2014-068AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A DEVELOPERS AGREEMENT WITH RLB INVESTMENTS,
LLC TO ALLOW THE DEVELOPER TO TEMPORARILY LEASE PARKING SPACES
FROM THE CITY AT THE DOWNTOWN LOT, LOCATED AT THE NORTHEAST
CORNER OF BOLIVAR STREET AND MCKINNEY STREET; PROVIDING A DEFAULT
AND INDEMNIFICATION CLAUSE; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, Developer owns property within the Bains Addition Lot IR, Block 3,
located at 321 W. Hickory Street, Denton, Texas, upon which Developer proposes to build a
mixed use development that includes 44 multi-family units and approximately 5,000 square feet
of commercial, office and retail space; and
WHEREAS, a portion of the Property lies within a U.S. Federal Emergency Management
Agency-designated floodplain, which limits Developer's ability to develop the Project,
specifically Developer can only construct 44 of the 69 parking spaces required by the Denton
Development Code ("DDC"); and
WHEREAS, the City cannot issue a building permit for the Project if the parking space
requirement cannot be met by the Developer; and
WHEREAS, Developer has been unable to secure a parking access agreement with
another parcel of land located within 300 feet of the Project as allowed by the DDC, Section
35.14.7.A.; and
WHEREAS, Developer can reduce the Project's intensity so as to avoid the limitations
imposed by the floodplain, however Developer does not desire to downsize his development; and
WHEREAS, while the City has a plan to remove the Property out of the floodplain via a
drainage improvement project that is part of the City's PEC-4 Drainage Improvement Plan,
however, the portion of the drainage abutting the Property is currently unfunded, and it is
unlikely that the drainage will be improved, even if funded during the next budget cycle, within
the next few years; and
WHEREAS, in order to proceed with the Project, the City and the Developer enter into
this Agreement to allow Developer to temporarily lease spaces from the City at one of its
downtown lots, in accordance with the terms and conditions herein, so that Developer can obtain
a building permit, assuming all building permit requirements are met, to commence construction
of the Project; and NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
s:\Iegal\our documents\ordinances\14\development agreement ordinance re lee ramsey.docx
SECTION 1. The findings and recitations contained in the preamble of this
ordinance are incorporated herein by reference as true.
SECTION 2. The attached development agreement relating to the temporary lease of
parking spaces from the City at the downtown lot, located at the northeast corner of Bolivar
Street and McKinney Street
SECTION 3. The City Manager is hereby delegated authority to execute the attached
development agreement on behalf of the City of Denton, Texas.
SECTION 4. This ordinance shall become effective immediately upon passage and
approval.
PASSED AND APPROVED this, the 4"' day of,, arc 11i,-,2014.
MARK A. BtJR] 01)G TS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY.—
APPRO 'ED A, 'TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
Page 2
THE STATE OF TEXAS
COUNTY OF DENTON
DEVELOPMENT AGREEMENT
This Development Agreement ( "Agreement") is entered into by and between the CITY
OF DENTON, a Texas municipal corporation of Denton County, Texas (hereinafter called the
"City ") and RLB INVESTMENTS, LLC, a Texas limited liability company (hereinafter called
"Developer ").
WHEREAS, Developer owns property (hereinafter the "Property") within the Bains
Addition Lot 1R, Block 3, located at 321 W. Hickory Street, Denton, Texas, upon which
Developer proposes to build a mixed use development that includes 44 multi - family units and
approximately 5,000 square feet of commercial, office and retail space (hereinafter the "Project ")
as depicted in Exhibit "A" (City Planning Department Project No. FR12- 0026); and
WHEREAS, a portion of the Property lies within a U.S. Federal Emergency Management
Agency - designated floodplain, which limits Developer's ability to develop the Project,
specifically Developer can only construct 44 of the 69 parking spaces required by the Denton
Development Code ( "DDC "), as illustrated in Exhibit "A";-and
WHEREAS, the City cannot issue a building permit for the Project if the parking space
requirement cannot be met by the Developer; and
WHEREAS, Developer has been unable to secure a parking access agreement with
another parcel of land located within 300 feet of the Project as allowed by the DDC, Section
35.14.7.A.; and
WHEREAS, Developer can reduce the Project's intensity so as to avoid the limitations
imposed by the floodplain, however Developer does not desire to downsize his development; and
WHEREAS, while the City has a plan to remove the Property out of the floodplain
via a drainage improvement project that is part of the City's PEC -4 Drainage Improvement
Plan, however, the portion of the drainage abutting the Property is currently unfunded, and it is
unlikely that the drainage will be improved, even if funded during the next budget cycle, within
the next few years; and
WHEREAS, in order to proceed with the Project, the City and the Developer enter into
this Agreement to allow Developer to temporarily lease spaces from the City at one of its
downtown lots, in accordance with the terms and conditions herein, so that Developer can obtain
a building permit, assuming all building permit requirements are met, to commence construction
of the Project; and
NOW THEREFORE, in consideration of the mutual covenants and obligations herein,
the parties agree as follows:
SECTION 1. LEASE OF CITY PARKING SPACES
A. The City shall lease to Developer 29 parking spaces in the City's parking lot
(hereinafter "Parking Lot ") located at the northeast corner of McKinney Street
and Bolivar Street as described in the legal description in Exhibit "C." The
annual lease rate shall be Five Thousand Dollars and 00 /THS ($5,000.00). The
first payment, and all subsequent yearly payments, shall be due no later than
January 5th of each calendar year, except as provided in Section I.B.
B. Prior to utilizing the parking spaces, Developer shall submit for the City's review
and approval upon finding that all City requirements have been met, a parking lot
plan to sealcoat existing asphalt and restripe the entire Parking Lot to determine
the exact number of parking spaces in the lot. Developer shall provide the City
for its approval an estimate of the cost to sealcoat existing asphalt and restripe the
parking lot not to exceed Eight Thousand Five Hundred and 00/THS ($8,500.00).
The sealcoat of the existing asphalt and restriping shall be bonded and insured for
a one -year warranty period. The final cost of the sealcoat of the existing asphalt
and restriping shall be credited against the payment(s) due in Section I.A. Upon
completion of the sealcoat existing asphalt and restriping of the Parking Lot,
Developer shall notify the City so as to allow it the opportunity to inspect and
approve the completed work.
C. Once the City has approved the completed sealcoat existing asphalt and restriping
of the Parking Lot, and if all City development requirements have been met, the
City shall issue a Certificate of Occupancy to the Developer for the Project.
SECTION .. TERM
The term of this Agreement shall be five (5) years from the date of execution, unless one
of the events in subsections A through E occurs first. If none of the events in subsections A
through E occur, then at the end of the five (5) year term, the City may choose to extend the
Agreement for one additional three -year term. Such extension shall be in writing and signed by
the parties.
A. PEC -4 Drainage Improvements. Should the City complete the PEC -4 Drainage
Improvements during the term of this Agreement so as to remove the Property
out of the floodplain, the City shall send a written notice to Developer of the
completed drainage improvements. Thereafter, Developer shall have 90 days
after City approval of the parking permit to construct 29 additional parking spaces
on the Property as illustrated in Exhibit `B ". Developer shall comply with all
applicable City requirements in connection with the construction of the additional
spaces. Once completed, the City shall inspect the additional spaces. If the City
finds the additional spaces acceptable, the City will provide written notice of
2
same. The Agreement shall then terminate on the date the City provides written
notice of its approval of the additional spaces.
B. Sale of City Hall West and Parking Lots. Should the City place City Hall
West and its associated Parking Lot for sale, the City shall provide Developer
with written notice of same. Thereafter, Developer shall have 90 days to find
an alternate parking arrangement and present to the City a Parking Access
Agreement that complies with the DDC.
C. Establishment of a Downtown Parking Fund. Should the City establish a
Downtown Parking Fund during the term of this Agreement, Developer may
choose to participate in the Downtown Parking Fund to satisfy its parking
deficiency. Upon satisfactory completion of the obligations required by the
Downtown Parking Fund, this Agreement shall automatically terminate.
D. Future DDC Amendment. Should a future DDC amendment reduce the
parking space requirement to a number at or below the 44 parking spaces
Developer constructed on -site at the Project location, then this Agreement shall
automatically terminate.
E. Developer's Voluntary Termination. Developer may be release from the terms
and conditions of this contract if the parking requirements can be met at a location
closer to the property that fully complies with all applicable requirements of the
DDC.
SECTION 3. INDEMNIFICATION
DEVELOPER SHALL INDEMNIFY AND HOLD HARMLESS THE CITY,
MEMBERS OF THE CITY COUNCIL, AND ITS OFFICERS, EMPLOYEES, AGENTS,
REPRESENTATIVES AND CONSULTANTS (EACH PERSON DESCRIBED HEREIN
CALLED AN "INDEMNIFIED PARTY" AND COLLECTIVELY, THE "INDEMNIFIED
PARTIES ") AGAINST ANY AND ALL INDEMNIFIED LIABILITIES SUBJECT TO THE
RESTRICTIONS IN THIS SECTION 3. IF AN INDEMNIFIED PARTY INCURS ANY
INDEMNIFIED LIABILITIES, THE DEVELOPER SHALL FULLY REIMBURSE SUCH
INDEMNIFIED PARTY FOR ALL SUCH INDEMNIFIED LIABILITIES INCURRED.
HOWEVER, THE DEVELOPER WILL NOT BE REQUIRED TO INDEMNIFY AND /OR
HOLD HARMLESS ANY INDEMNIFIED PARTY FOR ANY LOSSES OR INDEMNIFIED
LIABILITIES THAT RESULT FROM THE INDEMNIFIED PARTY'S SOLE NEGLIGENCE,
INTENTIONAL MISCONDUCT OR KNOWING VIOLATION OF THE LAW. TO THE
EXTENT APPLICABLE, THE DEVELOPER SHALL BE SURROGATED TO ANY CLAIMS
OR RIGHTS OF THE INDEMNIFIED PARTIES AS AGAINST ANY OTHER PERSON (BUT
NOT AN INDEMNIFIED PARTY) WITH RESPECT TO INDEMNIFIED LIABILITIES
PAID BY THE DEVELOPER. FOR PURPOSES OF THIS SECTION 3, "INDEMNIFIED
LIABILITIES" SHALL BE DEFINED TO INCLUDE ALL LOSSES INCURRED BY ANY
OF THE INDEMNIFIED PARTIES THAT ARE RELATED TO, ARISE OUT OF OR ARE
3
ASSOCIATED WITH: (1) THE SEALCOAT EXISTING ASPHALT AND RESTRIPING
OF THE PARKING LOT THAT IS CONTEMPLATED BY THIS AGREEMENT; (2) ANY
BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY MADE
BY THE DEVELOPER, OR ITS AGENTS (3) ANY BREACH OR NONPERFORMANCE,
PARTIAL OR TOTAL, BY DEVELOPER AND ITS AGENTS OF ANY COVENANT
OR AGREEMENT OF THE DEVELOPER CONTAINED IN THIS AGREEMENT OR
SUCCESSOR DEVELOPER, OR ASSIGNS ARE A PARTY OR PARTIES; (4) ANY
CONDITION CREATED IN OR ABOUT THE PARKING LOT CONTEMPLATED BY THIS
AGREEMENT CAUSED BY DEVELOPERS TENANTS OR TENANTS ASSOCIATES; AND
(5) ANY ACCIDENT, INJURY OR PROPERTY DAMAGE BY DEVELOPERS TENANTS
OCCURRING IN, AT OR UPON THE PARKING LOT CONTEMPLATED BY THIS
AGREEMENT.
SECTION 4. DEFAULT
In the event of default by Developer in any of the terms and conditions herein stated and
such default continues for a period of ten (10) days after the City notifies Developer in writing of
such default, the City may exercise any and all rights and remedies available to it by law, equity,
contract or otherwise, including without limitation, the right and authority to forthwith terminate
this Agreement and upon such termination, all of Developer's rights hereunder shall cease and
come to an end. Failure to enforce any covenant shall in no event be deemed a waiver of the
right to do so thereafter.
I;TI.ON .. VENUE AND GOVERNING LAW
THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS OF THE
PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES
APPLICABLE THERETO AND THE LAWS OF THE STATE OF TEXAS APPLICABLE
TO AN AGREEMENT EXECUTED, DELNERED AND PERFORMED IN THE STATE OF
TEXAS. This Agreement is performable in Denton County, Texas, and venue of any action
arising out of this Agreement shall be exclusively in the state district courts of Denton County,
Texas.
SECTION 6. 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:
George C. Campbell
City Manager
City Hall
215 E. McKinney
4
If intended for the Developer, to:
Lee Ramsey
RLB Investments, LLC
525 loop 288 #105
Denton, Texas 76205
SECT MI. .. 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. All work to be performed under
this Agreement shall be in accordance will all applicable laws, including without limitation
all applicable licenses, permits, building codes, restrictive covenants, zoning and subdivision
ordinances and flood disaster, environmental laws, the Americans with Disabilities Act, all local
ordinances, and state laws.
SECTION S. 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 thereof and this Agreement shall be
considered as if such invalid, illegal, or unenforceable provision had never been contained in this
Agreement. The election of the City to not exercise a right or seek a remedy at a particular time
shall not be construed as a waiver or release of the City's rights, remedies, or causes of action
under this Agreement or those that are available at law or in equity.
SECTION 9. 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 10. 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 11. SUCCESSORS AND ASSIGNS
This Agreement shall extend and inure to and be binding upon Developer and its
successors and assigns, and shall not be interpreted or construed as a waiver of any rights or titles
owned or held by the City related to the Parking Lot or Property.
SECTION 12. NO THIRD -PARTY BENEFICIARIES OR JOINT VENTURE
The City and Developer intend that this Agreement shall inure only to their benefit
and shall not benefit or create any right or cause of action in or on behalf of any third -party
beneficiary, or any individual or entity other than the City and Developer or any of their assigns
except where such a right arises from an indemnification or hold harmless obligation which
shall inure to the benefit of a proper indemnitee. Nothing contained in this Agreement or any
ancillary document created as part of this Agreement is intended to create a partnership or
joint venture between the City and Developer and any implication to the contrary is expressly
disavowed. It is understood that this Agreement does not create a joint enterprise, nor does it
appoint either party as an agent for the other for any purpose whatsoever. Neither party shall in
any way assume any liability of the other for acts of the other or obligations of the other unless
specifically set forth in this Agreement or an ancillary document.
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 and 2. The parties stipulate that this Agreement does not satisfy any
other development obligation under law or City ordinances; particularly, it does not satisfy
any applicable impact fee requirements or development exactions to construct required public
infrastructure improvements, including those associated with transportation, storm sewer, water,
sanitary sewer, or utilities. 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.
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EXECUTED this day of , , by the City, signing by and through its
City Manager, duly authorized to executed same by Ordinance No. A- jkb approved by the
City Council on ; and by the Developer, acting through its duly authorized officers.
M4(, c, 8 o t
ATTEST:
Jenifer Walters, City S
APPROVED AS TO LEGAL FORM:
Anita Burgess, City Attorney , -',
BY `r 6.
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CITY OF DENTON, TEXAS
BY:
(Jeorge C. Carnpb le 1 City Manager
RLB Investments, LLC
a `Te a�imited liability company
By: Lee R nmcPv
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