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Home My WebLink About2010-154s \legal\our documents\ordinances\I ftcnpture sign encroachment ordinance.doc ORDINANCE NO. 2010-154 AN ORDINANCE AUTHORIZING AN ENCROACHMENT AGREEMENT BETWEEN THE CITY OF DENTON, AS GRANTOR AND HTA-DENTON, LLC., A DELAWARE LIMITED LIABILITY COMPANY, AS GRANTEE, REGARDING A 7.3 SQUARE FOOT TRACT OF LAND THAT ENCROACHES INTO A 20 FOOT PUBLIC UTILITY AND SIDEWALK EASEMENT; SAID PUBLIC UTILITY AND SIDEWALK EASEMENT BEING DEDICATED AS A PART OF THE REHAB HOSPITAL ADDITION, RECORDED IN CABINET X, PAGES 929 AND 930, PLAT RECORDS, DENTON COUNTY, TEXAS AND BEING IN THE E. PUCHALSKI SURVEY, ABSTRACT NO. 996, CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Encroachment Agreement by and between the City of Denton, Texas and HTA-Denton, LLC., A Delaware Limited Liability Company, in substantially the form as attached hereto and made part of the ordinance for all purposes (the "Agreement"), is hereby approved. SECTION 2. The City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. - -PASSED AND APPROVED this the — day of , 2010. MARK A-.-B6;PWbUGtq, MAYOR ATTEST: `- JENNIFER WALTERS, CITY SECRETARY BY: ogm, �k APPROVED AS TO LEGAL FORM ANITA BURGESS, CITY ATTORNEY BY: ENCROACHMENT AGREEMENT WHEREAS, HTA-Denton, LLC., a Delaware limited liability company (hereinafter referred to as "LICENSEE"), by and through its undersigned authorized officer, has requested permission to use an area within the boundaries of an existing City of Denton Public Utility and Sidewalk Easement ("CITY EASEMENT") as described below, located in Denton County, Texas, for the installation of a monument sign and related appurtenances (the "ENCROACHING FACILITY"); and WHEREAS, the ENCROACHING FACILITY is presently located within that portion of the CITY EASEMENT and more particularly described as an 7.3 square foot parcel in Exhibit "A" attached hereto and illustrated in Exhibit "B" made a part hereof by reference (the "ENCROACHMENT AREA"); and WHEREAS, the ENCROACHING FACILITY was placed within the CITY EASEMENT without the consent of the City of Denton, Texas ("CITY") and was not installed in accordance with the permit issued by the CITY; and WHEREAS, the CITY EASEMENT was dedicated as shown on the plat recorded in Cabinet X, Pages 929 and 930, Real Property Records, Denton County, Texas; and WHEREAS, LICENSEE has entered into this Agreement to set forth certain responsibilities that it has under this Agreement; and NOW, THEREFORE, CITY hereby grants- permission and license to LICENSEE to locate, maintain and repair the ENCROACHING FACILITY within the ENCROACHMENT AREA, subject to the following terms and conditions: 1. It is understood and agreed that the CITY owns only easement interests for the CITY EASEMENT portion of the ENCROACHMENT AREA. Therefore, LICENSEE is responsible to obtain whatever rights and permission, other than the CITY's, that are necessary from any others having an interest in the ENCROACHMENT AREA, including, without limitation, other parties owning easement interests in the ENCROACHMENT AREA. This Agreement shall extend to and be binding upon LICENSEE and its successors, and assigns, and shall not be interpreted or construed as a waiver of any rights held by the CITY under CITY EASEMENT except as expressly and specifically provided in this Agreement. 2. LICENSEE represents and warrants to CITY that the ENCROACHING FACILITY has been constructed and is presently maintained in accordance with the Denton Development Code ("DDC"), including, without limitation, Subchapter 15 of the DDC. LICENSEE shall not make any modifications to the ENCROACHING FACILITY without advance written approval by the CITY ("Authorized Modifications"), acting by and through the City Manager or his designee. LICENSEE shall not be permitted to perform any work within the CITY EASEMENT from and after the date of this Agreement that shall require the disturbance of the soil or affect, to a greater extent than presently affected by the ENCROACHING FACILITY, the CITY EASEMENT, absent the amendment of this Agreement, duly authorized and executed by CITY and LICENSEE. 3. The ENCROACHING FACILITY is and shall be at all times subordinate to the CITY's facilities and rights under the CITY EASEMENT, including without limitation, sidewalks, utilities and related facilities located now or in the future within the ENCROACHMENT AREA. In the event the CITY repairs, expands, or adds to its facilities within the ENCROACHMENT AREA, and in the CITY's sole opinion it is necessary that the ENCROACHING FACILITIES be modified, removed or relocated, in whole or in part, to accommodate such repairs, expansion or addition, LICENSEE shall, at its sole cost, modify, remove or relocate the ENCROACHING FACILITY, as directed by the CITY, no later than 30 days after CITY gives LICENSEE written notice, unless an emergency repair is necessary wherein the CITY has the right to remove the ENCROACHING FACILITY immediately at the LICENSEE'S sole cost and expense without any liability to CITY for such action. LICENSEE confirms and acknowledges that the ENCROACHING FACILITY and all LICENSEE's expenses for such are at risk, and that the CITY shall not be required to reimburse in any circumstance LICENSEE in any form for removal and relocation of the ENCROACHING FACILITIES. In the event of the removal of the ENCROACHING FACILITY from the ENCROACHMENT AREA, whether pursuant to the terms hereof or otherwise, LICENSEE shall restore the ENCROACHMENT AREA and CITY EASEMENT to the condition existing prior to construction of the ENCROACHING FACILITY if so directed by CITY. 4. LICENSEE shall defend, indemnify and hold harmless the CITY, its employees, elected officials, officers and agents from and against any and all claims, expenses, (including attorney fees), damages, losses and judgments arising out of, related to or incident to -the presence, construction, operation and maintenance of the ENCROACHING FACILITY and/or LICENSEE'S and/or any other party acting under the authority of LICENSEE's occupation or presence on the CITY EASEMENT and/or ENCROACHMENT AREA. LICENSEE shall procure and maintain insurance as specified in paragraph 5, below, throughout the term of this Agreement and shall provide to the CITY such certificate or certificates of insurance complying with the CITY's insurance requirements, as set forth in paragraph 5, below, on or before the effective date of this Agreement. The covenants contained in this paragraph 4 shall survive the expiration or termination of this Agreement. 5. LICENSEE and it's successors and assigns, shall purchase and maintain General Liability Insurance naming the CITY as an "Additional Insured" so long as the ENCROACHING FACILITY is within the ENCROACHMENT AREA and during the term of this Agreement, with a limit of not less than $500,000.00 for each person and $1,000,000.00 for each single occurrence for bodily injury or death and $500,000.00 for each single occurrence for injury to or destruction of property. 6. LICENSEE shall limit construction and other operations, including, without limitation, the cuts in the ENCROACHMENT AREA required for construction of the ENCROACHING FACILITY so as to prevent construction equipment from damaging existing CITY facilities or public utilities located within the ENCROACHMENT AREA and other areas. Without limiting the generality of Section 4 above, LICENSEE shall be responsible for any damage caused, in whole or in part, to CITY facilities or public utilities located within the ENCROACHMENT AREA and other areas affected in any way by activities conducted pursuant to this Agreement. Page 2 7. LICENSEE shall not place any structure or other matter other than the ENCROACHING FACILITY upon the CITY EASEMENT or ENCROACHMENT AREA, including without limitation, trash dumpsters or other containers, and flammable material of any kind. 8. The CITY shall not be responsible for any costs of construction, operation and maintenance or any other matter of, or related to the ENCROACHING FACILITY. Further, the CITY shall not be liable for any damage to the ENCROACHING FACILITY as a result of the CITY's use pursuant or related to the CITY EASEMENT. Without limiting the generality of Section 4, above, in the event- any CITY property is damaged or destroyed by LICENSEE or its contractors, agents or any party acting under the authority of LICENSEE, such damage may, at the sole election of CITY, be repaired or replaced by the CITY at LICENSEES expense and payment by LICENSEE to CITY is due upon LICENSEE'S receipt of an invoice from the CITY. 9. Grading, if any, shall be done in order to leave the ENCROACI-EVIENT AREA and CITY EASEMENT in as near as possible to its condition prior to any activities conducted pursuant to this Agreement. Spoil dirt and all trash shall be removed from these areas. 10. Construction equipment and materials shall not be stored on the ENCROACHMENT AREA or CITY EASEMENT or other right-of-way areas, including without limitation, streets and alleys, during activities related to the construction, operation or maintenance of the ENCROACHING FACILITY. 11. In the event of default by LICENSEE in any of the terms and conditions herein stated and such default continues for a period of ten (10) days after the CITY notifies LICENSEE of such default, the CITY may exercise any and all rights and remedies available to it by law, equity, contract or otherwise, including without limitation, the right and authority to forthwith terminate this Agreement and upon such termination, all of LICENSEE's rights hereunder shall cease and come to an end. 12. LICENSEE shall not be permitted to sell, assign, partially assign or transfer its interest in this Agreement, or any of its rights, duties, or obligations hereunder, without the prior written consent of the CITY. CITY shall not unreasonably withhold, delay or deny such consent or approval. No transfer, assignment or other change in rights granted by this Agreement shall be effective until the CITY shall have consented to such activity and there is paid to the CITY a transfer fee of Five Hundred Dollars ($500.00) related to the cost of administration of the transfer. 13. The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. 14. This Agreement shall expire upon the earlier to occur of (i) the abandonment of the ENCROACHING FACILITY; (ii) removal of the ENCROACHING FACILITY from the- CITY EASEMENT; and (iii) termination of this Agreement as otherwise provided herein.. Page 3 15. This Agreement shall be construed under the laws of the State of Texas and is fully performable in Denton County, Texas. SOLE AND EXCLUSIVE VENUE FOR ANY ACTION ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL EXCLUSIVELY LIE IN COURTS OF COMPETENT JURISDICTION LOCATED IN DENTON COUNTY, TEXAS. Dated to be effective as of the &5-�'y of �' 2010. CITY OF DENTON, TEXAS i BY: G'EORGE C. CAMPBELL CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: AN1TA BURGESS, CITY ATTORNEY BY: LICENSEE: HTA-Denton, LLC., a Delaware limited liability company BY: �7ALI /oz Name: Kellie Pruitt Title: Page 4 Chief Accounting Officer ACKNOWLEDGEMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on /?.32010 by GEORGE C. CAIVIIDBELL, CITY Manager of the CITY of Dent n, Texas, on behalf of such municipality. YPy;JANE E. RICHARDSON u Notary Public, State of Texas My Commission Expires Noig� Public in and for the S e of Texas June 27. 2013 My Commission Expires: Z % �DI5 ACKNOWLEDGEMENT TfM STATE OF-�� § COUNTY OF IYWU L.D�tiiil. § This instrument was acknolwledge4 before me on A j A 2010 by '&� of HTA-Denton, limited liability company, on behalf of said limited partjiership. KIMBERLY HOWELL Notary Public - Arizona Maricopa County • • i My Comm. Expires Dec 3, 2013 Page 5 ate?f LL4 LLC., a Delaware LANDMARK SURVEYORS, LLC Exhibit A FIELD NOTES SIGN ENCROACHMENT 7.3 SQUARE FEET 4238 1-35 North Denton, Texas 76207-3408 (940) 382-4016 Fox (940) 387-9784 landmarksv@aol.com BEING all that certain lot, tract or parcel of land situated in the Eugene Puchalski Survey Abstract Number 996 in the City of Denton, Denton County, Texas, being a part of Lot 1, Block 1 of Rehab Hospital, an addition to the City of Denton, Denton County, Texas according to the plat thereof recorded in Cabinet X, Page 929, Plat Records, Denton County, Texas and being more particularly described as follows: COMMENCING at an iron rod set for comer in the north line of Scripture Street, a public roadway having a right-of-way of 73.0 feet, said point being the southwest comer of that certain tract of land conveyed by deed to Texas Oncology Properties, LLC recorded under Document Number 2006-142313, Real Property Records, Denton County, Texas; THENCE N 880 57' 42" W, 205.28 feet with said north line of said Scripture Street to a point for comer: THENCE N 01' 31' 380 E, 11.8 feet to a point in the southeast corner of a sign for PLACE OF BEGINNING; THENCE N 88° 28' 22" W, 0.90 feet with the edge of said sign to a point for comer; THENCE N 01 ° 31' 38' E, 8.15 feet with a face of said sign to a point for comer; THENCE S 880 57' 42' E, 0.90 feet to a point for comer in a face of said sign; THENCE S 010 31' 38" W, 8.15 feet with a face of said sign to the PLACE OF BEGINNING and containing 7.3 square feet of land. Exhibit B ---------------------------------- TEXAS ONCOLOGY LOT 1, BLOCK 1 PROPERTIES, LLC. REHAB HOSPITAL OOC. #2006 142313 , CAB. X. PG. 929 P.R.D.C. T. P.R.O.C.T. O—----------------------------------- , z CONC. O w PARKING Q �k w Z N s x 1' 11' O L 1 -------------------- - A)N ----- - --- N PROPERTY 1 JI 'J6' E LE 11.8' i --..-......-•.--.�.1-_..o«.or,.C_WALK --•------.L_ •..._--N 8857'4=..W S.1.R 205.28' _ OH OH OH O OH OH POIN T OF COMMENCING ��-►41'1' B-B (73' R.O.W.) �lFTURE- S11- S 88 57'g2" E -- - - - -- .901 ---- L W M o, in 2 OB N 88W 0.90 DETAIL SCALE 1"=2' ANDMARK SURVEYORS, LLC. SIGN ENCR'OWCHIMENT LOT 1, -BLOCK 1- REHAB HOSPITAL CITY OF DENTON DENTON COUNTY, TEXAS 4 238 I-35 NORTH DENTON, TEXAS 76207 (940) 382-4016 FAX (940) 387-9784 l;Tll SALE: 1"='ll; DATE: 27JANUAR}' 2010 - J081vo: 0061 __