HomeMy WebLinkAbout2006-130S:AOur DocunlenmA0rdlnancesV06ATXU Encroachment Ordinance.doc
ORDINANCE NO. .2 0%j —13,0
AN ORDINANCE OF THE CITY OF DENTON APPROVING A LICENSE AGREEMENT
BETWEEN TXU ELECTRIC DELIVERY COMPANY ("TXU"), AND THE CITY OF
DENTON RELATING TO THE ENCROACHMENT OF CITY UTILITIES, A PORTION OF
RIGHT-OF-WAY AND A STORM DRAIN ACROSS AN EXISTING TXU EASEMENT AS
PART OF THE WHEELER RIDGE PHASE 4 IMPROVEMENTS, LOCATED IN THE B.
MERCHANT SURVEY ABSTRACT NUMBER 900, CITY OF DENTON, DENTON
COUNTY, TEXAS AND BEING A PORTION OF A CERTAIN CALLED 253.926 ACRE
TRACT OF LAND DESCRIBED IN THE DEED TO CENTEX HOMES, A NEVADA
GENERAL PARTNERSHIP, RECORDED IN VOLUME 5105 PAGE 3753 OF THE DEED
RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute a
License Agreement Related to Encroachment on Easement between the City of Denton and TXU
Electric Delivery Company ("TXU") in substantially the form of the Agreement which is
attached to and made a part of this ordinance for all purposes, for the purpose of locating City
utilities and public right-of-way within a TXU Electric utility easement as described therein.
SECTION 2. The City Manager, or his designee, is authorized to make the expenditures
as set forth in the attached Agreement and to exercise all rights and duties of the City of Denton
under the Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval. /
PASSED AND APPROVED this the i day of lay=2006.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: �'�
APPROVED AS TO LEGAL FORM:
EDWIN SNYDER CITY ATTORNEY
BY:
Norwood -Denton -Bowie 691138kv
Request No. 2005-349 CS
3ER-96869 & 96884
ENCROACHMENT ON EASEMENT
WHEREAS, TXU Electric Delivery Company, formerly known as Oncor Electric DeliveryCompany
and successor in interest to Oncor Electric Delivery Company ("TXU"), is the owner of a easement in
Denton County, Texas, which is recorded in Volume 374, Page 55 and Volume 373, Page 246, of the
Deed Records of Denton County, Texas ("Easement"); and
WHEREAS, the City of Denton, ("User"), desires permission to construct, operate and maintain
Street/Road, Water Line and Utility Easement Crossings ("Encroaching Facility") within the area or
boundaries of the Easement ("Easement Area") shown on the attached drawing marked Exhibit "A"
and incorporated herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and othergood and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, TXU and User
do hereby agree as follows:
1. Location of Encroaching Facility. User may locate the Encroaching Facility in the
Easement Area, but only as described and shown on the attached drawing marked Exhibit "A" and
incorporated herein. User may not relocate the Encroaching Facility within the Easement Area
without the consent and approval of TXU, which consent and approval shall be at TXU's sole
discretion. User acknowledges and agrees that TXU holds easement rights on the Easement Area;
therefore, User shall obtain whatever rights and permission, other than TXU's, that are necessary.
2. Restrictions on Use of Easement Area. User shall use only so much of the Easement Area
as may be necessary to construct, maintain and repair the Encroaching Facility. User shall, at its
own cost and expense, comply with all applicable laws, including but not limited to existing zoning
ordinances, governmental rules and regulations enacted or promulgated by any governmental
authority and shall promptly execute and fulfill all orders and requirements imposed by such
governmental authorities for the correction, prevention and abatement of nuisances in or upon or
connected with said Encroaching Facility. At the conclusion of any construction, User shall remove
all debris and other materials from the Easement Area and restore the Easement Area to the same
condition it was in prior to the commencement of User's construction thereon or in proximity thereto.
User shall not place trash dumpsters, toxic substances or flammable material in the Easement Area.
Further, if the Easement Area has transmission or distribution facilities located thereon, User shall
not place upon the Easement Area any improvements, including but not limited to, buildings, light
standards, fences (excluding barriers installed around transmission towers), shrubs, trees or signs
unless approved in advance in writing by TXU. Additional general construction limitations on
encroachments are described and listed in Exhibit "B", attached hereto and by reference made a
part hereof.
ENCROACHMENT ON EASEMENT Pagai
3. Maintenance of Encroaching Facility. User, at Users sole expense, shall maintain and
operate the Encroaching Facility. TXU will not be responsible for any costs of construction,
reconstruction, operation, maintenance or removal of Users Encroaching Facility.
4. Risk and Liability. User assumes all risks and liability resulting or arising from or relating to
User's use, the existing condition or location, or existing state of maintenance, repair or operation of
the Easement Area. It is further agreed that TXU shall not be liable for any damage to the
Encroaching Facility as a result of TXU's use or enjoyment of its Easement. Any TXU property
damaged or destroyed by User or its agents, employees, invitees, contractors or subcontractors shall
be repaired or replaced by TXU at Users expense and payment is due upon Users receipt of an
invoice from TXU.
5. Indemnification. User, to the extent allowable by law, agrees to defend, indemnify and hold
harmless TXU, its officers, agents and employees, from and against any and all claims, demands,
causes of action, loss, damage, liabilities, costs and expenses (including attorney's fees and court
costs) of any and every kind or character, known or unknown, fixed or contingent, for personal injury
(including death), property damage or other halm for which recovery of damages is sought or
suffered by any person or persons that may arise out of, or be occasioned by, the negligence,
misconduct or omission of User, its officers, agents, associates, employees, contractors,
subcontractors, subconsultants, or any other person entering onto the Easement Area or may arise
out of or be occasioned by the use of the Encroaching Facility, except that the indemnity provided for
in this paragraph shall not apply to any liability resulting from the sole negligence of TXU, its officers,
agents, or employees or separate contractors, and in the event of joint and concurrent negligence of
both TXU and User, responsibility and indemnity, if any, shall be apportioned comparatively.
Nothing contained herein shall ever be construed so as to require User to assess, levy and collect
any tax to fund its obligations under this paragraph. Article XI Section 7 of the Texas Constitution
provides that a city is prohibited from creating a debt unless the city levies and collects a sufficient
tax to pay the interest on the debt and provides a sinking fund. The City of Denton has not and will
not create a sinking fund or collect any tax to pay any obligation created under this section.
6. High Voltage Restrictions. Use of draglines or other boom -type equipment in connection
with any work to be performed on the Easement Area by User, its employees, agents, invitees,
contractors or subcontractors must comply with Chapter 752, Texas Health and Safety Code, the
National Electric Safety Code and any other applicable safety or clearance requirements.
Notwithstanding anything to the contrary herein, in no event shall any equipment be within fifteen feet
of the TXU power lines situated on the aforesaid property. User must obtain TXU's approval and
notify the Fort Worth Region Transmission Department at (817) 496-2731, or (817) 496-2736, 48
hours prior to the use of any boom -type equipment on the Easement Area.
7. Default and Termination. It is understood and agreed that, in case of default by User or its
agents in any of the terms and conditions herein stated and such default continues for a period of ten
(10) days after TXU notifies User of such default in writing, TXU may at its election forthwith
terminate this agreement and upon such termination all of Users rights hereunder shall cease and
come to an end. This agreement shall also terminate upon the abandonment of the Encroaching
Facility.
This agreement shall extend to and be binding upon User and its successors and assigns, and is not
to be interpreted as a waiver of any rights held by TXU under its Easement.
Executed this 0-day of �. 200$..6
ENCROACHMENT ON EASEMENT
Page 2
APPROVED AS TO FORM:
CITYATTORKIEY
CITY OF D ON,
BY:
STATE OF TEXAS §
COUNTY OF DENTON §
APPROVAL:
TXU ELECTRIC DELIVERY COMPANY
', &)�)btAOO�
Thomas F. Newsom
Attomey-In-Fact
ACCEPTANCE:
CITY OF DENTON
r
BEFORE ME, the undersigned authority, on this day personally
appeared B OWr a %if 1'i rn, as 7 grim d,'fi /Y— Lr of the CITY OF
DENTON, known to me to be the person whose narine is su scribed to the foregoing
instrument and acknowledged to me that he/she executed the same as the act and deed of
the City of Fort Worth, and for the purposes and consideration therein expressed and in
the capacity therein stated, and that he/she was authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this `h day of
A.D.200X. &
JANE E. RICHARDSON
Notary P011C, State of Texas
My Commission Expires
JUnra 27, 2000
�td gyp �6 19CI AdU'0
Nothry Public in and for the State of Texas
ENCROACHMENT ON EASEMENT
Page 3
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Thomas
F. Newsom, as Attorney -In -Fact of TXU ELECTRIC DELIVERY COMPANY, known to me
to be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he executed the same as the act and deed of TXU Electric Delivery Company,
and for the purposes and consideration therein expressed and in the capacity therein
stated, and that he was authorized to do so.
GIVEN 4WER MY HAND AND SEAL OF OFFICE this of t " day of
U
U , A.D.200Y.6
Notary Pdblic in and for the State of Texas
ROBINSON61k 8tete
am
of Texasicston
ExDkasE
16, 2U07
ENCROACHMENT ON E ENENT Page 4
Norwood -Denton -Bowie 69/138kv
Request No. 2005-349 CS
3ER-96869 & 96884
ENCROACHMENT ON EASEMENT
WHEREAS, TXU Electric Delivery Company, formerly known as Oncor Electric Delivery Company
and successor in interest to Oncor Electric Delivery Company ("TX(J"), is the owner of a easement in
Denton County, Texas, which is recorded in Volurne 374, Page 55 and Volume 373, Page 246, of the
Deed Records of Denton County, Texas ("Easement"); and
WHEREAS, the City of Denton, ("User,"), desires permission to construct, operate and maintain
Street/Road, Water Line and Utility Easement Crossings ("Encroaching Facility"') within the area or
boundaries of the Easement ("Easement Area"), shown on the attached drawing marked Exhibit "A"
and incorporated herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and othergood and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, TXU and User
do hereby agree as follows:
1 Location of Encroachin F I acill!y. User may locate the Encroaching Facility in the
Easement Area, but only as described and shown on the attached drawing marked Exhibit "A" and
incorporated herein. User may not relocate the Encroaching Facility within the Easement Area
without the consent and approval of TXU, which consent and approval: shall be at TXU's sole
discretion. User acknowledges and agrees that TXU holds easement rights on the Easement Area;
therefore, User shall obtain whatever rights and permission, other than TXU's, that are necessary.
2. Restrictions on Use of Easement Area. User shall Use only so much of the Easement Area
as may be necessary to construct, maintain and repair the Encroaching Facility. User shall, at its
own cost and expense, comply with all applicable laws, including but riot limited to existing zoning
ordinances, governmental rules and regulations enacted or promulgated by any governmental
authority and shall promptly execute and fulfill all, orders and requirements imposed by such
governmental authorities for the correction, prevention and abatement of nuisances in or upon or
connected with said Encroaching Facility. At the conclusion of any construction, User shall remove
all debris and other materials from the Easement Area and restore the Easement Area to the: same
condition it was in prior to the commencement of User's construction thereon or in proximity thereto.
User shall not place trash dumpsters, toxic substances or flamniable material in, the Easement Area.
Further, if the Easement Area has transmission or distribution facilities located thereon, User shall
not place upon the Easement Area any improvements, including but not limited to, buildings, light
standards, fences (excluding barriers installed around transmission towers), shrubs, trees or signs
Unless approved in advance in writing by TXU. Additional general construction firnitations on
encroachments are described and listed in Exhibit "B", attached hereto and by reference made a
part hereof.
Page I
ENCROACHMENT ON EASEMENT
3. Maintenance of Encr +chin Facilit , User, at User's sole expense, shall maintain and
operate the Encroaching Facility, TXU will riot be responsible for any costs of construction,
reconstruction, operation, maintenance or removal of User's Encroaching Facility.
4. Risk and Liabilgy, User assumes all risks and liability resulting or arising from or relating to
User's use, the existing condition or location, or existing state of maintenance, repair or operation of
the Easement Area. It is further agreed that TXU shall not be liable for any damage to the
Encroaching Facility as a result of TXU°s use or enjoyment of its Easement. Any TXU property
damaged or destroyed by User or its agents, employees, invitees, contractors or subcontractors shall
be repaired or replaced by TXU at User's expense and payment is due upon Users receipt of an
invoice from TXU.
5. Indemnification. User, to the extent allowable by law, agrees to defend, indemnify and hold
harmless TXU, its officers, agents and employees, from and against any and all claims, dernandsn
causes of action, loss, damage, liabilities, costs and expenses (including ,attorney"s fees and court
costs) of any and every bind or character„ known or unknown, fixed or contingent, for personal injury
(including death), property damage or other harm for which recovery of damages is sought or
suffered by any person or persons that may arise out of, or be occasioned by, the negligence,
misconduct or omission of User, its officers, agents, associates, employees, contractors,
subcontractors, subconsultants, or any other person entering orito the Easement Area or may arise
out of or be occasioned by the use of the Encroaching Facility, except that the indemnity provided for
in this paragraph shall not apply to any liability resulting from the sole negligence of TXU, its officers,
agents, or employees or separate contractors, and in the event of joint and concurrent negligence of
both TXU and User, responsibility and indemnity„ if any, shall be apportioned comparatively,
Nothing contained herein shall ever be construed so as to require User to assess, levy and collect
any tax to fund its obligations under this paragraph. Article XI Section y of the Texas Constitution
provides that a city is prohibited from creating a debt unless the city levies and collects a sufficient
tax to pay the interest on the debt and provides a sinking fund. The City of Denton has not and will
not create a sinking fund or collect any tax to pay any obligation created under this section,
6. I li h lolta a Restrictions. Use of draglines or other boors -type equipment in connection
with an wcr to be perfdrrrred on tNie Easement Area by User, its employees, agents, invitees,
contractors or srrlrcorrtractors crust comply with Chapter 52, Texas Health and Safety Code, the
National Electric Safety Code and any other applicable safety or clearance requirements.
Notwithstanding anything to the contrary herein, ire no event shall) any equipment be within fifteen feet
of the TXU power lines situated on the aforesaid property. User must obtain TXU's approval and
notify the Fort Worth Region Transmission Department at (6117)466-2 3"l, or (61) 4 6-27"36, 46
hours prior to the use of any boom -type equipment on the Easement Area.
7, Default anal Termination. It is understood and agreed that, in case of default by User, or its
agents in any cif tfe terrrrs ancd cor rditions l rereirr sfated and such default continues for a period of ten
(110) days after TXU notifies User of such defai ult in writing, TXU may at its election forthwith
terrninate tl°ris agreement, and upon such terrrirration all of User's rights hereunder shall cease and
come to an end. This agreement shall also term inate ulron the abandonment of the Encroaching
Facility.
This agreement shall extend to and be binding upon User and its successors and assigns, and is not
to be interpreted as a waiver of any rights held by TXU under its Easement.
r "4 r r
Executed this 'day of 200$.6
Page 2
ENCROACHMENT ON EASEMENT
APPROVED AS TO FORM:
CITY ATTOR y
CITY OF Dr, ON, �
BY.
STATE OF TEXAS §
COUNTY OF DENTON §
APPROVAL:
TXU ELECTRIC DELIVERY COMPANY
I t U Mw
y`
Thomas F. Newsom
Attorney -In -Fact
ACCEPTANCE:
CITY OF DENTON
ti
By:
Naive: " a �� n 6.: ...
Title:
�e und
ersigned authority, on this day personally
BEFORE M t ,
/AU111142 l" of the CITY OF
DENTON known to me to be the person whose na a is suscribed to the foregoing
instrument and acknowledged to me that he/she executed the same as the act and deed of
the City of Fort Worth, and for the purposes and consideration therein expressed and in
the capacity therein stated, and that he/she was authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ i` ,._ day of
A.D.200,0. &
4
jT lic in and f ,
J�A:IV E, ICHA0$10,
ewe � T ' '" No r Pub or the State of Texas
Sra lYaµe4w sa
Page 3
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE M�E, the undersigned authority„ on this day personally appeared Thomas
F. Newsom, as Attorney -In -Fact of TXU ELECTRIC DELIVERY COMPANY, known to me
to be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he executed the same as the act and deed of TXU Electric Delivery Company,
and for the purposes and consideration therein expressed and in the capacity therein
stated, and that he was authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this �� day of
A.D.200#'.6
Notary Pj�ic in and for the
State of Texas
J oexxN
r� NataryidwdN t 0f 1
oass
,•, xp
r JUNE 16, 2007
Page 4
ENCROACHMENT ON EASEMENT
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CONSTRUCTION LIMITATIONS ON TXU' ELECTRIC DELIVERY COMPANY
RIGHT OF WAY
EXHIBIT "B"
1. You are notified, and should advise your employees, representatives, agents,
and contractors, who enter the property that they will be working in the vicinity
of high voltage electrical facilities and should take proper precautions,
included but not limited to the following stipulations and in compliance, at all
times, with Chapter 752, V.T.C.A., Health & Safety Code.
2. Blasting is not to be permitted on TXU right-of-way or under TXU lines.
3. Construction on electric transmission line easements acquired by TXU after
January 1, 2003 shall comply with the requirements of Public Utility Commission
Substantive Rules §25.101, as amended from time to time.
4. No Grade increases. Grading will be done in order to leave the right-of-way as
near as possible to present condition. Spoil dirt will be removed from the right-of-
way and no trash is to be left on right-of-way. Slopes shall be graded so that
trucks can go down the right-of-way when required and such that the slopes can
be mechanically maintained.
5. Equipment and materials will not be stored on the right-of-way during
construction without written approval of the Supervisor of Regional Transmission.
6. Street or road crossings are to be based on drawings submitted. Any change
in alignment or elevation will be resubmitted for approval.
Page 1 of 3
7. No signs, lights, guard lights or fire hydrants will be permitted on the right-of-
way.
8. Equipment will not exceed fifteen (15) feet in height when operated on the
right-of-way.
9. Any pre -approved fencing will not exceed eight (8) feet in height, and if metal
in nature, will be grounded, at ten (10) feet intervals, with an appropriate driven
ground. Gates should be at least sixteen (16) feet in width to allow TXU access
to the right-of-way.
10. No dumpsters will be allowed on TXU right-of-way or fee owned property.
11. Draglines will not be used under the line or on TXU right-of-way.
12. The existing grade shall not be disturbed, excavated or filled within 25 feet of
the nearest edge of any tower.
13. Right-of-way will be protected from washing and erosion by TXU approved method
before any permits are granted. No discharging of water will be allowed within any
portion of the right of way.
14. No obstruction shall be installed on the right-of-way that would interfere with
access to TXU structures or prevent mechanical maintenance.
15. Before any work is done under TXU lines or by TXU structures notify the
Region Transmission Department, (817) 496-2731, or (817) 496-2736.
16. No hazardous materials will be stored on the right of way.
Page 2 of 3
17. For purposes of this document, "Hazardous Materials" means and includes
those substances, including, without limitation, asbestos -containing material
containing more than one percent (1 %) asbestos by weight, or the group of
organic compounds known as polychlorinated biphenyls, flammable explosives,
radioactive materials, chemicals known to cause cancer or reproductive toxicity
and includes any items included in the definition of hazardous or toxic waste,
materials or substances under any Hazardous Material Law. "Hazardous
Material Laws" collectively means and includes any present and future local,
state and federal law relating to the environment and environmental conditions
including, without limitation, the Resource Conservation and Recovery Act of
1976 ("RCRA"), 42 U.S.C. §6901 et sew., the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, ("CERCLA"), 42 U.S.C.
§§9601-9657, as amended by the Superfund Amendments and Reauthorization
Act of 1986 ("SARA"), the Hazardous Material Transportation Act, 49 U.S.C.
§6901 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §1251, et seq.,
the Clean Air Act, 42 U.S.C. §741 et seq., the Clean Water Act, 33 U.S.C. §7401
et seq., the Toxic Substances Control Act, 15 U.S.C. §§2601-2629, the Safe
Drinking Water Act, 42 U.S.C. §§300f-330j, and all the regulations, orders, and
decrees now or hereafter promulgated thereunder
18. Brush and cut timber will not be piled or stacked on TXU right-of-way or will
not be burned upon or in close proximity to the conductors or towers.
19. No structures or obstructions, such as buildings, garages, barns, sheds,
guard houses, etc., will be permitted on the right-of-way.
20. Landscaping on TXU right-of-way is permitted when TXU approves
landscaping plans in writing. No lighting or sprinkler systems are allowed on the
right-of-way.
Page 3 of 3
Denton County
Cynthia Mitchell
County Clerk
Denton, Tx 76202
70 2006 00131 Bg8
Instrument Number: 2006.131888
As
Recorded On: October 25, 2006 Easement
Parties: TXU ELECTRIC Billable Pages: 12
To Number of Pages: 12
Comment:
( Parties listed above are for Clerks reference only )
** Examined and Charged as Follows: **
Easement 60.00
Total Recording: 60.00
************ DO NOT REMOVE THIS PAGE IS PART OF THE INSTRUMENT ************
Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY
because of color or race is invalid and unenforceable under federal law.
File Information:
Document Number: 2006-131888
Receipt Number: 332983
Recorded Date/Time: October 25, 2006 12:14:41 P
User / Station: J Morris - Cash Station 1
Record and Return To:
CITY OF DENTON
ATTN PAUL WILLIAMSON
601 E HICKORY STE B
DENTON TX 76205
THE STATE OF TEXAS)
COUNTY OF DENTON)
hereby cortif+yr that this Instrumeot was FILED In the File Nuonkwr sequence on the tdatohIme
Printed heron, and was duly RECORDED kn the orricial Records of Denton County, Texas.
!?�r.*Wt..
County Clerk
Denton County, Texas