DR1101-CN120105 •
Vinson&Elkins
Lila C. Marsh Imarsh @velaw.com
Tel +1.214.220.7730 Fax +1.214.999.7730
January 5, 2012
BY MESSENGER
Mr. Robert E. Hager
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard Street
Dallas, TX 75201
Re: North Lake Access Agreement
Dear Bob:
Enclosed please find three (3) originals of the Access Agreement in connection with the
project referenced above.
Sincerely yours,
l ,
Lila C. Marsh
Enclosures
cc: Patrick J. Mclnroe (w /enclosure — original)
Paul A. Martin [Firm]
1213970v.1 EFH 100 /52002
Vinson & Elkins LLP Attorneys at Law Trammell Crow Center, 2001 Ross Avenue, Suite 3700
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London Dallas, TX 75201 -2975
Moscow New York Palo Alto Riyadh Shanghai Tokyo Washington Tel +1.214.220.7700 Fax +1.214.220.7716 www.velaw.com
ACCESS AGREEMENT
This Access Agreement (this "Agreement ") is entered into as of December 9, 2011 (the
"Effective Date "), by and between Luminant Generation Company LLC, a Texas limited
liability company ( "Luminant "), the City of Coppell, Texas, a political subdivision of the State
of Texas ( "Coppell ") and Freese and Nichols, Inc. a Texas corporation (the "Contractor ").
RECITALS:
A. Luminant, as "Tenant" and CBIC Coppell Land, LLC, a Texas limited liability
company, Cypress Waters Land A, Ltd., a Texas limited partnership ( "Land A "), Cypress
Waters Land B, Ltd., a Texas limited partnership, and Cypress Waters Land C, Ltd., a Texas
limited partnership (the "Original Landlords ") executed that certain Facilities and Operations
Lease (the "Lease ") dated as of November 21, 2008 pursuant to which Luminant leased the land
described in the Lease (the "Premises ");
B. Land A conveyed a portion of the Premises to Coppell pursuant to that certain
Special Warranty Deed with Reserved Right of First Refusal and Restrictive Covenants dated
November 21, 2008;
C. Land A, Cypress Waters Land B, Ltd. and Cypress Waters Land C, Ltd. assigned
to Coppell, on a non - exclusive basis, the rights and benefits accruing to the assignors under the
Lease, and Coppell assumed the obligations of assignor thereunder, as those obligations relate to
any part of the Premises then owned by Coppell pursuant to that certain Non - Exclusive
Assignment of Facilities and Operations Lease dated September [undated], 2011. Coppell, in its
capacity as a landlord under the Lease, and the Original Landlords are collectively referred to
herein as "Landlord ";
D. Pursuant to Section 6.7 of the Lease, upon Landlord's written request and delivery
to Luminant of copies of all permits or licenses required by applicable law, if any, and subject to
its other rights under the Lease, Luminant agrees to make reasonable efforts to lower the level of
the Lake to the approximate boundaries of the Storage Tract, at Landlord's sole cost (including,
without limitation, costs related to permitting and any required monitoring or testing), to allow
Landlord to begin development activities related to the Cypress Waters Development; provided
that Luminant reserves the right to not lower the Lake if Luminant has a reasonable business
purpose to maintain the Lake level;
E. Coppell has expressed a desire to acquire the Property from Luminant, and
Luminant is willing to permit Coppell and the Contractor access to the Property (defined below),
upon and subject to the terms and conditions of this Agreement.
F. Coppell desires a license to enter upon certain property owned by Luminant
adjacent to the Premises containing the dams for the Lake, more particularly described on
Exhibit A hereto (the "Property ") to permit Contractor to perform the Coppell Inspections
(defined below) to investigate the potential impact on the Property and the Premises of lowering
the Lake level as provided in Section 6.7 of the Lease;
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G. Luminant has agreed to grant a limited license to permit Coppell and Contractor
to enter upon the Property for Contractor to perform, and for Coppell to observe, the Coppell
Inspections in accordance with the terms and conditions of this Agreement; and
H. Capitalized terms used but not defined herein shall have the meanings assigned to
them in the Lease.
AGREEMENTS:
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Coppell, Contractor and Luminant hereby agree as follows:
1. Inspection Period. For purposes of this Agreement, the term "Inspection
Period" means the period beginning on the Effective Date and expiring on the earlier of (a)
5:00 p.m., Dallas, Texas time on the 90 day following the Effective Date and (b) written notice
from Luminant to Coppell and Contractor terminating this Agreement (which notice may be
delivered by Luminant by email as provided in Section 12), which decision shall be made in
Luminant's sole and absolute discretion.
2. Coppell Inspections. During the Inspection Period and subject to the conditions
specified in this Agreement, Luminant hereby grants to Coppell and Contractor a limited license
entitling Coppell and Contractor to enter the Property upon not less than two Business Days prior
written notice to Luminant (which notice may be delivered to Luminant by email as provided in
Section 12) for the sole purpose of permitting Contractor to perform and Coppell to observe the
tests and inspections specified in Exhibit B hereto (each, individually, a "Coppell Inspection"
and collectively, the "Coppell Inspections "). Coppell and Contractor agree and acknowledge
that Luminant is undertaking demolition and remediation operations on the Property and
Contractor agrees to perform, and Coppell agrees to observe, the Coppell Inspections in such a
manner as to avoid any interference with such operations. Coppell and Contractor shall each
enter the Property at its sole risk and shall comply with any safety rules communicated by
Luminant from time to time. The Coppell Inspections may only be performed on weekdays
between the hours of 9:00 a.m. and 5:00 p.m. (or at such other times approved by Luminant in
writing in its sole and absolute discretion) in the presence of an employee or agent of Luminant
designated by Luminant (a "Luminant Representative "). Coppell shall bear the cost of all
Coppell Inspections and shall be responsible for and act as the generator with respect to any
wastes generated by any tests, which obligation shall survive the termination of this Agreement.
Coppell and Contractor agree and acknowledge that Coppell may only observe the Coppell
Inspections and that the Coppell Inspections are to be performed solely by Contractor.
3. Delivery of Reports. As additional consideration for Luminant providing access
to the Property hereunder, Contractor shall deliver to Luminant's counsel, Vinson & Elkins
L.L.P., at the address set forth in Section 12, at no cost to Luminant or to such counsel, copies of
all reports and any other materials exchanged between Coppell and Contractor concerning the
Property prepared in connection with the Coppell Inspections ( "Reports "). The Reports shall be
delivered to Luminant's counsel without any representation or warranty as to the completeness
or accuracy of the Reports or any other matter relating thereto. In no event shall any Reports be
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delivered to Luminant without Luminant's prior express written consent. Contractor's obligation
to deliver the Reports to Luminant's counsel shall survive the termination of this Agreement.
4. Proprietary Information; Confidentiality.
(a) Coppell and Contractor agree that the Reports and any and all information
generated, gathered or otherwise obtained in connection with conducting or observing the
Coppell Inspections (together with the Reports, collectively, the "Confidential Information ")
shall be considered confidential information of Luminant and proprietary to Luminant. Access
to the Property has been and will be provided to Coppell and Contractor solely to assist Coppell
in determining the feasibility of acquiring the Property and lowering the level of the Lake
pursuant to Section 6.7 of the Lease. Coppell and Contractor shall not use the Confidential
Information for any purpose other than as set forth in the preceding sentence. Coppell and
Contractor shall not disclose the contents of any Confidential Information to any other person
without Luminant's prior written consent, which consent may be withheld or conditioned in
Luminant's sole and absolute discretion.
(b) Neither Coppell nor Contractor may make any filings with or otherwise
communicate with any governmental authority with respect to the Property without Luminant's
prior written consent, which consent may be withheld or conditioned in Luminant's sole and
absolute discretion. For the avoidance of doubt, however, Coppell and Contractor shall not be
required to obtain Luminant's prior written consent to research public records or databases. As
used in this Section 4, "communicate" and "communication" shall mean the initiation of,
response to, or sharing or exchange of information, knowledge or messages, whether by oral,
written or electronic methods or media, or by any other means.
(c) Should Coppell receive a request for disclosure of the Confidential
Information in accordance with the Texas Public Information Act ( "TPIA "), Coppell: (A) shall
promptly notify Luminant of the request; (B) shall consult with and reasonably cooperate with
Luminant regarding the response to the request; (C) shall timely ask for a decision from the
Texas Attorney General (the "Texas AG ") as to whether the Confidential Information is within
an exception from the disclosure requirements of the TPIA, including but not limited to sections
552.105 and 552.110 of the TPIA, and shall submit written comments to the Texas AG stating
the reasons why the exceptions stated in such comments apply to the Confidential Information;
and (D) will not release any Confidential Information while the decision of the Texas AG is
pending. If, in response to a request for decision under this paragraph, the Texas AG determines
that Confidential Information must be disclosed, Coppell shall promptly provide notice of the
decision to Luminant, and without the consent of Luminant, may not disclose that information
before the 10th day after the date of receipt of the decision. If within that period Luminant files a
petition in a Travis County, Texas district court seeking a declaratory judgment, a writ of
mandamus, or other relief from compliance with the decision of the Texas AG, Coppell will not
disclose the information pending final judgment in the suit unless ordered to do so by the court.
(d) If either Coppell or Contractor desire to disclose Confidential Information
or to make any filings with or communicate with a governmental authority with respect to the
Confidential Information or the Property, the party seeking to make such disclosure, filing or
communication shall make a written request to Luminant specifying in reasonable detail the
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purpose of such disclosure, filing or communication, the person to whom such disclosure, filing
or communication is to be made and the format (i.e. written or oral) in which such disclosure,
filing or communication is to be made (a "Disclosure Request "). Within ten business days after
its receipt of a Disclosure Request, Luminant shall notify the party making such request (the
"Repuestin;_ Party ") whether it approves, approves with conditions or disapproves of the same
and shall specify in reasonable detail any conditions to or limitations on such disclosure.
Contractor and Coppell expressly agree and acknowledge that Luminant will require prior
approval of any written communications (which may be submitted as part of the Disclosure
Request) and will not consent to any oral disclosures to any person (including any governmental
authority) unless a Luminant Representative is present at such communication. If any
Disclosure Request is not accompanied by sufficient information to allow Luminant to determine
whether such request should be approved, then the time period hereunder for Luminant's
response shall be extended by one day for each day until the Request Party provides such
necessary information to Luminant. Notwithstanding the foregoing, if Luminant fails to notify
the Requesting Party that it approves, approves with conditions or disapproves the Disclosure
Request within ten business days after submission to Luminant of all the items required under
this Section 4(d) and the Requesting Party's request for consent conspicuously states, "IF YOU
DO NOT MAIL YOUR APPROVAL, DISAPPROVAL OR APPROVAL WITH CONDITIONS
OF THE DISCLOSURE REQUEST WITHIN TEN BUSINESS DAYS AFTER YOU RECEIVE
THIS DISCLOSURE REQUEST, YOUR APPROVAL OF THIS DISCLSOURE REQUEST
WILL BE DEEMED GIVEN," then Luminant shall be deemed to have approved the Disclosure
Request on the terms specified in such request.
(e) Coppell's and Contractor's obligations under this Section 4 shall survive
the termination of this Agreement; provided, however, Coppell's and Contractor's obligation
under this Section 4 shall terminate upon acquisition of all of the Property by Coppell.
5. Coppell's and Contractor's Responsibilities. In connection with any Coppell
Inspections, Coppell and Contractor shall: (a) not interfere with the operation and maintenance
of the Property or the demolition or remediation operations thereon; (b) not damage any part of
the Property; (c) not perform any invasive or environmental testing on the Property; (d) not
injure or otherwise cause bodily harm to Luminant or its agents, guests, invitees, contractors and
employees; (e) comply with all applicable laws; (f) not permit any liens to attach to the Property
by reason of the exercise of its rights hereunder; (g) not reveal or disclose any information
concerning the Property to any other person, in accordance with the confidentiality standards set
forth in Section 4 above, or except as may be otherwise required by law; (h) immediately
terminate any Coppell Inspections and immediately leave the Property if so directed by an
employee or agent of Luminant and (i) maintain at all times during the term of this Agreement
the insurance coverage described in the certificates of insurance previously delivered to
Luminant. Coppell shall promptly pay when due the costs of all tests, investigations, and
examinations done with regard to the Property. Coppell's and Contractor's obligations under
this Section 5 shall survive the termination of this Agreement.
6. Coppell's and Contractor's Agreement to Indemnify.
(a) Contractor hereby agrees to indemnify, defend and hold Luminant
harmless from and against any and all liens, losses, costs (including any costs to repair any
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damage caused by Contractor), claims, causes of action, damages, liabilities and expenses
(including reasonable attorneys' fees) arising out of any act or omission by Contractor in
connection with the Coppell Inspections or any violation by Contractor of this Agreement, even
though any such loss is caused or alleged to be caused by the negligence or fault of
Luminant (other than loss arising from the gross negligence or willful misconduct of
Luminant). This indemnity is intended to indemnify Luminant against the consequences of
its own negligence or fault as provided above when Luminant is jointly, comparatively,
contributively or concurrently negligent with Contractor; provided, however, the indemnity
shall not extend to protect Luminant from any pre- existing liabilities for matters merely
discovered by Contractor so long as Contractor's actions do not aggravate any liability of
Luminant existing on or prior to the Effective Date and provided that Contractor otherwise
complies with this Agreement. Contractor's obligations under this Section 6(a) shall survive the
termination of this Agreement.
(b) To the fullest extent permitted by law, Coppell hereby agrees to
indemnify, defend and hold Luminant harmless from and against any and all liens, losses, costs
(including any costs to repair any damage caused by Coppell), claims, causes of action, damages,
liabilities and expenses (including reasonable attorneys' fees) arising out of any act or omission
by Coppell in connection with the Coppell Inspections or any violation by Coppell of this
Agreement, even though any such loss is caused or alleged to be caused by the negligence or
fault of Luminant (other than loss arising from the gross negligence or willful misconduct
of Luminant). Except as provided herein, this indemnity is intended to indemnify
Luminant to the fullest extent permitted by law against the consequences of its own
negligence or fault as provided above when Luminant is jointly, comparatively,
contributively or concurrently negligent with Coppell; provided, however, (1) the indemnity
shall not extend to protect Luminant from any pre- existing liabilities for matters merely
discovered by Coppell so long as Coppell's actions do not aggravate any liability of Luminant
existing on or prior to the Effective Date and provided that Coppell otherwise complies with this
Agreement and (2) if Luminant is found to be partially negligent by a court of competent
jurisdiction in a final, non - appealable judgment, Luminant shall be responsible for paying its
proportion of the applicable damage award, calculated using the percentage of Luminant's
negligence as determined by such court. Coppell's obligation to indemnify Luminant shall be
payable solely from any of Coppell's unrestricted funds legally available therefor, including,
without limitation, Coppell's ownership interest in the Premises. Coppell's obligations under
this Section 6(b) shall survive the termination of this Agreement.
7. Enforcement. Luminant may enforce the terms of this Agreement by any and all
legal and equitable means necessary, in Luminant's sole discretion, including, without limitation,
injunction and monetary damages, and Luminant shall be entitled to recover court costs and
reasonable attorneys' fees from Coppell and Contractor if applicable. If Coppell or Contractor
deems Luminant to be in non - compliance with the terms of this Agreement, Coppell's and
Contractor's sole remedy shall be to terminate this Agreement by written notice to Luminant and
shall in no event be entitled to damages or reimbursement of costs and expenses from Luminant.
8. Disclosures in Litigation. The parties agree that no Confidential Information
shall be discoverable in any litigation between or among them. Coppell and Contractor shall not
introduce, use or petition a court to permit such party to introduce or use any Confidential
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Information in any litigation involving Luminant, the Property or the Premises without
Luminant's prior written consent, which consent may be withheld by Luminant in its sole and
absolute discretion. The parties further agree that no Confidential Information shall be
discoverable in any litigation unless ordered by a court of competent jurisdiction. In the event of
any litigation involving the Property or the Premises, Contractor shall not participate in any
manner in such litigation without the prior written consent of both Coppell and Luminant, which
consent may be withheld by either Coppell or Luminant in such entity's sole and absolute
discretion.
9. No Partnership. Nothing contained in this Agreement shall be deemed or
construed by the parties hereto or by any third party to create the relationship of principal and
agent, or of partnership, or of joint venture, or of any other association between Luminant and
Coppell or Contractor.
10. No Waiver. No waiver of any default by any party hereto shall be implied from
any omission by any other party hereto to take any action with respect to such default, if such
default continues or is repeated. No express waiver of any default shall affect any default or
cover any period of time other than the default and period of time specified in such express
waiver. A waiver of any default in the performance of any provision contained in this
Agreement shall not be deemed to be a waiver of any subsequent default in the performance of
the same provision or any other provision contained herein. Except as specifically provided
herein, nothing contained in this Agreement shall be deemed to constitute a waiver by any party
of any right, claim, obligation, defense, demand, cause of action, lawsuit, proceeding, expenses
and /or cost (including cost of suit and attorneys' fees), including, without limitation, Luminant's
right to not lower the Lake if Luminant has a reasonable business purpose to maintain the Lake
level.
11. Binding Effect. The license granted to Coppell and Contractor under the terms of
this Agreement is personal to Coppell and Contractor, and neither this Agreement nor the license
may be transferred or assigned by Coppell or Contractor. Subject to the foregoing limitation, the
benefits of this Agreement and burdens of this Agreement shall inure to the benefit of and be
binding upon the heirs, successors, personal representatives, and assigns of the parties hereto.
12. Notices; No Electronic Records. All notices, requests and other
communications given pursuant to this Agreement shall be in writing and shall be (a) mailed by
first class, United States mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address listed below, (b) hand delivered to the intended
addressee, or (c) sent by nationally recognized overnight courier. Notice sent by certified mail,
postage prepaid, shall be effective three Business Days after being deposited in the United States
mail; all other notices shall be effective upon delivery to the address of the addressee (even if
such addressee refuses delivery thereof). Luminant, Coppell and Contractor each hereby agree
not to conduct the transactions or communications contemplated by this Agreement, by
electronic means, except as expressly permitted by Section 1 or Section 2; nor shall the use of the
phrase "in writing" or the word "written" be construed to include electronic communications
except as expressly permitted by Section 1 or Section 2. The parties hereto may change their
addresses by giving notice thereof to the other in conformity with this provision:
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If to Luminant: Luminant Generation Company LLC
Lincoln Plaza
300 North Akard
Dallas, TX 75201
Attention: Director - Real Estate Development
Email: Patrick.Mclnroe @luminant.com
with a copy to: Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
Dallas, TX 75201
Attention: Paul Martin
Email: pmartin @velaw.com
and to: Energy Future Holdings Corp.
1601 Bryan Street, 42nd Floor
Dallas, TX 75201
Attention: Andy Wright, Associate General Counsel —
Commercial Law
Email: awright @energyfutureholdings.com
If to Coppell: City of Coppell
255 E Parkway Blvd
Coppell, TX 75019
Attention: City Manager
Email: cphillips @coppelltx.gov
If to Contractor: Freese and Nichols, Inc.
4055 International Plaza, Suite 200
Fort Worth, TX 76109
Attention: John L. Rutledge, P.E.
Email: jlr @freese.com
13. Revocation. The license granted under this Agreement is revocable by Luminant,
at any time, for any reason or no reason, upon written notice to Coppell and Contractor.
14. Business Days; Holidays; Weekends. As used in this Agreement, the term
"Business Day" means any day, other than a Saturday or Sunday, on which banks located in
Dallas, Texas are not required or authorized to close. If any notice or action required or
permitted by this Agreement falls on a date which is not a business day, then such date shall be
extended to the next business day.
15. Entire Agreement. This Agreement is the entire agreement between Luminant,
Coppell and Contractor concerning the Coppell Inspections, and no modification hereof or
subsequent agreement relative to the subject matter hereof shall be binding on either party unless
reduced to writing and signed by the party to be bound.
16. Survival. All unperformed obligations of Coppell and Contractor at the end of
the Inspection Period shall survive.
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17. Time is of the Essence. Time is of the essence with respect to this Agreement.
18. Rule of Construction. Coppell, Contractor and Luminant acknowledge that each
party has reviewed this Agreement and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments hereto.
19. Multiple Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be convenient or required. It shall not be necessary that
the signature of, or on behalf of, each party, or that the signature of all persons required to bind
any party, appear on each counterpart. All counterparts shall collectively constitute a single
instrument. It shall not be necessary in making proof of this instrument to produce or account for
more than a single counterpart containing the respective signatures of, or on behalf of, each of
the parties hereto. A signature page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures thereon and thereafter attached to another
counterpart identical thereto except having attached to it additional signature pages.
20. Invalid Provisions. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
21. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the state in which the Property is located.
22. Prohibited Persons and Transactions. Coppell and Contractor each represents
and warrants to Luminant that it is currently in compliance with and shall at times during the
term of this Agreement (including any extension thereof) remain in compliance with the
regulations of the Office of Foreign Assets Control ( "OFAC ") of the Department of the Treasury
(including those named on OFAC's Specially Designated Nationals and Blocked Persons List)
and any statute, executive order (including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism), or other governmental action relating thereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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1099544v.6 EFH 100 /52002
Executed as of the Effective Date.
LUMINANT: LUMINANT GENERATION COMPANY LLC,
a Texas limited liability company
By: O,G,
Name: /1. A ft ick. W: ((ia14 , c
Title: V. ce. PrPS icii24
COPPELL: CITY OF COPPELL, TEXAS, a political
subdivision of the State of Texas
By:
Name:
Title:
CONTRACTOR: FREESE AND NICHOLS, INC., a Texas
corporation
By:
Name:
Title:
9
1099544v.6 EFH 100 /52002
Executed as of the Effective Date.
LUMINANT: LUMINANT GENERATION COMPANY LLC,
a Texas limited liability company
By:
Name:
Title:
COPPELL: CITY OF COPPELL, TEXAS, a political
subdivision of the State of Texas
By: ,
Name: •' ) l
Title:
CONTRACTOR: FREESE AND NICHOLS, INC., a Texas
corporation
By: _ vin,
Name: I,w.
Title: --- Pr t�i,v►f-
9
1099544v.6 EFH 100 /52002
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The following tracts as described in the Lease: East 1A, East 1C and North Tract
A -1
1099544v.6 EFH 100 /52002
EXHIBIT B
COPPELL INSPECTIONS
Visual inspection and photography of the habitat and the environmental impact of lowering the
lake.
B -1
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