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Agenda 01-03-06 Web
A G E N D A #2601 CITY COUNCIL MEETING CITY OF UNIVERSITY PARK, TEXAS CITY HALL COUNCIL CHAMBERS TUESDAY, JANUARY 3, 2006 AT 5:00 P.M. 3:30-4:00 P.M.EXECUTIVE SESSION: TO RECEIVE LEGAL ADVICE FROM CITY ATTORNEY REGARDING REAL ESTATE MATTERS AND PROPOSED SANITARY SEWER AGREEMENT WITH HIGHLAND PARK UNDER SECTIONS 551.071 AND 551.072 UNDER TEXAS GOVERNMENT CODE 4:00-5:00 P.M. WORK SESSION FOR AGENDA REVIEW REVIEW: Snider Plaza Spring 2006 Banner Options I. INVOCATION – Director of Human Resources Luanne Hanford II. PLEDGE OF ALLEGIANCE – Director of Human Resources /Boy Scouts III.INTRODUCTION OF COUNCIL – Mayor James H. Holmes, III IV.INTRODUCTION OF STAFF – City Manager Bob Livingston V.AWARDS AND RECOGNITION RECOGNITION: Certificate of Achievement for Excellence in Financial Reporting PROCLAMATIONS: John S. Bradfield Elementary School, Robert S. Hyer Elementary School and Highland Park Middle School as Blue Ribbon Schools CERTIFICATE OF APPRECIATION: Sarah Baird for her Christmas decorations at City Hall VI. RECOGNITION OF BOY SCOUTS VII. ITEMS FROM THE FLOOR Anyone wishing to address an item not on the Agenda or having questions about items on the Consent Agenda should do so at this time. Questions and comments regarding Main Agenda items may be made when that item is addressed by the City Council. VIII.CONSENT AGENDA A.CONSIDER: Ordinance Amending Chapter 3, Article 3.1600, “House Numbering”, Section 3.1603 “Method of Numbering” to Provide Assignment of Street Addresses for Residential Buildings B.CONSIDER: Bid #06-02, Ornamental Metal Railing for Turtle Creek Box Culvert, Project No. 43710 C.CONSIDER: Final Payment for In-Place Recycling of Asphalt Pavements at Various Locations to Cutler Repaving, Project No. 42694 D.CONSIDER: Approval of City Council Meeting Minutes for December 13, 2005 IX.MAIN AGENDA A.CONSIDER: Naming of TXU Transmission Line Citizen Steering Committee B.CONSIDER: Development and Exchange Agreement for City-Owned Property at 4419 Worcola, Dallas C.CONSIDER: Amendment of contract with Newman, Jackson, Bieberstein Landscape Architectural Firm for Goar Park/City Hall Landscape Design and University Boulevard Enhancements D.CONSIDER: Modification of contract with Leo A. Daly for City Hall Design Work E.CONSIDER: Change Order No. 4 with Jeske Construction for Turtle Creek Box Culvert for City Hall Expansion, Retaining Wall Repairs to Portion of Creek West of City Hall, Project No. 43710 F.CONSIDER: Change Order for Battery Back-Up System at Various Signalized Intersections, Project 45220 As authorized by Section 551.071(2) of the Texas Government Code, this meeting may be convened into Closed Executive Session for the purpose of seeking confidential legal advice from the City Attorney on any agenda items listed herein. X. INFORMATION AGENDA REPORTS, BOARD AND COMMITTEE MEETING MINUTES A.BOARD OF ADJUSTMENT B.EMPLOYEE BENFITS ADVISORY COMMITTEE C.FINANCE ADVISORY COMMITTEE Minutes for December 13, 2005 D.PARK ADVISORY COMMITTEE E.PLANNING & ZONING COMMISSION F.PROPERTY CASUALTY & LIABILITY INSURANCE ADVISORY COMMITTEE G.PUBLIC SAFETY ADVISORY COMMITTEE H.PUBLIC WORKS ADVISORY COMMITTEE I.URBAN DESIGN & DEVELOPMENT ADVISORY COMMITTEE J.ZONING ORDINANCE ADVISORY COMMITTEE K.CAPITAL PROJECTS REVIEW COMMITTEE AGENDA MEMO (01/03/2006 AGENDA) DATE: December 28, 2005 TO: Honorable Mayor and Members of the City Council FROM: Gerry Bradley, Director of Parks SUBJECT: Snider Plaza Spring 2006 Banner Options BACKGROUND: During fiscal year 2005, City Council has approved the banner designs for summer, fall and holiday banners at Snider Plaza. Staff plans to present spring banner options for Snider Plaza during the City Council pre-session meeting on January 3, 2006. Based on City Council direction, design elements will include City “icons” found within our community. RECOMMENDATION: Staff is requesting direction from City Council regarding on how to proceed with color choices and designs regarding spring banners. Banner design approval by City Council will complete the seasonal banner program for Snider Plaza as staff believes the banners will serve the site for the next five (5) plus years. ATTACHMENTS: Spring Banner Options 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\Spring Banners 2006.doc 1:18 PM 12/29/05 Banner Choices for Snider Plaza - Spring 2006 ..,.....~ ~~ Option # 1 Option # 2 Option # 3 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C'\DQcumenlS and Sett!nqs\lf1Iccallum\Desktop\Spnnq Banners 2006.doc 3:31 PM 1 WHEREAS, The No Child Left Behind - Blue Ribbon Schools Program has been established by the U. S. Department of Education to recognize schools that reflect the goals of our Nation’s new education reforms for high standards and accountability; and, The program honors schools that are either academically WHEREAS, superior in their states or that demonstrate dramatic gains in student achievement; and, is one of the few WHEREAS, John S. Bradfield Elementary School schools nationally to be recognized as a ; “Blue Ribbon School” I, James H. Holmes III, Mayor of the City of NOW THEREFORE, University Park, Texas, do hereby proclaim Monday, November 14, 2005, as: JOHN S. BRADFIELD ELEMENTARY SCHOOL RECOGNITION DAY In the City of University Park, and join all of our residents in recognizing John S. Bradfield Elementary School, its staff, students and parents in this accomplishment. James H. Holmes III, Mayor WHEREAS, The No Child Left Behind - Blue Ribbon Schools Program has been established by the U. S. Department of Education to recognize schools that reflect the goals of our Nation’s new education reforms for high standards and accountability; and, The program honors schools that are either academically WHEREAS, superior in their states or that demonstrate dramatic gains in student achievement; and, is one of the few schools WHEREAS, Highland Park Middle School nationally to be recognized as a ; “Blue Ribbon School” I, James H. Holmes III, Mayor of the City of NOW THEREFORE, University Park, Texas, do hereby proclaim Monday, November 14, 2005, as: HIGHLAND PARK MIDDLE SCHOOL RECOGNITION DAY In the City of University Park, and join all of our residents in recognizing Highland Park Middle School, its staff, students and parents in this accomplishment. James H. Holmes III, Mayor WHEREAS, The No Child Left Behind - Blue Ribbon Schools Program has been established by the U. S. Department of Education to recognize schools that reflect the goals of our Nation’s new education reforms for high standards and accountability; and, The program honors schools that are either academically WHEREAS, superior in their states or that demonstrate dramatic gains in student achievement; and, is one of the few WHEREAS, Robert S. Hyer Elementary School schools nationally to be recognized as a ; “Blue Ribbon School” I, James H. Holmes III, Mayor of the City of NOW THEREFORE, University Park, Texas, do hereby proclaim Monday, November 14, 2005, as: ROBERT S. HYER ELEMENTARY SCHOOL RECOGNITION DAY In the City of University Park, and join all of our residents in recognizing Robert S. Hyer Elementary School, its staff, students and parents in this accomplishment. James H. Holmes III, Mayor AGENDA MEMO (01/03/2006 AGENDA) DATE: January 3, 2006 TO: Honorable Mayor and City Council FROM: Harry Persaud, MRTPI, AICP, Community Development Manager SUBJECT: Consideration of an Ordinance amending Chapter 3, Article 3.1600 “House Numbering”, Section 3.1603 “Method of Numbering” to provide for assignment of street addresses for residential buildings. Background/Analysis The proposed ordinance provides a framework for assigning street addresses to residential buildings as follows: A residential building that is constructed on a platted lot or tract shall have an official street address determined by the Community Development Manager in accordance with the following requirements: (i) The street number shall correspond to the numbers assigned to the street located in the “front of the building”. The street in the front of the building, for the purpose of this subsection, shall be the portion of the street adjacent to and abutting the required front yard ; setback of the building as required by the zoning regulations of the City of University Park and, (ii) The street number shall be assigned to the building on the street on which the U. S. mail receptacle and main entrance of the building are located.” The ordinance has been amended after City Council consideration and direction on December th 13. Recommendation Staff recommends approval Attachments: (1)Ordinance. ORDINANCE NO. ____________ AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE CODE OF ORDINANCES OF THE CITY OF UNIVERSITY PARK, AS HERETOFORE AMENDED, BY AMENDING CHAPTER 3, ARTICLE 3.1600 “HOUSE NUMBERING”, SECTION 3.1603 “METHOD OF NUMBERING” TO PROVIDE FOR ASSIGNMENT OF STREET ADDRESSES FOR RESIDENTIAL BUILDINGS; PROVIDING FOR THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF UNIVERSITY PARK, TEXAS: SECTION 1. That Chapter 3, Article 3.1600 “House Numbering”, Section 3.1603 “Method of Numbering”, of the Code of Ordinances, City of University Park, Texas, is hereby amended by adding subsection (d) to read as follows: ARTICLE 3.1600 HOUSE NUMBERING “ … Sec. 3.1603 Method of Numbering … (d) A residential building that is constructed on a platted lot or tract shall have an official street address determined by the Community Development Manager in accordance with the following requirements: (i) The street number shall correspond to the numbers assigned to the street adjacent to and abutting the front of the residential building. The front of the residential building, for the purposes of this subsection, shall be the portion of the building adjacent to and abutting the required front yard setback of the lot as required by the zoning regulations of the City of University Park; and, (ii) The U. S. mail receptacle and main entrance of the building shall be located in the front of the building.” SECTION 2. That all ordinances of the City of University Park in conflict with the provisions of this ordinance or the Code of Ordinances, as amended hereby, are hereby repealed. SECTION 3. That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance or the Code of Ordinances, as amended hereby, be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance or the Code of Ordinances as a whole, or any part or provision thereof, other than the part decided to be invalid, illegal or unconstitutional. SECTION 4. This ordinance shall take effect immediately from and after its passage, as the law and Charter in such cases provide. rd DULY PASSED by the City Council of the City of University Park, Texas, on the 3 day of January 2006. APPROVED: __________________________________ JAMES H. HOLMES III, MAYOR ATTEST: ___________________________________ NINA WILSON, CITY SECRETARY APPROVED AS TO FORM: ________________________________ CITY ATTORNEY (RLD/11/18-05) (79729) AGENDA MEMO (01/03/06 AGENDA) DATE: December 29, 2005 TO: Bob Livingston City Manager FROM: Jennifer Shell, P.E. Civil Engineer SUBJECT: Bid #06-02, Ornamental Metal Railing for the Turtle Creek Box Culvert (Project No. 43710) Main Miscellaneous CONSIDER APPROVAL OF BID AND AWARD OF A CONTRACT for the labor and materials furnished for Ornamental Metal Railing for the Turtle Creek Box Culvert, No. 43710. The budgeted account number is 42-42-4420, Project No. 43710-2300. Background. The originalTurtle Creek Box Culvert project included ornamental railing for a total cost of $129,564 for 496 linear feet (235 LF of curved section and 261 LF of straight section). Due to the high cost of this item, the design was modified to decrease the price. A revised cost was submitted by the Box Culvert Contractor for $86,333.00. Staff solicited bids on this item to ensure the lowest bid was found. Bid # 06-02 for the purchase and installation of ornamental metal railing was opened on November 10, 2005. This bid was posted on RFP Depot; 222 vendors received email or fax notice of the bid; 17 vendors viewed the bid. Two vendors returned bids by Thursday, December 1, 2005 at 10:00 A.M. United Fence Contractors, Inc. submitted the low bid of $62,848.50. This bid is $23,484.50 less than the revised cost submitted by the Box Culvert Contractor. Recommendation. Staff recommends City Council approval of Bid #06-02 and award of a contract to United Fence Contractors, Inc. in the amount of $62,848.50. Bid Results Attached – Bidtabs06-02.pdf AGENDA MEMO (01/03/06 AGENDA) DATE: December 29, 2005 TO: Bob Livingston City Manager FROM: Jennifer Shell, P.E. Civil Engineer SUBJECT: Final Payment for In-Place Recycling of Asphalt Pavements at Various Locations, Project No. 42694 Consent Agenda CONSIDER APPROVAL OF FINAL PAYMENT TO CUTLER REPAVING, INC. in the amount of $32,650.35 for work performed and materials furnished for the In-Place Recycling of Asphalt Pavements at Various Locations, Project No. 42694. On September 20, 2005, the City Council approved Cutler Repaving, Inc. for the above-referenced project. The Engineering Department has accepted the completed work. The actual work performed and the material furnished as provided by the contract brought University Park's project total to $415,927.95 (97% of the contract of amount). A payment in the amount of $32,650.35 has not been made to the Contractor for the retainage on this project. PROJECT COST HISTORY APPROVED CONTRACT AMOUNT 09/20/04 $426,800.00 The total cumulative value of the contract was decreased by $10,872.05, or 3% of the original contract. This occurred because quantities measured in the field were less than the estimated quantities. The streets included in this project are on the attached sheet. Agenda Memo Page 2 for Project No. 42694 Council Meeting January 3, 2006 Block From To 1 Boedeker - 6200-6300 SMU McFarlin 2 Boedeker - 7100-7400 Hanover Lovers 3 Durham - 6600-7000 Daniel Lovers 4 Airline - 6900-7200 Rankin Stanford 5 Hillcrest - 7000 Westminster Lovers 6 Dickens - 7100 Lovers Amherst 7 Thackery - 6700 Rosedale Milton 8 Caruth - 3200-3300 Hillcrest Airline 9 Colgate - 3200-3300 Hillcrest Airline 10 Marquette - 3200-3300 Hillcrest Airline 11 Hillcrest - 7900-8100 Caruth Centenary 12 Hillcrest - 8400 Villanova Northwest Pkwy 13 Villanova - 3800 Tulane Baltimore 14 Baltimore - 8100-8400 Marquette Northwest Pkwy 15 Wentwood - 3900 Pickwick Tulane 16 Pickwick - 7600-7700 Greenbrier Bryn Mawr 17 Amherst - 3700-4000 Preston Turtle Creek Blvd 18 Greenbrier - 4300-4400 Lomo Alto Douglas 19 Stanford - 4300-4400 Lomo Alto Douglas 20 Grassmere - 4300 Armstrong Douglas 21 Glenwick - 4400 Lomo Alto Armstrong 22 Emerson - 4400 Lomo Alto Armstrong 23 Lomo Alto - 6500 University Emerson 24 Armstrong - 6700-7000 Glenwick Alley so. of Lovers 25 Potomac - 4400-4500 Roland Armstrong 26 Armstrong - 5700-6100 Mockingbird Pkwy Stanhope 27 Stanhope - 4100 Douglas Preston 28 Preston - 5800-6400 City Limit No. Of McFarlin Alley 29 Westwick - 6200 Shannon Windsor 30 Shannon - 3900-4000 St. Andrews Shannon 31 St Andrews - 5900-6000 Normandy Westwick MINUTES #2523 CITY COUNCIL MEETING CITY OF UNIVERSITY PARK, TEXAS CITY HALL COUNCIL CHAMBERS TUESDAY, DECEMBER 13, 2005, 5:00 P.M. Mayor Blackie Holmes opened the meeting. Present were Mayor Pro Tempore Jim Roberts and Councilmembers Syd Carter, Kelly Walker and Harry Shawver. Also in attendance were City Manager Bob Livingston, City Attorney Rob Dillard and City Secretary Nina Wilson. AWARDS AND RECOGNITION PRESENTATION OF ACHIEVEMENT OF EXCELLENCE IN PROCUREMENT AWARD: Director of Finance Kent Austin presented Purchasing Agent Christine Green with the award, which University Park has won for the fifth consecutive year, one of only 43 cities to have achieved such status. PRESENTATION OF POLICE DEPARTMENT OFFICERS OF THE SECOND, THIRD AND FOURTH QUARTERS: Captain Leon Holman and Sergeant Bob Flood presented the awards to Officer Lita Snellgrove, Second Quarter and Officer Travis Vavra, Third Quarter. Officer Robert Keenan, Fourth Quarter, was out of the city and unable to attend. CERTIFICATE OF APPRECIATION: Fire Chief David Ledbetter presented a Certificate of Appreciation to the Curley Insurance Group for their donation to the University Park Fire Department for the purchase of equipment. RECOGNITION OF BOY SCOUTS: Twelve Boy Scouts introduced themselves and the badges upon which they were working. They also led in the pledge of allegiance at the beginning of the Council meeting. Mayor Pro Tem Roberts moved approval of the Consent Agenda. Councilmember Walker seconded and the vote was unanimous to approve the following: CONSENT AGENDA CONSIDER LICENSE AGREEMENT FOR RIGHT-OF-WAY, 3160 DANIEL: In March 2003, Southern Methodist University (SMU) installed a conduit underneath Daniel for a fiber optic line serving buildings located at 3000 and 3160 Daniel. A survey and plans for the conduit were provided to the City; however, a license agreement was never approved by Council before the conduit was installed. All of the work for the installation of the conduit and fiber line has been completed and a license agreement has been finalized. CONSIDER ORDINANCE AMENDING TIME REQUIREMENTS FOR SIDEWALK REPLACEMENT: This ordinance increases the number of days residents are given to repair defective sidewalks from 30 to 90 days. In addition, the Public Works Director may grant extensions to residents with good cause upon written request. ORDINANCE NO. 05/41 AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE CODE OF ORDINANCES OF THE CITY OF UNIVERSITY PARK, AS HERETOFORE AMENDED, BY AMENDING CHAPTER 3, ARTICLE 3.1400, SECTION 3.1416 “ISSUANCE OF NOTICE FOR REPAIR OF DEFECTIVE SIDEWALKS” TO PROVIDE FOR NINETY DAYS WRITTEN NOTICE AND AUTHORIZE THE DIRECTOR OF PUBLIC WORKS TO GRANT EXTENSIONS OF TIME FOR REPAIRS BASED ON GOOD CAUSE SHOWN; 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 FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE. CONSIDER PURCHASE OF PUBLIC SAFETY MAPPING SOFTWARE: This hardware and software is required to add a mapping capability to the HTE Public Safety systems that were installed in late 1999. Since that time, the City has phased in software modules to support mobile data to the Police and Fire vehicles, mobile field accident and incident reporting, and arrest photo imaging. The next planned phase of the Public Safety system enhancement is the implementation of a mapping capability to support map queries of crimes and dispatch data, automatic vehicle locators, and ultimately 911 locators for calls from cell phones. The system requires a new Dell file server and the street centerline base map, which will be provided by the City’s Geographic Information System (GIS) Coordinator. The purchase of this equipment and software totals $114,683.25. CONSIDER PURCHASE OF PICK-UP TRUCKS FOR WAREHOUSE AND EQUIPMENT SERVICES DIVISIONS: The Chevrolet ½ Ton Pick-Up Extended Cab for the Warehouse Parts Runner is $14,749, and the Chevrolet ¾ Ton Service Truck for Equipment Services is $21,573 for a total of $36,322. CONSIDER ANNUAL CONTRACT FOR CONCRETE SAND, PEA GRAVEL, LOAM AND LANDSCAPING SOILS: Matbon, Inc. submitted the low bid on concrete sand and pea gravel. Based on last year's sand and gravel expenditures, this award is expected to be around $33,000. Turf Materials, Inc. submitted the low bid on sandy loam. Based on last year's sandy loam orders, this award is expected to be around $7,300. These materials are used by the Street and Park Departments. The award of the landscaping soils portion of the bid was postponed so the Park Department could visit the low bidders’ sites and make a determination on the quality of their products. CONSIDER APPROVAL OF CITY COUNCIL MEETING MINUTES: For November 8, 2005. MAIN AGENDA PUBLIC HEARING FOR ORDINANCE AMENDING PLANNED DEVELOPMENT DISTRICT NO. 1, 6900 SNIDER PLAZA: The site is currently occupied by a Texaco gas station. Mayor Holmes opened the public hearing. Mark Jennings of 3J Designs presented plans for a drive-thru bank, proposing removal of the existing pumps and underground tanks to accommodate drive thru and ATM lanes with five (5) parking spaces. A traffic study conducted by DeShazo, Tang and Associates recommended that on-street parking be prohibited on Rankin between the driveway and the handicapped parking space. Mayor Holmes requested that the Texaco sign be left up since it is part of the City’s history and culture. Mr. Jennings said the bank would take that under consideration. As there were no more comments, Mayor Holmes closed the public hearing. Councilmember Shawver moved approval of the site plan, which was approved by the Planning and Zoning Commission. Councilmember Carter seconded, and the vote was unanimous to amend Planned Development District No. 1, 6900 Snider Plaza. ORDINANCE NO. 05/42 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 AMEND PLANNED DEVELOPMENT DISTRICT NO. 1 (PD- 1-R) FOR THE PROPERTY COMMONLY KNOWN AS 6900 SNIDER PLAZA, UNIVERSITY PARK, TEXAS; APPROVING AN AMENDED SITE PLAN; PROVIDING SPECIAL CONDITIONS; 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. PUBLIC HEARING FOR ORDINANCE AMENDING SECTION 28-107, COMPREHENSIVE ZONING ORDINANCE, FENCE REQUIREMENTS, UC, O, GR, RC, SC, C AND PD DISTRICTS: Southern Methodist University requested an amendment to the City’s Comprehensive Zoning ordinance to allow a fence height not to exceed eight (8) feet in the side and rear yards of fraternity and sorority houses. The ordinance provides for a fence height not to exceed seven (7) feet “except that on a lot exceeding 22,000 square feet in area, located in a UC-2 or UC-3 district, and used primarily for residential purposes, a fence not exceeding eight feet (8’) in height may be erected in a side or rear yard.” Mayor Holmes opened the public hearing. Community Development Manager Harry Persaud made a Power Point presentation. As there were no further comments or questions, Mayor Holmes closed the public hearing. Mayor Pro Tem Roberts moved approval of the ordinance amending Section 28-107 of the Comprehensive Zoning Ordinance to provide fence requirements in the UC, O, GR, RC, SC, C and PD Districts. Councilmember Walker seconded, and the vote was unanimous to approve the ordinance. ORDINANCE NO. 05/43 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 28-107 TO PROVIDE FENCE REQUIREMENTS IN THE UC, O, GR, RC, SC, AND PD DISTRICTS; REPEALING 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. CONSIDER ANN KATHRYN KERWIN MEMORIAL SCULPTURE: A memorial sculpture has been proposed to honor Ann Kathryn Kerwin, daughter of Colin and Barbara Kerwin. The proposed location of the sculpture is at the western botanical bed in Caruth Park, south of the tennis courts. The sculpture will cost approximately $40,000. Funding is provided by both the Ann Kathryn Kerwin Memorial Fund and the University Park Civic Foundation - Kerwin Memorial. Park Director Gerry Bradley made a Power Point presentation showing the sculpture and exact location. Councilmember Walker moved approval of the project. Councilmember Carter seconded, and the vote was unanimous to approve the Ann Kathryn Kerwin Memorial Sculpture. CONSIDER ORDINANCE TO ABANDON STREET RIGHT-OF-WAY ADJACENT TO 7417 TURTLE CREEK BOULEVARD: Ms. Anne Oliver requested the purchase of an 11-foot wide street right-of-way along her Turtle Creek Boulevard frontage. No utilities will be impacted by the proposed sale. The fair market value is $74,372.08. Councilmember Shawver moved approval of the ordinance to abandon the street right-of-way adjacent to 7417 Turtle Creek Boulevard. Mayor Holmes seconded, and the vote was unanimous to approve the ordinance. ORDINANCE NO. 05/44 AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, ABANDONING A PORTION OF THE RIGHT-OF-WAY OF TURTLE CREEK BOULEVARD AS MORE PARTICULARLY DESCRIBED IN EXHIBIT “A”, TO THE ABUTTING OWNERS, JAMES VANHORN OLIVER AND ANNE MARTIN OLIVER, IN CONSIDERATION OF THE PAYMENT OF $74,372.08 TO THE CITY; PROVIDING FOR THE FURNISHING OF A CERTIFIED COPY OF THIS ORDINANCE FOR RECORDING IN THE REAL PROPERTY RECORDS OF DALLAS COUNTY, TEXAS, AS A QUITCLAIM DEED OF THE CITY; AND PROVIDING AN EFFECTIVE DATE. CONSIDER ORDINANCE TO ABANDON STREET RIGHT-OF-WAY, INTERSECTION DUBLIN AND DYER TO SOUTHERN METHODIST UNIVERSITY: During the preparation of a replat of the block in which two new fraternity houses have been constructed, R.L. Goodson discovered that a small triangular parcel within the Dublin-Dyer intersection had not been included in the abandonment ordinance for the block. Southern Methodist University requested purchase of the right-of-way, a 482 square foot parcel, for $22,316.60. No utilities will be impacted by the proposed sale. Mayor Pro Tem Roberts moved approval of the ordinance to abandon the street right-of-way in the intersection of Dublin and Dyer for $22,316.60. Councilmember Carter seconded, and the vote was unanimous to approve the ordinance. ORDINANCE NO. 05/45 AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, ABANDONING A 482 SQUARE FOOT PORTION OF THE RIGHT-OF-WAY OF DUBLIN STREET/DYER STREET AS MORE PARTICULARLY DESCRIBED IN EXHIBIT “A”, TO THE ABUTTING OWNER, SOUTHERN METHODIST UNIVERSITY, IN CONSIDERATION OF THE PAYMENT OF $22,316.60 TO THE CITY; PROVIDING FOR THE FURNISHING OF A CERTIFIED COPY OF THIS ORDINANCE FOR RECORDING IN THE REAL PROPERTY RECORDS OF DALLAS COUNTY, TEXAS, AS A QUITCLAIM DEED OF THE CITY; AND PROVIDING AN EFFECTIVE DATE. CONSIDER DEVELOPMENT AGREEMENT WITH SOUTHERN METHODIST UNIVERSITY EXTENDING USE OF THE TEMPORARY ATHLETIC FACILITY: Southern Methodist University is requesting an extension to use its Temporary Athletic Facility until August 2006. Currently, the Mechanical Engineering Department is occupying the building, but will move into the Embry Engineering Building when completed in July 2006. The Planning and Zoning Commission voted unanimously to recommend approval. Councilmember Shawver moved approval of the development agreement with Southern Methodist University extending the use of the Temporary Athletic Facility. Councilmember Walker seconded, and the vote was unanimous to approve the development agreement. CONSIDER DEVELOPMENT AND EXCHANGE AGREEMENT FOR CITY-OWNED PROPERTY AT 4419 WORCOLA: This item was continued to the next City Council meeting on January 3, 2006. CONSIDER BID AND AWARD OF CONTRACT TO SYB CONSTRUCTION COMPANY, FOR UTILITY IMPROVEMENTS AT TURTLE CREEK BOULEVARD AND BALTIMORE DRIVE, PROJECT NO. 48500: Approval was requested for labor and materials furnished for $1,396,602. The locations to be included in this project are Turtle Creek Boulevard from Lovers Lane to Vassar Road and Baltimore Drive from Lovers Lane to Turtle Creek Boulevard. Councilmember Walker moved approval of the bid and award of contract to SYB Construction Company. Mayor Pro Tem Roberts seconded, and the vote was unanimous to approve the contract for utility improvements for Project No. 48500. CONSIDER CHANGE ORDER NO. 3, TURTLE CREEK BOX CULVERT, CITY HALL EXPANSION,PROJECT 43710: The City contracted with Jeske Construction for silt removal in Williams Park Pond. An exact field measurement could not be made at first because of conditions within the creek. Once the creek was drained for construction, the actual amount of silt removal was 9,336 cubic yards. This increased the cost for silt removal by $61,382.40. Mayor Holmes moved approval of the Change Order. Mayor Pro Tem Roberts seconded, and the vote was unanimous to approve Change Order No.3, Project 43710. CONSIDER CHANGE ORDER NO. 1, CURB AND GUTTER CONCRETE REPAIRS, VARIOUS LOCATIONS, PROJECT 42991: The Public Works Director has received numerous complaints for curb and gutter replacement. The following locations are proposed: 4100 block Normandy from Douglas to Preston; 4100 block Shenandoah from Douglas to Preston; 3900-4000 blocks Shannon from St. Andrews to Shannon; 3600 block Stanford from Turtle Creek to Thackery; 4300-4400 blocks Amherst from Loma Alto to Douglas; 4200-4400 blocks Southwestern from Loma Alto to Douglas; 3300 block Westminster from Hillcrest to Athens, bringing the total contract amount to $2,110,142.82. Councilmember Shawver moved approval of the Change Order. Councilmember Walker seconded, and the vote was unanimous to approve Change Order No. 1 for Project 42991. CONSIDER ORDINANCE AMENDING CHAPTER 3, ARTICLE 3.1600 “HOUSE NUMBERING”, SECTION 3.1603 “METHOD OF NUMBERING” TO PROVIDE FOR ASSIGNMENT OF STREET ADDRESSES FOR RESIDENTIAL BUILDINGS: This item was continued to the next City Council meeting on January 3, 2006. CONSIDER ORDINANCE AMENDING CHAPTER 2, CODE OF ORDINANCES, SECTION 2.606, DOGS ON SCHOOL PROPERTY: This item was continued to the next City Council meeting on January 3, 2006. CONSIDER POLICY, PROCEDURES AND APPLICATION FORM FOR PUBLIC FACILITY NAMING: The purpose in establishing the Public Facility Naming Committee is to support the review and recommendation of potential individuals, groups or events worthy of public facility naming. The committee’s first goal is to develop a policy and procedure guideline as well as an application form to aid in the evaluation of potential applicants. The policy and procedure document and also the application form will be on the City Web site for potential nominations. CONSIDER DESIGN CONTRACT FOR CITY ENTRANCE MARKER PROGRAM: Director of Parks Gerry Bradley made a Power Point presentation and requested Council approve for a design contract with Gary Olp of GGOA Architects in the amount of $7,750. Mayor Holmes moved approval of the contract. Councilmember Shawver seconded, and the vote was unanimous to approve a design contract for City entrance markers with GGOA Architects. CONSIDER ORDINANCE AMENDING BUDGET TO APPROVE ENCUMBRANCES FROM PREVIOUS FISCAL YEAR: An ordinance to amend the FY2006 budget is needed to carry forward $857,507.25 encumbered at the end of FY2005, and to approve specific funding requests not included in the adopted FY2006 budget. Mayor Pro Tem Roberts moved approval of the ordinance. Councilmember Walker seconded, and the vote was unanimous to approve the ordinance amending the budget to approve encumbrances from the previous fiscal year. ORDINANCE NO. 05/46 AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE 2005- 2006 FISCAL YEAR BUDGET, ORDINANCE NO. 05/31, TO CARRY FORWARD ENCUMBRANCES FROM THE 2004-2005 FISCAL YEAR BUDGET, INCLUDING TOTAL GENERAL FUND ENCUMBRANCES OF $618,661.47, UTILITY FUND ENCUMBRANCES OF $235,845.78, AND SANITATION FUND ENCUMBRANCES OF $3,000.00; TO APPROPRIATE $65,600 FROM THE GENERAL FUND UNRESERVED FUND BALANCE BY INCREASING EXPENDITURES $66,900 AND INCREASING REVENUES $1,300; AND PROVIDING AN EFFECTIVE DATE. CONSIDER BID #05-22, TRAFFIC SIGNAL VIDEO DETECTION/RADIO INTERCONNECT SYSTEM: The Traffic Division is purchasing a UniTrak Video Vehicle Detection System, which uses closed circuit cameras at street intersections to detect vehicles on the roadway and adjust the timing of the traffic light according to the number of vehicles traveling in each direction in order to improve the flow of traffic overall. The radio interconnect portion of the system allows the Traffic Division to monitor and control the video detection system remotely. The total to Consolidated Traffic Controls, Inc. is $418,997. Councilmember Carter moved approval of Bid #05-22 for a Traffic Signal Video Detection/Radio Interconnect System. Mayor Holmes seconded, and the vote was unanimous to approve Bid #05-22. CONSIDER UIL LETTER IN SUPPORT OF POLICY CHANGE FOR FOOTBALL CHAMPIONSHIP GAMES: In an attempt to assure that future state championship games are held in stadiums that can accommodate the 20-40,000 people who attend such contests, a letter has been drafted for distribution to University Interscholastic League officials. The letter urges the group’s Legislative Council to adopt an amendment in procedures requiring title games throughout the state be played at venues with a seating capacity of at least 30,000. Councilmember Shawver moved that authorization be given to the mayor to sign the letter. Councilmember Carter seconded, and the vote was unanimous to approve the letter supporting the policy change. CONSIDER INSTALLATION OF SIDEWALK, WEST SIDE, 7800 BLOCK TURTLE CREEK BOULEVARD: Assistant to the Public Works Director Robbie Corder made a Power Point presentation showing the proposed area. Dr. James Cochran, 3500 Greenbrier, spoke about his concern on the installation of the sidewalk and the resulting effect on his property. His preference would be no sidewalk. Council decided to continue this item until the City Council meeting on January 3, 2006. OVERVIEW FOR FIRE DEPARTMENT’S STRATEGIC PLANNING PROCESS: Chief David Ledbetter made a Power Point presentation. The strategic planning process will include identifying the level of service the Council wants for the City. Deputy Fire Chief Rick Black gave an overview of how the process will be conducted. There will be a meeting of the Council and residents on January 12, 7:00 p.m. in the Council Chambers at City Hall. There being no further business, the meeting was adjourned. PASSED AND APPROVED this 3rd day of January 2006. James H. Holmes III, Mayor ATTEST: Nina Wilson, City Secretary AGENDA MEMO (01/03/06 AGENDA) DATE: December 29, 2005 TO: Honorable Mayor and City Council FROM: Robbie Corder, Assistant to the Director of Public Works SUBJECT: TXU Transmission Line Citizen Steering Committee BACKGROUND: TXU has an existing 138KV transmission line connecting the Greenville substation on the east side of Central Expressway with the Lomo Alto substation on the west side of the city. The existing poles for the transmission line are in poor condition, and TXU has proposed replacing the poles with eighty-five foot (85’) metal poles along the route between the Stanford/Amherst alley. TXU is in the preliminary stages of the design, and the representatives indicated that alternatives to the metal poles might exist for the transmission line. ITEM: th On December 20, TXU representatives met with City staff and approximately sixty concerned residents living along the Amherst/Stanford alley. TXU agreed to work with a citizen steering committee to address the numerous concerns that residents presented at the meeting. Several residents have requested to participate on the committee, and staff is requesting Council appoint members to the committee to begin working with TXU. The following are the names of some suggested committee members: Joyce Hanson 2829 Stanford Leslie McCall 3216 Stanford Ken Hamilton 3241 Stanford Lance Etcheverry 3140 Amherst David Howell 3125 Amherst RECOMMENDATION: Staff recommends that the City Council appoint residents to serve on a joint CUP/TXU/resident steering committee. ATTACHMENTS: 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\AM TXU Committee Steering Committee 01 03 06.doc 3:35 PM 12/29/05 AGENDA MEMO (01-03-06 AGENDA) DATE: December 29, 2005 TO: Bob Livingston City Manager FROM: Gene R. Smallwood, P.E. Director of Public Works SUBJECT: Consider Development and Exchange agreement for City-owned property at 4419 Worcola, in Dallas. Background. Consideration of the development agreement was deferred at the December Council meeting because of the need for clarification on several issues. City staff met with the developer and the following changes have been made to the agreement: ? The developer agrees to undertake all of the redevelopment costs if (after all the costs are disclosed) the City opts out of the agreement; ? The period in which the developer will have to delineate plans and costs for the proposed building addition to the Peek Service Center has been changed from ninety (90) days to one-hundred fifty (150) days; ? The clause providing the developer to retain an “air easement” above part of the property deeded to the City has been deleted from the development agreement. As previously stated, staff will have an additional appraisal to determine fair market value for both parcels (CUP and developer properties). Staff would prefer to have all of the former “Shamburger Lumber” property in trade for the 4419 Worcola (CUP) parcel; however, the developer indicated on several occasions that they were not amenable to that offer. Recommendation. Staff recommends City Council approval of the Development and Exchange Agreement with Prescott Realty. DEVELOPMENT AND EXCHANGE AGREEMENT Agreement THIS DEVELOPMENT AND EXCHANGE AGREEMENT (this “”), dated Effective Date as of the ____ day of ______________, 2006 (the “”), is between PRESCOTT Developer REALTY GROUP, INC., a Texas corporation (“”), and THE CITY OF UNIVERSITY PARK, a municipal corporation organized under the laws of the State of Texas Cityparties (“”). Developer and City are herein sometimes collectively called the “.” RECITALS A. City currently owns those certain tracts or parcels of real property and the improvements thereon located in Dallas, Dallas County, Texas, as more particularly described as UP Property follows (collectively, the “”): (i) the tract or parcel bordered (a) to the West by the Dallas Area Rapid DART Transit (“”) light rail line serving Plano, Texas, (b) to the South by the DART light rail line serving Garland, Texas, and (c) to the East by Worcola Avenue, upon which various parking improvements are situated UP ExchangeProperty (the “ ”), which UP Exchange Property is more Exhibit A particularly described in attached hereto and made a part hereof by this reference; (ii) the tract or parcel bordered (a) to the West by Worcola Avenue, (b) to the South by the DART light rail line serving Garland, Texas, and (c) to the East by Greenville Avenue, upon which various improvements are situated UP Peek CenterProperty (the “ ”), which UP Peek Center Property is Exhibit B more particularly described in attached hereto and made a part hereof by this reference; and (iii) the tract or parcel bordered (a) to the West, South and North by the Developer Exchange Property (as defined herein), and (b) to the East by Greenville Avenue, upon which a City storage facility and related parking UP Storage Property improvements is situated (the “”), which UP Storage Exhibit C Property is more particularly described in attached hereto and made a part hereof by this reference. B. Developer and/or MC Townhomes I LP, a Delaware limited partnership and an MC Townhomes affiliate of Developer (“”), currently own those certain tracts or parcels of real property and the improvements thereon located in Dallas, Dallas County, Texas (collectively, the Developer Exchange PropertyExhibit D “”), as more particularly described in attached hereto and made a part hereof by this reference. C. Pursuant to the terms thereof, Developer shall demolish the existing improvements on the Developer Exchange Property and the UP Storage Property and construct a new 15,000 square foot (more or less) structure including a two, three, or four level parking structure and associated storage and general utility space (together with all related improvements “Improvements”) and amenities, collectively the , which will be utilized by City in connection with the existing improvements located on the UP Peek Center Property (the Developer 1 Exchange Property, UP Storage Property and Improvements being hereinafter referred to, “Project” collectively, as the ). D. Once construction of the Improvements has been Substantially Completed (hereinafter defined), City desires to convey the UP Exchange Property to Developer and, in exchange therefor, Developer desires to convey the Developer Exchange Property (to the extent hereinafter provided) and its interest in the Improvements to City. E. City and Developer desire to execute and enter into this Agreement to set forth their understandings with regard to the foregoing. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged by the parties, Developer and City agree as follows: ARTICLE I APPOINTMENT AND AUTHORITY OF DEVELOPER Undertaking by Developer 1.1.. Developer shall perform and have the right and obligation to carry out all development and construction management services for the Project as required by, and subject to, the terms and conditions of this Agreement. Status of Developer 1.2.. Developer is, and shall at all times during the term of this Agreement be, an independent contractor and not an agent or employee of City. All contracts and agreements executed or entered into by Developer in connection with the performance of its duties and obligations under this Agreement shall be contracts and agreements in the name of Developer, unless otherwise provided in this Agreement or otherwise agreed to in writing by City. No Partnership or Joint Venture 1.3.. Nothing contained in this Agreement shall constitute or be deemed or construed to create a partnership or joint venture between City and Developer. ARTICLE II PRE-CONSTRUCTION MATTERS Title and Survey; Initial Period 2.1.. a.Title Commitment and Documents. Within twenty (20) days after the Effective Date, Developer will cause the following to be delivered to Developer and City: Title Commitment (i)a current Commitment for Title Insurance (“”) Title Company issued by Republic Title of Texas, Inc. (the “”), setting forth the state of title to each of the UP Exchange Property, the UP Storage Property and the Developer Exchange Property; and 2 (ii)true, correct and legible copies of all instruments that create or evidence all liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral or otherwise), conditions, restrictions, options, conditional sale contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights of way, encroachments, overlaps or other outstanding claims, Title Exceptions interests, estates or equities of any nature (collectively, the “”), which affect title to each of the UP Property and the Developer Exchange Property. b.Survey. Within twenty (20) days after the Effective Date, Developer will cause to be prepared and delivered to Developer and City a currently dated as-built, on-the- SurveySurveys ground, survey (individually “” and collectively “”) of each of the UP Exchange Property, the UP Storage Property and the Developer Exchange Property, prepared by a surveyor licensed by the State of Texas. c.Initial Period. City and Developer shall each have a period of one hundred fifty (150) days from the Effective Date or such longer period of time as City and Developer Initial Period shall mutually agree to in writing (the “”) in which to review the Title Commitment, Title Exceptions and Survey for the UP Exchange Property, the UP Storage Property or the Developer Exchange Property, as appropriate, to inspect the condition of the UP Property or the Developer Exchange Property, as appropriate, and to conduct an examination of same and to review such other matters as City or Developer deem necessary (including, without limitation, a physical inspection, an appraisal, an environmental audit and a geotechnical inspection). City and Developer will coordinate with one another in curing any adverse title matters reflected in the Title Commitments, Title Exceptions and Surveys prior to the expiration of the Initial Period. At Closing, all matters reflected in the Title Commitment, Title Exceptions and Surveys with respect to the UP Exchange Property, the UP Storage Property and the Permitted Exceptions Developer Exchange Property shall be deemed “” as respectively applicable to same. d.Access to Property. To facilitate the inspections contemplated in Section 2.1(c), City will provide Developer access to the UP Property, and Developer will provide City access to the Developer Exchange Property. City and Developer will conduct any physical inspections, tests, examinations and studies only as reasonably required and will use reasonable efforts to minimize interference with the operations of the other party at its respective properties. e.Indemnity. City and Developer agree to indemnify and hold the other party harmless from and against any liens, claims, or damages including, without limitation, any and all demands, actions or causes of action, assessments, losses, costs, liabilities, interest, penalties and reasonable attorneys’ fees suffered or incurred by City or Developer as a result of the negligence or willful misconduct of the other party in the conduct of the inspections contemplated in Section 2.1(c); provided, however, City and Developer shall have no liability for any diminution in the value of the other party’s property as a result of matters or conditions identified during its inspections. City and Developer will, to the extent practicable in light of the pendency of the Project, repair or cause to be repaired any damages of a material nature caused by such party in its review and inspections. Notwithstanding anything set forth herein to the contrary, the indemnification obligations of City and Developer in this Section 2.1(e) will survive the termination of this Agreement for any reason. 3 f.Land Value. Prior to the expiration of the Initial Period, Developer and City shall agree upon the appraisal value of the UP Exchange Property and the Developer Exchange Property for the purposes of Section 7.2 hereof. Architect 2.2.. Merriman & Associates, or other architectural firm that is mutually agreed upon by Developer and City, shall be selected as the architect for the Project (the ArchitectArchitect “”). Developer shall negotiate the form of contract with the Architect (the “ Contract ”) subject to reasonable review and approval by City. The Architect Contract shall not be amended or altered in any material respect without the prior approval of City. Architect will perform the following specific services in connection with the Project: a.Architect will have exclusive authority and responsibility to prepare the Plans and Specifications (hereinafter defined), samples and equipment data for compliance with applicable laws and regulations and satisfaction of design integrity, which may be required for the initiation, prosecution, construction and completion of the Project. b.Architect will have primary responsibility to issue such drawings, instructions and data as may be required to interpret properly the Plans and Specifications, if so required. c.Architect will have primary responsibility, in accordance with the terms and conditions of the Architect Contract, to review, evaluate and approve all applications for payment submitted by the General Contractor (hereinafter defined) and forward said applications for the review by Developer and City, and to ensure that construction of the Project has been conducted in a good and workmanlike manner in accordance with the Plans and Specifications. Developer Services 2.3.. Prior to commencement of construction of the Improvements, Developer shall also provide the following services to City: a.Developer shall interview, negotiate with and, after consultation with and approval of City, select and engage all other design and development consultants (collectively, Consultants the “”) for the Project, including space planners, landscape architects, civil, soils, mechanical, electrical and plumbing engineers, and telecommunications, acoustical, curtain wall, lighting, art and graphic design consultants. b.Developer shall manage and coordinate the Consultants regarding the Project and coordinate Architect’s preparation of conceptual design criteria, and the Plans and Specifications therefor, including matters relating to site planning, engineering, building shell, public space and landscape design, traffic and circulation matters. c.Developer shall initiate the planning and coordinate with City and Architect the receipt of all necessary public and private approvals for the Project, including city planning, applicable building codes, public works, any applicable architectural review committee, and building permit approvals (including, without limitation, as provided in Section 4.6 hereof). 4 d.Prior to the expiration of the Initial Period, City and Developer shall agree upon a Preliminary Budget (herein so called), which includes, among other matters, fixing the number of levels of the parking structure, and allowances for line items as designated therein. The agreed upon Preliminary Budget shall be initialed by the parties and attached hereto as Exhibit E on or prior to the expiration of the Initial Period. Developer and City shall further update and refine the Preliminary Budget periodically as the Architect prepares design, development and construction documents. The allowances set forth in the Preliminary Budget shall not be final until 15 days prior to the expiration of the Initial Period and then only to the extent set forth in the Approved Budget (hereinafter defined). Developer shall provide preliminary evaluation of the Preliminary Budget, prepare preliminary estimates of construction costs for early schematic designs, and coordinate with City in achieving a mutually agreed upon development program, budget requirements and other design parameters. Developer shall further provide cost evaluations of alternative materials and systems as requested. e.Developer shall review designs during their development and coordinate with City regarding on-site use and improvements, selection of materials, building systems and equipment and methods of Project delivery. f.With the cooperation of Architect and the Consultants, Developer shall Project prepare and submit for City’s approval an estimated critical path schedule (the “ Schedule ”) that coordinates and integrates Developer’s services and City’s responsibilities and needs with anticipated construction schedules. The Project Schedule shall include a detailed program for the design and construction of the Project including procurement, fabrication and delivery dates for all major materials and equipment. The Project Schedule shall cover all phases of the work required pursuant to the General Contract (as defined herein) and shall provide for the timely and proper execution of such work. The Project Schedule will indicate the established dates for the start and completion of all phases of the Project, including the date for Substantial Completion (or Substantially Completed, as hereinafter defined), and may be revised subject to the approval of City and Developer. The Project Schedule will be completed as soon as reasonably practicable after the execution of the General Contract. Developer shall provide City a monthly progress report at the end of each month detailing the amount of work on the Project that has been completed in relation to the Project Schedule. g.No space planning, design or finish-out evaluations of the Project shall be required as the Improvements shall be delivered in shell condition which shall include electricity, lighting fixtures, and partitions necessary for use as storage space. Plans and Specifications 2.4.. Prior to the expiration of the Initial Period, City and Developer shall agree upon the Design Criteria (herein so called), the Site Plan (herein so called) and the Building Elevations (herein so called) for the Project. The agreed upon Design Criteria, Exhibit Site Plan and Building Elevations shall be initialed by the parties and attached hereto as FExhibit GExhibit H , and , respectively, on or prior to the expiration of the Initial Period and Preliminary Plans are hereinafter collectively referred to as the “.” The Preliminary Plans shall form the basis of the Plans and Specifications and the Preliminary Budget referenced in Section 2.3(d) hereof. The final plans and specifications for the Project shall be approved by Developer Plans and City. Such approved final plans and specifications shall be referred to herein as the “ and Specifications .” 5 General Contractor 2.5.. Prior to the expiration of the Initial Period, Developer will choose a list of general contractors who are eligible to perform the primary construction services for the Improvements, and shall request that such general contractors submit a bid for the General Contract. After receiving bids, Developer shall select the general contractor to work on the Project. The selection of the general contractor shall not be based solely upon the respective General bid submitted. Following selection, Developer shall enter into a contract (the “ ContractGeneral Contractor ”) with such general contractor (the “”) containing specific terms (such as the contract sum, date of substantial completion, amount of retention and payment schedule) in any material respect consistent with the criteria described in this Article II. The General Contract shall not be amended or altered without the prior approval of both City and Developer. Other Contractors 2.6.. Developer shall have the right to engage contractors other than the Architect or the General Contractor upon such terms and conditions as City and Developer shall deem appropriate. Project Contracts 2.7.. The General Contract, the Architect Contract, the Consultants’ agreements and any and all subcontracts and purchase orders entered into by Project Developer pursuant to this Agreement are collectively referred to herein as the “ Contracts .” ARTICLE III DEVELOPMENT BUDGET In General 3.1.. Developer shall prepare and submit to City for its approval a budget Approved Budget (the “”) that will include final provisions for all costs and expenses to design, construct and complete the Improvements and all other aspects of the Project in accordance with the Plans and Specifications and this Agreement. The Approved Budget shall include, among other things, all Consultants’ costs and fees, all hard and soft costs, testing costs, feasibility costs, permit and license fees, title insurance premiums, insurance costs, survey expense and legal fees. The Approved Budget may be modified from time to time with the prior written consent of City. Line Item Allocations 3.2.. Developer shall be entitled to reallocate amounts from any line item in the Approved Budget to any other line items(s) of the Approved Budget so long as such reallocation does not increase the Approved Budget or modify the Plans and Specifications. ARTICLE IV CONSTRUCTION Generally 4.1.. Developer shall obtain or cause to be obtained, all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals, which may be required to permit the construction of the Improvements and to permit the use of the Project. Construction Duties 4.2.. During construction of the Improvements, with due reliance upon and assistance from the Architect, the General Contractor and the Consultants, Developer shall supervise, manage, coordinate and direct the performance of the construction of 6 the Improvements by: (a) providing direction to the General Contractor; (b) endeavoring to guard against any defects or deficiencies in the work of any contractor(s) discovered or suspected by Developer; (c) advising the General Contractor of any material omissions, substitutions, defects, or deficiencies noted in the work of any contractor, subcontractor or materialman; (d) advising the General Contractor and the Architect of any work or materials that do not, in Developer’s view, materially conform to the appropriate Project Contracts; (e) causing the General Contractor to correct any defective or non-conforming work known, or which in the exercise of reasonable efforts should have been known, by Developer; (f) causing the Architect to prepare such reports as may be required for the use of any public agency; (g) maintaining construction accounts for the Improvements; (h) cause the General Contractor to coordinate the installation of the utilities with the appropriate utility companies; and (i) performing such other additional management functions as are commercially appropriate to cause development and construction activities to proceed in accordance with the Plans and Specifications and the Project Schedule. Staging Area 4.3.. City shall provide to Developer access to and a temporary easement and right-of-way over and across the Northeastern portion of the UP Exchange Staging Area Property (the “”) for the purpose of staging construction materials and personnel during construction of the Improvements; provided, however, Developer agrees not to unreasonably interfere with City’s operations at the UP Exchange Property. Agreement Regarding UP Storage Property 4.4.. All existing improvements on the UP Storage Property shall be demolished. City shall have no access to the UP Storage Property during construction of the Improvements other than in connection with reviewing the progress of construction of the Improvements. City shall subordinate its fee interest in the UP Storage Property to the lien or liens of any Collateral Assignee (as defined herein). City shall execute, acknowledge (if necessary), and deliver, or cause to be executed, acknowledged (if necessary), and delivered, any and all documents or agreements as may be reasonably required pursuant to this Section 4.4. Release of Easements 4.5.. The parties shall cooperate with one another to cause the release or abandonment of the existing easements and rights-of-way across the UP Property and Developer Exchange Property held by the City of Dallas, Dallas County and the Texas Department of Transportation along Greenville Avenue, and further agree to execute, acknowledge (if necessary), and deliver, or cause to be executed, acknowledged (if necessary), and delivered, any and all documents or agreements as may be reasonably required for same. As the existing easements burden portions of the UP Property and adjacent real property owned by MC Townhomes, the total release costs shall be allocated between Project Costs and those allocated to MC Townhomes on the basis of the relative lineal feet released. The allocated Release Costs portion of the costs and expenses of such efforts (collectively “”) shall be included in Project Costs. Special Use Permit 4.6.. The parties acknowledge that City’s use of the UP SUP Exchange Property is current permitted under a special use permit (“”) granted by the City of Dallas. Developer shall use reasonable efforts to cause the City of Dallas to issue a new SUP for the UP Peek Center Property, the UP Storage Property and the Developer Exchange Property, on or before the Closing, subject to the current procedures and requirements of the City of Dallas. City shall cooperate with Developer in such endeavor and shall execute, acknowledge (if 7 necessary), and deliver, or cause to executed, acknowledged (if necessary), and delivered, any and all documents or agreements as may be reasonably required for same. The costs and SUP Costs expenses of such efforts (collectively “”) shall be included in Project Costs. Substantial Completion of the Improvements Defined 4.7.. For purposes of this Substantial Completion Agreement, “” of the Improvements shall mean the date on which all of the following conditions shall have been satisfied: (a) all Improvements, including all equipment, fittings and fixtures required to be installed by the Plans and Specifications have been substantially completed and installed in accordance with the Plans and Specifications, except for “punch list” items described in Section 4.9 below; direct connection has been made to the Improvements from all public utilities; pipes and conduits for water, electricity and gas shall be in adequate size and connected to the source of supply and in operable condition for all required needs; storm drainage and sanitary sewer shall be adequate; access to and from the Improvements by trucks, cars and pedestrians shall be available; and each of the items referred to in this clause (a) are so certified to City and Developer by a certificate from the Architect; and (b) a certificate of occupancy has been issued on the Improvements from the appropriate governmental authority to City. For purposes of this Agreement, a certificate of occupancy shall be deemed to have been issued when Developer is in receipt of a final base building inspection certificate for the building shell. Final Completion of the Improvements 4.8.. At the time the Architect issues its certificate of substantial completion, the Architect shall prepare and deliver to City and Developer a “punch list” of items required for final completion. The later of the date upon which all “punch list” items are completed, as certified by the Architect, or the date on which the permanent certificate of occupancy is issued, shall constitute the date of final completion of the Final Completion Improvements (“”). Items to be Delivered Upon Final Completion 4.9.. The following documents and items shall be executed and/or delivered by Developer to City not later than the date of Final Completion of the Project: a.Developer shall execute and deliver to City a written assignment transferring and assigning to City: (i) all right, title and interest, accruing to Developer under the Project Contracts; (ii) all right, title and interest, if any, accruing to Developer under the Plans and Specifications; (iii) all right, title and interest accruing to Developer under all warranties, guaranties and bonds issued by or delivered on behalf of, or required to be issued by or on behalf of, any contractor, subcontractor or supplier with respect to the Improvements; and (iv) all right, title and interest accruing to Developer under all certificates, licenses, permits, authorizations, consents and approvals issued by any governmental authority with respect to the Project. Notwithstanding such assignment, Developer shall reserve all rights under and to guarantees, warranties, indemnities, damages or other recoveries against any contracting party for any matter with respect to which Developer may be responsible to City. b.Developer shall deliver to City four (4) prints of an as-built, on-the- ground, survey of the Project, prepared by a surveyor licensed by the State of Texas. 8 c.Developer shall deliver to City three (3) sets of record drawings of the Improvements, including architectural and mechanical, electrical, structural, plumbing, heating, ventilation and air conditioning record drawings. d.Developer shall deliver to City the certificate of occupancy required pursuant to Section 4.9 hereof. e.Developer shall deliver to City all manufacturers’ written brochures, catalogs, maintenance instructions, training and such other information received by Developer with respect to the fixtures or any other component of the Improvements. ARTICLE V INSURANCE, INDEMNIFICATION City’s Insurance 5.1.. City shall procure and maintain for the UP Property, at City’s sole cost, (a) commercial general liability insurance with minimum occurrence/aggregate limits Five Million Dollars ($5,000,000) of , (b) workers’ compensation insurance with statutory limits and employer’s liability with minimum occurrence/aggregate limits of Five Hundred Thousand Dollars ($500,000) and (c) all other insurance coverages in amounts and with limits and deductibles as are otherwise required to be maintained by City. The commercial general liability insurance policy will, if available, contain (i) an endorsement including Developer as an “additional insured,” and (ii) a waiver of subrogation in favor of Developer. Developer’s Insurance 5.2.. Developer shall procure and maintain for the Developer Exchange Property, at Developer’s sole cost (except as otherwise indicated below), (a) Five commercial general liability insurance with minimum occurrence/aggregate limits of Million Dollars ($5,000,000) , (b) builder’s risk insurance covering Developer’s construction activities (the cost of which will be included in Project Costs), (c) worker’s compensation insurance with statutory limits and employer’s liability insurance with minimum occurrence/aggregate limits of Five Hundred Thousand Dollars ($500,000) and (d) all other insurance coverages in amounts and with limits and deductibles as are otherwise required by any construction lender of Developer (the cost of which will be included in Project Costs). The commercial general liability insurance policy will, if available, contain (i) an endorsement including City as an “additional insured,” and (ii) a waiver of subrogation in favor of City. INDEMNIFICATION OF CITY BY DEVELOPER. TO THE FULLEST 5.3. EXTENT PERMITTED BY LAW, DEVELOPER SHALL INDEMNIFY AND HOLD CITY AND ITS OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST, AND AT CITY'S REQUEST DEFEND, ANY ACTION, CAUSE OF ACTION, SUIT, CLAIM, OR DEMAND WHATSOEVER FOR DAMAGES, LOSSES AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, BROUGHT OR ASSERTED BY ANY THIRD PARTY ARISING DIRECTLY FROM, ARISING OUT OF, OR RESULTING FROM ANY NEGLIGENT ACT OR OMISSION OF DEVELOPER (EXCLUDING IN ALL EVENTS, HOWEVER, ANY MATTER FOR WHICH THE ARCHITECT, GENERAL CONTRACTOR AND CONSULTANTS HAVE EXCLUSIVE AUTHORITY AND RESPONSIBILITY) WHICH RESULTS OR IS ALLEGED TO HAVE RESULTED IN BODILY INJURY, SICKNESS, 9 DISEASE OR DEATH, OR INJURY TO OR DESTRUCTION OF TANGIBLE PROPERTY, INCLUDING THE LOSS OF USE THEREOF, FROM DEVELOPER'S ACTIVITIES ON CITY PROPERTY AND THE STAGING AREA, EXCEPT WHERE SUCH CLAIM, DAMAGE OR EXPENSE IS CAUSED IN WHOLE OR PART BY THE ILLEGAL OR FRAUDULENT CONDUCT, NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY INDEMNIFIED HEREUNDER . This Section 5.3 shall survive and continue in full force and effect notwithstanding the expiration or earlier termination of this Agreement. ARTICLE VI REPRESENTATIONS, WARRANTIES AND COVENANTS Representations and Acknowledgments 6.1.. a.Mutual. Each of City and Developer hereby represent and warrant to the other that: (i)Such party has duly authorized the execution and delivery of this Agreement, and this Agreement has been executed by its authorized official, partner or officer following approval of this Agreement by such action or approval as may be required to cause this Agreement to be a legal, valid and binding contract of such party, enforceable against such party according to its terms, except only as enforceability hereof may be limited by bankruptcy, insolvency, moratorium or other laws affecting creditors’ rights, and by application of principles of equity, whether asserted in a proceeding at law or in equity. (ii)Neither the performance of this Agreement nor any provision thereof, will violate any contract, agreement, indenture, mortgage or other instrument by which such party or its property are bound, nor will performance hereof violate any law, regulation, ruling, order, decree or judgment binding on such party or by which such party or its property is bound. b.Representations of City. City represents and warrants as follows: (i)City is a duly organized municipal corporation validly existing and in good standing under the laws of the State of Texas. (ii)City has good and indefeasible fee simple title to the UP Property. c.Representations of Developer. Developer represents and warrants as follows: (i)Developer is a duly organized corporation validly existing and in good standing under the laws of the State of Texas. (ii)Developer and/or MC Townhomes have good and indefeasible fee simple title to the Developer Exchange Property. 10 (iii)Developer has no pending or, to the best of its knowledge, threatened litigation or governmental action against it that would affect its performance under this Agreement. (iv)There are no bankruptcy, insolvency or debt consolidation actions now pending in which Developer is the debtor. Covenants 6.2.. a.City. City covenants and agrees to: (i)give prompt consideration within five (5) business days to all things relating to the development of the Project reasonably required to be considered or approved by City or otherwise presented to it by Developer or any other person, which consent shall not be unreasonably withheld; (ii)pay on or before the due date thereof all amounts payable by City pursuant to or as contemplated by this Agreement; (iii)arrange for Developer’s full and free access to the UP Property and all matters relating thereto at all times to enable Developer to perform its services hereunder; (iv)give prompt written notice to Developer whenever City becomes aware of any matter relating to the Project or the UP Property that would be material to Developer in the performance of its services hereunder; (v)in connection with the Project, designate a designated representative who shall be entitled to act on behalf of City; and (vi)fully cooperate with Developer in respect to all matters contemplated by or within the scope of this Agreement, furnish all documents and information necessary or desirable by Developer in furtherance of the Project. b.Developer. Developer covenants and agrees to: (i)give prompt consideration to all things relating to the development of the Project or otherwise presented to it by City; (ii)pay on or before the due date thereof all amounts payable by Developer pursuant to or as contemplated by this Agreement; (iii)in connection with the Project, designate a designated representative who City shall be entitled to rely upon, who shall have the authority to make binding commitments relative to the Project on behalf of Developer; and (iv)fully cooperate with City in respect to all matters contemplated by or within the scope of this Agreement, furnish all documents and information necessary or desirable by City in furtherance of the Project. 11 ARTICLE VII CLOSING Time and Place 7.1.. The exchange of the UP Exchange Property and the Developer Closing Exchange Property shall be consummated at a closing (the “”) to be held at the offices of the Title Company at 2626 Howell Street, Dallas, Texas 75204, Attn: Kathy Smith, Voice: (214) 855-8893, Fax: (214) 855-8848, Email: ksmith@republictitle.com, or at such other location upon which City and Developer mutually agree. The Closing shall occur on or before the date that is ten (10) days after Final Completion or as otherwise agreed by Developer and City in writing Closing Date (the “”). Determination of Value 7.2.. Prior to the Closing, City and Developer shall agree Exchange Value upon the respective values (“”) of the UP Exchange Property and the Developer Exchange Property, based on the following guidelines: a.UP Property. The Exchange Value of the UP Exchange Property shall be comprised of the appraised value of the UP Exchange Property, plus or minus any adjustments thereto as may be agreed upon by City and Developer. b.Developer Exchange Property. The Exchange Value of the Developer Exchange Property shall be comprised of the appraised value of the Developer Exchange Property, plus the costs of constructing the Project, plus the Project Costs contributed by or allocated to Developer pursuant to this Agreement, plus or minus any adjustments thereto as may be agreed upon by City and Developer. c.Settlement of Exchange Values. If the Exchange Value of the UP Exchange Property is less than the Exchange Value of the Developer Exchange Property, City shall pay to Developer such difference at the Closing. If the Exchange Value of the UP Exchange Property is greater than the Exchange Value of the Developer Exchange Property, Developer shall pay to City such difference at the Closing. Items to be Delivered by City at the Closing 7.3.. At the Closing, City shall deliver or cause to be delivered to Developer each of the following items: a.An exchange deed in special warranty form, duly executed and acknowledged, conveying to Developer good and indefeasible fee simple absolute title to the UP Exchange Property, subject to the Permitted Exceptions applicable to same, and otherwise in form acceptable to the Title Company. b.An updated Title Commitment irrevocably committing the Title Company to issue as soon as practical after Closing an Owner’s Policy of Title Insurance in a face amount equal to the Exchange Value for the UP Exchange Property, issued by the Title Company on the standard form in use in the State of Texas, insuring good and indefeasible fee simple title to the UP Exchange Property, subject to the Permitted Exceptions applicable to same, with the standard printed exceptions modified as follows: (i)the exception for restrictive covenants will be modified to read either “None” or “None except (for restrictions that are included in the Permitted Exceptions);” 12 (ii)the exception relating to discrepancies, conflicts or shortages in area or boundary lines or any encroachment or overlapping of improvements that a survey may show shall be amended to read “shortages in area” only; (iii)the exception as to the lien for taxes and assessments will be limited to the year in which each Closing occurs; and (iv)any exception for “parties in possession” will be limited to the rights, if any, pursuant to the Permitted Exceptions. c.Such other instruments as may be reasonably necessary to consummate this Agreement, including, by way of example, closing statements, releases, evidence of the authority of the party executing instruments on City’s behalf and delivery of instruments required by the Title Company under Schedule C of the Title Commitment. Items to be Delivered by Developer at the Closing 7.4.. At the Closing, Developer and/or MC Townhomes, as appropriate, shall deliver or cause to be delivered to City each of the following items: a.An exchange deed in special warranty form, duly executed and acknowledged, conveying to City good and indefeasible fee simple absolute title to the Developer Exchange Property, subject to the Permitted Exceptions applicable to same, and otherwise in form acceptable to the Title Company. b.An updated Title Commitment irrevocably committing the Title Company to issue as soon as practical after Closing an Owner’s Policy of Title Insurance in a face amount equal to the Exchange Value for the Developer Exchange Property, issued by the Title Company on the standard form in use in the State of Texas, insuring good and indefeasible fee simple title to the Developer Exchange Property, subject to the Permitted Exceptions applicable to same, with the standard printed exceptions modified as follows: (i)the exception for restrictive covenants will be modified to read either “None” or “None except (for restrictions that are included in the Permitted Exceptions) ”; (ii)the exception relating to discrepancies, conflicts or shortages in area or boundary lines or any encroachment or overlapping of improvements that a survey may show shall be amended to read “shortages in area” only; (iii)the exception as to the lien for taxes and assessments will be limited to the year in which each Closing occurs; and (iv)any exception for “parties in possession” will be limited to the rights, if any, pursuant to the Permitted Exceptions. c.The items to be delivered by Developer pursuant to Section 4.10. d.Such other instruments as may be reasonably necessary to consummate this Agreement, including, by way of example, closing statements, releases, evidence of the 13 authority of the party executing instruments on Developer’s behalf and delivery of instruments required by the Title Company under Schedule C of the Title Commitment. Project Costs 7.5.. All costs and expenses related to the Title Commitments, Title Exceptions, Surveys, obtaining any physical inspections, tests, examinations, studies and geotechnical inspections, the title policy premiums (including the cost of any required endorsements to the title policies), the recording fees and escrow fees charged by the Title Company, and all interest, fees, costs and expenses charged by any construction lender with respect to the Project, demolition and remediation expense, Developer’s expenses directly attributable to the Project (including, without limitation, salaries) all amounts payable pursuant to the Project Contracts, insurance expense, permit fees and other municipal charges, demolition expense, legal fees and expenses, Release Costs and SUP Costs are herein referred to as Project Costs “,” which also includes all costs and expenses specifically mentioned herein as included within Project Costs. Real estate taxes and assessments for the fiscal period of Closing will be prorated between City and Developer as of the Closing Date, and such prorated amounts shall be included in Project Costs. City and Developer shall each account for such Project Costs at Closing and shall reapportion it in such manner for the purposes of determining Exchange Value. Excluding any real estate taxes and assessments for the fiscal period of Closing, if the parties fail to consummate the exchange contemplated by this Agreement, the Project Costs shall not be prorated between City and Developer and Developer shall be responsible for the full payment of the Project Costs. ARTICLE VIII ASSIGNMENT AND CONFIGURATION Non-Assignable 8.1.. Neither Developer nor City shall assign, transfer, pledge or otherwise encumber or dispose of this Agreement or all or any part of Developer’s or City’s rights and interest hereunder without the other party’s prior written consent and any attempted assignment, transfer, pledge, other encumbrance or disposition (except by Developer to MC Townhomes as provided herein) without such prior written consent shall be void and of no force or effect. Collateral Assignment 8.2.. Developer and City hereby irrevocably consent to the collateral assignment of this Agreement and any other Project Contracts to any construction lender and/or any lien holder and their respective successors or assigns (whether one or more, the Collateral Assignee “”) which has made, or hereafter will make, loans to Developer with respect to the Project, for the purpose of securing the performance of all of Developer’s obligations with respect to such loans. Neither Developer nor City shall enter into any modifications, supplements, amendments or addenda to this Agreement without the prior written approval of the Collateral Assignee, if such prior written approval is required by the Collateral Assignee. Developer and City shall look solely to one another for the performance of all of their respective obligations under this Agreement. Configuration. 8.3.City acknowledges that Developer is attempting to purchase the Isenberg Tract tract outlined in red (the “”) on Exhibit D-1 attached hereto and incorporated herein by referenced. If Developer acquires the Isenberg Tract not later than thirty (30) days prior to Substantial Completion, the configuration of the Project shall be as set forth on Exhibit 14 D-2 attached hereto and incorporated herein by reference. If Developer does not timely acquire the Isenberg Tract as provided in the preceding sentence, the configuration of the Project shall be as set forth on Exhibit D-3 attached hereto and incorporation herein by reference. ARTICLE IX MISCELLANEOUS 9.1.Approval. A failure by City or Developer to provide a response to any request for consent, approval or other authorization hereunder within five (5) days after request therefor shall conclusively be construed to constitute consent, approval or other authorization with respect to the matter in issue. 9.2.Communications. The parties hereto agree to act in good faith and in a reasonable manner as to all matters herein contained, except as otherwise provided herein. The parties hereto also agree to meet and conference by phone as often as reasonably necessary to accomplish the purposes of this Agreement. 9.3.Notice. Any notice provided in or permitted under this Agreement shall be made in writing and may be given or served by (i) delivering the same in person to the party to be notified, (ii) depositing the same in the U.S. mail, postage prepaid, registered or certified with return receipt requested, and addressed to the party to be notified at the address herein specified, (iii) by nationally recognized overnight courier or (iv) when sent by facsimile or electronic transmission as shown below provided that the same is sent during the normal business hours of the party to whom it was sent, and written confirmation of the sending of such facsimile is obtained. If notice is deposited in the mail pursuant to clause (ii) of this Section 9.3, it will be deemed received three (3) days following deposit in a post office or other depository under the care or custody of the United States Postal Service. Notice given in any other manner shall be deemed received only if and when actually received by the party to be notified. For the purpose of notice, the address of the parties shall be, until changed as hereinafter provided for, as follows: If to Developer: Prescott Realty Group, Inc. 6060 N. Central Expressway, Suite 642 Dallas, Texas 75206 Fax No.: (214) 750-0031 Phone No.: (214) 750-0009 Attn: Vance E. Detwiler vdetwiler@prescottrealtygroup.com with a copy to: Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 Fax No.: (214) 661-6605 Phone No.: (214) 953-5934 Attn: Bryan C. Birkeland bbirkeland@jw.com 15 If to City: The City of University Park 3800 University Blvd. University Park, Texas 75205 Fax No.: (214) 987-5399 Phone No.: (214) 363-1644 Attn: Bob Livingston, City Manager and Gene “Bud” R. Smallwood, Director of Public Works with a copy to: Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza Dallas, Texas 75201 Fax No.: (214) 965-0010 Phone No.: (214) 965-9900 Attn: Robert L. Dillard, III rdillard@njdhs.com The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify, as its address any other address by at least fifteen (15) days prior written notice to the other party. Each party shall have the right from time to time to specify additional parties to whom notice hereunder must be given by delivering to the other party fifteen (15) days prior written notice thereof, setting forth the address of such additional parties. Notice required to be delivered hereunder to either party shall not be deemed to be effective until the additional parties, if any, designated by such party have been given notice in a manner deemed effective pursuant to the terms of this Section 9.3. 9.4.Captions. The titles or captions contained in this Agreement are for convenience only and shall neither restrict nor amplify the provisions hereof. 9.5.Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or entity may require. 9.6.Entire Agreement/Amendment. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, unless otherwise provided herein or in any other existing or future written agreement between City and Developer with respect to the subject matter hereof. This Agreement shall not be amended or changed except by written instrument signed by both parties hereto. 9.7.Severable Provisions. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, the provision in question to any other extent, and the application thereof to any other person or circumstances, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 9.8.Governing Law. The laws of the State of Texas shall govern the validity, enforcement and interpretation of this Agreement without regard to the conflict law rules of such 16 state. The parties hereto acknowledge and agree that the negotiations and execution of this Agreement have occurred in Dallas County, Texas, the obligations of the parties hereto are performable in Dallas County, Texas, and the parties hereto hereby consent that the exclusive venue for any legal action arising out of this Agreement shall be in Dallas County, Texas. 9.9.Attorneys’ Fees. In the event of any controversy, claim or dispute between the parties affecting or relating to the subject matter or performance of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party of all its reasonable expenses, including the reasonable fees and costs of the prevailing party’s attorneys, expert witnesses and accountants. 9.10.Successors; Assignment. This Agreement constitutes a legal, valid and binding agreement between the parties hereto, enforceable against each in accordance with its terms and provisions, except as limited by bankruptcy, insolvency, receivership and similar laws from time to time in effect, and shall inure to the benefit of and bind the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. 9.11.Consequential Damages. Neither City nor Developer shall bear any liability to the other for loss of production, loss of profits, loss of business or any other indirect or consequential damages, but neither party waives any right to make any claim against the other party for any actual or direct damages alleged to have been caused by a breach of any of the provisions of this Agreement. 9.12.No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement, intended or otherwise. 9.13.Event Date. A business day for the purposes of this Agreement shall be any day except Saturday, Sunday or a day on which national banks in Dallas, Texas are permitted to be closed. Any act performable on a day that is not a business day shall be performable on the next business day following such date. 9.14.Counterparts; Facsimile Signatures. This Agreement may be executed in any number of original counterparts, which together shall constitute the agreement of the parties. Facsimile signatures hereto shall be deemed to be original signatures and binding on the parties hereto. 9.15.Commission. City and Developer each warrant and represent to the other that no agent or broker is entitled to a commission or fee as a result of this exchange, and City and Developer each agree to indemnify and hold the other party harmless from any loss, liability or expense suffered by the other party by reason of a breach of such warranty or representation. 17 EXECUTED and effective as of the date first written above. CITY: THE CITY OF UNIVERSITY PARK, a municipal corporation organized under the laws of the State of Texas By: Name: Title: DEVELOPER: PRESCOTT REALTY GROUP, INC., a Texas corporation By: Name: Title: Schedule of Exhibits Exhibit A - UP Exchange Property Exhibit B - UP Peek Center Property Exhibit C - UP Storage Property Exhibit D - Developer Exchange Property Exhibit D-1 - Exhibit D-2 - Exhibit D-3 - Exhibit E - Preliminary Budget Exhibit F - Design Criteria Exhibit G - Site Plan Exhibit H - Building Elevations 18 3877366v.13 DEVELOPMENT AND EXCHANGE AGREEMENT THIS DEVELOPMENT AND EXCHANGE AGREEMENT (this "A2reement"), dated as of the _ day of , ~2006 (the "Effective Date"), is between PRESCOTT REALTY GROUP, INC., a Texas corporation ("Developer"), and THE CITY OF UNIVERSITY PARK, a municipal corporation organized under the laws of the State of Texas ("Citv"). Developer and City are herein sometimes collectively called the "parties." RECITALS A. City currently owns those certain tracts or parcels of real property and the improvements thereon located in Dallas, Dallas County, Texas, as more particularly described as follows (collectively, the "UP Propertv"): (i) the tract or parcel bordered (a) to the West by the Dallas Area Rapid Transit ("DART") light rail line serving PIano, Texas, (b) to the South by the DART light rail line serving Garland, Texas, and (c) to the East by Worcola Avenue, upon which various parking improvements are situated (the "UP Exchan2e Propertv"), which UP Exchange Property is more particularly described in Exhibit A attached hereto and made a part hereof by this reference; (ii) the tract or parcel bordered (a) to the West by Worcola Avenue, (b) to the South by the DART light rail line serving Garland, Texas, and (c) to the East by Greenville A venue, upon which various improvements are situated (the "UP Peek Center Propertv"), which UP Peek Center Property is more particularly described in Exhibit B attached hereto and made a part hereof by this reference; and (iii) the tract or parcel bordered (a) to the West, South and North by the Developer Exchange Property (as defined herein), and (b) to the East by Greenville A venue, upon which a City storage facility and related parking improvements is situated (the "UP Stora2e Propertv"), which UP Storage Property is more particularly described in Exhibit C attached hereto and made a part hereof by this reference. B. Developer and/or MC Townhomes I LP, a Delaware limited partnership and an affiliate of Developer ("MC Townhomes"), currently own those certain tracts or parcels of real property and the improvements thereon located in Dallas, Dallas County, Texas (collectively, the "Developer Exchan2e Propertv"), as more particularly described in Exhibit D attached hereto and made a part hereof by this reference. C. Pursuant to the terms thereof, Developer shall demolish the eXIstmg improvements on the Developer Exchange Property and the UP Storage Property and construct a new 15,000 square foot (more or less) structure including a two, three, or four level parking structure and associated storage and general utility space (together with all related improvements and amenities, collectively the "Improvements"), which will be utilized by City in connection with the existing improvements located on the UP Peek Center Property (the Developer Exchange Property, UP Storage Property and Improvements being hereinafter referred to, collectively, as the "PrO'ject"). D. Once construction of the Improvements has been Substantially Completed (hereinafter defined), City desires to convey the UP Exchange Property to Developer and, in exchange therefor, Developer desires to convey the Developer Exchange Property (to the extent hereinafter provided) and its interest in the Improvements to City. E. City and Developer desire to execute and enter into this Agreement to set forth their understandings with regard to the foregoing. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged by the parties, Developer and City agree as follows: ARTICLE I APPOINTMENT AND AUTHORITY OF DEVELOPER 1.1. Undertakin2 bv Developer. Developer shall perform and have the right and obligation to carry out all development and construction management services for the Project as required by, and subject to, the terms and conditions of this Agreement. 1.2. Status O'f DevelO'Per. Developer is, and shall at all times during the term of this Agreement be, an independent contractor and not an agent or employee of City. All contracts and agreements executed or entered into by Developer in connection with the performance of its duties and obligations under this Agreement shall be contracts and agreements in the name of Developer, unless otherwise provided in this Agreement or otherwise agreed to in writing by City. 1.3. NO' Partnership O'r JO'int Venture. Nothing contained in this Agreement shall constitute or be deemed or construed to create a partnership or joint venture between City and Developer. ARTICLE II PRE-CONSTRUCTION MATTERS 2.1. Title and Survey: Initial PeriO'd. a. Title Commitment and Documents. Within twenty (20) days after the Effective Date, Developer will cause the following to be delivered to Developer and City: (i) a current Commitment for Title Insurance ("Title CO'mmitment") issued by Republic Title of Texas, Inc. (the "Title CO'mpanv"), setting forth the state of title to each of the UP Exchange Property, the UP Storage Property and the Developer Exchange Property; and 2 (ii) true, correct and legible copies of all instruments that create or evidence all liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral or otherwise), conditions, restrictions, options, conditional sale contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights of way, encroachments, overlaps or other outstanding claims, interests, estates or equities of any nature (collectively, the "Title Exceptions"), which affect title to each of the UP Property and the Developer Exchange Property. b. Survey. Within twenty (20) days after the Effective Date, Developer will cause to be prepared and delivered to Developer and City a currently dated as-built, on-the- ground, survey (individually "Survev" and collectively "Survevs") of each of the UP Exchange Property, the UP Storage Property and the Developer Exchange Property, prepared by a surveyor licensed by the State of Texas. c. Initial Period. City and Developer shall each have a period of Hffiety t9f)one hundred fiftv (150) days from the Effective Date or such lonl!er oeriod of time as Citv and Develooer shall mutuallv al!ree to in writinl! (the "Initial Period") in which to review the Title Commitment, Title Exceptions and Survey for the UP Exchange Property, the UP Storage Property or the Developer Exchange Property, as appropriate, to inspect the condition of the UP Property or the Developer Exchange Property, as appropriate, and to conduct an examination of same and to review such other matters as City or Developer deem necessary (including, without limitation, a physical inspection, an appraisal, an environmental audit and a geotechnical inspection). City and Developer will coordinate with one another in curing any adverse title matters reflected in the Title Commitments, Title Exceptions and Surveys prior to the expiration of the Initial Period. At Closing, all matters reflected in the Title Commitment, Title Exceptions and Surveys with respect to the UP Exchange Property, the UP Storage Property and the Developer Exchange Property shall be deemed "Permitted Exceptions" as respectively applicable to same. d. Access to Property. To facilitate the inspections contemplated in Section 2.l(c), City will provide Developer access to the UP Property, and Developer will provide City access to the Developer Exchange Property. City and Developer will conduct any physical inspections, tests, examinations and studies only as reasonably required and will use reasonable efforts to minimize interference with the operations of the other party at its respective properties. e. Indemnitv. City and Developer agree to indemnify and hold the other party harmless from and against any liens, claims, or damages including, without limitation, any and all demands, actions or causes of action, assessments, losses, costs, liabilities, interest, penalties and reasonable attorneys' fees suffered or incurred by City or Developer as a result of the negligence or willful misconduct of the other patty in the conduct of the inspections contemplated in Section 2.1 (c ); provided, however, City and Developer shall have no liability for any diminution in the value of the other party's property as a result of matters or conditions identified during its inspections. City and Developer will, to the extent practicable in light of the pendency of the Project, repair or cause to be repaired any damages of a material nature caused by such party in its review and inspections. Notwithstanding anything set forth herein to the contrary, the indemnification obligations of City and Developer in this Section 2.l(e) will survive the termination of this Agreement for any reason. 3 f. Land Value. Prior to the expiration of the Initial Period, Developer and City shall agree upon the appraisal value of the UP Exchange Property and the Developer Exchange Property for the purposes of Section 7.2 hereof. 2.2. Architect. Merriman & Associates, or other architectural firm that is mutually agreed upon by Developer and City, shall be selected as the architect for the Project (the "Architect"). Developer shall negotiate the form of contract with the Architect (the "Architect Contract") subject to reasonable review and approval by City. The Architect Contract shall not be amended or altered in any material respect without the prior approval of City. Architect will perform the following specific services in connection with the Project: a. Architect will have exclusive authority and responsibility to prepare the Plans and Specifications (hereinafter defined), samples and equipment data for compliance with applicable laws and regulations and satisfaction of design integrity, which may be required for the initiation, prosecution, construction and completion of the Project. b. Architect will have primary responsibility to issue such drawings, instructions and data as may be required to interpret properly the Plans and Specifications, if so required. c. Architect will have primary responsibility, in accordance with the terms and conditions of the Architect Contract, to review, evaluate and approve all applications for payment submitted by the General Contractor (hereinafter defined) and forward said applications for the review by Developer and City, and to ensure that construction of the Project has been conducted in a good and workmanlike manner in accordance with the Plans and Specifications. 2.3. Developer Services. Prior to commencement of construction of the Improvements, Developer shall also provide the following services to City: a. Developer shall interview, negotiate with and, after consultation with and approval of City, select and engage all other design and development consultants (collectively, the "Consultants") for the Project, including space planners, landscape architects, civil, soils, mechanical, electrical and plumbing engineers, and telecommunications, acoustical, curtain wall, lighting, art and graphic design consultants. b. Developer shall manage and coordinate the Consultants regarding the Project and coordinate Architect's preparation of conceptual design criteria, and the Plans and Specifications therefor, including matters relating to site planning, engineering, building shell, public space and landscape design, traffic and circulation matters. c. Developer shall initiate the planning and coordinate with City and Architect the receipt of all necessary public and private approvals for the Project, including city planning, applicable building codes, public works, any applicable architectural review committee, and building permit approvals (including, without limitation, as provided in Section 4.6 hereof). 4 d. Prior to the expiration of the Initial Period, City and Developer shall agree upon a Preliminary Budget (herein so called), which includes, among other matters, fixing the number of levels of the parking structure, and allowances for line items as designated therein. The agreed upon Preliminary Budget shall be initialed by the parties and attached hereto as Exhibit E on or prior to the expiration of the Initial Period. Developer and City shall further update and refine the Preliminary Budget periodically as the Architect prepares design, development and construction documents. The allowances set forth in the Preliminary Budget shall not be final until 15 days prior to the expiration of the Initial Period and then only to the extent set forth in the Approved Budget (hereinafter defined). Developer shall provide preliminary evaluation of the Preliminary Budget, prepare preliminary estimates of construction costs for early schematic designs, and coordinate with City in achieving a mutually agreed upon development program, budget requirements and other design parameters. Developer shall further provide cost evaluations of alternative materials and systems as requested. e. Developer shall review designs during their development and coordinate with City regarding on-site use and improvements, selection of materials, building systems and equipment and methods of Project delivery. f. With the cooperation of Architect and the Consultants, Developer shall prepare and submit for City's approval an estimated critical path schedule (the "Project Schedule") that coordinates and integrates Developer's services and City's responsibilities and needs with anticipated construction schedules. The Project Schedule shall include a detailed program for the design and construction of the Project including procurement, fabrication and delivery dates for all major materials and equipment. The Project Schedule shall cover all phases of the work required pursuant to the General Contract (as defined herein) and shall provide for the timely and proper execution of such work. The Project Schedule will indicate the established dates for the start and completion of all phases of the Project, including the date for Substantial Completion (or Substantially Completed, as hereinafter defined), and may be revised subject to the approval of City and Developer. The Project Schedule will be completed as soon as reasonably practicable after the execution of the General Contract. Developer shall provide City a monthly progress report at the end of each month detailing the amount of work on the Project that has been completed in relation to the Project Schedule. g. No space planning, design or finish-out evaluations of the Project shall be required as the Improvements shall be delivered in shell condition which shall include electricity, lighting fixtures, and partitions necessary for use as storage space. 2.4. Plans and Specifications. Prior to the expiration of the Initial Period, City and Developer shall agree upon the Design Criteria (herein so called), the Site Plan (herein so called) and the Building Elevations (herein so called) for the Project. The agreed upon Design Criteria, Site Plan and Building Elevations shall be initialed by the parties and attached hereto as Exhibit E, Exhibit G and Exhibit H, respectively, on or prior to the expiration of the Initial Period and are hereinafter collectively referred to as the "Preliminarv Plans." The Preliminary Plans shall form the basis of the Plans and Specifications and the Preliminary Budget referenced in Section 2.3( d) hereof. The final plans and specifications for the Project shall be approved by Developer and City. Such approved final plans and specifications shall be referred to herein as the "Plans and Specifications." 5 2.5. General Contractor. Prior to the expiration of the Initial Period, Developer will choose a list of general contractors who are eligible to perform the primary construction services for the hnprovements, and shall request that such general contractors submit a bid for the General Contract. After receiving bids, Developer shall select the general contractor to work on the Project. The selection of the general contractor shall not be based solely upon the respective bid submitted. Following selection, Developer shall enter into a contract (the "General Contract") with such general contractor (the "General Contractor") containing specific terms (such as the contract sum, date of substantial completion, amount of retention and payment schedule) in any material respect consistent with the criteria described in this Article II. The General Contract shall not be amended or altered without the prior approval of both City and Developer. 2.6. Other Contractors. Developer shall have the right to engage contractors other than the Architect or the General Contractor upon such terms and conditions as City and Developer shall deem appropriate. 2.7. Proiect Contracts. The General Contract, the Architect Contract, the Consultants' agreements and any and all subcontracts and purchase orders entered into by Developer pursuant to this Agreement are collectively referred to herein as the "Proiect Contracts. " ARTICLE III DEVELOPMENT BUDGET 3.1. In General. Developer shall prepare and submit to City for its approval a budget (the "Approved Budget") that will include final provisions for all costs and expenses to design, construct and complete the hnprovements and all other aspects of the Project in accordance with the Plans and Specifications and this Agreement. The Approved Budget shall include, among other things, all Consultants' costs and fees, all hard and soft costs, testing costs, feasibility costs, permit and license fees, title insurance premiums, insurance costs, survey expense and legal fees. The Approved Budget may be modified from time to time with the prior written consent of City. 3.2. Line Item Allocations. Developer shall be entitled to reallocate amounts from any line item in the Approved Budget to any other line items(s) of the Approved Budget so long as such reallocation does not increase the Approved Budget or modify the Plans and Specifications. ARTICLE IV CONSTRUCTION 4.1. Generallv. Developer shall obtain or cause to be obtained, all building permits, licenses, temporary and permanent certificates of occupancy and other governmental approvals, which may be required to permit the construction of the hnprovements and to permit the use of the Project. 4.2. Construction Duties. During construction of the hnprovements, with due reliance upon and assistance from the Architect, the General Contractor and the Consultants, Developer shall supervise, manage, coordinate and direct the performance of the construction of 6 the Improvements by: (a) providing direction to the General Contractor; (b) endeavoring to guard against any defects or deficiencies in the work of any contractor(s) discovered or suspected by Developer; (c) advising the General Contractor of any material omissions, substitutions, defects, or deficiencies noted in the work of any contractor, subcontractor or materialman; (d) advising the General Contractor and the Architect of any work or materials that do not, in Developer's view, materially conform to the appropriate Project Contracts; (e) causing the General Contractor to correct any defective or non-conforming work known, or which in the exercise of reasonable efforts should have been known, by Developer; (f) causing the Architect to prepare such reports as may be required for the use of any public agency; (g) maintaining construction accounts for the Improvements; (h) cause the General Contractor to coordinate the installation of the utilities with the appropriate utility companies; and (i) performing such other additional management functions as are commercially appropriate to cause development and construction activities to proceed in accordance with the Plans and Specifications and the Project Schedule. 4.3. Stamm! Area. City shall provide to Developer access to and a temporary easement and right-of-way over and across the Northeastern portion of the UP Exchange Property (the "Sta2im! Area") for the purpose of staging construction materials and personnel during construction of the Improvements; provided, however, Developer agrees not to unreasonably interfere with City's operations at the UP Exchange Property. 4.4. A2reement Re2ardin2 UP Stora2e Property. All existing improvements on the UP Storage Property shall be demolished. City shall have no access to the UP Storage Property during construction of the Improvements other than in connection with reviewing the progress of construction of the Improvements. City shall subordinate its fee interest in the UP Storage Property to the lien or liens of any Collateral Assignee (as defined herein). City shall execute, acknowledge (if necessary), and deliver, or cause to be executed, acknowledged (if necessary), and delivered, any and all documents or agreements as may be reasonably required pursuant to this Section 4.4. 4.5. Release of Easements. The parties shall cooperate with one another to cause the release or abandonment of the existing easements and rights-of-way across the UP Property and Developer Exchange Property held by the City of Dallas, Dallas County and the Texas Department of Transportation along Greenville A venue, and further agree to execute, acknowledge (if necessary), and deliver, or cause to be executed, acknowledged (if necessary), and delivered, any and all documents or agreements as may be reasonably required for same. As the existing easements burden portions of the UP Property and adjacent real property owned by MC Townhomes, the total release costs shall be allocated between Project Costs and those allocated to MC Townhomes on the basis of the relative lineal feet released. The allocated portion of the costs and expenses of such efforts (collectively "Release Costs") shall be included in Project Costs. 4.6. Special Use Permit. The parties acknowledge that City's use of the UP Exchange Property is current permitted under a special use permit ("SUP") granted by the City of Dallas. Developer shall use reasonable efforts to cause the City of Dallas to issue a new SUP for the UP Peek Center Property, the UP Storage Property and the Developer Exchange Property, on or before the Closing, subject to the current procedures and requirements of the City of Dallas. City shall cooperate with Developer in such endeavor and shall execute, acknowledge (if 7 necessary), and deliver, or cause to executed, acknowledged (if necessary), and delivered, any and all documents or agreements as may be reasonably required for same. The costs and expenses of such efforts (collectively "SUP Costs") shall be included in Project Costs. 4.7. Substantial Completion of the Improvements Defined. For purposes of this Agreement, "Substantial Completion" of the Improvements shall mean the date on which all of the following conditions shall have been satisfied: (a) all Improvements, including all equipment, fittings and fixtures required to be installed by the Plans and Specifications have been substantially completed and installed in accordance with the Plans and Specifications, except for "punch list" items described in Section 4.9 below; direct connection has been made to the Improvements from all public utilities; pipes and conduits for water, electricity and gas shall be in adequate size and connected to the source of supply and in operable condition for all required needs; storm drainage and sanitary sewer shall be adequate; access to and from the Improvements by trucks, cars and pedestrians shall be available; and each of the items referred to in this clause (a) are so certified to City and Developer by a certificate from the Architect; and (b) a certificate of occupancy has been issued on the Improvements from the appropriate governmental authority to City. For purposes of this Agreement, a certificate of occupancy shall be deemed to have been issued when Developer is in receipt of a final base building inspection certificate for the building shell. 4.8. Final Completion of the Improvements. At the time the Architect issues its certificate of substantial completion, the Architect shall prepare and deliver to City and Developer a "punch list" of items required for final completion. The later of the date upon which all "punch list" items are completed, as certified by the Architect, or the date on which the permanent certificate of occupancy is issued, shall constitute the date of final completion of the Improvements ("Final Completion"). 4.9. Items to be Delivered Upon Final Completion. The following documents and items shall be executed and/or delivered by Developer to City not later than the date of Final Completion of the Project: a. Developer shall execute and deliver to City a written assignment transferring and assigning to City: (i) all right, title and interest, accruing to Developer under the Project Contracts; (ii) all right, title and interest, if any, accruing to Developer under the Plans and Specifications; (iii) all right, title and interest accruing to Developer under all warranties, guaranties and bonds issued by or delivered on behalf of, or required to be issued by or on behalf of, any contractor, subcontractor or supplier with respect to the Improvements; and (iv) all right, title and interest accruing to Developer under all certificates, licenses, permits, authorizations, consents and approvals issued by any governmental authority with respect to the Project. Notwithstanding such assignment, Developer shall reserve all rights under and to guarantees, warranties, indemnities, damages or other recoveries against any contracting party for any matter with respect to which Developer may be responsible to City. b. Developer shall deliver to City four (4) prints of an as-built, on-the- ground, survey of the Project, prepared by a surveyor licensed by the State of Texas. 8 c. Developer shall deliver to City three (3) sets of record drawings of the Improvements, including architectural and mechanical, electrical, structural, plumbing, heating, ventilation and air conditioning record drawings. d. Developer shall deliver to City the certificate of occupancy required pursuant to Section 4.9 hereof. e. Developer shall deliver to City all manufacturers' written brochures, catalogs, maintenance instructions, training and such other information received by Developer with respect to the fixtures or any other component of the Improvements. ARTICLE V INSURANCE, INDEMNIFICATION 5.1. City's Insurance. City shall procure and maintain for the UP Property, at City's sole cost, (a) commercial general liability insurance with minimum occurrence/aggregate limits of Five Million Dollars ($5,000,000), (b) workers' compensation insurance with statutory limits and employer's liability with minimum occurrence/aggregate limits of Five Hundred Thousand Dollars ($500,000) and (c) all other insurance coverages in amounts and with limits and deductibles as are otherwise required to be maintained by City. The commercial general liability insurance policy will, if available, contain (i) an endorsement including Developer as an "additional insured," and (ii) a waiver of subrogation in favor of Developer. 5.2. Developer's Insurance. Developer shall procure and maintain for the Developer Exchange Property, at Developer's sole cost (except as otherwise indicated below), (a) commercial general liability insurance with minimum occurrence/aggregate limits of Five Million Dollars ($5,000,000), (b) builder's risk insurance covering Developer's construction activities (the cost of which will be included in Project Costs), (c) worker's compensation insurance with statutory limits and employer's liability insurance with minimum occurrence/aggregate limits of Five Hundred Thousand Dollars ($500,000) and (d) all other insurance coverages in amounts and with limits and deductibles as are otherwise required by any construction lender of Developer (the cost of which will be included in Project Costs). The commercial general liability insurance policy will, if available, contain (i) an endorsement including City as an "additional insured," and (ii) a waiver of subrogation in favor of City. 5.3. INDEMNIFICATION OF CITY BY DEVELOPER. TO THE FULLEST EXTENT PERMITTED BY LAW, DEVELOPER SHALL INDEMNIFY AND HOLD CITY AND ITS OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST, AND AT CITY'S REQUEST DEFEND, ANY ACTION, CAUSE OF ACTION, SUIT, CLAIM, OR DEMAND WHATSOEVER FOR DAMAGES, LOSSES AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, BROUGHT OR ASSERTED BY ANY THIRD PARTY ARISING DIRECTLY FROM, ARISING OUT OF, OR RESULTING FROM ANY NEGLIGENT ACT OR OMISSION OF DEVELOPER (EXCLUDING IN ALL EVENTS, HOWEVER, ANY MATTER FOR WHICH THE ARCHITECT, GENERAL CONTRACTOR AND CONSULTANTS HAVE EXCLUSIVE AUTHORITY AND RESPONSIBILITY) WHICH RESUL TS OR IS ALLEGED TO HA VE RESULTED IN BODILY INJURY, SICKNESS, 9 DISEASE OR DEATH, OR INJURY TO OR DESTRUCTION OF TANGIBLE PROPERTY, INCLUDING THE LOSS OF USE THEREOF, FROM DEVELOPER'S ACTIVITIES ON CITY PROPERTY AND THE STAGING AREA, EXCEPT WHERE SUCH CLAIM, DAMAGE OR EXPENSE IS CAUSED IN WHOLE OR PART BY THE ILLEGAL OR FRAUDULENT CONDUCT, NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY INDEMNIFIED HEREUNDER. This Section 5.3 shall survive and continue in full force and effect notwithstanding the expiration or earlier termination of this Agreement. ARTICLE VI REPRESENTA TIONS, WARRANTIES AND COVENANTS 6.1. Representations and Acknowledgments. a. Mutual. Each of City and Developer hereby represent and warrant to the other that: (i) Such party has duly authorized the execution and delivery of this Agreement, and this Agreement has been executed by its authorized official, partner or officer following approval of this Agreement by such action or approval as may be required to cause this Agreement to be a legal, valid and binding contract of such party, enforceable against such party according to its terms, except only as enforceability hereof may be limited by bankruptcy, insolvency, moratorium or other laws affecting creditors' rights, and by application of principles of equity, whether asserted in a proceeding at law or in equity. (ii) Neither the performance of this Agreement nor any provlSlon thereof, will violate any contract, agreement, indenture, mortgage or other instrument by which such party or its property are bound, nor will performance hereof violate any law, regulation, ruling, order, decree or judgment binding on such party or by which such party or its property is bound. b. Representations of City. City represents and warrants as follows: (i) City is a duly organized municipal corporation validly existing and in good standing under the laws of the State of Texas. (ii) City has good and indefeasible fee simple title to the UP Property. c. Representations of Developer. Developer represents and warrants as follows: (i) Developer is a duly organized corporation validly existing and in good standing under the laws of the State of Texas. (ii) Developer and/or MC Townhomes have good and indefeasible fee simple title to the Developer Exchange Property. 10 (iii) Developer has no pending or, to the best of its knowledge, threatened litigation or governmental action against it that would affect its performance under this Agreement. (iv) There are no bankruptcy, insolvency or debt consolidation actions now pending in which Developer is the debtor. 6.2. Covenants. a. City. City covenants and agrees to: (i) give prompt consideration within five (5) business days to all things relating to the development of the Project reasonably required to be considered or approved by City or otherwise presented to it by Developer or any other person, which consent shall not be unreasonably withheld; (ii) pay on or before the due date thereof all amounts payable by City pursuant to or as contemplated by this Agreement; (iii) arrange for Developer's full and free access to the UP Property and all matters relating thereto at all times to enable Developer to perform its services hereunder; (iv) give prompt written notice to Developer whenever City becomes aware of any matter relating to the Project or the UP Property that would be material to Developer in the performance of its services hereunder; (v) in connection with the Project, designate a designated representative who shall be entitled to act on behalf of City; and (vi) fully cooperate with Developer in respect to all matters contemplated by or within the scope of this Agreement, furnish all documents and information necessary or desirable by Developer in furtherance of the Project. b. Developer. Developer covenants and agrees to: (i) give prompt consideration to all things relating to the development of the Project or otherwise presented to it by City; (ii) pay on or before the due date thereof all amounts payable by Developer pursuant to or as contemplated by this Agreement; (iii) in connection with the Project, designate a designated representative who City shall be entitled to rely upon, who shall have the authority to make binding commitments relative to the Project on behalf of Developer; and (iv) fully cooperate with City in respect to all matters contemplated by or within the scope of this Agreement, furnish all documents and information necessary or desirable by City in furtherance of the Project. 11 ARTICLE VII CLOSING 7.1. Time and Place. The exchange of the UP Exchange Property and the Developer Exchange Property shall be consummated at a closing (the "Closing") to be held at the offices of the Title Company at 2626 Howell Street, Dallas, Texas 75204, Attn: Kathy Smith, Voice: (214) 855-8893, Fax: (214) 855-8848, Email: ksmith@republictitle.com, or at such other location upon which City and Developer mutually agree. The Closing shall occur on or before the date that is ten (10) days after Final Completion or as otherwise agreed by Developer and City in writing (the "Closing Date"). 7.2. Determination of Value. Prior to the Closing, City and Developer shall agree upon the respective values ("Exchange Value") of the UP Exchange Property and the Developer Exchange Property, based on the following guidelines: a. UP Property. The Exchange Value of the UP Exchange Property shall be comprised of the appraised value of the UP Exchange Property, plus or minus any adjustments thereto as may be agreed upon by City and Developer. b. Developer Exchange Property. The Exchange Value of the Developer Exchange Property shall be comprised of the appraised value of the Developer Exchange Property, plus the costs of constructing the Project, plus the Project Costs contributed by or allocated to Developer pursuant to this Agreement, plus or minus any adjustments thereto as may be agreed upon by City and Developer. c. Settlement of Exchange Values. If the Exchange Value of the UP Exchange Property is less than the Exchange Value of the Developer Exchange Property, City shall pay to Developer such difference at the Closing. If the Exchange Value of the UP Exchange Property is greater than the Exchange Value of the Developer Exchange Property, Developer shall pay to City such difference at the Closing. 7.3. Items to be Delivered by City at the Closing. At the Closing, City shall deliver or cause to be delivered to Developer each of the following items: a. An exchange deed in special warranty form, duly executed and acknowledged, conveying to Developer good and indefeasible fee simple absolute title to the UP Exchange Property, subject to the Permitted Exceptions applicable to same, and otherwise in form acceptable to the Title Company. b. An updated Title Commitment irrevocably committing the Title Company to issue as soon as practical after Closing an Owner's Policy of Title Insurance in a face amount equal to the Exchange Value for the UP Exchange Property, issued by the Title Company on the standard form in use in the State of Texas, insuring good and indefeasible fee simple title to the UP Exchange Property, subject to the Permitted Exceptions applicable to same, with the standard printed exceptions modified as follows: (i) the exception for restrictive covenants will be modified to read either "None" or "None except (for restrictions that are included in the Permitted Exceptions);" 12 (ii) the exception relating to discrepancies, conflicts or shortages in area or boundary lines or any encroachment or overlapping of improvements that a survey may show shall be amended to read "shortages in area" only; (iii) the exception as to the lien for taxes and assessments will be limited to the year in which each Closing occurs; and (iv) any exception for "parties in possession" will be limited to the rights, if any, pursuant to the Permitted Exceptions. c. Such other instruments as may be reasonably necessary to consummate this Agreement, including, by way of example, closing statements, releases, evidence of the authority of the party executing instruments on City's behalf and delivery of instruments required by the Title Company under Schedule C of the Title Commitment. 7.4. Items to be Delivered bv Developer at the ClosiDl!:. At the Closing, Developer and/or MC Townhomes, as appropriate, shall deliver or cause to be delivered to City each of the following items: a. An exchange deed in special warranty form, duly executed and acknowledged, conveying to City good and indefeasible fee simple absolute title to the Developer Exchange Property, subject to the Permitted Exceptions applicable to same, and otherwise in form acceptable to the Title Company. MC Townhomes shaH reserve in sl:leh exchange deed the Air Rights (herein.after defined) and in connection therewith shall execl:lte and record the Declaration attached hereto as Exhibit I and incorporated herein by reference. b. An updated Title Commitment irrevocably committing the Title Company to issue as soon as practical after Closing an Owner's Policy of Title Insurance in a face amount equal to the Exchange Value for the Developer Exchange Property, issued by the Title Company on the standard form in use in the State of Texas, insuring good and indefeasible fee simple title to the Developer Exchange Property, subject to the Air Rights and the Permitted Exceptions applicable to same, with the standard printed exceptions modified as follows: (i) the exception for restrictive covenants will be modified to read either "None" or "None except (for restrictions that are included in the Permitted Exceptions) "; (ii) the exception relating to discrepancies, conflicts or shortages in area or boundary lines or any encroachment or overlapping of improvements that a survey may show shall be amended to read "shortages in area" only; (iii) the exception as to the lien for taxes and assessments will be limited to the year in which each Closing occurs; and (iv) any exception for "parties in possession" will be limited to the rights, if any, pursuant to the Permitted Exceptions. c. The items to be delivered by Developer pursuant to Section 4.10. 13 d. Such other instruments as may be reasonably necessary to consummate this Agreement, including, by way of example, closing statements, releases, evidence of the authority of the party executing instruments on Developer's behalf and delivery of instruments required by the Title Company under Schedule C of the Title Commitment. 7.5. Proiect Costs. All costs and expenses related to the Title Commitments, Title Exceptions, Surveys, obtaining any physical inspections, tests, examinations, studies and geotechnical inspections, the title policy premiums (including the cost of any required endorsements to the title policies), the recording fees and escrow fees charged by the Title Company, and all interest, fees, costs and expenses charged by any construction lender with respect to the Project, demolition and remediation expense, Developer's expenses directly attributable to the Project (including, without limitation, salaries) all amounts payable pursuant to the Project Contracts, insurance expense, permit fees and other municipal charges, demolition expense, legal fees and expenses, Release Costs and SUP Costs are herein referred to as "Proiect Costs," which also includes all costs and expenses specifically mentioned herein as included within Project Costs. Real estate taxes and assessments for the fiscal period of Closing will be prorated between City and Developer as of the Closing Date, and such prorated amounts shall be included in Project Costs. City and Developer shall each account for such Project Costs at Closing and shall reapportion it in such manner for the purposes of determining Exchange Value. Excludin2: anv real estate taxes and assessments for the fiscal oeriod of Closin2:, if the oarties fail to consummate the exchan2:e contemolated bv this A2:reement, the Proiect Costs shall not be ororated between Citv and Develooer and Develooer shall be resoonsible for the full oavment of the Proiect Costs. ARTICLE VIII ASSIGNMENT, AND CONFIGURATION .A...ND AIR RICHTS 8.1. Non-Assi2nable. Neither Developer nor City shall assign, transfer, pledge or otherwise encumber or dispose of this Agreement or all or any part of Developer's or City's rights and interest hereunder without the other party's prior written consent and any attempted assignment, transfer, pledge, other encumbrance or disposition (except by Developer to MC Townhomes as provided herein) without such prior written consent shall be void and of no force or effect. 8.2. Collateral Assi2nment. Developer and City hereby irrevocably consent to the collateral assignment of this Agreement and any other Project Contracts to any construction lender and/or any lien holder and their respective successors or assigns (whether one or more, the "Collateral Assi2nee") which has made, or hereafter will make, loans to Developer with respect to the Project, for the purpose of securing the performance of all of Developer's obligations with respect to such loans. Neither Developer nor City shall enter into any modifications, supplements, amendments or addenda to this Agreement without the prior written approval of the Collateral Assignee, if such prior written approval is required by the Collateral Assignee. Developer and City shall look solely to one another for the performance of all of their respective obligations under this Agreement. 8.3. Confi2Uration. City acknowledges that Developer is attempting to purchase the tract outlined in red (the "Isenber2 Tract") on Exhibit D-l attached hereto and incorporated 14 herein by referenced. If Developer acquires the Isenberg Tract not later than thirty (30) days prior to Substantial Completion, the configuration of the Project shall be as set forth on Exhibit D-2 attached hereto and incorporated herein by reference. If Developer does not timely acquire the Isenberg Tract as provided in the preceding sentence, the configuration of the Project shall be as set forth on Exhibit D-3 attached hereto and incorporation herein by reference. 8.1. ."--ir Riehts. The air rights reserved by MC TO'I/Rhomes shall be for that portioR of the Developer Exchange Property outlined in red OR Exhibit D 2 or 3, as appropriate, and being tHe right to use and occupy all of the air space thirty six (36) feet abo':e the CI:lITeRt sl:lfface of that portioR of the Deyeloper EJ{change Property ol:ltlined in red on Exhibit D 2 or 3, as appropriate, which is a mean sea level eql:liyaleRt determined by the 81:lrvey (the "Air Riehts"). ARTICLE IX MISCELLANEOUS 9.1. Approval. A failure by City or Developer to provide a response to any request for consent, approval or other authorization hereunder within five (5) days after request therefor shall conclusively be construed to constitute consent, approval or other authorization with respect to the matter in issue. 9.2. Communications. The parties hereto agree to act in good faith and in a reasonable manner as to all matters herein contained, except as otherwise provided herein. The parties hereto also agree to meet and conference by phone as often as reasonably necessary to accomplish the purposes of this Agreement. 9.3. Notice. Any notice provided in or permitted under this Agreement shall be made in writing and may be given or served by (i) delivering the same in person to the party to be notified, (ii) depositing the same in the U.S. mail, postage prepaid, registered or certified with return receipt requested, and addressed to the party to be notified at the address herein specified, (iii) by nationally recognized overnight courier or (iv) when sent by facsimile or electronic transmission as shown below provided that the same is sent during the normal business hours of the party to whom it was sent, and written confirmation of the sending of such facsimile is obtained. If notice is deposited in the mail pursuant to clause (ii) of this Section 9.3, it will be deemed received three (3) days following deposit in a post office or other depository under the care or custody of the United States Postal Service. Notice given in any other manner shall be deemed received only if and when actually received by the party to be notified. For the purpose of notice, the address of the parties shall be, until changed as hereinafter provided for, as follows: If to Developer: Prescott Realty Group, Inc. 6060 N. Central Expressway, Suite 642 Dallas, Texas 75206 Fax No.: (214) 750-0031 Phone No.: (214) 750-0009 Attn: Vance E. Detwiler vdetwiler@prescottrealtygroup.com 15 with a copy to: If to City: with a copy to: Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 Fax No.: (214) 661-6605 Phone No.: (214) 953-5934 Attn: Bryan C. Birkeland bbirkeland@iw.com The City of University Park 3800 University Blvd. University Park, Texas 75205 Fax No.: (214) 987-5399 Phone No.: (214) 363-1644 Attn: Bob Livingston, City Manager and Gene "Bud" R. Smallwood, Director of Public Works Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza Dallas, Texas 75201 Fax No.: (214) 965-0010 Phone No.: (214) 965-9900 Attn: Robert L. Dillard, III rdillard@nidhs.com The parties shall have the right from time to time and at any time to change their respective addresses and each shall have the right to specify, as its address any other address by at least fifteen (15) days prior written notice to the other party. Each party shall have the right from time to time to specify additional parties to whom notice hereunder must be given by delivering to the other party fifteen (15) days prior written notice thereof, setting forth the address of such additional parties. Notice required to be delivered hereunder to either party shall not be deemed to be effective until the additional parties, if any, designated by such party have been given notice in a manner deemed effective pursuant to the terms of this Section 9.3. 9.4. Captions. The titles or captions contained in this Agreement are for convenience only and shall neither restrict nor amplify the provisions hereof. 9.5. Gender. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or entity may reqUIre. 9.6. Entire Agreement/Amendment. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, unless otherwise provided herein or in any other existing or future written agreement between City and Developer with respect to the subject matter hereof. This Agreement shall not be amended or changed except by written instrument signed by both parties hereto. 16 9.7. Severable Provisions. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, the provision in question to any other extent, and the application thereof to any other person or circumstances, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 9.8. Governing Law. The laws of the State of Texas shall govern the validity, enforcement and interpretation of this Agreement without regard to the conflict law rules of such state. The parties hereto acknowledge and agree that the negotiations and execution of this Agreement have occurred in Dallas County, Texas, the obligations of the parties hereto are performable in Dallas County, Texas, and the parties hereto hereby consent that the exclusive venue for any legal action arising out of this Agreement shall be in Dallas County, Texas. 9.9. Attornevs' Fees. In the event of any controversy, claim or dispute between the parties affecting or relating to the subject matter or performance of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party of all its reasonable expenses, including the reasonable fees and costs of the prevailing party's attorneys, expert witnesses and accountants. 9.10. Successors; Assignment. This Agreement constitutes a legal, valid and binding agreement between the parties hereto, enforceable against each in accordance with its terms and provisions, except as limited by bankruptcy, insolvency, receivership and similar laws from time to time in effect, and shall inure to the benefit of and bind the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. 9.11. Consequential Damages. Neither City nor Developer shall bear any liability to the other for loss of production, loss of profits, loss of business or any other indirect or consequential damages, but neither party waives any right to make any claim against the other party for any actual or direct damages alleged to have been caused by a breach of any of the provisions of this Agreement. 9.12. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement, intended or otherwise. 9.13. Event Date. A business day for the purposes of this Agreement shall be any day except Saturday, Sunday or a day on which national banks in Dallas, Texas are permitted to be closed. Any act performable on a day that is not a business day shall be performable on the next business day following such date. 9.14. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of original counterparts, which together shall constitute the agreement of the parties. Facsimile signatures hereto shall be deemed to be original signatures and binding on the parties hereto. 9.15. Commission. City and Developer each warrant and represent to the other that no agent or broker is entitled to a commission or fee as a result of this exchange, and City and Developer each agree to indemnify and hold the other party harmless from any loss, liability or expense suffered by the other party by reason of a breach of such warranty or representation. ]7 EXECUTED and effective as of the date first written above. CITY: THE CITY OF UNIVERSITY PARK, a municipal corporation organized under the laws of the State of Texas By: Name: Title: DEVELOPER: PRESCOTT REALTY GROUP, INC., a Texas corporation By: Name: Title: Schedule of Exhibits Exhibit A Exhibit B Exhibit C Exhibit D Exhibit D-l Exhibit D-2 Exhibit D-3 Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I UP Exchange Property UP Peek Center Property UP Storage Property Developer Exchange Property Preliminary Budget Design Criteria Site Plan Building Elevations Declaration 18 3877366v.~U D b T d b o 44:15 PM ocument comparison done >y DeltaView on ues ay, Decem er 27, 20 57: Input: Document 1 PowerDocs:IIDOCSOPEN/3877366/12 Document 2 PowerDocs:IIDOCSOPEN/3877366/13 Rendering set standard Legend: Insertion Deletion Moyed from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions 6 Deletions 9 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 15 AGENDA MEMO (01/03/2006 AGENDA) DATE: December 29, 2005 TO: Honorable Mayor and Members of the City Council FROM: Gerry Bradley, Director of Parks SUBJECT:Goar Park/City Hall Landscape Design and University Blvd. Enhancements – Contract Amendments BACKGROUND: During the December 12, 2005, City Hall Oversight Committee meeting, the Landscape Architectural Firm of Newman, Jackson, Bieberstein (NJB) requested additional funding to support design changes associated with the Goar Park /City Hall Landscape Design and the University Blvd. Enhancement Project. ? Goar Park/City Hall Landscape – Contract Amendment #1 Direction was given to NJB by the Oversight Committee to provide construction drawings for culvert façade, walls and railings to be included in Cost $9,500.00 bid documents for the City Hall culvert project. ? University Blvd. Enhancement Project – Contract Amendment #1 City Council approved the railing redesigns on September 20, 2005 in an Cost $1,497.00 effort to improve the railing’s overall aesthetics. The City Hall Oversight Committee unanimously supported both contract amendments and requested staff to request final approval from City Council. Attached, please find a summary of the existing landscape and architectural contracts, proposed amendments and associated costs. RECOMMENDATION: Staff is requesting City Council approve the contract amendments requested by NJB and recommended by the City Hall Oversight Committee. ATTACHMENTS: Contract Amendment Tabulation 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\Contract Amendments.doc 1:16 PM 12/29/05 Goar Park/City Hall Landscape and University Boulevard Enhancement Projects Tabulation of Landscape Design Contracts and Amendments Item. Description Goar Park I City Hall Landsca~ Original Contract -Planni ng for Goar Park improvements including stream design and planting plans at the City Hall expansion; design recommendations only for culvert fa~ade, walls and railing enhancements related to Turtle Creek Improvements. Amount Status $41,015.00 Approved City Council September 2004 Amendment #1 to Contract - to provi de full co nstructi on documents for culvert fa~ade, walls and railing enhancements to be included in box culvert construction documents. $ 9,500.00 Committee Authorization May 2005 New Contract Amount $50,515.00 Un ivers ity SOU levard Enhancements Original Contract- Design recommendations only for culvert fa~ade, walls and railing enhancements in theWilliamsPark.,areEl south. -'" ',' :.. of City Hall and University BoulevaFd. $ 7,220.00 Approved City Council Janua ry 2005 Amendment #1 to Contract - to revise approved railing details per City request a nd to revi se c ulvert fa~ade and wa II elevati ons at Uni versity Bo ulevard. $ 1.497.50 Approved City Council September 2005 New Contract Amount $ 8,717.50 AGENDA MEMO (01/03/06 AGENDA) MEMORANDUM DATE: December 29, 2005 TO: Mayor and City Council FROM: Bob Livingston, City Manager SUBJECT: Request for Additional Fees from LAD for City Hall Design Work Request History Attached is a request from Larry Keen for additional fees resulting from needed changes to the plans for City Hall. The changes are the result of modifications that have occurred since the project was put in its present form over five years ago. Major reasons for the changes include: ? Standards required by the Commission on Accreditation for Law Enforcement Agencies (CALEA) for ventilation and dehumidification of the armory and vault. ? CALEA standards for police holding facilities. ? Addition of a office to the executive area for the Community Information Officer. ? Incorporation of changes in the council chambers into the plans. (This area was previously excluded from the plans since no major changes were contemplated). Additionally, LAD is requesting $8,603 for costs associated with restarting the project because of the length of time since initial work began. $1,500 of this request is from LAD and the remaining $7,103 from its subcontractors such as the Mechanical, Electrical, Plumbing Engineer, and the Structural Engineer Total additional fees requested are $26,880. If approved, this will bring the total design cost for the project for LAD to $708,936 ($682,056 + 26,880). With a current estimated cost of $11.5 million, the fee is 6.2% of that cost. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\LADFEES010306.doc 3:08 PM 12/29/05 Oversight Committee Recommendation December 13, 2005, the City Hall Oversight Committee reviewed the request. After discussion, they recommended approval of the $18,277 portion of the request that involved changes in the design. They did not recommend approval of the $8,603, or “restart fee” related to the project’s length. Summary I have asked Larry Keen or another representative from LAD to be present at the meeting on Tuesday to provide additional information on all phases of their request. In the meantime, if you have questions, please let me know. 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\LADFEES010306.doc 3:08 PM 12/29/05 ê Ò±ª»³¾»® îððë Ó®ò Þ±¾ Ô·ª·²¹¬±²ô Ý·¬§ Ó¿²¿¹»® Ý·¬§ ±º ˲·ª»®·¬§ п®µ íèðð ˲·ª»®·¬§ Þ´ª¼ò ˲·ª»®·¬§ п®µô Ì»¨¿ éëîðë λæ Ý·¬§ Ø¿´´ Û¨°¿²·±² ¿²¼ λ²±ª¿¬·±² Ü»¿® Þ±¾æ × ¿³ô ¾§ ¬¸· ´»¬¬»®ô ®»°±²¼·²¹ ¬± §±«® ®»¯«»¬ º±® ¿² »¨°´¿²¿¬·±² º±® ±«® ®»¯«»¬ º±® ¿¼¼·¬·±²¿´ ³±²·» º±® ¬¸» ®»ó·²·¬·¿¬·±² ±º °®±º»·±²¿´ ¼»·¹² »®ª·½» º±® ¬¸» ˲·ª»®·¬§ п®µ Ý·¬§ Ø¿´´ Û¨°¿²·±² ¿²¼ λ²±ª¿¬·±²ò × ±ºº»® ¬¸» º±´´±©·²¹ ·² ¬¸» ¸±°» ¬¸¿¬ ·¬ ©·´´ ¾» º¿·®´§ »ª¿´«¿¬»¼ ¿²¼ ±«® ®»¯«»¬ ¹®¿²¬»¼ò ̸» °®±¶»½¬ ©¿ ±ºº·½·¿´´§ ®»ó¬¿®¬»¼ º±® ¬¸» ¬¸·®¼ ¬·³» ·² Ò±ª»³¾»® îððìò ߬ ¬¸¿¬ ¬·³»ô ©» »²¹¿¹»¼ ±«® ¬®«½¬«®¿´ ¿²¼ ³»½¸¿²·½¿´ ½±²«´¬¿²¬ ©·¬¸ ¬¸» ·²¬»²¬ ±º ¿¼ª¿²½·²¹ ¬¸» °®±¶»½¬ º®±³ ·¬? ¼±®³¿²¬ ¬¿¬«ò É» ©±®µ»¼ ¬±©¿®¼ô ¿²¼ ·² º¿½¬ °®±¼«½»¼ô ¬¸» êðû ݱ²¬®«½¬·±² ܱ½«³»²¬ п½µ¿¹» º±® ¬¸» °®±¶»½¬ò ײ ¿¼¼·¬·±² ©» ©»®» ¿¼ª¿²½·²¹ ¬¸» ¼»·¹² º±® ¬¸» ·²¬»®·±® º·²·¸» º±® ¬¸» °®±¶»½¬ò ײ Ú»¾®«¿®§ ±º îððë ©» ©»®» ²±¬·º·»¼ ¬¸¿¬ ¬¸» ·²¬»®·±® ¼»·¹² ©±«´¼ ¾» ½±³°´»¬»¼ ¾§ ¿²±¬¸»® º·®³ò Þ»½¿«» ¬¸» ½±³°´»¬·±² ±º ¬¸» ݱ²¬®«½¬·±² ܱ½«³»²¬ ¼»°»²¼»¼ ¸»¿ª·´§ ±² ¬¸» ·²º±®³¿¬·±² ¬± ¾» ¼»ª»´±°»¼ ¿ °¿®¬ ±º ¬¸» ·²¬»®·±® ¼»·¹² »ºº±®¬ô ©» «°»²¼»¼ ©±®µ ±² ¬¸» °®±¶»½¬ ¿¬ ¬¸¿¬ ¬·³»ò ɸ·´» ¬¸» °®±¶»½¬ô º®±³ ¬¸» °»®°»½¬·ª» ±º ÔÛÑ ß ÜßÔÇ ¿²¼ ±«® ½±²«´¬¿²¬ô ©¿ ±² ¸±´¼ º®±³ Ú»¾®«¿®§ «²¬·´ ²±©ô ©» ½±²¬·²«»¼ ¬± ¿·¬ §±«ô §±«® ¬¿ººô ¿²¼ ¬¸» ·²¬»®·±® ¼»·¹² ½±²«´¬¿²¬ ¬± ¿¼ª¿²½» ¬¸»·® ©±®µ ·² ¿ ³¿²²»® ©¸·½¸ ©·´´ ¾» ½±²¼«½·ª» ¬± ¿ ³±±¬¸ ®»ó »²¹¿¹»³»²¬ ±º ±«® »ºº±®¬ ©¸»² ®»´»¿»¼ ¬± °®±½»»¼ ©·¬¸ ¬¸» ݱ²¬®«½¬·±² ܱ½«³»²¬ò ß´´ ±º ¬¸» ¬·³» °»²¬ ¾§ ÔÛÑ ß ÜßÔÇ ¿²¼ ±«® ½±²«´¬¿²¬ ¼«®·²¹ ¬¸» ·²¬»®ª»²·²¹ ³±²¬¸ ¸¿ ¾»»² °»²¬ ©·¬¸±«¬ ®»¯«»¬ º±® ¿¼¼·¬·±²¿´ ³±²·»ò ß §±« ¸¿ª» ²±© ®»¯«»¬»¼ ¬¸¿¬ ©» ®»«³» ©±®µ ±² ¬¸» °®±¶»½¬ ¬¸» ¬»¿³ · ®»¯«»¬·²¹ ¿² ¿¼¼·¬·±²¿´ «³ ±º üèôêðíòð𠺱® °®±¶»½¬ ®»ó·²·¬·¿¬·±² º»»ò ̸· ®»¯«»¬ · ¬± ±ºº»¬ ¬¸» ´¿¾±® ®»¯«·®»¼ ¬± ®»óº¿³·´·¿®·¦» »¿½¸ ¬»¿³ ³»³¾»® ©·¬¸ ¬¸» °®±¶»½¬ °¿®¿³»¬»®ô ®»ª·»© ¬¸» ¬¿¬« ±º »¿½¸ °»½·º·½ ½±³°±²»²¬ ©¸»² ©±®µ ½»¿»¼ ´¿¬ Ú»¾®«¿®§ ¿²¼ ½±²º·®³ ¬¸» ½±°» ±º ¬¸» °®±¶»½¬ º®±³ ¬¸· °±·²¬ º±®©¿®¼ò ̸· ©·´´ ®»¯«·®» »ª»®¿´ ¿¼¼·¬·±²¿´ ½±±®¼·²¿¬·±² ³»»¬·²¹ ¿ ©»´´ ·²½» ¬¸» ¬»¿³ ¸¿ »¨°»®·»²½»¼ ¿ ½¸¿²¹» ·² °»®±²²»´ ±ª»® ¬¸» ·²¬»®ª»²·²¹ ³±²¬¸ò Þ±¾ô ©» ¾»´·»ª» ¬¸· ¬± ¾» ¿ º¿·® ®»¯«»¬ò ß §±« ¿®» ¿©¿®»ô ¬¸» °®±¶»½¬ ¸¿ ¾»»² °´¿½»¼ ±² ¸±´¼ ¿¬ ´»¿¬ ¬¸®»» ¬·³» ¼«®·²¹ ³§ ·²ª±´ª»³»²¬ ©¸·½¸ ¾»¹¿² ·² Ú»¾®«¿®§ îððïò Ü«®·²¹ ¿´´ ±º ¬¸» ¼±®³¿²¬? °»®·±¼ ±º ¬¸» °®±¶»½¬ ©» ¸¿ª» ½±²¬·²«»¼ ¬± ©±®µ ©·¬¸ §±«ô §±«® ½±²«´¬¿²¬ô ¬¸» »²¬·®» ˲·ª»®·¬§ п®µ ¬¿ºº ¿²¼ Ý·¬§ ݱ«²½·´ ©·¬¸±«¬ ¿¼¼·¬·±²¿´ º»» »ª»² ¬¸±«¹¸ ¬¸» ½±¬ ¬± ÔÛÑ ß ÜßÔÇ ¸¿ ¾»»² «¾¬¿²¬·¿´ò É» ¸¿ª» ¼±²» ± ¾»½¿«» ±º ±«® ·²½»®» ¾»´·»º ¬¸¿¬ ¾«·´¼·²¹ ¿ ´¿¬·²¹ ®»´¿¬·±²¸·° ®»¯«·®» ¿ ½±³³·¬³»²¬ ¾»§±²¼ °®±º·¬ò ߬ ¬¸» ¿³» ¬·³»ô × ³«¬ ®»½±¹²·¦» ¬¸¿¬ ¬¸»®» ¿®» ´·³·¬ ¬± ³§ ½±³°¿²§?ô ¿²¼ ³§ ½±²«´¬¿²¬ô ¿¾·´·¬§ ¬± ©±®µ ©·¬¸±«¬ ½±³°»²¿¬·±² ¿²¼ ¿¾±®¾ º·²¿²½·¿´ ´±ò ׬ · º±® ¬¸· ®»¿±² ¬¸¿¬ ©» ¿µ º±® ¬¸» ®»ó·²·¬·¿¬·±² º»»ò × ¸±°» ¬¸· °®±ª·¼» §±« ©·¬¸ ¬¸» »¨°´¿²¿¬·±² §±« ®»¯«·®»ò × ¬¿²¼ ®»¿¼§ô ¿ ¿´©¿§ô ¬± «°°±®¬ ¬¸· ®»¯«»¬ ·² ©¸¿¬»ª»® ³¿²²»® §±« ¼»»³ ¿°°®±°®·¿¬»ò Ê»®§ ¬®«´§ §±«®ô ÔÛÑ ß ÜßÔÇ Ô¿®®§ Õ»»²ô ß×ß Ð®±¶»½¬ Ó¿²¿¹»® ß±½·¿¬» ½½æÚ·´» Ö±¸² Õ®¿µ·»©·½¦ ÖæÄïìîëððððÄîðê ݱ®®»°±²¼»²½»ÄßóÝ´·»²¬ÄÞÔïîðêðë ÓÛÓÑò¼±½ AGENDA MEMO (01-03-06 AGENDA) DATE: December 29, 2005 TO: Bob Livingston City Manager FROM: Jennifer Shell, P.E. Civil Engineer SUBJECT: Consider Change Order No. 4 for the Turtle Creek Box Culvert for City Hall Expansion, Project 43710 Consent Agenda The City Council approved a contract in the amount of Background. $3,242,610.90 on June 7, 2005, to Jeske Construction to construct the Turtle Creek Box Culvert for City Hall Expansion. Retaining wall repairs to a portion of the creek west of City Hall are requested to be included under this project. The adjacent property owner will also be making repairs to his property when these repairs are made. Approximately 185 linear feet of creek wall will be remediated. The original contract sum $ 3,242,610.90 The amount of previously authorized change orders $ 181,039.40 The amount requested for this change order $33,419.00 The net contract sum including this change order $ 3,457,069.30 The contract time will not be increased Revised contract amount in percent of original contract 106.61% Staff recommends City Council approval of Change Order Recommendation. #4 to the contract with Jeske Construction in the amount of $33,419.00 . Attachment: Jeske CO4.pdf 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\AM 43710_CO4 01 03 06.doc 2:35 PM 12/29/05 AGENDA MEMO (01/03/06 AGENDA) DATE: December 29, 2005 TO: Honorable Mayor and City Council FROM: Jacob Speer, Assistant Director of Public Works SUBJECT: Consider: Change Order to Project 45220 for Battery Backup System at Various Signalized Intersections ITEM: At the December 13, 2005 meeting, Council awarded a contract to Consolidated Traffic Controls, Inc. for the installation of video detection and radio-interconnect systems at all signalized intersections in the City. That contract award totaled $418,997.00. As was discussed at the previous meeting, new signal light technology allows intersections to operate effectively on battery power in the event of a power outage. This type of redundant system would greatly improve the safety of our streets in the event of a storm or other power outage. It would also eliminate the need for the costly practice of having employees install and remove portable stop signs at all intersections when power is lost. Consolidated Traffic Controls has submitted a price quote to include the installation of battery backup units in conjunction with the original signal work. The quoted price for material and installation is $4,300.00 per intersection. Given this price, a maximum change order not to exceed 25% of the original contract amount would allow us to install battery backups on 24 of the City’s 33 signalized intersections. Attached is a list of the intersections staff proposes to equip with backup units. The remaining intersections can be upgraded when major upgrades/replacements are made to the signals at those intersections. The total cost of the proposed change order is $103,200.00 (24.6% of the original contract amount.) There is sufficient funding allocated to this project to cover the proposed change order. RECOMMENDATION: Staff recommends approval of a change order in the amount of $103,200.00 to Project 45220 for the installation of battery backup units at 24 intersections. ATTACHMENTS: ? Proposed installation list 3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644 C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\Proj 45220 CO 1 - UPS.doc 1:38 PM 12/29/05 Priority Intersection Cumulative Cost Comments 1 Preston & Lovers $ 4,300 2 Hillcrest & Lovers $ 8,600 3 Hillcrest & Southwestern $ 12,900 4 Preston & University $ 17 ,200 5 Preston & Greenbrier $ 21,500 6 Preston & Purdue $ 25,800 7 Preston & Colgate $ 30,100 8 Preston & Centenary $ 34,400 9 Preston & Villanova $ 38,700 10 Hillcrest & Daniel $ 43,000 11 Hillcrest & Caruth $ 47,300 12 Hillcrest & McFarlin $ 51,600 13 Hillcrest & University $ 55,900 14 Hillcrest & Milton $ 60,200 15 Hillcrest & Asbury $ 64,500 16 Hillcrest & Granada $ 68,800 17 Hillcrest & Binkley $ 73,100 18 Hillcrest & Normandy $ 77 ,400 19 Lovers & Airline $ 81,700 20 Lovers & Douglas $ 86,000 21 Lovers & Turtle Creek $ 90,300 22 Lovers & Dickens $ 94,600 23 Lovers & Boedeker $ 98,900 24 Lovers & Armstron $ 103,200 Last Intersection on CIO 25 Preston & McFarlin Include in So Preston Proi. 26 Preston & Normandy Include in So Preston Proj. 27 Preston & S1. Andrews Include in So Preston Proj. ~ 28 Lovers & Westchester Uoarade at later date 29 University & DOlJalas Uoarade at later date 30 University & Armstror!a Uoarade at later date 31 Airline & Daniel Uoarade at later date , 32 Preston & Glenwick Uoarade at Ia,ter date 33 Dublin & Airline Uoarade at later date Traffic Signal UPS Installation List C:\Docurnents and Settings\nwilson\Local Settings\Ternporary Internet Files\OLK31\Traffic UPS CITY OF UNIVERSITY PARK, TEXAS FINANCE ADVISORY COMMITTEE TUESDAY, DECEMBER 13, 2005 at 7:30 A.M. M I N U T E S Committee members attending: Others present: Atwood, John Austin, Kent – Director of Finance Coleman, Russ Tvardzik, Tom – Controller Harralson, Howell Reeder, Dotti Stuart, John Wilson, Claude Carter, Syd – Council member Absent: Kelley, Terry Noble, Julie Olmsted, Bob – Chair 1. Call to order. John Stuart suggested the meeting be called to order at 7:35 a.m. 2. Review/approve minutes of September 13, 2005, meeting. John Atwood moved approval of the September 13, 2005, meeting minutes. John Stuart seconded, and the motion was approved 6-0. 3. Review July-September 2005 City investment report. The Committee briefly discussed the quarterly investment report. The City’s average portfolio yield rose from 2.89% to 3.19%; the invested balance market value fell from $48.9 million to $45.3 million. Total investment income for FY2005 was $1.2 million, compared to $808,909 in FY2004. 4. Review monthly financial report. The Committee reviewed the October 2005 fund report. No action was taken. 5. Follow-up items: a. City Hall project – Kent Austin noted that the concrete box culvert work behind City Hall was proceeding on schedule. b. Sales tax recovery – Kent Austin reviewed the results of the sales tax recovery project, which produced $1,922,143.01 in reallocated sales taxes to UP. The Committee discussed ways to inform merchants and residents of using “University Park” in their return address. Austin said a letter was being prepared to accompany the certificate of occupancy for new businesses. C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\Minutes FAC 12-13-2005.doc 12/29/05 6.New business. Tom Tvardzik mentioned the upcoming new GASB statements regarding Other Post- Employment Benefits (OPEB), which for University Park means healthcare. He distributed an article provided by Committee member Russ Coleman entitled, “The Next Retirement Time Bomb” (New York Times, 12/11/2005). Austin told the Committee that City of University Park retirees are permitted to purchase the City’s health insurance coverage until they reach Medicare age. Currently the City has 14 such retirees included in the City’s self-funded health insurance program. Austin said that staff had attended meetings with other north Texas cities, who proposed to jointly hire an actuary to develop the estimates of OPEB costs for participating cities. The GASB statements take effect for University Park in 2008. Next the Committee asked about the Firefighters Relief and Retirement Fund. Staff reported that they were still awaiting the actuarial valuation from Rudd & Wisdom. Claude Wilson recommended that an attorney general’s opinion be requested regarding whether the City can make a payment to an entity that it is not required to make. Staff agreed to copy the Committee members on the draft actuarial report and that both immediate and long-term solutions be identified. Some Committee members suggested the City Council appoint a task force to work with the FRRF Board, staff, and Council to develop solutions. Austin agreed to relay the information to the Mayor and Council. 7. Set next Committee meeting date. The Committee set the next meeting for the second Tuesday in March (3/14/2006). 8. Adjourn. The meeting adjourned at 8:32 a.m. C:\Documents and Settings\nwilson\Local Settings\Temporary Internet Files\OLK31\Minutes FAC 12-13-2005.doc 12/29/05