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HomeMy WebLinkAboutAgenda_GUS_02.18.2015Notice of Meeting for the Georgetown Utility System Advisory Board -- Special Meeting of the City of Georgetown February 18, 2015 at 2:00 PM at Georgetown Municipal Complex, 300-1 Industrial Avenue, Georgetown TX The City of Georgetown is committed to compliance with the Americans with Disabilities Act (ADA). If you require assistance in participating at a public meeting due to a disability, as defined under the ADA, reasonable assistance, adaptations, or accommodations will be provided upon request. Please contact the City at least four (4) days prior to the scheduled meeting date, at (512) 930-3652 or City Hall at 113 East 8th Street for additional information; TTY users route through Relay Texas at 711. SPECIAL MEETING Regular Session (This Regular Session may, at any time, be recessed to convene an Executive Session for any purpose authorized by the Open Meetings Act, Texas Government Code 551.) A Call to Order The Board may, at any time, recess the Regular Session to convene in Executive Session at the request of the Chair, a Board Member, the City Manager, Assistant City Manager, General Manager of Utilities, City Council Member, or legal counsel for any purpose authorized by the Open Meetings Act, Texas Government Code Chapter 551, and are subject to action in the Regular Session that follows. Legislative Regular Agenda B Consideration and possible recommendation to execute an Offsite Wastewater Improvement Cost Sharing Agreement between the City and Georgetown Logistics, LLC. -- Glenn W. Dishong, Utility Director Adjournment CERTIFICATE OF POSTING I, Jessica Brettle, City Secretary for the City of Georgetown, Texas, do hereby certify that this Notice of Meeting was posted at City Hall, 113 E. 8th Street, a place readily accessible to the general public at all times, on the ______ day of __________________, 2015, at __________, and remained so posted for at least 72 continuous hours preceding the scheduled time of said meeting. ____________________________________ Jessica Brettle, City Secretary City of Georgetown, Texas Utility System Advisory Board February 18, 2015 SUBJECT: Consideration and possible recommendation to execute an Offsite Wastewater Improvement Cost Sharing Agreement between the City and Georgetown Logistics, LLC. -- Glenn W. Dishong, Utility Director ITEM SUMMARY: The Pecan Branch Project being developed by Georgetown Logistics, LLC requires the extension of wastewater infrastructure from the Pecan Branch Interceptor to the project boundary. The project also requires the design and construction of an onsite wastewater collection main for use by the neighboring property. This agreement facilitates the design and construction of both collection mains by the City, with Georgetown Logistics reimbursing the City for potential oversizing of the on-site collection main. FINANCIAL IMPACT: Project will be paid out of Wastewater Capital Improvements Fund. The precise cost of the project has not been determined, but is estimated to be approximately $500,000.00. SUBMITTED BY: Glenn W. Dishong, Utility Director ATTACHMENTS: Description Type Pecan Branch Wastewater DRAFT Agreement Backup Material C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 1 of 12 STATE OF TEXAS § OFFSITE UTILITY § CONSTRUCTION AND § COST REIMBURSEMENT AGREEMENT § FOR THE § PECAN BRANCH COUNTY OF WILLIAMSON § WASTEWATER IMPROVEMENTS The parties to this Offsite Utility Construction and Cost Reimbursement Agreement for the Pecan Branch Wastewater Improvements (the "Agreement") are the CITY OF GEORGETOWN, a Texas Home Rule Municipal Corporation (the "City''); and Georgetown Logistics, LLC, a Texas limited liability company ("Georgetown Logistics"). I. RECITALS A. WHEREAS, Georgetown Logistics owns or has development control of certain real property legally described and depicted on Exhibit A; and B. WHEREAS, City has determined that the property is currently predominantly open and undeveloped because of the lack of wastewater and transportation infrastructure improvements, and substantially impairs the sound growth of the City; and C. WHEREAS, the City's Unified Development Code ("Code") requires that Georgetown Logistics extend wastewater lines that satisfy the City's current Wastewater Master Plan and the needs for the Georgetown Logistics Properties at Georgetown Logistic’s expense; and D. WHEREAS, Georgetown Logistics intends to develop the Georgetown Logistics Properties as a mix of single-family residential, multifamily residential, commercial, retail, and employment center development, and the level of wastewater service necessary to serve the Georgetown Logistics Properties is XXX MGD, referred to hereinafter as the "Wastewater Service Commitment"; and E. WHEREAS, the City has determined that construction of an XX” wastewater gravity collection main is needed to provide the Wastewater Service Commitment, the entire length of which is referred to herein as the "Georgetown Logistics Interceptor," which Georgetown Logistics Interceptor is depicted on Exhibit C; and F. WHEREAS, Georgetown Logistics is required to fund and construct all onsite wastewater improvements to serve the development with the minimum size of wastewater gravity main being 8”; and C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 2 of 12 G. WHEREAS, the City has determined that construction of an XX” on-site wastewater gravity collection main through the Georgetown Logistics Property is needed to provide service to the Moore Tract, with the size of the Moore Interceptor being greater than the minimum 8”, and such increase in size is above the need for the Georgetown Logistics Property, the entire length of which is referred to herein as the “Moore Interceptor Oversizing,” which Moore Interceptor Oversizing is depicted on Exhibit D; and H. WHEREAS, the Georgetown Logistics Interceptor and Moore Interceptor Oversizing are referred to herein as "Wastewater Improvements," are intended to serve various properties in the area; and I. WHEREAS, City has agreed to design and construct the Wastewater Improvements in accordance with the terms of this Agreement; and J. WHEREAS, after considering the factors set forth in Section 13.09 of the City's Unified Development Code and Chapter 13.10 of the City’s Code of Ordinances, and in order to facilitate desirable development within the Zone as allowed by Chapter 311 of the Texas Tax Code, the City Council hereby finds and determines that it would be appropriate to construct the Wastewater Improvements in accordance with the terms and conditions of this Agreement; and K. WHEREAS, the City and Georgetown Logistics are entering into this Agreement to more particularly set forth the rights and obligations of the City and Georgetown Logistics with respect to the design, construction, and payment for the Wastewater Improvements and other consideration granted by Georgetown Logistics for such reimbursement; and L. WHEREAS, this Agreement is necessary to protect the health, safety, and general welfare of the community and to limit the harmful effects of substandard subdivisions; to facilitate City's construction of the Wastewater Improvements; and M. WHEREAS, this Agreement is authorized by and consistent with state law and the City's other ordinances, regulations, and other requirements governing development of subdivisions 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 by the parties set forth in this Agreement, the parties agree as follows: II. WASTEWATER IMPROVEMENTS 1. Notice. Georgetown Logistics shall provide City of notice in writing to proceed with design of the Wastewater Improvements after closing on the Property. C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 3 of 12 2. Design. The City shall design or cause to be designed the Wastewater Improvements to provide the Wastewater Service Commitment to the Property, and the Moore Interceptor shall be designed such that capacity is available to the Moore Tract. 3. Easements. Georgetown Logistics shall convey to City, in a form acceptable to the City, the on-site and off-site easements in conformance with the design of the Wastewater Improvements within thirty (30) days of notice by the City in writing. Permanent Easements width shall be at least one-and-one-half the depth of the wastewater line subject to a minimum of 15 feet plus a temporary construction easement of the same width. 4. Bidding. City shall competitively bid the construction of the Moore Interceptor such the differential cost of the design size and the minimum size (8”) may be determined. 5. Construction. City shall cause to be constructed the Wastewater Improvements. Such construction shall be substantially complete at a date that is no later than nine (9) months after the date of easement conveyance by Georgetown Logistics to the City. 6. Payment of Moore Interceptor Cost. Georgetown Logistics shall be responsible to reimburse the City for the cost of the Moore Interceptor Oversizing at the minimum size (8”) bid received as part of the bidding process. Payment for such cost is due within thirty (30) days of invoice date by the City with such invoice date being after the date of substantial completion. 7. Inspections. The City shall have access to the Wastewater Improvements and the right to inspect same. 8. No Liens. Georgetown Logistics shall have no right to place liens on any property or improvement required by this Agreement to be conveyed to the City, and shall not permit any liens to be placed against them. Georgetown Logistics acknowledges that the City will not accept any property required by this Agreement to be transferred or conveyed to the City burdened by any lien. Notwithstanding the generality of the foregoing, however, the City acknowledges that, prior to final completion of the Wastewater Improvements the land upon which said improvements are to be situated may be subject to the deed of trust lien benefitting one or more lenders; however, Georgetown Logistics acknowledges and agrees that all deed of trust or other liens shall be released as to any deed or subordinated as to any easement on or before the date of conveyance to the City. (As used in this Agreement, the term “lien” refers to a monetary encumbrance. III. OTHER OBLIGATIONS OF GEORGETOWN LOGISTICS C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 4 of 12 9. Electric Service. Georgetown Logistics shall cause electric service to the Georgetown Logistics Properties within the City's electric service area to be received solely from the City of Georgetown and no other electric service provider. IV. FORCE MAJEURE 10. Definitions. The term "force majeure" means any act or event, whether foreseen or unforeseen, that meets all of the following tests: a. The act or event prevents a party (the "Nonperforming Party"), in whole or in part, from: (i) timely performing its obligations under this Agreement; or (ii) satisfying any conditions precedent to the other party's (the "Performing Party's") obligations under this Agreement; and b. The act or event is beyond the reasonable control of and not the fault of the Nonperforming Party, and c. The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of reasonable diligence; and d. The act or event does not include economic hardship, changes in market conditions, or unavailability of labor, equipment or supplies. 11. Report of a Force Majeure Event. No later than five (5) business days after becoming aware of the occurrence of an event of force majeure, the Nonperforming Party shall furnish the Performing Party with a written report describing the particulars of the occurrence, including an estimate of its expected duration and probable impact on the performance of the Nonperforming Party's obligations under this Agreement. 12. Resumption of Performance. When the Nonperforming Party is able to: a. resume performance of its obligations under this Agreement, or b. satisfy the conditions to the Performing Party's obligations, c. it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement. C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 5 of 12 13. Termination. If any suspension of performance continues for a period of one hundred eighty (180) consecutive days as a result of a Force Majeure Event, either party is entitled to terminate this Agreement by giving notice to the other party pursuant to the Notice provisions of this Agreement. 14. Exclusive Relief. The relief offered by Article VI of this Agreement is the exclusive relief available to the Performing Party with respect to a Force Majeure Event, provided, however, that the Nonperforming Party may assert the common law defenses of impossibility and impracticability with respect to any Force Majeure Event and any event or act that might be deemed a force majeure event under the common law. V. DEFAULT AND TERMINATION 15. GEORGETOWN LOGISTICS Events of Default. Georgetown Logistics shall be in default under this Agreement if one or more of the following events occurs (each a "Georgetown Logistics Event of Default") and is not cured within fifteen (15) business days of receipt of written notice of default from the City to Georgetown Logistics, subject to extension if Georgetown Logistics is diligently pursuing a cure of such default (the "Georgetown Logistics Cure Period"): a. Georgetown Logistics fails to convey the Easements necessary for the construction of Wastewater Improvements when and as required by this Agreement; or b. Georgetown Logistics fails to cause the City of Georgetown to be the sole provider of electric services to the Georgetown Logistics Properties. c. Georgetown Logistics fails to make timely payment for the Moore Interceptor Oversizing as required by this Agreement. 16. City Remedies for Georgetown Logistics Event of Default. The remedies for a Georgetown Logistics Event of Default following the notice and Georgetown Logistics Cure Period described above are set forth below: a. For a Georgetown Logistics Event of Default described in Paragraph 15(a) of this Agreement, relating to failure to convey easements, the following provisions shall apply: i. The City shall have no obligation to construct the Wastewater Improvements; and ii. The City shall have no obligation to provide the Wastewater Service Commitment to the Georgetown Logistics Properties; and C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 6 of 12 b. For Georgetown Logistics Events of Default described in Paragraph 15(b) of this Agreement related to the provision of electric services, the following provisions shall apply: i. The City shall have no obligation to construct the Wastewater Improvements; and ii. The City shall have no obligation to provide the Wastewater Service Commitment to the Georgetown Logistics Properties. iii. If the City has begun the process of designing or constructing the Wastewater Improvements, then Georgetown Logistics shall reimburse the full cost of Wastewater Improvements made by the City to serve the Georgetown Logistics Properties including the cost of the Georgetown Logistics Interceptor and the Moore Interceptor Oversizing. c. For Georgetown Logistics Events of Default described in Paragraph 15(c) related to reimbursement of the City for the Moore Interceptor Oversizing, the City shall have the right to request a court to order to compel specific performance of the provisions of Paragraph 15(c). 17. Events of Default. The City shall be in default under this Agreement if one or more of the following events occurs (each a "City Event of Default") and is not cured within fifteen (15) business days of receipt of written notice of default from Georgetown Logistics to the City, subject to extension if the City is diligently pursuing a cure of such default (the "City Cure Period"): a. The City fails to substantially complete the Wastewater Improvements by the deadline specified in this Agreement; or 18. Georgetown Logistics Remedies for City Event of Default. The remedies for a City Event of Default following the notice and City Cure Period described above are limited to those set forth below as to the applicable paragraph only: a. If a City Event of Default described in Paragraph 17 occurs, then Georgetown Logistics shall have the right to pursue all legal and equitable remedies available to Georgetown Logistics. VI. PROVISION OF WASTEWATER SERVICE C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 7 of 12 19. There is hereby allocated to the Georgetown Logistics Properties a capacity interest in the Offsite Wastewater Improvements in the amount of the Wastewater Service Commitment. The City shall provide sufficient capacity in the Offsite Wastewater Improvements to allow the Georgetown Logistics Property to purchase LUEs (by paying impact fees through the development and platting process) commensurate with the Wastewater Service Commitment. Provided, however, if a Georgetown Logistics Property within the City's electric service area has not caused the City of Georgetown to be the sole provider of electric services, any capacity interest in the Wastewater Improvements shall be forfeited. 20. This Agreement shall not be construed to create or confer upon Georgetown Logistics, or its successors or 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 Wastewater Improvements, after final completion of the project by the City. From and after final acceptance by the City of the Wastewater Improvements, the City shall own, operate and maintain same. 21. This Agreement shall not be construed to guarantee any particular level of service to the Georgetown Logistics Properties except for the Wastewater Service Commitment set forth on Exhibit B, which shall be subject to each property owner's payment of all applicable impact fees and charges, and compliance with applicable City policies and ordinances. 22. This Agreement will not be construed to 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. VII. GENERAL PROVISIONS 23. Remedies. The remedies available under this Agreement and the laws of Texas are not cumulative in nature, and in no event shall a party be liable for special or consequential damages of any kind. In the event any party shall bring any action or proceeding for any alleged breach of any provision hereof, or to enforce, protect, or establish any right or remedy of a party hereunder, the substantially prevailing party shall be entitled to recover as part of, or incident to, such action or proceeding, all reasonable attorneys' fees, expert witness fees and other costs and expenses in an amount as awarded by the court and not a jury. 24. 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. C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 8 of 12 25. No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create any partnership or joint venture among parties. The City past, present, and future officers, elected officials, employees and agents of the City do not assume any responsibilities or liabilities to any third party in connection with the design, construction or operation of the Wastewater Improvements. 26. 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; nor will the waiver of any default under this Agreement be deemed a waiver of any subsequent defaults of the same type. The failure at any time to enforce this Agreement or covenant by the City, Georgetown Logistics, or their respective members, successors or assigns, whether any violations thereof are known or not, shall not constitute a waiver or estoppels of the right to do so. 27. Assignability. Except as otherwise provided herein, this Agreement is binding upon Georgetown Logistics, and the successors and assigns of Georgetown Logistics. Georgetown Logistics’ obligations under this Agreement may not be assigned without the express written approval of the City. 28. 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 Georgetown Logistics: Georgetown Logistics, LLC Attn: Randy Mongold P.O. Box XXX Georgetown, Texas 78628 (512) XXX-XXXX With a copy to: If to City: City Manager City of Georgetown P.O. Box 409 Georgetown, Texas 78627 With a copy to: C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 9 of 12 City Attorney City of Georgetown P.O. Box 409 Georgetown, Texas 78627 29. Change of Address for Notice. The parties may, from time to time, change their respective addresses listed above to any other location in the United States for the purpose of notice under this Agreement. A party's change of address shall be effective when notice of the change is provided to the other party in accordance with the provisions of Paragraph 56, above. 30. Severability. If any part, term, or provision of this Agreement is held by the courts 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 part of this Agreement. 31. Personal Jurisdiction and Venue. Personal jurisdiction and venue for any civil action commenced by any party to this Agreement will be deemed to be proper only if such action is commenced in District Court of Williamson County, Texas, or the United States District Court for the Western District of Texas, Austin Division. 32. 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. 33. Entire Agreement. This Agreement, the Exhibits, and the Escrow Agreement contain the entire agreement between the parties and correctly set 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 excepting a subsequent written modification executed by both parties. 34. Representations and Warranties. Georgetown Logistics represents and warrants to the City that the following representations and warranties are true as of the Effective Date: a. Georgetown Logistics is a limited liability company validly existing under the laws of the State of Texas and is duly qualified to do business in the State of Texas; and that the person executing this Agreement on behalf of Georgetown Logistics is authorized to enter into this Agreement. b. Georgetown Logistics has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder and the transactions contemplated hereby. This Agreement has been, and the documents C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 10 of 12 contemplated hereby will be, duly executed and delivered by Georgetown Logistics and constitute Georgetown Logistics’ legal, valid and binding obligations enforceable against Georgetown Logistics in accordance with their terms. The consummation by Georgetown Logistics of the transactions contemplated hereby is not in violation of or in conflict with, nor does it constitute a default under, any term or provision of the organizational documents of Georgetown Logistics, or any of the terms of any agreement or instrument to which Georgetown Logistics is a party, or by which Georgetown Logistics is bound, or of any provision of any applicable law, ordinance, rule or regulation of any governmental authority or of any provision of any applicable order, judgment or decree of any court, arbitrator or governmental authority. c. No consent, approval, order or authorization of, or declaration or filing with any governmental authority is required on the part of GEORGETOWN LOGISTICS in connection with the execution and delivery of this Agreement or for the performance of the transactions herein contemplated by the respective parties hereto. d. There are no pending or, to the best knowledge of Georgetown Logistics, threatened, judicial, municipal or administrative proceedings, consent decree or, judgments which might affect Georgetown Logistics’ ability to consummate the transaction contemplated hereby. e. To the best knowledge of Georgetown Logistics, no preliminary or permanent injunction or other order, decree, or ruling issued by a governmental entity, and no statute, rule, regulation, or executive order promulgated or enacted by a governmental entity, shall be in effect which restrains, enjoins, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement. 35. Binding Agreement. The execution and delivery of this Agreement and the performance of the transactions contemplated thereby have been duly authorized by all necessary corporate and governmental action of the City and Georgetown Logistics. 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. 36. Recording. The parties agree that this Agreement shall be recorded in the Deed Records of Williamson County, Texas at the sole expense of Georgetown Logistics. 37. Further Assurances. The City and Georgetown Logistics 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. C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 11 of 12 38. Effective Date. This Agreement will be effective on the latest date accompanying the signature lines below of the City and Georgetown Logistics (the "Effective Date"). [Remainder of page intentionally blank. Signature and acknowledgment pages follow.] C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 12 of 12 EXECUTED by the parties on the dates indicated below: CITY OF GEORGETOWN, TEXAS (“CITY”) By: Printed Name: Dale Ross Title: Mayor Date: Attest: Jessica Brettle, City Secretary Approved as to Form: Bridget Chapman, City Attorney THE STATE OF TEXAS § § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the _____ day of ____________, _____, by Dale Ross, Mayor of the City of Georgetown, Texas, on behalf of the City. _______________________________________ Notary Public – State of Texas C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Page 13 of 13 GEORGETOWN LOGISTICS, LLC, a Texas limited liability company (“Georgetown Logistics”) By: Name: Its: Authorized Member Date: ______________________________ THE STATE OF TEXAS § § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on the _____ day of ____________, _____, by Randy Mongold as the authorized representative of the Georgetown Logistics, LLC. _______________________________________ Notary Public – State of Texas C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS EXHIBIT LIST Exhibit A Georgetown Logistics Property Exhibit B Georgetown Logistics Interceptor Exhibit C Moore Interceptor Exhibit D Form of Easements ( permanent, temporary, and access) C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS EXHIBIT A TO OFFSITE UTILITY CONSTRUCTION COST REIMBURSEMENT AGREEMENT FOR THE GEORGETOWN LOGISTICS WASTEWATER IMPROVEMENTS The GEORGETOWN LOGISTICS Properties The GEORGETOWN LOGISTICS Properties comprise that certain area consisting of multiple tracts of land to be served by the Wastewater Improvements as legally described and depicted below: [ATTACHED] C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS EXHIBIT B TO OFFSITE UTILITY CONSTRUCTION COST REIMBURSEMENT AGREEMENT FOR THE GEORGETOWN LOGISTICS WASTEWATER IMPROVEMENTS Wastewater Service Commitment for GEORGETOWN LOGISTICS Property Land Area (ac) Wastewater LUEs PWWF (gpd) GEORGETOWN LOGISTICS Property XXX GEORGETOWN LOGISTICS XXX,XXX Moore Tract XX XXX XXX,XXX C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS C:\Program Files (x86)\neevia.com\docConverterPro\temp\NVDC\1DF99F2D-7BD6-4B6A-B1F6-0330E528E7FB\PDFConvert.14931.1.Pecan_Branch_Offsite_ WW_Agrmnt_-_DRAFT.docx Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS EXHIBIT C TO OFFSITE UTILITY CONSTRUCTION COST REIMBURSEMENT AGREEMENT FOR THE GEORGETOWN LOGISTICS WASTEWATER IMPROVEMENTS FORM OF GEORGETOWN UTILITY EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON § This Agreement (this “Agreement”) is made on the _____ day of ____________, 20___, at Georgetown, Texas, between _________________, a __________________________, whose address is ___________________________________ (hereinafter referred to as "Grantor”), and the City of Georgetown, a Texas home-rule municipal corporation, whose address is P.O. Box 409 Georgetown, Texas 78627, ATTN: Georgetown City Secretary (herein referred to as “Grantee”). WHEREAS, Grantor is the owner of that certain tract of real property more particularly described on Exhibit A attached hereto (“Grantor’s Property”); and WHEREAS, Grantor desires to grant a utility easement to Grantee across, upon and over Grantor’s Property in the area more particularly described in Exhibits B and B-1 attached hereto (the “Easement Area”), and Grantee intends to accept the dedication of and the responsibility for maintenance of the Facilities (defined below) which are to be constructed in the Easement Area; and WHEREAS, Grantee desires to obtain from Grantor and Grantor has agreed to provide to Grantee, vehicular and pedestrian access to and from the Easement Area across, upon and over Grantor’s Property in the area shown on Exhibit C and C-1 attached hereto (the “Access Easement Area”). NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Grantor hereby GRANTS, SELLS and CONVEYS to Grantee, its successors and assigns, an EXCLUSIVE easement and right-of-way (the “Easement”) for the placement, construction, operation, repair, maintenance, replacement, upgrade, rebuilding, relocation and/or removal of wastewater (NOTE: or electric, as applicable) lines and related facilities (collectively, the “Facilities”) on, over, under, and across the area more particularly described by metes and bounds in Exhibit B and by diagram in Exhibit B-1 attached hereto and made a part hereof for all purposes (the “Easement Area”). The term “exclusive” is intended to prohibit other utilities or vertical improvements from being installed in the Easement Area, but does not prohibit driveways, parking areas, landscaping and other improvements that do not hinder use of the Easement. Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS 2. Grantor also hereby GRANTS, SELLS, and CONVEYS to Grantee, its successors and assigns, a NON-EXCLUSIVE vehicular and pedestrian access easement (the “Access Easement”) over, upon and across the area more particularly described by metes and bounds in Exhibit C and by diagram in Exhibit C-1 attached hereto and made a part hereof for all purposes (the “Access Easement Area”), for the purpose of providing ingress, egress and access to and from the Easement in order for the Grantee to construct, install, inspect, test, maintain, repair and/or replace, as needed, the Facilities in the Easement. (Note to form, this language is applicable only to the permanent access to the Westinghouse Lift Station: Grantee shall cause to be constructed and shall maintain within said Access Easement Area an improved access roadway having an all-weather surface (rock base with chip seal or asphalt surface).) Grantee may, in Grantee’s sole discretion, remove trees and brush in the Access Easement Area for the purposes herein intended. Until such time as Grantee obtains or is provided with access to and from the Easement Area via a public road (“Alternate Access”), the Access Easement may be used by Grantee and its employees, independent contractors, consultant, agents, licensees, and invitees for the purposes set forth above. The Access Easement shall automatically terminate when Grantee obtains or is provided with such Alternate Access, and in such event Grantee shall promptly sign a legal instrument reflecting such termination. Notwithstanding anything to the contrary contained herein, Grantee shall have no duty to seek Alternate Access. Termination of the Access Easement shall not cause termination of or otherwise affect the Easement. Subject to Grantee’s prior written approval, the Access Easement Area may be relocated to any other area of Grantor’s Property at Grantor’s sole cost and expense, so long as the relocation continues to provide Grantee with uninterrupted access to the Easement along an access road constructed in the Access Easement, if any. In the event of any such relocation of the Access Easement Area (or any portion thereof) the Parties shall execute a recordable amendment to this Agreement effectuating the relocation of the Access Easement Area. 3. Grantor retains fee ownership of the Easement Area and the Access Easement Area, and further retains the right to do anything in the Easement Area and Access Easement Area that does not unreasonably interfere with Grantee’s use of the Easement Area and Access Easement Area for the purposes allowed herein. 4. The Easement and Access Easement, and the rights and privileges herein conveyed, are granted for and in consideration of the sum of One and No/100 Dollars ($1.00) and other good and valuable consideration to Grantor in hand paid by Grantee, the receipt and sufficiency of which is hereby acknowledged and confessed. 5. The Easement and Access Easement, with their rights and privileges, shall be used only for the purpose of placing, constructing, operating, repairing, maintaining, rebuilding, replacing, upgrading, relocating, removing and/or accessing the Facilities. 6. The duration of the Easement is perpetual. The duration of the Access Easement is perpetual, subject to the termination provisions of Section 2 above. 7. Grantor and Grantor’s heirs, personal representatives, successors, and assigns are and shall be bound to WARRANT and FOREVER DEFEND the Easement, the Access Easement, and the rights conveyed in this Agreement to Grantee and Grantee’s successors and assigns, against all acts of Grantor and Grantor’s heirs, personal representative, successors and assigns, if the claim is by, through or under Grantor, but not otherwise, and subject to all matters of record in the public records. Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS 8. The Easement, and the rights and privileges granted by this Agreement, are EXCLUSIVE to Grantee, and Grantee’s successors and assigns, and Grantor covenants that Grantor shall not convey any other easement, license, or conflicting right to use in any manner, the area (or any portion thereof) covered by this grant. 9. In addition to the Easement, rights, and privileges herein granted, Grantee shall have the temporary right to use the surface of any of Grantor’s Property which is within __________________ feet (___') of the Easement Area (the "Temporary Easement Area") to the extent necessary to construct and install the Facilities within the Easement Area. Upon the completion of such construction and installation, Grantee shall restore the surface of the Temporary Easement Area to the condition in which the same was found before any such work was undertaken, and Grantee's right to use any portion of Grantor's Property adjacent to the Easement Area shall thereupon terminate for all purposes and shall be deemed to terminate not later than ____________ (____) years after the Effective Date (as defined below). 10. This Agreement contains the entire agreement between the parties relating to its subject matter. Any oral representations or modifications concerning this Agreement shall be of no force and effect. Any subsequent amendment or modification must be in writing and agreed to by all parties. 11. The terms of this Agreement shall be binding upon Grantor, and Grantor’s heirs, personal representatives, successors, and assigns; shall bind and inure to the benefit of the Grantee and any successors or assigns of Grantee; and shall be deemed to be a covenant running with the land. IN WITNESS WHEREOF, Grantor has caused this instrument to be executed on this ___ day of _____________, 20____ (the “Effective Date”). GRANTOR: STATE OF TEXAS § § COUNTY OF WILLIAMSON § This instrument was acknowledged before me on this the ___ day of _________________, 20___, by _______________________. Notary Public, State of Texas Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS Consent and Subordination by Lienholder ___________________________________, of _____________________________ [address] (“Lienholder”), as the holder of [a] lien[s] on the property subject to the Easement or the Access Easement, consents to the above grant of an Easement, including the terms and conditions of the grant, and Lienholder subordinates its lien[s] to the rights and interests of Grantee, so that a foreclosure of the lien[s] will not extinguish the rights and interests of Grantee. __________________________________________ [Name of Lienholder] By:_____________________________________________ Name:__________________________________________ Title:___________________________________________ STATE OF ___________________ § § COUNTY OF _________________ § This instrument was acknowledged before me on this the ___ day of _________________, 20____, by __________________________________________, __________________________ of _______________________________________________, a _________________________, on behalf of said ______________________________. Notary Public, State of ___________ APPROVED AS TO FORM: _____________________________________ Bridget Chapman, City Attorney Offsite Utility Construction Cost Reimbursement Agreement / GEORGETOWN LOGISTICS AFTER RECORDING, RETURN TO GRANTEE: Georgetown City Secretary P.O. Box 409 Georgetown, Texas 78627