2006-130
S:\Our Documents\Ordinances\06\TXU Encroachment Ordinance.doc
ORDINANCE NO. .2006- /30
AN ORDINANCE OF THE CITY OF DENTON APPROVING A LICENSE AGREEMENT
BETWEEN TXU ELECTRIC DELIVERY COMPANY ("TXU"), AND THE CITY OF
DENTON RELATING TO THE ENCROACHMENT OF CITY UTILITIES, A PORTION OF
RIGHT-OF-WAY AND A STORM DRAIN ACROSS AN EXISTING TXU EASEMENT AS
PART OF THE WHEELER RIDGE PHASE 4 IMPROVEMENTS, LOCATED IN THE B.
MERCHANT SURVEY ABSTRACT NUMBER 900, CITY OF DENTON, DENTON
COUNTY, TEXAS AND BEING A PORTION OF A CERTAIN CALLED 253.926 ACRE
TRACT OF LAND DESCRIBED IN THE DEED TO CENTEX HOMES, A NEVADA
GENERAL PARTNERSHIP, RECORDED IN VOLUME 5105 PAGE 3753 OF THE DEED
RECORDS OF DENTON COUNTY, TEXAS; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. The City Manager, or his designee, is hereby authorized to execute a
License Agreement Related to Encroachment on Easement between the City of Denton and TXU
Electric Delivery Company ("TXU") in substantially the form of the Agreement which is
attached to and made a part of this ordinance for all purposes, for the purpose of locating City
utilities and public right-of-way within a TXU Electric utility easement as described therein.
SECTION 2. The City Manager, or his designee, is authorized to make the expenditures
as set forth in the attached Agreement and to exercise all rights and duties of the City of Denton
under the Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the /0 Y!J day of VI[ ~ ' 2006.
~/lJwJL
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY.
BY~ '" \'= (0 ()J:k. M\-
APPROVED AS TO LEGAL FORM:
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2
Norwood-Denton-Bowie 69/138kv
Request No. 2005-349 CS
3ER-96869 & 96884
ENCROACHMENT ON EASEMENT
WHEREAS, TXU Electric Delivery Company, formerly known as Oncor Electric Delivery Company
and successor in interest to Oncor Electric Delivery Company ("TXU"), is the owner of a easement in
Denton County, Texas, which is recorded in Volume 374, Page 55 and Volume 373, Page 246, of the
Deed Records of Denton County, Texas ("Easement"); and
WHEREAS, the City of Denton, ("User"), desires permission to construct, operate and maintain
Street/Road, Water Line and Utility Easement Crossings ("Encroaching Facility") within the area or
boundaries of the Easement ("Easement Area") shown on the attached drawing marked Exhibit "A"
and incorporated herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and
valuable consideration, the receipt and suffiCiency of which is hereby acknowledged, TXU and User
do hereby agree as follows:
1. Location of Encroachina Facilitv. User may locate the Encroaching Facility in the
Easement Area, but only as described and shown on the attached drawing marked Exhibit "A" and
incorporated herein. User may not relocate the Encroaching Facility within the Easement Area
without the consent and approval of TXU, which com~ent and approval shall be at TXU's sole
discretion. User acknowledges and agrees that TXU holds easement rights on the Easement Area;
therefore, User shall obtain whatever rights and permission, other than TXU's, that are necessary.
2. Restrictions on Use of Easement Area. User shall use only so much of the Easement Area
as may be necessary to construct, maintain and repair the Encroaching Facility. User shall, at its
own cost and expense, comply with all applicable laws, including but not limited to existing zoning
ordinances, govemmental rules and regulations enacted or promulgated by any govemmental
authority and shall promptly execute and fulfill all orders and requirements imposed by such
govemmental authorities for the correction, prevention and abatement of nuisances in or upon or
connected with said Encroaching Facility. At the conclusion of any construction, User shall remove
all debris and other materials from the Easement Area and restore the Easement Area to the same
condition it was in prior to the commencement of User's construction thereon or in proximity thereto.
User shall not place trash dumpsters, toxic substances or flammable material in the Easement Area.
Further, if the Easement Area has transmission or distribution facilities located thereon, User shall
not place upon the Easement Area any improvements, including but not limited to, buildings, light
standards, fences (excluding barriers installed around transmission towers), shrubs, trees or signs
unless approved in advance in writing by TXU. Additional general construction limitations on
encroachments are described and listed in Exhibit "B", attached hereto and by reference made a
part hereof.
ENCROACHMENT ON EASEMENT
Page 1
3. Maintenance of Encroaching Facili User, at Users sole expense, shall maintain and
operate the Encroaching Facility. TXU will not be responsible for any costs of construction,
reconstruction, operation, maintenance or removal of Users Encroaching Facility.
4. Risk and Liability. User assumes all risks and liability resulting or arising from or relating to
User's use, the existing condition or location, or existing state of maintenance, repair or operation of
the Easement Area. It is further agreed that TXU shall not be liable for any damage to the
Encroaching Facility as a result of TXU's use or enjoyment of its Easement. Any TXU property
damaged or destroyed by User or its agents, employees, invitees, contractors or subcontractors shall
be repaired or replaced by TXU at User's expense and payment is due upon Users receipt of an
invoice from TXU.
5. Indemnification. User, to the extent allowable by law, agrees to defend, indemnify and hold
harmless TXU, its officers, agents and employees, from and against any and all claims, demands,
causes of action, loss, damage, liabilities, costs and expenses (including attorney's fees and court
costs) of any and every kind or character, known or unknown, fixed or contingent, for personal injury
(including death), property damage or other haRn for which recovery of damages is sought or
suffered by any person or persons that may arise out of, or be occasioned by, the negligence,
misconduct or omission of User, its officers, agents, associates, employees, contractors,
subcontractors, subconsultants, or any other person entering onto the Easement Area or may arise
out of or be occasioned by the use of the Encroaching Facility, except that the indemnity provided for
in this paragraph shall not apply to any liability resulting from the sole negligence of TXU, its officers,
agents, or employees or separate contractors, and in the event ofjoint and concurrent negligence of
both TXU and User, responsibility and indemnity, if any, shall be apportioned comparatively.
Nothing contained herein shall ever be construed so as to require User to assess, levy and collect
any tax to fund its obligations under this paragraph. Article XI Section 7 of the Texas Constitution
provides that a city is prohibited from creating a debt unless the city levies and collects a sufficient
tax to pay the interest on the debt and provides a sinking fund. The City of Denton has not and will
not create a sinking fund or collect any tax to pay any obligation created under this section.
6. 'High Voltage Restrictions. Use of draglines or other boom-type equipment in connection
with any work to be performed on the Easement Area by User, its employees, agents, invitees,
contractors or subcontractors 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 equipment be within fifteen feet
of the TXU power lines situated on the aforesaid property. User must obtain TXU's approval and
notify the Fort Worth Region Transmission Department at (817) 496-2731, or (817) 496-2736, 48
hours prior to the use of any boom-type equipment on the Easement Area.
7. Default and Termination. It is understood and agreed that, in case of default by User or its
agents in any of the terms and conditions herein stated and such default continues for a period often
(10) days after TXU notifies User of such default in writing, TXU may at its election forthwith
terminate this agreement and upon such termination all of User's rights hereunder shall cease and
come to an end. This agreement shall also tenminate upon the abandonment of the Encroaching
Facility.
This agreement shall extend to and be binding upon User and its successors and assigns, and is not
to be interpreted as a waiver ooof any rights held by TXU under its Easement.
Executed this(=day of _~~~. 200$.6
ENCROACNYENT ON EASEMENT
Page 2
APPROVAL:
TXU ELECTRIC DELIVERY COMPANY
By~~~~
Thomas F. Newsom
Attorney-In-Fact
APPROVED AS TO FORM:
CITY ATTOR Y
CITY OF D ON,
BY:
ACCEPTANCE:
STATE OF TEXAS §
COUNTY OF DENTON §
BEFORE ME, the undersigned authority, on this day personally
appeared 7°~ OWr~c~ m 1'~-rn, as ' t~~-im ~, ~'-~ /Yl~i ~/~ of the CITY OF
DENTON, known to me to be the person whose na a is su scribed to the foregoing
instrument and acknowledged to me that he/she executed the same as the act and deed of
the City of Fort Worth, and for the purposes and consideration therein expressed and in
the capacity therein stated, and that he/she was authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this /~p i`h day of
~~a~ , A.D.200~.10
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JAP7E E, RICMARp30N
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r Notary Publlc, State of Texas
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NoyBry Public in and for the State of Texas
ENCROACNMENi OM EASEMENT
Page 3
CITY OF DENTON
STATE OF TEXAS §
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Thomas
F. Newsom, as Attorney-In-Fact of TXU ELECTRIC DELIVERY COMPANY, known to me
to be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he executed the same as the act and deed of TXU Electric Delivery Company,
and for the purposes and consideration therein expressed and in the capacity therein
stated, and that he was authorized to do so.
GIVEN ER MY HAND AND SEAL OF OFFICE this ~ ot`t"" day of
U , A.D.200~8'.(0
U
~-~ C~oC-~,~.~v
Notary P lic in and for the State of Texas
~ot°••~T•p~''`t L• J. ROBINSON
`_~ i~'€ Notary Pu61k 8t
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'~'~`ors4`~' Commicston ExDkes
JUNE 16, 2007
ENCR04CNNENT ON EASEMENT tige 4