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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"