2008-086I~ s:\our documents\ordinances\OS~aldi offsite paving agreemenLdoc
ORDINANCE NO. ~OO~-~c~Sjo
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE, TO EXECUTE AN AGREEMENT WITH ALDI (TEXAS)
L.L.C. FOR DEPOSIT OF COSTS FOR OFF-SITE PAVING FOR A PORTION OF
WESTCOURT ROAD FROM AIRPORT ROAD TO SPRINGSIDE ROAD; AND
DECLARING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute an
agreement far deposit of costs for off-site paving between the City of Denton and Aldi (Texas)
L.L.C. which is attached hereto and made a part hereof.
SECTION 2. The City Manager, or his designee, is authorized to exercise all rights and
duties for the City of Denton under this Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the ~~/`day of
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
McNEILL, MAYOR
BY: ~~Ge,C/~'~~/,~G~~ U'OG~~
AGREEMENT FOR DEPOSTf OF COSTS FOR OFF-SITE PAVING
THIS AGREEMENT (the "Ageement") is made by and between Aldi (Texas) L.L.C., a
Texas limited liability company (the "Developer's and the CITY OF DENTON, TEXAS, a home
rule municipality, located in Denton County, Texas (the "City"), as of the Effective Date
provided below, upon the terms and conditions set forth herein.
WHEREAS, the Developer is the owner and developer of a commercial subdivision
property located at the southern terminus of existing Westcourt Road at its intersection with
Springside Road, a development located in the City of Denton, Texas (the "Development"), as
more pazticulazly described by Ordinance No. 2007-176 and the Tax Abatement Ageement
attached thereto, both of which aze made a part hereof by reference; and
WHEREAS, the City has identified that the transportation impacts of the initial phase of
the Development necessitate, in part, construction of public improvements to a portion of
Westcourt Road, in order to bring it to a level of service and capacity that is adequate to serve the
initial phase of the Development (hereinafter, the "OtT Site Paving Improvement"), the scope of
which is defined by plans entitled "Aldi Distribution Center Westcourt Road Improvements from
Airport Road to Springside Road", prepared by Bury+Pariners-DFW, Inc., City of Denton
Project No. CPOS-0001; and
WHEREAS, after consultation with its engineers, the City has determined that it is
feasible to defer the Developer's obligations for the construction of the Off-Site Paving
Improvement (Westcourt Road) until after issuance of a building pernut for construction of on-
site improvements associated with the Development; and
WHEREAS, the City and Developer have separately ageed that the tax incentives
gamed for the Development shall be withheld until after the completion of Developer's share of
the Off-Site Paving Improvement of Westcourt Road, all as more particulazly described by
Ordinance No. 2008-006 and the Amendment to a Tax Abatement Agreement attached thereto,
both of which are made a part hereof by reference; and
WHEREAS, after wnsultation with its engineers, the City has determined the
Developer's proportionate shaze of the cost of the design and constrnction of the Off-Site Paving
Improvement (not including the value or cost of any additional required right-of--way and
easements to be acquired by the Developer as part of its responsibility to construct the Off-Site
Paving Improvement) to have a present value of $2,512,936.95, to be placed on deposit in an
interest bearing account to secure design and construction of the Off-Site Paving Improvement
by Developer, as set forth herein (the "Deposit"); and
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
sufficiency of which is hereby aclmowledged, the parties agee as follows:
1. The Developer hereby delivers the Deposit to the City, and commits to obtain the
required right-of--way and easements as needed and perform the construction to complete the
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Off-Site Paving Improvement. The Deposit, together with seemed interest, shall be disbursed to
the Developer by the City for payment of the design and construction of the Off-Site Paving
Improvement. Developer stipulates that Deposit is an escrow payment in anticipation of
Developer's construcfion of the Off-Site Paving Improvement of Westcourt Road, and not an
impact fee. Developer further stipulates that the Off-Site Paving Improvement obligation (or,
alternatively the Deposit), together with any acquisition of right-of--way and/or easements
required for construction, are, in combination, roughly proportionate to the transportation
impacts expected to be generated by the initial phase of the Development, and that an essential
nexus exists between the wmbined exaction and the development's transportation impact. City
stipulates and acknowledges that upon: (1) Developer making the Deposit according to the terms
defined and prescribed herein, acquiring any needed right-of--way and easements, and proceeding
to complete the construction of the Off-Site Paving Improvement of Westcourt Road, and (2) the
City's acceptance of any required right-of--way or easement dedication necessary to construction,
such combined exaction stands in full satisfaction of Developer's obligation to dedicate and
constmet the Off-Site Paving Improvement for all purposes, specifically including, but not
limited to, the satisfaction of that particulaz obligation in obtaining a building permit and/or
certificate of occupancy for any structures to be constructed within the Development, regardless
of whether the Off-Site Paving Improvement is actually completed at the time of application for
either. Correlatively, Developer stipulates and acknowledges that no other obligation or
condition relating to the issuance of a building permit or certificate of occupancy is satisfied by
this Agreement, and that the City's subsequent suspension, revocation or enforcement action
relating to any subsequently issued building peratit or certificate of occupancy shall not, if taken
in good faith and based upon the failure of any other requirement, constitute a breach or
repudiation by City of the terms of this Agreement.
2. Developer shall provide monthly invoices to the City in writing relative to all portions of
the design and construction costs required for the Off-Site Paving Improvement upon
commencement of constmction of the Off-Site Paving Improvement and, upon confirmation by
City personnel of actual work completed on Westcourt Road, the City shall pay each such
invoice out of the funds on deposit in the escrow account, such account being specifically
required to ensure completion of the Off-Site Paving Improvement project. If Developer
breaches this agreement and fails to cure the breach within fifteen (15) days of written notice of
such breach, or fails to complete the construction of Westcourt Road prior to March 1, 2010,
then the City shall have the right to use the remaining funds in escrow to complete construction
of the Off-Site Paving Improvement of Westcourt Road. In the event that there are insufficient
funds remaining in escrow to complete the construction of the Off-Site Paving Improvement of
Westcourt Road, then the Developer shall pay to the City, within ten (10) days after receipt of
demand for payment, the difference between the cost to complete construction of the Off-Site
Paving Improvement of Westcourt Road and the remaining funds in escrow. When the
constmction of the Off-Site Paving Improvement of Westcourt Road is completed and accepted,
if there aze still funds in the escrow account, such funds shall be released to the Developer and
this Agreement shall terminate.
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
Agreement -Page 2 .~ ~
S
requested, addressed to each respective party, or sent via facsimile to the fax number set forth for
each party, as follows:
If to the Citv:
The City of Denton, Texas
215 E. McKinney
Denton, Texas 76201
Attention: City Manager
Fax No.: (940) 349-8596
With a copv to:
City Attorney
City of Denton, Texas
215 E. McKinney
Denton, Texas 76201
Fax No.: (940) 382-7923
If to the Developer:
Scott W. Huska
Vice President
Aldi ('T'exas) L.L.C.
1517 Centre Place Drive, Suite 220
Denton, TX 76210
Fax No.: (940) 442-6784
With a copv to:
Daniel J. Kayne
Kayne Law Crroup
612 Pazk Street
Suite 200
Columbus, Ohio 43215
Fax No.: (614) 559-6768
Any of the parties hereto may change their respective notice addresses for all communications
and invoices by a notice delivered in accordance with the terms and conditions of this Section 2.
4. Applicable Law: Venue. This Agreement shall be construed under and in accordance
with the laws of the State of Texas, and all obligations of the parties created hereunder are fully
performable in Denton County, Texas. Exclusive venue for any lawsuit enforcing or interpreting
any of the rights and obligations under this agreement shall be a court of competent jurisdiction
in Denton County, Texas.
5. Bindine 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
assigns where permitted by this Agreement. The signatories below represent that they possess
full legal authority to obligate their respective corporate entities to the terms of this Agreement.
6. Sole Agreement. This Agreement constitutes the sole and only agreement of the parties,
and supersedes any prior understandings or written or oral agreements between the parties
respecting this subject matter. No other obligations or duties exist on either party with respect to
the Off-Site Paving Improvement of Westcourt Road. Developer waives any and all other claims
with respect to the Deposit.
7. Time of the Essence. Time is of the essence in this Agreement. However, in the event
that construction is delayed due to Developer's inability to acquire needed easements and rights-
of-way, such that City's acquisition by eminent domain of public property is required, the stated
deadline for completion of construction may be extended, if necessary, so as to require
completion no later than twelve (12) months following the date of acquisition.
Agreement -Page 3 3 S~~
8. Number and Gender. Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words in the singulaz number shall be held to include
the plural, and vice versa, unless the context requires otherwise.
9. Incorporation of Recitals. The recitals in the preamble of this Agreement aze substantive
and are incorporated into the body of this Agreement by reference.
] 0. IntetroretaHon. This Agreement was prepazed as a collaborative effort of attorneys for
both parties. Accordingly, the parties stipulate and agree that any disputes surrounding the
interpretation of this Agreement should not be biased towazd either party as the drafter.
EFFECTIVE as of the ~~j-, Zday of _L~lp/J,~ 2008 (the "Effective Date'.
THE CTI'Y OF DENTON, TE
By: :-~--
George C. Campbell, City Manager
215 E. McKinney
Denton, Texas 76201
Fax No. (940) 349-8596
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY~ (_~Ad(~ C y~ , ~/7,~,r~ ..~i,
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY: ~~ ~~~
Aldi (Texas) L.L.C.
1517 Centre Place Drive, Suite 220
Denton, TX 76210
A Texas Limited Liability Company
By: Aldi Inc. (Delaware)
A Delaware corporation,
Sole Member
By: ~lYaPl~,- ~Ef=~.. ~ By: ~Pi~ .7~~ i a~V r~
Scott W. Huska, Vice President
Agreement -Page 4
~` y Sly
ACKNOWLEDGEMENTS
STATE OF TEXAS
COiJNTY OF DENTON
This strument is acknowledged before me, on this ~j ~~ day of
2008, by George C. Campbell, City Manager of the City of Denton, a
munici al corporation, on behalf of said municipal corporation.
•,,a.;'a,+~y;;•,~ JANE E. RICHARDSON
Notary Public. State of Texas
sr = My Commission Expires
;•,fe~~~:•°• June 27, 2009
STATE OF TEXAS
COUNTY OF DENTON
_ aa~~ ~G ~ /lti(i~G(.~/~L~~Ctid'(/
N Public in and for
State of Texas
>•;:~~!;%;••, KARLA STOVER SANDERS
_ _ Notary Public, State of Texas
-''~~°. My Commission Expires
=~`%;y~;,;;:T' February 27, 2017
This instrument was acknowledged before me on this ~~/ day of
2008 by Scott W. Huska, Vice President of Aldi Inc. (Delawaze), a
Dela aze corporation and Sole Member of Aldi (Texas) L.L.C., a Texas Limited Liability
Company, on behalf of said corporation and limited liability company.
~~'~ KARLA STOVER SANDERS
`' ~~" ~ '. ~_~`3i Notary Public, State of Texas
}~: ~ _'""% '' My Commission Expires
+. ' - ~ ~ Febmory 27, 2011
~-
Agreement-Page 5
J
otary Pub is in and for
State of Texas
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