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2000-070AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND THE PRESERVE AT PECAN CREEK PARTNERS, LTD FOR THE CITY'S PARTICIPATION IN THE OVERSIZING OF SANITARY SEWER FORCE MAINS AND A LIFT STATION IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS ORDINANCE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City desires to participate in the cost of overslzmg samtary sewer force mares, and a lift station, to be designed, installed, and constructed by The Preserve at Pecan Creek Partners, Ltd, in an amount not to exceed One Hundred Seventy Thousand Two Dollars and ninety-seven Cents ($170,00297), in accordance with §34-118(b)(2) of the Code of Ordinances of the City of Denton, Texas and TEX LOC GOV'T CODE §212 072, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is authorized to execute a Samtary Sewer Force Mmn and Lift Statxon Cost Partlcipataon Agreement Between the City of Denton and The Preserve at Pecan Creek Partners, Ltd for the overslzlng of approximately 3,980 linear feet of on-site and 4,230 linear feet of off-site sixteen inch (16") samtary sewer force m~un, a lift station, and all necessary appurtenances thereto, substantially m the form of the attached Agreement, which is incorporated herewith and made a part of this ordinance for all purposes, subject to The Preserve at Pecan Creek Partners, Ltd, entenng into a Development Contract with the City of Denton, m accordance with Chapter 34 of the Code of Ordinances of the City of Denton, Texas SECTION 2 That the City Manager is hereby authorized to make the expenditures as set forth m the attached Agreement SECTION 3 That tlus ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the 7~'~ dayof (~t~.~'/~ ,2000 JA ATTEST JENNIFER WALTERS, CITY SECRETARY By (~~ APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY THE STATE OF TEXAS § COUNTY OF DENTON § SANITARY SEWER FORCE MAIN AND LIFT STATION COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON AND THE PRESERVE AT PECAN CREEK pARTNERS, LTD. WHEREAS, The Preserve at Pecan Creek Partners, Ltd heremafter referred to as "Developer", whose busmess address ~s 4000 West Windsor Drive, Flower Mound, Texas 75028 w~shes to develop and improve certmn real property named "THE PRESERVE AT PECAN CREEK" (as shown m Exhibit I, attached hereto and incorporated herem by reference), located m the City of Denton, Texas or its extratemtonal jurisdiction, and is required to provide such real property with adequate collection capacity by deslgmng, constructing and lnstalhng a samtary sewer fome mmn of an ~nslde diameter of twelve inches (12"), and a lift station, hereinafter referred to as the "Required Facflales", and WHEREAS, the City of Denton, Texas, a Mumc~pal Corporation with ~ts offices located at 215 East McKlnney, Denton, Texas 76201, hereafter referred to as the "C~ty, m accordance with ~ts orchnances, w~shes to partlmpate m the cost of the construction and installation of smd sanitary sewer force main and hft station to provide for an "oversized" sanitary sewer force mmn to expand Its utility system and insure adequate utility service to other customers, NOW, THEREFORE, m consideration of the mutual promises and covenants contained hereto the Developer and the C~ty AGREE as follows 1 Developer shall design, ~nstall, and construct approximately 3,980 hnear feet of on-me and 4,230 hnear feet of off-site sixteen tach ("16") force main and lift station and all necessary appurtenances thereto, hereafter referred to as the "Oversized Facilities" as shown on Exhtblt I, attached hereto and incorporated here~n by reference 2 As required by Chapter 34 of the Code of Ordinances of City of Denton, Texas, Developer will enter mto a Development Contract prior to begmmng of construction of the Oversized Faclhtles Th~s Development Contract lS attached hereto as Exlublt II and incorporated herein by reference This Agreement is subject to and governed by smd Development Contract and any other apphcable ordmances of the City of Denton, Texas 3 Prior to beginning of construction of the Oversized Facilities, Developer shall obtmn, at Developer's sole cost and expense, all necessary penmts, licenses and easements The easements, deeds, and plats therefor obtmned by Developer shall be rewewed and approved as to form and substance by City prior to the begmmng of construction If Developer is unable to acquire needed easements, Developer shall provide City with any requested documentation of efforts to obtmn such easements, mcludmg evidence of negotiations and reasonable offers made to the affected property owners Any easements for the Oversized Facilities obtmned by the Developer shall be assigned to C~ty, if not taken in City's name, prior to acceptance of the Oversized Facthtles, and Developer warrants clear t~tle to such easements and will defend C~ty agmnst any adverse clmm made agmnst such title 4 Caty's share in the cost of the Oversazed FacdlUes as based upon the d~fference m the cost Qf installing Reqmred Factht~es, as determaned by C~ty, and the cost of the Oversazed Facdltaes, as determined by City, shall be m an amount not to exceed One Hundred Seventy Thousand Two Dollars and mnety-seven Cents ($170,002 97) C~ty may elect one of the followmg methods to determine City's share of the cost a) Developer shall prepare plans and specfficataons and fummh them to C~ty C~ty shall competmvely bad the reqmred line and the Oversized Facallt~es an accordance wath Chapter 252 of the Texas Local Government Code The d~fference m the bads shall be used to determine the C~ty's share, subject to Caty's maxamum pammpataon in cost as specffied an thas Agreement, or b) Developer shall prepare plans and spec~ficataons and take bads on the mqmred lane and the Oversazed Facfl~taes Caty shall pay Developer the least amount of the following (1) The difference ~n the bads for the reqmred lane and the Oversazed Facfimes, or (2) Thirty percent (30%) of the b~d on the Oversazed Facflat~es as provaded for an §212 072 of the Texas Local Government Code or (3) $170,002 97, the maxamum part~c~patmn cost allowed hereto The C~ty shall not, m any case, be hable for any addat~onal cost because of delays ~n begmmng, contmmng, or completmg construction, changes an the price or cost of materials, supphes, or labor, unforeseen or unant~capated cost because of topography, soft, subsurface, or other s~te condat~ons, dafferences m the calculated and actual per hnear feet of pape or materials needed for the Oversazed Facd~taes, Developer's decas~on as to the contractors or subcontractors used to perform the work, or any other reason or cause, specffied or unspecffied, relating to the constmctaon of the Oversazed Famht~es 5 The Caty wall make monthly payments for ats share of the Oversized Famlltaes The Developer shall submat monthly pay requests on forms provided by the Caty The Developer's engineer shall verify that each pay request as correct Each pay request, along w~th the engineer's venficataon, shall be submitted to the Engmeenng & Transportataon Department of the Caty The Caty wall retmn 10% of the total dollar amount until the project as accepted Payment by the City to the Developer wall be made watlun thirty (30) days of receapt of the pay estimate and the engineer's venficaUon 6 To determine the actual cost of the Oversized Factht~es, C~ty shall have the right to ~nspect any and all records of Developer, has agents, employees, contractors or subcontractors, and shall have the right to require Developer to submat any necessary ~nformat~on, documents, ~nvomes, receapts or other records to verify the actual cost of the Oversized Faethtles 7 All notaces, payments or commumcataons to be gaven or made pursuant to this Agreement by the part,es hereto, shall be sent to Developer at the busaness address gaven above and to the Assastant Caty Manager for Utilities for C~ty at the address g~ven above 8, Developer shall lndemmfy and hold City harmless from any and all claims, damages, loss or liability of any kind whatsoever, by reason of injury to property or person occasaoned by any act or omission, neglect or wrongdoing of Developer, its officers, agents, employees, lnvltees, contractors or other persons with regard to the performance of fins Agreement, and Developer shall, at tts own cost and expense, defend and protect City against any and all such claims and demands 9 If Developer does not begin substantial construct,on of the Oversized Faclhtles within twelve (12) months of the effective date of execution of this Agreement, thas Agreement shall terminate 10 This mstrttrnent embodies the entire agreement of the parties hereto and there are no promises, terms, conditions or obligations other than those contmned or incorporated herein Tlus Agreement shall supersede all previous communications, representations or agreements, whether verbal or written, between the parties hereto with respect to the subject matter ofthts Agreement 11 Tbas Agreement shall not be assigned by Developer without the express written consent of the City 12 Any and all stats for any breach of this Agreement, or any other stat pertalmng to or arising out of tins Agreement, shall be brought in a court of competent 3unsdlctlon in Denton County, Texas This Agreement shall be governed by and construed in accordance with the,laws of the State of Texas EXECUTED in duplicate original eounterp~,ar~t~s~by the duly-authorized o.fficlals and officers of the City and the Developer, on this the '/Un- day of ~/~ ~ , 2000 ~ CITY OF DENTON, TEXAS A Texas Municipal Corporation ATTEST JENNIFER WALTERS, CITY SECRETARY APPROyED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY "DEVELOPER" THE PRESERVE AT PECAN CREEK PARTNERS, LTD ATTEST S \Our Documonts\Contracts\OO~Samtary Swr Force Mn & LS Cost Pamc]p Agrmt Preserve(~Pecan doc