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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