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Home My WebLink About2004-211SAOur Documents\Ordinances\04\Windjammer Pro Rata Approval.doc ORDINANCE NO. a� DO7 —A// AN ORDINANCE APPROVING A PRO RATA REIMBURSEMENT AGREEMENT FOR DRAINAGE IMPROVEMENTS BETWEEN THE CITY OF DENTON, TEXAS AND WINDJAMMER, LTD. PURSUANT TO THE CITY'S DRAINAGE PRO RATA ORDINANCE CONTAINED IN ARTICLE VII OF CHAPTER 26 OF THE CODE OF ORDINANCES OF THE CITY OF DENTON; MODIFYING THAT CERTAIN ECONOMIC DEVELOPMENT AGREEMENT DATED MARCH 23, 2004 BETWEEN THE CITY OF DENTON AND WINDJAMMER, LTD.; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Windjammer, Ltd (the "Developer") has applied for drainage pro rata reimbursement for certain oversized drainage improvements pursuant to the City's Drainage Pro Rata Ordinance contained in Article VII of Chapter 26 of the Code of Ordinances of the City of Denton; and WHEREAS, attached hereto and made a part hereof by reference is a Pro Rata Reimbursement Agreement between the City and the Developer (the "Pro Rata Agreement"); and WHEREAS, the City Council of the City of Denton hereby finds that the Pro Rata Agreement is in the public interest; NOW, THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are true and correct and are incorporated herein by reference. SECTION 2. The Pro Rata Agreement is hereby approved. The City Manager or his designee is hereby authorized to execute the Pro Rata Agreement on behalf of the City and to carry out the City's rights and duties therein. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the 69 / �/ 6A day of , 2004. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO FORM: HERBERT L. PROUTY>CITY_ATTORNEY Page 2 SAOur Documents\Contracts\04\Pro-Rats Agreement-Windjammer-6-23-04.DOC PRO RATA REIMBURSEMENT AGREEMENT FOR DRAINAGE IMPROVEMENTS WHEREAS, Windjammer, Ltd., a Texas limited partnership ("Developer"), whose business address is 3505 Teasley Lane, Denton, Texas 76205, is the developer of that certain real property located in the City of Denton, Texas as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, the City of Denton Development Code requires that the Developer construct certain drainage facilities which are capable of adequately handling surface water runoff from and through the Property based upon the fully developed watershed basin in which the Property is located; and WHEREAS, Article VII of Chapter 26 of the Code of Ordinances of the City of Denton (the "Drainage Pro Rata Ordinance") allows the Developer to enter into an agreement with the City authorizing the City to collect a Pro Rats, Charge at the time of final plat or building permit, from upstream Property Owners, based upon a formula that calculates surface water run-off usage of such drainage facilities resulting from the actual development of such properties, as provided for in the Drainage Pro Rata Ordinance; and WHEREAS, the City of Denton, Texas, a home rule municipal corporation (the "City") and the Developer have entered into this Agreement to provide for the collection of Pro Rata Charges as provided for in the Drainage Pro Rata Ordinance; NOW, THEREFORE, in consideration of their mutual promises, Developer and City agree as follows: 1. Developer has designed those certain public drainage facilities as more particularly described in Exhibit `B" attached hereto and made a part hereof by reference (the "Drainage Facilities"). The Drainage Facilities have been sized to handle surface water runoff that is larger than necessary to support the development of the Property and existing up stream runoff, whether on site or off - site and handle the fully developed watershed basin in which the Property is located (the "Oversized Improvements"). Developer has submitted to the City an engineer's cost estimate based on actual bids showing the difference in cost to construct the Drainage Facilities with the Oversized Improvements versus the Drainage Facilities without the Oversized Improvements. Based on those estimates the City and Developer agree that the estimated cost to construct the Oversized Improvements is $41,392.41 (the "Estimated Oversized Costs"). A detailed breakdown of (a) the estimated cost to construct the Drainage Facilities, )b) the Estimated Oversized Costs, (c) the affected properties, and (d) the estimated amounts of the Pro Rata Charges that will be due from each Property Owner are attached hereto and made a part hereof as Exhibit "C". SAOur Documents\Contracts\04Tro-Rats Agreement-Windjammer-6-23-04.DOC 2. Prior to beginning construction of the Drainage Facilities, Developer shall obtain at Developer's sole cost and expense, all necessary permits, licenses, and easements. On or before the Effective Date of this Agreement the Developer shall pay to the City the applicable administrative fee provided for in the Drainage Pro Rata Ordinance. The Developer warrants clear title to such easements and will defend City against any adverse claim made against such title. Prior to construction Developer shall also enter into the City's standard three-way construction agreement between the Developer, City and the Developer's construction contractor for the construction of the Drainage Facilities and shall provide the City with the standard performance and payment bonds and insurance certificates. 3. Within 30 days after the acceptance of the Drainage Facilities by the City, Developer shall submit to the City the actual cost of the Drainage Facilities and the actual cost of the Oversized Improvements (the "Oversized Costs"). To determine the actual cost of the Drainage Facilities and the Oversized Costs, the City shall have the right to inspect any and all records of Developer, its agents, employees, contractors, or subcontractors related to the Drainage Facilities 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 Drainage Facilities. The City may review and verify the actual cost of the Drainage Facilities and Oversized Costs. After such review the City will issue a certificate certifying the amount of the Oversized Costs that are subject to pro rata reimbursement under the Drainage Pro Rata Ordinance and this Agreement. 4. The City shall collect a Pro Rata Charge from upstream Property Owners within the same watershed basin as the Property in accordance with the formula set forth in Section 26-236 of the Drainage Pro Rata Ordinance (the "Pro Rata Charge Formula"). The Pro Rata Charge Formula is as set forth in Section 26-236(a) of the Drainage Pro Rata Ordinance. A copy of the Formula is attached hereto and made a part hereof as Exhibit "D" The Pro Rata Charge will be collected by the City at the time that the Property Owners of such upstream properties within the same watershed basin receive final plat approval or building permit approval as provided for in Section 26-236 of the Drainage Pro Rata Ordinance. Within the later of thirty (30) days after acceptance of the Drainage Facilities by the City or thirty (30) days after the receipt the Pro Rata Charge, the City shall transfer the Pro Rata Charge to the Developer, less the applicable administrative fee as provided in the Drainage Pro Rata Ordinance. In no event will the Pro Rata Charge bear interest or be adjusted for inflation. 5. The total Pro Rata Charges shall not exceed the Oversized Costs. No Pro Rata Charges will be collected by the City after 20 years have passed since the acceptance of the Drainage Facilities by the City. Because the Pro Rata Charges are only collected if and when the upstream properties develop and are based on the actual extent of surface water runoff from such upstream development, there is no assurance or guarantee that the Developer will be reimbursed for the Oversized Costs. Page 2 of 5 S:\Our Documents\Contracts\04\Pro-Rata Agreement-Windjammer-6-23-04.DOC 6. This Agreement is subject to the Drainage Pro Rate Ordinance. 7. The Developer will look solely to the Pro Rata Charges provided for in this Agreement for reimbursement for the Oversized Costs. The City has no obligation to pay for the Drainage Facilities or Oversized Costs from its general revenues, bond funds or any other revenues it may receive. Developer waives any claims or causes of action against the City to collect the Oversized Costs other than any claims or causes of action it may have to collect the Pro Rata Charges collected by the City under this Agreement. 8. The City shall not be obligated to collect all or any part of a Pro Rata Charge from a Property Owner under either of the following situations: a. A Property Owner has filed written objections to all or part of a Pro Rata Charge as being unlawful or invalid, and the City in its sole opinion determines that such objection has merit. In such case, upon written request from the Developer, the City will assign its right to collect such Pro Rata Charge to the Developer. In such case the City will not withhold the approval of the final plat or building permit for the subject property. b. A court of competent jurisdiction determines that all or part of a Pro Rata Charge is unlawful or invalid. In such case if the Pro Rata Charge has not been paid at the time of the court determination the City will not withhold approval of the final plat or building permit for the subject property. If the Pro Rata Charge has already been collected by the City and paid to the Developer, the Developer shall refund the Pro Rata Charge to the City with accrued interest, no later than 60 days after written demand from the City. The City will not be obligated to collect any future Pro Rata Charges under this Pro Rata Agreement until this refund is made. 9. In collecting a Pro Rata Charge from a Property Owner, the City is performing a governmental function and thereby has governmental immunity to any claim or action from a Developer under the Drainage Pro Rata Ordinance or this Pro Rata Agreement. The City shall not be liable to the Developer should it make a mistake in calculating the applicable Pro Rata Charge or inadvertently fail to collect a Pro Rata Charge, whether or not the City acted negligently. In such case, upon written request from the Developer, the City will assign its right to collect such Pro Rata Charge to the Developer. 10. 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 or to Fax No. 940.536.1150, and to the City at the following Page 3 of 5 S:\Our Documents\Contracts\04\Pro-Rala Agreement-Windjammer-6-23-04.DOC address: City Manager, City of Denton, 215 E. McKinney, Denton, Texas 76201 or Fax No. 940.349.8596. 11. This Agreement embodies the entire agreement of the parties hereto, and there are no promises, terms, conditions or obligations other than those contained herein. This Agreement shall supersede all previous communications, representations or agreements, either verbal or written, between the parties hereto. The City and Developer have previously entered into that certain Economic Development Program Agreement dated March 23, 2004 which was approved by Ordinance No. 2004-093 (the "Economic Development Agreement'). Page 14 of Exhibit A to the Economic Development Agreement provides for reimbursement of oversize drainage improvements which are the subject of this pro rata Agreement. To the extent that the Developer is reimbursed for the Oversized Costs under either this pro rats Agreement or the Economic Development Agreement, the reimbursement amount under the other agreement shall be reduced dollar for dollar so that the total reimbursable amount under both agreements shall not exceed the Oversize Costs. 12. Developer may assign its rights under this Agreement but such assignment will not take effect until the City has been notified in writing of the name, address, telephone number and representative of assignee. However, partial assignments are not allowed. 13. This Agreement shall be construed under the laws of the State of Texas and is fully performable in Denton County, Texas. 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 and maintained in a court of competent jurisdiction in Denton County, Texas. 14. This Agreement shall be effective for a period of twenty (20) years from the date Drainage Facilities completed as evidenced by the written acceptance of the City. However, should Developer fail to complete substantial construction of the Drainage Facilities within one year after the Effective Date as provided below, this Agreement shall terminate and be of no further force or effect. Signed to be effective this the Auk day of 2004 (the "Effective Date"). CITY OF DENTON, TEXAS By: o Michael A. Conduff, Ci ager Page 4 of 5 SAOur Documents\Contracts\04\Pro-Rate Agreement-Windjammer-6-23-04.DOC ATTESTED BY: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: � FJ/ WINDJAMMER, LTD., A Texas limited partnership, Its General Partner By: BOB SHELTON ENTERPRISES MANAGEMENT CO., LLC A Texas limited liability company Its General Partner By: Bob Shelton, P tent Page 5 of 5 � # }°! ; �§§ �a�.§ } �.«: . ,a•pI { o , )�0 x a # @ R - ° \§ ! °.. �. E § a� 2 ( § §go jƒ » 11EXHIBIT Cil UPSTREAM EXISTING DEVELOPMENT CONDITIONS - DRAINAGE COST ($DC) DESCRIPTION UNIT APPROXIMATE QUANTITY UNIT PRICE TOTAL AMOUNT . ..... ... . -20% �0 .. .. STORM SEWER SYSTEM 331, R.C.P. LF 215 $69.00 $12,1385.00 48" R.C.P. LF 119 $92.00 $10.948.00 4'X 4'BOX CULVERTS LF 173 $135.23 $23,394.59 I. ITOTAL DRAINAGE COST ($DC) S47,027.59 UPSTREAM PROPOSED DEVELOPMENT CONDITIONS - FUTURE DRAINAGE COST ($FDC) DESCRIPTION UNIT I APPROXIMATE QUANTITY UNIT PRICE TOTAL AMOUNT STORM SEWER SYSTEM TX 4'BOX CULVERT LF 292 $185.00 $54,020.00 16' X 4- BOX CULVERT LF 2151 S160.00 1 $34.400.00 nggg ITOTAL FUTURE DRAINAGE COST (SFDC) $88,420.00 ISUMMARY IDRAINAGE COST ($DC) $47,027.59 IFUTURE DRAINAGE COST ($FCC) $88,420.00 TOTAL ESTIMATED OVERSIZED COSTS (SFDC -SDC) $41,392.41 AFFECTED PROPERTIES A (AC) A (SF) FIA (SF) IA(SF) DARIUSH H. HEIDARY, M.D. LODGE CONSTRUCTION COMPANY, INC. THE THOMAS FAMILY TRUST F&JPARTNERS FREDERICK ENTERPRISES LLC ITOTAL 4.5 196020 166816 0 10.7 466092 372874 0 1.0 43560 34848 0 2.0 87120 69696 66740 1.1 47916 38333 41300 19.30 1 840708 1 672566 1 108040 IMPERVIOUS AREA (]A)=108040 SF FOR THE EXISTING CONDITION DRAINAGE AREA AS INDICATED ON EXHIBIT 'D- FUTURE IMPERVIOUS AREA (IA) IS ESTIMATED AT 80% OF TOTAL THE DEVELOPED CONDITION Pro -Bata Cost ($/SF) = [($FDC - $DC) / (FIA - [A)] = $0.0733 Unit Costs for this estimate are based on CalHat Const, Inc Development Contract for the subject property