2016-399ORDINANCE NO, 2O16-399
AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT, AS
ATTACHED AND MADE A PART HEREOF AS EXHIBIT "A", BY AND BETWEEN THE
UPPER TRINITY RIVER WATER DISTRICT (THE "DISTRICT") AND THE CITY OF
DENTON (THE "CITY"), AUTHORIZING THE DISTRICT TO ACQUIRE CERTAIN
UTILITY EASEMENTS THROUGH EMINENT DOMAIN FOR RELOCATION OF
DISTRICT AND CITY UTILITIES AS REQUIRED BY THE TEXAS DEPARTMENT OF
TRANSPORTATION'S (TXDOT'S) ROADWAY WIDENING IMPROVEMENTS TO FM
2181 (TEASLEY LANE), BETWEEN FM 2499 AND LILLIAN MILLER PARKWAY AND
WITHIN THE CITY OF DENTON; SHARING USE OF CERTAIN CITY AND DISTRICT
UTILITY EASEMENTS; AND AUTHORIZING THE MAYOR TO EXECUTE AND
DELIVER ANY AND ALL OTHER DOCUMENTS REQUIRED TO IMPLEMENT THE
AGREEMENT.
WHEREAS, the Texas Department of Transportation (TxDOT) plans to widen and
otherwise improve FM 2181 (Teasley Lane), between FM 2499 and Lillian Miller Parkway;
WHEREAS, TxDOT's roadway improvements require certain City and District utilities
to be relocated to accommodate the planned improvements;
WHEREAS, the District needs to acquire additional easements to affect its utility
relocation and may need to employ eminent domain, which requires approval by the City; and
WHEREAS, it is mutually beneficial for the City and District to cooperate and utilize
easements owned or to be acquired by the other;
NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1,. The Mayor is authorized: (a) to execute on behalf of the City (i) the
Agreement between the City and District, substantially in the form attached as Exhibit "A", and
(ii) to execute and deliver any and all other documents required to implement the Agreement.
EC"I`10N 2. If any section, article, paragraph, sentence, phrase, clause or word in this
ordinance, or application thereof to any persons or circumstances, is held invalid or
unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of
the remaining portions of this ordinance; the City Council declares that it would have ordained
such remaining portion despite such invalidity, and such remaining portion shall remain in full
force and effect.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the tday of 2016.
CI I 1� 1S4ATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
By:
INTERLOCAL AGREEMENT BETWEEN CITY OF DENTON
AND
UPPER TRINITY REGIONAL WATER DISTRICT
CONCERNING JOINT USE OF EASEMENTS & INSTALLATION OF CERTAIN FACILITIES
THE STATE OF TEXAS §
COUNTY OF DENTON §
This INTERLOCAL AGREEMENT FOR JOINT USE OF EASEMENTS AND INSTALLATION OF
CERTAIN FACILITIES (the "Agreement") is made and entered into as of the _L3_ day of
Jr.L'" 2016, by and between the CITY OF DENTON ("Denton"), a municipal corporation
of the State of Texas, and the UPPER TRINITY REGIONAL WATER DISTRICT ("District"), a
conservation and reclamation district created pursuant to Article XVI, Section 59 of the
Constitution of the State of Texas.
WITNESSETH:
WHEREAS, Denton is a duly incorporated city of the State of Texas operating under Constitution
and laws of the State of Texas; and
WHEREAS, the District was created by the Texas Legislature to provide water, wastewater, and
solid waste services to cities and water utilities in the Denton County area; and
WHEREAS, Denton is a Member of the District and is participating with the District in joint projects
for water treatment and transmission services; and
WHEREAS, the Texas Department of Transportation ("TxDOT") is planning to widen a portion of
FM 2181 generally from Blue Bonnett to Teasley Lane (herein the "TxDOT Project"),
WHEREAS, within the area of the TxDOT Project, the District previously installed and currently
operates a 20 -inch water transmission pipeline as part of its Regional Treated Water System for
service to its Members and Customers; and
WHEREAS, in preparation for the TxDOT Project, the District is planning to relocate a portion of
its water transmission pipeline and associated appurtenances that are parallel to and crossing
FM 2181 in Denton, which relocation is more particularly described in Exhibit A attached hereto
(herein the "Project'); and
WHEREAS, Denton also plans to relocate and install certain water and wastewater pipelines and
associated appurtenances in preparation for the TxDOT Project; and
WHEREAS, Denton has an existing public utility easement along a portion of FM 2181 from south
of Lighthouse Drive to Hickory Creek Road for its retail water distribution and wastewater
collection systems and associated appurtenances (herein "Denton Easement'); and
WHEREAS, it will be necessary for the District to acquire certain easements for the Project,
generally from north of Lighthouse Drive to south of Hickory Creek Road (herein "District
Easement'): and
WHEREAS, the District and Denton desire to enter into a reciprocal agreement to allow joint use
of the Denton Easement and District Easement by either party on reasonable terms as provided
in this Agreement; and
WHEREAS, the District and Denton are authorized to enter into the Agreement pursuant to the
District's enabling statute, H.B.3112 (1989 regular session of the Texas Legislature, as amended)
and the Texas Government Code, Chapter 791 (the "Interlocal Cooperation Act"), and other
applicable laws; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained,
the District and Denton agree as follows:
Section 1.0 Preamble, The parties agree and represent that all of the matters stated in the
preamble of this Agreement are true and correct and are hereby incorporated into the body of this
Agreement as if fully set forth in their entirety herein.
Section 2.0 Use of Menton Easement by District. The District is proceeding with the design
and construction of the Project in anticipation of the TxDOT Project. To minimize the impact to
the existing TxDOT Right -of -Way or to businesses and residents along FM 2181, Denton hereby
grants to District the right to use a portion of the Denton Easement for the Project. The District
may utilize a portion of said easement on the south side of Lighthouse Drive and on the west side
of FM 2181, as generally described in Exhibit B.
A. District is authorized to construct, operate, maintain and replace a water transmission
pipeline, fiber optic cable and other associated appurtenances in the area described
in Exhibit B. If fiber optic is installed, it will be installed to one side of the same trench
that the pipe is installed in. For that portion of the Project to be constructed within the
Denton Easement, the District agrees to submit the final plans and specifications to
Denton for review and approval, which approval shall not be unreasonably withheld or
delayed. District, its employees and contractors shall have access to the Denton
Easement and adjacent public easements and rights-of-way to carry out the purposes
authorized herein.
B. Denton owns and operates one or more water and wastewater pipelines in the Denton
Easement. Denton agrees to use its best efforts to protect District's facilities in
Denton's Easement to avoid damage to or interruption of service by District. If any
facilities of District are damaged by Denton, its employees, contractors or assigns,
Denton shall be responsible for all costs for repair or replacement to restore said
facilities to original condition. District's use of said easement is subject to senior rights
of Denton; and, District shall use its best efforts to protect the facilities of Denton, to
avoid damage or interruption of service. If any facilities of Denton are damaged by
District, its employees, contractors or assigns, District shall be responsible for repair
or replacement to restore said facilities to original condition. District shall restore the
easement to a condition as good as or better than original condition. District agrees to
provide all plans for the Project to Denton and any future improvements within the
Denton Easement for review and approval prior to the start of any construction.
C. District's right to use the Denton Easement as specified herein is agreed by the parties
to be a continuing right. However, if District ceases to use said easement for purposes
herein authorized, as evidenced by a written resolution of the District's Board of
Directors, the District's rights as granted herein shall terminate, and the full right of
control and use shall revert to Denton. If such termination occurs, upon request by
Denton to the District, the District agrees to issue a notice of abandonment approved
by Denton suitable for recordation in the real property records of Denton County,
Texas.
Section 3.0 Use of District Easements by Denton. As part of the Project, the District will use
its best efforts to acquire certain District Easements to relocate its existing water transmission
pipeline, as generally described in Exhibit A attached hereto. Except as provided herein, District
shall have exclusive, dominant and superior rights in said easements that the District acquires.
A. Denton hereby authorizes and approves the District's right to exercise its power of
eminent domain within Denton city limits to acquire the necessary District Easements
for the Project, generally as described in Exhibit A hereto.
B. To minimize the impacts to the existing TOOT Right -of -Way, businesses and
residents along FM 2181, District hereby grants to Denton the right to use a portion of
the District Easement generally on the north of Lighthouse Dr., on the west side of FM
2181 and north of the overhead power transmission line crossing (south of Hickory
Creek Rd.), as provided in Exhibit C. Denton plans to install a wastewater forcemain
within the District Easement from Lighthouse Dr. to south of the overhead power
transmission line and its crossing of FM 2181 to the northeast. For that portion of the
forcemain to be constructed within the District Easement, Denton agrees to submit the
final plans and specifications to District for review and approval, which approval shall
not be unreasonably withheld or delayed.
C. Denton is authorized to construct, operate, maintain and replace a wastewater
forcemain and associated appurtenances within the area described in Exhibit C.
Denton, its employees and contractors shall have access to the District Easement to
carry out the purposes authorized herein, including construction.
D. District will own and operate one or more water pipelines and fiber optic lines in the
District Easement. Denton agrees to use its best efforts to protect the District's
facilities, and to avoid damage or interruption of service. If any facilities of District are
damaged by Denton, its employees, contractors or assigns, Denton shall be
responsible for repair or replacement to restore said facilities to original condition.
Denton's use of District Easements is subject to senior rights of District. Further,
District shall use its best efforts to protect the facilities of Denton, to avoid damage or
interruption of service. If any facilities of Denton are damaged by District, its
employees, contractors or assigns, District shall be responsible for repair or
replacement to restore said facilities to original condition. The party which disturbs the
easement condition as a result of construction shall restore the easements to a
condition as good as or better than original condition. Denton shall provide all plans
for proposed facilities within the shared easement to District for review and approval
prior to the start of any construction.
E. Denton's right to use the District Easement as specified herein is agreed by the parties
to be a continuing right. However, if Denton ceases to use the easement for purposes
herein authorized, as evidenced by a written resolution of the Denton City Council,
Denton's rights as granted herein shall terminate, and the full right of control and use
shall revert to District. If such termination occurs, upon request by the District to
Denton, Denton agrees to issue a notice of abandonment approved by the District
suitable for recordation in the real property records of Denton County, Texas.
Section 4.0 Farce Majeure. If by force majeure any party hereto shall be rendered unable
wholly or in part to carry out its obligations under this Agreement, then if such party shall give
notice and full particulars of such force majeure in writing to the other parties within reasonable
time after occurrence of the event or cause relied on, the obligation of the party giving such notice,
so far as it is affected by such force majeure, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and such party shall endeavor to remove or
overcome such inability with all reasonable dispatch. The term "Force Majeure" as employed
herein shall mean acts of God, strikes, lockouts or other industrial disturbances, acts of public
enemy, orders of any kind of the Government of the united States or the State of Texas, or any
Civil or military authority, insurrection, riots, epidemics, landslides, lightning, earthquake, fire,
hurricanes, storms, floods, washouts, droughts, arrests, restraint of government and people, civil
disturbances, explosions, breakage or accidents to machinery, pipelines or canals, partial or
entire failure of electric power supply, or on account of any other causes not reasonably within
the control of the party claiming such inability.
Section 5.0 Term_ of Agre rnent. This Agreement shall be effective on and from the date first
above written, and shall continue in force and effect for such period of time that pipelines and
other facilities are installed hereunder remain in use. This Agreement constitutes the sole
agreement between the parties hereto with respect to the use of said easements. Further, this
Agreement may be supplemented by the parties as reasonably necessary to carry out the intent
of the Agreement.
Section 6.0 Address and Notice. Unless otherwise provided herein, any notice,
communication, request, reply or advice (herein severally and collectively, for convenience, called
Notice) herein provided or permitted to be given, made or accepted by any party to any other
party must be in writing and may be given or be served by depositing the same in the United
States mail postpaid and registered or certified and addressed to the party notified, with return
receipt requested, or by delivering the same to an officer of such party, or by prepaid telegram
when appropriate, addressed to the party to be notified. Notice deposited in the mail in the manner
hereinabove described shall be conclusively deemed to be effective, unless otherwise stated
herein, from and after the expiration of three days after it is so deposited. Notice given in any
other manner shall be effective only if and when received by the party to be notified. For the
purposes of notice, the addresses of the parties shall, until changed as hereinafter provided, be
as follows:
If to the District to: Executive Director
Upper Trinity Regional Water District
P.O. Drawer 305
Lewisville, TX 75067
If to City of Denton to City Manager
City of Denton
215 East McKinney Street
Denton, TX 76201
The parties hereto shall have the right from time to time and at any time to change their respective
addresses and each shall have the right to specify as its address any other address by at least
fifteen (15) days' written notice to the other parties hereto.
Section 7.0 State or Federal Laws Rules.,—Orders or Re 1rlatigM This Agreement is
subject to all applicable Federal and state laws and any applicable permits, ordinances, rules,
orders and regulation of any local, state or federal governmental authority having or asserting
jurisdiction, but nothing contained herein shall be construed as a waiver of any right to question
or contest any such law, ordinance, order, rule or regulation in any forum having jurisdiction.
Section 8.0 Terra of Use.,The parties hereto specifically agree that in case any one or more
of the sections, subsections, provisions, clauses or words of this Agreement or the application of
such sections, subsections, provisions, clauses or words to any situation or circumstance should
be, or should be held to be, for any reason, invalid or unconstitutional, under the laws or
constitutions of the State or the United States of America, or in contravention of any such laws or
constitutions, such invalidity, unconstitutionality or contravention shall not affect any other
sections, subsections, provisions, clauses or words of this Agreement or the application of such
sections, subsections, provisions, clauses or words to any other situation or circumstance, and it
is intended that this Agreement shall be severable and shall be construed and applied as if any
such invalid or unconstitutional section, subsection, provision, clause or word had not been
included herein, and the rights and obligations of the parties hereto shall be construed and remain
in force accordingly.
Section 9.0 Venue. All amounts due under this Agreement shall be paid and be due in Denton
County, Texas, which is the county in which the principal administrative offices of Denton and of
the District are located. It is specifically agreed among the parties to this Agreement that Denton
County, Texas, is the place of performance of this Agreement or any provision hereto, the same
be brought in Denton County, Texas.
[REMAINING PORTION LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto acting under authority of their respective governing
bodies have caused the Agreement to be duly executed in several counterparts, each of which
shall constitute an original, all as of the day and year last above written, which is the Effective
Date of this Agreement.
UPPER TRINITY REGIONAL WATER DISTRICT
y�.
By:
Lance Vanzant, President, Board of Directors
ATTEST:
Ramiro Lopez,
(District Seal)
APPROVED AS TO FORM:
John F. Boyle, Jr., General Counsel for the District
By
ATTEST:
;City secretary
APPROVED AS iO F- R
..
,City Attorney
CITY OF DENTON
Chris Watts, Mayor, City of Denton
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