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2003-131SAOur Documents\Ordinances\03\Creekdale Drive Real Estate Ordinance-Final.doc ORDINANCE NO. /J L AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON THISTLE HILL PARTNERS. L.P. FOR THE ACQUISITION BY PURCHASE OR CONDEMNATION OF AN APPROXIMATE 0.08 ACRE TRACT OR PARCEL OF LAND IN FEE SIMPLE FOR STREET, UTILITY AND RIGHT-OF-WAY PURPOSES, SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY BEING LOCATED IN THE NATHANIEL BRITTON SURVEY ABSTRACT NUMBER 51 IN DENTON COUNTY, TEXAS AND BEING OUT OF THAT CERTAIN TRACT OR PARCEL OF LAND IN A DEED TO WAYNE S. RYAN AND SHELTON RYAN RECORDED IN VOLUME 2522, PAGE 898 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Manager, or his designee, is hereby authorized to execute an agreement between the City of Denton and Denton Thistle Hill Partners L.P., in substantially the form of the agreement which is attached hereto and made a part of this ordinance for all purposes (the "Agreement"). The City Council hereby finds that the Agreement serves a valid public purpose and is in the public interest. SECTION 2. The City Manager, or his designee, and the City Attorney, or his designee, are authorized to exercise the City's responsibilities and duties under the Agreement. The City Attorney, or his designee, is authorized to retain local counsel and/or other professionals to pursue the acquisition by purchase or condemnation of the property described in the Agreement as provided for in the Agreement and to make the expenditure of funds as provided for in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. 4 PASSED AND APPROVED this the 115 day of , 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY B APPROVEIYAS TO LEGAL FO HERBERT L. , CIT ATTORNEY BY: AGREEMENT WHEREAS, Denton Thistle Hill Partners, L.P. ("Developer") is the developer of a subdivision or addition to the City of Denton, Texas known as Thistle Hill Estates, Phase IT (the "Development"); and WHEREAS, certain off site public street right-of-way is necessitated by the Development as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference (the "Property"); and WHEREAS, the Property is owned by another property owner who is unwilling to grant or convey the Property for public use at fair market value; and WHEREAS, the Developer has requested, in accordance with State law, that the City of Denton, Texas (the "City") use its power of eminent domain to obtain the Property; and WHEREAS, the condemnation of the Property would be in the public interest and for a public purpose; NOW, THEREFORE, WITNESSETH: This agreement is made this 40 day of GL~ 2003, by and between Developer and the City, in consideration of the mutual covenan s and promises of each, agree as follows: L Attorney's Services. The City Attorney, with the approval of Developer shall retain local counsel to provide the legal services to institute and pursue proceedings in eminent domain to acquire the Property. The City Attorney shall assist local counsel in preparing all petitions, motions, notices, and other legal documents necessary to initiate and prosecute condemnation proceedings. The Developer shall pay all attorney fees directly to local counsel. H. Payment of Condemnation Costs by Developer. All filing fees and courts costs, appraiser, expert witness fees, condemnation awards and judgments, recording fees, or other costs or fees resulting from or associated with the condemnation ( called "Costs") shall be paid by Developer. M Payment of Acquisition Cost by Developer. Developer 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 any time prior to the entering of a judgment in this matter, Developer agrees to pay any costs assessed by the court against City including, but not limited to, attorney, expert witness fees and costs of the condemnee. IV. Appeal of Commissioners' Award. If, by reason of the amount of the commissioners' award made, Developer is obligated to pay in satisfaction of the award any amount in excess of market value for the Property, then Developer 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 sovereign duties and obligations within its sole discretion, authorize an appeal of the award. Developer shall pay all costs and expenses of such appeal. Upon final judgment of such appeal, Developer shall pay the judgment of the court. V. Escrow of Funds. Before the City shall proceed with any condemnation proceedings, Developer shall pay to the City $10,000 as security for the payment of the Costs (the "Escrow?'), If the Escrow is not paid within 30 days of the date of this Agreement, this Agreement shall automatically terminate. Should the Costs exceed the Escrow, Developer shall tender to the City the difference together with an amount deemed reasonably necessary by the City to continue to prosecute the case, no later than 30 days after written notice from the City. A failure to supplement the Escrow within said 30 day period may result in the City's termination of the case at Developer's sole expense. Developer understands that the Commissioners' Award together with other costs to that date could exceed the amount of the Escrow. In such case Developer would have to pay to the City the difference, before the amount of the Commissioners' Award could be deposited and possession of the Property could be obtained, pending final disposition of the case. If the Escrow exceeds the final Costs, the City shall reimburse Developer the difference no later than 60 days after entry of a final non- appealable judgment, date of settlement with the condemnees, or date the condemnation is terminated or abandoned, whichever occurs first. The City shall pay no interest on the Escrow. The City is permitted to draw money out of the Escrow at any time for payment of the Costs, or any portion thereof. VL Hold Harmless. Developer agrees that the acquisition of the Property provided for in this agreement is for the following public purposes: Public street and utility purposes. Developer agrees to hold the City harmless from, and shall indemnify City for, any claim, loss or damage arising or resulting from any act of Developer, its agents, employees, contractors, or representatives, in acquiring the Property and constructing said public improvements. Developer further agrees that it shall not make any claim against City, or hold City liable, for any loss or damage suffered or incurred by Developer as a result of any interruption or delay in condemning or acquiring the Property or to complete any required off-site improvements resulting from any legal challenge to the right of City to condemn the Property. VII. City Discretion. The City's exercise of it power of eminent domain is a discretionary government function of the City. Therefore, the decision to institute, continue, appeal, dismiss or take any action in relation to the condemnation proceedings for the acquisition of the Property shall be in the sole judgment of the City. Prior to taking such action or actions the City agrees to consult with the Developer. VIII. 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 parry 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. IX. 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. X. Assi ng ment. It is agreed by the parties that there will be no assignment of this agreement without the written consent of all parties. C:\Documents and SettingslBilly Cheek\Loc&l Settings\Temporary Internet Files\Content. iE5\OJDAM2ZM\Creekda1e Drive -Condemnation Agreement CAD approvedl.doc XL Notices. All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the addresses shown below, certified mail, return receipt requested, unless otherwise specified herein: To DEVELOPER: Denton Thistle Hill Partners, L.P. President, Bill Cheek, Jr. 3625 Serendipity Hills Trail Corinth, Texas 76210-3603 To CITY: Edwin M. Snyder City Attorney's Office City of Denton 215 East McKinney Street Denton, Texas 76201 EXECUTED effective as of the date first above written. ATTEST: ENTON TE Michael A. onduff, CIT AGER 215 E. McKinney Denton, Texas 76201 JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT UTY, Y ATTORNEY BY: DENTON THISTLE HILL PARTNERS, L.P., R.C.G.R Stuff managers, LLC, General Partner BY: , Name: Bill Cheek Jr. Title: President Address: ATTEST: C:\Documents and Settings\Billy CheeMocal Settings\Temporary Internet Files\Content.IE5\OJDRM2ZM\Creekdale Drive -Condemnation Agreement CAO approvedl.doc ,`o I A called 65.504 acre tract of land to Lot 4, Block J GK c~~S Q'1 I Wayne S. Ryan AND Shelton Ryan I Ryan Ranch Phase II o°<'` 1R_ 'R Volume 2522, Page 898, R.P.R./D.C,T. Cabinet T, Page 333, P.R./D.C.T. Nathaniel Britton Survey, Abstract Number 51 City: of Denton, Denton County, Texas o-P,coj1~6 I I Ryan tRanch (Phase II P (Z), Cabinet T, Page 333, P, R./D. C. T. Ja~J~ I L 1/2" IRF/Cap. _ 1/2 IRS/Cap. S $7'3030"E 79.83' N 13'34'48"E 8.62' to 0 to Proposed Creekdale Drive 1 " = 30' 0 Z C.M. 1%2" IRF 0.08 Acre S.W. Car. of S.S.E. Cor. of 65.504 Ac. Tr. 65.504 Ac. Tr. N 89'17 0 W 80.20 IP.O.B A called Tract I of land described in a deed to Calvert Volume 3318, Page 908, R.P.R./D.C.T. S TT iR• :-E. THO SOW sin 4857 \9y ess 0 i '44\00 • SOU R4, FFM= ;~`FINISHED FLOOR NG NATURAL GROUND BER - BURIED ELECTRIC RISER IRF IRON ROD FOUND IRS/CAP - 1/2"IRON ROD SET W/CAP FCP FENCE CORNER POST P.L. = PROPERTY LINE S.B. - SET BACK LINE S.Y.S.B. SIDE YARD SET BACK LINE e. L. = BU:LC!NC LIN' U.E. = UTILITY EASEMENT P.U.E. - PUBLIC U71UTY EASEMENT D.E. - DRAINAGE EASEMENT COMM. ESMT. - COMMUNICATION ESMT WM = WATER METER TR = TELEPHONE RISER ER ELECTRIC RISER TRANS - ELECTRIC TRANSFORMER PP - POWER POLE LP - UGHT POLE R.O.W. - RIGHT OF WAY P.O.B. - POINT OF BEGINNING P.O.C. = POINT OF COMMENCING -OHU-- - OVER-HEAD UTILITY --CAN-- - CABLE TV LINE --E-- - ELECTRIC UNE --T-- TELEPHONE LINE 1F- - WIRE FENCE --111-- WOOD FENCE -o-- - PIPE k CABLE FENCE -(-o-- CHAINLINK FENCE PLAT CR DE CALL CM ) C ONTROLL NGE MONUMENT BASE BEARING I > I o o Dr 0- i ~ o > Description 0.08 Acre All that certain tract or parcel of land situated in Nathaniel Britton Survey, Abstract Number 51, Denton County, Texas, and being a part of a called 65.504 acre tract of land described in the partition deed recorded in Volume 2522, Page 898, Real Property Records of Denton County, Texas, and being more particularly described as follows: Beginningg at a 2„ pipe found at the South Southeast corner of said 65.504 acre tract and in Creekdale Drive, Thence North 89 Degrees 17 Minutes 03 Seconds West with the South line of said 65.504 acre tract, a distance of 80.20 feet to a 1/2" iron rod found at the Southwest corner of said 65.504 acre tract and at the Southeast corner of a called 31.51 acre tract of land described in a deed to Denton Thistle Hill Partners, L.P. as recorded in Volume 5196, Page 3818, Real Property Records of Denton County, Texas; Thence North with the West line of said 65.504 acre tract and with the East line of said 31.51 acre tract, a distance of 45.05 feet to a 1/2" capped iron rod set for the Northwest corner of the herein described tract; Thence South 87 Degrees 30 Minutes 30 Seconds East, a distance of 79.83 feet to a 1/2" capped iron rod set for corner at the Southwest corner of Lot 37, Block J of Ryon Ranch Phase II, an addition to the City of Denton, Denton County, Texas, according to the plat thereof recorded in Cabinet T, Page 333, Plat Records of Denton County, Texas and in the East line of said 65.504 acre tract and also in the North Right-of-Way line of said Creekdale Drive; Thence South 00 Degrees 35 Minutes 59 Seconds East with the said East line, a distance of 42.58 feet to the POINT OF BEGINNING and containing 0.08 acre of land. This Survey sketch represents the results of an on-the-ground survey made under my direction and supervision on 01-10-03. There are no visible or apparent intrusion, protrusions or easements except as shown hereon. - - - - - - - - J.E. THOMPSON I! R.P L.S' Na 4a,57 n to r P.O. BOX 507 KRUM, TX 76249 REV l: (940)482-6723 - - 7 07 2: JOB NUMBER: 030015 DRATPN BY: S.P.A. RE 3: CHECKED BY: M.J.K. ANCE DATE: 01-10-03 REV 4: R.P.L.S. 'NTG J.E. THOMPSON 11 RE J/~1RS./C-Qp.._.._.._ rn to to !n~ Creekdale Drive 00 (60' R.O.W.) Per Ryan Ranch Phase I 24 Pipe Fnd.