2008-189ORDINANCE NO. 2008-
AN ORDINANCE OF THE CITY COUNCIL OF DENTON, TEXAS AUTHORIZING THE
CITY MANAGER TO EXECUTE A WASTEWATER MAIN PRO-RATA
REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND
DBSI LANSDOWNE I, L.P. FOR REIMBURSEMENT OF THE COSTS OF BUILDING A
WASTEWATER MAIN, THROUGH PRO-RATA CHARGES PAID TO THE CITY;
AUTHORIZING THE TRANSFER OF FUNDS PURSUANT TO THE AGREEMENT; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Denton, Texas requires that the development owned by DBSI
Lansdowne I, L.P. ("Owner"), commonly referred to as that real property commonly known as
Spencer Square, 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 with
adequate wastewater service by designing, constructing, and installing a wastewater main; and
WHEREAS, the City of Denton, Texas may lawfully reimburse the Owner for the costs
of the 8, 10 and 12-inch wastewater main installation by the Owner based upon pro-rata charges
paid to the City of Denton, Texas by persons connecting to the wastewater 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 1. That the City Manager is authorized to execute a Wastewater Main Pro-
Rata Reimbursement Agreement Between the City of Denton, Texas and DBSI Lansdowne I,
L.P. (the "Agreement") to provide for the pro-rata reimbursement for the design, construction,
and installation of a total of 4,478 linear feet of wastewater line, being a 8, 10 and 12-inch
diameter wastewater 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 the Owner, entering into a Development Contract with the City of Denton, Texas in
accordance with the Denton Development Code, Subchapter 35.16.20.
SECTION 2. That 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. That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED this the l9 day of 2008.
M B , MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By: %J~ANA 1 J
APPROVED AS TO LEGAL FORM:
JOHN M. KNIGHT, INTERIM CITY ATTORNEY
By:
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STATE OF TEXAS §
COUNTY OF DENTON §
SEWER MAIN PRORATA REIMBURSEMENT
AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS
AND DBSI LANSDOWNE I, L. P.
WHEREAS, DBSI Lansdowne I, L.P., a Texas Limited Partnership ("Developer"),
whose business address is 5207 McKinney Ave., Suite 12, Dallas, Texas 75205 wishes to
develop and improve certain real property named "Spencer Square" (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 Developer is required to provide
such property with adequate sewer service by designing, constructing, installing, and
extending a sewer main; and
WHEREAS, the City of Denton, Texas ("City") is a municipal corporation, and a
home-rule with its main offices located at 215 East McKinney Street, Denton, Texas 76201;
and in accordance with the provisions of Sections 35.21.10.1 and 35.21.10.2 of the Denton
Development Code, may reimburse Developer for the costs of the sanitary sewer main
designed, constructed, installed, and extended by Developer based upon prorata charges paid
to the City by persons connecting to the sewer main:
NOW, THEREFORE, in consideration of their mutual promises, Developer and City do
hereby AGREE as follows:
1. Developer has designed, constructed, installed, and extended 1,774 linear feet
of 8-inch sewer main, 1,500 linear feet of 10-inch sewer main, 926 linear feet of 12-inch
sewer main, and dual pipe siphon and all necessary appurtenances thereto, hereafter referred
to as the "Facilities," located as shown on Exhibit I, attached hereto and incorporated herein
by reference. These off-site sewer mains shall be subject to prorata reimbursement to the
Developer 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 therefor 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 easements, Developer shall provide City with any
requested documentation of its efforts to obtain such easements, including 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 City against any adverse claim made against such title.
3. The actual cost of the design, construction, installation, and extension of the
Facilities subject to prorata reimbursement is Two Hundred Fifteen Thousand Eight Hundred
Twenty Six ($215,826) Dollars, or $48.20 per linear foot for 1,774 linear feet of 8-inch, 1,500
linear feet of 10-inch and 926 linear feet of 12-inch off-site sanitary sewer mains.
4. Within thirty (30) days of the acceptance of the Facilities by the City,
Developer shall submit to the City's Assistant City Manager for Utilities the actual cost of the
Facilities. To 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 any necessary information,
documents, invoices, receipts or other records to verify the actual cost of the facilities. The
Assistant City Manager for 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
certificate shall be attached hereto and be incorporated herein by reference.
5. After title to the Facilities have vested in the City, the City shall collect a
prorata charge from any person connecting to the off-site facilities in accordance with the
provisions of the Code of Ordinances of the City of Denton. Within thirty- (30) days of the
receipt of prorata charges the City shall transfer such amount collected to Developer.
6. The City shall transfer to Developer prorata charges collected for a period of
time of twenty (20) years from the date the Facilities are accepted by City, as specified
herein; but shall not transfer or reimburse to the Developer an amount of funds in excess of
the certified cost of the Facilities.
7. The parties hereto recognize that the Facilities subject to this Agreement are
necessary to provide sewer service to the Developer's property. The pro-rata charges to be
collected and transferred to Developer shall be based on the terms of this Agreement, as
through the Facilities subject to this Agreement were installed.
8. The prorata 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 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 connecting to such Facilities.
9. Should any court of competent jurisdiction determine that all or part of the
City s ordinance on which the prorata 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
prorata charges for connection to the Facilities and will have no further obligation hereunder.
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 provided
above and to the Assistant City Manager for of Utilities, for the City at the address provided
above.
11. The Developer shall indemnify and agrees to hold the City harmless from any
and all claims, damages, losses or liabilities of any kind whatsoever, by reason of injury to
property or person occasioned by any act or omission, neglect or wrongdoing of Developer,
its 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.
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12. This instrument embodies the whole Agreement of the parties hereto and there
are promises, terms, conditions, or obligations other than those contained herein. This
Agreement shall supersede all previous communications, understandings, representations or
agreements, either verbal or written, between the parties hereto regarding the subject matter
of this Agreement.
13. Developer shall not assign this Agreement without the express written consent
of the City.
14. 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. This Agreement shall be governed by, and construed
in accordance with the laws of the State of Texas.
15. This Agreement shall be effective for a period of twenty (20) years from the
date the Facilities are accepted by City, or until Developer has been paid all allowable
reimbursable prorata charges for the Facilities, whichever occurs first; provided, however,
should Developer fail to begin substantial construction of the Facilities within one (1) year
from the date of execution of this Agreement, this Agreement shall terminate.
SIGNED this the lg4tday of '2008.
"CITY"
CITY OF DENTON, TEXAS
By:
GEOR E C. CAMPBE L
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
JOHN M. KNIGHT, INTERIM CITY ATTORNEY
By:t- K' I ~
"DEVELOPER"
DBSI LANSDOWNE I, LP,
A Texas Limited Partnerships
By: DBSI Denton Court LLC
Its: General Partner
By: DBS edelo ent Services LLC
Its: Member I,
ATTEST:
By:
By:
vid Swenson, Assistant Secretary
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EXHIBIT 1