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2014-430ORDINANCE NO. 2O 14-430 AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SEWER MAIN PRO-RATA REIMBURSEMENT AGREEMENT BY AND BE'I'WEEN THE CITY OF DENTON, TEXAS AND PECK CONSTRUCTION, LLC FOR REIMBURSEMENT OF THE COSTS OF BUILDING A SEWER MAIN, THROUGH PRO-RATA CHARGES PAID TO THE CITY; AUTHORIZING THE TRANSFER OF FUNDS PURSUANT TO THE AGREEMENT; AND PROVIDING AN EFFECTIVE DA"TE. WHEREAS, the City of Denton, Texas requires that the development owned by Pecl< Construction, LLC ("Owner"), commonly referred to as that real property commonly I<nown as 2137 E Hickory Hill Rd., Denton, Texas 76226, Denton County, Texas (as more particularly depicted in Exhibit I, attached hereto and incorporated herein by reference) located in the City of Denton, Texas or its extraterritorial jurisdiction; and said Owner is required to provide such real property development with adequate sewer service by designing, constructing, and installing a sewer main; and WHEREAS, the City of Denton, Texas may lawfully reimburse the Owner for the costs of the eight-inch sewer main installation by the Owner based upon pro-rata charges paid to the City of Denton, Texas by persons or entities connecting to the sewer main pursuant to the Denton Development Code, Subchapter 35.21.10.1 and .2; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION l. The City Manager is authorized to execute a"Sewer Main Pro-Rata Reimbursement Agreement by and between the City of Denton, Texas and Peck Construction, LLC," (the "Agreement") to provide for the pro-rata reimbursement for the design, construction, and installation of a total of 2,936 linear feet of sewer line, being an 8-inch diameter sewer main, substantially in the form of the attached Agreement, which is incorporated herewith by reference and made a part of this Ordinance for all purposes; subject however, to Owner, Peck Construction, LLC entering into a Development Contract with the City of Denton, Texas in accordance with the Denton Development Code, Subchapter 35.16.20.B. SECTION 2. The City Manager is hereby authorized to make such expenditures and transfers of funds under such conditions as are set forth in the attached Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the � � ATTEST: JENNIFER WALTERS, CITY SECRETARY : AP ANITA BURGESS, CITY ATTORNEY �`° �°� �� 'w"�� ,, ��V � � � � 9 � a �a � � By �� .�.� �� __ ..K v _-�—r�, — _ � _ ��,_ �� .� THE STATC OF TEXAS § COUNTY OF DENTON � SEWER MAIN PRO-RATA REIMF3URSEMENT AGRECMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND PECK CONSTRUCTION. LLC WHEREAS, Peck Construction, LLC (hereafter "Developer"), whose business address is 2137 East Hicl<ory Hill Road, Argyle, Texas 76226, wishes to develop and improve real property (as shown in Exhibits 1 and 2, attached hereto and incorporated herein by reference) which is located within the extraterritorial jurisdiction of the City of Denton, Texas, and Developer is required to provide such property with adequate sewer service by designing, constructing and installing a sewer main; and WHEREAS, the City of Denton, Texas (hereafter "City"), a Texas municipal corporation, located at 215 East McKinney, Uenton, Texas 76201, in accordance with its ordinances may reimburse Developer for the cost of the sewer main installed by the Developer, based upon pro- rata charges paid to the City by persons connecting to the sewer main; NOW, THEREFORE, in consideration of their mutual promises, Developer and City agree as follows: I. Developer has designed, installed and constructed, 8- inch diameter off-site sewer main and all necessary appurtenances thereto, extending a total distance of approximately 2,936 feet ("Facilities"), located as shown on Exhibit 2, attached hereto and incorporated herein by reference. This off-site sewer main shall be subject to pro-rata reimbursement in accordance with this Agreement. 2. Prior to beginning construction of the Facilities, Developer shall obtain at Developer's sole cost and expense, all necessary permits, licenses, and easements. If easements are needed, the deeds obtained by Developer shall be reviewed and approved as to form and substance by the City prior to the beginning of construction. If Developer is unable to acquire needed the 1 easements, then Developer shall provide the City with any requested documentation of efforts to obtain such easements, including without limitation, evidence of negotiations and reasonable offers made to the affected property owners. Any easements for the Facilities obtained by the Developer shall be assigned to City, if not taken in City's name, prior to acceptance of the Facilities; and Developer warrants clear title to such easements and will defend the City against any adverse claim made against such title. 3, The cost for the design, construction, and installation of the Facilities subject to pro-rata reimbursement is: Sewer: $209,509.80 (Developer cost) or $71.36 per linear foot (2,936 linear feet of off-site Facilities) 4. Within thirty (30) days of the acceptance of the Facilities by the City, Developer shall submit to the City's Assistant City Manager of Utilities the actual cost of the Facilities. "I'o determine the actual cost of the Facilities, the City shall have the right to inspect any and all records of Developer, his agents, employees, contractors, or subcontractors and shall have the right to require Developer to submit to any necessary information, documents, invoices, receipts or other records to verify the actual cost of the Facilities. The Assistant City Manager of Utilities shall review and verify the actual cost of the Facilities and certify the allowable reimbursable cost and the date the Facilities were accepted, which certifcate shal) be attached hereto and be incorporated herein by reference. 5. After title to the Facilities has vested in the City, the City shall collect a pro-rata charge from any person or entity connecting to the off-site facilities in accordance with the provisions of the Code of Ordinances of the City. Within thirty (30) days of the receipt of pro-rata charges, the City shall transfer the applicable amount collected to Developer. 6. The City shall transfer to Developer pro-rata charges collected for a period of time for twenty (20) years only, from the date Facilities are accepted by City, as specified herein, but the City shall not transfer or reimburse to the Developer an amount of funds in excess of the certified cost of the Facilities. 7. The pro-rata charges to be collected by the City and transferred to Developer in accordance with the ordinances of the City and this Agreement are intended to reimburse the Developer for the Developer's cost of the Facilities by requiring persons or entities connecting who benefit thereby, to participate in the cost of the Facilities. This Agreement shall not be considered to impose any obligation or liability upon the City to pay for the Facilities from its general revenues, bond funds or any other revenues it may receive, except for those pro-rata funds received from persons or entities connecting to such Facilities. 8. Should any court of competent jurisdiction determine that all or a part of the City's ordinances upon which the pro-rata charges to be paid to Developer under this Agreement are based are found to be unlawful or invalid, the City may cease to charge or collect the pro-rata charges for connection to the Facilities, and shall have no further obligations hereunder. 9. 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 and to the Assistant City Manager of Utilities for the City at the address given above. ]0. The Developer shall indemnify and hold the City 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 Developer, its z officers, agents, employees, invitees, contractors or other persons with regard to the performance of this Agreement; and Developer will, at its own cost and expense, defend and protect the City against any and all such claims and demands. 1 l. This instrument embodies the whole 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. 12, Developer shall not assign this Agreement without the express written consent of the City. 13. 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 the court of competent jurisdiction in Denton County, Texas. 14. This Agreement shall be effective for a period of twenty (20) years from the date Facilities are accepted by the City, or until Developer has been paid all allowable reimbursable pro-rata charges for the Facilities, whichever occurs first; provided, however, should Developer fail to complete substantial construction of the Facilities within one year from the date of execution of this Agreement, this Agreement shall term inate. EXECUTED this the °� da of ��" '�p'"� � , 2014, �� .,d Y ��„ � "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation �,,�� w �� „� By: � �� "� ;��"� �� ..._. �� OE � � "(.;, CAM��ELL CITY MANAGER ATTESTED BY: JENNIFER WALTERS, CITY SECRETARY �� B � � �� y• � .��°�.�., .� �.,:.�� .��.�,�� , 3 APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � �� ; ��.. � � �,� ��" BY� .... � pW.... ..... :� � �::,�� k � 'wv .•�� ' �..��5� ��.�., �� ATTEST: : APPROVED AS TO LEGAL FORM: : "DEVELOPER" PECK CONSTRUCTION, LLC I� � Its