2002-224FILE REFERENCE FORM I 2002-224 I
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ORDINANCE NO. ~'~0,~°- ~ ¢
AN ORDINANCE GRANTING APPROVAL OF A SUB-SURFACE USE OF A PORTION OF
THE DENTON BRANCH RAIL/TRAIL ADJACENT TO THE NORTH SIDE OF LOOP 288
AT MILE POST 728 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 100 linear feet across the trail for proper water utility services; and
WHEREAS, The City of Denton 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 June 23, June
30 and July 7, 2002 ora Public Hearing to be held on July 16, 2002 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 July 16, 2002, received testimony at a public heating 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 City of
Denton (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 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. I247(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.
approval.
PASSED AND APPROVED this the /(~--~ day of
This ordinance shall become effective immediately upon its passage and
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAI/sFORM:
2002.
EULINE BROCK, MAYOR
Page 2 of 2
PUBLIC UTILITY EASEMENT
STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENT:
That the City of Denton, Texas, a municipal corporation (Grantor), for and in consideration of
the sum of Two Thousand Two Hundred Thirty Dollars and No Cents ($2,230.00) for the
property described in Exhibit "A" attached hereto, to the undersigned in hand paid by the City of
Denton, a municipal corporation (Grantee), the receipt of which is hereby acknowledged and
confessed, has granted, sold and conveyed and does hereby grant, sell and convey unto said
Grantee, its successors and assigns, subject to the reversionary rights and privileges of Missouri
Pacific Railroad Company (Railroad) 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, inteflocal agreements and Grantor's perpetual and superior
right to maintain a trail system and expand the type and number of public utilities within
grantor's jurisdiction to maintain and operate within the property described in Exhibit "A", an
easement for subsurface public utilities, together with the customary uses attendant thereto,
under, across and along all that certain lot, tract, parcel of land described in Exhibit "A", attached
hereto and made apart hereof by reference for all purposes.
The Grantee is acquiring this easement for the purpose of constructing, using and maintaining a
public utility water line subsurface and in accordance with the such plans attached hereto in
Exhibit A specifications which will best serve the public while at the same time protecting the
integrity of the existing railroad roadbed and accommodating the construction 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.
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:
Repair, modify or reconstruct the pipeline improvements (and customary uses
attendant thereto) authorized above at Grantee's expense if same is required for
Grantor (a) 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.
Repair and restore any improvements in the easement area, lawfully placed
therein by Grantor, its agents, 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 (TxDOT) 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 (e.g., TxDOT) 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.
This easement will terminate if the easement area is used other than in compliance with the
specified use noted in Exhibit A. 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, and Grantor is hereby bound, together with all heirs, executors, administrators or
successors, to warrant and forever defend all and singular the said easement unto the Grantee, its
successors and assigns, against every person whomsoever lawfully claiming, or to claim the
same or any part thereof, subject only to the rights and limitations contained in the Line Sale
Contract and other documents incorporated into adoption of City of Denton Ordinance No. 93-
117.
APPROVED this
the City of Denton, Texas.
CITY OF DENTON, TEXAS (Grantor)
CITY MANAGER
By:~
day of
,6~00~7~, by the City Council of
MAYOR, CITY OF DENTON
Page 2 of 2
ATTEST:
~ Se~r-et~y, City of I~enton, Texas
STATE OF TEXAS
COUNTY OF DENTON §
('~ .,This instrument is acka3owlec;lged before me, on this //3~'~ day of ~
/~)~ , by ~-'-/t/j.~. ~/',~jz~:.__ , Mayor of the City of Denton, Tex~s, a ~unicipai
corporation, known to me to be the person whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal
corporation, that he/she was duly authorized to perform the same by the City Council of the City
of Denton and that he/she executed the same as the act of the said City for the purposes and
consideration therein expressed, and in the capacity therein stated.
"""~ E. RICHARDSON
II ~x,';.a,.~** JANE
~.:. .,~o~ Nota~/Public, State of Texas
]] ~,~,, June 27, 2005
Nof~try Public, State of Texas
STATE OF TEXAS
COUNTY OF DENTON §
fi, This instrument il acknowledged before me, on this /~ day of //'~/,6~ ,
~1 cbcYrpo,~]t~]r'~'o '&c~g~n to~'nc¢~eCi;eYrscMnanjhgoe~ n°faxr~e:s sCi)~sc°xd[el~ t~ot~l~; f~oo:eXffoSin~
instrument and acknowledged to me that the same was the act of the said City of Denton, Texas,
a municipal corporation, that he was duly authorized to perform the same by the City Council of
the City of Denton and that he executed the same as thc act of the said City for the purposes and
consideration therein expressed, and in the capacity therein sta~.
![~ '$''~ M Y CO~Ma~O'~ J ~o~PIRE$ II N°tary ~'ublic' State/°f Zex-~-
Page 3 of 3
:.,'3;..9
Denton Crossing
20 Foot off-site Public Utility Easement - 0.05 acres
STATE OF TEXAS §
COUNTY OF DENTON §
FIELD NOTES
All that certain tract or parcel of land situated in the J.S. Taft Survey, Abstract 1!256, and
being a part of that certain tract of land conveyed to the City of Denton recorded as
County Clerk File #93-0058485, Deed Records of Denton County, Texas, and I~eing
more particularly described by metes and bounds as follows:
BEGINNING at a point in northerly line of State Highway Loop 288 and being the
southwest corner of Lot 1, Block A, The Waterford at Spencer Oaks, an additioh to the
City of Denton, filed for record in Volume N. Page 221-223, Plat Records of Det~ton
County, Texas, in the east line of said City of Denton tract, from which a 1/2~ iron rod
found for the southeast corner of said The Waterford at Spencer Oaks and the
southwest comer of Lot 1, Block A, Lone Star Par 3 Addition, an addition to theCity of
Denton, Denton County, Texas, according to the plat filed of record in Cabinet Ii Slide
277, Plat Records of Denton County, Texas, beam, North 60'22'40" East, a distance of
321.83 feet and North 64°24'15" East, a distance of 17.29 feet;
THENCE South 60°2Z40" West, along the northerly line of said State Highway a
distance of 102.06 feet to a point in the west line of said City tract, for the southwest
comer of this tract;
THENCE North 41°09'40" West, along the west line of said City tract, a distanc~ of
20.41 feet to a point for the northwest comer of this tract;
THENCE North 60°22~40'' East, a distance of 102.06 feet to the east line of said City
tract and the west line of said The Waterford at Spencer Oaks, to a point for the
northeast corner of this tract;
THENCE South 41 °0g'40" East, along said line, a distance of 20.41 feet to the pLACE
OF BEGINNING and containing 0.05 acres of land, more or less, according to the
exhibit of even date herewith, attached hereto, and made a part hereof.
June 7, 2002
H:~-Iu~t~006-017~lte 20' PUE.doC