1999-082 ORDINANCE NO ~q - ~)~)~l..
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT ON BEHALF OF THE CITY OF DENTON WITH THE PRESERVE OF
PECAN CREEK PARTNERS PROVIDING FOR THE PAYMENT OF THE COST OF
CONDEMNATION FOR CONSTRUCTION OF STREET IMPROVEMENTS FROM THE
PROPOSED LAKEVIEW BOULEVARD TO SHADY SHORES ROAD
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the City Manager is hereby authorized to execute an Agreement on
behalf of the City of Denton w~th The Preserve of Pecan Creek Partners, substantially ~n the form
of the attached Agreement which Is incorporated here~n for all purposes, providing for the
payment of the costs of condemnation of certain property to allow constmchon of street
improvements from the proposed Lakewew Boulevard to Shady Shores Road
~ That the City Manager is authorized to make the expen&ture of funds as
provided in the attached Agreement
~T!_Q_]~I_!~ That thru ordinance shall become effective ~mmedlately upon its passage
and approval
PASSED AND APPROVED thls the g'~/~0~ dayof ~t~/(J-~, 1999
JAC~4'LLER, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
//
APPII~VED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
THE STATE OF TEXAS § AGREEMENT BETWEEN THE CITY
OF DENTON AND THE PRESERVE OF
PECAN CREEK PARTNERS, AND
PROVIDING FOR THE PAYMENT OF
COUNTY OF DENTON § THE COST OF CONDEMNATION
~I-IEREAS, The Preserve of Pecan Creek Partners, with its offices at 4000 West Windsor
Drive, Flower Mound, Texas 75028, desires the City of Denton to promote safe vehicular traffic
movement, compliance with subdlWSlOn regulation and econonuc development by allowing the
development of The Preserve at Pecan Creek by allowing the construction of street anprovements
fi.om the proposed Lakevlew Boulevard to Shady Shores Road, and
WHEREAS, pursuant to Sectaon 211 002 Tex Loc Gov't Code, the City of Denton has
adopted Sec 34-45 of the Subdivision Rules and Regulations, Chapter 34 of the Denton City code
to reqmre developers to construct extensaons to city streets adjacent to the proposed developments,
and
WHEREAS, Amcle 3, Section 52-a of the Texas Constitution and Section 380 001, Tex
Loc Govt Code provide the promotion of economic development as a public purpose, and Section
251 001 Tex Loc Govt Code provides Public Safety ls a pubhc purpose, and
WHEREAS, The Preserve of Pecan Creek Partners wall provide for and pay the cost of all
street easements necessary to provide street kmprovements from the Preserve development fi.om the
proposed Lakevaew Boulevard to Shady Shores Road if the City will negotiate and purchase such
easements and facthties, and
WHEREAS, The Preserve at Pecan Creek Partners has been unable to purchase at fair
market value the street easements necessary to provide for the off-site street faclht~es reqmred to be
made, and
WHEREAS, The Preserve at Pecan Creek Partners has requested, in accordance with the
State law, that the City use its power of emment dommn to obtain the off-site street easements so
that the reqmred street improvements may be completed, and
WHEREAS, the condemnation of the land for off-site street unprovement would be in the
pubhc Interest and for a pubhc purpose, NOW, THEREFORE,
WITNESSETH:
This agreement made this F~J~ day of~19 ~'~ by~ and between The
Preserve at Pecan Creek Partners ,,"The Preserve"), affd the City of Defiton, i'exas ("City"), m
consaderation of th~ mutual covenants and pmrmses of each, agree as follows
I A~0rnev's Servaees. The City Attorney, with the approval of The Preserve shall
retmn local counsel to provade the legal services to institute and pursue proceedings m enun~nt
domain to acquire off-sate street easements to allow for the construction of street improvements by
The Preserve to prowde streets fi'om the Preserve to Shady Shores Road The land to be acqmred
for the street easements are described m Exbablt "A" and Exinblt "B" attached hereto and
mcorpomted by reference The City Attorney shall assist local counsel m prepanng all petitions,
motions, notates, and other legal documents necessary to ~mtlate and prosecute condemnation
procoedlngs
II, p#ymant of Condemnation Costs bv The Preserve All filing fees and courts
costs, apprmser, expert witness and local counsel fees, condemnation awards, recording fees, or
other cost or fees resulting from the condemnation shall be paul by The Preserve, except as
otherwise provided for herein
III. P~¥ment of Aeomsiflon Cost bv The Preserve. The Preserve agrees that it will
pay the award for the eondenmataon made either by the Special Comnussloners, or on appeal, by
judgment of the court Should the condemnation case be non-stated or dlsmassed at The Preserve's
request, at any tame prior to the entenng of a judgment in tins matter, The Preserve agrees to pay
any costs, assessed by the court against City including, but not hnuted to, attorney and expert
witness fees of the eondemnee
IV. Anneal of Commissioner's Award. If, by reason of the amount of the award made,
The Preserve is obhgated to pay m satisfaction of the award any amount m excess of market value
for the access easements, then The Preserve may request, in wrltang within ten days of said award,
that City appeal the award made Upon such request and the City's detenmnat~on that the award
was excessive, the City may, m fulfillment of its sovereignty duties and obligations wltinn its sole
discretion, authorize an appeal of the award If, after The Preserve requests such appeal, City
appeals the award made, The Preserve shall pay all costs of such appeal Upon final judgment of
such appeal, The Preserve shall pay the judgmant of the appellant court If City should appeal such
award in the absence of such request by The Preserve, The Preserve shall not be liable to City for
the cost of such appeal or the amount of any judgment resulting from the appeal in excess of the
mai court's judgment
V. ~. The Preserve agrees that the acqmsltmn of land provided for m
this agreement is for the sole purpose of allowing The Preserve and neighboring property owners to
complete necessary off-site access improvements for the public purpose of promoting safe veincular
traffic movement, comphance with subdlwslon rules and regulation and eeonormc development by
allowing access from the tract owned by the Preserve to Shady Shores Road The Preserve agrees
to hold the City harmless from, and shall mdemmfy City for, any elmm, loss or damage arising or
resulting from any act of The Preserve, its agents, employees, contractors, or representatives, in
acqmrmg right-of-way and consttuctmg sa~d improvements The Preserve further agrees that it
shall not make any elmm against City, or hold City liable, for any loss or damage suffered or
incurred by The Preserve as a result of any interruption or delay m condemning or acqumng any
property necessary for The Preserve to complete any reqmred off-site access improvements
resulting from any legal challenge to the right of City to condemn the land speclfted m tins
agreement, or any other delay winch results from any cause not w~tinn the re, ,enable control of
City
VI. ~ Tl~s mstrument contains the entire agreement between the
parties, and no stat~.~nent, prormse, or mducements made by any party or agent uf any party that ~s
not contained m tfus written contract shall be valid or binding, and tins agreement may not be
enlarged, modified, or altered except m writing signed by all the parties and endorsed hereon
PAGE 2
VII. Venue. Any action at law, stat m equity or judicial proceeding for the enforcement
of tNs con,'act or any prommon thereof shall be ~nst~mted only m the courts of Denton County,
Texas
VIII. ~_t. It ~s agreed by the pames that there wdl be no asmgnment of tins
agreement w~thout the written consent to all other part,es
EXECUTED on the date first above written
CITY OF DENTON, TEXAS ~
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
THE PRESERVE AT PECAN CREEK
PARTNERS
ATTEST
PAGE 3
EXHIBIT "A'
ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING
SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT No. 1330, CITY AND
COUNTY OF DENTON, TEXAS, AND BEING THE SAME (CALLED) 1.619 ACRE
TRACT OF LAND DESCRIBED IN A DEED TO SHADY SHORES 1-35 JOINT
VENTURE, RECORDED UNDER COUNTY CLERK'S FILE No. 95-R0053704, REAL
PROPERTY RECORDS OF DENTON COUNTY, TEXAS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID 1.619 ACRE TRACT, ALSO
BEING THE NORTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A
DEED TO JOHN L. TINNRELLO, RECORDED IN VOLUME 3363, PAGE 929, OF THE
REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, ON THE SOUTH
LINE OF A TRACT OF LAND DESCRIBED IN A QUITCLAIM DEED TO THE CITY
OF DENTON, RECORDED UNDER COUNTY CLERK'S FILE No. 93-R0058485, OF
THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS;
THENCE SOUTH 14 DEGREES 38 MINUTES 30 SECONDS WEST WITH THE EAST
LINE OF S~IB 1.619 ACRE TRACT AND THE WEST LINE OF SAID TINNRELLO
TRACT, A DISTANCE OF 539.49 FEET TO A CORNER AT THE BEGINNING OF A
CURVE TO THE LEFT;
THENCE WITH SAID CURVE TO THE LEFT, HAVING A CENTRAL ANGLE OF 01
DEGREE 25 MINUTES 05 SECONDS, A RADIUS OF 1017.00 FEET, AN ARC LENGTH
OF 25.17 FEET, WITH A CHORD WHICH BEARS SOUTH 15 DEGREES 21 MINUTES
03 SECONDS WEST A DISTANCE OF 25.17 FEET TO THE SOUTHEAST CORNER
OF SAID 1.619 ACRE TRACT AT THE SOUTHWEST CORNER OF
TINNRELLO TRACT, ON THE NORTH RIGHT-OF-WAY OF SHADY SHORES
ROAD;
THENCE NORTH 80 DEGREES 14 MINUTES 13 SECONDS WEST WITH THE
SOUTH LINE OF SAID 1.619 ACRE TRACT AND THE NORTH RIGHT-OF-WAY OF
SHADY SHORES ROAD, A DISTANCE OF 120.83 FEET TO THE SOUTHWEST
CORNER OF S~II) 1.619 ACRE TRACT AND THE SOUTHEAST CORNER OF A
TRACT OF LAND DESCRIBED IN A DEED TO ERNEST A. TINNRELLO,
RECORDED IN VOLUME 3363, PAGE 925, OF THE REAL PROPERTY RECORDS OF
DENTON COUNTY, TEXAS, AT THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE Vs~FH SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE O~F~H~
DEGREES 15 MINUTES 52 SECONDS, A RADIUS OF 897.00 FEET, AN ARC LENG
OF 35.45 FEET, WITH A CHORD WHICH BEt~S NORTH 15 DEGREES 46 MINUTES
26 SECON~)S EAST A DISTANCE OF 35.45 FEET TO A CORNELS;
EXHIBIT "A' (cont.)
THENCE NORTH 14 DEGREES 38 MINUTES 30 SECONDS EAST WITH THE WEST
LINE OF SAID 1.619 ACRE TRACT AND THE EAST LINE OF SAID ERNEST A.
TINNRELLO TRACT, A DISTANCE OF 573.69 FEET TO THE NORTHWEST
CORNER OF SAID 1.619 ACRE TRACT AND THE NORTHEAST CORNER OF SAID
ERNEST A. TINNRELLO TRACT, ON THE SOUTH LINE OF SAID CITY OF
DENTON TRACT AT THE BEGINNING OF A CURVE TO THE RIGHT;
THENCE WITH SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 04
DEGREES 57 MINUTES 23 SECONDS, A RADIUS OF 1442.93 FEET, AN ARC
LENGTH OF 124.82 FEET, WITH A CHORD WHICH BEARS SOUTH 59 DEGREES 27
MINUTES 06 SECONDS EAST A DISTANCE OF 124.78 FEET TO THE POINT OF
BEGINNING AND CONTAINING IN ALL 70,547.80 SQUARE FEET OR 1.619 ACRES
OF LAND.
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ORGANIZATIONAL CONSENT OF MANAGERS
OF
PRESERVE I DEVELOPMENT, LI,C
The undersigned, being the managers of Preserve I Development. LLC, a Texas Imuted
habihty company (the "Company*), do hereby consent and agree to the adoption of the following
resoluUons h heu oran org~iT~tional meeting
FILING OF ARTICLES OF ORGANIZATION
WJ-.~"~.AS, the Articles of Organization for the Company were filed w~th the Secretary of
the State of Texas on April 10, 1998, and a certified copy thereof was returned, now, therefore, be
It
RESOLVED, that the Articles of 0rga~7*t~on be. and the same hereby are, in all
respects accepted and approved u the Articles of Orgamzat~on of the Company. and that the
undersigned managers be. and the same hereby are. instructed to cause such Articles of
Orga:~,~tion to be inserted m the minute book
ELECTION OF OFFICERS
~. it is necessary and appropriate that the Company elect officers, now. therefore.
be It
RESOLVED, that the following persons be, and the same hereby are. elected as
of~cers ortho Company to occupy the positions set forth oppns~te the= respective names un~
their respective successors shall be duly elected and qu,h~ied
Name Office
Marc Footilk President
Dan Hopkins Vice President
OROANIZATIONAL CONSI~TI' Ob' ~ MANAOI~RS
OF PRI~SERV]~ I DIIVELOPIvIEI~, LLC - Page I #6203 4
ADOPTION OF REGULATIONS
WHEREAS, a form of Regulations for the gnvemanca of the internal affairs of the
Company has been presented to the undersigned Managers and have been reviewed by them, now,
therefore, be it
RESOLVED, that the Regulations in the form subrmtted to the undersigned Managers
be, and the same hereby are, in gl respects accepted and approved as the Reguhtions of the
Company, and that the undersigned Managers be, and the same hereby are, instructed to
execute the Regulations, as adopted, and to cause such Reguhuons to be inserted in the
minute book immediately following the Articles of Organtzat~on.
ESTABLISHML:CNT OF BOOK~ AND RECORDS
WI-~ -REAS, it is in the best interest of the Company to procure books and supphes for the
maintenance of records of the Company, now, therefore, be st
RESOLVED, that the undersigned Managers of the Company be, and the same hereby
are, authorized to procure books and suppbes for the mamtenance of records ofthe Company
and are instructed to maintain proper records and books for the Company
FORM OF MEMBERSHIP CERTI~CATE
WHEREAS, a proposed form of certificate representing a membership interest in the
Company has been presented to the undersigned Managers, now, therefore, be It
RESOLVED, that the form of cartd]cate presented to the undersigned Managers
representing a membership hterest h the Company be, and the same hereby is, in gl respects,
approved and adopted as the form of Certificate to represent a membership interest in the
Company;, and that the undersigned Managers of the Company be, and the same hereby are,
instructed to insert a specimen copy thereof in the minute book
ISSUANCE OF CERTIFICATES TO MEMBERS
WHEREAS, ~t is necessary and appropriate for the Company's members to have membership
WHEI~,AS, WRC Westover, lac ("WRC') and Hahar Texas, Inc ('HI'I") each dele to
OROANIZA~ON~ CONSIST O~ THE I~dANAOER$
OF PRP.,S~ I DEVELOP, LLC - P~ 2 #6203 4
obtain a membershp iraerest certificate in the Company ewdencmg their imual contribution, in cash,
to the capital of'the Company; now, there,'ore, be it
RESOLV]~D, that in consideration for the in/rial capital conm'butlons of WRC and
HTI (as resp~iv~ly ~ forth in Article VII of the Regula~ons), ~he Company msue a
corhflcate to each such member evldancmS theh' respective membership interest m the
Company;, and, be it
FURTHER RESOLVED, that the undemgned Managers ofthe Company be, and the
same hereby are &rected to execute and cause to be executed, and dehver and cause to be
delivered to WRC and HTI, certificates of the Company representing the respective
membership interest of each such person in the Company, and, be it
PURTH'~ RESOLVED, that the certificates ~ssued pursuant to these resolutions be,
and the same hereby are, offered and sold to WRC and HTI, in rehance upon exemptions
fi.om registration under the Securities Act of 1933 and the Texas Secuntlas Act, and, m
connection therewith, certain rastri~ons and hmltations on the offer, sale and transfer by the
holder thereof shall be imposed and enforced by the Managers of the Company as set forth
in the Reguhtions, and, be it
FURTHER I~SOLVED, that the undersigned Managers and the same hereby are
authorized and directed for and on behalf of the Company to place restrictive legends on the
membership certificates issued hereunder, and to place stop transfer instructions in the
transfer records of' the Company
BANK ACCOUNT
WHEREAS, in order to place the Company's business m order, ~t ~s necessary and appropnate
that the Company open a bank account and designate the persons permitted to msn checks on or
othervas~ withdraw funds fi.om such account, now, therefore, be It
RESOLVED, that the Company open a corpome bank account at such bank, savings
and loan association or o~her financial institution as the undersigned Managers of the
Company, in then' sole discretion, shall deem appropriate, and, be it
FURTHER RESOLVED, that the undersigned Managers be, and the same hereby are,
authonzed, empowered and directed to write checks on such account on behalf of the
Company, and, be it
FURTH]~ RESOLVI/D, that the unders/gned Managers of the Company be, and the
same hereby ere, authorized, empowered and du'ected to execute any form of resolution
OROA.NIZATIONAL CONSENT OF THE MANAOI~RS
OF PP~SER~ I D~,~- ~ 3 //6203 4
requh'ed by suoh bank, savings and loan assooiauon or other financial institution for the
opening or maintanance of`such accoont and to des,gnate the persons authorized to write
~ on suoh aocount on behalf of the Company and such resoinuons are deemed adopted
h~reby as if set forth in ~!1 herein and moorporated by reference
FISCAL YEAR
WI.IEREA~, it is the best interests of`the Company to adopt a fiscal year;, therefore, be it
RESOLVED, ihat the ~scal year o£the Company shah commence on January I of`
eaoh calendar year and end on the succeeding December 31, except that the trst fiscal year
of`the Company shall be~in as of the date hereof
ORGANIZATIONAL EXPENSES
WI~-~, it is in the best interests of'the Company to prowde for the payment of'the
expenses of orga~i-nlion of`this Company, now, therefore, be n
RESOLVED, that the undersigned Managers of'the Company be, and hereby are,
authorized and directed to pay the expenses of`orgnntzation of the Company
FURTHER INSTRUCTIONS TO MANAGERS
RESOLVED, that the undersigned Managers of' the Company be, and the hereby are,
authorized, empowered and directed to execute and deliver all documents, instruments and
other agreements, to waive any and all conditions and to do all things necessary and helpful
to carry out the purposes of' the foregoing resolutions, and all acts and deeds of` the
undersigned Managers of`the Company which are consistent vath the purpose and mtant of
the above resolutions be, and the same hereby are, m all respects, ratttled, approved, and
adopted as the acts and deeds of`the Company
I~ WITleSS 'WI-IF_.REOF, the undersigned have executed this Organizational Consent of
Managers as of`this 10th day of`April, 1998
.nnglr, Manager
OROANIZATIONAL CON~,~T Ol~ TIIE MANAOER~
O~ ~VE I DEVELOPIvlI~'T, I. LC. Pap 4 #6201 4