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2013-214qN, ORDINANCE NO. 2013 -214 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 6.8289 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 CASWELL CARTER SURVEY, ABSTRACT NUMBER 275 AND DANIEL D. CULP SURVEY, ABSTRACT NUMBER 287, 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 Edward F. Wolski, the owner of the Property Interests ( "Owner "), on May 24, 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 6.8289 acre of real property, being generally located in the Caswell Carter Survey, Abstract No. 275 and Daniel D. Culp Survey, Abstract No. 287, 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 fmds 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 2 Denton, Texas does hereby exercise its home -rule and statutory authority to acquire by eminent domain, (1) an easement acquisition encumbering 6.8289 acre of real property, all affected tracts being described in Exhibit "A" and depicted in Exhibit `B ", attached hereto and made a part 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 day of AUQ►15 -L , 2013. ATTEST: JENNIFER WALTERS, CITY SECRETARY By /:1 APPROVED ASIO LEGAL FORM: SCOTT W. HICKEY, KELSEY, KELSEY & HICKEY, PLLC By: EXHIBIT A BEING A 6.8289 ACRE TRACT OF LAND SITUATED IN THE CAS WELL CARTER SURVEY, ABSTRACT 275 AND THE DANIEL D. CULP SURVEY, ABSTRACT NUMBER 287 OF DENTON COUNTY, TEXAS. AND BEING A PORTION OF THAT CERTAIN TRACT OF LAND DESCRIBED IN DEED TO EDWARD F. WOLSKI AS RECORDED IN DOCUMENT NUMBER 2005 -16351 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS. SAID 6.8289 ACRES BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING at a concrete light -of -way monument found in the west right -of -way line of North Loop 288 and being the northwest corner of that certain tract of land described in deed to the State of Texas as recorded in Volume 1067, Page 199 of the Deed Records of Denton County, Texas, also being the southeast comer of said Wolski; THENCE S 89°07'07" W, with the common line of said Wolski tract and that certain tract of land as described in deed to the Henry P. Lo, Trust as recorded in Document Number 2011 -89306 of said Real Property Records, a distance of 20.04 feet, to the POINT OF BEGINNING, for the southeast comer hereof; THENCE South 89 °07'07" West continuing with said common line, a distance of 37.50 feet, passing a 5/8 inch capped iron rod stamped "TNP" set at the intersection of the centerline of the herein described tract and said common line, continuing in all a total distance of 75.00 feet, to a point for the southwest corner hereof. From which a 1/2 inch iron rod found bears S 89'07'07 "W a distance of 803.90 feet, for the most southerly southwest comer of said Wolski; THENCE leaving said common line over and across said Wolski tract the following 4 courses and distances: North 00 °04'23" West, a distance of 1,945.56 feet, to a point for comer; North 21 °50'39" West, a distance of 888.55 feet, to a point for corner; North 34 045'08" West, a distance of 891.48 feet, to a point for corner; North 47 °46'41" West, a distance of 253.17, feet to a point lying in the north line of said Wolski tract and the south line of that called 3.070 acre tract of land known as Tract] and described in deed to the Kim Property Revocable Living Trust, recorded in Document Number 2008 -32710 of said Real Property Records, for the northwest comer hereof', THENCE South 88 033'49" East with the common line of said Wolski and Kim tract, a distance of 57.41 feet, passing a 5/8 inch capped iron rod stamped "TNP" set at the intersection of the centerline of the herein described tract and said common line, continuing in all a total distance of 114.81 feet, to a point for the northeast corner hereof, from which a 5/8 inch capped iron rod found stamped "CARTER & BURGESS ", bears S 88 °33'49" E, a distance of 49.27 feet, for the northeast corner of said Wolski tract; THENCE leaving said common line, over and across said Wolski tract the following 4 courses and distances: South 47 °46'41" East, a distance of 174.80 feet, to an angle point for comer; South 34 145108" East, a distance of 908.52 feet, to an angle point for corner; South 21'50'39" East, a distance of 911.45 feet, to an angle point for confer; South 00 °04'23" East, a distance of 1,958.92 feet, to the POINT OF BEGINNING and containing 6.8289 acres of land more or less. f u Adam Whitfield, R.P.115. Texas Registration No 786 1 Z-iZ-t7 Date: December 12, 2012 SHEET I OF 3 SGE 12170 MATCH LINE SEE SHEET 3 OF 3 5/8" IRS WITH CAP STAMPED "TNP" EDWARD F. WOLSKI DOG. NO. 2005 -16351 io R.P.R.D.C.T. 'n u7 d- rn �EXHIBI T B 1 �O t O 5/8" C'MF "CARTER&BURGESS" CM CONCRETE R —O —W MONUMENT I 1 U) 0 � CM Q CONCRETE R -O--W - MONUMENT a cn CpySyQF�Z,y�55��p,C o i co t C) nc°i r z ! + CM n r 1 I CONCRETE R-O -W µ MONUMENT r � I I n I 75.00' 37.50' ® ICALCULATED POINT 0 5/8" IRS STAMPED TNP (9) FENCE POST FOUND O IRON ROD FOUND (UNLESS OTHERWISE NOTED [ ] RECORD INFORMATION CM CONTROL MONUMENT CENTERLINE ELEC. ESMT. - - — - - — ADJACENT PROPERTY LINE BARBED WIRE FENCING LINE BEARING DISTANCE Li S 89.07'07" W 20.04' L2 S 89'07'07" W 75.00' 0 15W 300' 600' SCALE: 1" = 300' BASIS OF BEARING: Bearings are based on the Texas State Plane Coordinate System, North Central Zone (NAD83). WITH CAP I POINT OF STAMPED I COMMENCING CM I 1/2" IRF f L1 CONCRETE R -O -Jr O L2 .MONUMENT s 89'07'07" w- 803.90' _ HENRY P. 1-0, TRUST POINT OF State of Texas SURVEYORS CERTIFICATION: DOC, N0, 2011 -89306 R.P.R.D.C.T. BEGINNING V01. 1067, Pg. 199 To the best of my knowledge, Information, and belief, the plat hereon Is a correct R.P.R.D.C.T. 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 8.8289 ACRES �E OF TF Situated in the Caswell Carter Survey, Abstract 275 Adam Whitfield, R.P.L. and the .................................. Daniel D. Gulp Survey, Abstract 287 ADAM WHITFIELD City of Denton l -1 i 2 5786 Denton County, Texas < ESsv... o Date: December 12, 2012 qN o suRv JOB NO. SGE12170 -00 SHEET 2 OF 3 teague nall & perkins 1 Dee Centre m Pleco 7 205 Denton, Texas 76405 940.303.4177 ph 940.303.3046 hr wW W.,.pine cem L.TrgedsME12170-00 DME Transmission UnekadlsvrveylTRACT 33-A PUE_ "