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HomeMy WebLinkAbout1998-232ORDINANCE NO ✓ A AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE A WATER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND DIETER SCHWARZ BY NR & RJ PROPERTIES L P HIS ATTORNEY IN FACT, FOR THE CITY'S PARTICIPATION IN THE OVERSIZING OF A WATER MAIN AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS ORDINANCE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City wishes to participate in the cost of oversizing a water line to be designed, installed, and constructed by DIETER SCHWARZ by NR & RJ Properties, L P his attorney in fact, in an amount not to exceed one hundred twenty four thousand and one hundred dollars ($124,100 00), in accordance with §34-118(b)(2) of the Code of Ordinance of the City of Denton and TEX LOC GOV'T CODE §212 072, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SF#CTION I That the Mayor, or in his absence, the Mayor Pro Tom, is authorized to execute a Water Main Cost Participation Agreement between the City and DIETER SCHWARZ by NR & RJ Properties, L P his attorney in fact for the oversizing of approximately 3,067 feet of ten (10) inch water line to sixteen (16) inches and the oversizing of approximately 12,100 feet of ten (10) inch water line to twelve (12) inches, substantially in the form of the attached Agreement, which is made a part of this ordinance for all purposes, subject to DIETER SCHWARZ by NR & RJ Properties, L P his attorney in fact, entering into a Development Contract with the City, in accordance with Chapter 34 of the Code of Ordinances of the City of Denton SgCTION II That the City Manager is hereby authorized to make the expenditures as set forth in the attached Agreement SECTION III. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of J""-zt 1998 FL"J AV M ATTEST JENNIFER WALTERS, CITY SECRETARY B APUOVEDrAS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY F hareMdoPHLO WwDomrtn kO`dmm ua cma mtermemdm THE STATE OF TEXAS § COUNTY OF DENTON § WATER MAIN COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND DIETER SCHWARZ. WHEREAS, ,Dieter Schwarz (Owner) c/o NR & RJ Properties L P his attorney in fact hereafter referred to as "Owner," whose business address is P 0 Box 941, Greenburg, PA 15601, with a copy to Terra/Bain, Inc, (Developer) whose business address is 3732 Normandy Avenue, Dallas, Texas 75205-2105, wishes to develop and improve certain real property named Lakeview Ranch (as shown in Exhibit I, attached hereto and incorporated herein by reference), located in the City of Denton, Texas or its extraterritorial jurisdiction, and is required to provide such property with adequate collection capacity by designing, constructing and installing a water line of a minimum inside diameter of ten inches (10"), hereafter referred to as "required facilities", and WHEREAS, the City of Denton, Texas, a municipal corporation located at 215 East McKinney, Denton, Texas 76201, hereafter referred to as "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, Owner and City agree as follows 1 Owner shall design, install and construct approximately 3,067 feet of sixteen inch (16") and approximately 12,100 feet of twelve inch (12") water main and all necessary appurtenances thereto, hereafter referred to as "oversized facilities," located as shown on Exhibit II, attached hereto and incorporated herein by reference 2 As required by Chapter 34 of the Code of Ordinances of City of Denton, Texas, Owner has entered into a Development Contract prior to beginning construction of the oversized facilities This Development Contract is attached hereto as Exhibit III and incorporated herein by reference This Agreement is subject to and governed by this Development Contract and any other applicable ordinances of City 3 Prior to beginning construction of the oversized facilities, Owner shall obtain, at Owner's sole cost and expense, all necessary permits, licenses and easements The easements, deeds and plats therefor obtained by Owner shall be reviewed and approved as to form and substance by City prior to the beginning of construction If Owner is unable to acquire needed easements, Owner 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 Owner shall be assigned and dedicated to City, if not taken in City's name, prior to acceptance of the oversized facilities, and Owner warrants clear title to such easements and will defend City against any adverse claim made against such title Water Main Participation Agreement - Dieter Schwarz - Page 1 4 City's share in the cost of the oversized facilities, 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 Twenty Four Thousand One Hundred Dollars and No Cents ($124,100 00) City may elect one of the following methods to determine City's share of the cost a) Owner shall prepare plans and specifications and furnish them to City City shall competitively bid the required ]me and the oversized facilities in accordance with Chapter 252 of the Texas Local Government Code The difference in the bids shall be used to determine City's share, subject to City's maximum participation in cost as specified in this Agreement, or b) Owner shall prepare plans and specifications and take bids on the required line and the oversized facilities City shall pay Owner the least amount of the following (1) The difference in the bids for the required line and the oversized facilities, (2) Thirty percent of the bid on the oversized facilities, as provided for in §212 072 of the Texas Local Government Code, or (3) $124,100 00, the maximum participation cost allowed herein 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, Owner'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 shall make monthly payments for its share of the oversized facilities The Owner shall submit monthly pay requests on forms provided by the City The Owner's engineer shall verify that the pay request is correct The request, along with the engineer's verification, shall be submitted to the Engineering & Transportation Department of the City The City will retain 10% of the total dollar amount until the project is accepted and costs are calculated as per this agreement Payment by the City to the Owner will be made within thirty (30) days of receipt of the pay estimate and the engineer's verification 6 Within thirty (30) days of the acceptance of the facilities by City, Owner shall submit to City's Director of Utilities the actual cost of the oversized facilities Should the actual cost of the oversized facilities be less than the cost upon which City's share was determined, City's share of the cost shall be reduced proportionally, on a per linear foot basis, based upon the difference of the actual cost of the oversized facilities and the determined cost for required Water Main Participation Agreement - Dieter Schwarz - Page 2 facilities To determine the actual cost of the oversized facilities, City shall have the right to inspect any and all records of Owners, his agents, employees, contractors or subcontractors and shall have the right to require Owner to submit any necessary information, documents, invoices, receipts or other records to verify the actual cost of the oversized facilities 7 Within sixty (60) days of the date Owner submits satisfactory documentation of the actual cost of the oversized facilities, as determined by City, City shall pay to Owner City's remaining share of the cost thereof 8 If the City has made any overpayment of funds as calculated by the terms of this agreement, Owner shall make any reimbursement to the City within thirty (30) days of notice of the overpayment 9 All notices, payments or communications to be given or made pursuant to this agreement by the parties hereto, shall be sent to Owner at the business address given above and to the Director of Utilities for City at the address given above 10 Owner shall indemnify and hold City, its officers and employees, 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 Owner, its officers, agents, employees, invitee, contractors or other persons with regard to the performance of this agreement, and Owner will, at its own cost and expense, defend and protect City against any and all such claims and demands 11 If Owner does not begin substantial construction of the oversized facilities within twelve (12) months of the effective date of execution of this agreement, this agreement shall terminate, unless a written extension is approved by both parties 12 This instrument, including the exhibits attached hereto, embodies the whole 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, either verbal or written, between the parties hereto 13 This agreement shall not be assigned by Owner without the express written consent of City 14 Any and all suits for any breach of this contract, or any other suit pertaining to or arising out of this agreement, shall be brought and maintained in a court of competent juris- diction in Denton County, Texas Executed this the r f day of 1998 Water Main Participation Agreement - Dieter Schwarz - Page 3 ATTEST; I OWNER -DIETER SCHWARZ BY NR & RJ PROPERTIES L P HIS ATTORNEY IN FACT BY NR & RJ PROPERTIES G P INC GENERAL PARTNER BY "Z(�' Nick Raimondo, President CITY OF DENTON, TEXAS BY ACKNOWLEDGEMENT TERRABAIN, INC (DEVELOPER) BY ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM BERBERT PROUTY, CITY ATTORNEY BY F \shared\dcpt\LGL\Our DoenmemsTontracts\990leter Schwarz water main cost agreement doe Water Main Participation Agreement — Dieter Schwarz — Page 4 EXHIBIT I !!lot I'i E fke�Rc D S>ty�itr�ll f EXHIBIT II