24-189ORDINANCE NO. 24- 189
AN ORD[NANCE OF THE CITY OF DENTON, A TEXAS HOME RULE MUNICIPALITY,AUTHORIZING THE CITY MANAGER, OR DESIGNEE, TO EXECUTE ANENCROACHMENT ON EASEMENT AGREEMENT BY AND BETWEEN THE CITY OF
DENTON, AS GRANTOR, AND DENTON ANUSA, LLC, AS GRANTEE, FOR THEPURPOSE OF THE CONSTRUCTION AND PLACEMENT OF PRIVATE IMPROVEMENTS
THAT ENCROACH INTO A CITY OWNED ELECTRIC UTILITY EASEMENT, RECORDEDIN DOCUMENT NO. 2015-42438 OF THE OFFICIAL PUBLIC RECORDS OF DENTON
COUNTY AND BEING LOCATED IN THE G. WALKER SURVEY, ABSTRACT NO. 1130,
CITY OF DENTON, DENTON COUNTY, TEXAS; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City is the holder of an electric utility easement on the Property that was
dedicated by separate instrument and recorded in document number 2015-42438 of the official
public records of Denton County, Texas (the "Reserved Easement"), for the purpose of erecting,
operating, maintaining and servicing thereon one or more underground and/or aboveground
electric transmission and electric distribution power and/or communication lines on the Property
(“City Electric Facilities”); and
WHEREAS, DENTON ANUSA, LLC is the owner of approximately 6.9791 acres of land
located in the Gideon Walker Survey, Abstract Number 1130, City of Denton, Denton County,
Texas (the "Property"); and
WHEREAS, ANUSA, LLC has requested permission to use the City’s Reserved Easement
to construct and install the following facilities: retaining wall, vehicle parking, drive paths, curbs,
storm lines, underground electric conduit and conductor, underground water line, underground fire
water line, storm water headwall, fence and gates, underground sanitary sewer line, signs subject
to clearance requirements, light standards subject to clearance requirements, and shrubs subject to
clearance requirement (“Encroaching Facilities”); and
WHEREAS, City staff has reviewed DENTON ANUSA, LLC’s encroachment request and
determined it will have little impact on the public infrastructure currently in place; and
WHEREAS, the City Council has considered the request and staffs recommendation of
approval and it of the opinion that it should be granted; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDA INS:
SECTION 1. The recitals contained in the preamble of this Ordinance are incorporated as if set
out fully herein.
SECTION 2. The City Manager, or designee, is hereby authorized to execute the Encroachment
Agreement by and between the City of Denton and DENTON ANUS A, LLC as attached hereto asExhibit "A."
SECTION 3. The City Manager is further authorized to carry out all duties and obligations of the
City pursuant to the Encroachment Agreement.
SECTION 4. This ordinance shall become effective immediately upon its passage and approval.
The motion to approve this ordinance was made by h, J,_ Cha nc6aand seconded by
, the ordinance was passed and approved by the following vote [ –- ]
Aye Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck, District 2 :
Paul Meltzer, District 3 :
Joe Holland, District 4:
Brandon Chase McGee, At Large Place 5 :
Chris Watts, At Large Place 6:
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PASSED AND APPROVED thi, th, aN- d,y ,f f:bf ,,,V , 2024.
GERARD HUDSPETH, MAYOR
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BY
:ECRETARY
APPROVED AS TO LEGAL FORM:
MACK REINWAND, CITY ATTORNEY
BY:Wanda ?2 JaNg& d\a nn=-ndn++a:UI
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ENCROACHMENT ON EASEMENT AGREEMENT
STATE OF TEXAS §
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§COUNFY OF DENTON KNOW ALL BY THESE PRESENTS :
This Encroachment on Easement Agreement (this “Agreement”) is entered into this
IOt- day of ahrb+++ y , 2024 (the “Effective Date”) by and between CITY OF
Denton (the “City”) and Denton ANUSA, LLC, a Delaware Limited Liability Company
(“ANUSA”), an entity authorized to do business in the State of Texas.
RECITALS
WHEREAS, ANUSA is the owner of approximately 6.9791 acres of land located in the Gideon
Walker Survey, Abstract Number 1130, City of Denton, Denton County, Texas, more particularly
described in Exhibit " A’' attached hereto and made a part hereof (the "Property") and
WHEREAS, the ANUSA utilizes the Property for the purpose of operating a new or usedautomobile dealership and/or any service ancillary, incidental or related thereto (“ANUS A
Business Operations”); and
WHEREAS, City is the holder of an electric utility easement on the Property that was dedicated
by separate instrument and recorded in document number 2015-42438, attached hereto as Exhibit
B, of the official public records of Denton County, Texas (the "Reserved Easement"), for the
purpose of erecting, operating, maintaining and servicing thereon one or more underground and/or
aboveground electric transmission and electric distribution power and/or communication lines onthe Property (“City Electric Facilities”); and
WHEREAS, ANUS A has requested permission to use an area of such property that is within theboundaries of City of Denton’s Easement for the following facilities (hereinafter, each, an
“Encroaching Facility”, and collectively, the “Encroaching Facilities”):
e Retaining Wall
Vehicle Parking•
• Drive Path
• Curbs
• Storm Line
• Underground Electric Conduit and Conductor
• Underground Water Line
• Underground Fire Water Line
• Storm Water Headwall
• Fence and Gates
• Underground Sanitary Sewer Line
• Signs subject to clearance requirements
• Light standards subject to clearance requirements
• Shrubs subject to clearance requirements
WHEREAS, the Encroaching Facilities intersect with the Reserved Easement, in an area more
particularly described in Exhibit "B" attached hereto and made a part hereof (the "EncroachmentArea"); and
WHEREAS, the development of the Property will provide benefits to the City through increasedrevenue from electric sales, sales tax, and developer employment.
NOW, THEREFORE, for and in consideration of the covenants and conditions herein set forth
and other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged ANUSA and the City agree as follows:
The Encroaching Facilities and the rights of ANUSA to install such Encroaching Facilities aresubject to the following terms and conditions:
1.It is understood and agreed that the City holds a Reserved Easement and Cityacknowledges receipt of the Site Plan, attached hereto as Exhibit B, and consents to the
construction of the Encroaching Facilities within the Encroachment Area, as set forth inthe Site Plan, and subject to compliance by ANUS A with the conditions and
requirements stipulated in this Agreement. Any future changes to the EncroachingFacilities not shown on the Site Plan will require ANUS A to obtain all rights andpermissions that are necessary to install and maintain the Encroaching Facilities. This
Agreement shall extend to and be binding upon ANUS A and is not to be interpreted asa waiver of any rights held by City of Denton under the Reserved Easement.
2 ANUSA AGREES AND IS BOUND TO DEFEND, INDEMNIFY AND HOLDTHE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES, HARMLESSAGAINST ANy AND ALL CLAIMS LAWSUITS, JUDGMENTS, COSTS,ATTORNEYS’ FEES AND EXPENSES FOR PERSONAL INJURY(INCLUDING DEATH), PROPERTY DAMAGE, ENVIRONMENtALCONrAMiNATiON AND LIABILITY FOR DAMAGES OR ANY HARM FORWHICH RECOVERY OF DAMAGES OR CIVIL OR CRIMINALENFORCEMENT IS SOUGHT THAT MAY BE SUSTAINED BY THEPROPERTY, ENCROACHMENT AREA, ENCROACHMF,Nr FACILrrIES,TIDE RESERVED EASEMENr AND/OR ANY i&aROVEMENTCONSTRUCTED THEREON AS A RESULT OF OR BE OCCASIONED BY
THE USE, OCCUPANCY, AND MAINTENANCE OF THE ENCROACIDWENTFACILITIES, FROM ANY ACT OR OBassioN OF AIW REPRESENtATIVE,AGENT, CUSTOMER, AND/OR EMPLOYEE OF ANUSA. OR ANUSA’SBREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT, OR BY ANY NEGLIGENT OR STRICTLY LIABLE ACT ORONnssioN ANUSA, OR ITS OFFICER, AGENTS, EMPLOYEES ORSUBCONTRACTORS IN THE USE, OCCUPANCY, AND MAINtENANCE INTHE ENCROACHMENr FACILITIES, OR ANUSA'S INSTALLATIONS AND
IMPROVEMENT WIFHIN THE ENCROACHMENr AREA OR DIRECTLYOR INDIRECTLY RELATED TO, ARISING FROM OR ATTRIBUTABLE TOTHE C'ITY ALLOWING THE ENCROACHMENT FACILITIES, ANDFURTHER FOREVER COVENANTS AND AGREES NEVER TO FILE ANYCLAIM, LAWSUIT OR OTHER LEGAL ACTION AGAINST THE CITY ONANY GROUNDS WHATSOEVER FOR ANY DAMAGE SUSTAD(ED BY THEENCROACHMENT AREA AND/OR ENCROACHMENT FACILmES AS ARESULT OF OR DIRECTLY OR INDIRECTLY RELATED TO, ARISINGFROM OR ATTRIBUTABLE TO THE CITY ALLOWING THEENCROACHMENT AREA AND/OR ENCROACHMENT FACILITIES.
3.ANUSA IS AND AGREES TO BE LIABLE AND FULLY RESPONSIBLE FORANY COSTS AND REPAIRS REQUIRED TO THE CITY ELECTRICFACILITIES AS A RESULT OF DAMAGE CAUSED DURING OR AFTERCONSTRUCTION OF THE ENCROACHING FACILITIES AND AS A RESULTOF OR DIRECTLY OR INDIRECTLY RELATED TO, ARISING FROM ORATTRIBUTABLE TO THE ENCROACHMENT FACILITIES. ANUSA SHALLREIMBURSE THE CITY FOR THE COST OF SAME IMMEDIATELY UPONDEMAND AND WRITTEN EVIDENCE OF SUCH COSTS. ANY SUCH COSTSSUALL ACCRUE INTEREST FROM THIRY (30) DAYS FOLLOWING THEDATE OF THE CITY'S DEMAND UNTIL PAID BY ANUSA AT THE LESSEROF EIGHTEEN PERCENT (18%) PER ANNUM AND THE MAXIMUMLAWFUL RATE APPLICABLE TO SUCH PARTIES AND TRANSACTIONS.
4,Use ofdraglines, cranes, or other boom-type equipment in connection with any work tobe performed in the Easement Area by ANUS A, its employee’s agent’s representativesor contractors 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 boom-typeequipment be within BReen feet of the City of Denton power lines situated on the
aforesaid property. ANUSA must notify City of Denton Electric Dispatch at 940-349-
7000, 48 hours prior to the use of any boom-type equipment on the easement.
5 If in the future any of the Encroaching Facilities, in the sole judgment of City, does
interfere with the use or enjoyment of the Reserved Easement, City shall have the right
to require removal and/or relocation of the interfering Encroaching Facilities. City shall
notify ANUSA in writing, that within 180 days of receipt of such notice, the EncroachingFacilities must be removed and/or relocated at ANUS A’s sole cost. City shall not be
responsible, nor will compensation be paid, for damages incurred by such removal.However, in an emergency, City shall have the right to immediately remove theEncroaching Facilities at City’s expense. Notwithstanding anything contained in this
Section 5, City hereby acknowledges and agrees that the Encroaching Facilities, in lightof the terms of this Agreement and as set forth herein, do not on the date of this
Agreement interfere with the use or enjoyment of the Reserved Easement by City andCity expressly consents to the Encroaching Facilities’ location as set forth in the attached
exhibits. Notwithstanding anything to the contrary contained in this Agreement, the City
agrees, in the event of required removal and/or relocation of the Encroachment Facilities,that it will cooperate with ANUSA to work to find an alternative accommodation withinthe Encroachment Area. . If an alternative accommodation is not found, City shall not
tx held liable nor tn responsible for any resulting affects to ANUSA BusinessOperations. Nothing in Section 5 is to be interpreted as a waiver of any rights held by
City of Denton under the Reserved Easement.
6.It is expressly understood and agreed that the property has transmission or distributionfacilities located thereon, then, except for the Encroaching Facilities, ANUS A shall notplace upon the Easement Area any improvements, including but not limited to,
buildings, houses, car washes, trash dumpsters, or trees, unless approved in writing by
City, which approval shall not be unreasonably withheld.
7. City reserves the right to conduct vegetation management activities in all areas covered
by the Easement Area. ANUS A agrees that the Encroaching Facilities may not increase
or reduce the elevation of the existing grade except as expressly permitted herein.
8. The City may continue to operate, maintain, expand, repair and replace the City ElectricFacilities and any future uses of the Reserved Easement, as it deems necessary,
appropriate or convenient in its sole and unqualified discretion.
9. It is agreed that no toxic substances or flammable material in violation of any applicablelaws will be allowed on the Encroachment Area.
10. During the term of this Agreement, ANUSA shall, at its sole cost and expense, maintain
the Encroachment Facilities and any other improvements constructed thereon by
Work”
ANUSA in a state of good repair in accordance with applicable laws and ordinances and
in accordance with maintenance standards applicable to safeguarding Encroaching
Facilities within the Reserved Easement and pursuant to this Encroachment Agreement.
ANUSA shall keep Encroachment Facilities clean and Ree from debris, silt, and any
substance which would result in unsanitary conditions or obstruct the safe operation ofthe Encroachment Facilities within the Encroachment Area. Collectively all of the
forgoing described in Section 8 being hereinafter referred to as the “Maintenance
11. City shall not be responsible for any costs of construction, operation and maintenanceof ANUSA’s Encroaching Facilities. It is further agreed that City shall not be liable for
any damage to the Encroaching Facilities herein agreed to as a result of City’s use
pursuant to its Reserved Easement, except to the extent caused by the willful misconductor gross negligence of the City or its employees, agents, representatives or contIactors.
Any City of Denton property within the Encroachment Area damaged or destroyed byANUSA or its agents shall be repaired or replaced by City of Denton at ANUS A’s
expense and payment is due within 30 days upon ANUSA’s receipt of an invoice aomCity of Denton including written evidence of such costs.
12. Blasting is not permitted on the Reserved Easement.
13. Grading shall be done by ANUSA, at its sole cost and expense, in order to restore the
Encroachment Area to its previous physical condition or in as nearly as possible to
present condition following completion of the Encroachment Facilities. Spoil dirt and
all trash shall be removed from the Reserved Easement following completion of theEncroachment Facilities. Slopes shall be graded so that City vehicles may transit the
Reserved Easement when required to maintain City’s facilities. No grading or other
activity may result in elevating the grade of the land within the Reserved Easement.Notwithstanding anything in this Section 13 to the contrary, all grading shall be
performed in accordance with the approved construction plans for the Encroaching
Facilities as set forth in the exhibit(s) attached hereto.
14. A 20’ zone around each transmission pole shall remain unmodified. No grading, aboveground, or underground facilities shall be installed in this zone.
15. The Reserved Easement shall be protected from washing and erosion by a method
approved by City of Denton. Notwithstanding anything in this Section 15 to the
contrary, all washing and erosion control measures installed by ANUSA shall be
performed in accordance with the approved Storm Water Pollution Prevention Plan
(SWPPP) and the construction plans for the Encroaching Facilities as set forth in the
exhibit(s) attached hereto.
16. Construction equipment and materials utilized by ANUSA shall not be stored on theReserved Easement during construction. In addition, no recreational vehicles, travel
trailers, vehicles other than ANUS A inventory, materials, or equipment may be storedwithin the Reserved Easement.
17. ANUS A shall construct the Encroaching Facilities in material compliance with the
approved plans and the site plan and the terms, conditions, covenants, and contingenciesstipulated in this agreement. Any material changes and/or modifications are subject to
approval by the Director of Development Services, or his or her designee, which
approval shall not be unreasonably withheld.
18. ANUSA shall submit to the City for review and approval true and correct plans and
specifications, together with any other requested supporting documentation, for any
improvement prior to construction. ANUSA may not construct any improvement
without the City’s prior written approval, which approval shall not be unreasonablywithheld. ANUSA shall construct any improvement in strict compliance with theapproved plans and specifications and the terms, conditions, covenants, and
contingencies stipulated in this Agreement. Review and approvals shall be performedby the Director of City’s Developmental Services, or his/her designees.
19. ANUSA shall not assign any of its rights under this Agreement, including, but notlimited to, rights in any Encroaching Facilities, and shall not delegate any performance
under this Agreement, except with the prior written consent of City to any of the same,
in City’s sole discretion, provided however, that, ANUSA may transfer, assign, subletor change ownership without the prior consent of the City to: (a) an affiliate, subsidiary
or parent entity of ANUSA; or (b) any entity it controls, is controlled by, or is under
common control with ANUS A, (“Affiliated Transfer”). ANUSA shall promptlyprovide the City with written notice of any such Affiliated Transfer and the transferee
shall enter into a new agreement with the City. As a condition of obtaining such consent,
the City reserves the right to require the transferee receiving any such rights from Lessee
to execute a new encroachment agreement provided by City. Regardless of City’s
consent, Lessee shall not be released from any obligations for matters arising during the
time when this Agreement was in effect. Any purported assignment or delegation ofrights or delegation of performance in violation of this section is void.
20. If any term, provision, covenant or agreement contained herein or the application thereof
to any person, entity or circumstance shall be held to be invalid, illegal or unenforceable,the validity of the. Remaining terms, provisions, covenants, or agreements or the
application of such remaining terms, provisions, covenants, or agreement to persons,entities or circumstances, other than those which are held to be invalid or unenforceable,
shall not be affected thereby.
21. No modification, amendment, innovation, renewal or other alteration of this Agreement
shall be effective unless mutually agreed upon in writing, duly authorized and executed
by the parties hereto. Denton City Council shall approve any such modification,
amendment innovation, renewal or other alteration. Any alteration, addition or deletion
to the terms of this Agreement which are required by changes in federal or state law are
automatically incorporated herein without written amendment to this Agreement and
shall be effective on the date designated by said law.
22. This Agreement shall be governed by and construed in accordance with the laws of theState of Texas, without regard to conflicts laws or choice of law rules thereof. Exclusive
venue for any litigation between the parties hereto shall be in Denton County, Texas.
23. Each party represents to the other that by its signature below, to each such party’s
respective knowledge and belief, no other consents or approvals are necessary or requiredto be obtained as to any of their respective obligations under this Encroachment
Agreement.
24. This Agreement and exhibits attached hereto contain the entire agreement between the
parties hereto with respect to the subject matter hereof. Any prior correspondence,
memoranda, or agreements are superseded in total by this Agreement and exhibits hereto.
ANUSA has not relied upon any promises, inducements, or representations of the City or
its agents or employees, except as may be set forth herein.
25. This Agreement may be executed in several counterparts by one or more of the
undersigned and all such counterparts so executed shall together be deemed and constitute
one final Encroachment Agreement, as if one document had been signed by all partieshereto
26. An executed counterpart of this Agreement shall at ANUSA’s sole cost and expense berecorded in the Deed Records of Denton County and Rains County, Texas.
Executed this day of , 2023, by CITY, signing by and through
its City Manager and by Denton City Council Ordinance No. 23- , approved by City
Council on , and by Denton ANUSA, LLC, acting through its dulyauthorized officials.
ACCEPTED AND AGREED:APPROVED:
DENTON ANUSA, LLC :City of Denton:
a Texas Limited Liability Company
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Name: C. Coleman Edmunds Name: Sara Hensley
Title: Manager Title: City Manager
Date: 2'ZD'Z62q Date :2/28/2
ACKNOWLEDGEMENTS
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Exhibit A
BEING a 6.9791 acre tract of land located in the Gideon Walker Survey, Abstract Number 1330,
City of Denton, Denton County, Texas, said 6.9791 acre tract of land being a portion of a called
7.928 acre tract of land conveyed to Nahid DinaH, Trustee of The Joseph and Soraya Fletcher
Irrevocable Gift Trust, by deed thereof 61ed for record in Denton County Clerk's InstrumentNumber (D.C.C.I. No.) 2005-128790, Official Public Records, Denton County, Texas(O.P.R.D.C. T.), said 6.9791 ame tract of land being more particularly described by metes andbounds as follows:
BEGINNING at a 5/8 inch iron rod found at the north property corner of the said 7.928 acre tract,
same being the east lot corner of Lot 1, Block A, Lissberger Addition, being an Addition to the
said City and State, according to the plat thereof filed for record in D.C.C.I. No. 1990-15413,O.P.R.D.C. T., said beginning point being on a southwest property line of that certain tract of land
conveyed to Dallas Area Rapid Transit, by deed thereof filed for record in D.C.C.I. No. 2010-
43 179, O.P.R.D.C.T., said beginning point also being at the beginning of a curve to the left havinga radius of 1273.57 feet;
THENCE along the northeast property line of the said 7.928 acre tract and along the said southwest
property line, with said curve to the left, an arc length of 923.85 feet, and across a chord whichbears South 67'’38'05" East, a chord length of 903.73 feet to a 5/8 inch iron rod found at the
northeast property corner of the said 7.928 acre tract, same being the northwest lot corner of Lot
1, Block A, Classic Cars Addition, being an Addition to the said City and State, according to theplat thereof filed for record in D.C.C.I. No. 2018-266, O.P.R.D.C.T.;
THENCE South 03'’16'3 1 " West, along the east property line of the said 7.928 acre tract and along
the west lot line of said Lot 1, Block A, Classic Cars Addition, a distance of 542.88 feet to a 3 inch
aluminum monument stamped "Texas Department of Transportation" found at a northeast propertycorner of a called 0.696 acre tract of land conveyed to the State of Texas, by deed thereof filed for
record in D.C.C.I. No. 2012-9736, O.P.R.D.C.T., and being on the northeast right-of-way line of
Interstate 35E (being a variable width public right-of-way);
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THENCE along the northeast property lines of the said 0.696 acre tract, same being the said right-
of-way line the following courses and distances:
North 45'49'38" West, a distance of 142.92 feet to a 5/8 inch iron rod with a cap stamped"SPOONER 5922" set;
North 53'’53’01" West, a distance of 297.62 feet to a 5/8 inch iron rod with a cap stamped"SPOONER 5922" set;
North 56'48'17'’ West, a distance of 251.65 feet to a 5/8 inch iron rod found;
North 50'’23’56" West, a distance of 505.74 feet to the north property corner of the said 0.696 acre
tract, and being on the northwest property line of the said 7.928 acre tract, same being the southeast
lot line of said Lot 1, Block A, Lissberger Addition, from which a 3/4 inch iron rod found bears
South 46'’24’48" East, a distance of 0.99 feet;
THENCE North 42'’34'27" East, along the said northwest property line and along the said southeast
lot line a distance of 204.65 feet to the point of beginning. containing 6.9791 acres (304,010 square
feet) of land, more or less.
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Exhibit B
[Site Plan and grading to be included.]