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HomeMy WebLinkAbout24-2337ORDINANCE NO. 24-2337 AN ORDINANCE OF THE CITY OF DENTON, TEXAS (“CITY”) AUTHORIZING THE EXECUTION OF A UTILITY SERVICE AGREEMENT WITH TCCI CHURCHILL LLC (“OWNER’-) AND PONDER FARMS MUNICIPAL UTILITY DISTRICT OF DENTON COUNTY (“DISTRICT”) CONCERNING RETAIL WATER AND WASTEWATER SERVICE BY THE CITY TO FUTURE CUSTOMERS WITHIN APPROXIMATELY 264.042 ACRES OF LAND GENERALLY LOCATED NORTH OF FM 2449 AND SOUTH OF T N SKILES 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 264.042 acres of land and is more particularly described and shown in Exhibit “A’' of the Utility Service Agreement; and WHEREAS, the Developer proposes to develop the Property with 727 residential lots, 19.3 acres of multifamily, and 22.8 acres of commercial property; and WHEREAS, Owner expects that full development of the Property will require service to a maximum of 1,650 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 now 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 Churchill 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 ali 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 ! :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. Page 2 /% ATTEST: LAUREN THODEN, CITY SECRETARY GERARD HUDSPETH. MAYOR 'uAe A Jh(b APPROVED AS TO LEGAL FORM: MACK REINWAND. CITY ATTORNEY BY: Page 3 UTILITY SERVICE AGREEMENT BY AND BETWEEN THE CITY OF DENTON AND PONDER FARMS MUNICIPAL UTILITY DISTRICT OF DENTON COUNTY AND TCCI CHURCHILL, LLC (Churchill Wnt) This Utility Service Agreement (“Agreement”) is made and entered into by and between the City of Denton, Texas, a home rule mwHcipality (“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 Churchill, LLC, a Texas limited liability company (“Owner“), each collectively nferred 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 subdivision of the State of Texas operating under the Constitution and laws of the State of Texas, that provides retail and wholesale Water and Wastewater service to customers; and WHEREAS, Dental is a retail public utility that possesses certificated service areas for Water and Wastewater services under CCN Nos. 10195 and 20072, nspectively; 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 maximum of 1,650 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 of a separate agreemart for such pwpow; arxl WHEREAS, the Partiu agree tInt it is beneficial to the Parties, the Water Customers, aId the region to prevent overpr{xhx:tion ofGrwrxlwater and the degralation of surace water quality; and WHEREAS, Ownu owns and wisha to wrvey aII Groundwater 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 City of DaWn Utility Sewra AgrumBrt RUe I of 27 018174.0(X)001\485844574250.vI WHEREAS, the Parties recognize the importance and tnnefits of water conservation and drought contingency planning; and WHEREAS, Denton wishes to reuse Wastewater originating from the Property. WHEREAS, District and the City agree 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 District 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 required to comply with applicable federal, state, and local 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 Ordinanee No. , on November 19, 2024, approved and authorized its City Manager to execute this Agreement; and WHEREAS, the District, at a meeting of its Board of Directors on November 18, 2024, has approved and authorized the President or Vice President of the Board of Directors to execute and the Secretary or Assistant Secretary of the Board of Directors to attest this Agreement; and WHEREAS, Denton and the District are authorized to enter into this Agreement pursuant to Texas Government Code Chapter 791, and other applicable laws; and WHEREAS, Denton and District individually have the authority to perform as set forth in this Agreement in aocordance with Texas Government Code § 791.011(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 used herein are defined by the Texas Water Code or under the City ordinance. To the extent a defined term or phraw is used and not defined herein, mch shall mean 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 expression in this Agreement, unless the context clearly shows otherwise, shall have the following maIlings: “CCN” shall refer to and mean a Certificate of Convenience and Necessity issued by the Public Utility Commission of Texas ('TUC”) or its predecessor or successor agency, as prescribed by the Texas Water Code “Dentrn” or “CIty” shall refer to and man the City oflXnton, Texas, a Toias hanorule municipality. “Cost of Constnrction” shall refer to and mean the actual costs of daign, engineering, constrrntion, acquisition, inspection, testing, surveying, staking, and other auociated costs relating to the construction ofthe Water Facilities, as appliabIe. The estimated Cost of Construction of the Water Facilities attributable to the Property is included in EIbibit “C” attached hereto and incorporated herein. “Day” means a 24-hour p©iod from 12:00 &m. to 1 1:59 p.m. of ach calendar day. City ofD€nUn Utility Service Agreement Page 2 of 27 018174.000001\485841574250.vl “Denton’s System” or “Deeton 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, artesian 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 “Groundwater Rights” mnns (1) the legal title to Groundwater and the right to test, explore for, drill for, develop, withdraw, capture, or otherwise teneficially use the Groundwater; (2) the right to use the surface of the real property for access to and to explore for, develop, treat, produce, and transport the Groundwater; 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 rights “MGD” 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 Facilitin” means Water Facilitiu to be constructed by Owner outside the boundaries of the Prolnrty 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 pnlwed by Kimley- Horn & 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 Exhibit “A” attached hereto and incorporated herein “Property” shall refer to and mean the parcel of approximately 264,042 acres, more particularly described and shown in Exhibit “A”. The Property shall be developed into a single-family residential development. “Wastewater or “Eflluent” means all liquid or water+arHed waste products from whatever source derived, whether treated or untreated, which are discharged into, or permitted to enter into, Denton’s Syskm “Transmission System” mum all of Denton’s waIn lina twelve (12) incha in diameter or 181gn used to transport Treated Water to its customers. “Wastewater FacIlities” shall refer to and mean all wastewater facilities to be constructed by Owner irBkle or outside the boundadw ofttre Property for the purpose of providing retail Wastewater service to customers located within the Prolnrty, particularly including those facilities described in the separate agreement for retail Wastewater service to the Property, as referenced in Section 5.4. City oflkn80n Udlity Service A8rnment Page 3 of 27 018174.000CX)l\48584457+25C).vI “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. “WaterFacilitiu” shall mean all Water conveyance facilities to tn constructed by Owner inside or outside the boundaries ofthe Property for the purpose of providing treated water service to Water Customers lomted 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 Sectioa 2.1. Adoption of Recitals. All of the matters stated in the recitals of this Agreement are true and conect and are hereby inoorporated into the body of this Agreement as though fully set forth in their entirety herein Section 2.2. Adoption of Exhibits. The following Exhibits and their attachments referenced in this Agreement are hereby incorporated into the body ofthis Agreement as though fully set forth in their entirety herein • Exhibit “A“ Property • Exhibit “B” Water Study • Exhibit “C” Estimated Cost of Construction • Exhibit “D” Form of Easement Section 2.3. Interpret8tioas. The following principles control the interpretation of this Agreement. 2.3.1 . Unless otherwise stated, reference to any document means the document as amended or supplemented from time to time. 2.3.2. Reference to any party to this Agreement or to a govemmental 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 Agreement. Misspelled words shall be read to have the meaning apparently intended by the Parties. 2.3.4. Words in the singular number include the plural, unless 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 Section 3.1. MtruejLn. OwinG on behalf of the District, shall oonstruct the Water FaciHtin necessary to connect to Ihnton’s System at agreed upon lwatiors. Section 32, Design. The Water Facilities shall be engineered and d®igned by a Texas Licensed Professional Engineer chosen by Owner, who shall design such facilitia in accordance with the applicable standards and specifications of the City and all govemmental agencies having jurisdiction, 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 design City ofDenon Udlity Service Agreanatt Page 4 of 27 018174.00tlCXll\485841574250.vl 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, oons&uction, 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-o&way for additional or future Points of Delivery to which Denton may consent. Section 33. Sizing. The Water Facilities shall be sized to provide continuous and adequate retail water service to a maximum of 1,650 ESFCs on the Property. In the event the City nquirw any of the Water Facilitiw 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 oversize participation agreement form. Section 3.4. Construction of Water Facilities. The Water Facilities shall be constructed in accordance with the construction plans and specifications approved by the City purslmnt to Section 3.5 and in compliance with: a. City’s applicable ordinances, rules, and reguladons; and b. The rules and regulations of any govemmental agencies having jurisdiction. Section 3.5 Approval by the City’s DuiHnatod Engineer. Ttre Water Facilities are subject to approval by the City’s designated engineer in accordance with the City’s standard review schedule. Construction shall not commence 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 Facilities, 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 construction is scheduled to commence on each phase so the City may assign an inspector. The City will charge reasonable fees related to inspecting the construction of the Water Facilities in accordance with applicable law. Section 3.7. Stoppage for Non£onformance. TIle 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, Maintenance, 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 compensation by an appmpHate legal instrument approved by the city Attorney. Tbenafter, the Water Fmilities shall be owned and solely operated, maintained, arM repaired by the City. The City shall maintain the Water Facilities in gotH repair and working corxlitiar at all tim& Section 3896 Acauishioa pad Ihdkntton ofEHemen fs fer Water FacIHtlu. 3.9.1. Owner shall tn ruponsible for acquiring and dedicating to the District, at Owner’s sole expense, any easement encompassing areas across privately or publicly owned land or sites which the City determines an necessary for the construction, operation, and maintenance of the Water Facilities. After such %sements are dedicated to the District the District hereby agrees to assign such easements to the City. City of Denton Utility Service ApuKnnt Page 5 of27 018174.000(X)1\485&4457+250.vI 3.9.2. Owner shall use its good faith efforts to acquire nonexclusive easements which allow for the City to install future water lines and other 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 easements by private negotiation, District shall secure the non-exclusive easements after a finding of public necusity, 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 EIhibit “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 r%sonable and necessary legal proceeding/litigation costs, attorney’s fen, and related expenses; property acquisition costs; 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 necessary to construct the Water Facilitin in public land or rights-of-way. Sectioa 3.10. Easement Form. All easements acquired by Owner or District for the Water Facilities shall: & 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. Sectioa 3.11. Development Contracts for Public Irnprovemeats and Beads. For all Water Facilities, Owner and any conaactor 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 be for a term of two years from the date of final acceptance of the Water Facilitia by the City and shall name the City as an obligee with a surety acceptable to the City grnranteeing the work and materials of the Water Facilities to be free from defocts or need for repair. The bond forms and the sureties are subject to the City Attorney’s approval. Section 3.12. CoPiu of Plans. Owner shall furnish the City with one reproducdon 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 aneptance by the City. The drawings must tn GIS compatible. Section 3.13. No Grant of Equjty or Ownership. No provision of this Agreement may be interpreted or construed to ante 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 tn 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 RHrAll, WATER SERVICE Sntha 4.1. Agnemmt to PNvide Rdall W8ter Sewlee. Denton hereby agle% subject to the terms of this Agreement, to provide retail Water suviae to de Water Custrxners. Sectha 42. SQle Provider. Ihnton shall tn the sole provider of retail Water service to all Water Customers. Sectioa 4.3. Billing and RUn. 4.3.1. The City shall bill the Water Customers for the City’s provision of retail Water service when such service is available. City of [Mr&in Utility Sewhe A8r€cment Page 6 of27 0 1 8174.000001\485844576250.vI 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 Precedent. 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, certificates, or approvals required to lawfully provide retail Water service by the PUC, Texas Commission on Environmental Quality, and all other governmental agencies having jwisdiction, which Owner, Dis&icl and City shall use its good faith efforts to timely acquire, if necessary; (ii) designation 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 Limitation$. 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 service pursuant to this Agnement is further limited pursuant to Section 4.6 of this Agreement. Section 4.6. Water Conservation and Drought Contingency. 4.6.1. City shall develop and implement Water conservation and drought contingency plans using applimble elements of Chapter 288 of Title 30 of the Texas Administrative Code, as may be amended eOIn time to time. District agrees 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 supplies 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 interut. Denton agrees to impose such restrictions equitably and in a non- discriminatory fashion. District agrees to coordinate and cooperate with Denton conceming 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 restrictions of general availability requiring curtailment 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 curtailments or rationing shall be limited to the extent that such supplies and service are curtailed due to a lack of raw water supply or bnause of Denton System failure or malfunction, contamination, acts of Gal, civil disturbances, war, regulatory delay, or other causes beyond Denton’s control Section 4.7. No Coavevance ofW8ter RIghts. TIn Parties acknowledge that nothing in this Agreement is intended to sell, ernumtnr, &ansfn, or convey any water rights from Ihnton to District, Owner, or any other artity arxl in such rights are sold, anumbend, awrsferred, or conveyed. No aItitlement to Water supply is crmted other than as ocpnsly provided in this Agreement. If this Agreemurt is ever construed to effect an entitlanent in, or sale, encumbrance, Uansfer, or conveyance of, Water rights from lknton to District or Owner, then the entirety of the Agreement shall be null and void. Section 4.8. No Continuation of Services. District and Owner acknowledge there is no right to continuation of retail water sewioe by Denton in the event this Agreement is terminated and that no such right(s) may be implied. City ofDen80n Utility Service AEreerrtent Page 7 of 27 0181 74.0tXXi01\4858-8157-6250.v 1 Section 4.9. TemDOHrv Discontinuance. Denton expressly rwervu the right to temporadly 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 4.10.LatLrbrn9£WH. 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 Faciliti%, 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 be due for each connection made for each ESFC located within the Property at the time such connection is made. No connu:tion to the Water Facilities may occur until the Impact Fees have been Bid 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 Foe Credits for Offsite Water Facilitia. 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 Faci]ities. The estimated Cost of Construction of the Water Faciliti® attributable to the Property that are included in the City’s most recent impact fee study in effut as of the Effective Date of this Agreement is attached hereto as Exhibit “C”. Owner and City agree that the most rnent impact fee study is subject to change and may tn amended by the Denton City Cournil 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 AgreemerR binds the [brIton City Coumil to irnlude any Offsite Water Facilities in its impact fee study or capital improvement plan. ARTICLE V RETAII, WASTEWATER TREATMENF SERVICE AND FACILITIES Section 5+1. Sote Provider. TIle Parties hereby agree, subject to this Agreement and the Agreement referenced in Section 5.4, that Denton shall tn the sole provider of retail Wastewater treatment service to all customers within the Property. City of Ibn&>n Ublily Sewin Agreement Page 8 of 27 018174.CXXi001U858.6457+250.vl Sectioa 5.2. Retail Wa$tew8ter ServIce. Subject to the terms of this Agreement and the separate agreement referenced in Section 5.4, Denton 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 1,650 ESFCs. Section 53. Effluent Title and Owaersbip. All title and ownership to Wastewater flow from wastewater customers within the Property into the Ihnton System shall belong to Denton. Denton may, after treatment of Wastewater, reclaim, use, or sell the water, sludge, or any other pnxluct for reuse. Wastewater entering the Denton system becomes the property of Denton. Title to water from Wastewater that is treated and returns to a natural watercourse remains with [hIlton. Section 5.4. Retail Wastewater Treatment Services Agnemeat Required. The 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 Pretreatment Program, approved by TCEQ in accordarne with 40 C.F.R. Section 403.8, as amended. The Retail Wastewater TreatmaIt Services Agreement will also comply with applicable law including, without limitation, all applicable portions of the Code of the City of Denton, Texas, Ch. 26. Sudoa 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 be amended from time to time in the City’s sole discretion. Section 5.6. Wastewater Facili6es. District and Owner shall be responsible for the design, oontracting, construction, and financing of all Wastewater Facilities including acquisition of any necessary rightsx)f- way and easements for such facilities. District and/or Owner shall provide all lirns, 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 Wastewater 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 tV the City and Owner based on the City’s standard oversize participation agreement 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 Precedent 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 lnrmits, certificates, or approvals required to lawfully obtain retail wastewater service by the PUC, Texas Commission on Environmental Quality, and all other governmental agencies having jurisdiction which the Owner, District, and the City shall use itsgcx)d faith efforts to timely acquire, if necessary; (ii) Denton being the sole provider of retail Water service to all Water Customers; and (iii) completed conveyance of Groundwater Rights Bom the Owner to the City pursuant to Article VI of this Agreement. ARTICLE VI GROUNDWATER Section 6.1. r & Owner warrants and npr%ents that it owns the Groundwater Rights attributable to the Property in fee simple and that the Groundwater Rights have not been severed from the surface estate. Section 6.2, Grouadwater Rjghts Sale Agrnment Required. Owner shan enter into a Groundwater Rights Saie Agreement with the City, the form of which shall tn mutually agreed upon by Owner and the City of lbaton Utility Service Agreement Page 9 of 27 018174.000001 Vt8584457.6250.vI City, wherein the Owner agrees to sell the Groundwater Rights attributable to the Property to the City in fee simple. The Groundwater Rights Sale Agreement shall be accompanied by a deed, the form of which shall also tn mutually agreed upon 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, treat, prcxluce, or transport the Groundwater. Section 63. Inigatioa 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 tn mutually agreed upn 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 tn addressed in the license contemplated by this Section 6.3, which shall be mutually agreed upon by the City and District. Section 6.4. Gt,.'D Approvals and Filings. Owner and/or District shall obtain all the regulatory approvals from the North Texas Groundwater Conservation District ('NTGCEY’) necessary to effectuate the sale and license contemplated by this Agreement. 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 AgreemaIt. Section 6.5. Other Regulatory Approvals. Owner and/or District shall be responsible for obtaining all regulatory approvals necessary to pRXluce the Groundwater allowed under the license referenced in Section 6.3 ARTICLE VII OPERATION AND REGULATORY APPROVALS Sectioa 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 economical 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 ltegplations Tlris Agreement is subject to an applicable Federal and State laws and any applimble permits, ordinances, rules, orders, and regulations of any local, state, or federal govemmental 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, rule or regulation in any forum having jurisdiction. Section 73. aIde a jl . 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 judsdiction including, without limitation, efforts by the City involving water reuse and bed and banks permitting. Section 7.4. Certificatu of Convenience and Necnsitv and Extr8territori81 Jurisdiction, 7.4.1. District agrees that it will not provide any WaIn or Wastewater services to any customer within an ar% inchxled within Ihnk)n’s single, dual, or multiple nrtificated arus, unless expressly approved in writing by Ibn&m. 7.4.2. With tIn ocoeption oflknton’s respective Water aId Wastewater CCNs, the ProBIty shall not be located within an arm subject to a CCN issued by the Public Utility Commission of Texas or suocnsor agency 7.4.3. To the extent the Property, or any portion thermf, is not subject to any CCN, Denton has the option to extend its water and/or wastewater CCN to cover the property at the City’s sole cost and expense. City of Denton Utility Service A8reemalt Page 10 of 27 018174.0(X)001\485844574250.v 1 7.4.4. The Owner agrees that it will not take any steps to include the Property in the extraterdtodal jurisdiction of any political subdivision other than Denton. Section 7.5. ConrDliance with Applicable Laws. 7.5.1. This Agreement is entered subject to and controlled by the Charter and Ordinances of the City of Denton, Texas and all applicable laws, rules, and regulations of the State of Texas and the United States of America (collectively, “Applicable Laws”), as amended. The Parties shall, during the performance of this Agreement, comply with all applicable City codes, ordinances, and regulations, as amended, and all applicable 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 applicable City ordinance, rule, or regulation related to service to Outside Customers and this Agreement, 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 required under State or Federal law. ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.1. INDEMNIFICATION. 8.1.1. TO THE EXTENT ALLOWED BY LAW, DISTRICT 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 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: (A) A BREACH OF THIS AGREEMENT BY DlgrRICT; (B) THE NEGLIGENT ACT 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 PERMIT 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, SIIALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. WITHOUT WArviNG GOVERNMENTAL IMMUNITY OR ANY OTHER DEFENSES OF THE PARTIES UNDER APPLICABLE TEXAS LAW+ 8.13. NOTHING IN THIS SEcrION &1 REQUIRES DENTON OR DIStRICT TO ASSESS OR COLLECT FUNDS OR TO CREATE A SINKING FUND. 8.1.4. OWNER AGREES TO DEFEND, INDEMNIFY, AND HOLD DENTON, ITS OFFICERS, AGENrs, AND EMPLOYEES, HARMLESS FROM ANY LIABILrrY 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 Dalton unity Service Agreement Page 1 1 of 27 018174.000€X)IW8S844S74250.vI (A) A BREACH OF THIS AGREEMENT BY OWNER; (B) THE NEGLIGENT ACT OR OMISSION OF OWNER, ITS DIRECTORS, AGENTS, EMPLOYEES, OR SEPARATECONTRACTORS IN THE PERFORMANCE OF THIS AGREEMENT OR IN OWNER’S OPERATIONS; OR (C) THE CONDUCt OF OWNER, ITS OFFICERS, AGENTS, EMPLOYEES OR SEPARATE coNTRAcroRS THAT CONSTITUTES A VIOLATION OF STATE OR FEDERAL LAWS OR REGULATIONS OR OF PERMIT 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. Section 8.2. Force MaieurB in the event any Party is rendered unable by force majeure to carry 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 continlmnce 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 form 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 dacribing 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 uuse, as far as possible, shall be remedied with all reasonable diligence. The term “force majeure” includa acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of the government of the United States or the State of Texas or any civil or military authority, insunections, riots, epidemics, landslidu, lightaIing, earthquakes, fires, hurHmnes, storms, flo(xls, washouts, droughts, restraints of government and civil disturbances, explosions, breakage or accidents to equipmenl 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 control of the Party claiming the inability and that could not have teen avoided by the exercise of due diligane and care Sectioa 83. Term of Agreement. This Agreement shall oommence on the Effective Date and shall end, unless terminated, when the actions necessary to effectuate the purposes and intent of this Agreement are comDleted Section 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 compliance with Section 8.6 or for non-appropriation under Section 8.24. 8.4.2 Notwithstanding any other provision of this Agreement, this Agreement shall terminate if after eight (8) yan from 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 owur7ed; (iii) execution of the Retail WastewatuTnatment Services Agreement has not occurred pursuant to Article V; or (iv) caweyance of Grormdwater Rights from the Owner to the City has not onwnd pwstnnt to Article VI. 8.4.3 if this Agreement is tnminated purswnt to Section 8.4, all OfBite Water Facilitin and/or Offsite Wastewater Facilities constnrcted, including any portions partially constructed, shall ngverthelns be dedicated to the City by Owner and/or Disaid 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 be extended no later than one (1) year prior to the Deadline, without triggering the termination of this Agreement, by written consult of Denton’s City Manager. City of Denkin Udlity Service Agreement Page 12 of 27 0 18174.0€Xi001\48584157-6250.vI Section 8.5. Addrasa 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 be given, made or accepted by any party to any other party must tn in writing and may be given or be served by depositing the same in the United Statn mail postpaid and registered or certified and addressed to the party to tn notified, with return rneipt requested. Notice deposited in the mail in the manner ducribed above shall be conclusively cleaned to be effective upon receipl unless otherwise stated herein. For the purposes of notice, the addressed of the parties shall, until changed as hereinafter provided, be as follows: If to Denton, to:City Manager City oflhnton 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:Cls+ 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 written notice to the other parties hereto. Section 8.6. Bruch. If a Party breaches any term or condition of this Agreement, the non-bruching Party shall provide the breaching Party with notice of the breach. Upon its receipt of a notice of breach, the breaching Party shall have sixty (60) days to cure the breach. If the breaching Party does not cure the breach within the sixty (60) days, the non-breaching Party shall have all rights and nmedia 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 seek restitution for all damages incurred in connection therewith. However, this Agreement may only be terminated due to breach as stated in Soction 8.4.1 Section 8,7. Survival of Certain Rights and Obljgations. Notwithstanding any provision of this Agreement to the contrary and without limitation of any other pmvisiorB of this Agreement that specify survival of rights and obligations, all rights and obligations of the Parties WIder this Agreement which by their natun are intended to survive including, but not limited to, those listed below shall stwive: a. Section 3.11 Developntent Contracts fu Public Improvemalts and Bonds; b. Sa:tion 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 of Denton UNity Service Agreement Pa8e 13 of 27 0 18174.O£XICX>1 W85844S74250.v 1 f. Section 7.4. Certificates of Convenience and Necessity and Exaaterritorial Jurisdiction; g. Section 8.1. Indemnification; h. Section 8.9. No Third-Party BeneficiaHa; i. Section 8.12. Nonwaiver and Remedies; and j. Section 8.16. Venue; and k. Section 8.20. Necessary Documents and Actions. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section, or other part of this Agreement or the application therwf 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, sentence, paragraph, section, or other Party of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional NItion had never hen 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 8.8. Severaliililvi Interpretation. Section 8.9. o Be Tbis 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 be considered to be a third-party beneficiary. Section &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 8.11. 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 hum any act or omission resulting from the Agreement. Section 8.12. Nonwaiver and Remediu. 8.12.1. A Party’s right in the future to demand strict compliance and performance under this Agreement is not diminished tncause, 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 oversight, the other Party has not enforced the same or a similar provision of this Agreement or does not enforce the same or a similar breach or nonperformance, whether periodically or for long duration. To the extent a right or benefit in this A©eement 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 tn implied to be continuing in nature. 8.12.2. Except to the extent expr%sly provided otherwise, all remedia existing at law or in equity may be avai]ed of by the City and shall be cumulative includirB, without limitation, specific prformanee, and the City shall be entitled to any nasonable aaonwy’s fen, costs, or other expenses incurred in bringing or defenditB any action, as may be awarded by a tribunal of competent jurisdiction. Sectioa &13. Entire Aer%nnt. This Agrwmart, including any exhibits and/or addendums attached hereto and made a part hereof, constitutes tIn entire agreement betwear the Parties relative to the subject matter of this Agreement. All prior agreements, covenants, representations, or wallanties, whether oral or in writing, tBtween the Parties are merged herein. Section 8.14. Amendment. No amendment of this Agreement shall be effective unless and until it is duly approved by each Party and reduced to a writing signed by the authorized representatives of the City, City of Denton Utility Service Agr€emart Page 14 of 27 018174.00tX)01\4858-64574250.vI Dis&icl and Owner respectively, which amendment shall incorporate this Agreement in every particular not otherwise changed by the amendment. Section 8.15. Governing LBW. This Agreement shall be construed under and in accordance with the laws of the State of Texas and all obligations of the Parties are expressly deemed performable in Denton County, Texas Section 8.16. Venue. Any action at law or in equity brought to enforce 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. Sucmwrs aad Assigns. Tbis Agreement shall be binding on and shall inure to the benefit of the Parties and their successors and assigns. Section 8.18. Assigament. The 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 consent of Denton’s City Manager is void. No assignment by Owner or District shall release Owner or District from any obligations, rights, title, u interuts under this Agreement or from any liability that rnulted 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 8.19. Counterparts. This Agreement may be executed in multiple counterparts, which, when taken together, shall tn deemed 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 necessary or convenient to effectuate the purposes and intent of this Agreement. Section 8.21. Authority. By execution of this Agreement on its tnhalf, each Party represents that it has full capacity and authority to grant all rights and assume all obligations that it has granted and assumed under this Agreemenl and that this Agreement has been authorized by its governing body. The Parties represent and warrant that their respective signatories to this Agreement have corporate or organizational authority to execute this Agreement. Section 8.22. Form 1295. Submitted herewith, 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 prornulgated by the TEC (the “Form 1295”). The City hereby confirms rweipt of the Form 1295 from Owner, and the City agrees to acknowledge swh form with the TEC through its electronic filing applimtion 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 number, 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 Ownec and, rather the City not its consultants have verified such information. Section 823. Certifia,tions. 8.23.1. Pursuant to Texas Government Code Chapter 2271, as amended, Owner verifies that at the time of execution and delivery of this Agreement and for the term of this Agr%ment, neither Owner, its parent companies, mr its common<onaol affiliates currently tDyCOtt or will boycott Israel. The term “boycott Israel” as used in this paragraph tns the muning assigned to the term 'boycott Israel” in Section 808.001 of the Texas Government C(xle, as amended. 8.23.2. Pursuant to Texas Govemment Code, Chapter 2252, as amended, Owner represents and verifia that at the time of execution and delivery of this Agreement and for the term of this Agreement, 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 8(M or 807 of the Texas Government Code, or City ofEknton Utility Sewia ABreemaH Page 15 of 27 018174.000001\4858{4574250.vI Subchapter F of Chapter 2252 of the Texas Government Code, or (ii) is a company listed by the Texas Comptroller of Public Accounts under Sections 806.05 1, 807.051, or 2252.153 of the Texas Government Code 8.23.3. Pursuant to Chapter 2276 of the Texas Government C(xle (as added by Senate Bill 13, 87th Texas Legislature, Regular Session and redesignated by House Bill 4595, 88'h Texas Legislature, Regular Session), Owner certifies that it is not a Company that boycotts 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, Texas Govemment Code. For purposes of this paragraph, “Company” means 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 company, or affiliate of those entities or business associations, that exists to make a profil but does not include a sole proprietorship. 8.23.4. Pursuant to Chapter 2274 of the Texas Government Ccxle (as added by Senate Bill 19, 87th Texas Legislature, Regular Session, “SB 19”), Owner certifies that it is not a Company that has a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association and agnes it will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. The terms “discriminates against a firearm entity or firearm trade association” and “discriminate against a firearm entity or firearm trade association” have the meaning assigned to the term “discriminate against a firearm entity or firearm trade association” in Section 2274.001(3), Texas Govemment Code (as added by SB 19). For purposes of this paragraph, “Company” mmns a for-profit organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or affiliate of those entities or business associations, that exists to make a profit, but does not mmn a sole propHetorship. 8.23.5. Owner further certi Bes that, notwithstanding anything contained in this Agreement, the representations and covenants contained in this Section 8.22 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 each item and obligation contained herein. Neither 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 Agreement as a result oflackofsufficbnt 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 the end of its fiscal year. Section &25 Rnewations of Capacity. Any reservation of water and/or wastewater capacity by the City stated or implied tv this Agreement shall not tn construed to extard tRyond the Deadline, unl®s the lkadline under Section 8.4.2 of this Agreement is extended pursuant to Section 8.4.4 of this Agreement in which we any stated or implied reservation shall only extend for the period consulted to by Denton’s City Manager City ofDeRton Utility Service Agrnman Page 16 of 27 018174.000001\485841574250.v 1 IN WITNESS WHEREOF, the Parties hereto acting under authority of their respective governing bodies have caused this Agreement to tn 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 FOLLOW] City of Denton Utility SCNioe ABreemart Rag$ 17 of27 018174.OtkX)01\48584457-6250.vl CITY OF DENTON By: Sara Hensley, City Manager ATTEST: CPa„„tN.lb.d- Lauren Thoden, City Secretary APPROVED AS TO FORM AND LEGALITY: ’#11„Il„w - Mack Reinwand, City Attorney City ofDenOn UHlity ServiaABrnrrmu Page 18 of27 018174.000001Vt858-6457.6250.vl DISTRICT By: President. Board of Directors ATTEST: Secretary, Board of Directors APPROVED AS TO FORM AND LEGALITY: XUr©kbh- Maw/ Mindy L. Koehne, Attorney for the District City of Denton Utility Service Agreement Page 19 of 27018174.(x)ooolw85&a+57425c). vl OWNER TCCI CHURCHILL, LLC, a Texas limited liability company By:TCCI Development Group, Inc., a Texas corporation its Manager By: /rub Name: Tommv Cansler Title: President City of Denton Utility Service Agreement Page 20 of 27 018174.(XXJ001V+85&@+57425CJ.vl EXHIBIT “A” THE PROPERTY BEING a tract of land situated in the Nathaniel Rudder Survey, Abstract No. 1060 and the Carmel Manchaca Survey, Abstract No. 789, Collin County, Texas, and being a portbn ofa called 541.03 acre tract of land described in a deed to TCCI Churchill, LLC. as recorded in Document No. 2022- 2836 of the Official Records of Denton County, Texas, and being more particularly described as follows BEGINNING at a 5/8 inch iron rod found for the southwest eorner of said 541 .03 acre tract. common to the southeast corner of a called 180.498 acre tract of land described in a deed to Cendei Sherwood, as recorded in Document No. 2011-18575 of the Official Records of Denton County, Texas, same being on the northerly right of way line of F.M. Highway 2449, a 90 foot wide right of way; THENCE North 00'54'50" West, departing the northerly right of way line of said F.M. Highway 2449, along the westerly line of said 541 .03 acre tract, the easteHy line of saM 180.498 acre tract, and the easterly line of a called 180.585 acre tract of land described in a deed to JLMCG Properties, L.L.C., as recorded in Document No. 2007-38542 of the Official Records of Denton County, Texas, a distanoe of 4,804.75 feet to a 60D nail found for the westerly northwest corner of said 541.03 acre tract, being on the southerly right of way line of T.N. Skiles Road. a variable width right of way; THENCE South 89'44'07" East, departing the easterly line of said 180.585 acre tract, along the northerly line of said 541 .03 acre tract and the southerty right of way line of said T.N. Skiles Road, a distance of 2,411.58 feet to a 3/8 inch iron rod found for an eII corner of said 541.03 acre tract on the easterty right of way line of said T.N. Skiles Road; THENCE South 00'29'52" East, departing the southerly right of way line of said T.N. Skiles Road and crossing said 541.03 acre tract, a distance of 3,247.63 feet to a 1/2 inch iron rod found for the northwest corner of a alled 66.547 acre tract of land described in a deed to 2449 Land Holdings, LLC, as recorded in Instrument No. 2020-26321 of the Official Records of Denton County, Texas, common to an oII oorner of said 541 .03 acre tract; THENCE South OO'21'07- East, along the easterty IIne of said 541.03 acre &act and the westerly line of said 66.547 acre tract, a distance of 1,541.55 feet to a 5/8 inch iron rod with plastic cap found for the southerly southeast comer of said 541 .03 acre tract, common to the northeast corner of a called 182 acre &act of land described as Tract 8 in a deed to J. Young Land & Cattle, Ltd., as recorded in Instrument No. 2003-203076 of the Official Records of Denton County, Texas; City of Denton Utility Service Agrurneat hse 21 of 27 018174.000001\485844576250.vl THENCE South 89'13'18- West, departing the westerly line of said 66.547 acre tract, along the southerly line of said 541 .03 acre tract and the northerly line of said 182 acre tract, a distance of 333.27 feet to a wooden highway monument found for corner on the northerly right of way line of aforesaid F.M. Highway 2449; THENCE South 89'23'03" West, continuing along the southerly line of said 541 .03 acre tract and along the northerly right of way line of said F.M. Highway 2449, a distance of 1 ,397.00 feet to a 5/8 inch iron rod with plastic ap stamped -KHA- set at the beginning of a tangent curve to the right with a radius of 5,684.58 feet, a central angle of 02'14'00", and a chord bearing and distance of North 89'29'57" West, 221.57 feet; THENCE in a westerly direction continuing along the southerly line of said 541 .03 acre tract and the northerly right of way line of said F.M. Highway 2449, and with said tangent curve to the right, an arc distance of 221.58 feet to a 5/8 inch iron rod with plastic cap found for corner; THENCE North 88'08'42" West, continuing along the southerly line of said 541.03 acre tract and the northerly right of way line of said F.M. Highway 2449, a distance of 421.11 feet to the POINT OF BEGINNING and containing 264.042 acres (1 1,501 ,656 square feet) of land, more or less. City ofDen80n Utility Service Agreemart Pw 22 of 27 018174.(XX)tX)1\485844574250.vl EXHIBIT “B” WATER STUDY City of DI Utility SewinAgwwnt Page 23 of 27018174.000tX)IW 85844576250.vl EXHIBIT B West Denton County Area Water Analysis Denton, Texas FEBRUARY 2024 02/14/2024 Prepared By: imley '»Horn 801 Cherry Street. Unit #11, Ste. 1300 Fort Worth. Texas 76 1 02 TBPE No. F-928 KH A No. 068301401 For: K D'R'H /I/th B&tikior 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 Manuar dated October 2022 CbC::EIa t 1 \t 1 '-;''Vt II I : I' JT:.'! PRCP3f£[/6tB:TtF UfA( OK[>[vnffufu T 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 flows 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 untt 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: Water Peak Hour Demand (gp„1) 2,208 456 681 3,345 This Space is Intentionally Left Blank West Denton County Area Water Andysis February 2024 KH Project 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. Kimtey-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 flow 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 Table 2 Development Water System Analysis Maximum Day +Peak Hour Fire FlowPressure Range Pressure Range 35 - 868741 48 - 9249 - 91 31 - 8168 - 90 Churchill Ponder Farms Webster Meadows 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 Projed Number: 068517173 on F onn=== ]:X LLI EXHIBIT “C” ESTIMATED COST OF CONSTRUCTION City of Duaon U61ity SewiceAgrurnent Page 24 of 27 018174.000001\4858.6457-6250.vI EXHIBIT “D” FORM OF EASEMEivr NOTICE OF CONFiDENriALrrY 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 INTEREST nv REAL PROPERTY BEFORE IT IS FirED FOR RECORD IN THE PUBLIC RECORDS: [YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER] WATER EASEMENT THE STATE OF TEXAS COUNTY OF DENTON KNOW 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 nv EXEnBiT “A” AND ILLUSTRATED W EXEnBIT “B” ALL ATrACEnED HERETO AND MADE A PART HDEREOF And it is funhu agreed that Grantee, in consideration of the benefits above set out, will remove fix)m the property above described, such fences, buildings and other obstructions as may now be found upon said property. City of IBnton Utility ServIce Agreement Page 25 of 27 0181 74.O€XXX)IW858{457+250.vI For the purpose of constructing, reconstructing, installing, repairing, and perpetually maintaining water facilities and related appurtenances ia, 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 be 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 oflknton, 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 thaton Utility Scwke Agreartcnt Page 26 of 27 018174.(XXX101\485841574250.vI ACKNOWLEDGMENT THE STATE OF COUNTY OF § .g 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 B )r • AFTC Development Services – Real Estate Division 401 N. Elm S&Bet Denton, Texas 76201 Attention: Mark Laird City of Dalton U61ity Service AgrHment hee 27 of 27 018174.000(nI\4858-64574250.v 1