1996-238 ORDINANCE NO
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
CUMULJ~TIVE AND DECLARING AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
~ 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
such ordinance from a "Fee Simple Interest for Drainage Improve-
ments'' to a "Drainage Easement Interest "
~ 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 condztzons of the attached Agreement, which is made a part of
this ordinance for all purposes
~ This ordinance shall be cumulatzve of Ordznance
No 96-170 and shall not repeal any of the provzslons of said
ordinance except in those Instances where provisions of Ordinance
No 96-170 are ~n dzrect conflict wzth the provisions of th~s
ordinance
SECTION IV That th~s ordinance shall become effectzve
~mmediately upon ~ts passage and approval
PASSED ~D APPROVED th~s the day of , 1996
JACK MILLER, ~YOR~
HER~RT L PROUTY, CITY ATTORNEY
i0/11/199S 14 53 8173357437 DUNAWAY ASSOCIATES PAGE 83
THE STATE OF TEXAS § OF DENTON AND WAL-MART
S'I~£ES, INC.,AND~ROVIDIN~
COIrNTY OP DENTON ~ FOR THE PAYMeNT OF T~E COST
OF CONDEMNATION
W~ER~A~, Wal-Mart Store~, Ync , a corporatlon with offices at
70] South Walton Boulevard, Bentonvllle, Arkansas, has reoe~ved
approval from the City of Denton, Texas, a mun3cipal corporation
with offices at 215 Eas~ McK~nney, Denton, Texas, to construct and
develop e commercxal project at Spencer Road and LOOp 288 in the
City of De~ton, Texas, and
WHEREA~, pursuant to the City of Denton's Code of Ordxnance~,
Wal-Mart is requzyed to provide for and pay the cost of all off~
site stormwater drainage easements and facilities necessary to
serve its development; and
WH~REA~, Wal-Mart has been unable to purchase at fair market
value the storm drainage easements necessary to provide for the
off-site drainage facillties requzred to be made; and
W~REA$, Wal-Mart has requested, ~n accordance with the
ordinances of the City of Denton, that the C~ty use
e~inent domain to obtain the off-~e drainage easements so that
the required drainage improvements may be completed; and
W~ER~A~, the condemnation of the land ~or off-site drainage
improvement would be in the public in~erest and for a public
purpose, NOW,
This a~reement made this ~day of ~, 1996,
by and between Wal-Mart Store~, Inc (,,Wal-Mart,'), and the City
De~ton, Texas ("City'S), ~n considerst~on of the mutual covenants
and promises of each, agree as fo]lows~
I. ~tornev's Se~ioes. City agrees to provide the legal
acquzre an off-szte stormwater dralna9e easement to allow for the
completion of re~ired stormwater drainage improvements by
Ma~. Th% land to be acquired for the drainage easement is
described in ~xhib&t "A" attached h~reto and incorporated by
~e~erenoe. The City Attorney shmll prepare all petitions, motions,
notices, and other legal documents necessary to initiate and
prosecute conde~natiop 9roueed~ngs and shall schedule and attend
all hearings to effectuate the
fees a~d oo~rts costs~ apprai~er and expert wltnes~ fees,
condemnat=~m swards, recording fees, or other cost or fees
10/11/1998 14 ~ 817~B574~? DUN~4¥ 4~OCI~TE~ R~GE 04
resulting from the condemnation shsll be paid by wal-Mart, e~cept
as o~herwlse provided for herein
III. Pa~nmmnt of Ac~uisit£on Cost bv. Wal-_~¥~.
agrees Lhat it will pay the award for thc condemnation made either
by the Special Commiss%~ners, or on appeal, by 3udgment of the
%curt Should the ¢o~ldelunat~on case b- 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 l~mlted to, attorney and
expert w=tness fees of the condemnee.
IV. A~Deal of C_o~_.~-sioner'..s Award If by reason of the
amount Of the award made, Wal-Mart i9 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
~en days of said award, that city appeal the award made Upon such
reques= and the City'~ determination that the award was excessive,
the C~ty may, within its sole discretion, authorize an appeal of
the award If, after Wal-Mar= requests such appeal, C~ty appeals
=he award made, Wal-Mart shall pay all cost of such appeal Upon
final ~udgment o~ such appeal, Wal-Mar~ shall pay the judgment of
the appellant court If City should appeal such award in
absence of such request by Wal-Mart, Wal-Mart shall not be liable
to City for the cost of such appeal or the amount of any judgment
reeulti~g from the appeal in excess o{ the trial court's judgment
V. ~. Wal-Mart agrees that the acquisition
land provided for zn this agreement is for the sole purpose of
allowin~ Wal-Mart to complete necessary off-site drainage
lmproveme~ts as required by City's ordinance to handle sto~mwater
drainage from its development project Wal-Mart agrees to hold the
Clty harmless ~rom, and shall ~ndem~ify City for, any claim, loss
or damage arising or ~esultin9 from any act of Wal-Mart, its
a~ents, emDloyees, contractors, or representatives, in constructing
said improvements Wal-Mart further agrees that it shall not make
any claim agalns= City, or hold City liable, for any loss or damage
suffered or incurred by Wal-Mart as a result o~ any interruption or
delay in condemning or acquiring any property necessary for wal-
Mart to complete any required off-site storm drainage improvements
resulting from any legal challenge to the right of city to condemn
the land s~eclfled in this agreement, delays resulting from City
Attorney's performance or non-performance of this agreement, or any
other delay which rasults ~ro~ any cause not within the reasonable
control of City.
VI. ir · S This instrument contains the entire
agreement between the parties, end no statement, promise, or
%nducements made by any ~&rty or a~ent of any party that is not
contained in this written contract shall be valid or blnd=ng, and
this agreement may not be enlarged, modified, or altered except in
writing ~1gned by all the parties and endorsed hereon.
PAGE 2
8173357437
i8/ii/19~6 i4 53 8173357437 DUNAWAY ASSOCIATES PAGE 85
OCT 08 '~6 16'1q 101 P04
YXX. VenUe. Any aotion at law, suit in equity oz judicial
proceeding for the e~forc~ment of this contract or any prov~sxon
thereof sh~l] be l~%s~tute~ only ~n the co~rts of D~mton County,
VIXI, ~. ~t is agreed by the parties that there
wmll be :%o assignment of thls agreement without the wMitten consent
to all o~her parties
EXEC~D on the date firs~ above written
CITY OF DENTON, TE~S
JA~ MILLgR ~YOR
~-~T STO~ES, INC
ATTgST
JE~IF~R WALTERS, CITY sECRETlY
~PROVED AS TO ~ ~O~M.
~RB~RT L, PROUTY, CITY ATTORNEY
PAGE 3
8175357437
I0/11/1996 14 S3 81733S7437 DUNAWAY ASSOCIATES PAGE 06
OCT ~8 '96 1G 19 101 PO5
EXHIBIT "A"
FIELD NOTE DESCRIPTION
DRAINAGE EASEMENT
BEING a 0 069 acre tract of land situated in ~l~e J w, Cheek Survey,
Abstract No 324, Denton County, Texas, being a port.on of a tract
of land conveyed to Sherwood M Spencer, et al. Recorded in volume
940, Page 574, Deed Records, Dentop 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 oX a
~ract of land conveyed to Norman E Brinker, recorded in Volume
3389. Page 348, Deed Records, Denton County, Texas.
THSNC~ Nor=h 05~ 5~' 05" E~st along said Brlnker trac~ a distance
of 124 47 feet to the point of beginning.
T~NCE North 0~ 55' 05" ~sst continuing along said tract a d~stance
of 80.00 ~eet to a railroad tie post,
THENCE South 69" 06' 58" ~as~ a distance of 80 00 feet
THENCE South 55° 54' 04" Wes= a distance of 91 81 feet to the point
of beginning and containing 3,008 square feet or 0.069 acres of
land
LETTER OF TRANSMITTAL
WAL-MART STORES, INC
701 South Walton Blvd
Bentonwlle, AR 72716-8703
D,ttc October 14, 1996
RE Denton, TX g467
1 () Tom ( ]albreath
Dunaway Assomates
1501 Mernmac C,rcle, Suite 100
Ft Worth, TX 76107-6512
(817)3354121
(817)335-7437 Fax
~ROM Abe Badeen
Engineering Manager
PHON~ (501) 273-4387
FAX (501) 273-4107
WI~ ARE SENDING YOU ~X Attached _Under separate cover VIA Overmght ~ollect
rile ~ ¢ ILL( )WING ITEMS
Indemmficatmn agreement for condemnation of Spencer drainage easement
I HESE ARE TRANSMITTED
a', ~eque~tcd
RI~MARKS
MGNED ~
COPY TO file
L XENGINEXCOMMON'xTRANSMiT DOC Rewsed ~/2q/94 CE 3 Page 1 ol I