2009-112ORDINANCE NO. 2009- 112
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A WATER
MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON,
TEXAS AND ALLEGIANCE HILLVIEW, L.P. FOR THE CITY'S PARTICIPATION IN
THE OVERSIZING OF WATER MAINS AND IN ACCORDANCE WITH THE TERMS
AND CONDITIONS OF THIS ORDINANCE; AUTHORIZING THE EXPENDITURE OF
FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. (IN THE NOT-TO-
EXCEED AMOUNT OF $113,403.50)
WHEREAS, the City desires to participate in the cost of oversizing water mains to be
designed, installed, and constructed by Allegiance Hillview, L.P. in an amount not to exceed
One Hundred Thirteen Thousand Four Hundred Three Dollars and 50/100 Cents
($113,403.50), in accordance with the applicable provisions of the City of Denton
Development Code, §35.21.9.1 and 35.21.9.2; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager is authorized to execute a Water Main Cost
Participation Agreement Between the City of Denton, Texas and Allegiance Hillview, L.P.
(the "Agreement") for the oversizing of approximately 3,213 linear feet of sixteen (16") inch
water line to a twenty ("20") inch water main; substantially in the form of the attached
Agreement, which is incorporated herewith and made a part of this ordinance for all purposes;
subject to Allegiance Development, L.P. entering into a Development Contract with the City
of Denton, in accordance with the Denton Development Code, §35.16.20.2.
SECTION 2. The City Manager is hereby authorized to make the expenditures as set
forth in the attached Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the day of , 2009.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
THE STATE OF TEXAS §
COUNTY OF DENTON §
WATER MAIN COST PARTICIPATION AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS
AND ALLEGIANCE HILLVIEW, L.P.
WHEREAS, Allegiance Hillview. L.P., hereinafter referred to as "Developer", whose
business address is 5221 N. O'Connor Blvd., Suite 700, Irving, Texas 75039, wishes to
develop and improve certain real property named the "Raynor Ranch" (as shown in Exhibit 1,
attached hereto and incorporated herein by reference), located in the City of Denton, Texas or
its extraterritorial jurisdiction; and is required to provide such real property with adequate
distribution capacity by designing, constructing and installing a water line of an inside
diameter of sixteen inches (16"), hereinafter referred to as the "Required Facilities"; and
WHEREAS, the City of Denton, Texas, a Municipal Corporation with its offices
located at 215 East McKinney, Denton, Texas 76201, hereafter referred to as the "City, in
accordance with. its ordinances, wishes to participate in the cost of the construction and
installation of said water main to provide for an "oversized" water main to expand its utility
system and insure adequate utility service to other customers;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein the Developer and the City do hereby AGREE as follows:
1. Developer shall design, install, and construct, approximately 3,213 linear feet of
twen inch (20") water distribution line, and all necessary appurtenances thereto, hereafter
referred to as the "Oversized Facilities" as shown on Exhibits 1 and 2, attached hereto and
incorporated herein by reference.
2. As required by Chapter 34 of the Code of Ordinances of City of Denton, Texas,
Developer will enter into a Development Contract prior to beginning of construction of the
Oversized Facilities. This Agreement is subject to and governed by said Development
Contract and any other applicable ordinances of the City of Denton, Texas.
3. Prior to beginning of construction of the Oversized Facilities, Developer shall
obtain, at Developer's sole cost and expense, all necessary permits, licenses and easements.
The easements, deeds, and plats therefor obtained by Developer shall be reviewed and
approved as to form and substance by City prior to the beginning of construction. If
Developer is unable to acquire needed easements, Developer shall provide City with any
requested documentation of efforts to obtain such easements, including evidence of
negotiations and reasonable offers made to the affected property owners. Any easements for
the Oversized Facilities obtained by the Developer shall be assigned to City, if not taken in
City's name, prior to acceptance of the Oversized Facilities, and Developer warrants clear title
to such easements and will defend City against any adverse claim made against such title.
4. City's share in the cost of the Oversized Facilities is based upon the difference in the
cost of installing Required Facilities, as determined by City, and the cost of the Oversized
Facilities, as determined by City, shall be in an amount not to exceed one hundred thirteen
thousand, four hundred three dollars and fifty cents ($113,403.50), the maximum
participation cost allowed herein.
The City shall not, in any case, be liable for any additional cost because of delays in
beginning, continuing, or completing construction; changes in the price or cost of materials,
supplies, or labor; unforeseen or unanticipated cost because of topography, soil, subsurface,
or other site conditions; differences in the calculated and actual per linear feet of pipe or
materials needed for the Oversized Facilities; Developer's decision as to the contractors or
subcontractors used to perform the work; or any other reason or cause, specified or
unspecified, relating to the construction of the Oversized Facilities.
5. The City may make monthly payments for its share of the Oversized Facilities
if requested by the Developer. If monthly payments are requested, the Developer shall
submit monthly pay requests on forms provided by the City. The Developer's engineer shall
verify that each pay request is correct. Each pay request, along with the engineer's
verification, shall be submitted to the Development Review Engineering Administrator of the
City. The City will retain ten percent (10%) of the total dollar amount until the project is
accepted. In lieu of monthly payments, the Developer may invoice the City for the entire
oversize participation amount after the project has been completed and accepted by the City.
Payment by the City to the Developer will be made within thirty (30) days of receipt of the
pay estimate and the engineer's verification or final invoice.
6. To determine the actual cost of the Oversized Facilities, City shall have the right
to inspect any and all records of Developer, his agents, employees, contractors or
subcontractors, and shall have the right to require Developer to submit any necessary
information, documents, invoices, receipts or other records to verify the actual cost of the
Oversized Facilities.
7. All notices, payments or communications to be given or made pursuant to this
Agreement by the parties hereto, shall be sent to Developer at the business address given
above and to the Assistant City Manager for Utilities for City at the address given above.
8. Developer shall indemnify and hold City harmless from any and all claims,
damages, loss or liability of any kind whatsoever, by reason of injury to property or person
occasioned by any act or omission, neglect or wrongdoing of Developer, its officers, agents,
employees, invitees, contractors or other persons with regard to the performance of this
Agreement; and Developer shall, at its own cost and expense, defend and protect City against
any and all such claims and demands.
9. If Developer does not begin substantial construction of the Oversized Facilities
within twelve (12) months of the date of execution of this Agreement, this Agreement shall
terminate.
10. This instrument embodies the entire agreement of the parties hereto and there
are no promises, terms, conditions or obligations other than those contained or incorporated
herein. This Agreement shall supersede all previous communications, representations or
agreements, whether verbal or written, between the parties hereto with respect to the subject
matter of this Agreement.
11. This Agreement shall not be assigned by Developer without the express written
consent of the City.
2
12. Any and all suits for any breach of this Agreement, or any other suit pertaining
to or arising out of this Agreement, shall be brought in a court of competent jurisdiction in
Denton County, Texas. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
EXECUTED in duplicate original counterparts by the duly-authorized officials and officers
of the City and the Developer, on this the 5q. day of , 2009.
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By L
E GE C. OCAMPALL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APP VED A TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
"DEVELOPER"
ALLEGIANCE HILLVIEW, L.P.
By: <Xe 4*4.r,~J 5 1We f~ati2
ATTEST:
By:
APPROVED AS TO LEGAL FORM:
By:
WATER MAIN COST PARTICIPATION AGREEMENT
BETWEEN THE CITY OF DENTON, TEXAS
AND ALLEGIANCE HILLVIEW, L.P.
Allegiance Hillview, L.P., a New York limited
partnership
By: TH GP LLC (d/b/a TH Denton GP LLC in
the State of Texas), a Delaware limited
liability company, its general partner
By:
Name: Andrew Osborne
Title: Authorized Signatory
Attest:
By: Not Necessary
APPROVED AS TO LEGAL FORM:
By: Not Required
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EXHIBIT 2
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