The URL can be used to link to this page

Home My WebLink About1996-238E \WPDOCS\ORD\SPENCER2 ORD ORDINANCE NO%0_- 3 AN ORDINANCE AMENDING ORDINANCE NO 96-170 BY REDUCING THE INTEREST BEING CONDEMNED FROM A "FEE SIMPLE INTEREST FOR DRAINAGE IMPROVE- MENTS" TO A "DRAINAGE EASEMENT INTEREST", MAKING THIS ORDINANCE CUMULATIVE AND DECLARING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That Ordinance No 96-170, relating to the declaration that public necessity exists and the finding that public welfare and convenience requires the acquisition of an interest in 069 acres of land owned by Sherwood M Spencer, et al , is hereby amended by reducing the interest being condemned in such ordinance from a "Fee Simple Interest for Drainage Improve- ments" to a "Drainage Easement Interest " SECTION II That Ordinance No 96-170 is further amended by authorizing the Mayor, or in his absence, the Mayor Pro Tem, and the City Secretary to execute and attest, respectively, an agreement between the City of Denton and Wal-Mart, providing for the payment of the cost of condemnation of this interest in land for a storm water drainage easement, in accordance with the terms and conditions of the attached Agreement, which is made a part of this ordinance for all purposes SECTION III. This ordinance shall be cumulative of Ordinance No 96-170 and shall not repeal any of the provisions of said ordinance except in those instances where provisions of Ordinance No 96-170 are in direct conflict with the provisions of this ordinance SECTION IV That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of 1996 JACK MILLER, MAYOR✓ )/r,, - A, /,- ATTEST JENNIFER WALTERS, CITY SECRETARY BY APP ED A TO LEGAL FORM HER RT L PROUTY,�CITY ATTORNEY BY LA&Z y '� 8173357437 10/11/1996 14 53 8173357437 DUNAWAY ASSOCIATES OCT OS '96 16 18 101 fo THE STATE OF TEXAS 9 COTTNTY OF DENTON PAGE 03 AGREEMENT BETWEEN THE CITY OF DENTON AND WAL-MART S'roRES, INC., AND PROVIDING FOR THE PAYMENT OF THE COST OF CONDEMNATION WHEREAS, Wal-Mart Stores, Inc , a corporation with offices at 701 South Walton Boulevard, Bentonville, Arkansas, has received approval from the City of Denton, Texas, a municipal corporation with offices at 215 East McKinney, Denton, Texas, to construct and develop a commercial project at spencer Road and Loop 258 in the City of Denton, Texas, and WHEREAS, pursuant to the City of Denton's Code of Ordinances, Wal-Mart is required to provide for and pay the cost of all off - site stormwater drainage easements and facilities necessary to serve its development; and WHEREAS, Wal-Mart has been unable to purchase at fair market value the storm drainage easements necessary to provide for the off -site drainage facilities required to be made; and WHEREAS, Wal-Mart has requested, in accordance with the ordinances of the City of Denton, that the City use its power of eminent domain to obtain the off-01t8 drainage easemente so that the required drainage improvements may be completed; and WHEREAS, the condemnation of the land for off -site drainage improvement would be in the public interest and for a public purpose, NOW, THEREFORE. WITNESSETH: This agreement made this � day of �Ls� o�e-� 1996, by and between Wal-Mart Stores, Ina ("Wal-Mart'}, and the City of Denton, Texas ("city"), in consideration of the mutual covenants and promises of each, agree as follows, I. Bervinee. City agrees to provide the legal t services o netitute and pursue proceedings in eminent domain to acquire an off -site stormwater drainage easement to allow for the completion of required stormwater drainage improvements by Wal- Mart. The land to be acquired for the drainage easement is described in Exhibit "A" attached hereto and incorporated by reference. The city Attorney shall prepare all petitions, motions, notices, and other legal documents necessary to initiate and prosecute condemnation proceedings and shall schedule and attend all hearings to effectuate the condemnation. II. payment oP Condemriadion Castes by Wal-Mart. All filing fees and courts costs, appraiaer and expert witness fees, condemnation awards, recording fees, or other cost or fees 6173357437 10/11/1996 14 53 8173357437 DUNAWAY ASSOCIATES PAGE 04 OCT OP 96 16 19 1n1 f n' resulting from the condemnation shall be paid by Wal-Mart, errept as otherwise provided for herein 111. Pavmenr,._of LgML eLt.i.9an Cost by Wal_] pt. Wal-Mart agrees LhaL it will pay the award for the condemnation made either by the Special Commissi-ners, or on appeal, by Judgment of the wurt Should the condemnation case bp non -suited or dismissed at Wal-Mart's request, at any time prior to the entering of a judgment in this matter, Wal-Mart agrees to pay any costs assessed by the court against City including, but not limited to, attorney and expert witness fees of the condemnee, Iv. Anveal of Commiiaeioner'a Award If by reason of the amount of the award made, Wal-Mart is obligated to pay in satisfaction of the award any amount in excess of market value for the drainage easement, then Wal-Mart 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, within its sole discretion, authorize an appeal of the award If, after Wal-Mart requests such appeal, City appeals the award made, Wal-Mart shall pay all cost of such appeal Upon final judgment of such appeal, Wal-Mart shall pay the judgment of the appellant court if City should appeal such award in the absence of such request by Wal-Mart, Wal-Mart shall not be liable to City for the coat of such appeal or the amount of any judgment resulting from the appeal in excess of the trial court's judgment v. Hold Haralesa. Wal-Mart agrees that the acquisition of land provided for in this agreement is for the sole purpose of allowing Wal-Mart to complete necessary off -site drainage improvements as required by City's ordinance to handle stormwater drainage from its development project Wal-Mart agrees to hold the City harmless from, and shall indemnify City for, any claim, loss or damage arising or resulting from any act of Wal-Mart, its agents, employees, contractors, or representatives, in constructing said improvements Wal-Mart further agrees that it shall not make any claim against City, or hold City liable, for any loss or damage suffered or incurred by Wal-Mart as a result of any interruption or delay in condemning or acquiring any property necessary for Wa1- Mart to complete any required off-sz.te storm drainage improvements resulting from any legal challenge to the right of city to condemn the land specified in this agreement, delays resulting from City Attorney's performance or non-performance of this agreement, or any other delay which results from any cause not within the reasonable control of City, vI. Inkire AgXA_e_*_e=This instrument contains the entire agreement between the parties, and no statement, promise, or inducements made by any party or agent of any party that is not contained in thxg 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. PAGE 2 8173357437 10/11/1996 14 53 9173357437 DUNAWAY ASSOCIATES PAGE 05 OCT Oe ' % 1E'lq 101 PO4 VXI . ygjM. Any action at law, suit a.n equity ax 7udlc3'al proceeding for the enforcement of this contract or any provision theuieo£ shall be Instituted only in the courts of Denton County, Texan Vzz�, pee ®at. It is agreed by the parties that there will bs no aaeignmant of this agreement without the written consent to all other parties zxvc=D on the date first above written CITY OF DENTON, TEXAS R� JAW IILLER 'M AYOR WhL-MART STOVES, INC by S Robe 0.y +s. /lssls+a e Pr..'1Aerk- -V�llGOl. S+o� er— }}s. As srFa„ •orsk.ry ATTEST JENNIFER WALTERS, CITY SECRETARY BY . — APPROVED AS TO LEGAL FORM, HERBERT L. PROUTY, CITY ATTORNEY PAGE 3 0173357437 10/11/1996 14 53 9173357437 DUNAWAY ASSOCIATES PAGE 06 OCT 08 ' 96 16 19 EXHIBIT "A" MELD NOTE DESCRIPTION DRAINAGE EASEMENT 101 P05 BEING a 0 o69 acre tract of land s3,tuated in the J W. Cheek Survey, Abstract No 324, Denton County, Texas, being a portion of a tract of land conveyed to Sherwood M Spencer, at al. Recorded in volume 940, page 574, Deed Records, Denton County, Texas and said 0,069 acre tract of land being more particularly described by metes and bounds as follows COMMENCING at a 2" steel pipe found at the southeast corner of a tract of land conveyed to Norman E Brinker, recorded in Volume 3389, page 348, Dead Records, Denton County, Texas, THENCE North 050 55' 05" East along said Brinker tract a distance of 1.24 47 feet to the point of beginning. THENCE North 00 55' 05" East continuing along said tract a distance of 80,00 feet to a railroad tie post, THENCE South 690 06' 58" East a distance of 8o 00 feet ofENCE South beginni g 550 and5cc twin ng 3,008distance squaref 91 feet 1orfeet 0.069 the point acresot land LETTER OF TRANSMITTAL WAL-MART STORES, INC 701 South Walton Blvd Bentonville, AR 72716-8703 Dan October 14,1996 RE Denton, TX #467 10 Tom Galbreath Dunaway Associates 1501 Merrimac Circle, Suite 100 Ft Worth, TX 76107.6512 (817)335.1121 (817)335-7437 Fax PROM AbeBadeen Engineering Manager PHONP (501) 273-4387 FAX (501) 273.4107 WP ARE SENDING YOU X Attached _Under separate cover VIA Overnight collect rHL FOLLOWING ITEMS Indemnification agreement for condemnation of Spencer drainage easement 1 HESE ARE TRANSMITTED atitecluestcd RP MARKS SIGNED ALZ- COPY TO file L \ENGINE\COMMON\TRANSMIT DOC Revised 5/25/94 CE 9 Page I of I