20-838S:\Legal\Our Documents\Ordinances\20\Hercules Drive Ordinance -TL rev.docx
ORDINANCE NO. 20-838
AN ORDINANCE AUTHORIZING THE CITY MANAGER, OR HlS DESIGNEE, TO
EXECUTE A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DENTON AND
SHERCROSS DEVELOPMENT, LLC FOR THE INSTALLMENT OF CRITICAL
INFRASTRUCTURE RELATED TO HERCULES DRIVE; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Shercross Development, LLC (the "Developer") is in the process of
developing multiple tracts adjacent to Hercules Drive (the "Subject Property"); and
WHEREAS, Hercules Drive is not yet completed; and
WHEREAS, the Developer proposes to fully construct Hercules Drive, between Stuart
Road and Sherman Drive, to its ultimate buildout in exchange for Roadway Impact Fee credits;
and
WHEREAS, City staff has reviewed the request and supports the proposed Development
Agreement (the "Agreement"); and
WHEREAS, the City Council of the City of Denton hereby finds that the Agreement
between the City of Denton and the Developer for the installment of critical infrastructure related
to Hercules Drive serves a municipal and public purpose and is in the public interest; and
WHEREAS, the City of Denton and Developer have negotiated the Agreement for the
mutual benefit of the parties and the general public, a copy ofwhich is attached hereto as Exhibit
"A" and made part hereof by reference, NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON ORDAINS :
SECTION 1. The City Council finds that the recitals made in the preamble of this
Ordinance are true and correct, and incorporates such recitals into the body of this ordinance as if
copied in their entirety.
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Agreement attached hereto as Exhibit "A," and to carry out the duties and responsibilities of the
City under the Agreement, including the expenditure of funds as set forth therein.
SECTION 3. This Ordinance shall become effective immediately upon its passage.
The motion to approve this ordinance was made by KffL.Y 6!2tG&§ and
seconded by u(;oSC" JJrtf/16 , the ordinance was passed and approved by
the following vote [ ~-_QJ :
Aye Nay Abstain Absent
Chris Watts, Mayor:
Gerard Hudspeth, District 1 : /
Keely G. Briggs, District 2: ./
Jesse Davis, District 3: ,f
John Ryan, District 4: V
Deb Armintor, At Large Place 5: V
Paul Meltzer, At Large Place 6: ./
? st /Jil_,/ R / PASSED AND APPROVED this the q(-day of ____._.~=,-~"-=--------'' 2020.
CHRJSW~S~
ATTEST:
ROSA RIOS, CITY SECRETARY
BY:-~-~
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
DocuSfgn Envelope 10: 6967FD33-6C52-4820-AOC2-35F81500C35C
STATE OF TEXAS §
§
COUNTY OF DENTON §
DEVELOPMENT AGREEMENT
This Developn;tent Agreement (''Agreement") is entered into by Shercross Development_
~ acting by and through its duly authomed officers, with a principle place ofbusiness located
at 5428 Lake Victoria Ct, Flower Mound, Texas 7S022 ("Developerj, and City of Denton. a
homo-rule city and a political subdivision of the State of Texas, acting by and through its duly
authorized officers (the "City;" De~er and City herein .referred to collectively as the
"Parties''); is effective April, d( f'.---, 2020 (the "Effective Date").
WITNESSETH:
WHEREAS, Developer owns five (S) tracts of land as more particularly depicted on
Exhibits "A" -"E" attached hereto ("the Subject Property''); and
WHEREAS, City's development code provides that building permits may not be issued
or approved as completed until allt-equirements of the development code have been satisfied; and
WHEREAS, it is desirous of all parties to stipulate and agree to the terms and conditions
associated with the acquisition of necessary property interest, installment of critical inftastructure,
and provision of electrical services to the Subject Property; and
WHEREAS, the parties desire to formulate this Agreement as a recorded oovenant
running with the land, to ensure that Developer and its successors~ if any, carry out Developer's
obligations in accordance with this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and obligations herein ,
the patti~ agree as follows:
SECTION 1. DEVELOPER PARTICIPATION
Developer and its successors and assigns, if any. agree to the terms and conditions stated herein,
and in accordance with the following schedule:
Complete street reconstruction on W. Hercules Drive from Stuart Road to Sherman Drive, to the
specifications or as shown in Exhibit F, shall be expressly credited to any future Road Impact Fees
(RIF) and such credits may be assignable, at the Developer•s discretion, in whole or in part, to all
future home bullders and commercial development within Sherman Crossing Addition 2A, 28,
Shennan Crossing Commeroial, and Hercules West Addition 2C up to S1,795t267, as specified
and up to the ~ts as expressed below based on Development phases:
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SHERMAN CROSSING ADDITION BEING 30.58 ACRES 1N Tim S.McCRACKBN,
ABSTRACf NUMBER 817, CITY OF DBNTON, DENTON COUN1Y, TBXAS. LOTS 1-4
BWCK A, 14 BLOCK B, 1-2 BLOCK. C, CA-l 3 BLOCK C
SHERMAN CROSSING ADDITION BEING 14.94 ACRES IN THE S. McCRAKEN,
ABSTRATCT NUMBER 817, CITY OF DENTON, DENTON COUNTY TEXAS, LOTS
BLOCK A
SHERMAN CROSSING ADDITION, PHASE~ BEING 21.57 ACRES IN THE S.
McCRAKBN SURVEY, ABSTRACT NUMBER 817, CITY OF DENTON, DENTON
COUNTY, TEXASWTS 14-26BLOCKA, 1-23BLOCKB, 1-19BLOCKC, 1~18BLOCKD,
1-13 BWCK. B, 1-8 BWCK F, LOTS lwlO BLOCK G.
DocuSign Envelope ID ; 6967FD33-6C52-4320-AOC2-35F81500C35C
SHERMAN CROSSING ADDITION~ PHASE 2B, B:ElNG 18.74 ACRES IN THE
S.McCRAKEN SURVEY, ABSTRACT NUMBER 817, CITY OF DENTON, DENTON
COUNIY, TEXAS. LOTS: 1-13 BLOCK. A, 1-7 BLOCK.B, 1-36 BLOCK C, 1-21 BLOCK D,
1-7BLOCKE,9-16BLOCKF, 11·20BLOCKG.
HBRCULES WEST ADDmoN, PHASE 2C BEING 3.14 ACRES IN TilES. McCRACKEN
SURVEY, ABSTRACTNUMBBR 817, Cl1Y OFDBNTON, DENTON COUNTY, TEXAS.
LOTS 1-lOBLOCKBAND 1-8BLOCKC.
~:ECfJON 2. CITY PARTICIPATION
City agrees tbat it shall participate in the cost of the cost ofW. Hercules consbuction, as shown in
Bxhlbit G, up to thirty percent (30%) of the estimated total cost of $2,090,462.99, being a
maxjmum of$627,139.00. of City participation. Daveloper acknowledges and accepts that fhe
City's participation shall not exceed the maxittmm. as specified and any excess cost of construction
is 1he responsibility of Developer.
DocuSign Envelope 10: 6967FD33..SC52-4820-AOC2-35F81500C35C
Developer shall submit an invoice based on project completion. If the City fails to make payment
due to the Developer within thirty (30) days after receipt of the Developers undisputed invoice
thereof: the amounts due to the Developer will be paid interest in accordance with the Texas
Government Code 2251.025. The City wlll notify the Developer of any disputes within twenty-
one (21) days of receipt of the invoice.
Invoices shall be sent directly to the City of Denton Accounts Payable Department, 215 B
McKinney St, Denton, TX, 76201-4299.
SECl'ION 3. TERM
The term of this Agreement shall begin on the latest date of execution by either Party, and end
upon the complete performance of all obligations and conditions precedent by the Parties to this
Agreement Upon execution, this Agreement shall be recorded in the Denton County Real
Property Records as covenants running with 1he land~ burdening subsequent purchasers of the
Subject Property or any part thereof, if any, until all obligations of the Developer are satisfied in
full.
ftEQ'ION 4. INDEMNITY
DEVELOPER SHALL INDEMNIFY AND HOLD HARMLESS THE CITY, MEMBERS OF
THE CITY COUNCIL, AND ITS OFFICERS5 EMPLOYEES, AGENTS,
REPRESENTATIVES, AND CONSULTANTS (HACHPBRSON DESCRIBED HERBIN
CALLED AN "INDBMNIFIED PARTY" AND COLLECTIVELY, THE "INDEMNIFIED
PARTIES'') AGAINST ANY AND ALL INDEMNIFIED LIABUJTIES. IF AN INDEMNIFIBD
PARTY INCURS ANY INDBMNIFIED LIABll.JTIBSt THB DEVELOPER SHALL FULLY
REIMBURSE SUCH INDEMNIFIED PARTY FOR ALL SUCH INDBMNJF.IED LIABILITIES
INCURRED. HOWEVER, THE DEVELOPER WILL NOT BE REQUIRED TO INDEMNIFY
AND/OR HOLD HARMLESS ANY INDHMNIFIIID PARTY FOR ANY LOSSES OR
INDBMNIFIBD LIABILITIBS THAT RESULT FROM THB INDEMNJFIED PARTY~s SOLE
NEGLIGENCE, INTENTIONAL MISCONDUCT, OR KNOWING VIOLATION OF THE
LAW. TO THB BXTBNT APPLICABL.B, THB DEVELOPER SHALL BE SUBROGATED TO
ANY CLAIMS OR RIGHTS OF THE INDBMNIFIED PARTIBS AGAINST ANY OTHER
PERSON (BUT NOT AN lNDBMNIFIBD PARTY) WITH RESPECT TO INDEMNIFIED
LIABILITIES PAID BY TIIB DEVELOPER.
FOR PURPOSES OF THIS SBCI'ION 4. "INDEMNIFJED LIABILITIBSso IS DEFINED TO
INCLUDE ALL LOSSES INCURRBD BY ANY OF THB INDEMNIFlED PARTIES THAT
ARB RBLATBD TO, ARISE OUT OF, OR ARB ASSOCIATED WITH: (1) ANY BRBACH OF
OR INACCURACY IN ANY REPRESENTATION OR WARRANTY MADE BY THE
DEVELOPER OR THOSE UNDHR ITS CONTROL; (2) ANY BREACH OR
NONPERFORMANCE, PARTIAL OR TOTAL, BY DEVELOPERS OR THOSE
UNDER ITS CONTROL, OF ANY COVENANT OR AGREEMENT OF THE DEVELOPER
CONTAINED HEREIN ; (3) ANY CONDITION CREATED IN OR ABOUT THE SlTE OF
THE WORK CONTEMPLATED BY TinS AGREEMENT; AND (4) ANY ACCIDENT,
DocuSign Envelope ID : 6967FD33-6C52-4820-AOC2-35F81500C35C
INJURY (INCLUDING DEATH), OR PROPERTY DAMAGE WHATSOEVER OCCURRJNG
IN, AT, OR UPON THE SITE OF Tim WORK CONTEMPLATED BY TillS AGRBBMENT.
SECfiON 5. REMEDIES
If a default by the Developer shall occur and continue, after thirty (30) days written notice to cure
default, City may, at its sole option, tenninate 1his Agreement in accordance with Texas law,
without the necessity of further notice to or demand 1Jpo!l the Developer.
If a default by the City shall occur and continue, after thirty (30) days written notice to cure default
Developer may, at its sole option, terminate this Agreement in accordance with Texas law, without
the necessity of further notice to or demand upon the City.
All warranty and indemnification obligations herein shall survive any termination or assignment
unless the Party warranting, or indemnifYing, is released by the othel· Party. Nothing in this Section
shall be construed to waive any sovere.ign, govemmental 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 action that is available to the City under or as a result
of this Agreement, in equity or at law.
SJCfiON 6. VENUE AND GOVERNING LAW
This Agreement is performable in Denton County~ Texas, and venue of any action arising out of
this Agreement sball be exclusively in Denton Cowty, Texas. This AgJ:eement 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 shan 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
Todd HiletnaJl, City Manager
215 East McKinney
Denton, Texas 76201
DocuSign Envelope 10: 6967FD33-6C52-482o-AOC2·35F81500C35C
With a copy to:
City of Denton
215 E. McKinney Street
Denton, Texas 76201
Attention: Aaron Leal
City Attorney
Fax No.: (940) 382-7923
If intended for Developer, to:
Shercross, LLC.
5248 Lake Victoria Ct
Flower Mound, Texas 75022
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 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 ofthe provisions contained in this Agreement shall for any reason be held
to be invalid, ilJegal, 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 instrument.
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
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The terms and conditions of this Agreement arc binding upon the successors and aslligos of the
Parties to this Agreement and stand as obligations running with the land until satisfied in fbll,
regardless of whether the Subject Property is developed as the Development, or as any other
alternative use.
8Effi0N 13. ENTilU! 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 tbi8 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 Section
1 and 1he obligations of die City set forth in Section 2. The Parties tbrthor stipulate that with
respect to the limited scope oftbis 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.
EXECU'l1ID this a # day of April2020, by the City, signing by and through
its City Manager, and by the Developer, acting through its duly authorized officers.
CITY OF DENTON
Todd Hileman
City Manager
A TrEST:
Rosa Rios, City Secretary
By: e.~-~.
TillS AGREEMENT HAS BEEN
BOTH REVIBWED AND APPROVED
as to financial and operational
ob~Um& k~~
APPROVED AS TO LEGAL FORM:
:~~
STATEOFTEXAS §
§
COUNTY OF DENTON §
SHERCROSSDEVELOPMENT,LLC
By and through its authorized agent:
tfN!J.J!L S!l711(ffrn t)
ACKNOWLEDGMENTS
This instrument was acknowledged before me on the ~~y of April 2020 by Todd
Hileman, being City Manager of the City of Denton, a Texas home-rule municipal corporation,
on behalf of said municipality.
STATE OF TEXAS §
§
COUNTY OF DENTON §
KARISA LEIGH RICHARDS
My Notary ID # 131826791
Expires December 14, 2022
·····'$'Y''Pi/"·• REBECCA ARNOLD /<:~~"<-~\ Notary Public
! · ~. · ~ State ofTexas
\t~ '\¢.,~/ 10 # 2860489
...... .,'i!f ...... ~ Comm. Expires 05/21/2022
Nam~thlb
Notary Public, State of Texas
DocuSign Envelope ID: 6967FD33-6C52-4820-AOC2-35F81500C35C
Exhibit A
Sherman Crossing Commercial30.58 Acres
+f
OocuSign Envelope 10: 6967FD33-6C52-4820-AOC2-35F81500C35C
Bxln"bitB
Shorman Commercial14.94 Acres
I
~~~
·+I
oocuSlgn Envelope 10: 6967FD33-6C52-482o-AOC2-35F81500C35C
BxbibitC
Sherman Crossing Addition Phase 2A
DocuSign Envelope 10: 6967FD33-6C52-482G-AOC2-35F81500C35C
Exln'bitD
Sherman Crossing Addition Phase 2B
'
• . .
.
II
IIIli
11m
DocuSign Envelope 10: 6967FD33-6C52-4820-AOC2-35F81500C35C
BxhibitE
Hercules West AdditiQn Phase 2C
DocuSign Envelope 10: 6967FD33-6C52-482D-AOC2-35F81500C35C
ExbibitF
Hercules Road Reconstruction Specifications
!ABLE (
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SUIIG!tAOi ~Pl!f · Sf£ ~Am£, ~1: (1m. SJ:ITi)
~? ·,\Mllt£.ttil1ij~.m\\'s~· .... 'P1BUilUO~.
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DocuSign Envelope ID: 6967FD33-6C52-482Q-AOC2·35F81500C35C
Bxln'bitO
Hercules Road Reconsbuction Cost Estimate
8" Section 1.849.967.25
Materials 18A99.67
Material Testing 18.499.67
Erosion 46.249.18 ..... . . LliU~Ya8100 92,498.36
Inspection Fee 64.748.85
Total $ 2,090,462.98