OPA23-0004ORDINANCENO. OPA23-0004
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE AN
OVERSIZE COST PARTICIPATION AGREEMENT WITH HOLIGAN DEVELOPMENT, LLC,
FOR THE CONSTRUCTION OF GRISSOM ROAD LIFT STATION FOR THE WATER
uriLrHES DEPARTMENT; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR:
AND PROVDING AN EFFECTIVE DATE (HOLIGAN DEVELOPMENT, LLC, IN THE
NOT-TO- EXCEED AMOUNT OF $657,361.61).
WHEREAS, Holigan Development, LLC (the “Developer”), is the owner of a 121.718 acre
manufactured home development located north of E. McKinney Street and West of S. Trinity
Road 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 wastewater facilities to
service the Property (the “Required Facilities”); and
WHEREAS, as part of these Required Facilities, Developer is proposing to construct a
wastewater lift station within the Property, and Developer is proposing to increase the capacity of
the wastewater main for the Water Utilities Department; and
WHEREAS, the Required Facilities, specifically the wastewater lift station, show
additional developable land that will also be served by this wastewater lift station, the City is
therefore motivated to provide proportionate and reasonable capacity costs to expand its utility
system and ensure adequate utility service to other customers; and
WHEREAS, Subchapter C, Section 212 of the Texas Local Government Code authorizes
the City to cost participate with a developer of a subdivision or land to construct public
improvements related to the development; and
WHEREAS, the City Council has provided in the City Budget for the appropriation of funds
to be used for the purchase of the materials, equipment, supplies, or services approved and accepted
herein; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS :
SECTION 1. The recitals contained in the preamble of this ordinance are hereby
incorporated into the body of this ordinance are true and correct.
SECTION 2. The City Manager, or their designated representative, is hereby authorized to
execute the written contract which is attached hereto and incorporated herein as Exhibit B .
SECTION 3. The City Council of the City of Denton, hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of
Denton under this ordinance to the City Manager of the City of Denton, or their designee.
SECTION 4. The City Council hereby authorizes the expenditure of funds therefor in the
amount and in accordance with the written contract attached hereto and incorporated herein as
Exhibit B.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by Bft''n b„h and
S e C O n d e d b y d 1 1c+ 1hLL : 1[! )/ r e 1r1F1 i S 0 r di nance was passed aIM approved by the
following vote n- A :
Aye
/
a
IZ
\/
Nay Abstain Alnent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck, District 2:
Paul Meltzer District 3 :
Joe Holland. District 4:
Brandon Chase McGee, At Large Place 5 :
Chris Watts, At Large Place 6:
J
S/
PASSED AND APPROVED thi, th, lt" d,y ,f M, „enb,r , 2023.
GERARD HUDSPETH, MAYOR
ATTEST:
JESUS SALAZAR, CITY SECRETARY
,\\It 111111
D
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY
ATTORNEY
Digitally signed by Susan Keller
DN: dc=com, dc=cityofdenton, dc=codad
Susan Keller :=.:.EBF=.ITiS:=="
email=Susan.Keller@cityofdenton.com
By• Date 2a23.tc.23 1535:16 -a5'aa
DocuSign Envelope ID: D339C66E-3076-44AD-890F-280D7C92BBC3
THE STATE OF TEXAS §
§
§COUNTY OF DENTON
WASTEWATER UTILITIES OVERSIZE
COST PARTICIPATION AGREEMENT BETWEEN THE CITY OF DENTON
AND HOLIGAN DEVELOPMENT, LLC FOR THE GRISSOM ROAD LIFT
STATION
This Developer Participation Agreement (“Agreement”), made and entered in to 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 Holigan Development, LLC, a Texas limited liability company, hereinafter referred to as
“Developer,” whose business address is 14114 N. Dallas Parkway, Ste. 265, Dallas, Texas,
75254
RECITALS :
WHEREAS, Developer is the owner of certain real property 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,
located in the City of Denton, Texas; and is required to provide such real property with adequate
wastewater capacity by designing, constructing, and installing a new “Grissom Road Lift
Station” (as shown in Exhibit B) to support a capacity of 101 gallons per minute, hereinafter
referred to as the “Required Facilities;” and
WHEREAS, the City of Denton, in accordance with its ordinances, wishes to participate
in the cost of the construction and installation of said wastewater main to provide proportionate
and reasonable capacity costs to expand its utility system and insure adequate utility service to
other customers; and
WHEREAS, the City and Developer desire to enter in this Developer Participation
Contract 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, City and Developer desire to set forth, in writing, their understandings and
agreement regarding the construction and installation of the Grissom Road Lift Station; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein the Developer and the City do hereby AGREE as follows:
1. Term
This Agreement becomes effective upon execution and shall remain in effect until
Required Facilities are completed and 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, unless terminated as provided below.
2. Scope of Work
DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
Developer shall design, install, and construct, the Required Facilities and all necessary
appurtenances thereto as shown on Exhibit B, attached hereto and incorporated herein by
reference
3. 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 for oversizing of
improvements shall be limited to an amount not to exceed one hundred percent
( 100%) of the total cost for oversizing of the improvements.
B. The Developer shall execute a performance bond for the construction of the
improvements 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.
C. The Required Facilities shall be constructed in strict conformance with the design
and construction standards set forth in the City’s design standards, the Denton
Development Code and any other applicable ordinances of the City of Denton, State
or Federal statutes, laws, ordinances, rules or regulations.
D.Developer shall obtain, at Developer’s sole cost and expense, all necessary permits,
licenses, and easements. The easements, deeds, and plats therefor obtained by the
Developer shall be reviewed and approved as to form and substance by City. If the
Developer is unable to acquire needed easements, the Developer shall provide City
with any 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 Required Facilities obtained by the Developer shall
be assigned to City, if not taken in City's name, prior to acceptance of the Required
Facilities, and the Developer warrants clear title to such easements and will defend
City against any adverse claim made against such title.
E.Developer agrees to construct the Required Facilities and to fund Nine Hundred
and Twenty-Two Thousand Eight Hundred Thirty-Four and 57/100 Dollars
($922,834.57) (the “Developer Share”) of the construction cost for the Required
Facilities. All costs in excess of the Developer Share are oversizing costs. The City
agrees to make progress payments to Developer in an amount not to exceed Six
Hundred and Fifty-Seven Thousand Three Hundred Sixty-One and 61/100
Dollars ($657,361.61)(the “City Share”) for the cost in excess of the Developer
Share for the installing of Required Facilities, or approximately 41.6% of the total
One Million Five Hundred Eighty Thousand One Hundred Ninety-Six and
18/100 Dollars($1,580,196.18) project costs included on “Exhibit C”, as
determined by City. At the sole option of the City, ten (10) percent contingency in
the amount of Sixty-Five Thousand Seven Hundred Thirty-Six Dollars and
16/100 cents (565,736.16) may be used for a total not-to-exceed amount of Seven
Hundred Twenty-Three Thousand Ninety-Seven and 77/100 Dollars
(8723,097.77).
2
DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
F.The Director of Water Utilities or his designee has confirmed 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 Required Facilities. This
cost determination has been based upon both the proportional share of usage of the
Required Facilities and bids received based on the City approved engineering plans.
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
Developer elected 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 Required Facilities; or 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 Required Facilities.
H. The City shall reimburse Developer for its oversize participation of costs of the
Required Facilities. The payment to the Developer by the City shaH occur within
thirty (30) days of the acceptance of the construction of the Required Facilities.
1.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.
K.The Developer shall indemnify and hold City harmless from any and all claims,
damages, loss, or liability of any kind whatsoever, by reason of injury to property
or person occasioned by any act or omission, neglect, or wrongdoing of the
Developer, its officers, agents, employees, invitees, 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 City against any and all such claims and
demands.
L. Prior to the payment by the City:
1)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
3
DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
2) 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.
4. 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.
5. 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.
6. 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. 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
asslgnee.
7. 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.
8. 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.
9. 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
4
DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
preceding sentence, “boycott Israel” shall have the meaning given such term in Section
2270.001, Texas Government Code.
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.
10. 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.
EXECUTED in duplicate original counterparts by the undersigned duly-authorized
officials and officers of the City and the Developer, on this the day of , 2023 .
CITY OF DENTON
A Texas Municipal Corporation
By:
SARA HENSLEY, CITY MANAGER
ATTEST:
JESUS SALAZAR, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATrORNEY
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
WaGa', ind +"rsiness terms.
I SMu' aa'I-\n– 9cBrr5658[56492
SignatureD1 rector ,
Susan Digitally signed by Susan Keller
DN: dc=com. dc=cityofdenton.
dc=cc>dad, ou=Department Users and
Groups, ou=General Government.
ou=Legal, cn=Susan Keller,
email=Susan.Keller@cityofdenton.com
Date: 2023.10.23 IS:37:48 <)5'00'BY: Keller
TitleWater Utli 1 i tIes
Department
Date Sjgned:11/3/2023
5
HOLIGAN DEVELOPMENT, LLC
A Texas limited liability company
::1: : :};It: 3 :t1:1e f}I b !:7\ I ;iv e
STATE OF TEXAS §
§
§couNrY OF DENTON
/4 d h A$: =:1F a ss :IT:i?!: : :YT1 ::: it !In =1f:feW:::;I][FyT
SANDY VASQUEZ
Notary Public, State of Texas
Comm. Expires 04-0&2027
Notary ID 134293478
DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
Exhibit A
BEGINNING at an iron rod with a plastic cap stamped “RPLS 3941” found in the northerly right-of-way line of
East McKinney Street (F.M. 426) for the southwest corner of said 121.718 acre tract, common to the southern-
most southeast corner of a called 71.340 acre tract of land described in the deed to Pta Kornu, recorded in
Instrument No. 2019-16175, said Official Records;
THENCE North 02'36'40" East, with a westerly line of said 121.718 acre tract and the easterly line of said
71.340 acre tract, a distance of 1,318.69 feet to an iron rod with a plastic cap stamped “RPLS 3941" found for
the southern-most northwest corner of said 121.718 acre tract, common to the a re-entrant corner of said
71.340 acre tract;
THENCE South 87'59'49" East, with a northerly line of said 121.718 acre tract and a southerly line of said
121.718 acre tract, a distance of 1,424.29 feet to a wood fence corner post found for a re-entrant corner of
said 121.718 acre tract, common to the eastern-most southeast corner of said 71.340 acre tract, from which a
3/8" inch iron rod found bears South 21'32'43" West, a dIstance of 0.33 feet;
THENCE North 02'24’32' East, with a westerly line of said 121.718 acre tract and an easterly line of said 71.340
acre tract, a distance of 1,231.77 feet to a 6-inch metal fence corner post found for the northwest corner of
said 121.718 acre tract, common to the southwest corner of a called 11.975 acre tract of land described Tract 1
in the deed to MTI Realty, LLC, recorded in Instrument No. 2017-7046, said Official Records;
THENCE South 88'08'16” East, with a northerly line of said 121.718 acre tract and the southerly line of saId
11.975 acre tract, a distance of 863.13 feet to a 1/2-inch iron rod found for the northern-most northeast
corner of said 121.718 acre tract, common to an angle point in the southerly line of said 11.975 acre tract, and
common to the northwest corner of a called 4.74 acre tract of land described in the deed to Minhtai
International, LLC, recorded in Instrument No. 2004-17881, said Official Public Records;
THENCE South O1'39'18" West, with an easterly line of said 121.718 acre tract and the westerly line of said
4.74 acre tract, passing the southeast corner of said 4.74 acre tract and continuing with the westerly line of a
called 1.84 acre tract of land described in the deed to the Minhtai International, LLC, recorded in Instrument
No. 2015-49318, said Official Public Records, a distance of 699.50 feet to a 1/2-inch iron rod found for a re-
entrant corner of said 121.718 acre tract, common to the southwest corner of said 1.84 acre tract;
THENCE South 88'16’35' East, with a northerly line of said 121.718 acre tract and the southerly line of said 1.84
acre tract, a distance of 322.07 feet to a 1/2-inch iron rod found for a salient corner of said 121.718 acre tract,
common to the southeast corner of said 1.84 acre tract, common to the southwest corner of a called 1.005
acre tract of land described in the deed to Daniel Michael Gilbert and Sheila Eve Gilbert, recorded in
Instrument No. 2016-50138, said Official Public Records, and common to the northwest corner of a called 2 %
acre tract of land described in the deed to Denton Old Trinity Primitive Church, recorded in Volume 68, Page
407, Deed Records of Denton County, Texas;
THENCE South 02'16'43’ West, with an easterly line of said 121.718 acre tract and the westerly line of said 2 %
acre tract, a distance of 540.40 feet to a 3/8-inch iron rod found for a re-entrant corner of said 121.718 acre
tract, common to the southwest corner of said 2 1/2 acre tract;
THENCE South 87'52'08" East, with a northerly line of said 121.718 acre tract and the southerly line of said 2 %
acre tract, a distance of 204.05 feet to an iron rod with a plastic cap stamped “RPLS 3941” found in the
westerly line of South Trinity Road for the eastern-most northeast corner of said 121.718 acre tract;
THENCE South 02'03'38” West, with the westerly line of said South Trinity Road and an easterly line of said
121.718 acre tract, a distance of 189.45 feet to a 1/2-inch iron rod with a plastic cap stamped “MLS #5799” set
(hereinafter referred to as capped iron rod set) for corner;
THENCE North 87'56'22” West, severing said 121.718 acre tract, a distance of 284.84 feet to a capped iron rod
set for corner;
7
DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
THENCE South 02'03'38" West, severing said 121.718 acre tract, a distance of 926.81 feet to a capped iron rod
set for corner;
THENCE South 87'56'22" East, severing said 121.718 acre tract, a distance of 284.84 feet to a capped iron rod
set for corner in the easterly line of said 121.718 acre tract and in the westerly line of said South Trinity Road;
THENCE South 02'03’38" West, with the easterly line of said 121.718 acre tract and in the westerly line of said
South Trinity Road, a distance of 165.41 feet to an iron rod with a plastic cap (illegible) found in the northerly
line of a tract of land described in the deed to Yes Companies EXP2 WFC, LLC, recorded in in Instrument No.
2016-99303, said Official Public Records, for the eastern-most southeast corner of said 121.718 acre tract;
THENCE North 83'40'44' West, with a southerly line of said 121.718 acre tract and the northerly IIne of said Yes
Companies tract, a distance of 1,485.29 feet to a 5-inch iron pipe found for re-entrant corner of said 121.718
acre tract, common to the northwest corner of said Yes Companies tract;
THENCE South O1'50'4C)" West, with an easterly line of said 121.718 acre tract and the westerly line of said Yes
companies tract, a distance of 896.28 feet to a 6-inch metal fence corner post found an angle point in the
easterly line of said 121.718 acre tract and the westerly line of said Yes Companies;
THENCE South 01'00'21" West, continuing with the easterly line of said 121.718 acre tract and the westerly
line of said Yes companies tract, a distance of 170.76 feet to a capped iron rod set in the northerly right-of-way
line of said East McKinney Street for the southern-most southeast corner of said 121.718 acre tract, common
to the southwest corner of said Yes Companies tract;
THENCE with the northerly right-of-way line of said East McKinney Street, the following three (3) courses:
1. North 55'32'Of" West, with a southerly line of said 121.718 acre tract, passing at a distance of 555.78 feet
a salient corner of said 121.718 acre tract, common to the southeast corner of said 4.430 acre tract, and
continuing on said course with the southerly line of said 4.430 acre tract, a total distance of 732.60 feet to a
capped iron rod set for the beginning of a curve to the right having a radius of 5,679.62 feet, a delta angle of
03'29'50" and a chord bearing and distance of South 53'51'00" East, 346.66 feet;
2. With the southerly line of said 4.430 acre tract and with said curve to the right, an arc length of 346.71 feet
to a capped iron rod set for the southwest corner of said 4.430 acre tract, common to a salient corner of said
121.718 acre tract;
3. North 51'39’59” West, continuing with said southerly line of said 121.718 acre tract, a distance of 566.00
feet to the POINT OF BEGINNING and enclosing 120.034 acres of land, more or less.
DocuSign Envelope ID: D339C66E-3076-44AD-890F-280D7C92BBC3
Exhibit B
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DocuSign Envelope ID: D339C66E-307644AD-890F-280D7C92BBC3
Exhibit C
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