Ord 36-2013 7/16/2013ORDINANCE NO. 36 -2013
Ordinance Appropriating Funds From The Tax Increment Financing
(TIF) Reinvestment Zone #2 Fund For Various Projects As Outlined In
The TIF Zone #2 Project And Financial Plan And As Recommended
By The TIF #2 Board, For The Maplewood Crossing Project At 3905
Lawrence Road In An Amount Of $15,645 And For The Rhea -
Lawrence -Call Field Realignment Project Bond Reimbursement In An
Amount Of Up To $150,000 Annually (Maximum Of $2,000,000); And
Authorizing The City Manager To Enter Into Agreements For The
Stated Funds
WHEREAS, the City Council has created the Tax Increment Financing
Reinvestment Zone #2 (TIF #2) for the purposes of encouraging economic development
and increasing the tax base in the area around Lawrence and Maplewood;
WHEREAS, the City Council wishes to pursue the development of public
infrastructure, including streets, utilities, and drainage improvements;
WHEREAS, on November 17, 2010, the Board of Directors of TIF #2
recommended an expenditure for the Maplewood Crossing at 3905 Lawrence, which is
embodied in the attached agreement with Joe Nield and Charles Berry in an amount of
$15,645;
WHEREAS, on June 15, 2011, the Board of Directors of TIF #2 recommended an
expenditure for the Rhea - Lawrence -Call Field Intersection Project, in an amount of
$150,000 per year, up to $2,000,000;
WHEREAS, an increment of project funds did not become available to fund any
requests until the current fiscal year; and
WHEREAS, the City Council finds that the expenditures described herein:
(1) have been recommended by the TIF #2 Board of Directors,
(2) provide for activities that benefit the TIF #2 Zone and stimulate business
and commercial activity in the TIF #2 zone,
(3) are necessary or convenient to implement the TIF #2 project plan,
(4) provide for the public purposes of developing and diversifying the
economy of the TIF #2 zone, and
(5) comply with all provisions of Texas Tax Code § 311.001, et seq., the Tax
Increment Financing Act.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
1. TIF #2 funds in the amount of $15,645 are hereby appropriated for project
improvements (drainage channel sewer) at 3905 Lawrence Road (Lot 1; Block 1,
Maplewood Crossing), and the City Manager is authorized to execute the attached
Development, Release, and License Agreement between Joe Nield & Charles
Berry and the City of Wichita Falls for $15,645 of Tax Increment Financing
Reinvestment Zone #2 Funds, providing for development, improvements, and
property rights associated with said project improvements, with such changes to form
as are approved by the City Attorney.
2. The remaining available TIF #2 funds for the current fiscal year, in an amount
not to exceed $150,000, are hereby appropriated for the Rhea - Lawrence -Call Field
Realignment Project Bond Reimbursement, and the City Manager is authorized to
execute an agreement with the Wichita Falls 4B Sales Tax Corporation providing for
expenditures related to the aforementioned Project Bond Reimbursement, in an amount
of $150,000 annually and a total amount not to exceed $2,000,000 from TIF #2 funds, in
a form to be approved by the City Attorney.
PASSED AND APPROVED this the 16th day of July, 2013.
cx-t�J'U'
MAYOR
ATTEST:
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Acting City Cler
Development, Release, and License Agreement between
Joe Nield & Charles Berry and the City of Wichita Falls for
$15,645 of Tax Increment Financing Reinvestment Zone #2 Funds
Whereas, Joe Nield and Charles Berry originally owned 3905 Lawrence Road, known as Lot 1, Block 1, Maplewood
Crossing, and neighboring property, described herein as the " Nield and Berry Tract ", depicted in the following
Aerial Photo.
Aerial Photo
Whereas, on November 17, 2010, the Tax Increment Financing Reinvestment Zone #2 ( "TIF #2 ") Board of Directors
recommended the transfer of future tax increment funds of the City of Wichita Falls ( "City") to Charles Berry and
Joe Nield ( "Recipients ") to assist with costs related to an extension of a Sewer Main Connection (depicted by dashed
line above) under the concrete -lined Quail Creek Drainage Channel to the southwest of the Maplewood and
Lawrence Road intersection;
Whereas, Recipients, in reliance on the TIF #2 recommendation, installed such sewer facilities for City acceptance on
May 11, 2011, at a cost of $15,645, which became the maximum amount to be authorized pursuant to the
aforementioned recommendation;
Whereas, no increment is projected to become available in TIF #2 until summer of the current year, subject to
allocation by the City Council with other funds of saidZone;
Whereas, the City desires to ensure the public can have continuous access across the property described in the
attached "Access Easement' for the term of this agreement to alleviate traffic pressures in nearby thoroughfares
during times of construction thereon;
Whereas, to ensure that any title problems potentially created by this transaction can be cured, the Recipients agree
that they may obtain termination of this agreement at any time by transferring$15,645 to the City;
Whereas, the parties find that this funding complies with the Project Plan for TIF #2 in that the funded project
facilitates the use of Intersection improvements at the intersection of Lawrence & Maplewood.
Now therefore, the parties agree as follows:
1. Development Agreement Funding.
a. The Recipients represent and agree that they have installed sewer facilities at the following location in the
amount of $15,645 to perform the following services in a satisfactory and proper manner as determined by
the City, in accordance with the Project Plan for TIF #2.
b. The City agrees to pay Recipients the total sum of $15,645 in exchange for the aforementioned services
and for other services and rights described in this agreement that have not yet been completely performed,
at such times as the increment becomes available in TIF #2.
c. Whereas, the findings and provisions of this documents shall not be effective until both availability of the
aforementioned increment in TIF #2 and payment of the aforementioned$15,645 to the Recipients.
2. Release.
Prior to this date, the Recipients have claimed damages from placement of excessive fill on the Nield & Berry Tract
and for estoppel damages, based on their reliance upon the TIF #2 Board's recommendation (known as the
"Recipients' Claims "). The Recipients release, acquit and forever discharge the City from any and all claims that
Recipients may have against the City of any and all liability, actions, causes of action, claims, demands or suits
whatsoever, which Recipients have or may claim to have as of the date of this release, including but not limited to the
Recipients' Claims. Included in this release are any and all claims that Recipients may have that are related to
Recipients' ownership of the " Nield & Berry Tract ".
The City disputes the Recipients' Claims, and does not waive any defenses it may have against any of the Recipients'
Claims. This settlement is not admission of City liability for any part of the Recipients' Claims and is a compromise
of a disputed claim, and shall not be held or construed as any sort of confession or admission of guilt in any suit or
proceeding, no matter by whom same may be brought. It is further understood that in making this release, Recipients
have relied wholly upon their judgment and knowledge and the judgment and knowledge of their own engineer and
attorney. Recipients state that they have not been influenced to any extent whatsoever in making this release by any
representations or statements regarding said injuries or damages or regarding liability or other matters made by the
City or by any employees or agents of said City of Wichita Falls.
3. License to Cross Access Easement (Not an Assignment of the Easement). The Recipients own an access
easement across property owned by TXU (depicted in Exhibit A and in green as "TXU Easement" in above photo).
The Recipients hereby authorize the City and public to utilize said Access Easement pursuant to Recipient's rights
under the TXU Easement. This authorization to traverse the TXU Easement is not an easement or an assignment of
the Access Easement granted by TXU to the Recipients. This authorization shall expire 20 years after the execution
of this document.
4. Early Termination of Agreement. This right to cross the aforementioned Access Easement across TXU property
may be terminated prior to its expiration upon payment of $15,645 to the City. Termination shall be immediate and
automatic upon the remitting of said payment to the City Manager.
5. Maintenance and Use of TXU Easement. This right to cross the aforementioned Access Easement across TXU
property is merely a right of use and shall not obligate the City to provide any services or maintenance on the TXU
Easement. The Recipients shall continue to maintain the Easement Tract. The City shall not be obligated to pave,
maintain, or otherwise provide for access on or across the TXU Easement.
6. No Commitment for Future Funding. The funding of this project in no way commits the City to future funding
of this program beyond the current contract period. Any future funding is solely the responsibility of the Contractor.
7. Political Activity Prohibited. None of the funds, materials, property or services provided directly or indirectly
under this contract shall be used in the performance of this contract for any partisan political activity. None of the
funds provided under this contract shall be used for publicity or propaganda purposes designed to support or defeat
legislation pending before any governmental entity.
8. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
9. Venue & Choice of Law. This document shall be governed by and construed in accordance with the laws of the
State of Texas and of the United States of America, and the exclusive venue for any proceeding related to this
document shall be in Wichita County, Texas.
10. Miscellaneous. The exhibits appended hereto are incorporated in and made a part of this document, the same as
if copied and set forth at length. The captions in this document are for convenience only, and shall be accorded no
substantive meaning in the interpretation hereof. All exhibits identified in this Agreement are attached and
incorporated as if fully set forth herein by reference.
11. Addresses of Parties. The Recipients' mailing addresses are: Joe Nield, , Wichita Falls,
Texas and Charles Berry, , Wichita Falls, Texas The City's mailing
address is The City of Wichita Falls Legal Department; P.O. Box 1431; Wichita Falls, Texas 76307.
Executed this _ day of 20
Recipients (Joe Nield and Charles Berry):
Joe Nield
Acknowledgment
The State of Texas
County of Wichita
This instrument was acknowledged before me on the day of 20_by
Notary Public (seal)
Charles Berry
Acknowledgment
The State of Texas
County of Wichita
This instrument was acknowledged before me on the day of , 20_ by
Notary Public (seal)
City of Wichita Falls:
Darron Leiker, City Manager
Acknowledgment
The State of Texas
County of Wichita
This instrument was acknowledged before me on the day of , 20 by Darron Leiker, City
Manager for the City of Wichita Falls, a Texas municipal corporation, on behalf of said corporation.
Notary Public (seal)
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AN EASEMENT FOR ACCESS IN WICHITA COUNTY, 'TEXAS, BEING PART OF THE W. W. BROWN
SURVEY, A -794 AND THE ANNIE CUMMINGS SURVEY, A -810, BEING PART OF THAT 2.84 ACRE
TRACT OF LAND ORIGINALLY CONVEYED TO TEXAS ELECTRIC SERVICE COMPANY ("TESCO ") IN.
VOLUME 8.79, PAGE 622, ' WICHITA COUNTY DEED RECORDS AND BEING MORE SPECIFICALLY
DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A POINT FOR SOUTHWEST CORNER OF THIS EASEMENT LYING IN THE- SOUTH LINE
OF SAID ORIGINAL TESCO TRACT, SAID POINTS BEARS NORTH 89'49'47" EAST 174.44 FEET
FROM A 1/9.. INCH IRON ROD -FOR THE NORTHEAST CORNER OF LOT 1, BLOCK 1, MAPLEWOOD .,
CROSSING `AN ' ADDITION TO THE CITY--OF WICHITA FALLS AS' RECORDED IN VOLUME : 28, PAGE
;
668, WICHITA COUNTY PLAT RECORDS;
THENCE ACROSS SAID TESCO TRACT, NORTH 60'05'05 EAST 12.08 FEET AND NORTH 00010'14"
WEST 39.00 FEET TO A POINT IN. •THE SOUTH LINE OF A 1.26 ACRE TRACT .CONVEYED TO THE
CITY OF WICHITA FALLS BY TXU ELECTRIC DELIVERY AND DESCRIBED IN VOLUME 3058, PAGE
526, OFFICIAL PUBLIC RECORDS OF WICHITA COUNTY, FOR THE NORTHWEST CORNER OF THIS -
DESCRIPi1ON;
THENCE ALONG THE SOUTH LIN£ OF SAID CITY OF -WICHITA FALLS TRACT AND ALONG THE
NORTH LINE OF THE REMAINING TESCO TRACT, NORTH 89'49'47" EAST 40.00 FEET TO A POINT
FOR THE NORTHEAST CORNER OF THIS DESCRIPTION;
THENCE ACROSS THE REMAINING TESCO TRACT, SOUTH 0090'14" EAST 38.00 FEET AND SOUTH
60'05'05." EAST 12.09 TO A POINT FOR THE SOUTHEAST CORNER OF THIS DESCRIPTION;
THENCE ALONG THE SOUTH LINE OF THE ORIGINAL TESCO TRACT. SOUTH 89'49'47 "' WEST 61.00.
FEET TO 'THE PLACE OF BEGINNING AND CONTAINING 1863 SQUARE FEET OF LAND (0.043
ACRE), MORE OR LESS,