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