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22-1864
City Manager’s Office 215 E. McKinney St., Denton, TX 76201 • (940) 349-8307DENTON NOTE TO FILE DATE: October 24, 2022 TO: ORD FILE – 22-1864 SUBJECT: Waiting for Original At the October 18, 2022 City Council meeting, the above noted executed ordinance was given toScott McDonald, Community Development. Attached copy is to be replaced with original whenreturned to CSO. OUR CORE VALUES Inclusion • Collaboration • Quality Service • Strategic Focus • Fiscal Responsibility C©PY ORDINANCENO. 22-1864 AN ORDINANCE OF THE CITY OF DENTON, TEXAS ABANDONING, RELINQUISHING,AND VACATING A 0.12 ACRE PUBLIC DRAINAGE EASEMENT GRANTED TO THECITY OF DENTON BY PHILO LUGINBYHL AND WIFE JOANN LUGINBYIIL,RECORDED IN VOLUME 1534 PAGE 131, DEED RECORDS OF DENTON COUNTY,TEXAS; PROVIDING FOR THE QUITCLADa TFmREOF TO D.R. HORTON- TEXAS, LTD;PROVIDING FOR Tm TERMS AND CONDITIONS OF Tm ABANDONMENT, RELEqQUISHbaNT AND QUITCLAIM MADE HEREnq; PROVIDING FOR THEINDEMNIFICATION OF THE CITY OF DENTON AGAINST DAMAGES ARISING OUT OFTHE ABANDONMENT HEREN; PROVIDING FOR TEn CONSEDERATION TO BE PAIDTO THE CITY OF DENTON; PROVIDING FOR SEVERABILITY AND AN EFFECTrvEDATE WHEREAS, the City of Denton (“City”) is the holder of a 0.12-acre Public Drainage Easement granted by Philo Luginbyhl and wife Joann Luginbyhl, recorded in Volume 1534 Page131, Deed Records of Denton County, Texas (the “Subject Easement”); and WHEREAS, D.R. Horton – Texas, Ltd., a Texas limited partnership, (“Owner”), is the record abutting owner of the underlying fee simple title to the property encumbered by the SubjectEasement according to the Special Warranty Deed recorded in Document Number 2020-20270, Real Property Records, Denton County, Texas; and WHEREAS, the Owner, as required in the development process, has constructed public drainage infrastructure improvements to provide the necessary public drainage needs for thedevelopment and has dedicated a new drainage easement (“New Easement”)which has been approved by plat; and WHEREAS, the dedication of the New Easement and infrastructure improvements have rendered the Subject Easement of no further use by the City; and WHEREAS, the Owner has requested the City to abandon, relinquish and quitclaim the Subject Easement; and WHEREAS, the relinquishment , abandonment and quitclaim of the Subject Easement serves a public purpose by eliminating the City’s obligation to maintain the Subject Easement area or to construct and install drainage infrastructure improvements serving the site; and WHEREAS, the City Engineer and Public Works staff have confirmed that the property has been developed in such a manner that the Subject Easement is no longer necessary to address previous drainage concerns on the property or for any current or future public drainage projects, WHEREAS, the City of Denton may sell its real property interests to an abutting owner for less than fair market value as determined by an appraisal, for easements the political subdivisionchooses to exchange for public purposes and without complying with the notice and bidding requirements for the sale of public lands provided for in Chapter 272; and WHEREAS, staff is required to, and will obtain an independent appraisal to determine fair market value of the Subject Easement prior to it being be relinquished, abandoned, and quitclaimed, in accordance with state law; and WHEREAS, staff recommends releasing the Subject Easement at no cost to the Owner as the City acquired the easement at no cost, has not installed any public infrastructure within the Subject Easement, and has no identified current or future use for the Subject Easement; and WHEREAS, the City Council of the City of Denton, acting pursuant to law and upon the request and petition of D.R. Horton – Texas, Ltd. is of the opinion that the best interest and welfareof the City will be served by abandoning, relinquishing and quitclaiming the City of Denton’s right, title and interest in and to the Subject Easement to D.R. Horton – Texas, Ltd , and is of the opinion that, subject to the terms and conditions hereinafter provided, Subject Easement is no longer needed for municipal use, and same should be abandoned relinquished and quitclaimed to D.R. Horton- Texas, Ltd. as hereinafter provided, for consideration hereinafter stated;; NOW,THEREFORE, WHEREAS, the City Council of the City of Denton is of the opinion that the best interest and welfare of the City will be served by abandoning, relinquishing and quitclaiming the Subject Easement to D.R. Horton – Texas, Ltd for the consideration and subject to the temis and conditions hereinafter more fully set forth; Now, Therefore, THE couNcn OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations and finding set forth above are incorporated herein byreference. SECTION 2. The following Easements held by the City of Denton are relinquished, abandoned, and quitclaimed in their entirety: a. Public Drainage Easement granted by Philo Luginbyhl and wife Joann Luginbyhl, recorded in Volume 1534 Page 131, Deed Records of Denton County, Texas; and SECTION 3. That the City of Denton hereby abandons and relinquishes all of its right, title and interest in and to the tract of land described in Exhibit A, attached hereto and made a part hereof; subject, however, to the conditions hereinafter more fully set out. SECTION 4. That the abandonment, relinquishment and quitclaim provided for herein are made subject to all present zoning and deed restrictions, if the latter exist, and are subject to all existing easement rights of others, if any, whether apparent or non-apparent, aerial, surface, underground or otherwise. SECTION 5. That the terms and conditions contained in this ordinance shall be binding upon D.R. Horton-Texas Ltd. , its heirs, successors and assigns. SECTION 6. . That as a condition of this abandonment and as a part of the consideration for the quitclaim to D.R. Horton-Texas Ltd. herein, D.R. Horton-Texas Ltd., its heirs, successors Page 2 and assigns, agree to indemnify, defend, release and hold harmless the City of Denton to any and all claims for damages, fines, penalties, costs or expenses to persons or property that may arise out of, or be occasioned by or from: (i) the use and occupancy of the area described in Exhibit A by D.R. Horton-Texas Ltd., its heirs, successors and assigns; (ii) the presence, generation, spillage, discharge, release, treatment or disposition of any Hazardous Substance on or affecting the area set out in Exhibit A; (iii) all corrective actions concerning any discovered Hazardous Substances on or affecting the area described in Exhibit A, which D.R. Horton-Texas Ltd., its heirs, successors and assigns, agree to undertake and complete in accordance with applicable federal, state and local laws and regulations; and (iv) the abandonment, closing, vacation and release by the City of Denton of the area set out in Exhibit A. D.R. Horton-Texas Ltd., its heirs, successors and assigns, hereby agree to defend any and all suits, claims, or causes of action brought against the City of Denton on account of same, and discharge any judgment or judgments that may be rendered against the City of Denton in connection therewith. For purposes hereof, “Hazardous Substance“ means the following: (a) any “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., as amended; (b) any “hazardoussubstance” under the Texas Hazardous Substances Spill Prevention and Control Act, TEX. WATER CODE, Section 26.261 et seq., as amended; (c) petroleum or petroleum-based products (or any derivative or hazardous constituents thereof or additives thereto), including without limitation, fuel and lubricating oils; (d) any “hazardous chemicals” or “toxic chemicals” under the Occupational Safet9 and Health Act, 29 U.S.C. Section 651 et seq., as 'amended; (e) any “hazardous waste” under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901et seq., as amended; and (f) any “chemical substance” under the Toxic Substance Control Act, 15 U.S.C. Section 2601 et seq., as amended. References to particular acts or codifications in thisdefinition include all past and future amendments there-to, as well as applicable rules and regulations as now or hereafter promulgated thereunder. SECTION 7. The City Manager, or their designee, is authorized to execute a quitclaim deed document evidencing the abandonment of the Subject Easement, suitable for recordation in the Real Property Records of Denton County, Texas. SECTION 8. Notwithstanding anything to the contrary contained in this Ordinance, the City of Denton retains and reserves any and all easements, rights of way, and any other rights or interests, other than the Subject Easement abandoned, released and vacated in Section 2 above, whether acquired, obtained, owned, or claimed by the City of Denton or public, by, through, or under conveyance, dedication by plat, or other express dedication, implied dedication, prescription, or by any other manner or means, in or to lands in which the Subject Easement may cover, encumber, include, cross, or overlap. SECTION 7. The provisions of this Ordinance are severable, and the invalidity of anyphrase, clause, or part of this Ordinance shall not affect the validity or effectiveness of theremainder of the Ordinance. SECTION 8. This Ordinance shall become effective immediately upon its passage and approval. Page 3 ThI )ndl foI! linance was made the b, '/Z,44>ya a/Cordinance was passed and approved bysec the Aye ./ Nay Abstain Absent Mayor Gerard Hudspeth:Vicki Byrd, District 1 :Brian Beck. District 2: Jesse Davis. District 3 : Alison Maguire, District 4:Brandon Chase McGee, At Large Place 5 : Chris Watts, At Large Place 6: ,/ PASSED AND APPROVED thi, th, /j '] day of £} aJax,/ , 2022. /7 ’# -SPETH, MAYORr) ATrEST: ROSA RIOS, CITY SECRETARY \\\\111111/ APPROVED AS TO LEGAL FORM: MACK RENWAND, CITY ATrORNEY By. Benjamin Samples %;iV*-A: A,---–'–‘ Page 4 Exhibit A HeR ImmM®T–--ITiglm I:A:iF Solq11J!I!Hi IEbp!qII IIF 1E ]AJr II)hiIIJILS}}HNowAUM£NW TiEnHE PR mENrw: THAT PHILO LUGINBYIU, and wife, JQANN LUGINBYHL GH:96 bI Dent_on Corny, Texas , bI wa3ld€aU gn tIl tIle mm of $ 1.DO md oDIn MatH wHile condduzliw In hand laid by city of Denton receIpt of wIdeR is hereby &dm6vtedre lb & by then pn3m€g nutt, baID&b 6el1 8114 canny unto to City of Denton , tlb Iru end uniatunpted UG IIluV Ind pM lego of th8 passage in, along, upon &nd nun the folkwial duerRrr#pnwty, All of that certain 0.121 acre tract or para,1 of landl ewnetl by . Sitwtea in Denton Cklunly, Tex8B in the A,E,P, & P,R,R, Surrey, Abstract Na 1479; said tract being a Beginning for the southeast corner of this tract at a tx>is dIal-cst&e, the southeast corner of said tract I Thence Rest with southline of said tract 8 distance of 35,O feetto a point f01 tIle southwest corner of this tract: Thence North a distance of ISO,0 feet to a poInt for the north_west corner of this tract J ;iIj:C:rE: it ioeii: in::rife:: Lori FEEI:=fat.RiDEr!:t the eastline of Thence S08th with said eastlin8 a distance of 1508 o feet to pointof beginning, a : !I I I iI Ii I ) I }tIi I !ii AId hb !RaIn +raId that the Bald Philo Luginbyhl and Joann Luginbyhl h conridu&Hon ot the berwfi is 8bov8 6eE out, vlll ie mere trorn the prolnrty above dn£rR#d, nch latter, buiJdi6g& and other ob3huc liea8 as msr in! be latIn<1 upon un pnwrty, (Drainage Easement) Fta the iwrWe of constructing and maIntaining drainage faciIItIes , in, 8krn& uInn and ur03s mid pnKlsH, HIb the right sad prjy8€Ee ot all times of the grante8 tania, his or its 8gtat8, enlpto}ze s. bDrkme6 8nd lepre3cnt8t iva having iagYe39, 8gTB3, asd regTe38 in, along upon and acu&i said Dremjgw for the WInn of nlakia: 8ddltiou3 to, iir3provanen is on ona repdn to the gaiadrainage faciIIties or my part thanet eo HAVE AND TOHOLD Bnto nIe Ban CIty of Denton the pulIMeg 8fotaaid the prenrl8e9 abe?e de$aibcd. { } iti as 8fOfeBald forIt II A.'D. 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