2008-231ORDINANCE NO.
AN ORDINANCE RATIFYING A DEVELOPMENT AGREEMENT BETWEEN THE CITY
OF DENTON AND ALLEGIANCE HILLVIEW, L.P., ASSOCIATED WITH MASS
GRADING OPERATIONS AT RAYZOR RANCH; AND DECLARING AN EFFECTIVE
DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Development Agreement attached hereto as Exhibit A is hereby
ratified and approved, and the City Manager is authorized to exercise all of the City's rights,
duties and obligations thereunder.
SECTION 2. This ordinance shall become effective immediately upon its passage and
approval. p~
PASSED AND APPROVED this the Z' day of _ 008.
MARK A. B O , MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY,
BY: QJ IA-,'J'_
APPROVED AS TO LEGAL FORM:
JOHN M. KNIGHT, INTERIM CITY ATTORNEY
sAour documents\ordinances\08\rayzor ranch dev agreement ord-drainage.doc
THE STATE OF TEXAS §
COUNTY OF DENTON §
DEVELOPMENT AGREEMENT
FOR RAYZOR RANCH (INTERIM DRAINAGE)
This Development Agreement ("Agreement") is entered into by and between the CITY
OF DENTON, a Texas municipal corporation in Denton County, Texas (hereinafter called the
"City"), acting by and through its duly authorized officers, and ALLEGIANCE HILLVIEW,
L.P., a New York limited partnership (hereinafter called "Developer"), acting by and through its
general partner, TH GP LLC (d/b/a TH Denton GP LLC, in State of Texas), a Delaware limited
liability company and its duly authorized officers.
WITNESSETH:
WHEREAS, Developer owns 410 acres of property, more or less, situated generally north
and south of West University Drive/U.S. Highway 380 ("Highway 380"), between Interstate
Highway 35 ("IH-35") and Bonnie Brae Street, zoned as the Rayzor Ranch Overlay District
Classification according to City Ordinance 2007-068, as amended or superseded (such property
being described herein as the "Property"); and
WHEREAS, Developer wishes to develop the Property to include a wide variety of
commercial, retail, office, housing of various types, open space areas, and other uses pursuant to
Ordinance 2007-068, as amended or superseded, also to be known as the Rayzor Ranch
Development (the "Development" or "Rayzor Ranch"); and
WHEREAS, the overlay agreement currently in place, setting forth the development
standards of the Development, currently prohibits any permitting of the Property until certain
off-site drainage improvements are approved at North Lakes Park; however, both City and
Developer recognize that such improvements are unlikely to be approved or ultimately
completed in the configuration previously defined. Meanwhile, the current grading of the
Property creates on-site drainage problems which have previously caused off-site emergency
conditions on public streets, which need to be addressed immediately, prior to any future
stormwater events; and
WHEREAS, in recognition of these current grading problems, the impossibility of
correcting them without a permit, the inability of Developer to obtain a permit without approval
of an obsolete design, the efficiencies and cost savings to be realized by mass grading and
drainage improvements, and Developer's and City's anticipation of an overlay amendment
allowing a different design, City and Developer desire to enter into this Development Agreement
for Interim Drainage Improvements at Rayzor Ranch;
NOW THEREFORE, in consideration of the mutual covenants and obligations herein,
the parties agree as follows:
SECTION I. DEVELOPMENT AGREEMENT
City authorizes and permits Developer, on an interim basis, to engage in mass-grading
operations at Rayzor Ranch, in accordance with the revised Rayzor Ranch North Initial Grading
and Drainage Plan (sheets 1 to 4), signed and sealed September 15, 2008, and Mass Grading
Plans submitted by Developer (together, the "Plans"), subject to the following conditions:
1.) City reserves the right to stop work under this Agreement if the DME Pond Plans
previously approved by City, or as hereafter amended with City's approval, are not completed
within 3 weeks of execution of this Agreement. Due to the emergency nature of the drainage
improvements, Developer hereby waives the notice and cure provisions contained in Subchapter
1 of the Denton Development Code.
2.) A rock check dam shall be installed downstream (east) of existing 72" reinforced
concrete pipes ("RCP's") under Bonnie Brae, approximately 15 feet from the end of the 72" RCP
on the east side of Bonnie Brae, per NCTCOG specifications and standards, to function as a final
sedimentation control device, prior to construction of the private storm drain per the above plans.
The location and design of this dam, together with such other measures as may be necessary to
this purpose, shall be coordinated with, and approved by, City's Development Review Engineer
prior to construction. Within six weeks after completion, inspection and approval of the grading
and drainage improvements contemplated by this Agreement, Developer shall remove these
sedimentation control measures and restore the site to its prior condition, including the
installation of sod and erosion control measures on any impervious surfaces, as required or
appropriate to ensure restoration. Developer is hereby licensed to enter and make these changes
to City property, pursuant to this Agreement.
3.) The existing dam structure west of Bonnie Brae shall not be altered until NRCS and
TCEQ have approved the Hydrologic and Hydraulic Study submitted by the Developer, and dam
modifications as proposed by the Developer. Excavation can take place on each side of the dam,
but the existing dam shall remain intact until the approvals are received. Fill shall be limited to
the south side of the dam structure until approvals are received.
4.) At all times during the mass grading, a combination. of an earthen berm or fill shall be
maintained at a minimum elevation of 684.0' which shall serve as a dam structure to prevent
drainage from overtopping or proceeding around the dam structure.
5.) Existing drainage flow within the property and through Bonnie Brae shall be
maintained to current capacities with new drainage structures and detention pond construction.
SECTION 2. TERM
The term of this Agreement shall begin on the date of execution, and, with the exception
of Section 3, shall end upon either: (1) the complete performance of all obligations and
conditions precedent by the parties to this Agreement, or (2) the amendment of the overlay
provisions of Ordinance 2007-068, whichever occurs first.
SECTION 3. INDEMNIFICATION
Developer agrees to indemnify and hold harmless the City, its employees, agents,
successors, and assigns from any and all costs Developer or any other owner or subsequent
owner of the Property, or any portion thereof, may incur as a consequence of proceeding in this
manner before amendment of the overlay ordinance and before full building permits are issued,
and agrees to assume all risks arising therefrom, including money damages from, and costs to
defend against civil claims or litigation brought by any owner or subsequent owner of the
Property, or any portion thereof, . Developer understands and agrees that the City will issue a
"Stop Work" order for all activity associated with this interim Agreement in the event that the
Developer's contractor fails to perform the work associated with this Agreement in a manner
satisfactory to the City, or for any other reason authorized by ordinance. Developer hereby
covenants not to sue the City, forever irrevocably waives, and indemnifies City against, any and
all claims of every kind whatsoever against the City, its employees, agents, successors, and
assigns, arising out of either: (1) the City's subsequent issuance of a "Stop Work" order due to
the failure of the Developer's contractor to perform the work associated with this Agreement in a
manner satisfactory to the City, or (2) the subsequent failure or refusal of the City to issue a
Certificate of Occupancy for any building or structure in the Project, if due tothe failure or
inability of Developer or any other owner or subsequent owner of the Property, or any portion
thereof, to obtain required permits or approvals from City or any other entity with authority to
grant such approvals.
SECTION 4. 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, DELEIVERED 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 Denton County, Texas. This Agreement
shall be governed and construed in accordance with the laws and court decisions of the State of
Texas.
SECTION 5. 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 the City, to:
City Manager
ATTN: George C. Campbell,
City Hall
215 E. McKinney
Denton, Texas 76201
If intended for Developer, to:
Allegiance Hillview, L.P.
c/o Fortress Investment Group LLC.
5221 N. O'Connor Blvd., Suite 700
Irving, Texas 75039
Attention: Andy Osborne
Phone: (972) 532-4335
Fax: (214) 260-0938
With copies to:
Allegiance Hillview, L.P
c/o Torreon Capital, LP
515 Congress Avenue, Suite 2525
Austin, Texas 78701
Attention: Rex Paine
Phone: (512) 472-6777
Fax: (512) 472-6731
Brown McCarroll, L.L.P.
111 Congress Avenue, Suite 1400
Austin, Texas 78701
Attention: Robert L. Davis
Phone: (512) 479-9706
Fax: (512) 479-1101
SECTION 6. GIFT TO PUBLIC SERVANT
A. The City may terminate this Contract immediately if Developer has offered, conferred or
agreed to confer any benefit upon a City employee or official that the City employee or
official is prohibited by law from accepting.
B. For purposes of this Article, "benefit" means anything reasonably regarded as pecuniary
gain or pecuniary advantage, including benefit to any other person in whose welfare the
beneficiary has a direct or substantial interest, but does not include a contribution or
expenditure made and reported in accordance with law.
C. Notwithstanding any other legal remedies, the City may require Developer to remove any
employee of Developer from the Project who has violated the restrictions of this Section
or any similar state or federal law, and obtain reimbursement for any expenditures made
to Developer as a result of the improper offer, agreement to confer, or conferring of a
benefit to a City employee or official.
SECTION 7. APPLICABLE LAWS
This Agreement is made subject to the provisions of the Charter and ordinances of the
City, as amended, and all applicable state and federal laws.
SECTION 8. 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.
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
The duties and burdens of the City are binding upon its contractors, agents, successors
and assigns. The duties and burdens of the Developer under this Agreement are binding upon
their contractors, agents, successors and assigns.
SECTION 12. RECITALS EXHIBITS
The terms and provisions of the recitals and the terms and provisions of the following
exhibits and attachments are incorporated into this Agreement as if fully set forth herein:
Exhibit "A" - the "Plans", as so referenced in Section 1
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.
SECTION 14 EMERGENCY EXECUTION AND RATIFICATION
The emergency conditions referenced in the recitals, combined with the imminent
potential of tropical storms to produce similar stormwater events in the near future, necessitates
execution prior to ratification and approval by the Denton City Council at the next available
meeting.
EXECUTED this /'0 day of September, 2008, byte City, signing by and through its
City Manager, and subsequently ratified and approved by 008-,_1,
approved by the City Council on September 23, 2008, and by Developer, acting through its duly
authorized officers.
CITY OF DENTON
George C. Campbell
City Manager
By:
rty anager
ALLEGIANCE HILLVIEW, L.P.,
a New York limited partnership
By: TH GP LLC (d/b/a TH Denton GP
LLC, in State of Texas), a Delaware
limited liability company,
its general partner
Name: fkv%,kY &5L,atve
Title: ( ~'~,e t 5i5-W'tXy
APPROVED AS TO FORM:
City Attorney
EXHIBIT "A"
REVISED DRAINAGE AND GRADING PLANS