HomeMy WebLinkAbout1999-082ORDINANCE NO 0/9 - GPa--
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT ON BEHALF OF THE CITY OF DENTON WITH THE PRESERVE OF
PECAN CREEK PARTNERS PROVIDING FOR THE PAYMENT OF THE COST OF
CONDEMNATION FOR CONSTRUCTION OF STREET IMPROVEMENTS FROM THE
PROPOSED LAKEVIEW BOULEVARD TO SHADY SHORES ROAD
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the City Manager is hereby authorized to execute an Agreement on
behalf of the City of Denton with The Preserve of Pecan Creek Partners, substantially in the form
of the attached Agreement which is incorporated herein for all purposes, providing for the
payment of the costs of condemnation of certain property to allow construction of street
improvements from the proposed Lakeview Boulevard to Shady Shores Road
SECTION II That the City Manager is authorized to make the expenditure of funds as
provided in the attached Agreement
SECTION III That this ordinance shall become effective immediately upon its passage
and approval
PASSED AND APPROVED this the ,Ila day of 1999
_ U.w
JAC LER, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
1
BY
AP46VED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
BY at� /
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THE STATE OF TEXAS § AGREEMENT BETWEEN THE CITY
OF DENTON AND THE PRESERVE OF
PECAN CREEK PARTNERS, AND
PROVIDING FOR THE PAYMENT OF
COUNTY OF DENTON § THE COST OF CONDEMNATION
WHEREAS, The Preserve of Pecan Creek Partners, with its offices at 4000 West Windsor
Drive, Flower Mound, Texas 75028, desires the City of Denton to promote safe vehicular traffic
movement, compliance with subdivision regulation and economic development by allowing the
development of The Preserve at Pecan Creek by allowing the construction of street unprovements
from the proposed Lakeview Boulevard to Shady Shores Road, and
WHEREAS, pursuant to Section 211 002 Tex Loc Gov't Code, the City of Denton has
adopted Sec 34-45 of the Subdivision Rules and Regulations, Chapter 34 of the Denton City code
to require developers to construct extensions to city streets adjacent to the proposed developments,
and
WHEREAS, Article 3, Section 52-a of the Texas Constitution and Section 380 001, Tex
Loc Govt Code provide the promotion of economic development is a public purpose, and Section
251 001 Tex Loc Govt Code provides Public Safety is a public purpose, and
WHEREAS, The Preserve of Pecan Creek Partners will provide for and pay the cost of all
street easements necessary to provide street improvements from the Preserve development from the
proposed Lakeview Boulevard to Shady Shores Road if the City will negotiate and purchase such
easements and facilities, and
WHEREAS, The Preserve at Pecan Creek Partners has been unable to purchase at fair
market value the street easements necessary to provide for the off -site street facilities required to be
made, and
WHEREAS, The Preserve at Pecan Creek Partners has requested, in accordance with the
State law, that the City use its power of eminent domain to obtain the off -site street easements so
that the required street improvements may be completed, and
WHEREAS, the condemnation of the land for off -site street improvement would be in the
public interest and for a public purpose, NOW, THEREFORE,
WITNE$SETH:
This agreement made this , - -- day of 19by and between The
Preserve at Pecan Creek Partners ;"The Preserve"), and the City of De ton, Texas ("City'), in
consideration of thi, mutual covenants and promises of each, agree as follows
I Attorney Services. The City Attorney, with the approval of The Preserve shall
retain local counsel to provide the legal services to institute and pursue proceedings in emin,.nt
domain to acquire off -site street easements to allow for the construction of street improvements by
The Preserve to provide streets from the Preserve to Shady Shores Road The land to be acquired
for the street easements are described in Exhibit "A" and Exhibit "B" attached hereto and
incorporated by reference The City Attorney shall assist local counsel in preparing all petitions,
motions, notices, and other legal documents necessary to initiate and prosecute condemnation
proceedings
II. Pgyment of Condemnation Costs by The Preserve All filing fees and courts
costs, appraiser, expert witness and local counsel fees, condemnation awards, recording fees, or
other cost or fees resulting from the condemnation shall be paid by The Preserve, except as
otherwise provided for herein
M. Payment of Acquisition Cost by The Preserve. The Preserve agrees that it will
pay the award for the condemnation made either by the Special Commissioners, or on appeal, by
judgment of the court Should the condemnation case be non -suited or dismissed at The Preserve's
request, at any time prior to the entering of a judgment in tins matter, The Preserve agrees to pay
any costs assessed by the court against City including, but not limited to, attorney and expert
witness fees of the condemnee
IV. Appeal of Commissioner's Award. If, by reason of the amount of the award made,
The Preserve is obligated to pay in satisfaction of the award any amount in excess of market value
for the access easements, then The Preserve may request, in writing within ten days of said award,
that City appeal the award made Upon such request and the City's determination that the award
was excessive, the City may, in fulfillment of its sovereignty duties and obligations witlun its sole
discretion, authorize an appeal of the award If, after The Preserve requests such appeal, City
appeals the award made, The Preserve shall pay all costs of such appeal Upon final judgment of
such appeal, The Preserve shall pay the judgment of the appellant court If City should appeal such
award in the absence of such request by The Preserve, The Preserve shall not be liable to City for
the cost of such appeal or the amount of any judgment resulting from the appeal in excess of the
trial court's judgment
V. Hold Harmless. The Preserve agrees that the acquisition of land provided for in
this agreement is for the sole purpose of allowing The Preserve and neighboring property owners to
complete necessary off -site access improvements for the public purpose of promoting safe vehicular
traffic movement, compliance with subdivision rules and regulation and econormc development by
allowing access from the tract owned by the Preserve to Shady Shores Road The Preserve agrees
to hold the City harmless from, and shall indemnify City for, any claim, loss or damage ansmg or
resulting from any act of The Preserve, its agents, employees, contractors, or representatives, in
acquiring right-of-way and constructing said improvements The Preserve further agrees that it
shall not make any claim against City, or hold City liable, for any loss or damage suffered or
incurred by The Preserve as a result of any interruption or delay in condemning or acquiring any
property necessary for The Preserve to complete any required off -site access improvements
resulting from any legal challenge to the right of City to condemn the land specified in tlus
agreement, or any other delay which results from any cause not within the re, 5onable control of
City
VI. Entire Agreement. This instrument contains the entire agreement between the
parties, and no statement, promise, or inducements made by any party or agent of any party that is
not contained in this written contract shall be valid or binding, and this agreement may not be
enlarged, modified, or altered except in writing signed by all the parties and endorsed hereon
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PAGE 2
VII. Venue. Any action at law, suit in equity or judicial proceeding for the enforcement
of this contract or any provision thereof shall be instituted only in the courts of Denton County,
Texas
VIII. Assignment. It is agreed by the parties that there will be no assignment of this
agreement without the written consent to all other parties
EXECUTED on the date first above written
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
BY
CITY OF DENTON, TEXAS
JEZ,
THE PRESERVE AT PECAN CREEK
PARTNERS
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ATTEST
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PAGE
EXHIBIT "A"
ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING
SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT No. 1330, CITY AND
COUNTY OF DENTON, TEXAS, AND BEING THE SAME (CALLED) 1.619 ACRE
TRACT OF LAND DESCRIBED IN A DEED TO SHADY SHORES I-35 JOINT
VENTURE, RECORDED UNDER COUNTY CLERK'S FILE No. 95-R0053704, REAL
PROPERTY RECORDS OF DENTON COUNTY, TEXAS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID 1.619 ACRE TRACT, ALSO
BEING THE NORTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A
DEED TO JOHN L. TINNRELLO, RECORDED IN VOLUME 3363, PAGE 9299 OF THE
REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, ON THE SOUTH
LINE OF A TRACT OF LAND DESCRIBED IN A QUITCLAIM DEED TO THE CITY
OF DENTON, RECORDED UNDER COUNTY CLERK'S FILE No. 93-R0058485, OF
THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS;
THENCE SOUTH 14 DEGREES 38 MINUTES 30 SECONDS WEST WITH THE EAST
LINE OF SAID 1.619 ACRE TRACT AND THE WEST LINE OF SAID TINNRELLO
TRACT, A DISTANCE OF 539.49 FEET TO A CORNER AT THE BEGINNING OF A
CURVE TO THE LEFT;
THENCE WITH SAID CURVE TO THE LEFT, HAVING A CENTRAL ANGLE OF 01
DEGREE 25 MINUTES 05 SECONDS, A RADIUS OF 1017.00 FEET, AN ARC LENGTH
OF 25.17 FEET, WITH A CHORD WHICH BEARS SOUTH 15 DEGREES 21 MINUTES
03 SECONDS WEST A DISTANCE OF 25.17 FEET TO THE SOUTHEAST CORNER
OF SAID 1.619 ACRE TRACT AT THE SOUTHWEST CORNER OF SAID
TUMULLO TRACT, ON THE NORTH RIGHT-OF-WAY OF SHADY SHORES
ROAD;
THENCE NORTH 80 DEGREES 14 MINUTES 13 SECONDS WEST WITH THE
SOUTH LINE OF SAID 1.619 ACRE TRACT AND THE NORTH RIGHT-OF-WAY OF
SHADY SHORES ROAD, A DISTANCE OF 120.83 FEET TO THE SOUTHWEST
CORNER OF SAID 1.619 ACRE TRACT AND THE SOUTHEAST CORNER OF A
TRACT OF LAND DESCRIBED IN A DEED TO ERNEST A. TINNRELLO,
RECORDED IN VOLUME 3363, PAGE 9259 OF THE REAL PROPERTY RECORDS OF
DENTON COUNTY, TEXAS, AT THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE WITH SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 02
DEGREES 15 MINUTES 52 SECONDS, A RADIUS OF 897.00 FEET, AN ARC LENGTH
OF 35.45 FEET, WITH A CHORD WHICH BEARS NORTH 15 DEGREES 46 MINUTES
26 SECONI)S EAST A DISTANCE OF 35.45 FEET TO A CORNER;
EXHIBIT "A" (cont.)
THENCE NORTH 14 DEGREES 38 MINUTES 30 SECONDS EAST WITH THE WEST
LINE OF SAID 1.619 ACRE TRACT AND THE EAST LINE OF SAID ERNEST A.
TINNRELLO TRACT, A DISTANCE OF 573.69 FEET TO THE NORTHWEST
CORNER OF SAID 1.619 ACRE TRACT AND THE NORTHEAST CORNER OF SAID
ERNEST A. TINNRELLO TRACT, ON THE SOUTH LINE OF SAID CITY OF
DENTON TRACT AT THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE WITH SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 04
DEGREES 57 MINUTES 23 SECONDS, A RADIUS OF 1442.93 FEET, AN ARC
LENGTH OF 124.82 FEET, WITH A CHORD WHICH BEARS SOUTH 59 DEGREES 27
MINUTES 06 SECONDS EAST A DISTANCE OF 124.78 FEET TO THE POINT OF
BEGINNING AND CONTAINING IN ALL 709547.80 SQUARE FEET OR 1.619 ACRES
OF LAND.
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Date a AUG. 1998qM
Job No. 1 9682wrop
Drafted, T.J M
Checkedi J.S.B
ORGANIZATIONAL CONSENT OF MANAGERS
OF
PRESERVE I DEVELOPMENT, LLC
The undersigned, being the managers of Preserve I Development, LLC, a Texas limited
liability company (the "Company"), do hereby consent and agree to the adoption of the following
resolutions in heu of an organizational meeting
WHEREAS, the Articles of Organization for the Company were filed with the Secretary of
the State of Texas on April 10, 1999, and a certified copy thereof was returned, now, therefore, be
it
be it
RESOLVED, that the Articles of Organization be, and the same hereby are, in all
respects accepted and approved as the Articles of Organization of the Company, and that the
undersigned managers be, and the same hereby are, instructed to cause such Articles of
Organization to be inserted in the minute book
WHEREAS, it is necessary and appropriate that the Company elect officers, now, therefore,
RESOLVED, that the following persons be, and the same hereby are, elected as
officers of the Company to occupy the positions set forth opposite their respective names until
their respective successors shall be duly elected and qualified
Marc Footlik
Dan Hopkins
.2,0
ORGANIZATIONAL CONSENT OF TfIE MANAGERS
OF PRESERVE I DEVE[APMENT, LLC - Page 1
e ;,
President
Vice President
#6203 4
WHEREAS, a form of Regulations for the governance of the internal affairs of the
Company has been presented to the undersigned Managers and have been reviewed by them, now,
therefore, be it
RESOLVED, that the Regulations in the form subrmtted to the undersigned Managers
to, and the same hereby are, in all respects accepted and approved as the Regulations of the
Company, and that the undersigned Managers be, and the same hereby are, instructed to
execute the Regulations, as adopted, and to cause such Regulations to be inserted in the
minute book immediately following the Articles of Organization.
WHEREAS, it is in the best interest of the Company to procure books and supplies for the
maintenance of records of the Company, now, therefore, be it
RESOLVED, that the undersigned Managers of the Company be, and the same hereby
are, authorized to procure books and supplies for the maintenance of records of the Company
and are instructed to maintain proper records and books for the Company
WHEREAS, a proposed form of certificate representing a membership interest in the
Company has been presented to the undersigned Managers, now, therefore, be it
RESOLVED, that the tbrm of certificate presented to the undersigned Managers
representing a membership interest in the Company be, and the same hereby is, in all respects,
approved and adopted as the form of Certificate to represent a membership interest in the
Company, and that the undersigned Managers of the Company be, and the same hereby are,
instructed to insert a specimen copy thereof in the minute book
WHEREAS, it is necessary and appropriate for the Company's members to have membership
certificates; and
WHEREAS, WRC Westover, Inc ("WRC") and Habar Texas, Inc ("HTI") each desire to
OROANMAI IONAL CONSENT OF nM MANAOEIL4
OF PRESElt*E I DEVELOPMENT, LI.0 - Page 2 062034
obtain a membership interest cerdficate in the Company evidencing their initial contribution, in cash,
to the capital of the Company; now, therefore, be it
RESOLVED, that in consideration for the initial capital contributions of WRC and
HTI (as respectively set forth in Article VU of the Regulations), the Company issue a
certificate to each such member evidencing their respective membership interest in the
Company; and, be it
FURTHER RESOLVED, that the undersigned Managers of the Company be, and the
same hereby are directed to execute and cause to be executed, and deliver and cause to be
delivered to WRC and HTI, certificates of the Company representing the respective
membership interest of each such person in the Company, and, be it
FURTHER RESOLVED, that the certificates issued pursuant to these resolutions be,
and the same hereby are, offered and sold to WRC and HTI, in reliance upon exemptions
from registration under the Securities Act of 1933 and the Texas Securities Act, and, in
connection therewith, certain restrictions and limitations on the offer, sale and transfer by the
holder thereof shall be imposed and enforced by the Managers of the Company as set forth
in the Regulations, and, be it
FURTHER RESOLVED, that the undersigned Managers and the same hereby are
authorized and directed for and on behalf of the Company to place restrictive legends on the
membership certificates issued hereunder, and to place stop transfer instructions in the
transfer records of the Company
YdMREAS, in order to place the Company's business in order, it is necessary and appropriate
that the Company open a bank account and designate the persons permitted to sign checks on or
otherwise withdraw Rinds from such account, now, therefore, be it
RESOLVED, that the Company open a corporate bank account at such bank, savings
and loan association or other financial institution as the undersigned Managers of the
Company, in their sole discretion, shall deem appropriate, and, be it
FURTHER RESOLVED, that the undersigned Managers be, and the same hereby are,
authorized, empowered and directed to write checks on such account on behalf of the
Company, and, be it
FURTHER RESOLVED, that the undersigned Managers of the Company be, and the
same hereby are, authorized, empowered and directed to execute any form of resolution
OROANZATIONAL CONSENT OF THE MANAGERS
OF PRESERVE I DEVELOPMENT, LLC - Page 3 062034
required by such bank, savings and loan association or other financial institution for the
opening or maintenance of such account and to designate the persons authorized to write
checks on such account on behalf of the Company and such resolutions are deemed adopted
hereby as if set forth in full herein and incorporated by reference
WHEREAS, it is the best interests of the Company to adopt a fiscal year, therefore, be it
RESOLVED, that the fiscal year of the Company shall commence on January 1 of
each calendar year and end on the succeeding December 31, except that the first fiscal year
of the Company shall begin as of the date hereof
WHEREAS, it is in the best interests of the Company to provide for the payment of the
expenses of organization of this Company, now, therefore, be it
RESOLVED, that the undersigned Managers of the Company be, and hereby are,
authorized and directed to pay the expenses of organization of the Company
RESOLVED, that the undersigned Managers of the Company be, and the hereby are,
authorized, empowered and directed to execute and deliver all documents, instruments and
other agreements, to waive any and all conditions and to do all things necessary and helpful
to carry out the purposes of the foregoing resolutions, and all acts and deeds of the
undersigned Managers of the Company which are consistent with the purpose and intent of
the above resolutions be, and the same hereby are, in all respects, ratified, approved, and
adopted as the acts and deeds of the Company
IN WITNESS WHEREOF, the undersigned have executed this Organizational Consent of
Managers as of this 10th day of April, 1999
OROANIZATIONAL CONSENT OF THE MANAGERS
OF PRESERVE 1 DEVELOPMENT, LLC -Page 4 062034