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FirstAmendmenttoAgreementɋOrdinance201709903/21/17
ORDINANCE NO.2009- z9g
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 II 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
of the parties regarding the furnishing of water and sewer facilities regarding a certain thirty-two
(32) lot, 19.533 acre residential subdivision located within City of Denton, commonly known as
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 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 "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.
Ji'(~
PASSED AND APPROVED this the day of 52009.
MARK A. BURROUG)IS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
~l
By:'
Page 2 of 2
THE STATE OF TEXAS §
COUNTY OF DENTON §
AGREEMENT BY AND BETWEEN THE 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
THIS AGREEMENT (the "Agreement") is made and entered into on the _Z day of
-
IV/ Ail , 2009 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.
RECITALS:
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 "A" 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
WI~REAS, both. the Developer and the City understand that available water supply
capacity within the City's water transmission system in the area of the proposed development 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 fund these capital improvements through a combination of water
impact fees, developer exactions, and utility rate revenues and/or bonds; and
WHEREAS, the size and location of this development makes it financially prohibitive
for the Developer to extend additional water supply capacity to provide service to this new phase
of the development; and the Developer and the City wants to provide an equitable solution that
allows for 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; and
WHEREAS, additionally, the existing on-site water lines and sanitary sewer lines
installed for the Phase I development are adequate to provide water and sanitary sewer services
to the Phase II A development but were installed under the existing street pavement for the Phase
I development, and no provisions were made to install water and sanitary sewer services for the
Phase II A development; and
WI~REAS, it is current City practice to require the Developer of single-family
residential developments to provide for the installation of water and sanitary sewer services for
each lot and the City has designed a plan to have these water and sanitary sewer services
installed while minimizing the number of street pavement cuts to the maximum extent practical;
and
WHEREAS, the City and the Developer have entered into this Agreement to set forth the
terms, conditions, and provisions under which the water and sanitary sewer services will be
provided for this particular phase of the development and the financial responsibilities of the
Developer to obtain these services; and
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:
1. Description of Developer's Responsibilities. The Developer's responsibilities provided
for in this Agreement are described as follows:
A. The Developer agrees to pay for the water impact fees for the Phase II 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:
32 residential lots @ $ 4,000.00 per SFE (Single Family Equivalent) _ $128,000
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 3/4 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:
--Water meter setting fees at the then current rate posted by City Ordinance.
2
--Wastewater impact fees at the current rate established by City Ordinance based
upon the filing date of the Final Plat for the Country Club Village Addition, Phase
II A.
B. The Developer will be charged standard tap fees for installation of all water and sanitary
sewer services for the development in the total amounts listed below:
Water Service Tap Fees: $ 34,510.00
Sanitary Sewer Tap Fees: $ 35,650.00
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 II A.
2. Description of City's Responsibilities. The City's responsibilities provided for in this
Agreement are described as follows:
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 II A"
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 1-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 II A" development.
3. Notices. Any notice, demand or other communication required or permitted to be
delivered hereunder (other than invoices to be delivered as hereinafter described) shall be
deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt
requested, addressed to each respective party, or sent via facsimile to the fax number set forth for
each party at the time indicated on the confirmation of transmission generated by the sender's
electronic equipment, as follows:
If to the City:
With a copy to:
City of Denton, Texas
City of Denton, Texas
901 A Texas Street
901 A Texas Street
Denton, Texas 76209
Denton, Texas 76209
Attention: Timothy Fisher
Attention: Jim Coulter
Assistant Director of Water Utilities
Director of Water Utilities
Fax No.: (940) 349-8951
Fax No.: (940) 349-8951
City of Denton, Texas
215 East McKinney Street
City Hall
Denton, Texas 76201
Attention: George C. Campbell, City Manager
3
If to the Developer:
Carmen Investments, Inc.
13069 St. John Rd.
Pilot Point, Texas 76258
Attention: Roy C. Brock
President
Fax No.: (940) 323-0209
Email: lynn@carmenhomes.com
With copies to:
Carmen Investments, Inc.
240 McMakin Rd.
Double Oak, Texas 75077
Attention: Tim House
Email: bluepup94@verizon.net
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. Governing Law and Regulatory Authority. This Agreement was executed in the State of
Texas and shall be governed 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
enforcing or interpreting any of the rights and obligations, or for any other cause of action arising
under this Agreement, shall be a court of competent jurisdiction in Denton County, Texas.
6. Entirety of Agreement. 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. Force Maieure. The City and the Developer 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 terrorism, 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
with each other as to any of the above causes, which in their judgment may or could be the cause
of a delay in the performance of this Agreement.
8. Severability. If any term or provision of this Agreement is held by a court to be illegal,
invalid, or unenforceable, the legality, validity or enforceability of the remaining terms or
provisions of this Agreement shall not be affected thereby, and in lieu of each illegal, invalid or
4
unenforceable term or provision there shall be added automatically to this Agreement a legal,
valid or enforceable term or provision as similar as possible to the term or provision declared
illegal, invalid, or unenforceable.
9. Attorney's Fees. Should either Party to this Agreement commence legal proceedings
against the other to enforce the terms and provisions of this Agreement, the Party who does not
substantially prevail in the proceeding(s) shall pay a reasonable amount of attorney's fees and
expenses (including, but not limited to expert witness fees and deposition expenses) incurred by
the substantially prevailing Party.
10. Amendment. This Agreement may be amended only upon the mutual agreement of both
of the Parties hereto, which amendment shall not be effective until it is reduced to writing and
authorized and executed by the Parties.
11. Assignability. The City and the Developer agree that this Agreement may not be
assigned without the prior written consent of the other party due to the special covenants, nature,
and subject matter of this Agreement; provided, however, Developer shall have the option to
assign this Agreement or any part of this Agreement or any right, title or interest of Developer
under this agreement to a (a) any person or entity (Developer Assignee"); provided that the
creditworthiness of the proposed Developer Assignee is equal to or greater than that of the
Developer; or (b) any lender providing refinancing for the acquisition and/or development of the
Development in whole or in part, upon the written consent of the City provided:
(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 the effective date of any assignment by the Developer, the City agrees to look
solely to the Developer 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- from any failure by Developer which, if not
cured, would constitute an event of default) that occurred prior to the effective date of the
assignment. 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-Party Beneficiaries. This Agreement is not intended to, and does not
create rights, remedies, or benefits of any character whatsoever in favor of any persons,
5
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.
14. Parajzraph Headings and Construction of Agreement. The descriptive headings of
the various articles and sections of this Agreement have been inserted for the convenience of
reference only, and are to be afforded no significance in the interpretation or construction of this
Agreement. Both Parties hereto have participated in the negotiation and preparation of this
Agreement, which shall not be construed either more or less strongly against or for either Party.
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 Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, executors, administrators, legal representatives, successors,
and permitted assigns.
18. Multiple Counterparts. 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. Authority. The City represents that this Areement has been approved and duly
adopted by the City Council of the City in accordance with all applicable public meetings and
public notice requirements (including, but not limited to, notices required by the Texas Open
Meetings Act) and that that the individual executing this Agreement on behalf of the City has
been authorized to do so. Developer represents that this Agreement has been approved by
appropriate action of Developer and that the individuals executing this Agreement on behalf of
Developer have been authorized to do so.
SIGNATURE PAGE IMMEDIATELY FOLLOWS THIS PAGE
6
IN WITNESS WHEREOF, the Parties have caused this Agreement to be i ned by their
respec.tive duly-authorized officials and officers on this the / z day of
2009.
-1k
"CITY"
THE CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By.
EO GE C. CAMPBELL
City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: 0,
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By: l Sa D
"DEVELOPER"
CARMEN INVESTMENTS, INC.
A TEXAS CORPORATION
f -s By:
ROY ROCK
Presi rent
7
ACKNOWLEDGEMENTS
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me, on this day of
, 20095 by George C. Campbell, City Manager of the City of Denton,
Texas, a Municipal Corporation, on behalf of the same.
JENNIFER K. WAITERS
Notary Public, State of Texas
=,N t.
MY Commission Expires
D@cimbet 19, 2010
No Pub ie in and for t e State of Texas
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me, the undersigned authority on this r day
of.20093 by Roy C. Brock, the President of CARMEN INVESTMENTS, INC.,
a Texas Corporation. _
Public in and for the 'State/of Texas
•'FV p
' STEPHANIE K YOUNG
MY COMMISSION EXPIRES
OF E±December 2 2010
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