HomeMy WebLinkAboutORD 2010-34 - Dev Participation Agreement#RDINANCE
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Aft ORDIRANCE OF TAE CITT COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS ("CITY") PERTAINING TO A DEVELOPER
PARTICIPATION AGREEMENT WITH LANSDALE AUTOMOTIVE
INC, IN AN AMOUNT NOT TO EXCEED $56,314, CONTAINING
FINDINGS ,.. PROVISIONS
• O •..t,1 O THE FOREGOING
SUBJECT; AND PROVIDING A SEVERABILITY CLAUSE.
WHEREAS, the
City deems
it in the public
interests to enter into a Cost Sharing
Agreement (Developer
Participation
Agreement) with
Lansdale Automotive, Inc. in substantially
the same form as attached hereto as
Exhibit "A" in an
amount not to exceed $56,314; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
GEORGETOWN, TEXAS, THAT:
Section 1. Open Meetings Act. The meeting at which this ordinance was approved
was in all things conducted in compliance with the Texas Open Meetings Act, Texas
Government Code, Chapter 551.
Section 2. Findings. The facts and recitations contained in the preamble of this
ordinance are hereby found and declared to be true and correct and are incorporated by
reference herein and expressly made a part hereof, as if copied verbatim.
Section 3. That
the
Mayor is
authorized
to execute the Developer Participation
Agreement in substantially
the
same form
as attached
hereto as Exhibit "A", and
Section 4. Severability. If any provision of this ordinance or application thereof to any
person or circumstance shall be held invalid, such invalidity shall not affect the other provisions,
or application thereof, of this ordinance which can be given effect without the invalid provision
or application, and to this end the provisions of this ordinance are hereby declared to be
severable.
Section 5. The Mayor is hereby authorized to sign this ordinance and the City Secretary
to attest.
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PASSED AND APPROVED on First Reading on the 24 day of August, 2010.
PASSED AND APPROVED on Second Reading on the 14th day of September, 2010.
ATTEST:
s,ica Brettle"City Secretary
APPROVED AS TO FORM:
Mark Sokolow, City Attorney
THE CITY OF GEORGETOWN
By:
George Garver, Mayor
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STATE OF TEXAS
COUNTY OF WILLIAMSON
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-
COST
DEVELOPMENT OF !.
PROJECT
1. The parties to this Offsite Utility Construction Cost Sharing Agreement
For Development Of The Lansdale Project (the "Agreement") are the CITY OF
GEORGETOWN, a Texas Home Rule Municipal"Corporation (the "City"); and
LANSDALE AUTOMOTIVE, INC., a Texas Corporation ("Lansdale").
Recitals
2, WHEREAS, Lansdale is the owner of 3.54 acres of land, more or less,
being a portion of Lot 2-A and Lot 3-A, Amended Plat of Lots 1, 2 and 3, Embree
Subdivision, according to the map or plat thereof, recorded in Cabinet U, Slide
275, Plat Records of Williamson County, Texas (the "Property"); and
3. WHEREAS, Lansdale has determined that the installation of a
wastewater line is required to provide wastewater service to the Property to
allow development of the tract (the "Project"); and
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4. WHEREAS, the City has previously agreed to provide for the
installation of a 8" wastewater line as part of the annexation service plan for the
Landry Tract on the north side of SH 195 with such installation scheduled for
2010; and
5. WHEREAS, to meet the development schedule proposed by Lansdale,
the City will require Lansdale to design and construct the 8" wastewater line
("Offsite Wastewater Improvement") to service the needs of the development on
the Property and to finance the design and construction of such improvements in
accordance with this Agreement and Loc. Gov. Code, Chap. 212, Subchap. C;
and
b. WHEREAS, after considering the above factors, the City Council finds
and determines that it is appropriate to reimburse Lansdale for a portion of the
utility line extension in accordance with the terms of this Agreement; and
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7. WHEREAS, the City and Lansdale are entering into this Agreement to
more particularly set forth the rights and obligations of the City and Lansdale
with respect to the design, construction, and payment for the Offsite Wastewater
Improvement; and
8. WHEREAS, this Agreement is necessary to protect the health, safety,
and general welfare of the community and to facilitate Lansdale Is design and
construction of the Offsite Wastewater Improvement; and
9. WHEREAS, this Agreement is authorized by the City's ordinances,
regulations, and other requirements governing utility extensions and provision
of utility services to customers of Georgetown Utility Systems.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, promises, and obligations of the parties set forth in this Agreement,
the parties agree as follows:
Design and Construction of the Offsite Wastewater Improvement
10. The Offsite Wastewater Improvement consists of approximately 799
linear feet of 8" gravity sewer line and related appurtenances as shown. on
Exhibit "A" and further listed in Exhibit "B."
11. Except as otherwise provided -herein or subsequently agreed upon in
writing by the City and Lansdale, the Offsite Wastewater Improvement shall be
designed in conformance with the City's design criteria, construction standards,
and specifications for utility construction including, without limitation,
environmental protection requirements such as erosion controls and site
restoration.
12. The City shall review and approve the design drawings, which
approval shall not be unreasonably conditioned, withheld or delayed. If the
City does not approve the design drawings it will notify Lansdale of the reasons
for disapproval.
13. Lansdale shall enter into a contract for the constriction of the Offsite
Wastewater Improvement in accordance with the terms and conditions of this
Agreement and with construction plans and specifications approved by the City.
Lansdale shall execute a performance bond for the construction of the Offsite
Wastewater Improvement in the full amount of the construction contract to
ensure completion of the Project as required by Loc. Gov. Code Sec. 212.073, The
Performance Bond must be executed by a corporate surety in accordance with
Tex. Gov. Code Chap. 2253. The Performance Bond shall remain in effect for one
year after acceptance of the Offsite Wastewater Improvement by the City.
14. Lansdale shall exercise reasonable diligence to achieve final
completion, and acceptance of the Offsite Wastewater Improvement by the City,
on or before September 30, 2010,
15. A change order to the contract for construction shall require written
approval by the City and Lansdale, which neither City nor Lansdale shall
unreasonably condition, withhold or delay.
16. The City shall have the right to inspect the construction of the Offsite
Wastewater Improvement. Upon final completion of construction, Lansdale may
request that the City accept the Offsite Wastewater Improvement, which
approval shall not be unreasonably conditioned, withheld or delayed. Should
City not accept the Offsite Wastewater Improvement upon Lansdale's request,
City shall notify Lansdale of the reasons for nonacceptance.
IT The City will not accept the Offsite Wastewater Improvement
burdened by any Iien or any other encumbrance.
Payment and Reimbursement of Costs
18, The City and Lansdale have estimated the design and construction
costs for the Offsite Wastewater Improvement ("Estimated Costs"). The
Estimated Costs are set forth in Exhibit "B." The parties acknowledge that the
actual costs of design and construction ("Actual Costs") may be greater or less
than the Estimated Costs reflected on Exhibit 'B."
19. Lansdale will pay all costs associated with the design and construction
of the Offsite Wastewater Improvement. Within thirty (30) days after final
acceptance of the Offsite Wastewater Improvement by the City, Lansdale must
submit a report to the City of the Actual Costs with supporting information.
The City agrees to reimburse Lansdale 30% of total actual costs; and 100%g of total
cost of oversizing of improvements required by the city, including but not
Iimited to increased capacity of improvements to anticipate future development
in the area. The total amount of the City's participation shall not exceed $56,314
as reflected in Exhibit "C." Tex. Loc. Gov. Code Sec. 212.072. The City will
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reimburse Lansdale on October 31, 2010 or within thirty (30) days after the City
receives the report of Actual Costs with supporting information. Nothing in this
Agreement shall entitle Lansdale to be paid or reimbursed for any other costs.
Landale's books and other records related to the Project shall be made available
for inspection by the City upon the City's request.
20. The measure of damages for breach of this Agreement by City shall not
exceed the amount of $56,314. Loc. Gov. Code Sec. 212.072(d).
21. The obligation of the City to make payments under this Agreement in
any fiscal year shall constitute a current expense for that fiscal year payable
solely from the revenues of the Wastewater Capital Fund, as applicable, for that
fiscal year. The obligation of the City to make payments under this Agreement
does not constitute a general obligation or indebtedness of the City for which the
City is obligated to levy or pledge any form of taxation.
Default and Termination
22, If Lansdale does not commence or complete construction of the Offsite
Wastewater Improvement as required by this Agreement, Lansdale will be in
default and the City will have the right, in its sole discretion, to terminate this
Agreement.
23. If the City elects to terminate this Agreement, or if this Agreement
expires on its own terms before completion of the Offsite Wastewater
Improvement, Lansdale shall not be entitled to reimbursement for any costs
incurred for the Offsite Wastewater Improvement.
24, If the City elects to complete the Offsite Wastewater Improvement,
Lansdale agrees to provide all plans, designs, specifications, and other
documents related to the design and construction of the Offsite Wastewater
Improvement to the City within five (5) business days of the date that the City
requests same. If the City completes the Offsite Wastewater Improvement, the
City shall provide wastewater service to the Property but Lansdale shall not be
entitled to reimbursement for any costs incurred for the Offsite Wastewater
Improvement.
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Ownership of Facilities
25. Upon final completion and acceptance of the Offsite Wastewater
Improvement by the City, the City shall own, operate and maintain the Offsite
Wastewater Improvement. Within 30 days after final completion and
acceptance of the Offsite Wastewater Improvement Lansdale agrees to 1) execute
and deliver to the City such bills of sale, assignments, or other instruments of
transfer as the City may deem reasonably necessary; 2) deliver to the City all
bonds, warranties, guarantees, any other assurances of performance, record
drawings, easements, project manuals; and 3) deliver to the City all other
documentation related to the Offsite Wastewater Improvement. Lansdale will
have no further obligations or responsibility for the Offsite Wastewater
Improvement upon execution and delivery of the documentation, except that the
performance bond will remain in effect one year after final completion and
acceptance.
Provision of Utility Service
26. Upon final completion and acceptance of the Offsite Wastewater
Improvement, and subject to any conditions stated in this Agreement, the City
will provide wastewater utility service to the Property following applicable City
policies and ordinances. Nothing in this Agreement, however, shall be
construed to:.
a. limit, restrict, modify, or abrogate the City's governmental authority or
ordinances respecting the operation and maintenance of its wastewater
systems nor its duty to provide for the public health, safety, and welfare in
the operation and maintenance of the same; or
b. create or confer upon Lansdale, its successors or approved assigns, any
ownership rights in or monopoly regarding capacity in the Offsite
Wastewater Improvement, whether total or partial, after final acceptance
of the project by the City; or
c. create or confer upon Lansdale, its successors or approved assigns, any
manner of legal title to, equitable interest in or other claim of joint
ownership with respect to property, whether real, personal or mixed
comprising the Offsite Wastewater Improvement, after final acceptance of
the project by the City; or
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d. guarantee any particular level of service to the Property except for the
wastewater capacities and services requested by Lansdale and agreed to
by the City during the design and permitting of the Project, and which
shall be subject to Lansdale's payment of all applicable impact fees and
charges and compliance with applicable City policies and ordinances.
General Provisions
27, Other Infrastructure Improvements. Lansdale agrees that it shall
construct all other infrastructure improvements required for the Project and/or
the Property at its sole expense and in conformance with applicable City
ordinances, standards and requirements, and all other applicable laws.
28. Remedies. The remedies available under tMs Agreement and the laws
of Texas are cumulative in nature.
29. Third Party Rights. No person or entity who or which is not a party to
this Agreement shall have any right of action under this Agreement, nor shall
any person or entity other than the City (including without limitation a trustee in
bankruptcy) have any interest in or claim to the funds described in Paragraph 20
of this Agreement.
30. The City's approvalofthe-plans, -designs or specifications for --the
Offsite Wastewater Improvement shall not constitute or be deemed to be a
release of Lansdale's responsibility and liability for the accuracy and competency
of the plans, designs and specifications. The City's approval of the plans,
designs or specifications is of only the general design concept of the Offsite
Wastewater Improvement and shall not be deemed to be an assumption of any
responsibility or liability by the City for any defect or deficiency in the plans,
design or specifications
31. By submitting plans or specifications to the City for review, the
LANSDALE PARTIES (as that term is defined below) agree to waive all claims,
fully release, indemnify, and hold harmless the City, and all of its officials,
officers, agents, consultants, employees, attorneys, and invitees in both their
public and private capacities (collectively, the "CITY PARTIES") from any and all
liability, claims, lawsuits, demands or causes of action, including all expenses of
litigation and/or settlement which may arise by injury to property or person
occasioned by error, omission, intentional, or negligent act of Lansdale, its
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officers, agents, engineers, consultants, employees or I (collectively, the "
LANSDALE PARTIES") arising out of or in connection with the design or
construction of the Offsite Wastewater Improvement. The LANSDALE
PARTIES further agree that they will, at their own cost and at their own expense,
defend and protect the CITY PARTIES from any and all such claims, losses,
damages, causes of action, suits, and liability of any kind, including all expenses
of Iitigation, court costs and attorneys' fees. The LANSDALE PARTIES agree to
pay all expenses of litigation, court costs and attorneys' fees, and satisfy any
judgment, which may be incurred by or rendered against the CITY PARTIES.
32. No Waiver. No waiver of any provision of this Agreement will be
deemed or constitute a waiver of any other provision, nor will it be deemed or
constitute a continuing waiver unless expressly provided for by a written
amendment to this Agreement. No waiver of any default under this Agreement
shall be deemed a waiver of any subsequent defaults of the same type. The
failure at any time to enforce this Agreement by the City or Lansdale, whether
any violations thereof are known or not, shall not constitute a waiver or estoppel
of the right to do so.
33. Assignability. Lansdale's obligations under this Agreement may not
be assigned without the written approval of the City. An assignment shall not be
construed as releasing Lansdale from Lansdale's obligations under this
Agreement, and Lansdale's obligations under this Agreement shall continue until
the City executes and delivers to Lansdale a written release -of Lansdale from the
obligations imposed by this Agreement.
34, Notice. Any notice required or permitted by this Agreement is
effective when personally delivered in writing, or three (3) days after notice is
deposited with the U.S. Postal Service, postage prepaid, certified with return
receipt requested, and addressed as follows:
If to Lansdale: Lansdale Automotive, Inc.
3629 Williams Drive, Ste. 102
Georgetown, Texas 78628
If to City: City Manager
City of Georgetown
Box 409
Georgetown, Texas 78627
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A party may change their address for the purpose of notice under this
Agreement in accordance with the provisions of this Paragraph.
35, Severability. If any part, term, or provision of this Agreement is
determined to be illegal, invalid, or otherwise unenforceable, such illegality,
invalidity, or unenforceability shall not affect the validity of any other part, term,
or provision, and the rights of the parties will be construed as if the part, term, or
provision was never included in this Agreement.
36. Personal Jurisdiction and Venue. Personal jurisdiction and venue for
any action commenced by a party to this Agreement will be proper only if such
action is commenced in State District Court for Williamson County, Texas, or the
United States District Court for the Western District of Texas, Austin Division,
The City does not waive its defense of sovereign immunity.
37. Captions Immaterial. The numbering, order, and captions or
headings of the paragraphs of this Agreement are for convenience only and shall
not be considered in construing this Agreement.
38, Entire Agreement. This Agreement contains the entire agreement
between the parties and correctly sets forth the rights, duties, and obligations of
each to the other as of the Effective Date. Any oral representations or
modifications concerning this Agreement shall be of no force or effect. This
Agreement may be m dified only by a subsequent writing executed by both
parties.
39. Binding Agreement. The execution and delivery of this Agreement
has been duly authorized by all necessary corporate and governmental action of
the City and Lansdale. This Agreement, when duly executed and delivered by
each party, constitutes a legal, valid, and binding obligation of each party
enforceable in accordance with the terms as of the Effective Date.
40. Recording. The parties agree that this Agreement may be recorded in
the Real Property Records of Williamson County, Texas at Lansdale`s expense.
41. Further Assurances. The City and Lansdale agree to take such actions
and execute and deliver such documents as may be reasonably necessary or
appropriate to effect the provisions of this Agreement.
42. Tern -t. Unless sooner terminated under the provisions of this
Agreement, this Agreement shall expire on December 31, 2010 by its own terms
and without further notice.
43. Effective Date. This Agreement will be effective on the latest date
accompanying the signature lines below.
EXECUTED by the parties on the dates indicated below:
CITY:
CITY OF GEORGETOWN, TEXAS
By:
George G. Garver, Mayor
ATTEST:
Jessica Brettle, City Secretary
APPROVED AS TO FORM:
Mark Sokolow, City Attorney
W
LANSDALE:
LANSDA�E .A:L
By,
Alan Lansdale,
THE STATE OF TEXAS §
COUNTY OF WILLIAMSON §
This instrument was acknowledged before me on the day of
2010, by George G.
Garver, Mayor of the City of Georgetown., a Texas home rule municipal
corporation, on behalf of said City.
Notary Public in and for
the State of Texas
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
MY COM Ws' DAVIS
MM S$V)N EXPIRES
This instrument was acknowledged before me on the 044 day of
j � ""?Q10, by Alan Lansdale, President of LANSDALE AUTOMOTIVE,
INC., a Texas corporation, on behalf of said corporation.
Notary Public in and for
the State of Texas
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SITE DEVELOPMENT PLAN I1
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DIMENSIONED
IM ( R Lt�l£14KOC •i4°EtflN,Yd ijf p£j( 'm y}� Sat s
{�-1ENSI®i�N ED SITE PM/bvYOltA s(tTrYM.liCM ^s""'^""'�c�•••• TF T Wf M
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Item
Description
Size
Quantity
Unit
Unit Cost
ITotal Cost
1
Gravity Wastewater Line
8
799
If
$ _ 45.00
$ 35,955.00
2
Manholes
36
3
ea
$ 6,000.00
$ 181000.00
--~
3
Trench Safety
799
if
$ 1.00
$ 799.00
4
Revegetation
1
j ea
$ 1,200.00
$ 1,200.00
5
ITraffic Control
1
ea
$ 504.00
$ 504,00
6
Asphalt Repair
1
ea
$ 41704.00
$ 4,704.00
6
Miscellaneous
1
ea ---T-
3,000.00
$ 31000.00
Construction Subtotal
$ 64,162.00
Bonds/Mob/Demob
1
Is
$ 31000.00 j
$ 3,000.00
Overhead and Profit
1 1
is
10%j
$ 6,416.20
_
Engineering
1
Is
11000.00
$ 1,000.00
-- -- - _. -
. _.._
—
_$
Project
Total
I
74, 578.20
Exhibit C
Lansdale Wastewater City Cost Participation
Item
Unit
Total
No.
Item Description
Quantity
Unit
Cost
Cost
1
2 -inch Wastewater Line
799
LF
$
20
$
15,980
4
Trench Safety/Silt Fence
799
LF
$
1
$
799
5
Revegetation
1
EA
$
500
$
500
6
Traffic Control
1
LS
$
504
$
504
7
Asphalt Repair
1
LS
$
2,000
$
2,000
Miscellaneous
1
LS
$
300
$
300
Construction
Subtotal
$
20,083
Bonds/Mob/Demo
$
31000
Contractor Overhead & Profit
10%
$
22008
Engineering
$
1,000
Construction Total
$
28,091
Project Total
$
269091
30% of developer costs 7,827.39
Differential cost of oversizing to a 8 inch 487486.90
City Cost Participation.... 56,314.29