and indefeasible title to the land on which the Mixed Use Building will be constructed, subject only to the Library Unit Permitted Encumbrances. No Person has any purchase, lease, or other options or rights in all or any
part of the such property.
(c) Possession. On the Exchange Closing Date, there will be no parties in
possession of any portion of the Library Unit or with any possessory rights in the Library Unit.
(d) Lawsuits. There are no pending or threatened arbitrations, actions, suits, or
proceedings affecting the Library Unit or relating to the ownership, operation,
maintenance, or management of the Library Unit.
Section8.02 By the City. The City represents to Caruth that the City now has and on the Abandonment Date will have and will abandon to the EAT all its real property interests, whether right-of-way or by easement, in and to the City Property, subject only to the City Property
Permitted Encumbrances. The City further represents to Caruth as follows:
(a) Authority. The City is a duly organized municipal corporation, validly
existing and in good standing under the laws of the State of Texas.The City has the authority and has obtained all consents or authorizations required to execute and deliver this Agreement and perform the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transaction contemplated hereby
will not conflict with or result in a breach of any of the terms of, or constitute a default
under, any agreement to which the City is a party or by which the Cityis bound.
(b) Ownership. The City owns good and indefeasible title to the City Property, subject only to the matters shown on the Survey and the City Property Permitted
Encumbrances. No Person has any purchase, lease, or other options or rights in all or any
part of the City Property.
Page 45 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE13
(c) Possession. There are no parties in possession of any portion of the City Property or with any possessory rights in the City Property.
(d) Lawsuits. There are no pending or threatened arbitrations, actions, suits, or
proceedings affecting the City Property or relating to the ownership, operation,
maintenance, or management of the City Property.
The representations and warranties contained in this Section will survive the Exchange Closing.
Article IX. Defaults and Remedies
Section9.01 Events of Default. The following constitute Events of Default by the
defaulting party:
(a) Failure to Pay. Caruth fails to pay any amount required to be paid hereunder when due and such failure continues for a period of ten days from the date of written notice thereof from the City.
(b) Failure to Perform. Caruth fails to perform any other obligations or duties
provided in this Agreement after the time for any cure or the expiration of any grace
period specified therefor, or if no such time is specified, within 30 days after the date of written demand by the City to Caruth to perform such obligation and duty, or in the case of a default not susceptible of cure within 30 days, Caruth fails promptly to commence to
cure such default and thereafter to prosecute diligently such cure to completion within a
reasonable time.
Section9.02 Remedies. Upon the occurrence of an Event of Default by one party, the other party may exercise all remedies available at law or in equity, including the institution of a lawsuit or action for specific performance.
Section9.03 Limited Waiver of Sovereign Immunity. Tothe extent permitted by
Applicable Law, the City voluntarily waives its right to assert sovereign immunity from suit or
liability in response toan action by Caruth seeking only the remedies specified inthis Article IX.The City does not otherwise waive immunities existing under Applicable Law;the waiver herein granted is a limited and not a general waiver; and, its effect is limited to specific claims
under this Agreement.
Article X. Miscellaneous
Section10.01 Independent Contractor. Caruth is, and will at all times during the term of this Agreement be, an independent contractor and not an agent or employee of the City. In connection with the performance of its duties and obligations under this Agreement, Caruth is
acting for its own and sole benefit, unless otherwise provided in this Agreement or otherwise
agreed to in writing by the City.
Section10.02 Brokers. If the transactions contemplated in the Agreement are consummated, Caruth will pay to Venture Commercial Real Estate (“Agent”) a commission pursuant to a separate written agreement. Other than Caruth’s agreement with Agent, each party
represents to the other party that it has not authorized any broker or finder to act on its behalf in
connection with the transactions contemplated in the Agreement.
Page 46 of 109
EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE14
Section10.03 No Assignment. Neither party may assign this Agreement or any of its rights or obligations under this Agreement without the consent of the other party; except that
Caruth may assign its rights under this Agreement to a qualified intermediary and/or to an
exchange accommodation titleholder in connection with the Exchange.
[Signatures on following pages.]
Page 47 of 109
SIGNATURE PAGES TO EXCHANGE AND DEVELOPMENT AGREEMENT
[SIGNATURE PAGE TO EXCHANGE AND DEVELOPMENT AGREEMENT]
THE CITY OF UNIVERSITY PARK, a
municipal corporation
By: Name:
Title:
Page 48 of 109
SIGNATURE PAGES TO EXCHANGE AND DEVELOPMENT AGREEMENT
[SIGNATURE PAGE TO EXCHANGE AND DEVELOPMENT AGREEMENT]
CARUTH/PRESTON ROAD ASSOCIATES,
LTD.,a Texas limited partnership
By: Caruth/Preston Road, L.L.C., a Texas limited liability company, its general partner
By:
Pamela A. Spadaro, Vice President
Page 49 of 109
ANNEX I TO EXCHANGE AND DEVELOPMENT AGREEMENT
ANNEX I
COMMON PROVISIONS
The following terms apply to and govern the construction of the Operative Documents,
except to the extent that an Operative Document expressly provides to the contrary.
1. No Implied Waiver. A party’s failure to insist upon the strict performance of any term,
covenant, or condition (each such term, covenant, and condition being a “provision”) or
to exercise an option, right, power, or remedy will not be construed as a waiver or a relinquishment any such provision, option, right, power, or remedy. If a party waives its
rights of redress following an act or omission that constitutes a breach of an Operative
Document, such party may elect not to waive its rights of redress following a subsequent
identical or similar act or omission. No waiver of a provision by a party will be effective
or binding against such party unless the waiver is set forth in a writing signed by such party. A waiver of a provision will affect only the provision specified in such waiver and
only for the time and in the manner stated in such waiver.
2. Negotiated Documents. The parties and their counsel have reviewed and revised or
requested revisions to each Operative Document or have had an opportunity to do so and
have waived such rights. The rule of construction that any ambiguities are to be resolved against the drafting party will not apply to the construction or interpretation of any
Operative Document.
3. Other Terms and References. In each Operative Document, (a) the article, section, and
paragraph headings are for convenience only and will not expand or limit the scope or
meaning of the terms thereof, (b) references to any Annex, Attachment, Schedule, or Exhibit refer to the corresponding Annex, Attachment, Schedule, or Exhibit attached to
that Operative Document (and are made a part thereof by such reference), unless specific
reference is made to another document, (c) references to Paragraphs, subparagraphs,
Sections, subsections, and other subdivisions refer to the corresponding Paragraphs,
subparagraphs, Sections, subsections, or subdivisions of that Operative Document, unless specific reference is made to another document, (d) the words “herein”, “hereof”,
“hereby”, “hereunder”, and words of similar import, as well as the word “this” followed
by the word “Agreement” or another word referring to the Operative Document in which
such word is contained, refer to such Operative Document as a whole and not to a
particular subdivision unless expressly so limited, (e) the phrases “this Paragraph”, “this
subparagraph”, “this Section”, “this subsection,” and similar phrases used in an Operative
Document refer only to the Paragraph, subparagraph, Section, subsection, or other
subdivision described in which the phrase occurs, (f) words indicating gender will
include all other genders, (g) words indicating the singular will include the plural and
vice versa, unless the context otherwise requires, (h) capitalized terms that refer to other documents and Applicable Law will be deemed to refer to such other documents or
Applicable Law as it might be renewed, extended, supplemented, amended, or modified
from time to time, (i) accounting terms used but not expressly defined will be construed
in accordance with generally accepted accounting principles in the United States of
America, consistently applied, (j) the word “or” is not exclusive, (k) the rule of ejusdem generis will not be applied to limit the generality of any term when followed by specific
Page 50 of 109
ANNEX I TO EXCHANGE AND DEVELOPMENT AGREEMENT
examples , and the words “include”, “including”, and similar terms will be construed as if
followed by “without limitation to”, (l) “year” means a calendar year, unless otherwise
specified, (m) “party” means a party to the Operative Document, and (n a capitalized
term that is not defined therein or in this Annex, but is defined in another Operative
Document, will have the meaning ascribed to it in the other Operative Document.
4. No Fiduciary Relationship or Partnership. Neither the execution of any Operative Document nor the administration thereof will create fiduciary obligations among the
parties. The parties disclaim any intent to create a fiduciary or special relationship
between themselves under or by reason of the Operative Document or the transactions
described in any of them or any other documents or agreements referenced in any of them. Nothing in any Operative Document is intended or will be construed to create a partnership, joint venture, or other joint enterprise.
5. Severability. If any term, covenant, or condition of an Operative Document is held by a
court of competent jurisdiction to be invalid and unenforceable, the remainder of such
Operative Document will not be affected thereby.
6. Notice. All notices, demands, requests, approvals, consents, and other communications required or permitted to be made under an Operative Document from or to a party must
be in writing to be effective and must be given by one of the following means: (a)
personal service (including local and overnight courier), with proof of delivery or
attempted delivery retained or (b) registered or certified first class mail, return receipt requested. A notice or other communication sent pursuant will be deemed received: if sent pursuant to clause (a), upon receipt or refusal to accept delivery; if sent pursuant to
clause (b), three five days following deposit in the mail. All notices, demands, requests,
approvals, consents, and other communications required or permitted by this Agreement
are to be sent to the following addresses (or if another address in identified in an Operative Document for notice, such other address):
If to the City:
The City of University Park
3800 University Blvd.
University Park, Texas 75205 Attn: City Manager
With a copy to:
Nichols, Jackson, Dillard, Hager & Smith L.L.P.
1800 Lincoln Plaza
Dallas, Texas 75201 Attn: Robert L. Dillard, III
If to Caruth:
Caruth/Preston Road Associates, Ltd.
c/o Venture Commercial Management, LLC
8311 Preston Center Plaza Drive Dallas, TX, 75225
Page 51 of 109
ANNEX I TO EXCHANGE AND DEVELOPMENT AGREEMENT
With a copy to: Caruth/Preston Road Associates, Ltd.
901 Main Street
16th Floor
Dallas, TX, 75202 Attn.: Pamela Spadaro, Senior Vice President
7. Successors and Assigns. The Operative Documents will be binding upon and inure to the
benefit of the parties and their respective heirs, personal representatives, successors, and
permitted assigns.
8. Governing Law. The Operative Documents will be governed by and construed and interpreted in accordance with the laws of the State of Texas.
9. Time of the Essence. Time is of the essence as to all obligations created by and all
notices required by the Operative Documents.
10. Attorneys’ Fees and Legal Expenses. If a party institutes an action or proceeding in court to enforce any term, covenant, or condition of an Operative Document, for damages by reason of an alleged breach of any term, covenant, or condition of an Operative
Document, or for any other judicial remedy, the losing party will pay Attorney’s Fees to
the prevailing party.
11. Calculation of Time Periods. In computing any period of time described in an Operative Document, the day of the act or event after which the designated period of time begins to run will not be included and the last day of the period so computed will be included,
unless such last day is a Saturday, Sunday, or legal holiday for national banks, in which
event the period will run until the end of the next day that is neither a Saturday, Sunday,
or legal holiday.
12. Counterparts. To facilitate execution, an Operative Document may be executed in multiple identical counterparts. The signature of each party, or the signature of all
persons required to bind a party, need not appear on each counterpart. All counterparts,
taken together, will collectively constitute a single document.
13. Integrated Agreement; Modification. Each Operative Document is a final, complete, and exclusive statement of the entire agreement of the parties with respect to the subject matter of such Operative Document. Each Operative Document supersedes all prior and
contemporaneous agreements and understandings relating to the subject matter of such
Operative Document, and there are no other agreements, understandings, representations,
warranties, or statements, either oral or in writing, concerning the subject matter of any Operative Document. No modification to or amendment or interpretation of an Operative Document will be binding on the parties unless contained in any writing signed by the
parties.
Page 52 of 109
ANNEX I TO EXCHANGE AND DEVELOPMENT AGREEMENT
DEFINITIONS
The following terms will have the meanings indicated:
1. “Applicable Law” means all laws, ordinances, building codes, rules, and regulations, present
or future, of all Governmental Authorities, including Disability Law and Environmental Law.
2. “Attorneys’ Fees” means the expenses and fees of counsel to the parties incurring the same, excluding costs or expenses of in-house counsel (whether or not accounted for as general overhead or administrative expenses), but including (a) printing, duplicating, air freight
charges, and other expenses, (b) fees billed for law clerks, paralegals, librarians, and others
not admitted to the bar but performing services under the supervision of an attorney, and (c)
expenses and fees incurred with respect to appeals, arbitrations, and bankruptcy proceedings, whether or not any manner of proceeding is brought with respect to the matter for which such fees and expenses were incurred.
3. “Business Days” means Monday through Friday of each week, other than Holidays.
“Holidays” means (a) New Year’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving, and Christmas, and the Monday following a Holiday if the Holiday falls on a Sunday.
4. “Disability Law” means Applicable Law pertaining to disabilities, including the Americans
With Disabilities Act of 1990, 42 U.S.C. §§12101-12213 and similar state and local laws.
5. “Effective Date” means the date first set forth on the agreement to which this Annex is
attached.
6. “Environmental Law” means Applicable Law pertaining to safety, health or the environment, or to Hazardous Substances or Hazardous Substance Activities, including the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, and the Resource
Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984.
7. “Governmental Authority” means the United States, the state, the county, the municipality,
and any other political subdivision having or asserting jurisdiction over the parties or the
subject matter of the applicable Operative Documents.
8. “Operative Documents” means the agreement to which this Annex I is attached; all existing and future renewals, extensions, amendments, modifications, and supplements to and
restatements of such agreement; all exhibits and attachments to any such agreements; and all
notices and approval requests in connection with any of the foregoing.
9. “Person” means an individual, a corporation, a limited liability company, a partnership, an unincorporated organization, an association, a joint stock company, a joint venture, a trust, an estate, a government or agency or political subdivision thereof, or other entity, whether
acting in an individual, fiduciary, or other capacity.
Page 53 of 109
EXHIBIT A TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT A
SITE PLAN
Page 54 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT B
CARUTH LAND
TRACT 1
BEING a 1.704 acre tract of land situated the City of University Park, Texas, being all of Lot 1R, Block A, Preston Center Plaza Addition, an addition to the City of University Park according to the plat recorded in Volume 97123, Page 3732, Map Records of Dallas County, Texas and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas County, Texas, said 1.704 acre tract of land being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set for the point of intersection of the easterly right-of-way line of Preston Road (a variable width right-of-way) with the northerly right-of-way line of Wentwood Drive (a 50 foot wide right-of-way) for the southwesterly corner of said Lot 1R, Block A;
THENCE with the easterly right-of-way line of Preston Road North 00º 30’ 42” West a distance of 494.60 feet
(Volume 97123 Page 3732 = North 00º 32’ 05” West 494.54 feet) to an “x” found in concrete in the southerly right-of-way line of Villanova Drive (a 125 foot wide right-of-way) for the northwesterly corner of said Lot 1R, Block A;
THENCE departing the easterly right-of-way line of Preston Road with the southerly right-of-way line of Villanova
Drive North 89º 14’ 36” East a distance of 245.88 feet (Volume 97123 Page 3732 = North 89º 13’ 33” East 246.00 feet) to a 1⁄2 inch iron rod found in the westerly right-of-way line of Preston Center Plaza (a variable width right-of-way) for the northeasterly corner of said Lot 1R, Block A;
THENCE departing the southerly right-of-way line of Villanova Drive with the westerly right-of-way line of Preston Center Plaza South 00º 30’ 42” East a distance of 137.72 feet (Volume 97123 Page 3732 = South 00º 32’ 05” East 137.56 feet) to a PK nail set in concrete in the northerly line of a 20 foot wide alley for the most northerly southwest corner of said Lot 1R, Block A;
THENCE departing the westerly right-of-way line of Preston Center Plaza with the northerly line of said 20 foot
wide alley South 89º 29’ 23” West a distance of 130.43 feet (Volume 97123 Page 3732 = South 89º 27’ 55” West
130.50 feet) to an “x” found in concrete in the westerly line of a 15 foot wide alley for the re-entrant corner of said Lot 1R, Block A;
THENCE with the westerly line of said 15 foot wide alley South 00º 30’ 42” East a distance of 333.54 feet (Volume
97123 Page 3732 = South 00º 32’ 05” East 333.70 feet) to an “x” found in concrete in the northerly right-of-way line of Wentwood Drive for the southwesterly corner of said Lot 1R, Block A;
THENCE with the northerly right-of-way line of Wentwood Drive the following:
South 69º 28’ 03” West a distance of 49.00 feet (Volume 97123 Page 3732 = South 69º 27’ 55” West 49.04 feet) to
a 5/8 inch iron rod with a cap stamped “BDD” found for the point of curvature of a curve to the right having a radius of 123.10 feet;
Southwesterly along said curve through a central angle of 20º 18’ 32” an arc distance of 43.63 feet with a chord
bearing of South 79º 23’ 52” West and a chord distance of 43.41 feet to a 5/8 inch iron rod with a cap stamped
“Dunaway Assoc LP” set for the point of tangency of said curve;
South 89º 28’ 29” West a distance of 26.67 feet (Volume 97123 Page 3732 = South 89º 27’ 55” West 26.67 feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 1.704 acres (74,221 square feet) of land.
TRACT 2
BEING a 0.442 acre tract of land situated in the City of University Park, Texas, being all of Block B, Varsity Village an addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map
Page 55 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE2
Records of Dallas County, Texas and being renamed to Preston Center in the City of University Park Ordinance Number 3502-441 and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates,
Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas County, Texas, said 0.442 acre tract of land being more particularly described as follows:
BEGINNING at an “x” found in brick for the point of intersection of the easterly right-of-way line of Preston Road (a variable width right-of-way) with the northerly right-of-way line of Villanova Drive (a 125 foot wide right-of-
way) for the southwesterly corner of said Block B;
THENCE with the easterly right-of-way line of Preston Road North 00º 30’ 42” West a distance of 166.72 feet
(Volume 11 Page 217 = North 166.72 feet) to an “x” cut in concrete in the southerly line of Block K of said Preston Center (Varsity Village) for the northwesterly corner of said Block B;
THENCE with the southerly line of said Block K North 89º 14’ 36” East a distance of 115.37 feet (Volume 11 Page 217 = North 89º 45’ 38” East 115.5 feet) to a 5/8 inch iron rod found in the westerly line of a 15 foot wide alley for
the northeasterly corner of said Block B;
THENCE departing the southerly line of said Block K with the westerly line of said 15 foot wide alley South 00º 30’
42” East a distance of 166.72 feet (Volume 11 Page 217 = South 116.72 feet) to an “x” found in concrete in the northerly right-of-way line of Villanova Drive for the southeasterly corner of said Block B;
THENCE departing the westerly line of said 15 foot wide alley with the northerly right-of-way line of Villanova
Drive South 89º 14’ 36” West a distance of 115.37 feet (Volume 11 Page 217 = South 89º 45’ 38” West 115.5 feet)
to the POINT OF BEGINNING;
CONTAINING a computed area of 0.442 acres (19,235 square feet) of land.
TRACT 3
BEING a 0.346 acre tract of land situated in the City of University Park, Texas, being all of Block C, Varsity
Village an addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas and being renamed to Preston Center in the City of University Park Ordinance
Number 3502-441 and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas
County, Texas, said 0.346 acre tract of land being more particularly described as follows:
BEGINNING at an “x” found in concrete in the southerly right-of-way line of Northwest Highway (a variable width
right-of-way) for the northwesterly corner of said Block C;
THENCE with the southerly right-of-way line of Northwest Highway North 89 14’ 36” East a distance of 116.00
feet Volume 11 Page 217 = North 89º 45’ 38” East 116.0 feet) to an “x” cut in concrete in the westerly right-of-way line of Preston Center Plaza (a variable width right-of-way) for the northeasterly corner of said Block C;
THENCE departing the southerly right-of-way line of Northwest Highway with the westerly right-of-way line of
Preston Center Plaza South 00º 30’ 42” East a distance of 130.00 feet (Volume 11 Page 217 = South 130.0 feet) to
an “x” found in concrete in the northerly line of a 15 foot wide alley for the southeasterly corner of said Block C;
THENCE departing the westerly right-of-way line of Preston Center Plaza with the northerly line of said 15 foot
wide alley South 89º 14’ 36” West a distance of 116.00 feet (Volume 11 Page 217 = South 89º 45’ 38” West 116.0 feet) to a 5/8 inch iron rod found for the common southerly corner of said Block C and said Block K;
THENCE departing the northerly right-of-way line of said 15 foot wide alley with the easterly line of said Block K
North 00º 30’ 42” West a distance of 130.00 feet to the POINT OF BEGINNING;
CONTAINING a computed area of 0.346 acres (15,080 square feet) of land.
Page 56 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE3
TRACT 4
BEING a 1.200 acre tract of land situated in the City of University Park, Texas, being all of Block D, Varsity
Village an addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas and being renamed to Preston Center in the City of University Park Ordinance
Number 3502-441 and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas
County, Texas, said 1.200 acre tract of land being more particularly described as follows:
BEGINNING at a 1⁄2 inch iron rod in a 2 inch iron pipe found for the point of intersection of the northerly right-of-
way line of Villanova Drive (a 125 foot wide right-of-way) with the westerly right-of-way line of Pickwick Lane (a 60 foot wide right-of-way) for the southeasterly corner of said Block D;
THENCE with the northerly right-of-way line of Villanova Drive South 89º 14’ 36” West a distance of 130.11 feet
(Volume 11 Page 217 = South 89º 45’ 38” West 130.1 feet) to an “x” found in brick in the easterly line of a 15 foot
wide alley for the most southerly southwest corner of said Block D;
THENCE departing the northerly right-of-way line of Villanova Drive with the easterly line of said 15 foot wide
alley North 00º 30’ 42” West a distance of 166.72 feet (Volume 11 Page 217 = North 166.72 feet) to an “x” found in concrete in the northerly line of said 15 foot wide alley for the re-entrant corner of said Block D;
THENCE with the northerly line of said 15 foot wide alley South 89º 14’ 36” West a distance of 105.50 feet
(Volume 11 Page 217 = South 89º 45’ 38” West 105.5) feet to an “x” found in concrete in the easterly right-of-way
line of Preston Center Plaza (a variable width right-of-way) for the southwesterly corner of said Block D;
THENCE departing the northerly line of said 15 foot wide alley with the easterly right-of-way line of Preston Center
Plaza North 00º 30’ 42” West a distance of 130.00 feet (Volume 11 Page 217 = North 130.0 feet) to a 5/8 inch iron rod found in the southerly right-of-way line of Northwest Highway (a variable width right-of-way) for the
northwesterly corner of said Block D;
THENCE departing the easterly right-of-way line of Preston Center Plaza with the southerly right-of-way line of
Northwest Highway North 89º 14’ 36” East a distance of 235.52 feet (Volume 11 Page 217 = North 89º 45’ 38” East 235.28 feet) to an “x” found in concrete in the westerly right-of-way line of Pickwick Lane for the northeasterly
corner of said Block D;
THENCE departing the southerly right-of-way line of Northwest Highway with the westerly right-of-way line of
Pickwick Lane South 00º 34’ 03” West a distance of 296.72 feet (Volume 11 Page 217 = South 00º 03’ 50” East 296.72 feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 1.200 acres (52,277 square feet) of land.
TRACT 5
BEING a 0.883 acre tract of land situated in the City of University Park, Texas, being all of Lot 1R, Block E, Preston Center Plaza Addition an addition to the City of University Park according to the plat recorded in Volume
97123, Page 3732, Map Records of Dallas County, Texas and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041,
Page 3847, Deed Records of Dallas County, Texas, said 0.883 acre tract of land being more particularly described as follows:
BEGINNING at a 5/8 inch iron rod with a cap stamped “Dunaway Assoc, LP” set for the point of intersection of the southerly right-of-way line of Villanova Drive (a 125 foot wide right-of-way) with the westerly right-of-way line of
Pickwick Lane (a 60 foot wide right-of-way) for the northeasterly corner of said Lot 1R, Block E;
THENCE with the westerly right-of-way line of Pickwick Lane South 00º 34’ 03” East a distance of 277.69 feet
(Volume 97123 Page 3732 = South 00º 35’ 35” East 277.72 feet) to a PK nail set in the northerly right-of-way line of Wentwood Drive in a non-tangent curve to the left for the southeasterly corner of said Lot 1R, Block E, the radius
point of said curve being situated South XXº XX’ XX” East a distance of 175.00 feet from said PK nail;
Page 57 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE4
THENCE departing the westerly right-of-way line of Pickwick Lane with the northerly right-of-way line of Wentwood Drive the following:
Southwesterly along said curve through a central angle of 43º 48’ 51” an arc distance of 133.82 feet with a chord
bearing of South 67º 30’ 29” West and a chord distance of 130.59 feet to a PK nail set for the point of reverse
curvature of a curve to the right having a radius of 125.00 feet;
Southwesterly along said curve through a central angle of 05º 32’ 19” an arc distance of 12.08 feet with a chord
bearing of South 48º 29’ 12” West and a chord distance of 12.08 feet to a PK nail found in concrete in the easterly line of a 15 foot wide alley for the southwesterly corner of said Lot 1R, Block E;
THENCE departing the northerly right-of-way line of Wentwood Drive with the easterly line of said 15 foot wide
alley North 00º 34’ 03” West a distance of 333.94 feet (Volume 97123 Page 3732 = North 00º 35’ 35” West 333.94
feet) to a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set in the southerly right-of-way line of Villanova Drive for the northwesterly corner of said Lot 1R, Block E;
THENCE departing the easterly line of said 15 foot wide alley with the southerly right-of-way line of Villanova
Drive North 89º 14’ 36” East a distance of 130.19 feet (Volume 97132 Page 3732 = North 89º 13’ 33” East 130.23
feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 0.883 acres (38,462 square feet) of land.
TRACT 6
BEING a 0.296 acre tract of land situated in the City of University Park, Texas, being a portion of Block F, Varsity
Village an addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas and being renamed to Preston Center in the City of University Park Ordinance
Number 3502-441 and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas
County, Texas, said 0.296 acre tract of land being more particularly described as follows:
BEGINNING at an “x” found in brick for the point of intersection of the easterly right-of-way line of Preston Center
Plaza (a variable width right-of-way) with the northerly right-of-way line of Villanova Drive (a 125 foot wide right-of-way) for the southwesterly corner of said Block F;
THENCE with the easterly right-of-way line of Preston Center Plaza North 00º 30’ 42” West a distance of 142.39 feet (Volume 11 Page 217 = North) to an “x” cut in concrete for the southwesterly corner of the tract of land
described in the instrument to the City of University Park recorded in Volume 2003126, Page 3583, Deed Records of Dallas County, Texas;
THENCE departing the easterly right-of-way line of Preston Center Plaza with the southerly line of said City of
University Park tract North 89º 14’ 39” East a distance of 90.50 feet (Volume 2003126 Page 3583 = North 89º 45’
38” East 90.50 feet) to an “x” cut in concrete in the westerly line of a 15 foot wide alley for the southeasterly corner of said City of University Park tract;
THENCE with the westerly line of said 15 foot wide alley South 00º 30’ 42” East a distance of 142.39 feet (Volume 11 Page 217 = South) to a 1⁄2 inch iron rod inside a 2 inch iron pipe found in the northerly right-of-way line of
Villanova Drive for the southeasterly corner of said Block F;
THENCE departing the westerly line of said 15 foot wide alley with the northerly right-of-way line of Villanova
Drive South 89º 14’ 36” West a distance of 90.50 feet (Volume 11 Page 217 = South 89º 45’ 38” West 90.5 feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 0.296 acres (12,886 square feet) of land.
TRACT 7
BEING a 0.402 acre tract of land situated in the City of University Park, Texas, being a portion of Block G, Varsity Village an addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map
Page 58 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE5
Records of Dallas County, Texas and being renamed to Preston Center in the City of University Park Ordinance Number 3502-441 and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates,
Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas County, Texas, said 0.402 acre tract of land being more particularly described as follows:
BEGINNING at a PK nail found in brick for the point of intersection of the westerly right-of-way line of Preston Center Plaza (a variable width right-of-way) with the northerly right-of-way line of Villanova Drive (a 125 foot
wide right-of-way) for the southeasterly corner of said Block G;
THENCE with the northerly right-of-way line of Villanova Drive South 89º 14’ 36” West a distance of 115.50 feet
(Volume 11 Page 217 = South 89º 45’ 38” West 115.5 feet) to a ½ inch iron rod inside a 2 inch iron pipe found in the easterly line of a 15 foot wide alley for the southwesterly corner of said Block G;
THENCE departing the northerly right-of-way line of Villanova Drive with the easterly line of said 15 foot wide
alley North 00º 30’ 42” West a distance of 151.72 feet (Volume 11 Page 217 = North 151.72 feet) to an “x” found in
concrete in the southerly line of said 15 foot wide alley for the northwesterly corner of said Block G;
THENCE with the southerly line of said 15 foot wide alley North 89º 14’ 36” East a distance of 115.50 feet
(Volume 11 Page 217 = North 89º 45’ 38” East 115.5 feet) to a ½ inch iron rod inside a 2 inch iron pipe found in the westerly right-of-way line of Preston Center Plaza for the northeasterly corner of said Block G;
THENCE departing the southerly line of said 15 foot wide alley with the westerly right-of-way line of Preston
Center Plaza South 00º 30’ 42” East a distance of 151.72 feet (Volume 11 Page 217 = South 151.72 feet) to the
POINT OF BEGINNING;
CONTAINING a computed area of 0.402 acres (17,524 square feet) of land.
TRACT 8
BEING a 0.753 acre tract of land situated in the City of University Park, Texas, being all of Lot 1R, Block H,
Preston Center Plaza Addition an addition to the City of University Park according to the plat recorded in Volume 97123, Page 3732, Map Records of Dallas County, Texas and being a portion of the tracts of land described in the
deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas County, Texas, said 0.753 acre tract of land being more particularly described as
follows:
BEGINNING at a 1⁄2 inch iron found for the point of intersection of the southerly right-of-way line of Villanova
Drive (a 125 foot wide right-of-way) with the easterly right-of-way line of Preston Center Plaza (a variable width right-of-way) for the northwesterly corner of said Lot 1R, Block H;
THENCE with the southerly right-of-way line of Villanova Drive North 89º 14’ 36” East a distance of 90.54 feet
(Volume 97123 Page 3732 = North 89º 13’ 33” East 90.50 feet) to a ½ inch iron rod found in the westerly line of a
15 foot wide alley for the northeasterly corner of said Lot 1R, Block H;
THENCE departing the southerly right-of-way line of Villanova Drive with the westerly line of said 15 foot wide
alley South 00º 34’ 03” East a distance of 344.01 feet (Volume 97123 Page 3732 = South 00º 35’ 35” East 344.06 feet) to an “x” found in concrete in the northerly right-of-way line of Wentwood Drive in a non-tangent curve to the
right, for the southeasterly corner of said Lot 1R, Block H, the radius point of said curve being situated North XXº
XX’ XX” West a distance of 125.00 feet from said “x”;
THENCE departing the westerly line of said 15 foot wide alley with the northerly right-of-way line of Wentwood Drive the following:
Southwesterly along said curve through a central angle of 10º 05’ 38” an arc distance of 22.02 feet with a chord
bearing of South 64º 36’ 21” West and a chord distance of 21.99 feet to a 5/8 inch iron rod found for the point of
tangency of said curve;
Page 59 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE6
South 69º 28’ 03” West a distance of 75.09 feet (Volume 97123 Page 3732 = South 69º 27’ 55” West 75.16 feet) to
an “x” cut in concrete in the easterly right-of-way line of Preston Center Plaza for the southwesterly corner of said
Lot 1R, Block H;
THENCE departing the northerly right-of-way line of Wentwood Drive with the easterly right-of-way line of
Preston Center Plaza North 00º 34’ 03” West a distance of 378.59 feet (Volume 97123 Page 3732 = North 00º 35’
35” West 378.65 feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 0.753 acres (32,789 square feet) of land.
TRACT 9
BEING a 0.761 acre tract of land situated in the City of University Park, Texas, being all of Lot 1R, Block J, Preston Center Plaza Addition an addition to the City of University Park according to the plat recorded in Volume 97123,
Page 3732, Map Records of Dallas County, Texas and being a portion of the tracts of land described in the deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page
3847, Deed Records of Dallas County, Texas, said 0.761 acre tract of land being more particularly described as follows:
BEGINNING at an “x” found in concrete for the point of intersection of the westerly right-of-way line of Preston Center Plaza (a variable width right-of-way) with the northerly right-of-way line of Wentwood Drive (a 50 foot wide
right-of-way) for the southeasterly corner of said Lot 1R, Block J;
THENCE with the northerly right-of-way line of Wentwood Drive South 69º 28’ 03” West a distance of 122.86 feet
(Volume 97123 Page 3732 = South 69º 27’ 55” West 122.91 feet) to a PK nail set in the easterly line of a 15 foot wide alley for the southwesterly corner of said Lot 1R, Block J;
THENCE departing the northerly right-of-way line of Wentwood Drive with the easterly line of said 15 foot wide
alley North 00º 30’ 42” West a distance of 308.08 feet (Volume 97123 Page 3732 = North 00º 32’ 05: West 308.24
feet) to a PK nail found in the southerly line of a 20 foot wide alley for the northwesterly corner of said Lot 1R, Block J;
THENCE departing the easterly line of said 15 foot wide alley with the southerly line of said 20 foot wide alley
North 89º 29’ 23” East a distance of 115.43 feet (Volume 97123 Page 3732 = North 89º 27’ 55” East 115.50 feet) to
a PK nail set in the westerly right-of-way line of Preston Center Plaza for the northeasterly corner of said Lot 1R, Block J;
THENCE departing the southerly line of said 20 foot wide alley with the westerly right-of-way line of Preston
Center Plaza South 00º 30’ 42” East a distance of 266.01 feet (Volume 97123 Page 3732 = South 00º 32’ 05” East
266.21 feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 0.761 acres (33,135 square feet) of land.
TRACT 10
BEING a 1.323 acre tract of land situated in the City of University Park, Texas, being all of Lot 10R, Block 78,
Preston Center Plaza Addition an addition to the City of University Park according to the plat recorded in Volume 97123, Page 3732, Map Records of Dallas County, Texas and being a portion of the tracts of land described in the
deed to Caruth/Preston Road Associates, Ltd. and Caruth/Preston Road Associates, LLC recorded in Volume 95041, Page 3847, Deed Records of Dallas County, Texas, said 1.323 acre tract of land being more particularly described as
follows:
BEGINNING at a 5/8 inch iron rod found for the point of intersection of the southerly right-of-way line of
Wentwood Drive (a 50 foot wide right-of-way) with the easterly right-of-way line of Preston Road (a variable width right-of-way) for the northwesterly corner of said Lot 10R, Block 78;
THENCE with the southerly right-of-way line of Wentwood Drive the following:
Page 60 of 109
EXHIBIT B TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE7
North 89º 28’ 29” East a distance of 43.89 feet (Volume 97123 Page 3732 = South 89º 27’ 55” West 43.88 feet) to a
5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set for the point of curvature of a curve to the left having
a radius of 175.00 feet;
Northeasterly along said curve through a central angle of 20º 00’ 00” an arc distance of 61.09 feet with a chord
bearing of North 79º 28’ 29” East and a chord distance of 60.78 feet to a 5/8 inch iron rod with a cap stamped
“Dunaway Assoc LP” set for the point of tangency of said curve;
North 69º 28’ 03” East a distance of 396.52 feet (Volume 97123 Page 3732 = North 69º 27’ 55” East 396.51 feet) to
a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set for the point of curvature of a curve to the left having a radius of 175.00 feet;
Northeasterly along said curve through a central angle of 23º 52’ 30” an arc distance of 72.92 feet with a chord
bearing of North 57º 31’ 57” East and a chord distance of 72.39 feet to a 5/8 inch iron rod with a cap stamped
“Dunaway Assoc LP” set for the point of reverse curvature of a curve to the right having a radius of 125.00 feet;
Northeasterly along said curve through a central angle of 43º 48’ 49” an arc distance of 95.59 feet with a chord
bearing of North 67º 30’ 28” East and a chord distance of 93.27 feet to a 5/8 inch iron rod with a cap stamped
“Dunaway Assoc LP” set in the westerly right-of-way line of Pickwick Lane ( a 60 foot wide right-of-way);
THENCE departing the southerly right-of-way line of Wentwood Drive with the westerly right-of-way line of
Pickwick Lane South 00º 35’ 01” East a distance of 148.86 feet (Volume 97123 Page 3732 = South 00º 35’ 35” East
148.86 feet) to a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set in the northerly line of a 15 foot wide alley as shown on the University Heights No. 6 Addition, an addition to the City of University Park according
to the plat recorded in Volume 8, Page 170, Map Records of Dallas County, Texas;
THENCE departing the westerly right-of-way line of Pickwick Lane with the northerly line of said 15 foot wide
alley the following:
South 79º 46’ 32” West a distance of 319.93 feet (Volume 97123 Page 3732 = South 79º 45’ 55” West 319.93 feet)
to a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set for corner;
South 68º 00’ 29” West a distance of 335.10 feet (Volume 97123 Page 3732 = South 67º 59’ 55” West 335.10 feet)
to a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set in the easterly right-of-way line of Preston Road;
THENCE departing the northerly line of said 15 foot wide alley with the easterly right-of-way line of Preston Road
the following:
North 00º 31’ 31” West a distance of 79.11 feet (Volume 97123 Page 3732 = North 00º 32’ 05” West 79.11 feet) to
a 5/8 inch iron rod with a cap stamped “Dunaway Assoc LP” set for the point of curvature of a curve to the right having a radius of 131.68 feet;
Northeasterly along said curve through a central angle of 11º 47’ 58” an arc distance of 27.12 feet with a chord
bearing of North 05º 22’ 28” East and a chord distance of 27.07 feet to the POINT OF BEGINNING;
CONTAINING a computed area of 1.323 acres (57,621 square feet) of land.
Page 61 of 109
EXHIBIT C TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT C
CITY LAND
For ease of reference, the following four tracts of land are generally described in the
following table:
Tract No. General description From To Approximate Area (s.f.)*
11(A) Preston Center Plaza NW Hwy Villanova 37,340
11(A) Preston Center Plaza Villanova Wentwood 50,158
11(A) Villanova Preston Pickwick 75,881
11(C) Alley (NW) 4,233
11(B) Alley (NE) 4,703
11(A) Alley (SE) 5,010
11(A) Alley (SW) 7,229
12 Northwest Highway ROW 9,526
*Approximate area only; metes and bounds descriptions control where there is a conflict.
TRACT 11(A)
BEING all of the existing right-of-way of Preston Center Plaza (a variable width right-of-way) and Villanova Drive (a 125 foot wide right-of-way) as dedicated by the plat of Varsity Village, an addition to the City of University Park,
according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas, and being renamed to Preston Center in the City of University Park Ordinance Number 3502-441 and that portion of the right-of-way as dedicated by the plat of Preston Center Plaza Addition, an addition to the City of University Park according to the plat recorded in Volume 97123, Page 3732, Map Records of Dallas County, Texas, and all of the alley situated between Block H and Block E and all of the alley between Block A and Block J as dedicated by said Preston Center Plaza Addition, said right-of-ways being more particularly described as follows:
BEGINNING at an “x” found in concrete for in the northerly right-of-way line of Wentwood Drive (a 50 foot wide right-of-way) for the southeasterly corner of Lot 1R, Block J of said Preston Center Plaza Addition;
THENCE with the easterly line of said Lot 1R, Block J North 00º 30’ 42” West a distance of 266.01 feet (Volume
97123, Page 3732 = North 00º 32’ 05” West 266.21 feet) to an “x” found in concrete for in the northeasterly corner of said Lot 1R, Block J;
THENCE with the northerly line of said Lot 1R, Block J South 89º 29’ 23” West a distance of 115.43 feet (Volume
97123, Page 3732 = South 89º 27’ 55” West 115.50 feet) to a PK nail found for the northwesterly corner of said Lot 1R, Block J;
THENCE with the westerly line of said Lot 1R, Block J South 00º 30’ 42” East a distance of 308.08 feet (Volume 97123, Page 3732 = South 00º 32’ 05” East 308.24 feet) to a PK nail found in the northerly right-of-way line of Wentwood Drive for the southwesterly corner of said Lot 1R, Block J;
THENCE with the northerly right-of-way line of Wentwood Drive South 69º 28’ 03” West a distance of 15.96 feet
(Volume 97123, Page 3732 = South 69º 27’ 55” West 15.96 feet) to an “x” found in concrete for the southeasterly corner of Lot 1R, Block A of said Preston Center Plaza Addition;
Page 62 of 109
EXHIBIT C TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE2
THENCE departing the northerly right-of-way line of Wentwood Drive with the southerly east line of said Lot 1R,
Block A North 00º 30’ 42” West a distance of 333.54 feet (Volume 97123, Page 3732 = North 00º 32’ 05” West
333.70 feet) to an “x” found in concrete for the re-entrant corner of said Lot 1R, Block A;
THENCE with the northerly south line of said Lot 1R, Block A North 89º 29’ 23” East a distance of 130.43 feet
(Volume 97123, Page 3732 = North 89º 27’ 55” East 130.50 feet) to a PK nail set for the southerly northeast corner of said Lot 1R, Block A;
THENCE with the easterly line of said Lot 1R, Block A North 00º 30’ 42” West a distance of 137.72 feet (Volume
97123, Page 3732 = North 00º 32’ 05” West 137.56 feet) to an “x” found in concrete for the northeasterly corner of
said Lot 1R, Block A;
THENCE with the northerly line of said Lot 1R, Block A South 89º 14’ 36” West a distance of 245.86 feet to an “x”
found in concrete in the easterly right-of-way line of Preston Road (a variable width right-of-way) for the northwesterly corner of said Lot 1R, Block A;
THENCE with the easterly right-of-way line of Preston Road North 00º 30’ 42” West a distance of 125.00 feet to an
“x” found in brick for the southwesterly corner of Block B, said Preston Center (Varsity Village);
THENCE with the southerly line of said Block B North 89º 14’ 36” East at a distance of 115.37 feet passing an “x” found in concrete for the southeasterly corner of said Block B, at a distance of 130.37 feet passing a 1⁄2 inch iron rod
found for the southwesterly corner of Block G, said Preston Center (Varsity Village), continuing with the southerly line of said Block G in all a total distance of 245.88 feet to PK nail found for the southeasterly corner of said Block
G;
THENCE with the easterly line of said Block G North 00º 30’ 42” West at a distance of 151.72 feet passing a 1⁄2 inch
iron rod found for the northeasterly corner of said Block G, at a distance of 165.72 feet passing an “x” found in concrete for the southeasterly corner of Block C of said Preston Center (Varsity Village), continuing with the
easterly line of said Block C in all a total distance of 296.72 feet to an “x” cut in concrete in the southerly right-of-way line of Northwest Highway (a variable width right-of-way) for the northeasterly corner of said Block C;
THENCE with the southerly right-of-way line of Northwest Highway North 89º 14’ 36” East a distance of 125.00 feet to a 5/8 inch iron rod found for the northwesterly corner of Block D, said Preston Center (Varsity Village);
THENCE departing the southerly right-of-way line of Northwest Highway with the westerly line of said Block D
South 00º 30’ 42” East at a distance of 130.00 feet passing an “x” found in brick for the southwesterly corner of said
Block D, at a distance of 154.33 feet passing an “x” cut in concrete for in the westerly line of Block F of said Preston Center (Varsity Village) for the southwesterly corner of the tract of land described in the instrument to the
City of University Park recorded in Volume 2003125, Page 3583, Deed Records of Dallas County, Texas, continuing with the westerly line of Block F in all a total distance of 296.72 feet to an “x” found in brick for the
southwesterly corner of said Block F;
THENCE with the southerly line of said Block F North 89º 14’ 36” East at a distance of 90.50 feet passing a ½ inch
iron rod found for the southeasterly corner of said Block F, at a distance of 105.50 feet passing an “x” found in concrete for the southwesterly corner of Block D, said Preston Center (Varsity Village), continuing with the
southerly line of said Block D in all a total distance of 236.61 feet to a 1⁄2 inch iron rod found in the westerly right-of-way line of Pickwick Lane (a 60 foot wide right-of-way) for the southeasterly corner of said Block D;
THENCE with the westerly right-of-way line of Pickwick Lane South 00º 34’ 03” East a distance of 125.00 feet to
an “x” cut in concrete for the northeasterly corner of Lot 1R, Block E of said Preston Center Plaza Addition;
THENCE with the northerly line of said Lot 1R, Block E South 89º 14’ 36” West a distance of 130.19 feet to an “x” cut in concrete for the northwesterly corner of said Lot 1R, Block E;
THENCE with the westerly line of said Lot 1R, Block E South 00º 34’ 03” East a distance of 333.94 feet (Volume
97123, Page 3732 = South 00º 35’ 35” East 333.94 feet) to a PK nail found in the northerly right-of-way line of
Wentwood Drive in a non-tangent curve to the right for the southwesterly corner of said Lot 1R, Block E, the radius
point of said curve being situated North 38º 44’ 39” West a distance of 125.00 feet from said “x”;
Page 63 of 109
EXHIBIT C TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE3
THENCE with the northerly right-of-way line of Wentwood Drive Southwesterly along said curve through a central
angle of 08º 18’ 11” an arc distance of 18.11 feet with a chord bearing of South 55º 24’ 27” West and a chord
distance of 18.10 feet to an “x” found in concrete for the southeasterly corner of Lot 1R, Block H of said Preston Center Plaza Addition;
THENCE departing the northerly right-of-way line of Wentwood Drive with the easterly line of said Lot 1R, Block
H North 00º 34’ 03” West a distance of 344.01 feet (Volume 97123, Page 3732 = North 00º 35’ 35” West 344.08
feet) to a 1⁄2 inch iron rod inside a 2 inch iron pipe found for the northeasterly corner of said Lot 1R, Block H;
THENCE with the northerly line of said Lot 1R, Block H South 89º 14’ 36” West a distance of 90.54 feet to an “x”
found in brick for the northwesterly corner of said Lot 1R, Block H;
THENCE with the westerly line of said Lot 1R, Block H South 00º 34’ 03” East a distance of 378.59 feet to an “x”
cut in concrete in the northerly right-of-way line of Wentwood Drive for the southwesterly corner of said Lot 1R, Block H;
THENCE with the northerly right-of-way line of Wentwood Drive South 69º 28’ 03” West a distance of 133.43 feet to the POINT OF BEGINNING;
CONTAINING a computed area of 4.029 acres (175,491 square feet) of land.
TRACT 11(B)
BEING all of a 15 foot wide alley situated adjacent to Block D and Block F, Varsity Village, an addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas
and being renamed to Preston Center in the City of University Park Ordinance Number 3502-441, and a portion of Block F as described in the instrument to the City of University Park recorded in Volume 2003126, Page 3583, Deed
Records of Dallas County, Texas, said tract of land being more particularly described as follows:
BEGINNING at an “x” found in concrete for the most westerly southwest corner of said Block D;
THENCE with the southerly line of said Block D North 89º 14’ 36” East a distance of 105.50 feet (Volume 11, Page
217 = North 89º 45’ 38” East 105.5 feet) to an “x” found in concrete for a re-entrant corner of said Block D;
THENCE with the westerly line of said Block D South 00º 30’ 42” East a distance of 166.72 feet (Volume 11, Page
217 = South 166.72 feet) to an “x” found in brick for the most easterly southwest corner of said Block D;
THENCE South 89º 14’ 36” West a distance of 15.00 feet (Volume 11, Page 217 = South 89º 45’ 38” West 15.00 feet) to a 1⁄2 inch iron rod in a 2 inch iron pipe found for the southeasterly corner of said Block F;
THENCE with the easterly line of Block F North 00º 30’ 42” West a distance of 142.39 feet Volume 11, Page 217 = North) to the southeasterly corner of the tract of land described as a right-of-way for alley purposes in the instrument
to the City of University Park recorded in Volume 2003126, Page 3583, Deed Records of Dallas County, Texas;
THENCE with the southerly line of said City of University Park tract South 89º 14’ 36” West a distance of 90.50
feet (Volume 2003126, Page 3583 = South 89º 45’ 38” West 90.50 feet) to an “x” cut in concrete in the westerly line of said Block F for the southwesterly corner of said City of University Park tract;
THENCE with the westerly line of said Block F North 00º 30’ 42” West at a distance of 9.33 feet (Volume 2003126, Page 3583 = North 9.33 feet) passing the northwesterly corner of said City of University Park tract in all a total
distance of 24.33 feet to the POINT OF BEGINNING;
CONTAINING a computed area of 0.108 acres (4,703 square feet) of land
TRACT 11(C)
BEING a 15 foot wide alley situated adjacent to Block B, Block C, Block K and Block G, Varsity Village, an
addition to the City of University Park according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas, and being renamed to Preston Center in the City of University Park Ordinance Number 3502-
441, said 15 foot wide alley being more particularly described as follows:
Page 64 of 109
EXHIBIT C TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE4
BEGINNING at an “x” found in brick for the southeasterly corner of said Block B;
THENCE with the easterly line of said Block B North 00º 30’ 42” West a distance of 166.72 feet (Volume 11, Page
217 = North 166.72 feet) to a 5/8 inch iron rod found in the southerly line of said Block K for the northeasterly corner of said Block B;
THENCE with the southerly line of said Block K North 89º 14’ 36” East at a distance of 14.50 feet passing a 5/8 inch iron rod found for the southeasterly corner of said Block K continuing with the southerly line of said Block C in
all a total distance of 130.50 feet (Volume 11, Page 217 = North 89º 45’ 38” East 130.5 feet) to an “x” cut in concrete for the southeasterly corner of said Block C;
THENCE South 00º 30’ 42” East a distance of 15.00 feet (Volume 11, Page 217 = South 15.00 feet) to a 1⁄2 inch iron rod in a 2 inch iron pipe found for the northeasterly corner of said Block G;
THENCE with the northerly line of said Block G South 89º 14’ 36” West a distance of 115.50 feet (Volume 11,
Page 217 = South 89º 45’ 38” West 115.5 feet) to an “x” found in concrete for the northwesterly corner of said
Block G;
THENCE with the westerly line of said Block G South 00º 30’ 42” East a distance of 151.72 feet (Volume 11, Page
217 = South 151.72 feet) to a 1⁄2 inch iron rod in a 2 inch iron pipe found for the southwesterly corner of said Block G;
THENCE South 89º 14’ 36” West a distance of 15.00 feet (Volume 11, Page 217 = South 89º 45’ 30” West 15.00 feet) to the POINT OF BEGINNING;
CONTAINING a computed area of 0.097 acres (4,233 square feet) of land.
TRACT 12
BEING a portion of Northwest Highway right-of-way (a variable width right-of-way) situated in the City of University Park, Texas being that portion of the right-of-way dedicated by Varsity Village an addition to the City of
University Park according to the plat recorded in Volume 11, Page 217, Map Records of Dallas County, Texas and being renamed to Preston Center in the City of University Park Ordinance Number 3502-441, being situated
adjacent to Block C and Block D of said Preston Center (Varsity Village), said tract of land being more particularly described as follows:
BEGINNING at an “x” found in concrete for the point of intersection of the southerly right-of-way line of Northwest Highway with the easterly line of Block K of said Preston Center (Varsity Village) for the northwesterly
corner of said Block C;
THENCE with the easterly line of said Block K North 00º 30’ 42” West a distance of 20.00 feet to a PK nail set for
the northeasterly corner of said Block K;
THENCE departing the easterly line of said Block K North 89º 14’ 36” East a distance of 476.30 feet to a 5/8 inch
iron rod with a cap stamped “Dunaway Assoc LP” set for corner;
THENCE South 00º 34’ 02” East a distance of 20.00 feet to an “x” found in concrete in the southerly right-of-way
line of Northwest Highway for the northeasterly corner of said Block D;
THENCE with the southerly right-of-way line of Northwest Highway South 89º 14’ 36” West a distance of 476.32
feet to the POINT OF BEGINNING;
CONTAINING a computed area of 0.219 acres (9,526 square feet) of land.
Page 65 of 109
EXHIBIT D TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT D
PARKING STRUCTURE CONCEPTUAL PLANS
Page 66 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT E
BASE BUILDING CONCEPTUAL PLANS
Page 67 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE2
Page 68 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE3
Page 69 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE4
Page 70 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE5
Page 71 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE6
Page 72 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE7
Page 73 of 109
EXHIBIT E TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE8
Page 74 of 109
EXHIBIT F TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT F
BASE BUILDING CORE AND SHELL REQUIREMENTS
Caruth will construct the following Base Building elements:
General
1. Structural elements of the building, including perimeter columns.
2. Concrete floor slab at grade.
3. Exterior watertight building skin.
4. Watertight roof and roof drain and overflow system.
5. Exterior window glass.
6. Exterior doors on first floor.
7. Roof and exterior wall insulation system, with taped and bedded drywall, without sheetrock.
8. Two enclosed emergency exit stairways and staircases.
9. Electrical power and hook-ups necessary to operate the lighting and HVAC systems with a amp
breaker panel of to be determined size for each 10,000 square foot area.
10. Fireproofing system to the extent required by code.
11. Fire sprinkler system with branch lines, heads turned up.
12. Stacked water and sewer plumbing for restrooms (but no restrooms).
13. All components of the egress system meeting code.
14. Exterior trash enclosures, landscaping, site grading, drainage and compaction, driveways, fire
lanes, and site utilities extended into the building, all as necessary to comply with code.
Library Unit/Library Lobby Related
15. Structure of interior staircase (without finish or handrail).
16. One elevatorshaftserving the two underground parking levels, the Library Lobby, andthe Library Unit, with standard commercial grade elevator cab and emergency lighting, electrical, and
communication system to extent required by code.
17. Electric room.
18. Mechanical room with air handler, including chilled water services for HVAC.
Not included as part of the building core and shell work are the following: interior walls and partitions, interior doors or hardware, restrooms, plumbing fixtures, distribution of plumbing or
electrical wiring within unit, ceiling, interior finishes, drywall, lighting, window treatment,
HVAC equipment and hookups other than air handler, ceiling diffusers, ductwork, signage, and any other items not listed above as being part of the base building core and shell.
Page 75 of 109
EXHIBIT F TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT G
SIGNAGE
The standard signage criteria to be developed by Caruth in connection with the office space to be
leased in the Mixed Use Building.
Page 76 of 109
EXHIBIT H TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE1
EXHIBIT H
FORM OF DEED
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS §
That CARUTH/PRESTON ROAD ASSOCIATES, LTD., a Texas limited partnership
(“Grantor”), for and in consideration of the sum of ten dollars and other good and valuable consideration paid to Grantor by The City Of University Park, a municipal corporation organized
under the laws of the State of Texas, whose address is [add address] (“Grantee”), the receipt and
sufficiency of which are hereby acknowledged, has sold, granted, and conveyed and by these
presents does sell, grant, and convey to Grantee the real property described as follows:
Unit [from Declaration] in [Preston Road Associates Condominium], located in Dallas County, Texas, a condominium created by the Condominium Declaration
dated [date of Declaration] recorded in [recording information] real property
records of Dallas County, Texas, and evidenced by the condominium plat
recorded in [recording information], real property records of Dallas County,
Texas,
together with the improvements situated thereon, if any, and the rights and appurtenances of
Grantor pertaining thereto, (all of which is collectively called the “Property”). This conveyance
is expressly made subject to the matters described on Exhibit A[to be prepared and attached at
closing] attached hereto (the “Permitted Encumbrances”).
TO HAVE AND TO HOLD the Property, subject to the Permitted Encumbrances, to
Grantee and Grantee’s successors and assigns forever and Grantor hereby binds itself and its
successors and assigns to WARRANT and FOREVER DEFEND all and singular the Property,
subject to the Permitted Encumbrances, to Grantee and its successors and assigns against every
person whomsoever lawfully claiming or to claim the same or any part thereof, by, through, or
under Grantor, but not otherwise.
THIS CONVEYANCE IS MADE ON AN “AS IS, WHERE IS AND IS WITH ALL FAULTS” BASIS, AND
BY ACCEPTING THIS DEED,GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT
MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES,
AGREEMENTS, OR GUARANTEES OF ANY KIND, WHETHER STATUTORY, EXPRESS, OR IMPLIED, ORAL
OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO: (A) THE NATURE, QUALITY, OR
CONDITION OF THE PROPERTY OR THE BUILDING IN WHICH THE PROPERTY IS LOCATED OR LAND
BENEATH SUCH BUILDING (COLLECTIVELY, THE “CONDOMINIUM PROPERTY”); (B) THE SUITABILITY
OF THE CONDOMINIUM PROPERTY OR THE PROPERTYFOR ANY PARTICULAR PURPOSE; OR (C)
OTHERWISE WITH RESPECT TO THE CONDOMINIUM PROPERTY OR THE PROPERTY. BY ACCEPTING
THIS DEED, GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT, HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE CONDOMINIUM PROPERTY, GRANTEE WILL BE PURCHASING THE
PROPERTY PURSUANT TO ITS INDEPENDENT EXAMINATIONS, STUDIES, INSPECTIONS, AND
KNOWLEDGE OF THE PROPERTY AND GRANTEEWILL RELY UPON ITS OWN DETERMINATION OF THE
VALUE OF THE PROPERTY AND USES TO WHICH THE PROPERTY MAY BE PUT, AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY GRANTOR.
Page 77 of 109
EXHIBIT H TO EXCHANGE AND DEVELOPMENT AGREEMENT, PAGE2
CARUTH/PRESTON ROAD ASSOCIATES,
LTD., a Texas limited partnership
By: Caruth/Preston Road, L.L.C., a Texas limited
liability company, its general partner
By:
Name:
Title:
STATE OF TEXAS §
§ COUNTY OF DALLAS §
This instrument was acknowledged before me on [date] by Pamela Spadaro, Vice
President of Caruth/Preston Road, L.L.C., a Texas limited liability company, in its capacity as
General Partner of Caruth/Preston Road Associates, Ltd., a Texas limited partnership, on behalf
of said limited partnership.
Notary Public, State of Texas
(print name) My commission expires:
______________________
Page 78 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:KentAustin,DirectorofFinance
SUBJECT:CONSIDERANDACT:onanagreementbetweentheCityofUniversityPark and
FriendsoftheUniversityParkPublicLibraryforo perationandlocationofapublic
library
BACKGROUND:
ParallelwiththedevelopmentoftheCity-Caruth/Pr estonRoadAssociatesagreement,theCityhas
workedtodraftanagreementwiththeFriendsofth eUniversityParkPublicLibrary.Thisagreement
establishesseveralkeypointsbetweenthetwopart ies:
TheFriends,onbehalfoftheCity,willoperateth epubliclibraryforUniversityPark.
Thelibrarywillbeopenatleast40hoursaweek,employaqualifiedprofessionallibrary
director,andprovideausercardwithoutchargeto anyresidentofthecityuponrequest.
TheCitywillbudgetfundsfortheoperationofthe library,takingintoconsiderationthe
Friends’requestandtheCityManager’sevaluation.ThecurrentfiscalyearCitybudgetfor
libraryoperationsis$196,755.
TheFriendsagreetoprovidevolunteersupportfor theoperationofthelibraryiftheCity
Councilchoosestomovethelibrary’slocation.
TheFriendspledgetoundertakeafundraisingcampa ignintendedtoestablisha$10,000,000
endowmentforoperationofthelibrary.
TheFriendsandtheCitypledgetodevelopagovern anceagreementbyDecember1,2011to
providefortheongoingoperationofthelibrary.
Theproposedagreementformalizestheintentofthe CityandtheFriendsoftheLibrarytolocatethe
libraryinthenewmulti-storybuildingatthePlaz aatPrestonCenter.
RECOMMENDATION:
Citystaffrecommendsapprovaloftheagreementbet weentheCityandtheFriends.Theproposed
agreementreplacesthepreviousoperatingagreement approvedJuly28,2009.Theagreementdirects
theCityandFriendstodevelopamorecomprehensiv egovernanceagreementbyDecember1,2011.
ATTACHMENTS:
CUP-FOLagreement01-04-2011
Page 79 of 109
AGREEMENT BETWEEN THE CITY OF UNIVERSITY PARK, TEXAS AND
FRIENDS OF THE UNIVERSITY PARK PUBLIC LIBRARY, INC.
STATE OF TEXAS )(
COUNTY OF DALLAS )(
This Agreement (“Agreement”) is made and entered into by and between the City of
University Park, Texas, a home rule city of the State of Texas (“City”), and the Friends of the
University Park Public Library, Inc., a Texas nonprofit corporation (the “Friends”), to be
effective on the 4th day of January 2011 (the “effective date”).
WHEREAS, the City and the Friends have had an agreement since 2002 for the
operation of a public library by the Friends; and
WHEREAS, the City has approved an Exchange and Development Agreement with
Caruth/Preston Road Associates, Ltd., for the details of which reference is hereby made, to
potentially provide new space in the Plaza at Preston Center for a public library, meeting
room, offices, building entrance, and parking; and
WHEREAS, the City and the Friends desire to amend and renew their agreement with
regard to development and operation of a public library for the City;
NOW, THEREFORE, for and in consideration of the mutual promises and
obligations undertaken herein, the receipt and sufficiency of which are hereby acknowledged
by the parties, the City and Friends agree as follows:
A. The term of this Agreement shall commence on the effective date hereof and end on
July 31, 2020; provided that the City or the Friends may sooner terminate this Agreement at
any time by giving not less than six months' written notice of termination after July 31, 2011, to
the other party.
B. Friends is hereby confirmed as the agent of the City to operate the public library and
Page 80 of 109
agrees to continue to provide free public library services to the citizens of the City during the term
of this Agreement. The Board of Directors of the Friends shall be responsible for the policies
and procedures for the use of the library facilities and for the administration of its finances and
programs, subject to the review and approval of the City Council. Any citizen of the City shall
be entitled to apply for and receive the library services offered.
C. The City Council shall budget funds each year for the operation of the library. The
amount of funds budgeted for library operations shall be determined annually by the City Council
in its annual fiscal year budget process. Friends will submit its recommended budget each year to
the City Manager for inclusion in the City’s annual fiscal year budget he presents to the City Council
in the manner provided by law. The Friends’ recommended budget for operation of the library will be
based upon requirements set by the City Manager.
D. If the City Council chooses to move the permanent location of the University Park
Public Library, the Friends agree to continue to provide volunteer support for the
management and operations of the library.
E. The Friends pledge to undertake a capital campaign to raise money for an
endowment fund for operation of the library, with a target amount for the campaign of
$10,000,000.
F. The Friends and the City pledge to develop a governance agreement by
December 1, 2011 to provide for the ongoing operation of the library.
G. In the operation of the library, Friends shall provide, at a minimum, the following
services:
Page 81 of 109
1. Employ and compensate a duly qualified professional librarian to supervise and
manage a public library in the City during the term of this Agreement;
2. Maintain the public library open to the citizens of the City;
3. Keep the public library open for public use for a minimum average of approximately
40 hours per week during the term of this Agreement, and at least 20% of which, in
the aggregate, shall be after 6:00 p.m. on a weekday or between 8:00 a.m. and 5:00
p.m. on Saturday;
4. Provide a user card, free of charge, to any citizen of the City upon request and
presentation of proper identification.
H. All expenses, bills and accounts incurred in the operation and maintenance of
the public library shall be paid by Friends from the budgeted amount or from other funds or fees
raised or charged by Friends in the operation of the library.
I. Friends agrees to indemnify and hold harmless the City, its officers, agents,
servants and employees from any claim for property damage or personal injury arising from or
in any way connected to the operation of the facility, including, but not limited to,
compensatory damages, attorney's fees, and court costs.
J. This Agreement constitutes the entire agreement between the parties with
regard to the subject matter hereof, and supersedes any prior or contemporaneous written or oral
agreement on the subject. This Agreement may not be amended, except in writing, agreed to and
executed by both parties.
K. In the event any notice is required to be given to either party with regard to the
performance of this Agreement, such notice shall be in writing and may be hand delivered or sent
by messenger service or by certified or registered mail, return receipt requested, if sent to:
President, Friends of the University Park Public Library, Inc.
6517 Hillcrest
Page 82 of 109
Suite 110
University Park, Texas 75205
City Manager
City of University Park
3800 University Blvd.
University Park, Texas 75205
L. If any portion of this Agreement is held to be invalid for any reason, the
remaining portions hereof are declared to be severable and shall continue in full force and effect.
M. This Agreement is entered into under the laws of the State of Texas and in
venue of any legal action with regard hereto shall lie exclusively in Dallas County, Texas.
N. The parties hereto represent that they have been duly authorized by their
respective governing bodies to enter into this Agreement and that the officers signing below
execute the same in their representative capacities as stated below.
Executed in duplicate originals to be effective as of the date first stated above.
CITY OF UNIVERSITY PARK, TEXAS FRIENDS OF THE UNIVERSITY PARK
PUBLIC LIBRARY, INC.
BY: BY:
MAYOR PRESIDENT
ATTEST: ATTEST:
BY: BY:
CITY SECRETARY SECRETARY
Page 83 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:GaryW.Adams,ChiefofPolice
SUBJECT:CONSIDERANDACT:onarequesttoamendtheCodeofOrdinancestodes ignate
the3400blockofShenandoahaResident-OnlyPermit ParkingZone
BACKGROUND:
ResidentRichardLethridgeandotherresidentsoft he3400blockofShenandoahhavehadcontinued
parkingissuesintheirarea.TheyreportthatSMU studentsandfacultyparkinthatblock,creating a
shortageofresidentialparking,Inaddition,they reportcarsparkedinwaysthatblockaccesstoan d
fromdriveways,andvehiclesparkedsocloselytoo thersastoblockthemfromgettingout.The3400
blockofShenandoahisactuallytwoblocks,interse ctedbyAuburndale.Duetothenarrownessofthe
street,whichisapproximately14feet,parkingis allowedonthesouthsideonly.Thenorthsideof
Shenandoahisafirelane.
RECOMMENDATION:
StaffdoesnotrecommendthatCouncilapprovethis request,butrecommendsthatCouncilagain
reviewtherecommendationofcreatingresidentialp arkingdistrictsintheareasneartheSMUcampus
inordertoaddressresidentialcomplaintsandcont rolofon-streetparking.
InApril2010,theCityManagerrequestedaResiden tialParkingAd-HocCommitteebeestablished
to:
*Identifyareasfortheadditionalresidentialp arkingdistrict
*Identifyboundariesoftheresidentialparking district
*Suggestparkingpermitfeesand/orvisitorpark ingfees
*Suggestthenumberofparkingpermitsorvisito rpermitsassignedperhousehold
*Assistinaplantonotifyresidentswiththeh elpofPublicWorksandIT
Thecommitteesummaryreport,whichisanattachmen ttothisagendaitem,addressesthe
aforementionedtasksindetailandprovidesrecomme ndationstotheCouncilfordiscussion.
ATTACHMENTS:
ResidentialParkingAd-HocCommitteeSummaryReport
ResidentialParkingDistrictAerialView
ResidentialParkingDistrictBoundaries
Page 84 of 109
UNIVERSITY PARK
POLICE DEPARTMENT
Memo
To: Chief Gary Adams
From: Capt. Leon Holman
Date: May 23, 2010
Re: Residential Parking Ad-Hoc Committee Meeting Summary Report
In April, 2010 the City Manager, Bob Livingston, asked for your assistance with parking issues near
the SMU campus and the middle school.
The Residential Parking Ad-Hoc Committee was formed to:
Identify areas for the additional residential parking district
Identify the boundaries of the residential parking district
Suggest parking permit fees and/or visitor parking fees
Suggest how many parking permits or visitor permits be assigned per household
Assist in a plan to notify residents with the help of Jacob Speer with UP Public Works
Listed below are the parameters of the new district which has both an East and West location.
SMU Area (East)
The North boundary is Haynie
The South boundary is Normandy
The East boundary is Hillcrest
The West boundary is Dickens (south of McFarlin to include Key Street)
SMU Area (West)
The North boundary is Rosedale
The South boundary is 2900/2800 Dyer
The East boundary is the Wall/Linear Park next to Central
The West boundary is Airline
The following hours of compliance were agreed upon by the committee concerning the new
district:
The hours of compliance are 6 am to 5 pm
Monday through Friday
All year long excluding holidays
A specific sticker color will be assigned to the new district
Page 85 of 109
Listed below are the fees for all residential parking districts in the City of University Park:
$20 for the first permit
$15 for the second permit
$50 for each additional permit to related residents
No fees were recommended for temporary visitor parking permits but residents will now have to
pick up these permits in person.
No permits are suggested for property owners that do not reside in the property located within the
residential parking district.
Capt. Greg Spradlin and Dawn Kossmann met with Elsa Gonzales of IT, Bud Smallwood, the
Director of Public Works and Jacob Speer, Assistant Public Works Director to discuss the maps that
will be made outlining the new district and ascertain the number of households involved and the
amount of signage that will be needed for each area. Bud Smallwood estimates the cost for
signage of this new district would be approximately $35,000.
Elsa Gonzales is also providing Dawn Kossmann with the specific names and addresses of residents
so she can send the notification letter concerning the new district in the time frame required by
the state. A sample letter (see attached) was sent to Dawn Kossmann from Jennifer Deaver in the
UP Community Development Department.
Please be advised that the committee feels it is imperative that the following items are provided to
make this large Residential Parking District successful:
An additional Parking Enforcement Officer be hired, otherwise enforcement efforts would
be futile;
With an additional Parking Enforcement Officer hired another parking enforcement vehicle
would need to be purchased;
I am available at your convenience to discuss this summary in detail.
Respectfully submitted,
Leon Holman
Captain, Support Services Division
ELH/dk
Page 86 of 109
Page 87 of 109
Page 88 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:ChristineGreen,PurchasingAgent
SUBJECT:CONSIDERANDACT:onawardofBid#11-01,forthepurchaseoftwotransfer
trailersfortheSanitationDivision
BACKGROUND:
AttheDecember7,2010meeting,theCityCouncilc onsideredtheawardofBid#11-01forthe
purchaseoftwotransfertrailers.Thesetrailersa reusedbytheSanitationDivisiontohaulwastefr om
theCity’stransferstationat2525UniversityBoul evardtothelandfillandcompostfacilities.
Mr.MackReedofWarrenTruckandTrailerattended thatCouncilMeetingtoappealstaff’s
recommendationtorejecthislowbidandawardthe bidtoSteco.TheCityCouncildirectedstaffto
seekmoreinformationfromWarrenTruckandTrailer andreviewtherecommendationagain.
BelowarethebidsreceivedonOctober29,2010:
Bidder UnitCostTotalCost
WarrenTruckandTrailer$48,310 $96,620
Steco,Inc.$48,865$97,730
TheincludedmemofromFleetManagerJimGaudetail shisadditionalresearchonthetraileroffered
byWarrenTruckandTrailerandconcludeswiththe recommendationtoawardthebidtoSteco.Also
includedisaletterreceivedbyMr.Livingstonfro mVictorVescovo,aformerUPresidentandcurrent
businesspartnerofMr.ReedrequestingtheCouncil toreconsiderstaff'sdecision.
RECOMMENDATION:
StaffrecommendsacceptingthebidofSteco,Inc.i ntheamountof$97,730.
ATTACHMENTS:
12-21-10MemofromJimGau,FleetManager
MemofromJimGau,DetailedStecoQuote,andSteco Brochure
WarrenTruckDetailedQuoteandCompanyNewsClippi ng
VescuvoLtr12.2010
Page 89 of 109
As directed by council on December 7, 2010 I contacted Warren truck and trailer and
discussed the situation with the bids and my recommendation. I asked for additional
documents and re-contacted the entities that have Warren Steel Ejector trailers in service.
I asked Mr. Reed to send me references for closed top steel ejector trailers only as I was
interested in speaking with customers who were using exactly what we would be
purchasing. He sent me a total of 6 references with 3 of those not being closed top steel
ejector trailers. Those using the closed top steel ejector trailers were Memphis, Tennessee
with 3 trailers, Shaker Heights, Ohio with 1, and Waldoborough, Maine had just taken
delivery of 1 trailer.
The other three references were Baton Rouge, Louisiana with an open top trailer,
Clearwater, Florida again using 1 yr old aluminum trailers, and Collierville, Tennessee
using 6 month old aluminum tipper units.
So three of the references were not what I had requested.
Let me restate that:
There has never been a question about Warren Truck and Trailers not having met the
specifications.
There has never been a challenge that Warren truck and trailer was not the low bidder.
HOWEVER:
Warren Manufacturing has been in business since 1985 and is a manufacturer of truck
accessories and trailers for the construction and agricultural community. They have
acquired various companies over the years and purchased Hardee Manufacturing in 2001.
Hardee had been a manufacturer of refuse trailers.
Warren began producing Steel Ejector Transfer Trailers in 2008 and has provided
documentation of delivering a total of 5 steel ejector trailers to date.
The oldest trailers have been in service for 15 months one for 13 months and one has just
been delivered.
I did receive favorable information from the references provided as to how the units have
performed over this short period of time.
But we must understand that the real test of any product is how it holds up in long term
service.
Mr. Reed has stated that a trailer is a trailer and that the construction process is pretty
much the same regardless of its intended use. He even says they use the same hydraulic
cylinder as the company that provided the other bid.
Page 90 of 109
While this may be true there are design and engineering aspects of the trailers that
determine the true long term durability of the product. All products are constantly being
re-engineered as defects are discovered during the life cycle of that product. Stress points
have gussets added, structural members receive additional bracing, and sometimes there
is a complete re-design if a major failure occurs.
The only way to discover the weakness of any product is to put it in service over a long
period of time and see what happens. Anyone who purchases a new product becomes a
willing part of the research and development process for that product. Over time the
product will be perfected and improved with your inconvenience and downtime of that
product included.
Mr. Reed I am sure will tell you that the dump bodies and other products they have built
over many years have been perfected over time, and that the products they build today are
better than the ones they built years ago.
The other bid we received was from Steco Trailers who has been building steel ejector
trailers since 1972 and has produced and delivered over 276 steel ejector trailers. We
have been a customer of theirs since 1995 and have purchased six trailers from them
which have been extremely reliable for us.
As a responsible steward of the community’s funds we must look at all bids received for
any item purchased on the basis of best bid, not low bid.
With any equipment, acquisition, cost is but one part of ownership. To operate and
maintain a piece of equipment over its life will sometimes exceed the acquisition cost.
The decision before the city council this evening is, do we except the low bid from a
company who has 5 of the units bid in service today, or do we pay an extra $ 550.00 per
trailer and except the bid from a company who has built more than 276 of these units?
Steco has shown over the past 15 years to the city that they manufacture a quality product
and provide support for their trailers?
If there was a larger difference in the bids, one might reason that a few potential repairs
would not erase the initial savings. However, one small loss of the unit being out of
service in the production cycle would erase the $ 550.00 savings in a few hours.
If the situation were reversed and Warren Truck had the years of production and Steco
was the new game in town the logic would still prevail to go with the more experienced
Ejector Trailer manufacturer.
In closing, I cannot tell you that the Warren built trailer will not perform as well as the
Steco trailer in a ten year life cycle, and Warren Truck and Trailer cannot tell you their
trailers will, as a matter of fact, because they simply have not produced their trailer for
that period of time.
Page 91 of 109
My opinion of who should be awarded the bid for the Ejector trailers has not changed
since the December 7, 2010 council meeting, but the final decision lies with you.
I stand ready to work with who ever is awarded the bid for these trailers.
Thank You!
Page 92 of 109
Page 93 of 109
Page 94 of 109
Page 95 of 109
Page 96 of 109
Page 97 of 109
Page 98 of 109
Page 99 of 109
Page 100 of 109
Page 101 of 109
Page 102 of 109
Page 103 of 109
AGENDAMEMO
(1/4/2011AGENDA)
TO:HonorableMayorandCityCouncil
FROM:RobbieCorder,DirectorofCommunityDevelopment
SUBJECT:DISCUSS:anamendmenttoOrdinance09/08addressing alleyencroachments
BACKGROUND:
SinceMayof2009,codeenforcementstaffhaveenfo rcedtheprovisionsofOrdinance09/08
regardingalleyencroachments.Section3.2303ofth eordinancerequirespropertyownerstoremove
alleyencroachmentswheneverabuildingpermitisi ssuedinexcessof$10,000invaluation.Typical
alleyencroachmentsconsistofretainingwalls,fen ces,orothermanmadestructuresthatarewithin
therights-of-wayofthealley.
Whileenforcingtheprovisionsofthisordinancefo rapropertyonacornerlot,staffnoticedaprobl em
withtheexistingordinance.Oncornerlotsonly,e ncroachmentsmayexistwithinboththealley
rights-of-wayandthestreetrights-of-way(typical lyanorth/southstreet).However,theprovisioni n
Ordinance09/08thatrequirestheremovalofencroa chmentswithabuildingpermitinexcessof
$10,000onlyappliestoalleyencroachments,notst reetencroachments.Therefore,staffhasnot
requiredpropertyownersofcornerlotsthathavea buildingpermitinexcessof$10,000toremove
encroachmentsthatarewithinthestreetrights-of-way.
IftheCityCouncilwouldlikestafftoapplythes ameprovisionfortheremovalofalley
encroachmentstostreetencroachments,theordinanc ewouldneedtobeamended.Staffisseeking
directionfromtheCityCouncilonwhethertoplace anitemonafutureagendatoamendOrdinance
09/08toincludestreetencroachmentsoncornerlot s.
ATTACHMENTS:
OrdinanceNo.09/08
Page 104 of 109
Page 105 of 109
Page 106 of 109
Page 107 of 109
Page 108 of 109
Page 109 of 109