HomeMy WebLinkAbout24-2339ORDINANCE NO. 24-2339
AN ORD[NANCE OF THE CITY OF DENTON, TEXAS (“CITY”) AUTHORIZING THE
EXECUTION OF A UTILITY SERVICE AGREEMENT WITH TCCI PONDER WPP LLC
(“OWNER”) AND PONDER FARMS MUNICIPAL UTILITY DISTRICT OF DENTON
COUNTY (“DISTRICT’') CONCERNING RETAIL WATER AND WASTEWATER SERVICE
BY THE CITY TO FUTURE CUSTOMERS WITH IN APPROXIMATELY 31.434 ACRES OF
LAND GENERALLY LOCATED SOUTH OF BLAIR ROAD, NORTH OF EAKIN
CEMETERY ROAD, AND EAST OF FM 156 (“PROPERTY”); EFFLUENT OWNERSHIP;
SALE OF GROUNDWATER RIGHTS; AND OTHER RELATED MATTERS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Property encompasses approximately 31.434 acres of land and is more
particularly described and shown in Exhibit “A’' of the Utility Service Agreement; and
WHEREAS, Owner expects that full development of the Property will require service to a
maximum of 100 equivalent single-family connections; and
WHEREAS, Denton is a retail public utility that possesses certificated service areas for
Water and Wastewater services under CCN Nos. 10195 and 20072, respectively; and
WHEREAS, the City, Owner, and District wish to enter into the Utility Service Agreement,
attached hereto as Exhibit ''A”, for utility service to Customers located within the Property; and
WHEREAS, Owner and District desire the City to provide retail water service to customers
within the Property pursuant to the terms of the Utility Service Agreement; and
WHEREAS, Owner and District desire the City to provide retail wastewater service
pursuant to the terms of the Utility Service Agreement and the terms of a separate Retail
Wastewater Treatment Services Agreement; and
WHEREAS, water and wastewater infrastructure necessary to serve customers within the
Property will be dedicated to the City by the District or Owner pursuant to the terms of the Utility
Service Agreement; and
WHEREAS, portions of the water and wastewater infrastructure may be oversized to serve
future growth pursuant to a separate Oversize Participation Agreement; and
WHEREAS, pursuant to the Utility Services Agreement, all title and ownership to
wastewater flow from customers within the Property into Denton’s system will belong to Denton;
and
WHEREAS, the Owner wishes to convey the groundwater rights associated with the
Property to the City pursuant to the terms of the Utility Service Agreement and a separate
Groundwater Rights Sale Agreement; and
WHEREAS, the City has determined that full development of the Property as provided
herein will promote local economic development within the City and will stimulate business and
commercial activity within the City, which will drive infrastructure investment and job creation,
and have a multiplier effect that increases both the City’s tax base and utility revenues;
NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this Ordinance are
incorporated herein by reference.
SECTION 2. The City Manager or their designee is hereby authorized to execute
the Utility Service Agreement, attached hereto as Exhibit ''A” and incorporated herein for all
purposes, with TCCI Ponder WPP LLC and Ponder Farms Municipal Utility District of
Denton County concerning retail water and wastewater service, ownership of effluent, the sale
of groundwater rights, and other related matters.
SECTION 3. Minor adjustments to the attached Utility Service Agreement by the City
Manager or their designee are authorized, such as filling in blanks and minor clarifications or
corrections, and any modifications made by City Council in the approval of this ordinance.
SECTION 4. The City Manager, or their designee, is authorized to carry out all duties and
obligations to be performed by the City under the Utility Service Agreement, unless otherwise
reserved in the Utility Service Agreement for City Council approval.
SECTION 5. This Ordinance shall take effect immediately on its passage and approval
The motion to approve this ordinance was made by Brian Beck and seconded by Joe Holland,
the ordinance was passed and approved by the following vote [7 - 0]:
Aye
X
Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :X
X
X
X
X
X
Brian Beck, District 2:
Paul Meltzer, District 3 :
Joe Holland, District 4:
Brandon McGee, At Large Place 5 :
Jill Jester, At Large Place 6:
PASSED AND APPROVED this the 19th day of November, 2024.
J#/h
GERARD HUDSPETH, MAYOR
ATTEST:
Page 2
LAUREN THODEN, CITY SECRETARY
BY: ya,D'uajhob--
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
BY, 1%++b7%MA/
Page 3
UTILITY SERVICE AGREEMENT
BY AND BETWEEN
THE CITY OF DENTON
AND
PONDER FARMS MUNICIPAL UTILITY DISTRICT OF DENTON COUNTY
AND
TCCI PONDER WPP, LLC
(TexMix)
This Utility Service Agreement (“Agreement“) is made and entered into by and between the City of
Denton, Texas, a home rule municipality (“Denton” or the 'City”), Ponder Farms Municipal Utility District
of Denton County, a conservation and reclamation district operating under the authority of Chapters 49 and
54 of the Texas Water Code (“District”), and TCCI Ponder WPP, LLC, a Texas limited liability company
(“Owner”), each collectively referred to as the “Parties”. This Agreement is effective as of November 19,
2024, being the date by which this Agreement is executed by the Parties (the “Effective Date”).
RECITALS
WHEREAS, Denton is a municipality, a duly incorporated political sutxhvision of the State of Texas
operating under the Constitution and laws of the State of Texas, that providn retail and wholesale Water
and Wastewater service to customers; and
WHEREAS, Denton is a retail public utility that possesses certificated service areas for Water and
Wastewater services under CCN Nos. 10195 and 20072, respectively; and
WHEREAS District is a conservation and reclamation district operating under the authority of Chapters
49 and 54 of the Texas Water Code, as amended; and
WHEREAS Owner is the sole owner of the Property, possesses record title, and intends to develop the
Property for single family residential purposes; and
WHEREAS, Owner expects that full development of the Property will require service to a maximun of
100 ESFCs; and
WHEREAS, the Property is not located within an area subject to a CCN issued by the Public Utility
Commission of Texas; and
WHEREAS, Owner and District desire the City to provide retail Water service to Water Customers within
the Property; and
WHEREAS, Owner and District desire the City to provide retail Wastewater service pursuant to the terms
of this Agreement and the terms of a separate agreement for such purpose; and
WHEREAS, the City is willing and able to make retail Water service available pursuant to the terms of
this Agreement; and
WHEREAS, the City is willing and able to make retail Wastewater service available pursuant to the terms
ofaselwate agreemart for such purpose; arxl
WHEREAS, the Parties agree that it is tnrnficial to the Parties, the Water Customas, and the region to
prwent werpmduction ofGmwHwat£r and tIn degradation of surface water quality; and
WHEREAS, Ownn owns and wisha to carve)r all Gmwrdwater Rights associated with the Property to
the City; and
WHEREAS, City will ensure Groundwater is available for District’s use for irrigation purposes, subject to
the terms of this Agreement; and
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WHEREAS, the Parties ruognize the importance and benefits of water conservation and drought
contingency planning; and
WHEREAS, Denton wishn to reuse Wastewater originating from the Property.
WHEREAS, Disaict and the City agnee that reclaimed Water provided by the City, when available, should
be used for irrigation in, at a minimum, commercial and public property within the District; and
WHEREAS, Owner and Disaict want the City to possess title and ownership of all Wastewater flows
originating from the Property and discharged into Denton’s System; and
WHEREAS, The Parties acknowledge and agree each is nquind to comply with applicable federal, state,
and loal laws, regulations, and permits.
WHEREAS, the Parties desire, and have independently determined, that it is in their best interest to enter
into this Agreement; and
WHEREAS, Denton, by Council Ordinance No. , on November 19, 2024, approved and
authorized its City Manager to execute this Agreement; and
WHEREAS, the Districl at a mwting of its Board of Directors on November 18, 2024, has approved and
authorized the President or Vice President of the Board of Dincton to execute and the Secretary or
Assistant Secretary of the Bmrd of Directors to attest this Agreement; and
WHEREAS, Denton and the District are authorind to enter into this Agreement pursuant to Texas
Government Code Chapter 791, and other applicable laws; and
WHEREAS, Denton aId District individually have the authority to perform as set forth in this Agreement
in awordance with Texas Government Ccxle § 791.01 1(c); and
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and undertaking
of the Parties hereto and the mutual consideration herein stated, the sufficiency of which is hereby
acknowledged and agreed upon, the Parties hereby agree as follows:
AGREEMENT OF THE PARTIES
ARTICLE I
DEFINITIONS
Some terms und herein are defined by the Texas Water Code or under the City ordinance. To the extent a
defined term or phrase is used and not defined herein, each shall man and refer to the definition prescribed
by the Texas Water Code or under the City ordinance. If no such definitions are established by those laws,
then common usage shall control. Accordingly, the following terms and expressions in this Agreement,
unless the context clearly shows otherwise, shall have the following meanings:
“CCN” shall refer to and mean a Certificate of Convenience and Necessity issued by the Public Utility
Commission of Texas (“PUC”) or its prednessor or succnsor agarcy, as pnscHtnd by the Texas Water
Code
“DeaRn” or “City” shall refer to and mun the City of Denton, Texas, a Texas home-rule municipality.
“Cost of Construction” shall refer to and mean the actual costs of daign, enginnring, aons&uction,
aoquisition, inspection, testing, srweying, staking, and other ass@iated costs relating to the construction
ofthe Water Facilities, as appliable. llre estimated Cost of Construction of the Water Facilities attributable
to the Property is included in Erhibit “C” attached hereto and incorporated herein.
“Day” means a 24-hour period from 12:00 &m. to 11 :59 p.m. of ach calendar day.
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“Denton’s System” or “Denton System” means all existing and future facilities utilized to provide Water
or Wastewater services to Denton’s retail and wholesale customers including, but not limited to, Denton’s
Water treatment and transmission systems, Water storage facilities, Wastewater collection systems,
publicly owned treatment works, and administrative and personnel buildings.
“District” shall refer to and mean Ponder Farms Municipal Utility District of Denton County, a
conservation and reclamation district operating under the authority of Chapters 49 and 54 of the Texas
Water Code, as amended.
“ESFC” shall refer to and mean an equivalent single-family connection.
“Groundwater” means all of the underground water, percolating water,anesian water, and any other water
from any and all depths and reservoirs, formations, depths and horizons beneath the surface of the Property,
excluding underflow or flow in a defined subterranean channel.
“Grouadwater Rights” means (1 ) the legal title to Groundwater and the right to test, explore for, drill for,
develop, withdraw, capture, or otherwise beneficially use the Groundwater; (2) the right to use the surface
of the real property for access to and to explore for, develop, treal produce, and transport the GroundwateB
and (3) all permits, licenses, or other governmental authorizations relating to any of the foregoing. If a
separate easement agreement is required by this Agreement, the Groundwater Rights include the easement
righb
“MGIY’ means million gallons per day measured as a twenty-four-hour period and is not intended as an
annual average unless expressly provided to the contrary.
“Month” means a calendar month.
“Offsite” means not located within the Property.
“Offsite Water Facilities” means Water Facilities to be constnrcted by Owner outside the boundaries of
the Prolnny for the purpose of providing treated water service to Water Customers located within the
Property, particularly including those facilities described in that certain water study prepared by Kimley-
Hom & Associates, Inc. attached hereto in Exhibit “B” (the “Water Study”). “Outside Customers” shall
refer to and mean retail Water customers who are connected to Denton’s System and are billed as customers
located outside the City’s corporate limits.
“Points of Delivery” means the locations where, and the Water Facilities through which, Water will enter
the Water Facilities within the Property, pursuant to this Agreement. As of the Effective Date of this
Agreement the Points of Delivery are located as identified in Erbibit “A” attached hereto and incorporated
herein
“Property” shall refer to and mean the parcel of approximately 31.434 acres, more particularly described
and shown in Exhibit “A”. The Property shall be developed into a single-family residential development.
“Wastewater or “Effluent” mans all liquid or water4arried waste products from whatever source
derived, whether treated or untreated, which are discharged into, or permitted to enter into, Denton’s
System
“Transmbslon System” muns all of Denton’s water lines twelve (12) inches in diameter or larger used
to transport Treated Water to its crstomers.
“WastewaterFacilitiu” shall refer to and man all wastewaterfacilitin to tn consuucted by Owner inside
or outside the boundaHa ofthe Property for the purpose of providing retail Wastewater service to customers
knated within the Property, particularly including those facilities described in the separate agreemurt for
retail Wastewater service to the Property, as referenced in Section 5.4.
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“Water” means raw water treated by Denton so that it is potable water meeting the minimum quality
requirements for human consumption as prescribed by the Texas Commission on Environmental Quality
or other appropriate regulatory agency.
“Water Customers” shall mean and refer to Water customers that are located within the Property.
“Water Facilities” shall mean all Water conveyance facilities to tn constructed by Owner inside or outside
the boundaries of the Property for the purpose of providing heated water service to Water Customers located
within the Property, particularly including those facilities described in that certain water study prepared by
Kimley.Horn & Associates, Inc., attached hereto as Exhibit “B”.
ARTICLE 11
ADOPTIONS AND INTERPRETATIONS
Section 2.1. Adoption of Recitals. All of the matters stated in the recitals of this Agreement are true and
correct and are hereby incorporated into the body of this Agreement as though fully set forth in their entirety
herein
Sutioa 2,2. Adoption of Exhibits. TIle following Exhibits and their attachments referenced in this
Agreement are hereby incorporated into the body of this Agreement as though fully set forth in their entirety
herein
• Exhibit “A“ Property
• Exhibit “B” Waer Study
• Exhibit “C” Estimated Cost of Construction
• Exhibit “lP Form ofEasanent
Section 2.3. Interpretations. The following principles control the interpretation of this Agreement.
2.3.1. Unless otherwise stated, reference to any document m%ns the document as amended or supplemented
from time to time.
2.3.2. Reference to any party to this Agreement or to a governmental regulatory agency means that entity
and its successors and assigns, unless expressly provided to the contrary in this Agreement.
2.3.3. Misspelling of one or more words in this Agreement shall not void the Agr%ment. Misspelled words
shall tn read to have the meaning apparently intended by the Parties.
2.3.4. Words in the singular number include the plural, unlas the context otherwise requires.
2.3.5. References to “Article”, “Section”, Subsection”, and “Exhibit” are to the articles, sections,
subsections and exhibits of this Agreement unless expressly stated to the contrary.
2.3.6. Article and section headings are for convenience and reference and are not intended to define, limit,
or expand the scope of any provision of this Agreement.
ARTICLE III
WATER AND FACILITIES
Sectloa 3.1. law)IrjR. Ow1% on behalf of the District, shall construct the Water Facilitia neoessaly
to connect to lkntrxr’s System at agreed upon laaatiorB.
Section 3.2. Mn. The WaIn Facilities shall be engineered and designed by a Texas Licensed
Professional Engineer ch®en by Owner, who shall design swh facilities in accordance with the applicable
standards and specifications of the City and all governmental agencies having juHsdiction, consulting with
the City as needed to ensure conformance with the City specifications. Owner shall design and construct
the Water Facilities in a good and workmanlike manner so they are fit for the intended purposes. Said dnign
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and construction shall be at Owner’s sole cost, except as set forth to the contrary in section 3.3 “Sizing”
below,
Unless otherwise mutually agreed to in writing, Owner, on behalf of the District, shall tn responsible for
the design, construction, and financing of Water Facilities, and compliance with any applicable state or
federal requirements, including, but not limited to, for water lines to metering points, meters, meter vaults
and associated valves, and for acquisition of any rights-of-way for additional or future Points of Delivery
to which Denton may consent.
Section 33. Siziag. The Water Facilities shall be sized to provide continuous and adequate retail water
service to a maximum of 100 ESFCs on the Property. In the event the City requires any of the Water
Facilities to be oversized to serve customers located outside the boundaries of the Property, terms and
conditions related to oversizing shall be governed by an oversize participation agreement executed by the
City and Owner based on the City’s standard oversin participation agreement form.
Sectioa 3.4. Construction of Water Facilitiu. The Water Facilities shall be constructed in accordance
with the construction plans and specifications approved by the City pursllant to Section 3.5 and in
compliance with:
a. City’s applicable ordinancn, rules, and regulations; and
b. The rules and regulations of any governmental agencies having jurisdiction.
Section 3.5 Approval by the City’s Duignated Engjneer. The Water Facilities are subject to approval by
the City’s designated engineer in accordance with the City’s standard review schedule. Construction shall
not commenae unless and until said plans and specifications have been approved by the City’s designated
engineer. To the extent there is a conflict between any portion(s) of an applicable ordinance, rule, regulation,
or law related to the construction of the Water Facilitia, the more restrictive and/or stringent of the
conflicting portion(s) shall apply.
Section 3.6. Conformity. Owner agrees that Denton’s engineers or other representatives may inspect and
test the construction of the Water Facilities at any time to determine compliance with the approved designs,
plans, and specifications. Owner must notify the City in writing of the date upon which constnrction is
scheduled to commence on each phase so the City may assign an inspector. The City will charge reasonable
fws related to inspecting the construction of the Water Facilities in accordance with applicable law.
Section 3,7. Stoppage for Non£onformance. Tbe City may stop work on any portion of the Water
Facilities which are not being constructed in conformance with the City’s regulations and standards and the
approved plans and specifications until such time as Owner and Owner’s contractor(s) agree to construct
that portion of the Water Facilities in conformance and to demonstrate future conformance as requested by
the City
Section 3.8. Acceptance, Dedication, Maiateaance, and Repair. Upon proper completion of construction
of a phase of the Water Facilities, final inspection by the City, and the City’s written approval of the Water
Facilities, such portion of the Water Facilities shall be dedicated to the City without cornpensation by an
appropriate legal instrument approved by the City Attorney. llrenafter, the Water Facilities shall be owned
and solely operated, maintairnd, and repaired by the City. The City shall maintain the Water Facilities in
gotxl repair and working oorxlition at all tim&
SectIon 3.9, Acqujsitioa and Dediafion of Easement$ for Water F8cilitin.
3.9.1. Owner shall te ruponsible for acquirirB and dedicating to the District, at Owner’s sole expense, any
easement encompassing areas acrws privately or publicly owned land or sites which the City determines
are necessary for the construction, operation, and maintenance of the Water Facilities. After such %sements
are dediated to the District, the District hereby agrees to assign such easements to the City.
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3.9.2. Owner shall use its good faith efforts to acquire non exclusive %sements which allow for the City to
install future water lines and othu municipal utilities; provided, however, that such future facilities shall
not interfere with the operation, maintenance, or use of the Water Facilities. If, however, Owner is unable
to obtain such %sements by private negotiation, District shall secure the non-exclusive easements after a
finding of public necessity, through the use of the District’s power of eminent domain.
3.9.3. The Parties agree that any easements acquired shall be on the form attached hereto as Exhibit “D”
and incorporated herein for all purposes. Unless otherwise set forth in this Agreement to the contrary, the
District shall be responsible for funding all reasonable and necessary legal proceeding/litigation costs,
attorney’s fees, and related expenses; property acquisition oosts; and appraiser and expert witness fees paid
or incurred in the exercise of its eminent domain powers. The District will use all reasonable efforts to
expedite such condemnation procedures so that the Water Facilities can be constructed as soon as
reasonably practicable.
3.9.4. Owner shall obtain all governmental approvals nwessary to construct the Water Facilities in public
land or rights-of-way.
Soctioa 3.10. Easement Form. All easements acquired by Owner or District for the Water Facilities shall:
a. Be the widths shown in Exhibit “B” attached hereto;
b. Be adequate to allow the city to install water lines and other municipal utilities; and
c. Be situated in the public right-of-way or in existing easements specifically dedicated for the Water
Facilities as set forth hereunder.
Section 3.11. Development Contracts for Public Improvements and Bonds. For all Water Facilities,
Owner and any contractor performing construction shall execute a Development Contract for Public
Improvements with the City using a contract form approved by the City Attorney. Additionally, for all
Water Facilities, Owner or Contractor shall obtain and tender payment bonds and performance bonds in the
full amount of the construction cost. The performance bonds shall tn for a term of two years from the date
of final acceptance of the Water Facilities by the City and shall mme the City as an obligee with a surety
acceptable to the City guaranteeing the work and materials of the Water Facilities to be free from defects
or need for repair. The bond forms and the sureties are subject to the City Attorney’s approval.
Sectioa 3.12. Copiu of PIms. Owner shall furnish the City with one reproduction and two copies of the
as-built or record drawings in an appropriate AutoCAD format for the Water Facilities promptly upon
completion of construction and aweptance by the City. The drawings must be GIS compatible.
Sectioa 3.13, No Grant of Equjty or Ownership. No provision of this Agreement may tn interpreted or
construed to create any type of joint or equity ownership of any property or to create any partnership or
joint venture. Neither this Agreement, nor any acts of the Parties hereunder, nor any payments, may be
interpreted or construed as granting or otherwise vesting in District or Owner any right, title, interest, or
equity in the Denton System, or any element thereof
ARTICLE IV
RETAIL WATER SERVICE
SectIon 4.1. A£r%aleRt to Prwkle Retail Water Sewlc& Denton hereby agrees, subject to the terms of
this Agreement, to ptovide retail Water sewiae to the Water Customers.
Section 42. Sole Provider. Denton shall be the sole provider of retail Water service to all Water Customers.
Section 4.3. Billing and Rata.
4.3. 1. The City shall bill the Water Customers for the City’s provision of retail Water service when such
service is available.
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4.3.2. Water Customers shall pay the City’s rate for retail Water service to Outside Customers, as the rate
may be amended from time to time in the City’s sole discretion.
4.3.3. All of the standard rates, fees, and charges adopted by the City shall apply to retail Water service
provided pursuant to this Agreement.
Section 4.4. Conditions Pncedeat. It is understood and agreed by the Parties that the obligation of the
City to provide retail Water service in the manner contemplated by this Agreement is subject to (i) the
issuance of all permits, certificata, or approvals required to lawfully provide retail Water service by the
PUC, Texas Commission on Environmental Quality, and all other governmental agencies having
jurisdiction, which Owner, Distdcl and City shall use its good faith efforts to timely acquire, if necessary;
(ii) dnignation of the City as the sole provider of retail Wastewater service to customers within the
Property; (iii) execution of the Retail Wastewater Treatment Services Agreement pursuant to Article V;
and (iv) completed conveyance of Groundwater Rights from the Owner to the City pursuant to Article VI.
Section 4.5. Service Limitations. Notwithstanding any other provisions of this Agreement, Denton’s
obligation under this Agreement to supply retail Water service is subject to and limited by Denton’s
available raw water supply and the capabilities of Denton’s System, as determined by Denton in its sole
discretion. Denton will use reasonable efforts consistent with prudent operation of the Denton’s System and
with the terms of this Agreement, to furnish and remain in position to provide service to Water Customers.
Retail Water serviw pursuant to this Agreement is further limited pursuant to Section 4.6 ofthis Agreement.
Section 4.6. Water Conservation and Drought Contingency.
4.6.1. City shall develop and implement Water conservation and drought contingency plans using
applicable elements of Chapter 288 of Title 30 of the Texas Administrative Code, as may be amended from
time to time. District agnes to pursue and encourage conservation for the benefit of all customers of the
District and the Denton System.
4.6.2. District agrees that Denton may limit or curtail Water suppli® or services pursuant to this Agreement
consistent with Denton’s duly adopted water conservation and drought contingency plans or for other
reasons in the public interest. Denton agrees to impose such restrictions equitably and in a non.
discriminatory fashion. District agrees to coordinate and cooperate with Denton concerning the
implementation of any action to conserve or otherwise limit or curtail Water supplies in order to minimize
adverse impact on Denton’s System operation, on adequacy of service, and to promote public understanding
of the need for and terms of such limitation or curtailment.
4.6.3. To the extent Denton imposes nstHctions of general availability requiring cwtailment or rationing
of Water delivery and availability other than as provided under Denton’s duly adopted water conservation
and drought curtailment plans, Denton agrees to impose such restrictions equitably and in a non-
discriminatory fashion. Such cwtailments or rationing shall be limited to the extent that such supplies and
service are curtailed due to a lack of raw water supply or because of Denton System failure or malfunction,
contamination, acts of G(xI, civil disturbancu, war, regulatory delay, or other causes beyond Denton’s
control
Section 4.7. No Conveyance of Water Rjghts. The Parties acknowledge that nothing in this Agreement is
intended to nII, encumtKr, transfer, or convey any water rights fran Denton to District, Owner, or any
other entity and no such rigrts are sold, encwnbend, transferred, or conveyed. No artitlement to WaIn
supply is crmted othu than as expressly provided in this Agreement if this Agreement is ever construed
to effect an entitlement in, or sale, encumbrance, transfer, or conveyance of, Water rights from Ihnton to
District or Owner, thur the entirety of the Agreement shall be null and void.
Section 4.8. No Continuatioa of Services. District and Owner acknowledge there is no right to
continuation of retail water swvice by Denton in the event this Agreement is terminated and that no such
right(s) may be implied.
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Denton expressly reserves the right to temporarily discontinue
the retail Water service provided for in this Agreement, in the same manner as the City would temporarily
discontinue retail Water service provided to any of its other retail Water customers, whenever it is necessary
to do so to ensure proper operation of Denton’s System or to protect the health and safety of the public.
Section 4.9. Temnora1
Section 4.10. Water Impact Fees.
4.10.1. Impact fees for connection to any Water Facilities shall tn charged for each ESFC located within
the Property (the “Impact Fees”), subject to the conditions in Sections 4.10 and 4.11 and in accordance with
Chapter 395 of the Texas Local Government Code.
4.10.2. The Impact Fees shall refer to the fees due under this Agreement per ESFC from any builder within
the Property who connects to the Water Facilities, in an amount equal to the City’s existing Water impact
fee stated on the City’s impact fee schedule in effect at the time of said connection to the Water Facilities.
The Impact Fee shall be charged once per ESFC subject to Sections 4.10 and 4.11.
4.10.3. The Impact Fees shall & due for each connection made for each ESFC located within the Property
at the time such connection is made. No connection to the Water Facilities may occur until the Impact Fees
have been paid to the City for such connection.
4.10.4. The Parties hereby agree that the amount of the Impact Fee shall be based on an impact fee study
completed by the City, as amended. Any change to the amount of the Impact Fee shall be effective upon
passage of the new Impact Fee amount by the Denton City Council and shall apply to any connections made
after the new Impact Fee amount becomes effective.
Section 4.11. Impact Fee Credits for Offsite Water Facilities.
4.11.1. This section shall be limited to Offsite Water Facilities included in the City’s impact fee study in
effect at the time the City accepts the Offsite Water Facilities.
4.11.2. Upon the City’s acceptance of any Offsite Water Facilities, Owner shall provide the City with
evidence of the Cost of Construction for the Offsite Water Facilities.
4.11.3. Owner will be eligible to receive an impact fee credit amount equal to the Cost of Construction for
the Offsite Water Facilities in accordance with the City’s Impact Fee ordinances and regulations. However,
the amount credited shall not be greater than the amount included in the City impact fee study in effect at
the time of the City’s acceptance of the Offsite Water Facilities. The estimated Cost of Construction of the
Water Facilities attributable to the Property that are included in the City’s most recent impact fee study in
effect as of the EfTecdve Date of this Agreement is attached hereto as Exhibit “C”. Owner and City agree
that the most recent impact fee study is subject to change and may be amended by the Denton City Council
in its sole discretion.
4.11.4. Owner and the City agree that once Owner is credited in accordance with Section 4.11.3, the City
shall collect the Impact Fees per ESFC pursuant to Section 4.10.
4.11.5. Nothing in this Agreement shall limit the ability of the Denton City Council to amend the City’s
impact fee study or schedule.
4.11.6. Nothing in this Agreement binds the lhIlton City Council to include any Offsite Water Facilities in
its impact fee study or capital improvemalt plan
ARTICLE V
RETAIL WASTEWATER TREATMENT SERVICE AND FACILITIES
Section 5.1. Sole Provider. The Parties hereby agree, subject to this Agreement and the Agreement
referenced in Section 5.4, that Denton shall be the sole provider of retail Wastewater tratment service to
all customers within the Property.
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Sectioa 5.2. Retail Wastew8ter Service. Subject to the terms of this Agreement and the separate agreement
referenced in Section 5.4, lknton agrees to provide retail Wastewater to customers located within the
Property. Retail Wastewater service capacity for the Property shall be limited to that which is needed to
serve a maximum of 100 ESFCs.
Section 53. Effluent Title and Ownership. All title and ownership to Wastewater flow from wastewater
customers within the Property into the Denton System shall belong to Denton. Denton may, after treatment
of Wastewater, reclaim, use, or sell the water, sludge, or any other product for reuse. Wastewater entering
the Ihnton system becomes the property of lknton. Title to water from Wastewater that is treated and
returns to a rntural watercourse ranains with Denton.
Section 5.4. e Ir Mr . TIle City’s provision of retail
Wastewater service to the Property is contingent on Owner, District, and City entering into a Retail
Wastewater Treatment Services Agreement. Owner and District will agree in the Retail Wastewater
Treatment Services Agreement that customers within the property are subject to the City of Denton
Approved Pretnatment Program, approved by TCEQ in accordance with 40 C.F.R. Section 403.8, as
amended. The Retail Wastewater Treatment Services Agnement will also comply with applicable law
including, without limitation, all applicable portions of the Code of tIn City of Denton, Texas, Ch. 26.
Section 5.5. Retail Wastewater Rate. Wastewater customers shall pay the rate applicable for wastewater
service to Customers outside the City’s Corporate limits, as may tw amended from time to time in the City’s
sole discretion.
Sutton 5.6. Wastewater Facilities. District and Owner shall be responsible for the design, contracting,
wlstruction, and financing of all Wastewater Facilities including acquisition of any neon%ry rights-of-
way and easements for such facilities. District and/or Owner shall provide all lines, metering station(s), lift
stations, and other associated Wastewater Facilities and shall acquire all property, interests, licenses, and
permits that are necessary to complete construction and dedication of the Wastewatn Facilities to the City
without compensation by an appropriate legal instrument approved by the City Attorney. Terms and
conditions related to oversizing shall be governed by an oversize participation agreement executed by the
City and Owner based al the City’s standard oversize participation agrwment form.
Section 5.7. Temporary Discontinuance. Denton expressly reserves the right to temporarily discontinue
Wastewater treatment referenced in this Agreement whenever it is necessary to do so to ensure proper
operation of the Denton System or to protect the health and safety of the public.
Section 5.8. Conditions Precaleat in addition to the terms and conditions stated in this Article V, it is
understood and agreed by the Parties that the obligation of the City to provide retail wastewater service in
the manner contemplated by this Agreement is subject to (i) the issuance of all permits, certificates, or
approvals required to lawfully obtain retail wastewater service by the PUC, Texas Commission on
Environmental Quality, and all other govemmental agenda having judsdiction which the Owner, District,
and the City shall use its ga)d faith efforts to timely acquire, if necessary; (ii) Denton being the sole provider
of retail Water servi@ to all Water Customers; and (iii) completed conveyance ofGrowrdwater Rights from
the Owner to the City pursuant to Article VI of this Agreement.
ARTICLE VI
GROUNDWATER
Section 6.1. Groundwater Rights. C)wnn warrants and represents that it owns the Groundwater Rights
attributable to the Property in fee simp]e arM that the Groundwater Rights have not teen severed from the
surFdce estate.
Section 6.2. Groundwater Rights Sale Agreement Required. Owner shall enter into a Groundwater
Rights Sale Agreement with the City, the form of which shall tn mutually agreed upon by Owner and the
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City, wherein the Owner agrees to sell the Growrdwater Rights attributable to the Property to the City in
fee simple. The Groundwatu Rights Sale Agreement shall be accompanied by a deed, the form of which
shall also tn mutually agreed upar by Owner and the City, and both instruments shall be filed and recorded
in the real property records of Denton County. The City will not use the surface of any finished lots within
the Property to access, explore for, develop, tr@ pIt>dum, or transport the Groundwater.
Section 63. Irrigation License. After closing on the Groundwater Rights in accordance with Section 6.2
herein, the City shall grant the District a license, the form of which shall b mutually agreed upon by the
City and District, to produce Groundwater for irrigation purposes in amounts sufficient to ensure the
maximum amount of Groundwater is conserved, based on documentation provided to the City. Conditions
relating to the siting and operation of any Groundwater wells will be addressed in the license contemplated
by this Section 6.3, which shall be mutually agreed upon by the City and District.
Section 6.4. GCD Approvals and Filings. Owner and/or District shall obtain all the regulatory approvals
from the North Texas Groundwater Conservation District ('NTGCIY’) necessary to effectuate the sale and
license contemplated by this Agrwment. Owner and/or District are also responsible for the filing of all
documents required by NTGCD to efTectuate the sale and license contemplated by this Agreement.
Section 6.5. Other Regulatory Approvals. Owner and/or District shall be responsible for obtaining all
regulatory approvals necessary to produce the Groundwater allowed under the license referenced in Section
6.3
ARTICLE VII
OPERATION AND REGULATORY APPROVALS
Section 7.1. Operation and Maintenance of Denton’s System. Denton recognizes its right and duty to
operate Denton’s System under this Agreement in a prudent and econornical manner for the benefit of its
retail customers. Denton will use due diligence to comply with appropriate water quality standards and will
guard carefully against all forms of contamination to Denton’s System employed in performance of this
Agreement
Section 7.2. State or Federal Laws, RuIn, Orders or Regulations. THs Agreement is subject to all
applicable Federal and State laws and any applimble permits, ordinances, rules, orders, and regBlations of
any local, state, or federal governmental authority having or asserting jurisdiction; but nothing contained
herein shall be construed as a waiver of any right to question or contest any such law, ordinance, order, nIle
or regulation in any forum having jurisdiction.
Section 73. City Permits and Regulatory Authorizations. District and Owner will support and
coordinate with the City in all its efforts to obtain permits and/or regulatory authorizations related to this
Agreement from State and Federal agencies having jurisdiction including, without limitation, efforts by the
City involving water reuse and bed and banks permitting.
Section 7.4. Certificatu ofConveaience and Necessjty and Extnterritorial Jurisdiction.
7.4.1. District agrees that it will Int provide any Water or Wastewater swvioes to any customer within an
area included within Denton’s single, dual, or multiple certifiated areas, unlns expressly approved in
writing by Denton.
7.4.2. With the ocception of Denton’s respective Water and Wastewater CCNs, the PR)peny shall not be
located within an area subject to a CCN issued by the Public Utility Commission of Texas or successor
agency
7.4.3. To the extent the Property, or any portion thereof, is not subject to any CCN, Ihnton has the option
to extend its water and/or wastewater CCN to cover the property at the City’s sole cost and expense.
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7.4.4. The Owner agrees that it will not take any steps to include the Property in the exaaterHtodal
jurisdiction of any political subdivision other than Denton.
Section 7.5. Compliance with Applicable Laws.
7.5.1. This Agreement is entued subject to and controlled by the Charter and Ordinances of the City of
Denton, Texas and all applicable laws, rules, and ngyjations of the State of Texas and the United States of
America (collectively, “Applicable Laws”), as amended. The Parties sha]l, during the performance of this
Agnemenl comply with all applicable City axles, ordinances, and regulations, as amended, and all
appliable State and Federal laws, rules, and regulations, as amended.
7.5.2. Notwithstanding any provision of this Agreement, to the extent there is a conflict between any
portion(s) of an appliuble City ordinance, rule, or regulation related to service to Outside Customers and
this Agnemenl the provisions of this Agreement shall apply.
7.5.3. The Owner or District shall file this Agreement with the appropriate State or Federal agency, if
requind under State or Federal law.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. INDEMNIFICATION.
8.1.1. TO THE EXTENT ALLOWED BY LAW, DlgrRlcr AGREES TO DEFEND.
INDEMNIFY, AND HOLD DENTON, ITS OFFICERS, AGENTS, AND EMPLOYEES,
HARMLESS FROM ANY LIABILITY IN CLAIMS. ADMINISTRATIVE PROCEEDINGS OR
LAWSUITS FOR JUDGMENTS, PENALTIES, FINES, COSTS, EXPENSES AND ATrORNEY'S
FEES FOR PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE, OTHER
HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON
OR PERSONS. OR FOR VIOLATIONS OF STATE OR FEDERAL LAWS OR REGULATIONS.
THAT MAY ARISE OUT OF OR BE OCCASIONED BY: (A) A BREACH OF THIS AGREEMENT
BY DISTRICT; (B) THE NEGLIGENT Acr OR OMISSION OF DISTRICT IN THE
PERFORMANCE OF THIS AGREEMENT OR IN DISTRICT'S OPERATIONS; OR (C) THE
CONDUCT OF DISTRICT THAT CONSTITUTES A VIOLATION OF STATE OR FEDERAL
LAWS OR REGULATIONS OR OF PERMrr PROVISIONS. HOWEVER, THE INDEMNITY
STATED ABOVE SHALL NOT APPLY TO ANY LIABILITY RESULTING EXCLUSIVELY
FROM THE SOLE NEGLIGENCE OF DENTON, ITS OFFICERS, AGENTS, EMPLOYEES OR
SEPARATE CONTRACTORS.
8.1.2. IN THE EVENT OF JOINT AND CONCURRING RESPONSIBILITY OF THE DISTRICT
AND DENTON, RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT WANING
GOVERNMENTAL IMMUNITY OR ANY OTHER DEFENSES OF THE PARTIES UNDER
APPLICABLE TEXAS LAW.
&13. NOTHING IN THIS SECTION &1 REQUIRES DENTON OR DISTRlcr TO ASSESS OR
COLLECT FUNDS OR TO CREATE A SINKING FUND.
&1.4. OWNER AGREES TO DEFEND, INDEMNIFY, AND HOLD DENTON, ns OFFICERS,
AGENrs, AND EMPLOYEES, HARMLESS FROM ANY LIABILITY IN CLAIMS,
ADMINISTRATIVE PROCEEDINGS OR LAWSUITS FOR JUDGMENTS. PENALTIES. FINES.
COSTS, EXPENSES AND ATTORNEY'S FEES FOR PERSONAL INJURY (INCLUDING
DEATH), PROPERTY DAMAGE, OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS
SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, OR FOR VIOLATIONS OF STATE OR
FEDERAL LAWS OR REGULATIONS, THAT MAY ARISE OUT OF OR BE OCCASIONED BY:
City of [knOll Utility Servbe A8rumaH
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018174.0CX)001\488Cb3362+)986.vI
(A) A BREACH OF THIS AGREEMENT BY OWNER; (B) THE NEGLIGENT ACT OR
OMISSION OF OWNER, ITS DIRECTORS, AGENTS, EMPLOYEES, OR SEPARATE
CONTRACTORS IN THE PERFORMANCE OF THIS AGREEMENT OR IN OWNER’S
OPERATIONS; OR (C) THE CONDUCT OF OWNER, ITS OFFICERS, AGENTS, EMPLOYEES
OR SEPARATE CONTRACTORS TnAT CONSTITUTES A VIOLATION OF STATE OR
FEDERAL LAWS OR REGULATIONS OR OF PERMIT PROVISIONS. HOWEVER, THE
INDEMNrrY STATED ABOVE SHALL NOT APPLY TO ANY LIABILITY RESULTING
EXCLUSIVELY FROM THE SOLE NEGLIGENCE OF DENTON, ITS OFFICERS, AGENTS,
EMPLOYEES, OR SEPARATE coNTRAcroRS.
Sectioa 8.2, Force Maieun in the event any Party is rendered unable by force majeure to carTy out any
of its obligations under this Agreement, in whole or in part, then the obligations of that Party, to the extent
affected by the force majeure shall be suspended during the continuance of the inability, provided however,
that due diligence is exercised to resume performance at the earliest practical time. As soon as reasonably
possible after the occurrence of the force majeure relied upon to suspend performance, the Party whose
contractual obligations are affected thereby shall give written notice and full particulars of the force majeure
to the other Party, shall provide weekly written updates describing its efforts to mitigate or cure the force
majeure condition(s), and shall provide written notice at the time that the force majeure conditions have
ceased
The cause, as far as possible, shall be remedied with all reasonable diligence. The term “force majeure”
includes acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of
the govemment of the United States or the State of Texas or any civil or military authority, inswr%tions,
riots, epidemics, landslides, lightening, earthquakes, fires, hurricanes, storms, flocxls, washouts, droughts,
res&aints of government and civil disturbances, explosions, breakage or accidents to equipment, pipelines
or canals, partial or complete failure of water supply, epidemic, pandemic, and any other inabilities of either
Party to be able to perform, whether similar to those enumerated or otherwise, that are not within the oontrol
of the Party claiming the inability and that could not have ben avoided by the exercise of due diligence
and care
Section 83. Term of Agreement. This Agreement shall commence on the Effective Date and shall end,
unless terminated, when the actions necessary to effectuate the purposes and intent of this Agreement are
completed.
S6ction 8.4. Termination.
8.4.1 The City, at the City’s option and without prejudice to any other remedy City may be entitled to at
law, in equity, or elsewhere under this Agreement, may terminate this Agreement in whole or in part for
breach that is not cured in cotnpliance with Section 8.6 or for non-appropHation under Section 8.24.
8.4.2 Notwithstanding any other provision of this Agreement, this Agreement shall terminate if after eight
(8) years hum the Effective Date (“Deadline) (i) construction of the Water Facilities or Wastewater
Facilities is incomplete; (ii) dedication of the Water Facilities or Wastewater Facilities to the City has not
oecuned; (iii) execution of the Retail Wastewatn Treatment Servio® Agreement has not occurred pursuant
to Article V; or (iv) conveyance of Growrdwater Rights from the Owner to the City has not occuned
pursuant to Article VI.
8.4.3 if this Agreement is terminated pursuant to Section 8.4, all Offsite Water Facilities and/or Offsite
Wastewater Facilities aonstructed, incluling any portions partially constructed, shall neverthelns tn
dedicated to the City by Owner and/or District without compensation by an appropriate legal instrument
approved by the City Attorney along with any associated easements and rights of way.
8.4.4 The Deadline under Section 8.4.2 may tn extended no later than one (1) year prior to the Deadline,
without &iggwing the termination of this Agreement, by written consent of Denton’s City Manager.
City ofDen80n UUlity Service Agreement
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Sectioa 8.5. Addre§sa and Notice. Unless otherwise provided herein, any notice, communication, request,
reply or advice (herein severally and collectively, for convenience, called “Notice”) herein provided or
permitted to tn given, made or accepted by any party to any other party must be in writing and may be
givar or tn served by depositing the same in the United Statu mail postpaid and registered or certified and
addnssed to the party to tn notified, with return receipt requested. Notice deposited in the mail in the
manner descritnd above shall be conclusively deemed to be effective upon receipt, unless otherwise stated
herein. For the purposes of notice, the addrused of the parties shall, until changed as hereinafter provided,
be as follows:
If to Denton, to:City Manager
City oflknton
215 E McKinney St
Denton, Texas 76201
If to the District, to:Ponder Farms Municipal Utility District of Denton County
c/o Coats Rose, P.C.
16000 North Dallas Parkway, Suite 350
Dallas, Texas 75248
Attn: Mindy L. Koehne
If to the Owner, to:'P. LLC
Pegbud/J
762gzI
51/ f/4 CTf
The parties hereto 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
writtal notice to the other parties hereto.
Section &6, Bruch. If a Party breaches any term or condition of this Agreement, the non-breaching Party
shall provide the breaching Party with notice of the blmch. Upon its receipt of a notice of breach, the
breaching Party shall have sixty (60) days to cure the txeach. If the breaching Party does not cure the brmch
within the sixty (60) days, the non-bruching Party shall have all rights and remedia at law and in equity
including, without limitation, the right to enforce specific performance of this Agreement by the breaching
Party and the right to perform the obligation in question and to suk restitution for all damages incwnd in
connntion therewith. However, this Agreement may only be terminated due to breach as stated in Section
8.4.1
Sectioa 8.7. Survival of Certain Rights and ObIIgations.
Notwithstanding any provision of this Agreement to the contrary and without limitation of any other
provisiors of this Agreement that specify survival of rights and obligations, all rights and obligations of the
Partin under this Agreement which by their nature are intended to survive including, but not limited to,
those listed below shall survive:
& Section 3.11 Ihvelopment Contracts for Public Improvements and Bonds;
b. Section 3.13. No Grant of Equity or Ownership;
c. Section 4.7. No Conveyance of Water Rights;
d. Section 4.8. No Continuation of Services;
e. Section 7.3. City Permits and Regulatory Authorizations;
City oflkn80n Utility Snvia Agreement
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f. Section 7.4. Certificates of Convenience and Necessity and Extratenitorial Jurisdiction;
g. Section 8.1. Indemnification;
h. Section 8.9. No Third-Party Bernficiades;
i. Section 8.12. Nonwaiver and Remedies; and
j. Section 8.16. Venue; and
k. Section 8.20. Necessary Documents and Actions.
The provisions ofthis Agreement are sevuable, and if any word,
phrase, clause, sentence, paragraph, section, or other part of this Agreement or the application thereof to
any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or
unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase,
clause, senterne, paragraph, sntion, or other Party of this Agreement to other persons or circumstances
shall not be affected thereby and this Agreement shall tn construed as if such invalid or unconstitutional
portion had never been contained therein. The Parties agree that they have equally participated in the
drafting of this Agreement with the assistance of legal counsel, and that neither Party shall receive any
benefit of interpretation of its terms on the basis of relative contribution to the drafting process.
Section 8.9. Lo TM=e£nBaeILeBr LalB, Ths Agreement is solely for the benefit of the Parties hereto,
and no other person or entity has any right, interest or claim under this Agreement nor shall b considered
to be a third-party beneficiary.
Section 8.10. Captions. The captions of the various sections and paragraphs herein are intended for
convenience or reference only and shall not define or limit any of the terms or provisions hereof.
Section &11. Governmental Immunity Not WaIved+ Neither Denton or the District waives, nor shall be
deemed hereby to waive, any immunity or defense that would otherwise be available against claims made
or arising from any act or omission resulting from the Agreement.
Section &12. Nonwatver and Remedin.
8.12.1. A Party’s right in the future to demand strict compliance and performance under this Agreement is
not diminished because, whether through decision or oversight, that Party has not enforced a provision of
this Agreement or has not enforced breach or nonperformance in the past, whether periodically or for long
duration. Also, a Party’s right in the future to demand strict compliance and performance with this
Agreement is not diminished because, whether through decision or oversighl the other Party has not
enforced the same or a similar provision of this Agreement or does not urforce the same or a similar breach
or nonperformance, whether periodically or for long duration. To the extent a right or benefit in this
Agreement is expressly waived by a Party such waiver will not be applied other than strictly in accordance
with the conditions expressed in such express waiver and will not be implied to be continuing in nature.
8.12.2. Exoept to the extent exprusly provided otherwise, all nmedin existing at law or in equity may be
a%ned of by the City and shall tn cumulative including, without limitation, specific performance, and the
City shall tn entitled to any rusonable attorney’s fen, costs, or othn expenses incurTed in txinging or
defending aID' action, as may be awarded by a tribunal of oompaentjwisdiction.
Soctioa 8.13. Entire A£remeBt. This Agrnment, incluRng any exhibits and/or addendtms attached
hueto and made a part hereof, constitutes the entire agreement tntwnn the Parties relative to the subject
matter of this Agreement. All prior agreements, covenants, representations, or warranties, whether oral or
in writing, between the Parties are merged herein.
Section 8.14. Amendment. No amendment of this Agreement shall be effective unless and until it is duly
qproved by each Party and reduced to a writing signed by the authorized npnsentatives of the City,
City oflknton Ublity Sewbe Agrecalart
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018174.000001V1880-33624986.vl
District, and Owner respectively, which amendment shall incorporate this Agreement in every particular
not otherwise changed by the amendment.
Section 8.15. Governing Law. This Agreement shall be construed under and in accordance with the laws
of the State of Texas and all obligations ofthe Partiw are expressly deemed performable in Denton County,
Texas
Section 8.16. Venue. Any action at law or in equity brought to enforw or interpret- any provision of this
Agreement shall be brought in a state court of competent jurisdiction with venue in Denton County, Texas.
Section 8.17. Succnsors and Assjgns. This Agreement shall be binding on and shall inure to the tnnefit
of the Parties and their swcessors and assigns.
Sectio& 8.18. As$jgament. Ure rights and obligations of the Owner and/or District hereunder may not tn
assigned without the prior written consent of Denton’s City Manager. Any assignment of, or attempt to
assign, rights, or delegation of duties under this Agreement without the oonsent of Denton’s City Manager
is void. No assignment by Owrwr or District shall release Owner or District from any obligations, rights,
title, or interests under this Agreement or from any liability that r%ulted from any act or omission by Owner
or District, unless the City Manager approves such a release in the written consent provided by the City
Manager
Sectioa &19. Couaterparts. This Agreement may be executed in multiple counterparts, which, when taken
together, shall be dwmed one original.
Section 8.20. Necessary Documents and Actioas. Each Party agrees to execute and deliver all other and
further instruments and undertake actions as are or may become necasary or convenient to effectuate the
purposes and intent of this Agreement.
Section &21. Authority. By execution of this Agreement on its behalf, each Party npnsents that it has full
capacity and authority to grant all rights and assume all obligations that it has granted and assumed under
this Agreemenb and that this Agreement has teen authorized by its governing My. The Partia represent
and warrant that their r%putive signatories to this Agreement have corporate or organizational authority
to execute this Agreement.
Section 8.22. Form 1295. Submitted henwith, if required by applicable law, is a completed Form 1295
generated by the Texas Ethics Commission’s (“TEC’) electronic filing application in accordance with the
provisions of Section 2252.908 of the Texas Government Code and the rules promulgated by the TEC (the
“Form 1295”). The City hereby confirms receipt of the Form 1295 from Owner, and the City agrees to
acknowledge such form with the TEC through its electronic filing application not later than the 30th day
after the receipt of such form. The Parties understand and agree that, with the exception of information
identifying the City and the contract identification numtnr, neither the City nor its consultants are
responsible for the information contained in the Form 1295; that the information contained in the Form
1295 has been provided solely by Owner; and, neither the City not its consultants have verified such
information.
Section 823, Cenifiutbm.
8.23.1. Pursuant to Twas Government C(xle Chapter 2271, as amended, Owner verifies that at the time of
execution and delivery of this Agreement and for the tum of this Agreement, neither Owner, its parent
wnpanies, nor its mrmon®ntrol affiliates currurtly boycott or will boycott Israel. The term “boycott
Israel” as used in this paragraph has the muning assigned to the tem 'lnycott Israel” in Section 808.001
of the Texas Government Code, as amended.
8.23.2. Pursuant to Texas Government Code, Chapter 2252, as amended, Owner represents and verifies
that at the time of execution and delivery of this Agreement and for the term of this Agnemenb neither
Owner, its parent companies, nor its common-control affiliates (i) engage in business with Iran, Sudan, or
any foreign terrorist organization as described in Chapters 806 or 807 of the Texas Govemment Code, or
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018174.000(X)l\488(b33624)986.vI
Subchapter F of Chapter 2252 of the Texas Government Cale, or (ii) is a company listed by the Texas
Comptroller of Public Accounts under Sections 806.051, 807.051, or 2252.153 of the Texas Government
Code
8.23.3. Pursuant to Chapter 2276 of the Texas Government Ccxle (as added by Senate Bill 13, 87th Texas
Legislature, Regular Session and redesignated by House Bill 4595, 88th Texas Legislature, Regular
Session), Owner certifies that it is not a Company that tnycotts energy companies and agnes it will not
boycott energy companies during the term of this Agreement. The terms “boycotts energy companies” and
“boycott energy companies” have the meaning assigned to the term “boycott energy company” in Section
809.001, Tocas Govemment Code. For purposes of this paragraph, “Company” muns a for-profit sole
propHetorship, organization, association, corporation, partnership, joint venture, limited partnership,
limited liability partnership, or limited liability company, including a wholly owned subsidiary, majority-
owned subsidiary, parent comlnny, or affiliate of those entities or business associations, that exists to make
a profit, but does not include a sole proprietorship.
8.23.4. Pursuant to Chapter 2274 of the Texas Government Ccxie (as added by Senate Bill 19, 87th Texas
Legislature, Regular Session, “SB 19”), Owner ceRi$a that it is not a Company that has a practice, policy,
guidance, or directive that discriminates against a firearm entity or firmrm trade association and agrees it
will not discriminate against a firearm entity or firmrm trade association during the term of this Agreement.
The terms “discriminates against a firearm artity or firearm trade association” and “discriminate against a
firearm entity or firearm trade association” have the meaning assigned to the term “discdminate against a
firearm entity or firearm trade association” in Section 2274.001(3), Texas Government Code (as added by
SB 19). For pupc)sa of this paragraph, 'Company” means a for-profit organization, association,
corporation, partnership, joint venture, limited partnership, limited liability partnership, or limited liability
company, including a wholly owned subsidiary, majorityowned subsidiary, parent company, or affiliate of
those entities or business associations, that exists to make a profit, but does not mean a sole proprietorship.
8.23.5. Owner further certifies that, notwithstanding anything contained in this Agreement, the
npnsentations and covenants contained in this Section 822 shall survive termination of the Agreement
until the statute of limitations has run. The liability for breach of the representations and covenants
contained in this Section 8.22 during the term of the Agreement shall survive until barred by the statute of
limitations, and shall not be liquidated or otherwise limited by any provision of the Agreement,
notwithstanding anything in the Agreement to the contrary.
Section 8.24 Non-Appropriation. Notwithstanding any provisions contained herein, the obligations of the
City under this Agreement are expressly contingent upon the availability of funding for nch item and
obligation contained herein. Neithu the Owner or the District shall have a right of action against the City
in the event the city is unable to fulfill its obligations under this Agreement as a result of lack of sufficient
fUnding for any item or obligation from any source utilized to fund this Agreement or failure to budget or
authorize funding for this Agreement during the current or future fiscal years. If the City is unable to fulfill
its obligations under this Agnement as a result ofIackofsufficknt funding, or if funds become unavailable,
the city, at its sole discretion, may provide funds from a separate source or may terminate this Agreement
by written notice at the earliest possible time prior to tIe end of its fisa year.
Section &25 Rnewations of Capacjty. Any nsewation ofwatu and/or wastewater capacity by the City
stated or implied by this Agreement shall not be construed to extard beyond the Deadline, unlns the
Ihadline urxler Section 8.4.2 of this Agreement is extended pursuant to Section 8.4.4 of this Agrwmart in
which use any stated or implied lner%tion shall only extend for the period consented to by Denton’s City
Manager.
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IN WITNESS WHEREOF, the Parties hereto acting under authority of their respective governing tndies
have caused this Agreement to be duly executed in several counterparts, each of which shall constitute an
original, all as of the day and year first above written, which is the Effective Date.
[SIGNATURE PAGES FOLLOWI
City of Denton Utility Service Agree
Page 17 of 29
018174.000001\4880-33624)986.vI
CITY OF DENTON
Sara Hensley, City Manager
ATTEST:
CJhdb
Lauren Thoden, City Secretary
APPROVED AS TO FORM AND LEGALITY:
7rbw,/' .
Mack Reinwand, City Attorney
City of Dunn Udlity Service Agreement
Pw 18 of29
018174.000001\4880-33624986,vl
DISTRICT
By
"") &„,M O h
President, Board of Directors
ATTEST:
Secretary, Board of Directors
APPROVED AS TO FORM AND LEGALITY:
/MO (y -Mv
Mindy L. Koehne, Attorney for the District
City of Denton Utility Service Agreement
Page 19 of 29
018174.(X)0001\4880-33624986. vl
OWNER
TCCI PONDER WPP, LLC,
a Texas limited liability company
Name: Tommy Cansler
Title: Director
City of Denton Utility Service Agreement
Page 20 of 29
018174.000001\4880-3362-0986. vl
EXHIBIT “A”
THE PROPERTY
PROPERTY DESCRIPTION
BEING a tract of land situated in the Ignacio Elde Survey, Abstract Number 387, Denton
County, Texas and being a portion of a called 31.43-acre tract of land described in a Deed of
Trust and Security Agreement recorded in Instrument Number 2022-1:3224, Official Records of
Denton County, Texas, which was referenced in the Correction Instrument reaorded in
Instrument Number 2022-1 3964, Official Rewrds of Denton County, Texas that also included
an unrecorded Warranty Deed with Vendor’s Lien to TCCI Ponder WPP, LLC, and being more
particularty described as follows:
BEGINNING at a 1/2" iron rod found with a ap stamped -EAGLE SURVEYING- at the
northeast corner of said 31,43.acre tract, being on the northerly side of asphalt road within Blair
Road (a called 6Cbfoot right-of-way);
THENCE South 00'09'47" East, departing said Blair Road and along the east line of said 31.43-
acre tract, passing a 60d Nail found for the northwest corner of a called 11.971-acre tract
described in a deed to Kenneth Aaron Shinedling II, Trustee of the Addison Shinedling 2017
Inevocable Trust dated October 19. 2017. as recorded in Instrument Number 2022-123809.
Official Records of Denton County, Texas, at a distance of 5.76 feet, continuing for a total
distance of 2,109.39 feet to a 5/8- iron rod with plastic cap stamped “KHA- set for the southeast
owner of said 31.43-acre tract. from which a 1/2” iron rod found for the southwest corner of said
11.971-acre tract bears South 00'09'47” East a distance of 285.15 feet;
THENCE departing the westerty line of said 11.971-acre tract, along the westerty line of said
31.4&acre tract, and generally along the meanders of Hog Branch Creek the following aourses
and distances:
North 61'13'45" West, a distance of 379.87 feet to a point for comer;
North 32'25'16" West, a dlstanoe of 278.34 feet to a point for corner;
North 73'14'47' West, a distance of 102.56 feet to a point for oornec
North 48'06'33" West, a distance of 433.68 feet to a point for corner;
City of Denton Utility suva Agrmrrent
Page 21 of 29
018174.000tX)l\488(F3362+)986.vI
North 01'34'1 1 " East, a distance of 195.88 feet to a point for corner;
North 46'28'41" East, a distanoe of 69.87 feet to a point for corner;
North 74'07'33" East, a distanoe of 202.55 feet to a point for corner;
North 02'51'55" East, a distance of 154.28 feet to a point for aornec
North 20'26'13" East, a distance of 183.18 feet to a point for corner;
North 08'35'26" East, a distance of 196.13 feet to a point for comer;
North 39'15'58" West, a distance of 181 .45 feet to a point for corner;
North 52'54'41" West, a distanoe of436.15 feet to a point for corner;
North 00'13'24" West, a distance of 101 .58 feet to a 5/8” iron rod with plastic up
stamped “KHA- set for the westerly northwest corner of said 31 .43-acre tract, on the
southerly line of a called 0.396-acre tract of land described in the deed to Denton
County, Texas recorded in Instrument Number 2005-24203, Official Records of Denton
County, Texas, and the southerly right of way line of said Blair Road;
THENCE North 89'53'29" East, along the northerly line of said 31 .43-acre tract, the southerly
line of said 0.396-acre tract and the southerly right of way line of said Blair Road, a distance of
203.73 feet to a 5/8' iron rod with plastic mp stamped -KHA- set for corner, from which a 3/8-
iron rod with a w> stamped -ALLIANCE- found for witness bears South 02'37'18- East, a
distance of 6.11 feet;
THENCE North 76'5Y5g East, continuing along the northerty line of said 31.43qcre tract, the
southerly line of said 0.39Gacre tract and the southerty right of way line of said Blair Road, a
distance of 51 .87 feet to a 5/8- iron rod with plastic cap stamped -KHA” set for the southeast
comer of said 0.39&acre tract, common to an eII corner of said 31 .43-acre tract;
City of Denton Utility Service A8rmrnnt
Page 22 of 29
018174.00tXX)IW880-3362+B86.vI
THENCE North 00'06'31" West, departing the southerly right of way line of said Blair Road,
along the easterly line of said 0.396-acre tract and continuing along the northerly line of said
31 .43-acre tract, and crossing said Blair Road, a distance of 29.42 feet to a 5/8- iron rod with
plastic cap stamped -KHA- set for the northeast corner of said 0.396-acre tract, same being the
northerly northwest oomer of said 31 .43-acre tract near the northerty side of the asphalt road
within Blair Road , from which a 1/2- iron rod found for the northwest corner of a called 92.50-
acre tract described in the Special Warranty Deed to Tex-Mix Land, LTD. recorded in Instrument
Number 2021-24240 Official Records of Denton County, Texas bears South 89'28'45- West, a
distance of 951 .95 feet;
THENCE North 89'28'45" East, along the north line of said 31 .43-acre tract and along or near
the asphalt road within said Blair Road, a distance of 754.41 feet to the POINT OF BEGINNING
and containing a oomputed area of 1 ,369,265 square feet or 31.434 acres of land more or less.
City oflhnton Utility Service Agrument
Page 23 of 29018174.00tXX)I\4880-33624986.vI
EXHIBrr “B”
WATER STUDY
City of Dalton Utility SuviwA8reemurt
Page 24 of 29
018174.000001V+880-3362.0986.vI
EXHIBIT B
West Denton County Area
Water Analysis
Denton, Texas
FEBRUARY 2024
Prepared By
Kimley ;»Horn
801 Cherry Street, Unit # ll. Ste. 1300
Fort Worth, Texas 761 02
TBPE No. F-928
KH A Nos 068301401
For
&wikier
INTRODUCTION
The proposed West Denton County Area Developments are located west of the Southwest EST and
northwest of Robson Ranch outside of the corporate limits of the City of Denton and City of Ponder, but
within the City of Denton and City of Ponder extraterritorial jurisdictions. The developments consist of the
Churchill, Ponder Farms. and Webster Meadows developments,
Kimley-Horn (KH) performed a hydraulic analysis to determine impacts to the City of Denton’s water system
and infrastructure required to serve the proposed developments. The developments are comprised of
approximately 2.750 single family units, as well as approximately 250 multi-family units. Below is an exhibit
showing the location of the proposed developments.
The analysis was performed in accordance with the " City of Denton Water and Wastewater Criteria ManuaF
dated October 2022
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PONDER
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Location Map Exhibit
This Space is Intentionally Left Blank
West Denton County Area Water Analysis
February 2024
KH Project Number: 068517173
WATER DEMAND LOAD PROJECTIONS
As part of the water analysis, Kimley-Horn assessed the Maximum Day + Fire Flow and the Peak Hour
scenarios as required by the Texas CommIssion on Environmental Quality (TCEQ). Kimley-Horn assessed
the peak Rows in the water system usIng the existing water system model provided by the City as part of
the Legends Ranch water study in May 2019. Kimley-Horn used the following assumptions for water
demands per the current model, industry standards, and the City of Denton Water and Wastewater Criteria
Manual
•
•
•
•
•
•
•
3.2 people per single-family unit
2.5 people per multi-family unti
2,750 single-family units
250 multi-family units
170 gallons per capita per day for average water demand
2.0 average day to maximum day water demand peaking factor
1.5 maximum day to peak hour water demand peaking factor
Using the above assumptions, Kimley Horn calculated the following
This Space is Intentionally Left Blank
West Denton County Area Water Analysis
February 2024
KH Projeci Number: 068517173
WATER ANALYSIS
Based on the analysis. the developments ultimately will require the following improvements to the existing
water system
•
•
•
•
One (1) 24-inch water line from Southwest EST to the Ponder Farms Development
One (1) 20-inch water line through the Ponder Farms Development to serve wholesale water to the
City of Ponder
One (1) 16-inch water line from Ponder Farms through the Churchill Development
One (1) 12-inch water line from Ponder Farms to the Webster Meadows Development
Kimley-Horn assessed two different scenarios: Peak Hour and Maximum Day + Fire Flow. The model
received from the City included 2018_MAX_DAY_EPS and 2018 MD_FIREFLOW scenarios. Diurnal
patterns were applied to all demand nodes in the existing models. The existIng water model has three built-
in diurnal curves. The 2018_DIURNAL_CENTRAL was utilized for this proposed development. This
development is ultimately proposed to receive water from the Southwest Pressure Plane
During analysis, it was determined that the proposed 20-inch wholesale water line serving the City of
Ponder could only provide 850 gpm during the proposed developments buildout scenario without requiring
additional infrastructure improvements to the existing southwest pressure plane water system
PEAK HOUR ANALYSIS
For the Peak Hour scenario, Kimley-Horn added the projected Peak Hour demand to the proposed nodes
as described above. Kimley-Horn then ran the Maximum Day Extended Phase Simulation (EPS). The
peakIng induced in the Maximum Day EPS model run simulates the Peak Hour event. Kimley-Horn
compared model results both before and after the development. TCEQ requires that a minimum pressure
of 35 psi be maintained in the water system during peak flow events.
Comparing the before and after ultimate Peak Hour results, there are no new additional nodes that drop
below 35 psi. In the ultimate demand conditions for the proposed developments. the lowest pressure is 41
psi, which exceeds the required 35 psi,
MAXIMUM DAY + FIRE FLOW ANALYSIS
The existing model includes a 2018_MD FIREFLOW scenario that calculates available fire flow at various
nodes throughout the City’s water system, This would roughly simulate a Maximum Day + Fire Flow
Analysis. Kimley-Horn added the baseline demands of the proposed developments in nodes to the model
and added these nodes to the fire flow list to calculate available fire flow
TCEQ requires that a minimum pressure of 20 psi be maintained in the water system during fire flow events,
After development demands are added, no additional nodes fall below the required fire now threshold. In
the ultimate demand conditions for the proposed developments, the lowest pressure will exceed 31 psi
while meeting fire flow demands. These pressures meet the minimum TCEQ criteria
West Denton County Area Water Analysis
February 2024
KH Project Number: 068517173
CONCLUSIONS
Per our analysis, the proposed infrastructure satisfies the Peak Hour and the Max Day + FIre Flow scenarios
for the proposed developments. The findings of this water capacity analysis are summarized in Table 2
below
As demonstrated in the findings above, the Denton water system and Southwest Pressure Plane can
accommodate the proposed Churchill, Ponder Farms, and Webster Meadows developments with the
following infrastructure improvements:
•
@
•
•
Proposed 24-inch water main from Southwest EST to Ponder Farms Development constructed
Proposed 20-inch water main through Ponder Farms Development constructed
Proposed 16-inch water main from Ponder Farms through Churchill Development constructed.
Proposed 12-inch water main from Ponder Farms to Webster Meadows Development
constructed
West Denton County Area Water Analysis
February 2024
KH Project Number: 068517173
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EXHIBIT “C”
ESTIMATED COST OF CONSTRUCTION
City of Dalton UdliV Snviw Agreement
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EXHIBIT “D”
FORM OF EASEMENT
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION
FROM ANY nVSTRUMENT THAT TRANSFERS AN INrEREST IN REAL PROPERTY
BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: IYOUR SOCIAL
SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBEFL]
WATER EASEMENT
THE STATE OF TEXAS
COUNTY OF DENTON
g
g
§
IOIOW ALL MEN BY THESE PRESENTS:
THAT , (Grantor) whose mailing address is
, in consideration of the sum of ONE DOLLAR
and NO CENTS ($1.00) and other good and valuable consideration in hand paid by PONDER
FARMS MUNICIPAL UTILITY DISTRICT OF DENTON COUNTY (Grantee), the receipt of
which is hereby acknowledged, does by these presents grant, bargain, sell and convey unto Grantee
the free and uninterrupted use, liberty and privilege of the passage in, along, upon and across the
following described property, owned by Grantor and situated in Denton County, Texas, in the
Abstract No.
PROPERTY AREA DESCRIBED IN ExmBrr “A”
AND ILLUSTRATED IN EXHBIT “B”
ALL ATTACHED mRETO AND MADE A PART mREOF
And it is further agreed that Grantee, in oonsideradon of the benefits above set out, will
remove from the property above described, such fences, buildings and other obstructions as may
now be found upon said property.
City of Ibn&in Utility Sewiae Agre£mart
Page 26 of 29
018174.0CXi00 l\4880-3362+)986.vI
For the purpose of constructing, reconstructing, installing, repairing, and perpetually
maintaining water facilities and related appurtenances in, along, upon and across said premises,
with the right and privilege at all times ofthe Grantee herein, his or its agents, employees, workmen
and representatives having ingress, egress, and regress in, along, upon and across said premises
for the purpose of making additions to, improvements on and repairs to the said water facilities or
any part thereof.
This instrument shall tn binding on, and inure to the benefit of, Grantee and Grantor and
their respective successors and assigns. Grantee may assign this easement to any entity
maintaining any portion of the said water facilities, including the City of Denton, Texas, without
the consent ofGrantor, so long as doing so does not interfere with Grantor’s rights hereunder.
TO HAVE AND TO HOLD unto the said Grantee as aforesaid for the purposes aforesaid
the premises above described.
Witness its hand, this day of , 20 .
By:
By:.
Print Name:
Print Title:
City of Denton Udlity Service Agrnnnnt
Page 27 of 29
0181 74.000001Vt88(b33624)986.vl
ACKNOWLEDGMENT
THE STATE OF
COUNTY OF
g
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Before me, the undersigned authority, on this day personally appeared
d , a Texas limited liability company, known to me to be the person
whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she
executed the same for the purposes and consideration therein expressed, in the capacity therein
state and as the act and deed of said
Given under my hand and seal of office on this day of .20
Notary Public, in and for the State of
My Commission Expires:.
Accepted this day of
(Resolution No. 91-073).
, 20_ for the City oflhnton, Texas
BY:
AFTER RECORDDqG RETURN TO;
lkvelopmart Sewi ns - Real Estate Division
401 N. Elm se,d
IRa&>n, Twas 76201
Attention: Mark Laird
City of Denton Udlity Service Agr€ettnnt
Page 28 of 29
018174.00(XX)l\488(b33624)986.v 1
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CiV of Dub UdHV Snviq Agmrrrnt; RUe 29 of 29
018174.000001\48BCb3362-0986.vI
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