S20-0004cORDINANCE NO.S20-0004c
AN ORDiNANCE APPROVING AN ESCROW AGREEMENT BETWEEN THE CITY OF
DENTON, TEXAS, AND PEDCOR INVESTMENTS, A LIMITED LIABILITY COMPANY,
REGARDING PEDCOR’S FUNDING OF TRAFFIC CONTROL FACILITIES TO BE
CONSTRUCTED AT THE INTERSECTION OF DUCHESS AND S. LOOP 288 ($400,000);
AUTHORIZiNG THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE SAME;
APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN
EFFECTIVE DATE.
WHEREAS, Pedcor Investments, A Limited Liability Company, a Wyoming limited
liability company (“Pedcor”), owns certain real property located at the northwest corner of
Duchess and E. Loop 288, Denton, Denton County, Texas (“Property”); and
WHEREAS, Pedcor is developing a multi-family affordable housing on the Property
known as Denton Grove (“Project”); and
WHEREAS, traffic control facilities at the intersection of Duchess and S. Loop 288 will
be constructed because of the Project with the anticipated cost of the same being $400,000; and
WHEREAS, City Council approved a specific use permit (S20-0004c) related to the
Project, prior to the consideration of this item, which requires approval of the escrow agreement;
and
WHEREAS, the escrow agreement sets forth the Pedcor’s traffic control facilities
responsibility under the City’s rough proportionality calculations ($ 112,640), Pedcor’s voluntary
funding of $400,000 towards the same, and other terms and conditions related to Pedcor’s funding
and the City’s use of the same; and
WHEREAS, the City Council finds that the escrow agreement is in the best interest of the
City; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitations and findings contained in the preamble of this ordinance are
incorporated herein by reference.
SECTION 2. The City Council approves the Escrow Agreement the City and Pedcor,
attached as Exhibit “A“ (the “Escrow Agreement”), and authorizes the City Manager, or his
designee, and the City’s attorneys, to act on the City’s behalf in approving and executing the
attached Escrow Agreement and any and all documents necessary or appropriate to effectuate the
terms of the Escrow Agreement, including expenditure of both the monies deposited by Pedcor in
accordance with the terms and conditions of the Escrow Agreement, and other budgeted City funds
if needed, and to take other actions necessary to complete the Escrow Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by and
rcondeqlby y+ENIX' This Ordinance was passed and approvedby the following vote [ Z - D ]: v U
Aye
34
&
IZr
/
J
aZ
Nay Abstain Absent
Mayor Chris Watts,
Gerard Hudspeth, District 1 :
Keely G. Briggs, District 2:
Jesse Davis. District 3 :
John Ryan, District 4:
Deb Armintor, At Large Place 5 :
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the B:$ day of $$Aer„ bef . 2020
CHRIS
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY:
EXHIBIT “A“
ESCROW AGREEMENT
This Agreement is between the atv of Denton, a Texas home-rule municipal corporation (“City'”), and
Pedcor Investments, A Limited Liability Company, a Wyoming limited liability company ("Owner"}. The Agreement
is effective+he last date that the same is executed by either-City or Owner]-“Effective Date").
1. RECrrALS
A. Owner is a developer of affordable housing in the State of Texas and elsewhere and has
undertaken to develop property within the limits of the City.
B. Owner is developing an affordable housing project within the limits of the City and generally
located at the northwest corner of Duchess Drive and S. Loop 288 (“Project”).
C. Owner submItted to the City a Specific Use PermIt (“SUP’) application (S20-0004) in connection
with its Project. The City, through Council action, approved the SUP before considering action on this Agreement.
D. City owns property immediately east of the Project, and which is on the other side of E. Loop 288,
that is known as the Pebblebrook Open Space and is intended to be developed as a City park.
E. Project-related traffic control rough proportionality studies conducted by the City in connection
with the SUP require the Owner to pay $112,640 (28.6%) towards the cost of the traffIc control facilities to be
located at Duchess Drive and S. Loop 288 (“Project-Related Traffic Control Facilities”) which are estimated to be
$400,000.
F. Owner, while recognizing it has to pay no more than $112,Ma towards the costs of Project-
Related Traffic Control FacUlties, has offered to pay the City $400,aoa for the Project-Related Traffic Control
FaciIIties and, should the total Project.Related Traffic Control Facilities be less than $400,Goa, the Owner desires
the balance to be used by the City for the development of the Pebblebrook Open Space as a City park when
determined to be feasible by the City.
2. TERMS AND CONDITIONS
For and in consideration of the recitals set forth above and the mutual covenants and premises contained
herein, and other good and valuable consideration, the receipt and sufficiency which are acknowledged, the
Parties agree as follows:
A, Term ofAgreqmen+. Bris Agreement shall remain in full force and effect until there are no longer
monies remaining in the Escrow Amount.
B. r > i R I A r I ' I f Pr -E r w Am ' ' . All
City regulatory approvals, including planing, and City-required permits for clearing and gradin& construction
traIler, temporary construction fencing, ternporary construction utilities, and all aspects of constructIon for the
Project will be issued in conformance with the City’s Code of Ordinances, Denton Development Code, the
approved SUP related to the Project, and established CIty procedures and policies.
C. CIty-Required Inspections Related to Project Not Made and Certificates of Oc,cupangy for Project
Na Issued Until E$crQW Deposit Made by Owner. Owner shall deposit $4CD,000 (“Escrow Deposit") with the CIty
before (i) any City-required inspections related to the Project are made and (ii) any certificates of occupancy for
the Project are issued.
ESCROW AGREEMENT (CITY/PEDCOR); 09102020 Page 1 of 7
D. Escrow Established. nIe City and Owner, in accordance with the provisions of this Agreement,
create an escrow account to be established with the City, as Escrow Agent, to be administered by the City Manager
or his designee.
F Use of Escrow Amount. The Escrow Amount shall be used as follows:
i. Proiect-Related Traffic Control Facilities. The Project-Related Traffic Control FaciIIties
shall first be paid by the City from the Escrow Amount. The Escrow Agent shall release monies from the
Escrow Amount as needed to accommodate the timely completion of the Project-Related Traffic Control
Facilities but at the sole direction of the City. The City shall be responsible for the costs of any Project-
Related Traffic Control Facilities more than $400,000. 1f the total costs of the Project-Related Traffic
Control Facilities are less than §400,000, the remaining Escrow Amount shall be used as set forth below.
ii. Pebblebrook Open Space. Any remaining Escrow Amount shall be spent by the City for
use in the development, construction, and equipping Pebblebrook Open Space as a City park when
deemed feasible by the City. The Escrow Agent shall release monies from the Escrow Amount as needed
for the development of the Pebblebrook Open Space as a City park at the sole discretion of the City.
Owner expressly acknowledges and agrees that it will not receive any credit related to the Project
whatsoever for the CIty’s use of these monies.
G. Ngn-LiBbilily of Esgrow Agent. The Escrow Agent shall have no responsibility except for the
safekeeping and delivery of the amounts deposited in the Escrow Account in accordance with this Agreement.
The Escrow Agent shall not be liable for any act done or omitted to be done under this Agreement or in connection
with the amounts deposited in the Escrow Account. If any question, dispute or disagreement arises among any
one or more of the parties hereto and/or any other party with respect to the funds deposited in the Escrow
Account, the proper interpretation of this agreement, the duties of the Escrow Agent hereunder or the rights of
the parties to this agreement, the Escrow Agent shall not be required to act and shall not be held liable for refusal
to act until the question or dispute is settled, and the Escrow Agent has the absolute right at its discretion to do
either or both of the following:
i. withhold and/or stop all further performance under this Agreement until the Escrow
Agent is satisfied, by receipt of a written document in form and substance satisfactory to the Escrow Agent
and executed and binding upon all interested parties hereto, that the question, dispute, or disagreement
has been resolved; or
H. file a suit in interpleader and obtain by final judgment rendered by a court of competent
jurisdiction, an order binding all parties interested in the matter.
G. Owner’s Right to Audit, The Owner, and Its representatives, shall have the right, at its own
expense, to conduct an audit of all books, records, and files maintained by the City in any way related to the
Escrow, Escrow Amount, or use of the same during normal business hours upon giving reasonable notice of tts
intent to conduct such an audit. In the event of such audit, the City shall comply with the reasonable requests of
the Owner, and its representatives, and provide access to aN books, records, and files necessary to the audit and
the Owner shall reimburse the City for its reasonable costs and expenses in connection with such audit.
H. MQdificetIQn. This Agreement can be modIfied only in a writing signed by the Parties. This
Agreement shall constitute the entire understanding between the Parties concerning the subject matter of this
ESCROW AGREEMENT (CIW/PEDCOR); 09102020 Page 2 of 7
Agreement and supersedes and replaces all prior negotiations, proposed agreements, and agreements, written
or oral, relating to this subject.
I. Successors; Permitted Assignments.
i, Successors. This Agreement shaH bind and benefit each of the Parties and their respective
predecessors, successors, assigns and affiliates.
ii. Permitted Assignments, Except as expressly permitted by the terms of this section,
neither party shall have the right or the power to assign this Agreement, or any of its rights under this
Agreement, in whole or in part without the prior written consent of the other party. Owner may assign
this Agreement without written consent to its parent company, a company wholly owned by or controlled
by or under the common control of Owner, to an entity acquiring all or substantially all of the assets of
Owner, or for purposes of securing indebtedness, but no such assignment shall release Owner from the
obligations under this Agreement, unless the City consents thereto in writing. Any such assignee shall
assume and agree to be bound by the terms and conditions of this Agreement. Any consent to an
assignment under this provision shall not be construed as a waiver of this provision with regard to any
subsequent assignment.
J. Governing Low. This Agreement shall be governed by and construed in accordance with the laws
of the State of Texas.
K. Venue and Jurisdiction. The Parties' obligations under this Agreement shall be performable in
Denton County in the State of Texas. Exclusive venue and jurisdiction of any suit involving any dispute concerning
this Agreement shall lie within the state courts of Denton County, Texas or federal courts located in the Eastern
District of Texas.
L. Execution of Counterparts. Separate counterparts of this Agreement may be executed by the
parties with the same force and effect as if all such Parties had executed a single copy of this Agreement.
M. Authority to Bind. Each Party executing this Agreement represents and warrants that he/she has
been authorized to enter into this Agreement on behalf of the Party on whose behalf he/she signed, and that
signatory has full and complete authority to do so.
N. Notices. Any notice, request, instructions or other document to be provided hereunder by either
Party to the other shall be in writing and delivered personally or mailed by certified mail, postage prepaid, return
receipt requested (such personally delivered or mailed notice to be effective on the date actually received) or by
electronic means, such as email.
O. Authority to Execute and Enforceability. Each Party represents, warrants, and covenants to the
other Party or Parties that (i) it has the power to enter into this Agreement and the transactions contemplated in
this Agreement, (ii) each of the undersigned representatives of each Party is duly authorized to execute this
Agreement without the necessity of obtaining any other signature of any other officer, partner, member, manager
or other representative of the Party, and (iii) upon execution and delivery, this Agreement shall constitute a valid
and binding obligation of the Party, enforceable against such Party according to the terms and conditions hereof.
P. Essential Terms. All provisions of this Agreement are considered by all Parties to be essential and
necessary to this Agreement. No Party would have executed the same had all the provisions not been included in
this Agreement.
ESCROW AGREEMEVf {CITY/PEDCOR); 09102020 Page 3 of 7
Q. Recitals. Any recitals in this Agreement are represented by the Parties to be accurate and
constitute a part of the substantive Agreement.
R. Legal Construction. This Agreement will not be construed more favorably or less favorably
between the Parties by reason of authorship or origin of language.
S. Acknowledgment of Project-Related Traffic Control Proportionality Study Costs; Payment of
Escrow Amount Voluntarily Paid.
i. The Owner expressly acknowledges and agrees that the most it is required to pay to the
City for Project-Related Traffic Control Facilities because of the City’s rough proportionality study is
5112,640 (28.6% of the estimated cost of the facilities of $400,000).
ii. The Owner expressly acknowledges and agrees that both the execution of this Agreement
and the payment of the Escrow Amount ($400,000) is made voluntarily by the Owner and not as a
requirement of the City under its Code of Ordinances or Denton Development Code
T. City Impact Fees, Park Dedication Fees, Development Fees, and Other Related Fees and
Development Requirements Still Applicable to Project; Escrow Amount Not Available for Use as Impact Fee Credit
or Subject to Refund. The Owner expressly acknowledges and agrees that the Project is still subject to the
assessment of roadway, water, and wastewater impact fees, park dedication fees, development fees, other
related fees, other development requirements, as well as other dedication, construction, and fee requirements
and costs not associated with Project-Related Traffic Control Facilities. Further, the Owner expressly
acknowledges and agrees that the Escrow Amount, or any part thereof, is not available for use as an impact fee
credit for the Project-Related Traffic Control Facilities or subject to refund
U. Waiver and Release
1.The Owner expressly acknowledges and agrees that:
a. The Escrow Amount it pays in accordance with this Agreement is more
than the City’s Project-Related Traffic Control Proportionality Study requirement and
waives any claim therefor that it may have under any theory of law against the City.
b. All prerequisites to such a determination of Project-Related Traffic
Control Proportionality Study have been met, and that any costs incurred relative to the
payment of the Escrow Amount, though more than the City’s Project-Related Traffic
Control Proportionality Study requirement, are related both in nature and extent to the
Project upon the City and its needs related thereto.
c. Owner further expressly acknowledges and agrees that its waives any
claims against the City for reimbursement of the Escrow Amount should the City receive
additional monies as the result of the other development that would be subject to
contribution to the Project-Related Traffic Control Facilities based on a rough
proportionality analysis.
d. Owner has no vested rights under Texas law, or any other law, with
respect to the completion of inspections or issuance of certificates of occupancy under
paragraph C if the Escrow Amount has not been paid and, further, waives any and all
ESCROW AGREEMENT (CITY/PEDCOR); 09102020 Page 4 of 7
claims against the City it may have , including liability under Section 212.904 of the Tex.
Loc. Gov’t Code, as amended, related to the same is the Escrow Amount has not been
paid
ii. Both Owner and City further agree to waive and release all claims one may have against
the other related to the Escrow Amount or Project-Related Traffic Control Proportionality Study.
IN WITNESS WHEREOF, the undersigned, being duly authorized representatives of the Parties hereto, have
executed this Agreement as of the Effective Date.
[REMAINDER OF THIS PAGE LEFT BLANK; SIGNATURE PAGES TO FOLLOW]
ESCROW AGREEMENT (CITY/PEDCOR); 09102020 Page 5 of 7
SIGNATURE PAGE - OWNER
PEDCOR INVESTMENTS, A limited Liability Company
lty company
Signature
CnAf6 bl. L\aRE/t
Printed Name
S\{ p beV£Goe/~KMT
Title
AcknQwledgement
State of 1 uk ANA
COUnty of (+ AbrLPAr
g
g
His Escrow Agreement was acknowledged before me by dIIAte L+• L.\NTNOL [name of person
signing agreement] a $x P bev eu eh4-'i- [title of person signing agreement] of Pedcor Investments,
Limited Liability Company, a Wyoming limited liability company, on behalf of said limited liability company.
Given under my hand and seal on this /c>Nof September 2020.
[Seal}M,ou,A
Notary Public, State of in diRac
ESCROW AGREEMEFfr (CITY/PEDCOR); 09102020 Page 6 of 7
SIGNATURE PAGE . CITY
CITY OF DENTON.
pH corporation
ileman, City M£nager
Acknowledgement
State of Texas g
Denton County g
Before me, the undersigned authority, on this day personally appeared Todd Hileman, known to me to
the be person whose name is subscribed to this Escrow Agreement, and acknowledged to me that she executed
the same in his capacity as City Manager of the City of Denton, a Texas home-rule rnunicipal corporation, on behalf
of said corporation, for the purposes and consideration therein expressed.
grId seal on this 'September 2l1
}aRISA LEIGH Ric}aRDSifMy ID # 131826791
ExlgBS DewaR 14. na
;Gry Public, State of Texas
R=s )?7%dJ; e =e ::ayA?
ArrEST blURB'i i
TW:I
THIS AGREEMEVr HAS BEEN
BOTH REVIEWED AND APPROVED
as to financial and operational
obligatiol Id business t
;;$rb'+,a,//'/%a%
'@,Atp4fKkl JPueeS
Department
Date SIgned:
ESCROW AGREEMEhrr (crrY/PEDCOR); 09102020 Page 7 of 7