2010-154
s:\iegal\our documents\ordinances\10\scripture sign encroachment ordinance.dOC
ORDINANCE NO. 201 0-154
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 l. 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 .-B OUG , MAYOR
✓
ATTEST:
JENNĨFER WALTERS, CITY SECRETARY
R,
BY:
APPROVED AS TO LEGAL FORM
ANITA BURGESS, CITY ATTORNEY
BY:
ENCROACHIVIENT 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 hêreof by reference (the
"ENCROACFIlViENT 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 ENCROACFIlVIENT 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 ENCROACPIlVIENT 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 easemênt interests in the ENCROACFIMENT 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 ENCROACHIlVG FACILITY has been
constructed and is presently maintained in accordance with the Denton Developmênt 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 EASEIVIENT, 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 ENCROACI IlVIENT AREA. In the event
the CITY repairs, expands, or adds to its facilities within the ENCROACFIMENT 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 FACLITY, 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 LICENSEES 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 EASEIVIENT to the condition existing prior to
construction of the ENCROACHING FACII.ITY if so directed by CITY.
4. LICENSEE shall defend, indemnífy 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 ENCROACI-IlVIENT 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 requiremênts,
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 ENCROACHVIENT 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
FACLITY so as to prevent construction equipment from damaging existing CITY facilities or public
utilities located within the ENCROACFIlVIENT 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 ENCROACHIVIENT AREA and other.
areas affected in any way by activities conducted pursuant to this Agreement.
Page 2
7. LICENSEE sha11 not place any structure or other matter other than the ENCROACHIlVG
FACILTTY upon thê CITY EASEMEN'T or ENCROACfI1VVIENT 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, op.êration and maintenance
or any other matter of, or related to the ENCROACHING FACILTTY. 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 destroyêd by LICENSEE or its contractors, agents or any
party acting under the authority of LICENSEE, such damage inay, at the sole election of CTTY, 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 CTTY.
9. Grá.ding, if any, shall be done in order to leave the ENCROACIflVEENT 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 ENCROACI-IlVIENT AREA
or CITY EASEMENT or other right-of-way areas, including without limitation, streets and alleys,
during activiiies related to the construction, operation or maintenance of the ENCROACHNG
FACILTTY.
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 CTTY may exercise ariy 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 herêunder shal l 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 CTTY. 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
CTTY 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 occw of (i) the abandonment of the
ENCROACHING FACILTTY; (ii) removal of the ENCROACHING FACILTTY from the' CITY
EASEMENT; and (iii) termination of this Agreement as otherwise provided herein..
_ Page 3
15. This Agreement shall bê 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 AGREEIVIENT SHALL EXCLUSNELY LIE 1N
COLTRTS OF COMPETENT JUIZISDICTION- LOCATED IN DENTON COUNTY, TEXAS.
Dated to be effective as of the L-5ly of ~ 2010.
CTTY OF DENTON, TEXAS
. ~
BY: ~
G~ORGE C. CAMPBELL
CTTY MANAGER
ATTEST:
JENNĩFER-WALTERS, CTTY SECRETARY
BY:0/VIII
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CTTY ATTORNEY
~ BY: LICENSEE:
HTA-Denton, LLC., a Delaware limited liability
company
. ~
BY: ~
Name: Kellie Pruitt
Ohief Accounting Ōíficer
Title:
Page 4
ACKNOWLEDGEMENT
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on /"~#-,2010 by GEORGE C.
CAlVII'BELL, CTTY Manager of the CTTY of Dent n, Texas, on behalf of such municipality.
~
YPJANE E. RICHARDSON
Notary Public, State of Texas
My Commission Expires NO Public in and for the S e of Texas
~
June 27, 2013 My Commission Expires:
.,,ACKNOWLEDGEMENT
THE STATE OF i §
COUNTY OF §
This instrument. w acknowledge before m on nl 4~ 2010 by k&tf
ÊK~~ W(A,4
~ of HTA-Denton; LLC., a Delaware
limited liability company, on-behalf of said limited p êrship.
KIMBERLY HOWELL N tary Public in and r e ta e of -ii ~,WI/ ~y 1,
Notary Public - Arizona 1Víy Commission Expires: a 13
Maricopa County
• • i My Comm. Expires Dec 3, 2013
Page 5
4238 I-35 North
ANDMARK Denton, Texas 76207-3408
(940) 382-4016
SL~RVEY~RS, LLC Fox (940) 387-9784
landmarksv@aoLcom
Exhibit A
FIELD NOTES
SIGN ENCROÁCHMENT
7.3 SQUARE FEET
BEING alt 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, 81ock 1 of Rehab Hospital, an addition to the City of Denton, Denton County,
Texas acxording to the ptat thereof recorded in Cabinet X, Page 929, Pfat Records,
Denton County, Texas and being more particularty described as foltows:
COM.M:ENCING at an iron rod set for comer in the north tine of Scripture Street, a public
roadway having a right-of-way of 73.0 feet, said point being the southwest comer of that
certáin tract of fand conveyed by deed to Texas Oncolōgy Properties, LLC recorded
under Dbcument Number 2006-142313, Reat Property Records, Denton County, Texas;
THENCE N 88° 57' 42A W, 205.28 feet with said north line of said Scripture Street to a
point for comer
THENCE N 01 ° 31' 38s E, 11.8 feet to a point in the southeast comer of a sign for
PLACE OF BEG1UtVING; .
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 88° 57' 42' E, 0.90 feet to a point for comer in a face of said sign;
TH ENCE S 01 ° 31' 38" W, 8.15 feet with a face of said sign to the PLACE OF
BEGtNNING and containing 7.3 square feet of tand.
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Exhibit B
TEXAS ONCOLOGY ~
~aT B~oc~c ~ PROPERTIES, LLC.
REFiAB HOSPITAL ODC ~2006 142.ĩ13 i
CAB. x, PG. 929 P.R.O.C. T. t
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90 CIIY OF DENTON
DETAIL SCALE 1»-2' DENTON COUNTY, TEXAS
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