HL Fund II Development Agreement STATE OF TEXAS §
COUNTY OF DENTON §
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") is entered into by HL FUND II
DENTON, L.P., a Texas limited partnership ("Developer"), acting by and through its duly
authorized officers,with a principle place of business located at 5950 Berkshire Lane, Suite 900,
Dallas,Texas 75225,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,
41
Denton, Texas 76201; is made and entered into this 'day of_1 207t (the
"Effective Date").
WITNESSETH:
WHEREAS,Developer is the owner of certain real property on the northeast comer of Jim
Christal Road and North Masch Branch 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, is also designing, constructing and installing the following
improvements to Jim Christal Road: addition of two lanes,a median,storm sewer improvements,
and sidewalk on the northern portion of said road from North Masch Branch Road and extending
east approximately 1,264 feet; and also designing, constructing and installing the following
improvements to North Masch Branch Road: addition of two lanes, storm sewer improvements,
and sidewalks from Jim Christal Road and extending north for approximately 818 feet adjacent to
the Property(the"Developer Improvements"); and
WHEREAS,the City of Denton owns real property on the southeast corner of Jim Christal
Road and North Masch Branch Road, described and depicted on Exhibit B, attached hereto and
made a part hereof for all purposes(the"City Owned Property"); and
WHEREAS,the widening of Jim Christal Road is identified as Project A-2 on the Capital
Improvement Plan adopted on June 21,2016 by the City of Denton via Ordinance 201 6-189; and
WHEREAS, the City has adopted the 2022 Mobility Plan (the "Mobility Plan"),
comprising a thoroughfare plan map and associated thoroughfare standards, guiding the buildout
of the City's roadway,sidewalk,and on-street bicycle transportation network.The Mobility Plan
identifies Jim Christal Road as a Secondary Arterial roadway to be four(4)lanes from I-35 to FM
156;and
WHEREAS, the Developer agrees to widen Jim Christal along the City Owned Property
by designing,constructing and installing the following improvements to Jim Christal Road:adding
Development Agreement 1 Jim Christal Roadway
two lanes,storm sewer improvements,and 10'-wide sidewalk on the southern portion of said road
from North Masch Branch Road and extending east approximately 710 feet, adjacent to the City
Owned Property,as described and depicted on Exhibit C,attached hereto and incorporated herein
for all purposes(the"Project');
WHEREAS, the Project represents a facility expansion that will benefit Developer's
Property and the City with increased capacity that will improve mobility and reduce congestion
adjacent to the Property and City Owned Property; and
WHEREAS,the estimated cost to complete the Project is$643,107.00, as detailed on the
attached Exhibit D, attached hereto and incorporated herein for all purposes (the "Project
Estimate");and
WHEREAS,the City, in accordance with its ordinances, wishes to participate in the cost
of designing,constructing and installing the Project; and
WHEREAS,the City and Developer desire to enter in this Agreement to provide for cost
sharing of improvements described on the Mobility Plan; and
WHEREAS, the City and Developer desire to set forth, in writing, their understandings
and agreement regarding the design, construction and installation of the Project as more fully set
forth herein;and
WHEREAS, to support pedestrian, bicycle, transit, and vehicle connectivity, the City
desires the Developer to design and construct roadway and pedestrian improvements as shown in
Exhibit C; and
NOW,THEREFORE,in consideration of the mutual promises and covenants contained
herein Developer and the City do hereby AGREE as follows:
SECTION 1. DESIGN AND CONSTRUCTION
A. Design and Construction Value Fees.
1. Developer agrees to design plans for the Project with the Developer Improvements in
accordance with and subject to the City's review and approval through the Development
Review Process. Upon approval of civil plans, the City will reimburse the Developer the
amount associated to design and engineering costs as outlined in Exhibit D.
2. Developer agrees to construct and install the Project with the Developer Improvements in
accordance with and subject to the City's review and approval through the Development
Review Process. The City shall pay the remainder of the Project Estimate to Developer
within(30)days from final civil plan approval by development review.
Development Agreement 2 Jim Christal Roadway
3. City and Developer desire to implement a"true-up"process.To the extent that the overall
costs of the Project are greater than the Project Estimate on Exhibit D,City will recalculate
the total cost overruns,and,to the extent the total costs actually paid by the Developer for
the Project exceed the Project Estimate,City will pay the difference to the Developer,but
in no event will City pay more an overrun of more than 10%of the Project Estimate.If the
Developer's total costs for the Project are less than Project Estimate,Developer will refund
the difference to the City.
SECTION 2. TERM
The term of this Agreement shall begin on the Effective Date and end upon the complete
performance of the Project and Developer Improvements,as well as all obligations and conditions
precedent by the parties to this Agreement. The City will issue a document indicating the
obligations have been satisfied in full.
SECTION 3. DESIGN AND CONSTRUCTION
1. Within 30 days of the the Effective Date, the Developer shall initiate the design of the
Project outlined in Exhibit C. The Developer shall provide the City with regular updates
on the progress of the design and shall ensure that all work is performed in accordance with
applicable regulations and standards.
2. Prior to the commencement of construction of the Project, the Developer shall execute a
performance bond for the construction of the Project and Developer Improvements in the
amount of the total construction price for the Project and Developer Improvements to
ensure completion of the Project and Developer Improvements.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 Project. Developer shall repair and/or replace all defects due to faulty
materials and workmanship that appear within a period of two (2)years from the date of
final completion and final acceptance of the Project and Developer Improvements by City.
Upon completion and acceptance of the Project and Developer Improvements, the
Developer shall provide a two-year maintenance bond in the amount of the cost of the
Project and Developer Improvements.
3. The Developer agrees to commence construction of the Project within thirty (30) days
following the issuance of the full Project Estimate payment by the City and being released
for such construction by the City.The City's full Project Estimate payment shall be deemed
issued upon receipt of funds by the Developer.In the event that the Developer fails to begin
construction within the specified timeframe,the City shall have the right to terminate this
Agreement in accordance with the provisions set forth in Section 4 and other terms of this
Agreement.
Development Agreement 3 Jim Christal Roadway
4. The Developer will complete construction of the Project and Developer Improvements
within 24 months of commencement of the Project and Developer Improvements.
SECTION 4. REMEDIES
If a default by the Developer occurs and continues, after thirty (30) days written notice to cure a
default, City may, at its sole option, terminate this Agreement in accordance with Texas law,
without the necessity of further notice to or demand upon the Developer. If the Agreement is
terminated,the Developer shall promptly reimburse the City any funds not already expended.
All warranty and indemnification obligations herein shall survive any termination or assignment
unless the party warranting,or indemnifying,is released by the other party.Nothing in this Section
shall be construed to waive any sovereign,governmental immunity available to City,or its council,
employees,and/or agents,under Texas law.Nothing in this Section,nor the election of the City to
not exercise a right or seek a remedy at a particular time,shall be construed as a waiver or release
of any right, remedy, or cause of a.tiun that is available to the City under or as a result of this
Agreement,in equity or at law.
SECTION 5. INDEMNITY
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
R
PERSON OCCASIONED BY ANY ACT OR OMISSION, NEGLECT, O
WRONGDOING OF THE DEVELOPER, ITS OFFICERS, AGENTS, EMPLOYEES,
INVITEES, OR CONTRACTORS,AEMENT OR HAND THE DEVELOPER SHALER PERSONS WITH REGARD L, IITS
PERFORMANCE OF THIS
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 WHATSOEVER THAT THAT ARE CAUSEDES, LOSSES, OR
BY THE CITY S
LIABILITIES OF ANY KIND
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 WITII THE LAWS OF THE STATE OF TEXAS WITHOUT,
HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE
CITY OR WAIVING ANY OF THE DEFENSES OF THE PARTIES UNDER TEXAS
VENT OF JOINT AND CONCURRENT NEGLIGENCE OR
LAW.FURTHER,IN THE
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 ENEFIT OFT HE PARTIES THE SIONS OF HERETOTHIS
AND
PARAGRAPH ARE SOLELY
Development Agreement
4 Jim Christal Roadway
NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR
OTHERWISE,TO ANY OTHER PERSON OR ENTITY.
THIS INDEMNITY IS SUBJECT TO THE LINIITATIONS IN TEXAS LOCAL
GOVERNMENT CODE §271.904(A)AND TEXAS CIVIL PRACTICE AND REMEDIES
CODE,§ 130.002 (B).
INDEMNIFIED ITEMS SHALL ALSO INCLUDE ANY EXPENSES, INCLUDING
ATTORNEY'S FEES AND EXPENSES, INCURRED BY AN INDEMNIFIED
INDIVIDUAL OR ENTITY IN ENFORCING THIS INDEMNITY.
SECTION 6. VENUE AND GOVERNING LAW
This Agreement is performable in Denton County,Texas, and venue of any action arising out of
this Agreement shall be exclusively in Denton County,Texas.This Agreement shall be governed
and construed in accordance with the laws and court decisions of the State of Texas.
SECTION 7. NOTICES
Any notice required by this Agreement shall be deemed to be properly served if deposited in the
U.S.Mail by certified letter,return receipt requested,addressed to the recipient at the recipient's
address shown below,subject to the right of either party to designate a different address by notice
given in the manner just described.
If intended for City to: The City of Denton
Sara Hensley,City Manager
215 East McKinney
Denton,Texas 76201
With a copy to:
City of Denton
215 E.McKinney Street
Denton,Texas 76201
Attention:Mack Reinwand
City Attorney
Fax No.: (940)382-7923
If intended for Developer,to:
HL FUND II DENTON,L.P. a Texas limited partnership
5950 Berkshire Lane, Suite 900
Dallas,Texas 75225
Development Agreement
5 Jim Christal Roadway
SECTION 8. APPLICABLE LAWS
This Agreement is made subject to the provisions of the Charter and ordinances of City, as
amended, and all applicable state and federal laws. The parties to this Agreement stipulate that
this Agreement does not satisfy any other development obligation under law or City ordinances.
SECTION 9. SEVERABILITY
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 thereof and this Agreement shall be
considered as if such invalid,illegal,or unenforceable provision had never been contained in this
Agreement.
SECTION 10. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be deemed
an original and constitute one and the same insti-ument.
SECTION 11. CAPTIONS
The captions to the various clauses of this Agreement are for informational purposes only and
shall not alter the substance of the terms and conditions of this Agreement.
SECTION 12. SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement are binding upon the successors and assigns of the
parties to this Agreement and stand as obligations running with the land until satisfied in full,
regardless of whether the Property is developed.
SECTION 13.ENTIRE AGREEMENT
This Agreement embodies the complete agreement of the parties hereto, superseding all oral or
written previous and contemporary agreements between the parties relating to matters contained
in this Agreement and, except as otherwise provided in this Agreement, cannot be modified
without written agreement of the parties to be attached to and made a part of this Agreement.The
scope of this Agreement is limited to the specific obligations of the Developer set forth in Sections
1,2 3,4,and 5 and the obligations of the City set forth in Section 1.The parties further stipulate
that with respect to the limited scope of this Agreement, the funds provided are not
disproportionate to the burdens of the development.The parties stipulate that this Agreement does
not constitute a permit for development under Chapter 245 of the Texas Local Government Code.
Development Agreement 6 Jim Christal Roadway
SECTION 14.DEVELOPER WAIVER AND RELEASE
The Developer expressly acknowledges and agrees that the execution of this Agreement is made
voluntarily by the Developer and not as a requirement of the City under its Code of Ordinances or
Denton Development Code.
The Developer expressly acknowledges and agrees that the Developer Improvements are still
subject to the assessment of water and wastewater impact fees, as well as other dedication,
construction,and fee requirements and costs not associated with the Project.
Developer further expressly acknowledges that the nexus between the Developer Improvements
and the City's payment for the Project are roughly proportional to the burden imposed by the
development and waives any claim therefor that it may have under any theory of law against the
City.
EXECUTED on the Effective Date,by the City, signing by and through its City Manager,and by
the Developer, acting through its duly authorized officers.
CITY OF DENTON
Sara Hensley
City Man e
BY:
ATTEST:
Lauren Thoden,City Secretary
By: 0(
THIS AGREEMENT HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
o ' �ons and bus' a S.
Sig ure nn 11 l
Title S eAv%,Le,S
APPROVED AS TO LEGAL FORM:
Mack Reinwand,City Attorney
By. Mack Rerhw(wi
Development Agreement 7 Jim Christal Roadway
ACKNOWLEDGMENTS
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the 2$ `day of ALMLA(,lr Lj 20L by Sara
Hensley,being City Manager of the City of Denton,a Texas home-rule municipal corporation,on
behalf of said municipality.
Name:
Notary Pubic" State of Texas
'O;NY-" CLARICE MARIE HOUSDEN
:•. My Notary ID#132065325
Expires June25,2027 My Commission expires:
Development Agreement 8 Jim Christa)Roadway
DEVELOPER
HL FUND H DENTON, L.P., a Texas Limited
Partnership
By: HL FUND II DENTON GP Series II,
LLC,a Texas series limited liability company
By and through its authorized agent:
(Print)
�' p op a
4g(Title)
ACKNOWLEDGMENTS
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the _{' day of SAgUkZy 20.75 by
t•:J_cj , being of the HL FUND H DENTON, L.P., a Texas limited
partnership,on behalf of BL FUND II DENTON GP Series II,LLC,a Texas series limited liability
company.
♦��TYP'd, JASON YOUNG Na e:
sff o'sNotary Public,State of Texas N tart' U liC, tate O �Yas1
'i�: 'Q� Comm.Expires 10-16-2028
%,,Of ;o` Notary lD135132531
My Commission expires: 1 D J!s a0a$
Development Agreement 9 Jim Christal Roadway
EXHIBIT A
The Property
BEING ALL OF LOT 1. BLOCK A. NUSCH BRANCH INDUSTRUL. AN L)DITIO� TO THE CITY OF
DENTON. DENTON COUNTY. TEXAS ACCORDING TO THE PLAT RECORDED IN DOCIU.MENT N. O.
2023-19S IN THE PLAT RECORDS OF DENTON COLNTY.TEXAS.
Development Agreement 10 Jim Christal Roadway
Exhibit B
City Owned Property
Tract 1
A1222A J.SCOTT,TR 3,4.73 ACRES,OLD DCAD TR 1
Tract 2
A1222A J.SCOTT,TR 213, 11.441 ACRES
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4609
Development Agreement 11 Jim Christal Roadway
Exhibit C
The Project
Attached.
Development Agreement 12 Jim Christal Roadway
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Exhibit D
Project Estimate
Attached.
Development Agreement 13 Jim Christal Roadway
Contractor: Bratien Construction Company
Address: 1701 E.Lamar Blvd.,Suite 290
Arlington,TX 76006
Phone M 214-205-7354
Fax M
Email: '��a
Bid Date: 7/20/2023
Exhibit D
PROJECT: Masch Branch Industrial Road Plans
PROJECT NUMBER PCM23-0013
OPINION OF PROBABLE CONSTRUCTION COST
Public Sidewalk:
Location To&From: WIDTH(ft) LENGTH(ft) TOTAL CITY(sf) UNIT UNIT PRICE TOTAL
Total 5 2491 12455 SF $ 8.10 $ 100,885.50
Total 10 353.5 3535 SF $ 6.50 $ 22,978.00
Public Sidewalk Subtotal: $ 123,863.50
Paving:
Description CITY UNIT UNIT PRICE TOTAL
11"Reinforced Concrete 9485 SY $ 97.50 $ 924,787.50
Asphalt Pavement 775 SY $ 52.50 $ 40,687.50
Signage and Striping 1 LS $ 32,000.00 $ 32,000.00
Barrier Free Ramps 12 EA $ 750.00 $ 9,000.00
11"Reinforced Concrete 28441 SF $ 13.70 $ 389,779.00
Paving connection&tie in 28441 SF $ 0.86 $ 24,459.00
Monolithic curb(6") 1712 LF $ 6.00 $ 10,272.00
Lime stabilization(8%,12") 28441 SF $ 1.03 $ 29,231.00
ADA Ramps 4 EA $ 1,100.00 $ 4,400.00
Sealants&striping 33688 SF $ 0.62 $ 20,988.00
Landscaping allowance 1 EA $ 25,000.00 $ 25,000.00
Utility relocation allowance 1 EA $ 40,000.001 $ 40,000.00
Paving Subtotal: $ 1,550,604.00
Storm Sewer:
Description CITY UNIT UNIT PRICE TOTAL
18"Class IV RCP 390 LF $ 81.00 $ 31,590.00
30"Class IV RCP 240 LF $ 123.00 $ 29,520.00
36"Class IV RCP 683 LF $ 174.00 $ 118,842.00
4'x4'Junction Box 4 EA $ 7,810.00 $ 31,240.00
5'x5'Junction Box 2 EA $ 8,360.00 S 16,720.00
10'Curb Inlet 8 EA $ 7,415.00 $ 59,320.00
Type A Headwall 1 EA $ 29,483.00 $ 29,483.00
Rock Rip-Rap 838 SF $ 19.00 $ 15,922.00
Storm Sewer Subtotal: $ 332,637.00
Design:
Description CITY UNIT UNIT PRICE TOTAL
Design Costs 1 N/A $ 84,000.00 $ 84,000.00
Construction Admin(Westwood) 1 N/A $ 10,000.00 $ 10,000.00
Add'I Roadway Design Costs 1 N/A $ 71,000.00 $ 71,000.00
Construction Admin(Westwood) 1 N/A $ 5,000.00 $ 5,000.00
Design Subtotal: $ 170,000.00
Totall$ 2,177,104.50
Developer Improvements
Project Developer improvements $ 1,533,997.50
Project Estimate $ 643,107.00