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1995-235e:\wpdocs\ord\rpssetl.ord ORDINANCE NO. ~ AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING AND AUTHORI- ZING THE MAYOR TO EXECUTE A COMPROMISE SETTLEMENT AGREEMENT IN THE MATTER OF RPS JOINT VENTURE, ET AL. V. CITY OF DENTON, TEXAS; AND DECLARING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the Mayor, or in his absence the Mayor Pro Tem, is hereby authorized to execute a Compromise Settlement Agreement and Agreed Judgment in the matter of RPS Joint Venture, et al. v. City of Denton, providing for the settlement and compro- mise of the litigation now pending between and among the parties in the District Court of Denton County, Texas, in substantial accor- dance with the terms of the proposed Compromise Settlement Agree- ment and Agreed Judgment attached hereto as Exhibit A. SECTION II. That the Mayor, with the concurrence and approval of the City Attorney, is hereby authorized to alter the form of the proposed Compromise Settlement Agreement and Agreed Judgment, attached hereto as Exhibit A, as necessary to accomplish the sub- stantive goals of said documents, and as necessary to secure agree- ment among the parties and approval by the Court in which the case is currently pending. SECTION III. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the /~' day of -~~/~ , 1995. JENNIFER WALTERS, CITY SECRETARY BY: COMPROMISE SETTLEMENT AGREEMENT AND REI~EASE OF ALL CLAIMS THIS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS (the "agreement") is by and between the CITY OF DENTON, TEXAS ("Denton" or "City"), and RPS VENTURES, INC. ("RPS"), and RAMNIK U. RANA and ?USHPA RANA, (collectively "Rana"), all collectively referred to as the "Parties." The Parties agree as follows: RECITALS 1. RPS is a corporation duly organized and existing under the laws of the State of Texas, and is the sole owner of a tract of land approximately 2.85 acres in size, located within the corporate boundaries of the City and lying within Denton County, Texas, as is more particularly shown on Exhibit A attached hereto (the "property"). 2. Ramnik U. Rana is the president and a shareholder of said corporation, and is fully authorized to transact business for said corporation. Pushpa Rana is the vice-president/treasurer and a shareholder of said corporation. 3. The City's official zoning map adopted in 1969 designat~i most of the property as SF-7 (single-family development), pursuant to Ord. No. 69-01. 4. The City's official zoning map has at least since 1971 shown the property zoned both "Commercial" and "SF-7" in varying proportions. 5. The City's official zoning map at least since 1975 has designated that portion of the property shown in cross-hatching on Exhibit B attached hereto as "Commercial," which is made part of this instrument for all purposes. 6. City repr.esentatives can find no records verifying that the property was rezoned by ordinance from SF-7 to Commercial. 7 RPS and Rana acquired the propert5 m 1994 and haxe since then sought various permits and approvals from Demon relating to the development of their land for a hotel ("Hotel Development") during 1994 and 1995, including but not limited to, applications for plat approval and rezoning. 8. The Hotel Development is an authorized use in a Commercial zoning district, but is a prohibited use in a SF-7 zoning district. 9. RPS and Rana filed an application to rezone the cross-hatched portion of the property shown on Exhibit B to Commercial. 10. A majority of the City Council of Denton voted in favor of the proposed rezoning on June 20, 1995, but such application failed to receive a favorable vote of three-quarters of the City Council members, as required by Section 211.006 of the Tex. Loc. Gov't Code upon receipt of protest signed by at least 20% of the owners of the area of the lots or land immediately adjoining the land to be rezoned and within 200 feet from such area. 11. The City Council of Denton then initiated a proposal to consider various zoning altematives that would permit the Hotel Development on the property.'i e~[he City Planning and Zoning Commission recommended that the cross-hatched portion of the property shown on Exhibit B be rezoned to the Office zoning district, subject to conditions applicable to the use of the property as a Hotel Development. 12. A majority of the City Council of Demon voted in favor of the rezoning to office use with conditions applicable to use of the property as a Hotel Development on September 19, 1995, as recommended by a majority of the Planning and Zoning Commission, but such proposal failed to receive a favorable vote of three-quarters of the City Council members, as required by -2- Section 211.006 of the Tex. l~oc Gox't Code. adioinin~ propcrl.~ owners having imtiated a protest reqmring such "super-majority" vote in order to implement rezoning of the properly. 13. The City's zoning ordinance, Ord. No. 69-01, as amended and as recodified, authorizes procedures for approving a specific plan for development by majority vote of the city council in circumstances in which there arises a question as to how or whether a parcel of property is zoned. 14. There exists substantial uncertainties concerning the actual classification on the City's zoning map of the cross-hatched portion of the property depicted on Exhibit B. 15. It appears that the facts pertaining to the zoning classification of the cross-hatched portion of the property depicted on Exhibit B meet the requirements of the City's zoning ordinance, thereby authorizing the City to undertake procedures set forth in the zoning ordinance with respect to the proposed use and zoning of the property. 16. The cross-hatched portion of the property depicted on Exhibit B may be further parceled into two tracts, based upon the physical characteristics of the property, hereinafter referred to as the "north tract" and the "south tract." J~, 17. RPS and Rana have prepared a specific and integrated plan for non-residential development of the north and south tracts, as depicted on Exhibit C attached hereto, including conditions pertaining to development of such tracts, as set forth fully hereinafter. 18. RPS has filed suit against Denton under various federal and state statutory and constitutional claims, alleging, inter alia, that Denton is estopped from denying the validity of the Commercial zoning classification shown for the property on the City's official zoning map, that the Texas Legislature has validated any defects or mistakes in the map concerning the zoning -3- designation lbr the propert.',, and tha~ I~.P% ,md Rana haxc :,ul'ferctl and ~ill suffer personal and property damage if they are not allowed to proceed with the Hotel Development. 19. There is a dispute among all Parties as to the effect of the City's zoning regulations on the ability of RPS and Rana to develop their property for economic use and Denton's liability for any and all alleged damages resulting therefrom 20. The representations and covenants contained in this agreement are set forth for the sole purpose of compromise and settlement of claims, and Denton expressly denies liability for any and all claims asserted against it by RPS and Rana and all damages or injuries alleged to result from any actions herein referenced. 21. Denton, RPS and Rana understand and agree that the claims asserted by RPS and Rana are in dispute and that they desire to settle such dispute by compromise to avoid the uncertainties, inconvenience and expense of further litigation and to buy peace. 22. All Parties have agreed to a full and final settlement and release of all claims which RPS and Rana may have against Denton, the City Planning and Zoning Commission, and the individual members of the City Council and Planning and Zoning, Commission in their official and personal capacities, arising out of or related to the zoning designation(s) of the property and the processing of development applications for the property, including but not limited to, all those matters set forth in the pleadings on file in the action mentioned above. For and in consideration of the recitals set forth above and the covenants and undertakings hereinafter contained, it is agreed by and among the Parties that this lawsuit shall be settled and compromised upon all of the following terms and conditions: -4- 1. Except as hereinafter expressly provided to the contrary, the Parties do hereby RELEASE AND FOREVER DISCHARGE each other, their elected or appointed officials, representatives, departments, agents, servants, employees, attorneys, heirs, executors, administrators, successors and assigns, jointly and severally, each and all of them, whether acting in their official or individual capacities, of and from any and all claims, demands, damages, (pecuniary and non-pecuniary), actions, causes of actions, attorneys' fees, expenses, court costs, compensation, and all consequential or punitive damages, including expressly and without limitation any and all expenses incurred in the development of the property, claims for bodily injury, mental anguish and property damage or loss, and/or from any suits in equity, of whatsoever kind or nature whether heretofore or hereafter accruing or whether now known or not known to the Parties, including without limitation all causes of action which RPS and Rana may have against Denton for a permanent or temporary taking under the Fifth and Fourteenth Amendments of the United States Constitution, or for discrimination arising under the First, Fifth and Fourteenth Amendments of the United States Constitution, or from any action arising under the Civil Rights Act of 1871, Title 42 U.S.C. Section 1983, and/or for at~rparallel claims arising under Article I, Section 17 of the Texas Constitution, for or because of m~y matter or thing done, omitted, or suffered to be done by any of the Parties prior to and including the date hereof, and in any way directly or indirectly related to zoning designation(s), or Denton's processing and handling of development applications for the property, including but not limited to, any and all claims and allegations asserted by RPS and Rana in the pleadings on file in the action mentioned herein, or which could have been alleged in these pleadings. Notwithstanding the foregoing provisions of this paragraph, the parties agree that they are not released or discharged from the -5- terms and conditions of this agreement, and the terms and conditions of this agreement shall survive this release and shall be enforceable by the Parties hereto. 2 The following definitions apply to this agreement: a. ACCessory Use. A use of land subordinate to and customarily incidental to the principal use of the land and located on the same 1o! or tract which (1) does not occupy, when added together with all other accessory uses located on the same lot or tract, an area in excess of twenty percent (20%) of the total gross floor area of all permitted uses located on the lot or tract which are not accessory uses, and (2) complies with the regulations for the Commercial district, other than use regulations. b. Hotel. A building or group of buildings, including a motel, designed and occupied collectively as a temporary abiding place of individuals, and containing a minimum of six (6) individual guestrooms or units for which customary hotel services such as linens, maid service, and telephone service are furnished. c. ~. An integrated plan for the development of the north and south tracts for non-residential uses, limited to hotel, office,'~taurant and accessory uses, limited in use and as generally depicted on Exhibit C attached hereto (which plan may be modified in the future). d. Office. An office building which is developed on the south tract of the property simultaneous with or after a hotel on the north tract is established on the north tract. e. Restaurant. A free-standing restaurant which is developed on the south tract of the property simultaneous with or after a hotel. -6- / K Single-family Dwelling. A dwelling which is designed and constructed for occupancy by one (1) family and located on a lot or separate building tract and having no physical connection to a building located on any other tot or tract and occupied by one (1) family. 3. Notwithstanding any provisions of the City's ordinances to the contrary, RPS has the right to construct and use the cross-hatched portions of the Property depicted on Exhibit B, further identified as the north tract and the south tract as depicted in Exhibit C, for a "Hotel Development" in accordance with the following provisions and subject to the conditions hereinafter listed. a. The Hotel Development, including its accessory buildings and parking, shall be confined to the north and south tracts, as shown on Exhibit C. Only one hotel shall be allowed within the Hotel Development. b. Permitted uses on the north tract shall be limited to a hotel and the following accessory uses: restaurant, newsstand, gift shop, recreation facilities, including gymnasium, swimming pool, or recreation room, miniature golf, b~ber shop, beauty salon or travel agency. The hotel shall include living quarters for an on-site manager. c. Permitted uses on the south tract shall be limited to any extension of the hotel and associated accessory uses established on the north tract, or office, restaurant, or single-family dwellings and their customary accessory uses. d. Setback and ~)ther area and bulk regulations, together with parking and landscaping standards for all uses in the Hotel Development, except single-family dwellings, shall be in conformity with City's regulations goveming development within the "C-Commercial" District and those additional standards contained in this agreement, -7- as well as all other applicable ordinance provisions, tnclt~dmg but not limited to platting and building code requirements. No structure shall exceed two (2) stories in height. Development standards for single-family dwellings shall be in conformity with those governing development within the "SF-7" District. e. Provided that a building permit is obtained within two years from the effective date of this agreement for the Hotel Development and remains valid, and for as long as the hatched area within Exhibit C remains in use for the Hotel Development, and in compliance with all applicable laws and regulations, the City shall not enforce any ordinances, regulations or rules in conflict with or inconsistent with the standards herein referenced. In the event of third party litigation, the two-year period for obtaining a building permit pursuant to this subsection shall be tolled during the pendency of such litigation. The City expressly agrees that it shall not enforce use regulations or other provisions for the SF-7 (Single-Family) District within such area with respect to the Hotel Development, nor shall the City enforce nonconforming use regulations, except those relating to abandonment, nor shall the City terminate such use, as~.ng as the hatched area within Exhibit C remains in use for the Hotel Development. f. In the event that any structure within the approved Hotel Development is damaged or destroyed, it may be rebuilt in conformity with the provisions of this Agreement within a period of two years following such destruction. Provided, however, that should Rana or its successors-in-interest file and obtain a change in zoning classification for the Property which is inconsistent with the provisions of this agreement, or should Rana otherwise obtain approvals from Denton to construct or establish uses inconsistent with the use of the property for the Hotel Development depicted in Exhibit C, .g. the provisions of paragraphs 2 and ~ of this a~,rccmcm ,,hall lac m~ll and void, and the development and use of the properly shall be governed by Denton regulations governing the zoning classification obtained or the approvals received. g Access for all nonresidential uses shall be taken from the frontage road bordering Highway 1-35E, and there shall be no direct motorized vehicular access for such uses to and from Lindsey or Willowwood Streets. Only those residential uses authorized on the south tract will be permitted motorized vehicular access from Willowwood. h. There shall be no direct illumination of land adjoining the Property which is zoned and used for single-family dwellings. i. Stormwater runoff from any development on the north tract shall drain to the north. At the time of development on the south tract, drainage improvements must be constructed in accordance with City ordinance requirements. j. A minimum eight-foot masonry wall shall be constructed separating nonresidential uses on the Property from land immediately adjacent to the Property zoned and used for single-family dwellings prior to issuance of a ce ,rtilJi~,cate of occupancy. A minimum six-foot high fence or wall also shall be constructed around the side yards and rear yards of the Hotel Development, except in circumstances where an eight-foot high masonry wall is required. k. A row of trees at least three inches in diameter measured four feet above the ground, and no farther than thirty feet apart, measured from trunk to trunk, shall be maintained by RPS or its successors-in-interest between the Hotel Development and the property currently used as a church on the western boundary of the property prior to the issuance of any certificate of occupancy for the Hotel Development. -9- 4. Yhe C~tx v,~l! usc best cI'Ibrts to process and approve tn a t~mely manner all building permits and other development permits reqmred for the Hotel Development that are submitted in compliance with this agreement, applicable sections of the Denton Municipal Code and other applicable laws. Provided that a building permit is obtained within two years from the effective date of this agreement for the uses in the Hotel Development (subject to the tolling provision in Paragraph 3.e.), no permit application fees, fees in lieu of dedication, or impact fees will be charged for such developments. 5. In consideration of the expenditures made by RPS and Rana toward the development of the property as a Hotel Development and the delays occasioned by the above referenced zoning procedures, the City agrees to pay to RPS and Rana the monetary amount of $13,200. 6. RPS and Rana agree to pay the outstanding mowing lien assessment of the property in the mount of $ 8,200, which is deemed to be the total amount due and owing, whereupon the City shall discharge such assessment in due accordance with applicable law. 7. Upon execution of this agreement and prior to any convoy~r ce of the property by RPS or Rana, the City shall record this agreement in the Real Property Records of Denton County and furnish a copy of the recorded agreement to RPS and Rana. 8. The Parties hereby acknowledge that persons who are not parties to this agreement ("third parties") have commenced or may commence litigation to prohibit or delay approval of the Hotel Development in accordance with the terms herein set forth. The City agrees that it will answer and defend such claims in which it is a named party, and shall not take actions inconsistent with the provisions of this agreement with respect to such claims. RPS and Rana agree that they will cooperate fully in such defense by submitting applications for permits, -10- · including but not limited to applications to obtain approvals under the zoning ordinance and to establish permanent zoning for the property in accordance with such provisions, such as are consistent with the terms of this agreement. In the event that a court of competent jurisdiction enters a final judgment voiding this compromise settlement agreement and release of all claims and/or preventing the development of the property for a Hotel Development, the Parties expressly agree that the claims and defenses of all Parties relating to matters herein identified are preserved, notwithstanding any representations or covenants to the contrary herein contained, and that such representations or covenants, together with any actions by the Parties taken to effect this agreement, shall not be used as evidence in any subsequent litigation concerning the merits of claims herein released. 9. Subject to the provisions of Paragraph 8 hereinabove, this Agreement completely and forever compromises and settles all matters in dispute between the Parties which have been, are, or could have been alleged in this and all other causes, described herein, both known and unknown, including, but not limited to, all matters in any way related to Denton's zoning designation or the processing or handling of RPS's or Rana's develop~a~t applications for the property. It is the express will of the parties that the property be utilized for a Hotel Development in accordance with the representations and covenants contained herein. 10. Each party to this agreement represents that it is acting on its own free will and voluntarily; and that it is in no way relying upon any promise, warranty, representation or agreement of any kind whatsoever, made directly or indirectly, by any agent, employee, or lawyer of the Parties being released or any person or finn in privity with the Parties being released; and each party understands that this is a full, final and complete settlement of all claims of any kind or character whatsoever, both known or unknown, arising out of those matters described herein. -11- 11. I'hts Agreement ~.~ made soleh l'or thc purpo~c oI' ,~x,~idm~ f~lrther litigation and making peace between the Parties, and that in entering ~nto this ,\grcement, the Parties are not admitting liability', but are expressly denying liability. 12. Contemporaneous with the final settlement of all claims by the execution of this Agreement, all Parties shall cooperate to dismiss any litigation related to this Agreement and through their attorneys of record, which each party hereby covenants has authority to sign on its behalf. It is the express intent of the Parties to this Agreement that each of the Parties shall not be exposed to any further liabilities, including claims and suits for damages, relating to any matter presented by any Party in this lawsuit. 13. The Parties warrant that no claims, demands, damages, actions, causes of action or suits in equity hereby released have been assigned to any third-party and that this Agreement is executed without reliance on any statement or representation made by any third-party which is not contained herein. 14. The undersigned each warrant that no inducements have been made to any of them on behalf of the Parties released hereby, and that in deciding to rel~.~e., their claims and to execute this Agreement, each has relied solely and only upon their own judgment and the advice given to them by their attorney, whom they have selected. 15. This Agreement shall be deemed to have been jointly prepared by all Parties hereto, and no ambiguity of this Agreement shall be construed against any party based upon the identity of the author of this Agreement or any portion thereof. -12- 16 l'h~s :\greement sl~all be go~'erncd bi. construed and interpreted, and the rights oi thc Parties determined in accordance with thc laws oi' thc State of l~cxas, and venue of any dispute concerning this agreement shall be tried in a court of competent jurisdiction sitting in Denton County. Texas. 17. Statements and representations contained herein are to be considered contractual in nature and not merely recitations of fact. l g. In the event any one or more of the provisions of this Agreemem shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity shall not affect any other provision herein. 19. All references herein in the singular shall be construed to include the plural where applicable, the masculine to include the feminine and neuter genders and all covenants, agreements and obligations herein assumed by the Parties shall be deemed to be joint and several covenants, agreements and obligations of the several persons named herein. 20. This Agreement shall be binding on and inure to the benefit of each and every party to this Agreement, and their successors, officers, directors, em~,oyees, assigns, heirs, executors, administrators, agents, legal representatives, and any of the companies or entities associated with them as owners, subsidiaries or any other related capacity with respect to any and all of the claims brought against any and all Parties herein released. 21. Each of the signatories signing this Agreement represents and warrants that he is authorized to execute this Agreement and bind their principals to the terms and provisions hereof. Each party warrants that any action required to be taken in order for this Agreement to be binding on it has been duly and properly taken prior to the execution of this Agreement. -13- 22. The representations, warranties, covenants, and agreements set forth herein shall survive the execution hereof. 23. This Agreement and the representations, warranties, and agreement set forth herein shall survive the discovery of different facts and shall continue in full force and affect and be unaffected by the discovery of different or additional facts. 24. This Agreement may be executed in multiple counterparts, each which taken together shall constitute one and the same instrument. 25. The Parties hereto mutually and simultaneously by these presents authorize and direct their respective attorneys to execute and deliver for entry such instruments as may be necessary to obtain dismissal of the above-mentioned litigation, each party bearing its own attorney's fees and costs. 26. Each Party to this Agreement warrants and represents that it has read the above and foregoing Agreement, and every word of it, and each party to this Agreement understands that it is a full, final and complete settlement and release of all claims, held, owned or possessed in any capacity whatsoever by each releasing party as against each relied party. -14- IN WITNESS WHEREOF, The Parties have executed this ReLease effective this day' of ~-c5'>3~,~¢,~, 1995. APPROVAL OF COUNSEL: PARTIES: HERB PROUTY The CITY OF DENTON City Attorney for the City of Denton, Texas ~' ' ~/~,,~./ ~ ~_d ,~ ~ /~ I~ ~ .~,.,J ~.~/d~ ) .t~. ~, ,~/~-"~5~ By: / By: Herb Prouty ~ Name: ~ Title: ~ WINSTEAD, SECH~ST & MINICK ~S VENTU~S, INC. A~omeys for ~S Ventures, Inc., R~ik U. R~a and Pushpa R~a ~' ~ ' 5 ~<r ~, ~ ~: (_~ iT~. hur J. Anderson Title: t'~Z,.,e JENNIFER WALTERS P~S~PA ~NA, individually C~ry Secrerary for the C~ry of Denton, Texas ~Om~,Jo_ ~MNIK U. ~NA, individually By: -15- who .n h~s capac' is of fl~e Ciw o£' ton, acknowledges lhat be authorized to execute tl~e foregoing document this ___ day o~,1995, to witness my hand mad seal of office NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS SWORN AND SUBSCRIBED TO BEFORE ME, by said RAMNIK U. individually and as Presidentof RPS' Ventures, Inc., this 13th day of November, 1995, to certify witness my hand and seal of office. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS SWORN AND SUBSCRIBED TO BEFORE ME, by said PUSHPA IkA. NA, individually and as Vice-President of RPS Ventures, Inc., this 13th day of November, 1995, to certify witness my hand and seal of office, ~o~,~¥ ?tmuc ~N ~ND FO. T.E s'rATE Og T~:XAS DA953070334 ~ 111495plgl 179 Ill05-1 -16- 6. That directional lighting will be provided so as not to disturb or adversely affect neighboring properties; and 7. That there is sufficient landscaping and screening to ensure harmony and compatibility with adjacent property; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That specific use permit S-206 to operate a Nursing Home or Residence Home for Aged (Assisted Living Facility) is granted to the Sterling House Corporation for a 6.3855 acre tract of land platted as Lot 1, Block 1, of the Gateway Addition, as per the site plan attached hereto, approved and incorporated herein as Exhibit A. SECTION II. That the City's official zoning map is hereby amended to reference the this permit. SECTION III. That any person violating any provision of this ordinance shall, upon conviction, be fined a sum not exceeding $2,000.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SECTION IV. That this ordinance shall become effective four- teen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the~/~ day of~~.~, 1995. ATTEST: JENNIFER WALTERS, CITY SECRETARY PAGE 2 I !