Loading...
06-E Downtown Alt Sewer Collec DRAFT F:ALIC~RESWORK\CURRENT~Sewer Co~ract - Downtown Investment Group - Res July 7, 2003 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT FOR THE EXTENSION OF AN ALTERNATIVE SEWER COLLECTOR LINE ON BEHALF OF THE DOWNTOWN INVESTMENT GROUP PURSUANT TO ORDINANCE NO. 2003-027; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Paris, Paris, Texas, in conjunction with other governmental entities, private groups, and private individuals, has supported and participated in a community-wide beautification program intended to remove junk, litter, and other unsightly materials, generally improve blighted areas of the City, remove substandard buildings and structures, preserve historically significant structures in areas, and protect and preserve the public health, safety, and welfare, and generally improve the over-all appearance of the community; and, WHEREAS, in pursuit of said goals, the City, among other actions, has adopted Article VII entitled Historic Preservation, to Chapter 7 of the Code of Ordinances of the City of Paris, known as the Historic Preservation Ordinance, to provide for the preservation of significant historical landmarks and properties within the City; and, WHEREAS, the City has likewise adopted amendments to its Zoning Ordinance to provide for the creation of areas designated as Historic Districts pursuant to the terms and provisions of the Historic Preservation Ordinance and the Zoning Ordinance; and, WHEREAS, the City Council has, by adoption of Ordinance No. 2003-023 designated a substantial portion of the Paris downtown area as an Historic Overlay District; and, WHEREAS, the City Council has likewise found and determined that structures located within the Downtown Historic District present special problems associated with their construction, reconstruction, and rehabilitation, and accessing sewer mains associated with said historical structures presents special problems which require the adoption of special policies and regulations associated therewith to foster and encourage the rehabilitation and construction of structures located within the aforesaid historic district; and, WHEREAS, in furtherance of said goal of assisting the owners of historical structures located within historic districts to access sewer mains, the City Council adopted Ordinance No. 2003-027 on June 16, 2003, amending Section 10 of Ordinance No. 1315, the City Subdivision Ordinance, to provide a process for City participation in the extension of alternate sewer collectors for existing structures located in Historic Districts ("the Ordinance"); and, WHEREAS, pursuant to the aforesaid Ordinance, the City has received from Downtown Investment Group (the "Developer"), a Texas Limited Partnership created pursuant to the laws of the State of Texas, a letter dated July 3, 2003, requesting participation by the City in the extension of an alternative sewer collector to provide alternative sewer service to the Developer's property located at 33 East Plaza, Paris, Texas, said property being located in the City's Downtown Historical District; and, WHEREAS, pursuant to the ordinance, the City Engineer has reviewed the request by the Developer, and has found and determined that the conditions set out in Section 10 (b) 2 of the Ordinance exist with regard to the Developer's property, the same being that (1) the private sewer service line leading from the property to a City Sewer Collector has collapsed or is no longer functioning, through no fault of the owner, and (2) because of its location adjacent to other structures, repair or replacement of said private sewer line is no longer engineeringly feasible and is financially impractical; and, WHEREAS, based on the aforesaid certification by the City Engineer, and upon review by the City Council thereof, the City Council hereby determines that the property is qualified to participate in the program established by the Ordinance and that the City has funds available to extend the alternative sewer collector; and, WHEREAS, in accordance with said Ordinance, the City and the Developer desire to enter into an Agreement to establish each parties' obligations with regard to construction of the alternative sewer collector; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the findings set out in the preamble to this resolution are hereby in all things approved. Section 2. That an Agreement between the City of Paris and Downtown Investment Group, a Texas Limited Partnership, for the extension of an alternative sewer collector line to property owned by the Downtown Investment Group and located at 33 East Plaza, Paris, Texas in the City's Downtown Historical District, as said Agreement is set out in Exhibit A to this resolution and incorporated herein for all purposes, shall be and is hereby in all things approved, and the Mayor shall be and is hereby authorized to execute and the City Clerk to attest to the aforesaid Agreement. Section 3. That this resolution shall be effective from and after its date of passage. PASSED AND APPROVED this 13t" day of July, 2003. Curtis Fendley, Mayor ATTEST: Mattie Cunningham, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney SEWER EXTENSION CONTRACT AND ACCOMPANYING CONTRACTUAL LIEN STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LAMAR § WITNESSETH WHEREAS, the City Council of the City of Paris, Paris, Texas, in conjunction with other governmental entities, private groups, and private individuals, has supported and participated in a community-wide beautification program intended to remove junk, litter, and other unsightly materials, generally improve blighted areas of the City, remove substandard buildings and structures, preserve historically significant structures in areas, and protect and preserve the public health, safety, and welfare, and generally improve the over-all appearance of the community; and, WHEREAS, in pursuit of said goals, the City of Paris (hereinafter referred to as the "City"), among other actions, has adopted Article VII entitled Historic Preservation, to Chapter 7 of the Code of Ordinances of the City of Paris, known as the Historic Preservatinn Ordinance, to provide for the preservation of significant historical landmarks and properties within the City; and, WHEREAS, the City has likewise adopted amendments to its Zoning Ordinance to provide for the creation of areas designated as Historic Districts pursuant to the terms and provisions of the Historic Preservation Ordinance and the Zoning Ordinance; and, WHEREAS, the City Council has, by adoption of Ordinance No. 2003-023 designated a substantial portion of the Paris downtown area as an Historic Overlay District; and, WHEREAS, the City Council has likewise found and determined that structures located within the Downtown Historic District present special problems associated with their construction, reconstruction, and rehabilitation, and accessing sewer mains for said historical structures presents special problems which require the adoption of special policies and regulations associated therewith to foster and encourage the rehabilitation and reconstruction of structures located within the aforesaid historic district; and, WHEREAS, in furtherance of said goal of assisting the owners of historical structures located within historic districts to access sewer mains, the City Council adopted Ordinance No. 2003-027 on June 16, 2003, amending Section 10 of Ordinance No. 1315, the City Subdivision Ordinance, to provide a process for City participation in the extension of alternate sewer collectors for existing structures located in Historic Districts ("the Ordinance"); and, Page I of 11 EXHIBIT. . WHEREAS, pursuant to the aforesaid Ordinance, the City has received from Downtown Investment Group (hereinafter referred to as "DIG" or "Developer"), a Texas Limited Partnership created pursuant to the laws of the State of Texas, a letter dated July 3, 2003, requesting participation by the City in the extension of an alternative sewer collector to provide alternative sewer service to the Developer's property located at 33 East Plaza, Paris, Texas, (hereinafter referred to as the "Property"), said Property being located in the City's Downtown Historical District; and, WHEREAS, pursuant to the Ordinance, the City Engineer has reviewed the request by the Developer, and has found and determined and certified that the conditions set out in Section 10 (b) 2 of the Ordinance exist with regard to the Property, the same being that (1) the private sewer service line leading from the property to a City Sewer Collector has collapsed or is no longer functioning, through no fault of the owner, and (2) because of its location adjacent to other structures, repair or replacement of said private sewer line is no longer engineeringly feasible and is financially impractical; and, WHEREAS, based on the aforesaid certification by the City Engineer, and upon review by the City Council thereof, the City Council has determined that the property is qualified to participate in the program established by the Ordinance and that the City has funds available to extend the alternative sewer collector; and, WHEREAS, in accordance with said Ordinance, the City and the Developer desire to enter into this Agreement (hereinafter referred to as the "Agreement") to establish each party's obligations with regard to construction of the alternative sewer collector; NOW, THEREFORE, FOR AND CONSIDERATION OF THESE PREMISES, the parties hereto, the same being the City of Paris, Texas, whose offices are located at 135 First St. S.E., Paris, Texas 75460, and DIG, whose offices are located at 33 E. Plaza, Paris, Texas 75460, covenant and agree as follows: I. The City agrees: A. That it will cause the construction of an alternative sewer collector line from 1st St. S.E. and Clarksville West to the Property, said sewer collector line to be 8 inch diameter in size, and to be constructed in accordance with City specifications and all appropriate City Codes. B. The City shall track and tabulate all costs associated with said construction, said costs to include, but not be limited to, all costs of construction, materials, labor, right-of-way, and any and all other costs associated with said construction. Page 2 of l I C. Upon completion of said construction, the City shall present to Developer an itemized statement detailing the City's actual cost of construction of the necessary alternative collector line. II. The Developer agrees: A. To pay one-half (V2) of the total cost of extending the alternative sewer collector, based on the tabulation of said cost as determined by the City and as defined herein. In lieu of an actual cash paymem for said cost, said cost shall be assessed by the City on the basis of eighty-four (84) equal monthly paymems (seven years) at 0% interest, to be charged as part of the water and sewer payment due and payable by the Developer to the City for water and sewer service to the Property. B. To timely pay the payment described in paragraph A above, as well as any and all water and sewer payments due the City for water and sewer services provided to the Property. C. To pay any and all taxes due on the Property; save and except those taxes lawfully under protest, but only for such tinge as any lawful appeal or protest shall continue in accordance with state law. D. That the obligation incurred hereunder and payable to the City by this contract shall be an obligation not only of the partnership, but shall be an indebtedness due and payable by the individual participants in said partnership, who shall be idemified as follows: Name Address Steve Shoemake P.O. Box 6069, Paris, TX 75461 George Shoemake P.O. Box 6069, Paris, TX 75461 Cody Chapman 3529 Darnell Drive, Paris, TX 75462 Steven Asay Rt. 6, Box 1610, Paris, TX 75462 Mitch Campbell 6830 JoJo Road, Paris, TX 75462 Larry D. Crumpler 605 Easy Street, Powderly, TX 75473 Michael Doyle Pickering 56 Timberlakes, Powderly, TX 75463 Robert J. Rast Rt. 2, Box 2702, Sumner, TX 75486 E. To grant a contractual lien against the property to secure payment to the City of the amounts owed as described herein. F. To pay all building fees, and other costs associated with any and all construction on the Property; to pay all costs associated with the extension of any necessary private sewer service line from the property to the point of connection with the new Page 3 of 11 City sewer collector, including any and all customary tap fees or other costs associated with and due and payable under the City's ordinances for a new sewer connection; and to otherwise comply with all rules, regulations, and ordinances of the City, including, but not limited to, the Historic Preservation Ordinance, Zoning Ordinance, and building codes. III. From and after completion of the alternative sewer collector, the said line or lines shall be the sole property of the City, and the Developer shall have no claim of ownership or contribution for the cost of extending said sewer collector. The City shall be entitled to allow connection to the aforesaid alternative sewer collector pursuant to the City's general policies for same, without obligation for reimbursement or other liability or cost to Developer. IV. The Developer does hereby grant to the City a contractual lien on the Property, to further secure the City's cost of construction of the sewer collector line. Said lien shall be a first and prior lien on the property, subject only to a duly filed and perfected purchase money lien, mechanic's lien, or other state, county, school district, or municipal property tax lien currently on record as of the date of execution of this Agreement, or entitled to superior status by state law. Otherwise, this contractual lien shall be and remain a lien on the Property superior to any and all other liens subsequently filed against said Property until such time as the full amount due and payable to the City under this contract shall be paid. Following the fmal payment due to the City, the City shall execute a release in proper form releasing the City's lien against the Property. As aconditionofthis Agreement, Developer shall sign any and all documents associated with the perfection of said lien, including a notice of lien or other instrument in appropriate form for filing in the Real Property Lien Records of Lamar County, Texas. V. The following shall constitute events of breach by Developer under this Agreement: A. Failure to timely pay a monthly installment due and payable at the same time as the water and sewer payments are due for said Property in accordance with the City's ordinance. Provided, however, should the Developer, for any reason, terminate water and sewer service on the Property, then the full amount of the Developer's share of the costs then outstanding shall be due and payable to the City within ten (10) days of termination of said water and sewer service. B. Failure to timely pay any water and/or sewer charges due on the Property. C. Failure to timely pay any taxes due on said Property, subject to right of protest and appeal as stated herein. Page 4 of 11 D. Failure to otherwise abide by the City's ordinances and regulations, including, but not limited to the City's Historic Preservation Ordinance, Zoning Ordinance, and building codes. E. Failure to timely perform any other obligation as provided in this Agreement. VI. In the event of breach as provided herein, the following events and/or remedies shall Occur: A. The remainder of the Developer's share of the cost of construction of the line shall immediately become due and payable to the City without further notice by the City to the Developer. B. Failure of the Developer to meet its obligations under this Agreement shall constitute sufficient cause for the City to terminate water and sewer service to the Property in the same manner as set out in the City's ordinance for such action. C. Nothing in this Agreement shall prohibit the City from exercising its authority to terminate water and/or sewer service to the Property for non-payment of water and sewer bills or for other causes in accordance with City ordinance. D. Failure to comply with the terms and provisions of this Agreement shall constitute sufficient cause for the City to refuse water and sewer service to any successor in interest or purchaser of the Property until the full amount due the City, including the cost of construction of the water and sewer collector and any outstanding water and sewer bills, shall be and is paid in full. E. Collection of any and all amounts due and owing to the City under this Agreement against the individuals named in paragraph II D hereof, seeking payment of all or a portion of the amount due the City, as the City shall deem appropriate, from any individual. The obligations hereunder shall be joint and severable. F. At the City's discretion, to undertake any and all actions appropriate under the law to foreclose the lien herein imposed against the Property. G. The City may enforce the aforesaid contractual lien against the Property and the personal liability of the owner or owners of the property by an action in a court having appropriate jurisdiction, or by foreclosure of the lien and sale of the Property in the manner provided by state law for the sale of property for municipal property taxes. Page 5 of 11 VII. The parties to this Agreement further agree as follows: A. This Agreement may not be assigned by the Developer without the approval of the City Council of the City of Paris accompanied by a formal written consent to said assignment. B. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas. C. Venue for any actions arising out of this Agreement shall lie exclusively in the courts of Lamar County, Texas, for any state court action, and in the Federal Courts of the Eastern District of Texas, Tyler Division, for any action arising under Federal Law. D. In the event the city must enforce this Agreement as set out herein, the City shall be entitled to collect all reasonable attorneys' fees and other costs associated with said action. VIII. The effective date of this Agreement, and the lien accompanying same, shall be July 14, 2003. EXECUTED by and on behalf of the City of Paris this 14th day of July, 2003. Curtis Fendley, Mayor ATTEST: Mattie Cunningham, City Clerk APPROVED AS TO FORM: Larry W. Schenk, City Attorney Page 6 of 11 EXECUTED by and on behalf of Downtown Investment Group this __ day of ,2003. Steve Shoemake, Authorized Managing Parmer ATTEST: EXECUTED by the following named individual partners on the date as reflected next to each name: Signature Date Steve Shoemake George Shoemake Cody Chapman Steven Asay Mitch Campbell Larry D. Crumpler Michael Doyle Picketing Robert J. Rast Page 7 of 11 THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Curtis Fcndley, Mayor of the City of Paris, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to mc that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Steve Shoemake, Authorized Managing Partner, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Steve Shoemake, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Page 8 of 11 GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __. day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared George Shoemake, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Cody Chapman, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of ,2003. Notary Public, State of Texas Page 9 of 11 THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, thc undersigned authority, in and for said County, Texas, on this day personally appeared Steven Asay, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to mc that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Mitch Campbell, known to me to bc the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of ,2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Larry D. Crumpler, known to mc to bc the person whose name is subscribed Page 10of 11 to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Michael Doyle Pickering, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of__, 2003. Notary Public, State of Texas THE STATE OF TEXAS § COUNTY OF LAMAR § BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Robert J. Rast, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this __ day of __, 2003. Notary Public, State of Texas Pagellof 11