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2014-164s:\legai\aur documents\ardinances\14\ri(ey ed ordinance.dac � ., �, . • � � � �' AN ORDINANCE (I) F1NDING THAT A PUBLIC USE AND NECESSITY EXISTS TO ACQUIRE THROUGH THE EXERCISE OF THE RIGHT OF EMINENT DOMAIN ONE PERMANENT ELECTRIC UTILITY EASEMENT AND ONE TEMPORARY CONSTRUCTION EASEMENT ENCUMBERING 2.912 AND 1.160 ACRES OF LAND, RESPECTIVELY; THE PERMANENT ELECTRIC UTILITY EASEMENT 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 TEMPORARY CONSTRUCTION EASEMENT TO BE USED AND UTILIZED FOR THE PURPOSE OF ACCESS, STAGING OF MATERIALS AND EQUIPMENT, CONSTRUCTION AND GR.ADING ACTIVITIES RELATING TO THE D1VIE EXPANSION PROJECT; THE AFFECTED LANDS AND 1NTERESTS BE1NG GENERALLY SITUATED IN THE S. MCCRACKEN SURVEY, ABSTRACT NUMBER 817, CITY OF DENTON, DENTON COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED IN EXHIBITS "A- 1" AND "A-2", AND DEPICTED IN EXHIBITS "B-1" AND "B-2", RESPECTIVELY, 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 DME Expansion Project constitutes a valid public use, and 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 Tony A. Riley, the owner of the Property Interests ("Owner"), on February 17, 2014, 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 coniidential, 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 April 8, 2014, to purchase the Property Interests from the Owner, said date being after the thirtieth (30th) day after the date on which the City rnade 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 Offers 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 erninent domain to acquire (1) a permanent easement acquisition encumbering 2.912 acres of real property, and (2) a temporary construction easement acquisition encumbering 1.160 acres of real property, being generally located in the S. McCracken Survey, Abstract No. 817, and all being more particularly described in Exhibits "A-1" and"A-2", and depicted in Exhibits "B-1" and "B- 2", respectively, 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: 2 SECTION 1. The City Council hereby finds and determines that the DME Expansio�� Project constitutes a valid public use, that the acquisition of the Property Interests is necessary for public use to provide electric utilities expansion and itnprovements to serve the public and the citizens of the City of Denton, Texas, 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) a permanent easement acquisition encumbering 2.912 acres of real property, and (2) a temporary construction easement acquisition encumbering 1.160 acres of real property, all affected tracts being described in Exhibits "A-1" and "A-2, and depicted in Exhibits "B-1" and "B-2", respectively, 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 thin�s 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 foi�th above, are specifically and expressly adopted by the Council as express findings by the Council. SECTION 6. If any section, article, paragraph, se�itence, 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 ��,._���� __, 2014, �� �� � .� -�' �t,� � > " � y � w. � .... ��. .._ _ C� ���.lS WATTS, MAYOR 3 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: � �� .,, �� APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY B �.,.,. , �.� . t Y• _�...._. � �� .,� . � .__.. �-F EXHIBIT A-1 TO ORDINANCE LEGAL DESCRIPTION ELECTRIC EASEMENT BEING a 2.912 acre tract of land situated in the S. McCracken Survey, Abstract Number 817, Denton County, Texas, and being part of that certain tract of land described as Tract 1 in a Deed to Tony A. Riley, as recorded In Document Number 93-19780 of the Real Property Records of Denton County, Texas, and being more particularly described as follows: BEGINNING at a point for corner at the intersection of the Easte�ly Ifne of F.M, Highway No. 428 (Sherman Drive, a 100 foot wide dght-of-way) with the Northerly line of State Highway Loop 288 (a variable width right-of-way), said point being the most Westerly Southwest comer of the above cited Riley tract, from which a concxete monument found for reference bears South 20° 10' 31" East a distance of 3.94 feet; THENCE North 29° 10' 03" East, along the Easterly line of said F.M. Highway No. 428, a distance of 28.71 feet to a pant for comer; THENCE departing the Easterly line of said F.M. Highway No. 428, and over and across said Riley tract the following three courses and distances: South 59° 42' 36" East, a distance of 89.63 feet to a point for corner; South 54° 3T 56" East, a distance of 351.41 feet to a point for corner; South 55° 23' 32" East, a distance of 1012.05 feet to a point for oorner in the East Nne of said Riley tract and the West line of a tract of land described in a Deed to Charles A. Reed and wife, Harriet Reed. as recorded in Volume 825, Page 183 of the Deed Records of Denton County, Texas, from which a 112 inch iron rod found for the Northeast comer of said Riley tract bears North 02° 02' 25" East, a distance of 1253.3�4 feet; THENCE South 02° 02' 25" West, along the East line of s�i� Rii�y ir�e;t, p���ing a�1� anch irvn rc�d w�th �p stamped "TNP" set for �eference at the centerline of the p��q��s�d pc�rAUe� �ir�� at � c�ist�� �f 4�•5[3 i�t> �nd continuing along said line for a total distance of 119.99 feei �a a p�inf f�r car��r in th� Nnrtl�erl�t I�n� �f �id St�te Highway Loop 288, from which a 1/2 inch iron rod with cap s#�r�� "��'t�� 39�3�" f�ur�c� ta�' r�f�r�nc� b�ar� ��uth 52° 00' 06" East a distance of 147.13; THENCE along the Northerly line of said State Highway Loop 288, the following five courses and distances: North 52° 00' 06" West, a distance of 358.12 feet to a point for comer; North 57° 42' 50" West, a distance of 500.04 feet to a brpken concrete monument found for comer; NoRh 51 ° 20' 32" West, a distance of 446.47 feet to a concrete monument found for corner; North 58° 23' 28" West, a distance of 147.62 feet to a broken concrete monument found for comer; North 20° 10' 31" West, passing a 5/8 inch iron rod with cap stamped "TNP" set for reference at the centerline of the proposed power line at a distance of 65.47 feet, and continuing along said line for a total distance of 7929 feet to the POINT OF BEGINNING, and containing 2.912 acres of land, more or less, � � T�dd B. T�r`��:r, R.P.LS. October 70, 2013 September 27, 2072 — Field T.B.P.L.S. Firtn 10011601 ��"��'�► �' ������ �.�:..�.....� .�,.M.�.. TODD 0. TNil�7! ��,�.�A.*..�....M..�e,. �.. �. '� .� 4859 � .t� ����� � � ���� 5U� DME13222 EXHIBIT A-2 TO ORDINANCE LEGAL DESCRIPTION 35' TEMPORARY CONSTRUCTION EASEMENT BEING a 1.160 acre tract of land situated in the S. McCracken Survey, Abstract Number 817, Denton County, Texas, and being part of that certain tract of land described as Tract 1 fn a Deed to Tony A. Riley, as �ecorded in Document Number 93-t9780 of the Real Property Records of Denton County, Texas, and being more particula�ly described as follows: BEGINNING at a point for comer in the Easterly line of F.M. Highway No. 428 (Shertnan Drive, a 100 foot wide right-of-way), from which the most Westerly Southwest comer of the above dted Riley tract and the Northerfy line of State Highway Loop 288 (a variable width right-0f-way bears South 29° 10' 03" West a distance of 28.71 feet; THENCE North 29° 10' 03" East, continuing along the Easte�ly line of said F.M. Highway No. 428, a distance of 35.OQ feet to a point for oomer, THENCE depa�ting the Easterly line of said F.M. Highway No. 428, and over and across said Riley tract, the following three courses and distances: South 59° 42' 36" East, a distance of 91.87 feet to a point for comer, South 54° 37' SB" East, a distance of 352.73 feet to a point for comer; South 55° 23' 32" East, a distance of 989.46 feet to a point for comer in the East line of said Riley tract and the West line of a tract of land described in a Deed to Charies A. Reed and wife, Harriet Reed, as recorded in Volume 825, Page 183 of the Deed Records of Denton County, Texas, from which a 1/2 inch iron rod found for the Northeast oomer of said Riley tra�t bears North 02° 02' 25" East a distance of 1211.81 feet; THENCE South 02° 02' 25" West, along the East line of said Riley tract, a distance of 41.53 feet to a point for corner in the Northerly line of a proposed variable width electric easement; THENCE along the Northerfy line of said electric easement, the following three courses and distances: North 55° 23' 32" West, a distance of 1012.05 feet to a point for comer; Norlh 54° 37' S6" West, a distance of 351.41 feet to a point for comer; No�th 59° 42' 36" West, a distance of 89.63 feet to the POINT OF BEGINNING, and containing 1.160 acres of land, more or less. �°add �. Turner, .F�.P.L.S. _ October 10, 2013 September 21, 2012 — Field T.B.P.�.S. 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