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2007-172s:\nur doaimrn\sbrdinanccs\OTaM1y oNinance.doc ORDINANCE NO.~OD~J - '7a AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR DEPOSIT OF COSTS FOR PERIMETER PAVING WITH AHY, LC; AND PROVIDING AN EFFECTNE DATE. WHEREAS, AHY, LC is the owner and developer of approximately 17,000 square feet of property located at the northwest corner of McKinney Avenue and Jannie Street (the "Development"); and WHEREAS, the City has identified that the transportation impacts of the Development necessitate, in part, public improvements to Jannie Street as necessary to bring it to a level of service and capacity that is adequate to serve the Development (the "Paving Improvement"); and WHEREAS, after consultation with its engineers, the City has determined that it is feasible to defer indefinitely the construction of AHY's proportionate share of the Paving Improvement ("Perimeter Paving"), and AHY does not object to the indefinite nature of the deferral, due to the uncertainty in the timing and character of other future developments along, or to be served by Jannie Street, including property on the opposite side, and due also to the City's desire to maximize the efficiency and integrity of construction by coordinating the simultaneous construction of both portions; and WHEREAS, after consultation with its; engineers, the City has determined the cost of the design and construction of the Perimeter Paving (not including the value or cost of any additional required right-of--way from AHY) to be $25,000 (the "deposit"); and WHEREAS, AHY has been given the option of constmcting the Perimeter Paving, but has elected instead to make the deposit, and have that deposiC, together with any required dedication of right-of--way, stand in full satisfaction of its obligation to construct the Perimeter Paving for all purposes, specifically including, but not limited to, the purposes of obtaining a building permit or certificate of occupancy for any structures which may be constructed within the Development, regardless of whether the Perimeter Paving is actually completed at the time of the application for either; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to executed the Agreement for Deposit of Costs for Perimeter Paving between the City of Denton and AHY, LC, a copy of which is attached hereto and made part of the ordinance for all purposes. SECTION 2. This ordinance shall become effective immediately upon its passage and approval. S:\Our Documcnts\Ordinances\OTahy ordinancadoc PASSED AND APPROVED this the~~ day of , 2007. ~~~~~~~ PERR . McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY Page 2 of 2 BY: ~ C:ADOwmenis and Settings\ROger YaicALocal Seilings\Temporary Intemel FilesVContenLlES\5 KK35 P4DAYale Building Nerimeler Paving Draft Dcposi~ Agreemem.DOC AGREEMENT FOR DEPOSIT OF COSTS FOR PERIMETER PAVING THIS AGREEMENT (the "AQreement") is made by and between AHY, LC, a Texas limited corporation (the "Develoner") and the CITY OF DENTON, TEXAS, a home rule municipality, located in Denton County, Texas (the "C~"), as of the Effective Date provided below, upon the terms and conditions set forth herein. WHEREAS, the Developer is the owner and developer of approximately 17,000 square feet of property located at the northwest corner of McKinney Avenue and Jannie Street, a development located in the City of Denton, Texas, as more particularly described on Exhibit "A" attached hereto and made a part hereof by reference (the "Develonment"); and WHEREAS, the City has identified that the transportation impacts of the Development " necessitate, in part, public improvements to Jannie Street as necessary to bring it to a level of service and capacity that is adequate to serve the Development (the "Paving Improvement"); and WHEREAS, after consultation with its engineers, the City has determined that it is feasible to defer indefinitely the construction of Developer's proportionate share of the Paving Improvement ("Perimeter Paving"), and Developer does not object to the indefinite nature of the deferral, due to the uncertainty in the timing and character of other future developments along, or to be served by Jannie Street, including property on the opposite side, and due also to City's desire to maximize the efficiency and integrity of construction by coordinating the simultaneous construction of both portions; and WHEREAS, after consultation with its engineers, the City has determined the cost of the design and construction of the Perimeter Paving (not including the value or cost of any additional required right-of--way from Developer) to be $ 25,000.00 (the "Deposit"); and WHEREAS, Developer has been given the optia~ of constructing the Perimeter Paving, but has elected instead to make the Deposit, and have that Deposit, together with any required dedication of right-of--way, stand in full satisfaction of its obligation to construct the Perimeter Paving for all purposes, specifically including, but not limited to, the purposes of obtaining a building permit or certificate of occupancy for any structures which may be constructed within the Development, regardless of whether the Perimeter Paving is actually completed at the time of application for either; NOW THEREFORE, in consideration of the mutual covenants contained herein, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The Developer hereby delivers the Deposit to the City, and commits to dedicate required right-of--way as needed to complete the Perimeter Paving. The Deposit, together with accrued interest, may be disbursed for payment of the design and construction of the Perimeter Paving. Developer stipulates that Deposit is a payment in lieu of construction and not an impact fee, as the Developer retains the option to construct the Perimeter Paving. Developer further stipulates that that the Perimeter Paving obligation (or, alternatively the Deposit), together with any dedication of right-of--way required for construction, are, in combination, roughly proportionate to the transportation impacts expected to be generated by the Development, and thaC an essential nexus exists between the combined 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, and (2) City's acceptance of any required right-of--way dedication necessary to construction, such combined exaction stands in full satisfaction of Developer's obligation to dedicate and construct the Perimeter Paving for all purposes, specifically including, but not limited to, the satisfaction of that particular obligation in obtaining a building permit or certificate of occupancy for any structures to be constructed within the Development, regardless of whether the Perimeter Paving 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 permit 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. 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, as follows: If to the City: The City of Denton, Texas 215 E. McKinney Denton, Texas 76201 Attention: City Manager Fax No.: (940) 349-8596 With a copy to: City Attorney City of Denton, Texas 215 E. McKinney Denton, Texas 76201 Fax No.: (940) 382-7923 If to the Developer: Ann H. Yale 1512 E McKinney St, Ste 101 Denton, TX 76209-4531 With a covv to: Roger M Yale 1512 E McKinney St, Ste 101 Denton, TX 76209-4531 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. 3. Apnlicable 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. Agreement- Page 2 3 4. Bindin¢ 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. 5. 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 Perimeter Paving or Paving Improvement. Developer waives any and all other claims with respect to the Deposit or any interest which may accrue on the Deposit. 6. Time of the Essence. Time is of the essence in this Agreement. Notwithstanding, due to the uncertainty in the timing of other future developments served by Jannie Street, including the property located on the opposite side, and due to the fact that Developer retains the option of constructing the Perimeter Paving instead, Developer recognizes and accepts that City is not obligated to construct the Perimeter Paving or Paving Improvement by any date certain. 7. 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 singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 8. Incorporation of Recitals. The recitals in the preamble of this Agreement are substantive and are incorporated into the body of this Agreement by reference. 9. Interoretation. This Agreement was prepared as a collaborative effort of attorneys for both parties. Although the final draft was prepared by City, the initial draft was prepared by Developer. Accordingly, the parties stipulate and agree that any disputes surrounding the interpretation of this Agreement shQoju~ld not be biased toward either party as the drafter. EFFECTIVE as of the~~" day of _~1~(,~ , 2007 (the "Effective Date"). THE CITY OF DENTON, TEXAS By George C. Campbell, City Manager 215 E. McKinney Denton, Texas 7620] Fax No. (940) 349-8596 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: Agreement -Page 3 3 APPROVED AS TO LEGAL FORM: By: Ann H. Yale Member ACKNOWLEDGEMENTS STATE OF TEXAS COUNTYOF DENTON This in trument is acknowledged before me, on this ~ day of 2007, by George C. Campbell, City Manager of the City of Denton, a municipal orporation, on behalf of said municipal corporation. ;,.~..*lp,,'••,, JENNIFER K. WALTERS '~ `r Notary Public, State of Texas My Commission Expires °+:;;%a~t„'` December 19, 2010 tary P lic in and for ate of exas Agreement -Page 4 EDWIN M. SNYDER, CITY ATTORNEY AHY, L.C. 1512 E McKinney St, Ste 101 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on uy~e- , 2007 by Ann H. Yale, an officer of AHY, on ehalf of said limited corporation. STATE OF TEXAS § COUNTY OF DENTON this ~02~' day of LC, a Limited Corporation, Notary Public in and for State of Texas This instrument was acknowledged before me on this ,a ' day of ~~~ 2007 by Roger M. Yale, an officer of AHY, LC, a Limited Corporation, on behalf of said limited corporation. ~.o„~.,~,,,~. ', _ ~ ~^ ''"«, BRANDI R. GREATHOUSE f' '~ '~-, MV COMMISSION EXPIRES S~ `~Ia~a~J AUGUST 30, 2008 BRANDIR.GREATHOUSE " t MY COMMISSION EXPIRES ~ AUGUST 30, 2008 Notary Public in and for State of Texas Agreement -Page 5