1986-1141472L
NO 96
AN ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON,
SUNBURST DEVELOPMENT, INC , AND MICHAEL J WHITTEN TO PROVIDE
FOR THE PAYMENT OF COST OF CONDEMNATION OF A STORMWATER DRAINAGE
EASEMENT, AND PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, Sunburst Development, Inc is constructing an
apartment project at 1030 Dallas Drive and, pursuant to City
ordinance, is required to provide for and pay the cost of all
off-site stormwater drainage easements and facilities necessary
to serve its development, and
WHEREAS, Sunburst Development, Inc has been unable to
purchase at fair market value, storm drainage easements
necessary to provide for the off-site drainage facilities
required to be made, and
WHEREAS, the condemnation of land for drainage improvements
would be in the public interest and for a public purpose, and
WHEREAS, the City of Denton wishes to retain the legal
services of Michael J Whitten, attorney at law, to act on
behalf of the City to acquire by condemnation the necessary
drainage easements, NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I
That the Mayor and
directed to execute
between the City of
Michael J Whitten,
condemnation of land
accordance with the
attached hereto
SECTION II
City Secretary are hereby authorized and
and attest, respectively, the agreement
Denton, Sunburst Development, Inc and
providing for the payment of cost of
for a storm water drainage easement, in
terms and conditions of said agreement
That this ordinance shall become effective immediately upon
its passage and approval
PASSED AND APPROVED this the 1/9- day of ~1986
RAY ST H' NS , MAYOR
CITY 0 DENTON, TEXAS
ATTEST
CHARLOTTE ALLEN, CT S E A
CITY OF DENTON, TEXAS
APPROVED AS TO LEGAL FORM
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
CITY OF DENTON, TEXAS
BY 'YVl er1n~.,
1470L
THE STATE OF TEXAS S
COUNTY OF DENTON S
AGREEMENT BETWEEN THE CITY OF
DENTON, SUNBURST DEVELOPMENT, INC ,
$ MICHAEL J WHITTEN, PROVIDING FOR
THE PAYMENT OF THE COST OF CONDEMNATION
WHEREAS, Sunburst Development, Inc , a Texas corporation with
offices at 2505 Merrell Road, Dallas, Texas, has received approval
from the City of Denton, Texas, a municipal corporation with
offices at 215 East McKinney, Denton, Texas, to construct and
develop an apartment project at 1030 Dallas Drive in the City of
Denson, Texas, and
WHEREAS, pursuant to the City of Denton's Code of Ordinances,
Sunburst Development, Inc is required to provide for and pay the
cost of all off-site stormwater drainage easements and facilities
necessary to serve its development, and
WHEREAS, Sunburst Development, Inc has been unable to pur-
cha,e at fair market value the storm drainage easements necessary
to provide for the off-site drainage facilities required to be
made, and
WHEREAS, Sunburst Development, Inc has requested, in accor-
dance with the ordinances of the City of Denton, that the City
use its power of eminent domain to obtain the off-site drainage
easements so that the required drainage improvements may be
completed, and
WHEREAS, the condemnation of the land for off-site drainage
improvements would be in the public interest and for a public
purpose, and
WHEREAS, the City of Denton wishes to retain the legal ser-
vices of Michael J Whitten, attorney at law, of the law firm of
Whitten, Loveless, Kelsey, Gregory $ Holt, with offices at 218
North Elm Street, Denton, Texas, to act on behalf of the City of
Denton to acquire by condemnation the necessary drainage ease-
ments, the costs thereof to be paid in accordance with this
agreement, now, therefore,
WITNESSETH
This agreement made this J2'Lday of
by and between Sunburst Development, Inc
of Denton, Texas, ("City"), and Michael J
in consideration of the mutual covenants
agree as follows
, 1986,
' un urst" , the City
Whitten ("Attorney"),
and promises of each,
1 Attorne 's Services City agrees to retain the legal ser-
vices o Attorney to act on behalf of City to institute and pursue
proceedings in eminent domain to acquire an off-site stormwater
drainage easement to allow for the completion of required storm-
water drainage improvements by Sunburst The land to be acquired
for the drainage easement is described in Exhibit "A" attached
hereto and incorporated by reference After approval of a
resolution authorizing the condemnation of the easement by City,
Attorney shall prepare all petitions, motions, notices, and other
legal documents necessary to initiate and prosecute condemnation
proceedings and shall schedule and attend all hearings to effect-
uate the condemnation Attorney shall make a title investigation
of the property to be condemned to insure that all persons having
an interest therein, either as owner, lessee, or lienholder, are
made parties thereto and that, upon judgment of the court, an
easement for the purposes herein described will be vested in the
name of City unencumbered by the claim of any such person or
persons
2 Payment of Ac uisition Cost b Sunburst All fees of
Attorney, cling ees an court costs, appraiser and witness
fees, condemnation awards, recording fees, or other cost or fees
resulting from the condemnation shall be paid by Sunburst, except
as otherwise provided for herein Attorney and Sunburst agree
that all costs for which Sunburst is obligated to pay Attorney
under this agreement shall be directly billed by Attorney to
Sunburst and City shall not be billed for such costs and shall
have no obligation to pay, or to insure that Sunburst shall pay,
such costs for which Sunburst is liable to Attorney
3 Payment of Ac uisition Cost b City City and Sunburst
acknowledge that Sun urst as previously paid to City Twenty-Four
Thousand and No/100 Dollars ($24,000 00), as required by City's
ordinance, for its share of the cost of providing for future down-
stream drainage improvements The City and Sunburst agree that
City will pay from the Twenty-Four Thousand and No/100 Dollars
($24,000 00) previously contributed by Sunburst, in satisfaction
of the award for the condemnation made either by the Special
Commissioners, or on appeal, by judgment of the court, a maximum
amount of One Dollar ($1 00) per square foot of the total area of
the easement condemned, being a maximum total amount of Nine
Hundred and Eighty Dollars ($980 00), without regard to what
proportion of the total amount of such award or judgment is for
compensation for damages to the land covered by the easement or
is for compensation for damages to the remainder of the tract
condemned, if any
PAGE 2
4 Payment of Commissioner's Award Appeals Should the
total amount away e by the Special Commissioners for the con-
demnation be greater than an amount equal to One Dollar ($1 00)
per square foot of the total square feet within the easement
condemned, Sunburst shall pay to the City the difference in the
amount the City is obligated to pay herein and the amount of the
award made Upon payment of said amount by Sunburst, City shall
pay the total amount of said award, as provided by law, to obtain
the lawful right to enter and make use of the property condemned
If by reason of the amount of the award made, Sunburst is
obligated to pay in satisfaction of the award any amount in excess
of the One Dollar ($1 00) per square foot City is obligated to pay
herein, Sunburst 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,
within its sole discretion, authorize an appeal of the award if,
after Sunburst requests such appeal, City appeals the award made,
Sunburst shall pay all cost of such appeal Upon final judgment
of such appeal, City and Sunburst shall share in the satisfaction
of such judgment as is provided for in the satisfaction of the
award made by the Special Commissioners provided for herein if
City should appeal such award in the absence of such request by
Sunburst, Sunburst shall not be liable to City or Attorney for
the cost of such appeal or the amount of any judgment resulting
from the appeal, and shall not be entitled to any reimbursement
should City obtain a judgment which is less than the amount
awarded by the Special Commissioners
5 Com letion of Draina a Improvements City agrees that
upon approval o this agreement by all parties, City shall, upon
the request of Sunburst, inspect the buildings of Sunburst within
its apartment project as each is completed and, if in compliance
with City's ordinance, issue certificates of occupancy for each,
provided however, that Sunburst and City agree that no certifi-
cate of occupancy shall be issued for building number eight of
Sunburst's apartment project until all off-site drainage improve-
ments required to be made by Sunburst are completed to the satis-
faction of City, after all necessary off-site drainage easements
to complete the drainage improvements required to be made by
Sunburst have been acquired in the name of City, whether provided
for in this agreement or otherwise Sunburst agrees that it will
complete all off-site drainage improvements, to the satisfaction
of City, within thirty calendar days of the date City acquires
the legal right to enter and made use of the land to be acquired
under this agreement by condemnation
PAGE 3
6 Hold Harmless Sunburst agrees that the acquisition of
land provided or in this agreement is for the sole purpose of
allowing Sunburst to complete necessary off-site drainage im-
provements as required by City's ordinance to handle stormwater
drainage from its development project Sunburst agrees to hold
the City harmless from, and shall indemnify City for, any claim,
loss or damage arising or resulting from any act of Sunburst, it
agents, employees, contractors, or representatives, in construct-
ing said improvements Sunburst further agrees that it shall not
not make any claim against City, or hold City liable, for any loss
or damage suffered or incurred by Sunburst as a result of any
interruption or delay in condemning or acquiring any property
necessary for Sunburst to complete any required off-site storm
drainage improvements resulting from any legal challenge to the
right of City to condemn the land specified in this agreement,
delays resulting from Attorney's performance or nonperformance of
this agreement, or any other delay which results from any cause
not within the reasonable control of City
7 Entire Agreement This instrument contains the entire
agreement etween t e 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
8 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
9 Assignment It is agreed by the parties that there will
be no assignment of this agreement without the written consent of
all other parties
EXECUTED on the date first above written
CITY OF DENTON, TEXAS
SUNBURST DEVELOPMENT, INC
RA STE E1 S, MAl R
PAGE 4
ATTEST
a,
CSI ARLO T ALLE Y 4SEET=Arl-Y
CITY OF DENTON, TEXAS
APPROVED AS TO LEGAL FORM
DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY
CITY OF DENTON, TEXAS
BY trv✓~
WHITTEN
PAGE 5
EXHIBIT "A"
FIELD NOTE DESCRIPTION
DRAINAGE EASEMENT
BEING a tract of land situated in the S C Hirams Survey, Abstract No 616,
City of Denton, Denton County Texas, being a part of a tract of land con-
veyed by deed as recorded in Volume 797, Page 793, Deed Records of Denton
County, Texas and being more particularly described as follows (with bear-
ings referenced to the plat of Sunburst Place Two as recorded in Cabinet E,
Page 245 of the Denton County Plat Records)
BEGINNING at a 1/2 inch iron rod found for the southwest corner of a tract
of land conveyed by deed to Charles E Bounds as recorded in Volume 1117,
Page 371, Deed Records of Denton County, Texas, said iron rod being in the
east line of a tract of land conveyed by deed to Andrew Novodomszky as
recorded in Volume 1123, Page 831, Deed Records of Denton County, Texas,
THENCE South 83° 00' 31" East, departing said east line, and along a south
line of said Bounds tract, a distance of 50.00 feet to a point for corner,
THENCE South 42° 43' 29" West, departing said south line, a distance of
40 03 feet to a point in the northeast right-of-way line of Dallas Drive
(variable width).
THENCE North 47° 16' 31" West, along said northeast right-of-way line, a
distance of 30 94 feet to a point for corner, said point being in the east
line of the aforementioned Novodomszky tract,
THENCE North 01° 01' 09" East, departing said northeast right-of-way line
and along said east line, a distance of 14 50 feet to the POINT OF BEGIN-
NING and containing 0 0225 acres or 980 square feet of land
ALI AL-KHAFAJI
"TRACT B"