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2013-212ORDINANCE NO. 2013 -212 AN ORDINANCE (I) FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE THROUGH THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN AN ELETRIC UTILITY EASEMENT ENCUMBERING 0.1911 ACRE TO BE USED AND UTILIZED FOR AND IN CONNECTION WITH THE EXPANSION, CONSTRUCTION, MAINTENANCE, REPLACEMENT, AUGMENTATION AND IMPROVEMENT OF ELECTRIC TRANSMISSION AND DISTRIBUTION LINES, FACILITIES AND STRUCTURES (HEREIN, THE "DME EXPANSION PROJECT "), THE AFFECTED LANDS AND INTERESTS BEING GENERALLY SITUATED IN THE R.B. LONGBOTTOM SURVEY, ABSTRACT NUMBER 775, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED IN EXHIBIT "A" AND DEPICTED IN EXHIBIT "B ", ATTACHED HERETO AND MADE A PART HEREOF (SAID TRACT OF LAND AND ALL RELATED INTERESTS THEREIN TO BE ACQUIRED AND DAMAGES RESULTING THEREFROM COLLECTIVELY REFERRED TO HEREIN AS THE "PROPERTY INTERESTS "); (II) AUTHORIZING THE FILING AND PROSECUTION OF EMINENT DOMAIN PROCEEDINGS TO ACQUIRE THE PROPERTY INTERESTS; (III) AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; (IV) MAKING FINDINGS; (V) PROVIDING A SAVINGS CLAUSE; AND (VI) PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas (the "City ") has initiated plans for the expansion of electrical utilities and infrastructure which affect, among other lands and interests, the Property Interests; WHEREAS, the acquisition of the Property Interests is necessary for public use to provide electrical utilities expansion and improvements to serve the public and the citizens of the City of Denton, Texas; WHEREAS, the City made a written Initial Offer (herein so called) to Prescott Interests, LTD, the owner of the Property Interests ( "Owner"), on May 17, 2013 to purchase the Property Interests from the Owner; WHEREAS, the City provided to the Owner of the Property Interests at the time of presenting the Initial Offer, by certified mail, return receipt requested, (among other things) all appraisal reports produced or acquired by the City relating specifically to the Owner's property prepared in the ten (10) years preceding the date of the Initial Offer, and a Texas Landowner's Bill of Rights; WHEREAS, the Initial Offer made by the City to the Owner of the Property Interests did not include a confidentiality provision and further informed the Owner of the Property Interests that such Owner had the right to (i) discuss any offer or agreement regarding the City's acquisition of the Property Interests with others; or (ii) keep the offer or agreement confidential, unless the offer or agreement would be subject to Chapter 552 of the Texas Government Code (the "Non Confidential Notice "); WHEREAS, the City made a written Final Offer (herein so called) to the Owner of the Property Interests on July 1, 2013 to purchase the Property Interests from the Owner, said date being after the thirtieth (30th) day after the date on which the City made the Initial Offer to the Owner of the Property Interests; WHEREAS, along with such Initial and/or Final Offer, the Owner of the Property Interests was provided a written appraisal from a certified appraiser of the value of the Property Interests and the damages, if any, to any of the Owner's remaining property, if any; WHEREAS, the Final Offer made to the Owner of the Property Interests to purchase the Property Interests of the Owner was equal to or greater than the amount of the written appraisal obtained by the City; WHEREAS, the Initial and Final Offer made to the Owner of the Property Interests included (i) a copy of the written appraisal; (ii) (a) an easement purchase agreement and (b) an electric utility easement, being the instruments proposed to be used in the conveyance of the Property Interests sought to be acquired by the City; (iii) the Landowner's Bill of Rights statement prescribed by Section 21.0112 of the Texas Property Code; and (iv) the Non Confidential Notice; WHEREAS, the City provided the Owner of the Property Interests at least fourteen (14) days to respond to the Final Offer and the Owner of the Property Interests did not agree to the terms of the Final Offer within that period, nor did negotiations between the City and the Owner, if any, result in mutually agreeable terms to purchase the Property Interests; WHEREAS, the notice for the public meeting of the City Council of the City in which this Ordinance is considered, in addition to other information as required by Subchapter C, Chapter 551, of the Texas Government Code, expressly included the consideration by the City of Denton of the use of eminent domain to condemn the Property Interests; WHEREAS, in ordaining the matters set forth herein, the motion to pass and approve this ordinance was stated as "I move that the City of Denton, Texas authorize the use of the power of eminent domain to acquire (1) an easement acquisition encumbering 0.1911 acre of real property, being generally located in the R.B. Longbottom. Survey, Abstract No. 775, and all being more particularly described in Exhibit "A" and depicted in Exhibit `B" to the ordinance now under consideration and on the overhead screen being now displayed to the audience, for the DME Expansion Project in the City of Denton, Texas "; and WHEREAS, after due consideration of the public interests to be furthered by DME Expansion Project in the City of Denton, Texas; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby finds and determines that the acquisition of the Property Interests is necessary for public use to provide electric utilities expansion and improvements to serve the public and the citizens of the City of Denton, Texas, and that the public welfare and convenience requires the acquisition of the Property interests, and the City of Denton, Texas does hereby exercise its home -rule and statutory authority to acquire by eminent domain, (1) an easement acquisition encumbering 0.1911 acre of real property, all affected tracts being described in Exhibit "A" and depicted in Exhibit B ", attached hereto and made apart 2 hereof by reference. The Council hereby further finds and determines that the acquisition of the Property Interests is for a public use, to serve the public and the citizens of the City of Denton, Texas. SECTION 2. The Council hereby authorizes and directs the filing and prosecution of eminent domain proceedings by the City of Denton, Texas to acquire the Property Interests. SECTION 3. The City Council hereby finds that the Owner was the record title owner of said Property Interests at the time of making the Initial Offer and Final Offer. Without limiting the general authorization provided in Section 2, above, the City Council further authorizes joinder of additional or differing owner or owners, or claimant or claimants, of the Property Interests, if applicable, in the eminent domain proceedings, and to condemn the interests of each such parties to acquire the Property Interests. SECTION 4. The City Manager, or his designee, shall have the authority to do all things necessary or appropriate to acquire the Property Interests by eminent domain, including without limitation, the authority to retain and hire, on behalf of the City, counsel to file and prosecute eminent domain proceedings, and to expend funds related to the prosecution of such proceedings. SECTION 5. The recitals provided in this Ordinance, as set forth above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6. If any section, article, paragraph, sentence, phrase, clause or word in this ordinance, or application thereof to any persons or circumstances, is held invalid or unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance; the City Council declares that it would have ordained such remaining portion despite such invalidity, and such remaining portion shall remain in full force and effect. SECTION 7. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the Z061 day of , 2013. mAkk A. BURR U HS, OR ATTEST: JENNIFER WALTERS, CITY SECRETARY By R 3 APPROVED AS TO LEGAL FORM: JOHN E. KELSEY, KELSEY, KELSEY & HICKEY, PLLC By: EXHIBIT A BEING A 0.1911 ACRE TRACT OF LAND SITUATED iN THE R.B. LONGBOTTOM SURVEY, ABSTRACT NUMBER 775 AND BEING A PORTION OF A 1.12 ACRE TRACT OF LAND DESCRIBED iN DEED TO PRESCOTT INTEREST, LTD., A TEXAS LIMITED PARTNERSHIP RECORDED IN DOCUMENT NUMBER 2007 -59777 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS. ALSO BEING A PORTION OF LOT 1, EAST INDUSTRIAL PLAZA, AN ADDITION TO THE CITY OF DENTON, ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 13, PAGE 18 OF THE PLAT RECORDS OF DENTON COUNTY, TEXAS. SAID 0.1911 ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING at a 1/2 inch capped iron rod found and stamped "WEIR & ASSOC INC" being the southeast corner of said Prescott Interest tract and lying in the north right-of-way line of U.S. Highway 380 (variable width ROW) also being the beginning of a non - tangent curve to the right having a central angle of 3 11 PO4 ", a radius of 3357.11 feet, a chord bearing of S 35 106'06" W and a chord length of 186.57 feet; THENCE along said non- tangent curve to the right an are length of 186.59 feet, to the POINT OF BEGINNING, for the southeast corner hereof, also being the beginning of a non- tangent curve to the right having a central angle of 0 043'35 ", a radius of 3357.11 feet, a chord bearing of N 84 140'39" W and a chord length of 42.57 feet; THENCE along said non - tangent curve to the right an arc length of 39.70 feet, passing a 518 inch capped iron rod stamped "TNP" set at the intersection of the centerline of the herein described tract and the south line of said Prescott Interest tract, continuing in all a total arc length of 42.57 feet, to a point for the southwest corner hereof and said Prescott Interests tract, also lying in the north right -of -way line of U.S. Highway 380 and the east right -of -way line of Virginia Street (variable width ROW); THENCE N 07 042'54" W with said east line of Virginia Street and the west line of said Prescott Interests tract, a distance of 195.79 feet, to a point for the northwest corner hereof and said Prescott interests tract, lying in the most westerly south line of that called 8.666 acre tract of land known as Tract 1, as described in deed to Prescott Interests, LTD., and recorded in Document Number 2011 -8722 of the Real Property Records of Denton County, Texas; THENCE N 81 054'19" E with the most westerly north line of said Prescott Interests tract and the most westerly south line of said Tract 1, a distance of 3.97 feet, passing a 5/8 inch capped iron rod stamped "TNP" set at the intersection of the herein described tract and the common line of said Prescott Interests and said Tract 1, continuing in all a total distance of 41.47 feet, to a point for the northeast corner hereof, THENCE leaving said common line S 07 °42'54" E over and across said Prescott Interests tract, a distance of 205.66 feet, to the POINT OF BEGINNING and contauzing 0.1911 acres of land more or less. i Adam Whitfield, R.P. Texas Registration No. 5786 1 Z -t2-tZ Date: December 12, 2012 Sheet 1 of 2 DNC 12170 i I/2 S 81 54'1 7.50' t 1 1 t BXHI BI T B A CALCULATED POINT Lr ucrvu 1 _ f ® 5/9- IRS STAMPED TNP PRESCOT� INTERESTS, LTD., © FENCE POST FOUND DOC. N0, 2011 -8722 O IRON ROD FOUND (UNLESS OTHERWISE 9" W ST"RFV "TNP" _ J- i Centerline of RR SPIRE I Electric Easement !: � \ i rl 0 j LOT t to U"\ I EAST INDUSTRIAL PLAZA ADD'N. v` Q VOL. 13, PG. 18 P.R.D.C.T. yr PRESCOTT INTERESTS, LTD., a� t 0 30' 60' 120' Texas limited partnership C" DOC. NO. 2007 -59777 D.R.D.C.T. (TRACT 1) c3`�� SCALE: 1" = 60' t (CALLED 1.12 ACRE TRACT) 1 5/8" IRS 37.50 NM CAP � STAMPED "TNP" I \ 1/2" IRF I '71EIRdcASSOC INC" C1 POINT OF U "S" HIGHWAY 380 BEGaINNING VARIABLE WIDTH 11_0_W POINT OF COMMENCEMENT CURVE RADIUS ARC LENGTH CHORD LENGTH CHORD BEARING DELTA ANGLE C1 3357.11' 186.59' 186.57' N 86'37'59" W 3'11'04" C2 3357.11' 42.57' 42.57' N 84'40'39" W 0'43'35" SURVEYORS CERTIFICATION: To the best of my imovAedge, Information, and belief. the plat hereon is a correct representation of the property as determined by a survey made on the ground September 21, 2012, the lines and dimensions of said property being as indicated by the plat �)n Adam Whitfield, R.P.L.S. 7.. - t ?. - Date: December 12, 2012 �Y.. `��STfi :: 4� �p•..tS ........................:... ADAM WHIT_FIELD ...............5786 .......:.... Qy. ( F SS10� .1a qHo su�v� BASIS OF BEARING: Bearings are based on the Texas State Plane Coordinate System, North Central Zone (NAD83). 0.1911 ACRES Situated in the R.B. Longbottom Survey, Abstract 775 City of Denton Denton County, Texas JOB NO. SGE12170 -00 SHEET 2 OF 2 teague nail & perkins 1317 n, I .7 200 Dsebn, Tspes 76203 940.363A177ph 4.t0.393.W26hc Www.tnptnc.com LAProjedsWGE12178-00 DME Trar mLsOon LinatgdlaurveylTRACT28 PUE.dwg R.P.R.D.C.T. I I. ] R RECORD INFORMATION I ( (TRACT 1) C CM C CONTROL MONUMENT 1 N N g�•5q'19" l SPIKE �\ — — — C CENTERLINE ELEC. ESMT. 41.4 - l S — — — — — — — A ADJACENT PROPERTY LINE „ IRF \ \ 1 2" IRF x x x BARBED WIRE FENCING 11'M CAP CURVE RADIUS ARC LENGTH CHORD LENGTH CHORD BEARING DELTA ANGLE C1 3357.11' 186.59' 186.57' N 86'37'59" W 3'11'04" C2 3357.11' 42.57' 42.57' N 84'40'39" W 0'43'35" SURVEYORS CERTIFICATION: To the best of my imovAedge, Information, and belief. the plat hereon is a correct representation of the property as determined by a survey made on the ground September 21, 2012, the lines and dimensions of said property being as indicated by the plat �)n Adam Whitfield, R.P.L.S. 7.. - t ?. - Date: December 12, 2012 �Y.. `��STfi :: 4� �p•..tS ........................:... ADAM WHIT_FIELD ...............5786 .......:.... Qy. ( F SS10� .1a qHo su�v� BASIS OF BEARING: Bearings are based on the Texas State Plane Coordinate System, North Central Zone (NAD83). 0.1911 ACRES Situated in the R.B. Longbottom Survey, Abstract 775 City of Denton Denton County, Texas JOB NO. SGE12170 -00 SHEET 2 OF 2 teague nail & perkins 1317 n, I .7 200 Dsebn, Tspes 76203 940.363A177ph 4.t0.393.W26hc Www.tnptnc.com LAProjedsWGE12178-00 DME Trar mLsOon LinatgdlaurveylTRACT28 PUE.dwg SURVEYORS CERTIFICATION: To the best of my imovAedge, Information, and belief. the plat hereon is a correct representation of the property as determined by a survey made on the ground September 21, 2012, the lines and dimensions of said property being as indicated by the plat �)n Adam Whitfield, R.P.L.S. 7.. - t ?. - Date: December 12, 2012 �Y.. `��STfi :: 4� �p•..tS ........................:... ADAM WHIT_FIELD ...............5786 .......:.... Qy. ( F SS10� .1a qHo su�v� BASIS OF BEARING: Bearings are based on the Texas State Plane Coordinate System, North Central Zone (NAD83). 0.1911 ACRES Situated in the R.B. Longbottom Survey, Abstract 775 City of Denton Denton County, Texas JOB NO. SGE12170 -00 SHEET 2 OF 2 teague nail & perkins 1317 n, I .7 200 Dsebn, Tspes 76203 940.363A177ph 4.t0.393.W26hc Www.tnptnc.com LAProjedsWGE12178-00 DME Trar mLsOon LinatgdlaurveylTRACT28 PUE.dwg