2017-099*oRDINANCE No., 2017-099
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY
MANAGER TO EXECUTE A FIRST AMENDMENT TO AGREEMENT BY AND
BETWEEN THE CITY OF DENTON, TEXAS AND CARMEN INVESTMENTS, INC.
FOR THE PROVISION OF WATER AND SANITARY SEWER FACILITIES FOR
PHASE 11 A OF THE COUNTRY CLUB VILLAGE ADDITION; AND PROVIDING AN
EFFECTIVE
14,TE.
WHEREAS, the City of Denton, Texas (the "City") and Carmen Investments, Inc., a Texas
Corporation (the "Developer") entered into an agreement for the Provision of Water and Sanitary
Sewer Service for Phase 11 A of the County Club Village Addition development on or about
December 1, 2009, which was approved by the City Council for the City of Denton in Ordinance
2009-299 (the "Agreement"); and
WHEREAS, the City and the Developer desire to amend the Agreement in a form
substantially similar to the First Amendment to Agreement attached hereto as Exhibit "A,"
considering the relevant circumstances and providing for the costs, duties and responsibilities of
the parties regarding the mutual obligations of the parties regarding the furnishing of water and
sewer facilities regarding a certain new Phase II A comprised of approximately six (6) lots and
2.45 acres and additional phase 2B consisting of 17 lots and 11.97 acres, phase 3A consisting of
44 lots and 21.85 acres, phase 3B consisting of 13 lots and 6.38 acres, phase 3C consisting of 34
lots and 16.21 acres, phase 4 consisting of 14 lots and 12.52 acres, and phase 5 consisting of 3
vacant lots and 9.16 acres residential subdivision located within City of Denton, commonly known
as the "Country Club Village Addition; and
WHEREAS, the City believes that the Agreement is in the best interests of the City and
provides for the measured water and sewer growth of a new development in the City of Denton,
and that a valid governmental purpose is served by said Agreement; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Mayor is hereby authorized to execute, on behalf of the City Council of
the City of Denton, Texas, the "First Amendment to Agreement by and Between the City of
Denton, Texas and Carmen Investments, Inc., for the Provision of Water and Sanitary Sewer
Facilities for Phase II A of the Country Club Village Addition;" which Agreement is attached
hereto as Exhibit "A" and is incorporated by reference herein.
SECTION 2. The City Manager shall have the authority to expend funds that are necessary
to perform this Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of, 2017,
. . . . .......
CHRIS WATTS, MAYOR
ATTEST:
FEl'_W_4,LTF1?,,S. CTTV SECVET,6,
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THE STATE OF TEXAS §
COUNTY OF DENTON §
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ITTATEK,'ITID SA1,11"WLT SEITERSERTICE PF.Kfe_PLSE_L A 010111111'' T U1,445
VII.LAGE ADDITION (the "First Aniendment") is made and entered into on the ZA day of
VANK,gn�. ) 2017 by and between Carmen Investments, Inc., a Texas corporation
(the "Developer") and the City of Denton, Texas, a municipal corporation and a home -rule
municipality (the "City"), located in Denton County, Texas.
WHEREAS, the Developer is the owner and developer of the "Country Club Village," a
development located in the City, that contains approximately 130.77 acres of land, consisting of
42.72 acres of platted land with 73 lots for Phase I and 88.05 acres of unplatted land for Phases
2-5, and is more particularly described in Exhibit A which is attached hereto and incorporated
herewith by reference (the "Development'
WHEREAS, the Developer and City entered into an agreement for the Provision
Water and Sanitary Sewer Service for Phase II A of the County Club Village Addition (Phase I
A) on or about December 1, 2009, which was approved by the City Council for the City
Denton in Ordinance 2009-299 (the "Agreement"), attached hereto as Exhibit B al,
incorporated by reference herein;
WHEREAS, the Agreement originally contemplated thirty-two (32) single family
residential lots on 19.533 acres for Phase 11 A of the Development which was incorrectly stated
as 148 acres in the Agreement; ;
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and 12.52 ac ase consis ng 0 va o an acres, as fected in 14.yh-
,znd
WHEREAS, in 2013 the City revised its Water and Wastewater Impact Fees codified in
Chapter 26 of the Code of Ordinances of the City of Denton and the new fee amounts will apply
to newly developed lots in the Development; and
WHEREAS, most recently in 2016 the City revised its Water and Wastewater Tap Fees
codified in Chapter 26 of the Code of Ordinances of the City of Denton and the new fee amounts
will apply to newly developed lots in the Development; and
WHEREAS, the Parties desire to clarify the Agreement through this written First
Amendment by substituting the preliminary plan in the original Agreement Exhibit A with the
General Development Plan, Phasing Plan and Summary in Exhibit A attached hereto and
modifying the terms as stated herein and including the current fees to all single family
equivalents; and
WHEREAS, the City and the Developer have entered into this First Amendment to set
forth the terms, conditions, and provisions under which the water and sanitary sewer services
will be provided for this Development and the financial responsibilities of the Developer to
obtain these services;
NOW THEREFORE, in consideration of the mutual covenants contained herein, and
the mutual promises and undertakings by the parties hereto, the sufficiency of which
consideration is hereby acknowledged, the parties hereby AGREE as follows:
The Agreement is hereby amended only as noted below. All of other covenants, promises,
recitals and undertakings remain valid and in full force; the Parties hereby ratifying all portions
of the Agreement not revised below.
1. Paragraph 1 is deleted in its entirety and the following is substituted in its place:
Description ofDevelopgr ReWonsibilities. The Developer's responsibilities provided
for in this Agreement, as amended, are described as follows:
A. The Developer agrees to pay for the water impact fees for the Development after
the City's approval of the Final Plat but prior to the filing of the Final Plat for
each phase. Payment of wastewater impact fees will be made prior to the
issuance of a building permit for each lot. The total payment for water impact
fees will be based on the current rate posted for Single Family Equivalent ("SIFE")
by City Ordinance and codified in Chapter 26 of the Code of Ordinances of the
City of Denton at the time the building permit is requested for the respective lot at
issue.
In the event a house is constructed on one of the lots that requires a water meter
greater than a standard SFE in size (a 5/8 by j/4 inch meter), the builder will be
required to pay for the additional water impact fee to upgrade to that larger water
meter size and this additional water impact fee will be paid prior to the issuance
of the building permit for that lot.
B. The Developer understands and will communicate to each lot owner and/or
builder that normal utility fees that are charged at the time of building permitting
will apply with the exception of the water impact fee that was paid by the
2
Developer prior to the City filing the Final Plat. These fees payable at the time of
building permit would include the following:
Water meter setting fees at the then current rate posted by City Ordinance.
Wastewater impact fees at the current rate established by City Ordinance
based upon the filing date of the Final Plat for each phase.
C. The Developer will be charged standard tap fees for installation of all water and
sanitary sewer services for the development at the current rate established by City
Ordinance and codified in Chapter 26 of the Code of Ordinances of the City of
Denton.
These tap fees will be paid by the Developer after the City's approval but prior to
the City's filing of the Final Plat for each phase.
9
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be signed
by their 'es ct duly -authorized officials and officers on this the day of
201'1.
46CITY99
ONUMUMI 1 0 1
By..
'-TODD IRLEMAN
City Manager
By:
APPROVED AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
All
By:
"DEVELOPEW'
By: Carmen Investments, Inc.
A Texas c pany
BY:
Name: cv, V4:!r 6 CN-,
Title: President k6k-
rd
STATE OF TEXAS §
COUNTY , ,.. ,:
This instrument was acknowledged before me, on this C2y_ day of
2017, by Todd Hileman, City Manager of the City of Denton, Texas,
�t— - I U'l-In i i pi a,, �11C -®r p - o r- a ii on, on behalf of the same.
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ry ltc In and for State Of Texas
STATE OF TEXAS §
COUNTY OF DALLAS §
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This instrument was acknowledged before; me, the undersigned authority on this J-6 day
of 2017, by , the of "a-ien Investments, Inc., a Texas
corporation, acting on behalf of Carmen Investment!,, Inc
[LS.]
NoPublic in . car the State of Texas
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Exhibit B
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AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AGREEMENT BY AND BETWEEN THE CITY OF
DENTON, TEXAS AND CARMEN INVESTMENTS, INC. FOR THE PROVISION OF
WATER AND SANITARY SEWER FACILITIES FOR PHASE 11 A OF THE COUNTRY
CLUB VILLAGE ADDITION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Denton, Texas and Carmen Investments, Inc., a Texas
Corporation have entered into an Agreement considering the relevant circumstances and
providing for the costs, duties and responsibilities of the parties regarding the mutual obligations
P Z) -f-U-0�.-533 acre •resiaenual suouivision o,
the "Country Club Village Addition, Phase II A;" and
WHEREAS, the City believes that the Agreement is in the best interests of the City and
provides for the measured water and sewer growth of a new development in the City of Denton,
and that a valid governmental purpose is served by said Agreement; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF fN HEREBY ORDAINS:
SECTION I.. The Mayor is hereby authorized to execute, on behalf of the City Council
of the City of Denton, Texas, the "Agreement by and Between the City of Denton, Texas and
Carmen Investments., -Inc, for the Provision of Water and Sanitary Sewer Facties for Phase II
A of the Country Club Village Addition;" which Agreement is attached hereto as Exhibit
and is incorporated by reference herein.
SEC,nON 2. Ile City Manager shall have the authority to expend funds that are
necessary to perform this Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the /eday of _do
e&djjr
2009.
-BDR,R
MARK A. ZOOGIIS, MAYOR
ATTEST:
U I
LM Is—CIMMSSTITA-lay-
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THE STATE OF TEXAS
COUNTY OF DENTON
AGREEMENT BY AND BETWEEN TIEE CITY OF DENTON, TEXAS
AND CARMEN INVESTMENTS, INC. FOR THE PROVISION OF
WATER AND SANITARY SEWER SERVICE FOR PHASE H A OF THE COUNTRY
CLUB VILLAGE ADDTION
T S A6�
III 4GREEMENT (the "Agreement") is made and entered into on the — day of
d armen Investments, Inc., a Texas Corporation
2009 by an between C
(the "Developer") and the City of Denton, Texas, a municipal corporation and a home ---rule
municipality (the "City"), located in Denton County, Texas.
WHEREAS, the Developer is the -owner and developer of the "Country Club Village," a
development located in the City, that contains approximately 148 acres of land, and is more
particularly described in Exhibit "N' which is attached hereto and incorporated herewith by
reference (the "Development"); and
WHEREAS, the Developer has installed certain off-site and on-site water line and
sanitary sewer line facilities needed to provide service for the first phase of the development
referred to as "Phase I"; and
WHEREAS, the Developer wants to proceed forward with the development and platting
of a smaller second phase of the development referred to as "Phase II A" containing an
additional thirty-two (32) single family residential lots on 19.533 acres; and
WHEREAS, both.the Developer and the City understand that available water supply
capacity within the City's water transmission system in the area of the proposeddevelopment is
very limited; and
WHEREAS, the City has sufficient water supply capacity available to serve the
development in the next several years but needs additional water supply capacity in this area to
support existing development obligations that are not currently connected to the water system;
and
WHEREAS, the City plans to build additional water supply capacity to this ' area in the
next several years and plans to ftmd these capital improvements through a combination of water
impact fees, developer exactions, and utility rate revenues and/or bonds; and
WHEREAS, the size andlocation of this development makes it financially prohibitive
rM,MrtMV- re Mom K1111 toll 1111k
allows for the development and platting of a smaller second phase of the development referred
as "Phase II A" containing an additional thirty-two (32) single family residential lots; and
WHERE AS, additionally, the existing on-site water lines and sanitary sewer li
indal,le-lo-fe e Phase I develo(pment are ade.,*,uate to iscrovide water and sm
r III it-i-Ai7-A sewer servic
to the Phase 11 A development but were installed under the existing street pavement for the Ph
I development, and no provisions were made to install water and sanitary sewer services for t
Phase 11 A development; and
MWREAS, it is current City practice to require the Developer of single-fami
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each lot and the City has designed a plan to have these water and sanitary sewer servic
installed while minimizing the number of street pavement cuts to the maximum extent practica
and
VMEREAS, the City and the Developer have entered into this Agreement to set forth t
terms, conditions, and provisions under which the water and sanitary sewer services will
provided for this particular phase of the development and the financial responsibilities of
Developer to obtain these services; and
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the mutual promises and undertakings by the parties hereto, the sufficiency of whi
consideration is hereby acknowledged, the parties hereby AGREE as follows:
1. pe �jcrj, �tion pf Devel L_______p . The Developer's responsibilities provid
for in this Agreement are described as follows:
A. The Developer agrees to pay for the water impact fees for the Phase 11 A development
after the City's approval of the Final Plat but prior to the'filing of the Final Plat. Payment
of wastewater impact fees will be made prior to the issuance of a building permit for each
lot. The total payment for water impact fees will be in the following amount:
too
In the event a house is constructed on one of the lots that requires a water meter greater
than a standard SFE in size (a 5/8 by3/4 inch meter), the builder will be required to pay
for the additional water impact fee to upgrade to that larger water meter size and this
additional water impact fee will be paid prior to the issuance of the building permit for
that lot.
B. The Developer understands and will communicate to each lot owner and/or builder that
normal utility fees that are charged at the time of building permitting will apply with the
exception of the water impact fee that was paid by the Developer prior to the City filing
the Final Plat for the Country. Club Village Addition Phase II A. These fees payable at
the time of building permit would include the following:
9
upon the filing date of the Final Plat for the Country Club Village Addition, Phase
11 A.
B. The Developer will be charged standard tap fees f6i installation of all water and sanitary
sewer services for the development in the total amounts listed below:
01M
on -.
NY! I$ a I Ir I P]W-guig Mir! I
These tap fees will be paid by the Developer after the City's approval but prior to the
City's filing of the Final Plat for the Country Club Village Addition, Phase 11 A.
2. Descnption of -Citys- Rpsl21nsibilities. The City's responsibilities provided for in t
Agreement are described as follows: I
A. The City is responsible for the installation of all water and sanitary sewer service lines
to provide water and sanitary sewer service for each residential lot in the "Phase
project. The City will install these services to minimize the number of street pavement
cuts to the maximum extent practical and will provide a combination of single I -inch
and dual 2 -inch services for water service and a combination of single 4 -inch and dual
6 -inch services for sanitary sewer service to each lot. Dual water and sanitary sewer
services are not standard practice for services to new residential developments but are
being used wherever possible to help reduce the number of pavement cuts necessary to
serve each lot within the "Phase 11 A" development.
3. Notices. Any notice, demand or other communication required or permitted to
delivered hereunder (other than invoices to be delivered as hereinafter described) shall
deewe"M"&cT seTtbY-UTitcd--OStMeNwaII,. mmas r
g gmaid, certified mail, return recleil
4L
each party at the time indicated on the confirmation of transmission generated by the sender
electronic equipment, as follows: I
If to the Citi;
City of Denton, Texas
901 A Texas Street
Denton, Texas 76209
Attention: Timothy Fisher
City of Denton, Texas
Y I -
,Wkh a co to.—
City of Denton, Texas
901 A Texas Street
Denton, Texas 76209
Attention: Jim Coulter
NMI
16 -Ilvm
City Hall
Denton, Texas 76201
Attention: George C. Campbell, City Manager
K
If to the Develo. er:
p_..
Carmen Investments, Inc.
13069 St. John Rd.
Pilot Point, Texas 76258
Attention: Roy C. Brock
President
Fax No.: (940) 323-0209
6wa
With ��es to w
Carmen Investments, Inc.
240 McMakin Rd.
Double Oak, Texas 75077
Attention: Tim House
R -mail: b1ueDut)94(a-)vcri7on.ne(
The parties hereto may change their respective notice addresses for all communications and
invoices, by a written notice delivered to the other party, in accordance with the terms of this
Section 3.
4. Time is of the Essence. Time is of the essence in the performance of obligations
under this Agreement.
5. Governilip- Law and Regulatory Authoritv. This Agreement was executed in the State of
Texas and shall be govemed by, construed, interpreted, and enforced all in accordance with the
laws of the State of Texas. All obligations of the parties created under this Agreement are fully
performable in Denton County, Texas. The parties agree that exclusive venue for any lawsuit
1111111440) is, I frill E11W.KV.411 114101 EV01 WIN (;ws wil I [Wug
6. Entirety of Aareement. This Agreement constitutes the sole and entire agreement
and understanding between the City and the Developer. Neither party hereto is bound by or
liable for any statement, representation, promise, inducement, understanding, or undertaking of
any kind or nature, whether written or oral, with regard to the subject matter hereof not set forth
or provided or herein. This Agreement replaces- all prior agreements and undertakings between
the parties hereto with regard to the subject matter hereof. It is expressly agreed that the Parties
may have other agreements covering other services not expressly provided for herein, which
agreements are unaffected by this Agreement.
7. l7orce Maicure. The City and R' shall not be in default or otherwise
liable for any delay in, or failure of performance under this Agreement if such delay or failure
arises by any reason beyond its reasonable control, including any act of God, any acts of the
common enemy or tefforism, the elements, earthquakes, floods, fires, epidemics, riots, failures or
delay in transportation or communications, or any act or failure to act by another third party or
such other third parties employees, or agents. However, the lack of funds shall not be deemed to
be a reason beyond a party's reasonable control. The parties will promptly inform and consult
of fte abig I i i-ra*eir judfum nt mav or could be the cause
0
unenforceable term or provision there shall be added automatically to this Agreement a leg
valid or enforceable term or provision as similar as possible to the term or provision decl
illegal, invalid, or unenforceable.
9. Attomev`s'Fees. Should either Party to this Agreement commence legal proceedin
2gainst the other to enforce the terms and provisions of this Agreement, the Party who does]'n
substantially prevail in the proceeding(s) shall pay a reasonable amount of attorney's fees
expenses (including, but not limited to expert witness fees and deposition expenses) .:,1 f,:
the substantially prevailing Party.
10. Amendment. This Agreement may be amended only upon the mutual agreement of bo
*f the Parties hereto, which amendment shall not be effective until it is reduced to writing
?uthorized and executed by the Parties.
11. Assignabilily. The City and the Developer agree that this Agreement may not
?-TIIyiT-TWIftRout the � Cnor written consent of the other i�artn due to the piicial covenants, naturJA
and subject matter of this Agreement; provided, however, Developer shall have the option
assign this Agreement or any part of this Agreement or any right, title or interest of Develop
under this agreement to a (a) any person or entity (Developer Assignee"); provided that
creditworthiness of the proposed Developer Assignee is equal to or greater than that of
Developer; or (b) any lender providing refinancing for the acquisition and/or development of
Development in whole or in part, upon the written consent of the City provided: I
f
,,a) The assignment is in writing, executed by Developer and the Developer Assignee
following the advance written consent of the City; and
(b) The assignment incorporates this Agreement by reference and fully binds the
Developer Assignee to perform (to the extent of the obligations assigned) in
accordance with this Agreement; and
(c) A copy of the executed assignment is provided to all parties.
From and after th ' e effective date of any assignment by the Developer, the City agrees to look
solely to D" Assignee for the performance of the obligations assigned, provided,
however, no assignment by Developer shall release Developer from any liability to the City that
arose from an event of default by Developer (or-ftorn any failure by Developer which, if not
cured, would constitute an event of default) that occurred prior to the effective date of the
assigriment. Each Developer assignee shall become a party to this Agreement when a copy of
the executed assignment has been provided to all of the parties.
12. No Waiver. The failure of the City or the Developer to insist, on any occasion, upon
strict performance of any provision of this Agreement will not be considered to waive the
obligations, rights, or duties imposed upon the Parties. No waiver of any breach or violation of
any term of this Agreement shall be deemed or construed to constitute a waiver of any other
breach or Violation, whether concurrent or subsequent, and whether of the same or of a different
type of breach or violation.
13. No Third-Pgly -Be This Agreement is not intended to, and does not
create rights, remedies, or benefits of any character whatsoever in favor of any persons,
corporations, associations, or entities other than the Parties hereto and their permitted successors -
in -interest; and the obligations herein undertaken and assumed are solely for the use and benefit
of the Parties, their successors -in -interest, and any permitted assigns pursuant to the terms and
provisions of this Agreement.
15. Gender. Within this Agreement, words of any gender shall be held and construed
to include any other gender, and words in the singular number shall be held and construed to
include the plural, unless the context otherwise requires.
16. Exhibits. - All Exhibits to this Agreement are incorporated herewith by reference for
all purposes, wherever reference is made to the same.
17. Binding EMO. This Agreement shall be binding upon and inure to the benefit I
the parties and their respective heirs, executors, administrators, legal representatives, successor
and permitted assigns. i
18. Mq1tiple,Countexparts. This Agreement may be executed in four (4) original
counterparts,- each of which is deemed an original, but all of which constitute but one and the
same instrument
19. Authori!y. The City represents that this Areement has been approved and duIPJ
adopted by the City Council of the City in accordance with all applicable public meetings
lic notice requirements (including, but o
nt limited oo
t, ntices required by the Texas Op
Meetings Act) and that ' that the individual executing this Agreement on behalf of the City 1
pubh
been authorized to do so. Developer represents that this Agreement has been approved b
appropriate action of Developer and that the individuals executing this Agreement on behalf
Developer have been authorized to do so.
0
. IN WITNESS WHEREOF, the Parties have caused this Agreement to be si ned by thel
respe lVe duly -authorized officials
A and officers on this the day
aVA11,KAi,(_ _, 2009.
ATTEST:
JENNIFER V1A.LTF'?S_ CaY 9F_Q,?F_T4_V
tri iWA
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APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
50
6wt�
4EMF�,i CAMPBELL
City Manager
By:
ROY �BDOCK
Presige'nt
N
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me, on this day of
2009, by George C. Campbe 11, City Manager of 'the City of Denton,
Texas, a Municipal Corporation, on behalf of the same.
STATE OF TEXAS §
COUNTY OF DENTON §
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STATE OF TEXAS §
COUNTY OF DENTON §
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