2004-211S:\Our Documents\Ordinances\04\Windjammer Pro Rata Approval.doc
O= ANCE NO. d
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 tree 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 6~ 7~-//~ day of (/~/~- ,2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO FORM:
Page 2
S:\Our Documents\Contracts\04\Pro-Rata Agreement-Windjammer-6-23-04.DOC
PRO RATA REIMBURSEMENT AGREEMENT
FOR
DRAINAGE IMPROVEMENTS
WHEREAS, Windjammer, Ltd., a Texas limited parmership ("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 nmoff 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 Rata Charge at the time of final plat or building permit,
from upstream Property Owners, based upon a formula that calculates surface water mn-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:
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".
S:\Our Documents\Contracts\04~Pro-Rata Agreement-Windjammer-6-23-04.DOC
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.
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.
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.
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-Windjarnraer-6-23-04.DOC
10.
This Agreement is subject to the Drainage Pro Rate Ordinance.
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 ~om 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.
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 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.
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.
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.
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\Contcacts\04\Pro-Rata Agreement-Windjaramer-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 rata 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 ~day of (_~fj~' ,2004 (the "Effective
Date"). b' ~
CITY OF DENTON, TEXAS
Michael A. Conduff, Ci~-~ager
Page 4 of 5
S:\Our Documents\Contmcts\04Xl'ro-Rata Agreement-Windjammer-6-23-04. DOC
ATTESTED BY:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
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~
Page 5 of 5
Exhibit A
DAR~LISH H. h'~DARY, U.O. LODGE CONSTRUCTION COUPANY, INC.
VOL. 29~O, PG. 28? VOL, 1429, PC.. 156
D~.D.C.T. DJ~D.C.T.
ZONED RCC-D ZONED RCC-D
i
"EXHIBIT C"
UPSTREAM EXISTING DEVELOPMENT CONDITIONS - DRAINAGE COST ($DC)
APPROXIMATE UNIT TOTAL
DESCRIPTION UNIT QUANTITY PR/CE AMOUNT
STORM SEWER SYSTEM
33" R.C.P. LF 215 $59.00 $12,685.00
48" R.C.P. LF 119 $92.00 $10,948.00
4' X 4' BOX CULVERTS LF 173 $135.23 I
$23,394.59
TOTAL DRAINAGE COST ($DC) $47,027.59
UPSTREAM PRopOsED DEVELOPMENT CONDITIONS * FUTURE DRAINAGE COST ($FDC)
APPROXIMATE
DESCRIPTION UNIT QUANTITY
STORM SEWER SYSTEM
7' X 4' BOX CULVERT LF 292
~' X 4' BOX CULVERT LF 215
I'OTAL FUTURE DRAINAGE COST
UNIT
PRICE
TOTAL
AMOUNT
FUTURE DRA NAGE COST SFDC
$185,00 $54,020,00
$160.00
$34,400.00
$88,420.00
$47,027.59 I
$88,420,00
TOTAL ESTIMATED OVERSIZED COSTS ($FDC -$OC) $41,392.41
AFFECTED PROPERTIES A (AC) A (SF) FIA (SF) IA (SF)
3ARIUSH H. HEIDARY, M.D~ 4.5 196020 156816 0
.ODGE CONSTRUCTION COMPANY, INC, t0.7 4~6092 372874 0
rile THOMAS FAMILY TRUST 1.0 43560 34848 0
=&J PARTNERS 2.0 87120 69696 66740
=REDERICK ENTERPRISES LLC 1.1 47916 38333 41300
FOTAL 19.30 840708 672566 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 ,o OF TOTAL THE DEVELOPED CONDITION
Pro-Rata Cost ($1SF) = [($FDC - SDC) / (FIA - IA)] = $0.0733
Unit Costs for this estimate are based on CalHar Cons~, Inc Develop~'nent Contract for the subject property
Exhibit D