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2006-344CVIDCUMC-1Caick LOGL3-1ATamp'aap 26 Ordinance Upper Tmhi Ra,ional W,cuDswi wa,M F3sunm~M1 1ffi612-IEM+drc ORDINANCE NO. OD _3T1 / AN ORDINANCE GRANTING APPROVAL OF A SUB-SURFACE USE OF A PORTION OF THE DENTON BRANCH RAIUTRAIL ADJACENT TO THE SOUTH SIDE OF SHADY SHORES ROAD AT MILE POST 726.9 FOR THE PURPOSE OF A PUBLIC UTILITY EASEMENT IN ACCORDANCE WITH CHAPTER 26 OF THE TEXAS PARKS AND WILDLIFE CODE; PROVIDING FOR A PUBLIC UTILITY EASEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Section 26.001 of the Texas Parks of Wildlife Code provides that public land designated and used as a park may be used for a non-park purpose if the City Council finds after notice and hearing that there is not feasible and prudent alternative to the use of such land for the proposed project and the proposed project includes all reasonable planning to minimize harm to the park resulting from such use; and WHEREAS, the City of Denton desires to provide for a required public utility easement of approximately 118 linear feet across the trail for proper water utility services; and WHEREAS, The Upper Trinity Regional Water District desires to construct a water pipeline across the Denton Branch Rail/Trail since alternative options would not be feasible and prudent; and WHEREAS, the City provided notice in the Denton Record Chronicle on November 20, November 27 and December 4, 2006 of a Public Hearing to be held on December 12, 2006 in the Council Chambers to consider the alternatives to the use of City Park for the subject public utility easement; and WHEREAS, the City Council on December 12, 2006, received testimony at a public hearing on the issues of no feasible and prudent alternative to the use of the property for the proposed project and that the project includes all reasonable planning to minimize harm to the Denton Branch Rail/Trail resulting from the public utility easement; and WHEREAS, the City Council finds that the project does not fall within the purview of Section 253.001 of the Texas Local Government Code; and WHEREAS, the City Council finds that there is no feasible and prudent alternative to the use of the park land and that the subject water line project includes all reasonable planning to minimize harm to the park as a result of the project; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The Public Utility Easement and water pipeline proposed by the Upper Trinity Region Water District (the "Project") shall be constructed and maintained below the surface of the park property described in Exhibit A, which is attached hereto and made a part hereof for all purposes, and that the surface of the park after installation of the water line pipe CGIO MP1"ick LOCAGI\TemplChap 26 Ordinance Uppos Trinity Regional Wale, Oipic, mlv'~lioc Gsdoon MP ]36613-13-Woc shall be constructed in a manner so that the, park land may still be used by its patrons after completion of the Project in the same manner it was used prior to the Project. SECTION 2. A Public Utility easement which is revocable as required by law (National Trails System Act, 16 U.S.C. 1247(d)) shall be signed by the City Manager or his designee and approved by the City Attorney allowing the use of the park property for the Project as referenced above with appropriate provision to insure the, improvements are constructed in accordance with City Subdivision Rules and Regulations; protects the patrons using the park from injury and damage both during and after construction of the Project; compensates for the reasonable market value of the use herein granted and generally protects the health, safety and general welfare of the City. SECTION 3. During construction of the Project, temporary use of such additional park land necessary to stage the construction of the improvements may be approved by the Director of Parks and Recreation Department. However, at the completion of the construction activities for the Project such additional park land shall be restored to the condition to which it existed prior to the beginning of such construction activities. SECTION 4. The rights and benefits set forth in this ordinance may not be assigned without the express written consent of the City. SECTION 5. The findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. l~/~ PASSED AND APPROVED this the 4 day of 12006. PERRY Y McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY. By: " APPROVED AS TO LEGAL FORM: EDWIN M. SNY ER, CIT. ATTORNEY By: Page 2 of 2 EXIIIBIT "A" UPPER TRINITY REGIONAL WATER DISI-RI(71' SHADY SHORES PIPELINE REPLACEMENT PROJECT PARCEL 6A OWNER: CITY OF DENTON "RAILS TO TRAILS' PERMANENT WA'T'ER LINE EASEMENT M.E.P. & P.R.R. SURVEY, ABS. No. 911 DENTON COUNTY, TEXAS Being it 20' wide yx:nnmacnt water line easement out of the M.F.P & P.R.R. Survey, Abstract No. 411, and out of it 1.76 acre tract of land conveyed to the City of Denton "Rails to 'Trails- by warranty deed as recorded in Denton County Clerk's Instrument No, ID.C.C.I.No.) 93-1))53985 ofthe Deed Records of Denton County, Texas (D.R.D.C.T.), suit] pemnanctl wader line ctucmem being herein more particularly described by metes and bounds is follows: COM]%I ENC ING at a 5/S` iron aid thin III an northeast properly comer of the said City of Denton "Rails to Trials' tract, said commencing point being on the west property line of a 3-750 acre tract of land conveyed to Jeanette W. Dullon, by warranty deed as reworded in Volume 1642. Page 958 of the DA.D.C.T_ said commencing point being on the south right-of-way line of Shady Shot" Road, heing a variable width public right-of-way, said commencing porn also heing at the beginning of a non-langent curve to the right having a radius of 3840.01 feel; - THENCE in a Southeasterly direction, along the east property line aft he said Chy of Denton "Rails to Trails tract, along the .raid west property line of the Dutton vact and along the said curve through an arc length of 5.98 iect and across a chard having a direction of South 29' 11'24" East and a clwnl length of SA8 lect to the POINT OF BEGINNING, said point being or the beginning of a curve to the rigid having a radius of 3840.01 feet; TIIENCE, in a Souuteastcrly direction continuing along the said properly lines and along the said curve through an are length of t O.68 feet and across a chord having a direction of South 29003' 57" Fast and it choni length of lQ68 feet to at point; TIIENCE South 28° 59'39" Gast. continuing along the said properly lines, a distance of 11,95 heel to a point; THENCE North Sv 49' 51" West a distance of 117.70 feet to a point on the west property line of Said City of Danon "Bails to Trails tract, said point being on the cast right-of way line of Old Highway 77, said point also being at the beginning ol'u non-langent curve to the left having a radius ol'3740d1 feel; THENCE in a Northwesterly direction along the said propurty line, the said right-of-way line and along the said curve through an am length of 23.55 fay and across a chord having a direction of North 28° 42' 51" West and a chord length of 23.55 fmi to a point: TIIENCE South 86° 4fY 51" East a distance of 117.55 feet to the POINT OF BEGINNING containing 0.054 acres of land more or less. (Exhibit -A") Page I of 3 NOTE: The basis of hearings for this survey is the Texas State Plane NADS3. North Central Zone. The base stations used (or control on this survey are: PID Designation DH7149 TXSG SAGINAW CORS ARP DF89S6 'I`XDE DENTON COPS ARP DF8982 TXCO COLLIN CORS ARP Combined grid to surface scale factor: 1.000 1 4 93 8 09 All distances shown are surface. 'SURVEYORS CERTIFICATE' TO ALL PARTIES INTERESTED IN I ITLE TO THE PREMISES SURVEYED, 1 DO HEREBY CERTIFY THAT THE ABOVE LEGAL DESCRIPTION WAS PREPARED FROM PUBLIC RECORDS AND FROM AN ACTUAL AND ACCURA'I L SURVEY I.1PON THE GROUND AND THAT SAME. IS TRUE AND CORRECT. Company Name: Spooner and Assucistes,'Ine. By: Surveyors Name Eric Shaun Spoon" Registered Professional Land Surveyor. Texas No. $922 ~q'a4. y .iYn~ Yu iC n?n: ef.CUf i) Date orsurvcy:9-18-06 (Echibit'yi") Page 2 of3 a r0 IJ V a r O 2 N O W J N ~ O W p, M d'Y M1- O a Q N V rW~~o N N CL 2 K Q'J 1 p ,riaN N ~ p z W Z zZ O V N Z Q ~j 1 r j ~ f I i 0 ~ I N ~ W +I ~ 1= i ~ 1 ~ O = J I i z U W F N V ~ W J.,Q s?dV V N O wo, <M W i w O N w Z CJ V ~ N V 2 Q z _ev *'fm A M W J O O O W ~ VIP- ` Lj J W t as W y z 4n 0 'QQ LL~1 J w U U GVO ION W J^ ~ awv+ Wto 0 Om u~ ` 1- w p W O u1 f ce Q 0. ~ w O /\Ny r W N 3 / ~ N (A N~ aW I Zi Z F 5 W W W~Z Qtr (n Wo~Oa ~ N 1 . ~ J M U K O i } C 2 ~p > z J O D z m Uaa_ a W W d~ a W a W = d N Z I o 0 x cN ii x r~ -n NL ~ > liLn u eau ,~x Y v Yv Uie z Z Y. J ?ten-u-u, > an' ®Ywvr~V ttr.r 3A aa. a..n Diu JSO c,aa 'fir ir,~z. of r-vao~cu+ ~ Op Z K / M ~ N ~ ~N ~ 1- 'Y NN I V WNQJR'Oi V . Z K~ WT Z N / U b MP o 00_ N rc o O W Z Z vl r-K~ a~ W ~ I 0 y wZ o t V2~ :~Ya0 opz 1 oda a z Wz O~ti j /?-01~ Q Zw~ a Q / N n ° yl LJ ,-a x ~VN / ua; ma 0. 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PUBLIC UTILITY EASEMENT STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENT: COUNTY OF DENTON § That the City of Denton, Texas, a municipal corporation (Grantor), for and in consideration of the sum of $10.00 and other good and valuable consideration to the undersigned in hand paid by the Upper Trinity Regional Water Distict, a political subdivision of the State of Texas (Grantee), the receipt of which is hereby acknowledged and confessed, has granted and sold and does hereby grant and sell unto said Grantee, its successors and assigns, an easement for subsurface public utilities, under, across, and upon that certain real property described in Exhibit A attached hereto and made a part hereof by reference (the "Easement Area"), subject to the reversionary rights and privileges of Missouri Pacific Railroad Company (Railroad), its successors and assigns, and Grantor set forth in the Line Sale Contract between Railroad and Grantor of July 2, 1993, adopted pursuant to City of Denton Ordinance No. 93-177 and limited by 16 U.S.C. 1247 (d), section 8(d) of the National Trail System Act and subject to easements and licenses of record, interlocal agreements and Grantor's and its assigns perpetual and superior. right to maintain a trail system and/or a commuter rail system and expand the type and number of public utilities within Grantor's jurisdiction to maintain and operate within the Easement Area. The Grantee is acquiring this easement for the purpose of constructing, using and maintaining a public utility subsurface water line and in accordance with the such plans and specifications that are approved in advance in writing by Grantor (the "Approved Plans"). The Approved Plans shall best serve the public while at the same time protect the integrity of the existing railroad roadbed and accommodate the construction and maintenance of the Denton Branch Rail/Trail Project as envisioned by the interlocal agreement between the City of Denton and the Texas Department of Transportation dated November 7, 1997 and adopted pursuant to City of Denton Ordinance No. 95-227 as well as the construction and maintenance of a commuter rail system. Grantee, by taking possession of this easement (e.g., grading or preparing the railroad roadbed for a water pipeline) agrees to comply with the following terms: 1. Repair, modify or reconstruct the pipeline improvements (and customary uses attendant thereto) authorized above at Grantee's expense (a) if same is required for Grantor to comply with the interlocal agreement referenced in Ordinance No. 95-277 above or any agreement between Federal or State agencies required to receive funding for the construction and maintenance of the Denton Branch Rail/Trail Project (b) to repair, modify, reconstruct, install or construct Grantor's utilities in the Easement Area, , and (c) as may be necessary to provide for commuter rail service. 2. Repair and restore any improvements in the Easement Area, lawfully placed therein by Grantor, its agents, assigns, employees or independent contractors or by others pursuant to an easement, agreement or license granted by Grantor or its predecessor, the Railroad, damaged by the negligence of Grantee or its agents, employees, or independent contractors working in the easement area with Grantee's approval, in constructing and maintaining a utility wastewater easement. To the extent permitted by law, Grantee agrees to indemnify and hold harmless Grantor, its officers, employees, agents (which may include the Texas Department of Transportation) and independent contractors from all claims or liabilities due to activities of Grantee, its officers, employees, agents, and independent contractors. Additionally, to the extent permitted by law, the Grantee shall hold harmless the Grantor, its officers, employees, agents, assigns and independent contractors from any and all expenses, including attorney fees and . court costs which may be incurred by the Grantor and the entities above in privity with Grantor in litigation or otherwise resisting said claim or liabilities which might be imposed or the Grantor or those in privity with Grantor as a result of such activities by the Grantee, its officers, employees, agents or independent contractors. C:LL~uteeaNWSemnpWlvY\ImI SGtinylT=p N F"` KWLWU Trvup'memv This easement will terminate if the Easement Area is used other than in compliance with the specified use provided for in the Approved Plans. Any modification of the Rail/Trail crossing must be approved through the Chapter 26 process set forth in the Texas Parks & Wildlife Code. TO HAVE AND TO HOLD the above described easement, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said Grantee, its successors, and assigns forever. EXECUTED this zAayof g`td& 2 07. GRANTOR: CITY OF DENTON By G George C. Campbell City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS EDWIN M. SN; By:: STATE OF TEXAS COUNTY OF DENTON AL FORM: TY,ATTORNEY This instrument is acknowledged before me, on this a&-t-day of / V~cA fZ , "A by 6d?0a6a- t . Gj#"10 y;4-City Manager of the City of Denton, Texas, a municipal corporation, on behalf of said municipal corporation. LINDA HOLLEY e~R..ue 4~ ota ete of Tezas i,•' e Nry Public St M Commission Expires l~~~f'C~X/(/_ December 08, 2009 CI of Public, State of Texas ACCEPTED this o2G day of Feb. aao~ GRANTEE: UPPER TRINITY REGIONAL WATER DISTRICT By: G . Name: Thomas E. Taylor Its: Executive Director STATE OF TEXAS COUNTY OF DENTON § THOMAS E TAYLOR This instrument was acknowledged before me by EXECUTIVE DIRECTOR of the Upper Trinity Regional Water District on this the zR o - day of Feb. -2M6, and in the capacity therein stated on behalf of said entity. aoo7 J' i •'q~F'OFIt'"~. • Z 4i, OF AFTER RECORD~i, RETURN TO: Upper Trinity Regional Water District P.O. Drawer 305 Lewisville, Texas 75067 Page 4 of 4 - UTILITY EASEMENT ~1~-c Notary Pu lic, State f Texas (MYDOC:EASEMENTI N FO%UTI LEASEM ENTDOCIUTRW D.BS) F.XII IBIT "A" UPPER TRINITY REGIONAL WATER DISTRICT SHADY SHORES PIPELINE REPLACEMENT PROJECT PARCRL6A OWNER: CITY OF DF.NTON "RAILS TO TRAILS" PERMANENT WATER LINE EASEMENT M.E.P. & P.R.R. SURVEY, ABS. No. 911 DENTON COUNTY. TEXAS Being a 20' wide pem:o ent water lira casenant out of the M.E.P & P.R.R. Survev, Abilml No. 911, and out of a 1.76 acre Into of land conveyed to tire City of Dentin -Rails lo'l'rails- by warranty decd as recorded in Within County Clerk's Insttvmem No. (D.C.C.I.No.) 91.01139995 or the Dad Records of Danon Countv, Texus 1D.R.D.C.T.1. said pennoltertl water line mcioem being herein more particularly described by metes and bounds as follows: COMMENCING at a 518" iron rod fiwad w northeast Ivopcny corner ol'tlre mid City of Damon ^Rnila to'I'rails" tract, mid commencing point being on as west property line of a 3.1811 acre tract of land conveyed to Je'mane W. Damon, by wamnty drnf as recorded in Volume 1642. Page 958 orthe D. R.D.C: r.. said commencing point being on the moth right-of-way line of Shady Shores Rod. Ming a variable width Public right-of-w'ay. mid cnm1110aing point elm hang at the beginning of a non-tangeM curve to the right having a radius of 3840.01 kcr , 'THENCE, in o Smnhcasterly direction. slung the east property line orthe said City of Menton "hails to'I'rails tract, along the aid west property line or tM Dunuu tract and along the mid curve through an arc Icngth of 518 fan aml across a chord leavinga direction of South 291 11'24* East mall u churl length of 5.98 1i ci to the POINT OF BECIr\MNG, said point being at the beginning of u curve to 1M right having a rmlitn uf3840.01 Peer, TI IENCF. in a Soudicastnly direaiort cuminuing along the mid property lines and along the said curve through an are length of 10.68 fen and across a chord having a direction of Snmh 29-03'57" Past and a client Icngth or 10.68 feet to a point; TIIF.NCE South 28" 59'39" Last. continuing along the said property lines, u distance of 11.95 Icd to a point; THENCE North Sri- 4')'5 V West o dismewe of 117.70 feat to a point on the west . pnvpcnv liter ofsaid City of Wmon "Rails to'I'mils tract. slid point bring at Ihv rest right-of way line ol'Old I lighway 77, mid point ulm Ming at the beginningoru non-tmtgent curve to the left having o radius of 3740.01 kel; THENCE in a Northwesterly direction uleng the said property line, the said rightof-way line and :dung the aid curve through an arc length of 23.55 feet and across u chord leaving a direction of North 280 42' 51- War and a chord length of 23.35 feat to o point T11 ENCF. South 86" 4<y 51• East a distance or 117.55 feet to t a POINT OF BEGINNING containing 0.054 acres of land more or less. (Exhibit -A") Page i on NWI'Rt The basis of twiriogs Ibr this survey is the Texas State Plane NA D83. North Central Zone. The base sutimu used for control on 1165 survey arc: PID Designation DH7149 TXSG SAGINAW CORS ARP DF89g6 '1'XDE DENTON CORS ARP 13F8982 TXCO COLLIN CORS ARP Combined grid to surfaeo scale factor: I.OW 1493809 All distanca shown are surfue. -SURVEYORS CERTIFICATE* TO ALL PARTIES INTERESTED W TITLE. TO THE PREMISES SURVEYED. I DO I IEREBY CERTIFY T TAT THE ABOVE LEGAL DESCRIPTION WAS PREPARED FROM PUBLIC RECORDS AND FROM AN ACTUAL AND ACCURATE SURVEY UPON THE GROUND AND THAT SAME. IS TRUE AND CORRECT. Conquiny Name: Slwuneraixl Assuciates.'Inc. Surveyors Name: Eric Sbaun Spooner Rcgimered Prufcuiotwl Lan) Surveyor. 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