Luxe Addtion Water OPA DocuSign Envelope ID:8311C1362-5C4E-4965-1318D-21644C8413735
THE STATE OF TEXAS §
COUNTY OF DENTON §
WATER UTILITIES OVERSIZE COST PARTICIPATION AGREEMENT
BETWEEN THE CITY OF DENTON AND DEVELOPER
FOR THE INSTALLATION OF A SIXTEEN(16)INCH WATER LINE
This Water Utilities Oversize Cost Participation Agreement (this "Agreement'), is
made and entered into this 4th day of June , 2024 (the "Effective Date"), by and
between the City of Denton, a Texas Home-Rule Municipal Corporation (hereinafter referred
to as the "City"), with its offices located at 215 East McKinney Street, Denton, Texas 76201,
and 4600 Ganzer Investments, LLC (hereinafter referred to as "Developer"), whose business
address is 2505 N. State Highway 360, Suite 800, Grand Prairie, Texas 75050.
RECITALS:
WHEREAS, Developer is the owner of certain real property located in the City of
Denton, Texas and being described on Exhibit A, attached hereto and made a part hereof for
all purposes(the"Property"); and
WHEREAS,Developer is in the process of developing and improving the Property and
in connection with the same, must design, construct and install adequate water facilities to
service the Property(the"Required Facilities"); and
WHEREAS, the City, in accordance with its ordinances, wishes to participate in the
cost of designing, constructing and installing said Required Facilities to provide for an
"oversized"water main to expand its utility system and insure adequate utility service to other
customers,which oversized water main consists of approximately 7,240 linear feet of sixteen-
inch(16")water line and all necessary appurtenances thereto,as shown on Exhibit B,attached
hereto and incorporated herein by reference(the "Oversized Facilities"); and
WHEREAS,the City and Developer desire to enter in this Agreement under Subchapter
C, Section 212 of the Texas Local Government Code, to provide for oversizing of
improvements required to increase the capacity of improvements in anticipation of future
development in the area; and
WHEREAS,the City and Developer desire to set forth, in writing,their understandings
and agreement regarding the design, construction and installation of the Required Facilities as
more fully set forth herein; and
NOW,THEREFORE,in consideration of the mutual promises and covenants contained
herein Developer and the City do hereby AGREE as follows:
1. Term
This Agreement becomes effective upon the Effective Date and shall remain in effect
until the Required Facilities are completed, have been accepted by the City, and the City has
reimbursed the Developer for the portion of the construction costs for the Required Facilities
attributable to oversizing in accordance with the terms hereof, unless earlier terminated in a
writing that is signed by both the City and Developer. Scope of Work
DocuSign Envelope ID:8311 CB62-5C4E-4965-B1 8D-21 B44C84B735
Developer shall design, install, and construct the Oversized Facilities.
2. City and Developer Rights and Responsibilities
A. Developer agrees that all City costs related to participation, in accordance
with Section 212.072 of the Texas Local Government Code,shall not exceed
thirty (30%) of the improvements benefitting the Property, excluding the
oversizing of improvements. The amount of the City's Participation shall
be limited to an amount not to exceed one hundred percent (100%) of the
total cost for any oversizing of improvements.
B. Prior to the commencement of construction of the Required Facilities, the
Developer shall execute a performance bond for the construction of the
improvements in the amount of$2,430,899.00 to ensure completion of the
project.The bond must be executed by a corporate surety in accordance with
Chapter 2253 of the Texas Government Code. The performance bond shall
be maintained by the Developer until the completion and acceptance of the
Required Facilities. Developer shall repair and/or replace all defects due to
faulty materials and workmanship that appear within a period of one(1)year
from the date of final completion and final acceptance of the Required
Facilities by City. Upon completion and acceptance of the Required
Facilities, Developer shall provide a two-year maintenance bond in the
amount of the cost of the Required Facilities.
C. This Agreement is subject to and governed by the Denton Development
Code and any other applicable ordinances of the City of Denton, Texas.
D. Developer shall obtain, at Developer's sole cost and expense, all necessary
permits, licenses, and easements to construct and install the Required
Facilities. The easements, deeds, and plats therefor obtained by the
Developer in connection with the construction and installation of the
Required Facilities shall be reviewed and approved as to form and substance
by the City, which approval shall not be unreasonably withheld. If the
Developer is unable to acquire needed easements, the Developer shall
provide the City with any reasonably requested documentation of efforts to
obtain such easements, including evidence of negotiations and reasonable
offers made to the affected property owners. Any easements for the
Oversized Facilities obtained by the Developer shall be assigned to the City,
if not taken in the City's name, prior to acceptance of the Oversized
Facilities,and the Developer warrants clear title to such easements from and
against all lawful claims and demands of all persons claiming by, through,
or under the Developer, subject however to all easements, covenants,
conditions, reservations, restrictions and matters of record and any
conditions that would be uncovered by an inspection of the easement area
or an accurate survey of the same (collectively, the "Permitted
Exceptions"), and will defend the City against any adverse claim made
against such title, other than the Permitted Exceptions.
E. Developer agrees to design,construct and install the Required Facilities and
to fund One Million Three Hundred Thirty Eight Thousand Four Hundred
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Two and 00/100 Dollars ($1,338,402.00) (the "Developer Share") of the
construction cost for the Required Facilities. All costs to design, construct
and install the Required Facilities in excess of the Developer Share are
"Oversizing Costs." The City agrees to make payments to Developer for
Oversizing Costs in an amount not to exceed One Million Ninety Two
Thousand Four Hundred Ninety Seven and 00/100 Dollars ($1,092,497.00)
subject to appropriation, or approximately 44.94% of the $2,430.899.00
shown as the total estimated costs to design, construct and install the
Required Facilities as set forth on Exhibit C, attached hereto (the "City
Share").
F. The Director of Water Utilities or their designee shall determine the
appropriate level of cost participation by the City based upon the
incremental cost between the Developer's Required Facilities and the City's
requested Oversized Facilities. This cost determination shall be based upon
recent bids for similar facilities and/or cost estimates prepared by the City's
engineering staff. If the City cannot justify the costs involved in any such
contract where City funds or pro-rata repayment is involved, the City shall
have the option and right to submit the proposal for sealed bids, and the
Developer shall pay its proportionate share of the acceptable low bid. Final
approval of all oversize participation agreements between the City and the
Developer shall come from the City Council after recommendation from the
Public Utilities Board unless the participation amount is less than the
expenditure level authorized by the City Manager.
G. The City shall not, in any case, be liable for any additional cost because of
delays in beginning, continuing, or completing construction; changes in the
price or cost of materials, supplies, or labor; unforeseen or unanticipated
cost because of topography, soil, subsurface, or other site conditions;
differences in the calculated and actual per linear feet of pipe or materials
needed for the Oversized Facilities; the Developer's decision as to the
contractors or subcontractors used to perform the work; or any other reason
or cause, specified or unspecified, relating to the construction of the
Oversized Facilities.
H. The City shall reimburse Developer for the City Share of Oversizing Costs
within sixty(60) days of the completion and acceptance of the construction
of the Required Facilities.
I. To confirm the actual cost of the Required Facilities, City shall have the
right to inspect any and all records of the Developer, its agents, employees,
contractors, or subcontractors, and shall have the right to require the
Developer to submit any necessary information, documents, invoices,
receipts, or other records to verify the actual cost of the Required Facilities.
If the actual costs are lower than those noted on Exhibit C,the City's share
in cost shall be reduced pro rata.
J. All notices, payments, or communications to be given or made pursuant to
this Agreement by the parties hereto, shall be sent to the Developer at the
business address given above and to the City Manager for City at the address
given above.
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K. THE DEVELOPER SHALL INDEMNIFY AND HOLD THE CITY
HARMLESS FROM ANY AND ALL CLAIMS, DAMAGES, LOSS,
OR LIABILITY OF ANY HIND WHATSOEVER (INCLUDING
DEATH), BY REASON OF INJURY TO PROPERTY OR PERSON
OCCASIONED BY ANY ACT OR OMISSION, NEGLECT, OR
WRONGDOING OF THE DEVELOPER, ITS OFFICERS,AGENTS,
EMPLOYEES, INVITEES, OR CONTRACTORS, OR OTHER
PERSONS WITH REGARD TO THE PERFORMANCE OF THIS
AGREEMENT; AND THE DEVELOPER SHALL, AT ITS OWN
COST AND EXPENSE, DEFEND AND PROTECT THE CITY
AGAINST ANY AND ALL SUCH CLAIMS AND DEMANDS.
NOTWITHSTANDING THE FOREGOING TO THE CONTRARY,
THE DEVELOPER'S INDEMNIFICATION OBLIGATIONS
HEREUNDER SHALL NOT INCLUDE ANY CLAIMS, DAMAGES,
LOSSES, OR LIABILITIES OF ANY HIND WHATSOEVER THAT
ARE CAUSED BY THE CITY'S SOLE NEGLIGENCE. IN THE
EVENT OF JOINT AND CONCURRENT NEGLIGENCE OR
FAULT OF BOTH DEVELOPER AND THE CITY,
RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS WITHOUT, HOWEVER,
WAIVING ANY OF THE DEFENSES OF THE PARTIES UNDER
TEXAS LAW. FURTHER, IN THE EVENT OF JOINT AND
CONCURRENT NEGLIGENCE OR FAULT OF BOTH
DEVELOPER AND THE CITY, RESPONSIBILITY FOR ALL
COSTS OF DEFENSE SHALL BE APPORTIONED BETWEEN THE
CITY AND DEVELOPER BASED UPON THE COMPARATIVE
FAULT OF EACH.
L. City may withhold funds, and, if necessary,may demand the return of some
or all amounts previously paid to Developer for defective work, to protect
City from loss or damage.
M. Prior to the final payment by the City:
i. The Required Facilities must be (i) completed by the Developer; (ii)
reviewed and inspected by the City; and (iii) approved and accepted by
the City. During the work on the Required Facilities, the City has the
right to review all documents,maps,plats,records,photographs,reports
and drawings affecting the construction and to inspect the work in
progress; and
ii. The City shall conduct a final inspection of the Required Facilities and
any deficiencies noted by the City during such inspection shall have been
addressed by the Developer to the City's satisfaction.
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3. Legal Construction
In case any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision of this Agreement, and this Agreement
shall be considered as if such invalid, illegal, or unenforceable provision had never been
contained in this Agreement.
4. Counterparts
This Agreement may be executed,including electronically,in one or more counterparts,
each of which when so executed shall be deemed to be an original and constitute one and the
same instrument. If this Agreement is executed in counterparts, then it shall become fully
executed only as of the execution of the last such counterpart called for by the terms of this
Agreement to be executed.
5. Assignment
Developer shall not sell, assign, transfer or its interest or rights in the Agreement, or
any claim or cause of action related thereto in whole or in part,without the prior written consent
of the City, which consent shall not be unreasonably withheld. As an express condition of
consent to any assignment, Developer shall remain liable for completion of the Required
Facilities in the event of default by the successor contractor or assignee.
6. Venue
Any and all suits for any breach of this Agreement, or any other suit pertaining to or
arising out of this Agreement, shall be brought in a court of competent jurisdiction in Denton
County, Texas. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas.
7. Entire Agreement
This instrument embodies the entire agreement of the parties hereto and there are no
promises, terms, conditions, or obligations other than those contained or incorporated herein.
This Agreement shall supersede all previous communications,representations, or agreements,
whether verbal or written,between the parties hereto with respect to the subject matter of this
Agreement.
8. Miscellaneous
A. Pursuant to Section 2270.002, Texas Government Code, the Developer
hereby (i) represents that it does not boycott Israel, and (ii) subject to or as otherwise
required by applicable federal law,including without limitation 50 U.S.C. Section 4607,
agrees it will not boycott Israel during the term of the Agreement. As used in the
immediately preceding sentence, "boycott Israel" shall have the meaning given such
term in Section 2270.001, Texas Government Code.
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B. The Developer hereby represents that (i) it does not engage in business
with Iran,Sudan or any foreign terrorist organization and(ii)it is not listed by the Texas
Comptroller under Section 2252.153, Texas Government Code, as a company known
to have contracts with or provide supplies or services to a foreign terrorist organization.
As used in the immediately preceding sentence, "foreign terrorist organization" shall
have the meaning given such term in Section 2252.151, Texas Government Code.
9. Certification of Execution
The person or persons signing and executing this Agreement on behalf of Developer,
or representing themselves as signing and executing this Agreement on behalf of Developer,
do hereby warrant and certify that he, she or they have been duly authorized by Developer to
execute this Agreement on behalf of Developer and to validly and legally bind Developer to all
terms,performances and provisions herein set forth.
[Signature pages follow]
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DocuSign Envelope ID:8311C1362-5C4E-4965-1318D-21644C8413735
EXECUTED by the undersigned duly-authorized officials and officers of the City and
the Developer, on this the 4th day of June , 2024.
CITY OF DENTON
A Texas Municipal Corporation
DocuSigned by:
" H
By:
SARA HENSLEY, CITY MANAGER
ATTEST:
LAUREN THODEN, CITY SECRETARY
DocuSigned by:
E
By• D09D09CAD33D487...
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
}gs4yid business terms.
rs V. a9
Si nature
w rector
Title
water utilities
Department 5/14/2024
Date Signed:
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
DocuSigned by:
By:
DocuSign Envelope ID:8311CB62-5C4E-4965-B18D-211344C8413735
DEVELOPER:
4600 Ganzer Investments, LLC
By: 4600 GNI, L.P., a Nevada limited partnership, its general partner
By: &6#W
Name: Matthew Hiles Authorized Agent
Title: Vfe-e. cg-S i
8
DocuSign Envelope ID:8311 CB62-5C4E-4965-B1 8D-21 B44C84B735
Exhibit A
Property Description
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DocuSign Envelope ID:8311CB62-5C4E-4965-B18D-211344C8413735
Exhibit A
Property Description
Being all of Lots 1 & 2, Block A, and Lot 1, Block B, Luxe Addition, an addition to the
City of Denton, Denton County, Texas, being 155.254 acres of land located in the John
Ayers Survey, Abstract No. 2, according to the Plat recorded in Document Number
2022-311, Plat Records, Denton County, Texas.
DocuSign Envelope ID:8311 CB62-5C4E-4965-B1 8D-21 B44C84B735
Exhibit B
Oversized Facilities
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DocuSign Envelope ID:8311CB62-5C4E-4965-B18D-21B44C84B735
EXHIBIT "B"
LINENSCHMIDT REVOCABLE TRUST
DOC. No. 2013-14156
O.R D.C.T.
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LOT 2 , BLOCK A J
LUXE ADDITION
DOC. No. 2022-311
P.R.D.C.T. �%° I 0 200 46o Goo S2
4600 GANZER INVESTMENTS, LLC °�° I Z
DOC. No. 2021-134359 ��' U
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16m PUBLIC WATER o
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PORTION OF
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DOC. No. 2020-17394
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CATDENTON 35 SEVEN, INC.
DOC 0o N .R D.C.T45691 PLAN DIM E LINE
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MATCH LM A
VERPREP'RM BY' LUXE ADDITION OVERSIZE COST PARTICIPATION EXHIBIT
WIER & ASSOCIATES, INC. CITY OF DENTON, DENTON ETJ, DENTON COUNTY, TEXAS
8 ENGINEERS SURVEYORS LAND PLANNERS
N 2201 E LMN Bow, M 200E ARI.IB6M TEXAS 76006 W= (817)167-7100 DRAWN BY-BAB SHEET I OF 2 REV.
3 Tmm Frm Pbohnfin k F-2776 m.WmAmodafee m IIAPPROVEDs
DocuSign Envelope ID:8311 CB62-5C4E-4965-B1 8D-21 B44C84B735
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CEP23-0043 I
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APPROX.CITY LIMIT LINE
TRACT 3 W
HARLAN PROPERTIES, INC. JEJM DENTON PROPERTY, LLC 20" PUBUC WATER
DOC. No. 1999-24422 1 DOC. No. 2022-84601 UNE HDPE 425 U'
O.R.D.C.T. O.R.D.C.T. '
LOT 1. BLOCK I o (SOUTH SET)
DENTON 35 EXCHANGE a CEP23-0043
DOC. No. 2023-338
P.R.D.C.T.
a EASTGROUP PROPERTIES, LP
DOC. No. 2023-71745
O.R.D C T
PREPARM BY` LUXE ADDITION OVERSIZE COST PARTICIPATION EXHIBIT
V//Ai WIER It ASSOCIATES, INC. CITY OF DENTON, DENTON ETJ, DENTON COUNTY, TEXAS
ENGINEERS SURVEYORS LAND PLANNERS
N 2201 E UWIIR BLVD.,BIAfE 200E AR1.11GM T=76006 EM(817)167-7700 DRAWN BY-BAB REV.
3 Tm Frm� k F 2776 mciahmm APPROVEDI SHEET 2 OF 2
DocuSign Envelope ID:8311CB62-5C4E-4965-B18D-21B44C84B735
Exhibit C
Estimated Cost of Required Facilities
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DocuSign Envelope ID:8311 CB62-5C4E-4965-B1 8D-21 B44C84B735
EXHIBIT C
7-Mar-24
Contractor: Dallas Underground,LLC
Address: 805-1/2 Lake Bardwell Dr.
Ennis,Texas 75119
Phone#: 469-206-9500
Fax#:
Ema i I: Jeff(&dutexas.com
Bid Date:
PROJECT: Off-Site Water Improvements to serve Lots 1&2,Block A,Luxe Addition
PROJECT NUMBER CEP23-0028&CEP23-0043
OPINION OF PROBABLE CONSTRUCTION COST
Water:
Developer City of Denton
Description CITY UNIT UNIT PRICE TOTAL 55.058% 44.942%
16"DIP AWWA C151 Class 52 6815 LF $ 200.00 $ 1,363,000.00 $ 579,275.00 $ 783,725.00
Bore 16"DIP w/24"Steel Casing 773 LF $ 761.00 $ 588,253.00 $ 574,339.00 $ 13,914.00
20"HDPE by Direct Bore 425 LF $ 152.00 $ 64,600.00 $ 36,060.00 $ 28,540.00
16"Gate Valve 18 EA $ 17,500.00 $ 315,000.00 $ 79,200.00 $ 235,800.00
Cast Iron Fittings 1 LS 1 $ 50,946.00 $ 50,946.00 $ 39,428.00 $ 11,518.00
16"Plug 2 EA $ 750.00 $ 1,500.00 $ 1,500.00 $ -
16"x20" DIP MJ Reducer 2 EA $ 1,800.00 $ 3,600.00 $ 3,600.00 $
20"HDPE MJ Adapter 2 EA $ 1,500.00 $ 3,000.00 $ 3,000.00 $ -
20"HDPE Wall Anchor 2 EA $ 9,500.00 $ 19,000.00 $ - $ 19,000.00
Concrete Anchor Block 2 EA $ 3,500.00 $ 7,000.00 $ 7,000.00 $ -
Concrete Thrust Blocks 1 LS $ 15,000.00 $ 15,000.00 $ 15,000.00 $
$ $ $ $
Water Subtotal: $ 2,430,899.00 $ 1,338,402.00 $ 1,092,497.00
Totall $ 2,430,899.00