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2008-058s:\our documents\ordinances\08\sfl orclinance.doc ORDINANCE NO. ~/J//R- D,J ,~ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO APPROVE AN ENCROACHMENT AGREEMENT BETWEEN THE CITY OF DENTON AND SFT INDUSTRIAL, L.P. TO ALLOW THE INSTALLATION OF TWO STAINLESS STEEL ETHANOL TRANSFER LINES AND ELECTRIC CONDUIT AND SERVICE LINES AND RELATED APPURTENANCES WITHIN AN EXISTING CITY OF DENTON PUBLIC ACCESS AND FIRE LANE AND UTILITY EASEMENT; SAID TRACT BEING DESCRIBED AS A 43 SQUARE FOOT TRACT OF LAND SITUATED IN THE O. S. BREWSTER SURVEY ABSTRACT NO. 56, BEING PART OF LOT 1B, BLOCK 1 OF GRANITE POINT ADDITION, PHASE 1, AN ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN CABINET W, SLIDE 753-757, PLAT RECORDS, DENTON COUNTY, TEXAS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, The City Council finds that approval of the Encroachment Agreement attached hereto and made a part hereof by reference (the "Agreement") is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The findings and recitations contained in the preamble of this resolution are incorporated herein by reference. SECTION 2. The Agreement is hereby approved. The City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City and to carry out the City's rights and obligations under the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval., PASSED AND APPROVED this the ~ day of 2 , 2008. PERK R. McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CIT1Y S/E~CRETARY BY: / X APP VED O LEGAL F RM: BY: EDWIN SNYD CITY ORNEY Page 2 NOTICB OF CONFIDBNTIALITY RIGHTS: IF YOII AR8 A NATIIRAL PBRSON, YOII MAY R8MOV8 OR 3TRIR8 ANY OR ALL OF TH8 FOLLOS9ING INFORMATION FROM ANY INSTRIIDl~NT THAT TRANSFBRS AN INT8R83T IN RBAL PROPBRTY 88FOR8 IT IS FILBD POR RBCORD IN TH8 PIIBLIC RBCORDB: YOIIR SOCIAL SBCIIRITY NII1~BR OR YOIIR DRIVBR'S LICSN38 NIIMBSR. ENCROACHMENT AGREEMENT WHEREAS, SFT INDUSTRIAL, L.P., a Texas limited partnership, of Collin County Texas, (hereinafter referred to as "LICENSEE"), has requested permission to use an area within the boundaries of an existing CITY of Denton (the "CITY") Public Access and Firelane and Utility Easement ("CITY EASEMENT") as defined below, located in Denton County, Texas for the installation of two stainless steel ethanol transfer lines and electric conduit and service lines and related appurtenances (the "ENCROACHING FACILITY"); and WHEREAS, the ENCROACHING FACILITY will be located within that portion ofthe CITY EASEMENT and more particularly described as a 43 square foot parcel in Exhibit "A" and illustrated in Exhibit "B" attached hereto and made a part hereof by reference (the "ENCROACHMENT AREA"); and WHEREAS, LICENSEE has entered into this agreement to set forth certain responsibilities that it has under this Agreement; and WHEREAS, The CITY of Denton, Texas ("CITY") hereby grants permission and license to LICENSEE to the locate, maintain and repair the ENCROACHING FACILITY within the ENCROACHMENT AREA, subject to the following terms and conditions: 1. It is understood and agreed that the CITY only holds EASEMENT interests for the CITY EASEMENT portion of the ENCROACHMENT 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. This agreement shall extend to and be binding upon LICENSEE and its heirs, successors, and assigns, and is not to be interpreted as a waiver of any rights held by the CITY under CITY's EASEMENT. 2. The ENCROACHING FACILITY shall be constructed in such a manner, as not to interfere with the CITY facilities and shall be limited to and constructed in accordance with the City of Denton Development Code requirements. LICENSEE shall be required to obtain a building permit from the City of Denton prior to installation and placement of the two stainless steel ethanol transfer lines and electric conduit and service lines. When referring to the ENCROACHING FACILITY within this agreement such term shall mean the ENCROACHING FACILITY constructed in accordance with the PLANS AND SPECIFICATIONS and Authorized Modifications, if any. The CITY reserves the right to limit excavation within the ENCROACHMENT AREA and/or to require specific construction methods (including trench shoring or dry bore and casing installation techniques) for any proposed utility work that may be permitted by this agreement. These limitations or construction methods shall be included in the construction PLANS AND SPECIFICATIONS for any work performed within the ENCROACHMENT AREA. In addition, the LICENSEE shall provide adequate inspection and coordination with the CITY to insure the contractor adheres to these items during construction. 3. The ENCROACHING FACILITY is subordinate to the CITY's facilities and rights under the CITY EASEMENT, including without limitation, utilities and related facilities located now or in the future within the ENCROACHMENT AREA. In the event the CITY repairs, expands, or adds to its facilities within the ENCROACHMENT AREA, and in the CITY's sole opinion it is necessary that the Encroaching Facilities be mod~ed, 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 FACILITY, 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 LICENSEE' sole cost and expense without any liability to CITY for such action. 4. LICENSEE shall defend, indemnify and hold harmless the CITY, its employees and agents from and against any and all claims, expenses, (including attorney fees), damages, losses and judgments arising out of or incident to the presence, construction, operation and maintenance ofthe ENCROACHING FACILITY. Before performing anyworkwithin the ENCROACHMENT AREA, LICENSEE and its agents or contractors shall provide to the CITY such certificate or cert~cates of insurance complying with the CITY's insurance requirements prior to construction or placement of the ENCROACHING FACILITY. 5. LICENSEE and it's successors and assigns to, shall purchase and maintain General Liability Insurance naming the CITY as an "additional insured" for damages arising from the construction and maintenance of the two stainless steel ethanol transfer lines and electric conduk and service lines and related appurtenances with a limit of not less than $250,000.00 for each person and $500,000.00 for each single occurrence for bodily injury or death and $100,000.00 for each single occurrence for injury to or destruction of property' . 6. LICENSEE will limit the cuts needed in the ENCROACHMENT AREA crossing zones required for construction of the ENCROACHING FACILITY to prevent construction equipment from damaging existing CITY facilities or public utilities located within the ENCROACHMENT AREA and adjacent areas. 7. It is agreed that no trash dumpsters, toxic substances or flammable material will be allowed on or in the ENCROACHMENT AREA. 8. The CITY will not be responsible for any costs of construction, operation and maintenance of LICENSEE'S ENCROACHING FACILITY. It is further agreed that the CITY shall not be liable for any damage to the ENCROACHING FACILITY as a result of the CITY's use pursuant to its EASEMENT. If any CITY property is damaged or destroyed by LICENSEE or its agents it may be repaired or replaced by the CITY at LICENSEE's expense and payment is due upon LICENSEE's receipt of an invoice from the CITY. 9. Grading, if any, shall be done in order to leave the ENCROACHMENT AREA and EASEMENT in as near as possible to its present condition. Spoil dirt and all trash shall be removed from these areas. 10. Construction equipment and materials shall not be stored on the ENCROACHMENT AREA or EASEMENT orright-of--way areas during construction. 11. It is understood and agreed that, in case of defauR by LICENSEE or its agents in any of the terms and conditions herein stated and such default continues for a period often (10) days after the CITY notifies LICENSEE of such default, the CITY may at its election forthwith terminate this agreement and upon such termination all of LICENSEE's rights hereunder shall cease and come to an end. This agreement shall also terminate upon the abandonment of the ENCROACHING FACILITY. 12. This agreement shall be construed under the laws of the State of Texas and is fully performable in Denton County, Texas. Dated to be effective as of the ~lday of 7/ , 2008. CITY OF DENTON, TEXA BY: ? ~ GEORGE C. CAMP ELL CITY MANAGER 215 E. McKinney Denton, Texas 76201 ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ~ , APPROVED AS TO FORM: EDWIN SNYDER. ~EITYAV BY: David R. Cunningham, Director, Development/Construction Name Printed and Title ACKNOWLEDGEMENT THE STATE OF TEXAS COUNTY OF~(QQl This instrument was acknowledged before me on ~ ,2008, by George C. Campbell, City Manager of the CITY of D TON, Texas, on behalf of such municipality. N ary Public in and for the State of Texas .•~,':~~~: JANE E. RICHARDSON /~ '`~' Notary Public, State of Texas My Commission Expires: ~o o~ ' '• F My Commission Expires ~:~~f .n„e~~,,,n Juna 21. 2009 ACKNOWLEDGEMENT THE STATE OF Texas § COUNTY OF Conin § This instrument was acknowledged before me on February, 21 , 2008, by David R. Cunningham (Name), director, oev. s const. (Title) SFT Industrial, L.P. ~~~~~~ 91CBII nU ~~'''.~ ~~ C ~.. ~ ~/~ i N i (7: G9 •~ ~•Idf. <.~FJb .MIN\\\\ Notary P li a r the State of Texas My Commissi xpires: oaiosizo~o UPON FILING, PLEASE RETURN TO: City of Denton Engineering Department Attn: Paul Williamson 901-A Texas Street Denton, TX 76209 .I ~ RIGHTAF-WAY AGREEMENT ENCROACHMENT No.1 FIELD NOTES EXHIBIT "A" BEING 43 square feet of land located in the O.S. BREWSTER SURVEY, Abstract No. 56, Denton County, Texas, being a portion of Lot 16, Block 1, Granite Point, Phase 1, as shown by the plat recorded in Cabinet "W", Pages 753=757 of the Plat Records of Denton County, Texas, and being more particularly described by metes and bounds as follows: BEGINNING at a point lying N 53°48'00"E, 625.40 feet from the Southwest comer of said Lot 1 B, and lying in the West line of a 26 foot wide Public Access and Firelane & Utility Easement as shown by aforementioned plat, said point being the beginning of a Curve to the Right; THENCE NORTHEASTERLY along the West line of said 26 foot wide Public Access and Firelane & Utility Easement, 1.67 feet along said Curve to the Right, having a radius of 78.00 feet, a central angle of 01°13'35" and a chard bearing N 01 °55'26"E, 1.67 feet to a point at the end of said Curve to the Right; THENCE N 88°33'33°E, 26.09 feet to a point in the East line of said 26 foot wide Public Access and Firelane & Utility Easement, being the beginning of aNon-Tangent Curve to the Left; THENCE SOUTHWESTERLY along the East line of said 26 foot wide Public Access and Firelane & Utility Easement, 1.67 feet along said Non- Tangent Curve to the Left, having a radius of 52.00 feet, a central angle of 01°50'37" and a chord bearing S 03°36'37"W, 1.67 feet to a point at the end of said Non-Tangent Curve to the Left; THENCE S 88°33'33"W, 26.05 feet to the PLACE of BEGINNING containing 43 square feet of land. 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