23-137ORDINANCE NO. 23-137
AN ORDINANCE OF THE CITY OF DENTON APPROVING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF DENTON AND WILLOWWOOD INVESTMENTS.LLC (''OWNER”) RELATING TO A MODIFICATION OF BONNIE BRAE STREET PHASE3 ADJACENT TO 23 15 WILLOWWOOD; AUTHORIZING THE CITY MANAGER TOEXECUTE SAID DEVELOPMENT AGREEMENT; AND PROVIDING AN EFFECTIVEDATE
WHEREAS, Willowwood Investments LLC (“Owner”) owns the approximately 4.262
acre property commonly known as 23 15 Willowwood, depicted on Exhibit “A“ attached hereto
(“Subject Property”); and
WHEREAS, the City is designing and constructing the Bonnie Brae Street Phase 3 Project,which is the widening of Bonnie Brae Street from two (2) lanes to four (4) lanes from Roselawn
Drive to Interstate 35 and is a component part of the multi-phase Bonnie Brae Street Project to
improve mobility and reduce congestion adjacent to the Subject Property; and
WHEREAS, to support pedestrian, bicycle, transit, and vehicle connectivity between the
Subject Property and the Bonnie Brae Street Phase 3 Project, Owner has requested City toconstruct, at Owner’s expense, additional elements into the Bonnie Brae Street Phase 3 Project,
including a left turn lane and median cut, and two drive approaches, (hereafter, the “Project“); and
WHEREAS, to facilitate the completion of this work, City and Owner desire to enter into
a Development Agreement; and
WHEREAS, Owner will pay the City the full cost for the design and construction of the
Project;
WHEREAS, the City Council of the City of Denton deems it is in the public interest and
serves a municipal and public purpose to enter into an agreement with Owner for the purpose ofmemorializing the Project additions to Bonnie Brae Street Phase 3. NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. City Council finds that the Agreement between the City of Denton and
Owner serves a valid municipal and public purpose and is in the public interest.
SECTION 2. The Development Agreement between the City of Denton and Owner
attached hereto as Exhibit “B“ is hereby approved. The City Manager or their designee is hereby
authorized to execute the Development Agreement on behalf of the City of Denton. The City
Manager is hereby authorized to carry out the City’s rights and duties under the Agreement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
secondeT;y"'n:aTi!; FW:”’;"'’dFfiis ordinntedandappr.’,u
by the following vote K - a:
AyeU
1/
b/
t/
Nay Abstain Absent
Gerard Hudspeth, Mayor:Vicki Byrd, District 1 :Brian Beck. District 2:Jesse Davis. District 3 :VACANT. District 4:
Brandon Chase McGee,
At Large Place 5 :
Chris Watts, At Large Place 6:
V/
1/
PASSED AND APPROVED this the \ Ob day of , 2023.
*:i:ya„„,..
ATTEST:
ROSA RIOS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
Hilary Negron2023.01.06
BY:10:24:16 -06’OO'
Page 2
STATE OF TEXAS §
§
6COUNFY OF DEIWON
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (“Agreement“) is entered into by Willowwood
Investments LLC (“Developer”), acting by and through its duly authorized officers, with a
principle place of business located at 419 S. Carroll Blvd IB, Denton TX 76201, and between the
City of Denton (“City”), a home-rule city and a political subdivision of the State of Texas, acting
by and through its duly authorized oflicas (Developer and City, herein referred to individually as
“Party” and collectively as the “Parties”); is effective September30, 2022(the “Effective Date”).
WITNESSETH:
WHEREAS, Developerowns the approximately 4.262 acre property more commonly
known as 23 15 Willowwood and platted as ,Bonni6 Brae Willowwood Addition_, Phase
1 as more particularly depicted on Exhibit “A“ attached hereto (“Subject Property”); and
WHEREAS, development of the Subject Property will establish a commercial
development; 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; and
WHEREAS, the City is designing and constructing the Bonnie Brae Street Phase 3
Project, which is the widening of Bonnie Brae Street from two (2) lanes to four (4) lanes from
Roselawn Drive to Interstate 35 and is a component part of the multi-phase Bonnie Brae Street
Project to improve mobility and reduce congestion adjacent to the Subject Property; and
WHEREAS, the Bonnie Brae Street Phase 3 Project has been planned as depicted on the
attached Exhibits “B,“ titled Sheet 75 of Paving Plan/ Profiles for South Bonnie Brae Street, and
“C,” titled Sheet 74 of Paving Plan/Profiles for South Bonnie Brae Street Sta. 17CF00 to 175+00,
attached hereto and incorporated herein.
WHEREAS, to support pedestrian, bicycle, transit, and vehicle connectivity between the
Subject Property and the Bonnie Brae Street Phase 3 Project, the Developer desires the City to
design and construct one (1) left turn lane and median cut on Bonnie Brae Street for Future Street
C as more particularly depicted in red on Exhibit “B”, and two (2) drive approaches for FutureStreet B and Future Street C on Bonnie Brae Street providing direct connectivity to the Subject
Property as more particularly depicted in red on Exhibit “C” (hereafter, collectively the “Project”);and
WHEREAS, the Parties desire to formulate this Agreement to memorialize the
Developer’s obligation to pay the City the full cost for the design and construction of the Project;
NOW THEREFORE, in consideration of the mutual covenants and obligations herein,
the Parties agree as follows:
SECTION 1. DESIGN AND CONSTRUCTION VALUE FEE ASSESSMENT
A. Design and Construction Value Fees.
1. Design plans for the Bonnie Brae Street Phase 3 Project have been completed and
Developer shall be assessed and pay to the City Five Thousand Dollars ($5,000.00) for the
proportion of the design costs attributable to the design of the Project (the “Design Fee”).
2.Developer shall be assessed and pay to the City the proportion of the costs attributable to
the construction of the Project (the “Construction Value fee”), which will be quantified
and assessed upon the City’s final acceptance of a contractor’s bid for construction of theBonnie Brae Street Phase 3 Project. To obtain the Construction Value Fee, the City’s
procurement process for the Bonnie Brae Street Phase 3 Project will contain the Project
construction work as an alternate and optional line item for added services separate from
the base bid for the remainder of the Bonnie Brae Street Phase 3 Project. Developer
acknowledges that until a bid is selected and contract awarded for the Bonnie Brae Street
Phase 3 Project, the Construction Value Fee cannot be reduced to a discrete sum and
Developer acknowledges and accepts the obligation to pay the full amount of the
Construction Value Fee before the City constructs the Project and Developer accepts any
and all risk in agreeing to pay the Construction Value Fee before it has been determined.
SECTION 2. PAYMENT SCHEDULE OF DESIGN AND CONSTRUCTION
A. Design Fee
1. The City has completed Project designs. The Developer shall pay the Design Feewithin 5
days of the Effective Date of this Agreement.
B. Construction Value Fee
1 The Developer shall pay the Construction Value Fee in order to fund the
construction of the Project within 45 days after the City awards the contract for the
construction of the Bonnie Brae Street Phase 3 Project. Developer shall fInd a
10% contingency fund for additional unanticipated Project costs. These funds shall
be deposited in a city account and utilized solely for the construction of the Project.
2.To ensure total costs are ultimately collected, City and Developer desire to
implement a “true-up” process. To the extent that the overall costs of the Project
are greater than the Construction Value Fee, City will recalculate the total cost
ovemrns, and, to the extent the total costs actually paid by the City exceed the
Construction Value Fee, Developer will refund the difference to the City. If the
City’s total costs are less than the Construction Value Fee, City will refund the
difference to Developer.
SECTION 3. TERM
The term of this Agreement shall begin on the Effective Date and end upon the complete
performance of all obligations and conditions precedent by the Parties to this Agreement. Upon
execution, this Agreement shall be reoorded in the Denton County Real Property Records as
covenants running with the land, burdening subsequent purchasers of the Subject Property or any
part thereof, if any, until all obligations of the Developer are satisfied in fUll.
SECTION 4. DESIGN AND CONSTRUCTION
The Project design phase is complete, save for Developer’s payment of the Design Fee to the City.
Subject to receiving the Construction Value Fee from the Developer, the City shall construct the
Project during its work on the Bonnie Brae Street Phase 3 Project. Developer acknowledges and
agrees that City is not agreeing or warranting a completion date of the Project, and the City shall
not be held liable or responsible to the Developer or any other party, nor be deemed to have
defaulted under or breached this Agreement for any failure or delay in perforning the construction
of the Bonnie Brae Street Phase 3 Project or the Project under this Agreement.
SECTION 5. 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.
All warranty and indemnification obligations herein shall survive any termination or assignment
unless the Party warranting, or indemniBring, is released by the other Party. Nothing in this Section
shall be construed to waive any sovereign, govemmental imrnunity 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.
SECTION 6. VENUE AND GOVERNING LAW
This Agreement is puformable 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 governedand 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 ifdQosited 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 diffnent 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 StreetDenton, Texas 76201
Attention: Mack Reinwand
City Attorney
Fax No.: (940) 382-7923
If intended for Developer, to:Willowood Investments LLC
419 S. Carroll Blvd. IB
Denton, Texas 76201
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 of the provisions contained in this Agreement shall for any reason be heldto 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. COUNIERPARTS
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
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 Subject Property is developed as the Development, or as any otheralternative use.
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 and 3 and the obligations of the City set forth in Section 4. 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.
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:iT"’"mlcATTEST:
ACKNOWLEDGMEIWS
STATE OF TEXAS §
§
9COUNTY OF DENtON
This hsmmen was acknowledged before me on Me M_ day o MW 2(My Sara
Hensley, being City Manager of the City of Denton, a Texas home-rule municipal corporation, on
behalf of said municipality.
Notary pm;of Texas
My c,m„i„i,, „pi„, la /lqla)aa
Rosa Rios, City sI i\a}ljl ltP/
THIS AGREEMENT HAS BEENBOTH REVIEWED AND APPROVED
as to financial and operational
APPROVED AS TO LEGAL FORM:
{d\ttorneygGU
DEVELOPER
Willowwood Investments LLC
By and through its authorized agent:
-\DUCt? q 5 . bl due,by Print)
q:b (LT NEW (Title)
(Si W)
ACKNOWLEDGMENTS
STATE OF TEXAS §
§
§COUVIY OF DENTON
This instrument was acknowledged before me on the JL day of b@IC,L 20@by
JuN being in WC NeK of the Willlowwood Investments LLC, a Texas
limited liabilit+ company, on behalf of Willowwood Investments LLC.
GABRIEL PAZ
Notary ID #126394953
My CommissIon EXpires
February 2, 2025
My Commission expires: M@3_
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