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HomeMy WebLinkAbout1995-079E:\WPDOCS\ORD\PRK.LOT ORDINANCE NO. O AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF DENTON AND MISSOURI PACIFIC RAILROAD COMPANY REGARDING THE EXCHANGE OF CERTAIN PROPERTY ALONG THE ABANDONED DALLAS LINE BETWEEN PRAIRIE AND HICKORY STREETS AND THE CONVEYANCE OF A FREIGHT DEPOT AND CERTAIN RAILROAD RIGHT-OF-WAY FOR PUBLIC PARKING AND RAILS -TO -TRAILS PURPOSES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the City Manager is hereby authorized to execute an agreement between the City of Denton and Missouri Pacific Railroad Company regarding the exchange of certain property along the abandoned Dallas Line between Prairie and Hickory Streets and the conveyance of a freight depot and certain railroad right- of-way for public parking and Rails -to -Trails purposes, a copy of which is attached hereto. SECTION II. That the City Manager is hereby authorized to execute such deeds, easements, leases, and other documents as may be approved by the City Attorney to effectuate the transfers referenced in the attached agreement. SECTION III. That the expenditure of funds as provided in the agreement is hereby authorized. SECTION IV. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the & day of 1995. BOB CASTLEBERRY, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY r BY: APPR V D AS LEGAL FORM: MICH LL A. BUCEK, ACTING CITY ATTORNEY BY:s c �<�C� UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT R.D. UHRICH ASSISTANT VICE PRESIDENT ROOM 1100. 1416 DODGE STREET OMAHA, NEBRASKA 68179 (402) 271-3753 FAX (402) 271-5493 Mr. Michael Bucek Acting City Attorney City of Denton Municipal Building 215 East McKinney Denton, Texas 76201 Dear Mr. Bucek: M April 5, 1995 J. A. ANTHONY DIRECTOR -CONTRACTS & JOINT FACILITIES D D BROWN DIRECTOR -REAL ESTATE J. L HAWKINS DIRECTOR -OPERATIONS SUPPORT D. H. LIGHTWINE DIRECTOR -REAL ESTATE W. R ULRICH DIRECTOR -BUILDING SERVICES 1374-30 This letter is to confirm the understandings reached between Missouri Pacific Railroad Company (Railroad Company) and The City of Denton, Texas (City) covering the exchange of certain property, the donation of the Railroad Company's Depot, the relocation of the Railroad Company's material storage yard and the use of a certain property for public parking and for a rails to trails right of way. The Railroad Company is agreeable to the following: The Property to be conveyed to the City shall consist of a parcel of land totalling approximately 30,000 square feet , as generally depicted on the print attached hereto marked Exhibit "A." The exact area to be conveyed will be determined by the Railroad Company from existing deed and title records and a legal description prepared accordingly for incorporation into the instrument of conveyance. An easement necessary to accomodate the existing railroad tracks will be retained by the Railroad Company 2. The Property to be conveyed to the Railroad shall consist of a parcel of land totalling approximately 107,000 square feet, as generally depicted on the print attached hereto marked Exhibit "A". The exact area to be conveyed will be determined by the Railroad Company from existing deed and title records and a legal description prepared for incorporation into the instrument of conveyance. An easement necessary to accomodate the proposed trail right of way will be retained by the City. r The City shall grant the Railroad Company an easement for railroad purposes over that portion of the trail right of way south of Prairie Street. Such easement shall be 30 feet in width. The Railroad Company will make available the property shown on Exhibit "A" south of Hickory Street for additional City parking. This will be acomplished via a 10 year lease at fair market value and will also include the existing property north of Hickory Street presently covered by Lease 162380. This will be accomplished prior to the City relocating the depot building. The total Lease cost will not exceed $7,500.00 per annum for the initial 10 years of the Lease term. The Railroad Company will donate the depot building to the City; whereupon, the City will relocate the depot building to City property. The Railroad Company will promptly relocate its material storage yard to the property shown on Exhibit "A". The Railroad will also construct a fence, designed to enhance the visual effect to the area, around its material storage yard. The Railroad Company will retire and remove the spur tracks to a point approximately 300 feet south of Hickory Street in order to facilitate access from the relocated depot to the trail right of way/parking lot. Following relocation of the Railroad Company's material storage yard the remaining property between Hickory Street and Sycamore Street as shown on the attached Exhibit "A" will be added to the City's parking Lease and the purpose will be amended to allow the use of the property for gaining access to the trail right of way. The City will pay fair market value for the property necessary for parking; however, the property necessary for continuation of the trail will be at a nominal consideration. The total Lease cost will not exceed $7,500.00 per annum for the initial 10 years of the Lease term. This property will be included in the 10 year parking lease. If the foregoing reflects your understanding of the arrangement reached between the Railroad Company and the City with respect to the exchange/use of the Property, please secure the execution of this Letter of Understanding and return to me the copy of this letter marked "Duplicate Original -Railroad Copy". If you have any questions or concerns please feel free to contact me at 402-271-4818. Yours truly, r r�- Senior Manager - Real Estate Accepted and approved on this day of By V UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT R D. UHRICH ASSISTANT VICE PRESIDENT ROOM 1100, 1416 DODGE STREET OMAHA NEBRASKA68179 April 26, 1995 (402) 271-3753 FAX (402) 271-5493 MR. MICHAEL BUCEK ACTING CITY ATTORNEY CITY OF DENTON MUNICIPAL BUILDING 215 EAST MCKINNEY DENTON TX 76201 Dear Mr. Bucek: D , it D MAY - 1 1995 CITY OrF DFNTON LEGAL DEPT. J. A. ANTHONY DIRECTOR -CONTRACTS & JOINT FACILITIES D.D BROWN DIRECTOR -REAL ESTATE J L. HAWKINS DIRECTOR -OPERATIONS SUPPORT D. H. LIGHTWINE DIRECTOR -REAL ESTATE W. R. ULRICH DIRECTOR -BUILDING SERVICES Folder: 1369-64 RE: Audit No. 162380 Dated 5/26/92, Covering Use of Railroad Property at Denton, Texas I have prepared a new Lease to cover the use of the Railroad Property for use as a parking lot and trail right of way. In order to simplify matters and to keep from having to update the Lease at each stage of the project, I have included all of the property the City will need for parking and for trail right of way up front; however, until our forces have moved the material storage yard and retired the spur tracks some of this property will not be available for City use. I have held the rental below the $7,500.00 lid for the first two years of the Lease in order to compensate. Also attached is a Bill of Sale for the Depot. In the enclosed envelope, please return both copies of the documents for execution on behalf of the Railroad. If you have any questions regarding this Lease, please contact me at (402) 271-4818. sincerely yours, M.P. Horn Sr. Manager - Real Estate CC: Mr. Richard Maxwell Union Pacific Railroad Co. 500 East Hickory Street Denton, Texas 76201 Richard please immediately begin retirement of the first 300 feet of the spur tracks and coordinate the relocation of the material storage yard with the moving of the Depot. r BOS 881115 Form Approved, AVP-Law BILL OF SALE MISSOURI PACIFIC RAILROAD COMPANY, a Delaware Corporation, ("Seller") for and in consideration of One Dollar ($1.00) and other valuable consideration does hereby sell, grant, transfer and deliver unto the CITY OF DENTON, a Municipal Corporation, ("Buyer") to be addressed at 215 East McKinney, Denton, Texas 76201, its successors and assigns, the following described personal property, to wit: 40 foot by 100 foot frame depot building This Bill of Sale is made with the understanding that the Seller does not hereby convey, or intend to convey, any right, title, estate or interest whatsoever in or to the real property on which the personal property is situated. SELLER, BY THIS INSTRUMENT, MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND FURTHER MAKES NO WARRANTY AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IT BEING UNDERSTOOD THAT THE BUYER IS PURCHASING THE PERSONAL PROPERTY DESCRIBED ABOVE ON AN "AS IS" AND "WHERE IS" BASIS WITH ALL FAULTS. IN WITNESS WHEREOF, the Seller has caused this instrument to be duly executed as of the 26th day of April, 1995. Witness 0786n MISSOURI PACIFIC RAILROAD COMPANY By Title: Director - Real Es ate c ' � UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT R D. UHRICH ASSISTANT VICE PRESIDENT ROOM 1100 1416 DODGE STREET OMAHA NEBRASKA 6B179 (402)271-3753 FAX (402) 271-5493 MAY 3 0 1995 MICHAEL BUCEK ACTING CITY ATTORNEY CITY OF DENTON MUNICIPAL BUILDING 215 EAST MCKINNEY DENTON TX 76201 Dear Mr. Bucek: J.A.ANTHONY DIRECTOR -CONTRACTS & JOINT FACILITIES D.D BROWN DIRECTOR -REAL ESTATE J. L. HAWKINS DIRECTOR -OPERATIONS SUPPORT D. H LIGHTWINE DIRECTOR -REAL ESTATE W. R. ULRICH DIRECTOR -BUILDING SERVICES Folder: 1369-64 JUN - 1995 CITY DENTONI ,- LEGAL DEPT. ; RE: Audit No. 162380 Dated 5/26/92, Covering Use of Railroad Property at Denton, Texas Attached is your original copy of our Lease, fully executed on behalf of the Railroad Company. The Railroad Company has authorized the installation of fiber optic cable facilities on its property in certain areas. Prior to using the Railroad Company's property covered herein, you should thoroughly review the terms and conditions of this Lease and contact the Railroad Company at 1-800-336-9193 to determine if a fiber optic cable is buried on the subject property. In compliance with the Internal Revenue Service's new policy regarding their Form 1099, this is to advise you that 43-1118635 is MISSOURI PACIFIC RAILROAD COMPANY's correct Federal Taxpayer Identification Number and we are doing business as a corporation. Sincerely yours, M.P. Horn Sr. Manager - Real Estate Folder No: 1369-64 Audit No: 162380 LEASE OF PROPERTY THIS LEASE ("Lease") is entered into on the lst day of May 1 19 95 between MISSOURI PACIFIC RAILROAD COMPANY ("Lessor"), and CITY OF DENTON, a municipal corporation, whose address is Municipal Building, 215 East Mckinney, Denton TX 76201 ("Lessee"). IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS: Article I. PREMISES; USE. Lessor leases to Lessee and Lessee leases from Lessor the premises ("Premises"), at Denton, Texas, as shown on the print dated April 24, 1995 marked Exhibit A, hereto attached and made a part hereof, subject to the provisions of this Lease and of Exhibit B attached hereto and made a part hereof. The Premises may be used for private and public parking and for a trail right of way and purposes incidental thereto, only, and for no other purpose. Article II. TERM. The term of this Lease shall commence on May 1, 1995, and, unless sooner terminated as provided in this Lease, shall extend for ten years and thereafter shall automatically be extended from year to year. Article III. RENT. A. During the initial ten year term of the Lease Lessee shall pay to Lessor, in advance, rental as follows: $4,050.00 per annum from May 1, 1995 through April 30, 1997 $7,500.00 per annum from May 1, 1997 through April 30, 2005 B. Upon the expiration of the initial ten year period; however, not more than once every twelve (12) months, Lessor may redetermine the rent. In the event Lessor does redetermine the rent, Lessor shall notify Lessee of such change. Article IV. SPECIAL PROVISION - CANCELLATION. Effective upon commencement of the term of this Lease, the Lease dated May 26, 1992, identified as Audit No. 162380, together with any and all supplements and amendments, is cancelled and superseded by this Lease, except for any rights, obligations or liabilities arising under such prior lease before cancellation, including any consent to conditional assignment, chattel agreement, or consent to sublease. IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first herein written. MISSOURI PACIFIC RAILROAD COMPANY By: Title: Assistant Vice President CI'. By Title:L Note: Cancels and Supersedes Lease 162380 Dated 5/26/.92 City Manager IND LS 010195 APPROVED, LAW Section 1. IMMOVENIMS. EXHIBIT B No improvements placed upon the Premises by Lessee shall become a part of the realty. Section 2. RESERVATIONS AND PRIOR RIGHTS. A) Lessor reserves to itself, its agents and contractors, the right to enter the Premises at such times as will not unreasonably interfere with Lessee's use of the Premises. B) Lessor reserves (1) the exclusive right to permit third party placement of advertising signs on the Premises, and (ii) the right to construct, maintain and operate new and existing facilities (including, without limitation, trackage, fences, communication facilities, roadways .and utilities) upon, over, across or under the Premises, and to grant to others such rights, provided that Lessee's use of the Premises is not interfered with unreasonably. C) This Lease is made subject to all outstanding rights, whether or not of record. Lessor reserves the right to renew such outstanding rights. Section 3. PAYWENT OF RENT. Rent (which includes the annual rent and all other amounts to be paid by Lessee under this Lease) shall be paid in lawful money of the United States of America, at such place as shall be designated by the Lessor, and without offset or deduction. Section 4. TAXES AND ASSESSMENTS. A) Lessee shall pay, prior to delinquency, all taxes levied during the life of this Lease on all personal property and improvements on the Premises not belonging to Lessor. If such taxes are paid by Lessor, either separately or as a part of the levy on Lessor's real property, Lessee shall reimburse Lessor in full within thirty (30) days after rendition of Lessor's bill. B) If the Premises are specially assessed for public improvements, the annual rent will be automatically increased by 12% of the full assessment amount. Section S. WATER RIGHTS. This Lease does not include any right to the use of water under any water right of Lessor, or to establish any water rights except in the name of Lessor. Section 6. CARE AND USE of PREMISES. A) Lessee shall use reasonable care and caution against damage or destruction to the Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any nuisance, permit any waste, or use the Premises in any way that creates a hazard to persons or property. Lessee shall keep the Premises in a safe, neat, clean and presentable condition, and in good condition and repair. Lessee shall keep the sidewalks and public ways on the Premises, and the walkways appurtenant to any railroad spur track(s) on or serving the Premises, free and clear from any substance which might create a hazard and all water flow shall be directed away from the tracks of the Lessor. B) Lessee shall not permit any sign on the Premises, except signs relating to Lessee's business. C) If any improvement on the Premises not belonging to Lessor is damaged or destroyed by fire or other casualty, Lessee shall, within thirty (30) days after such casualty, remove all debris resulting therefrom. If Lessee fails to do so, Lessor may remove such debris, and Lessee agrees to reimburse Lessor for all expenses incurred within thirty (30) days after rendition of Lessor's bill. D) Lessee shall comply with all governmental laws, ordinances, rules, regulations and orders relating to Lessee's use of the Premises. Section 7. HAZARDOUS MATERIALS, SUBSTANCES AND WASTES. A) Without the prior written consent of Lessor, Lessee shall not use or permit the use of the Premises for the generation, use, treatment, manufacture, production, storage or recycling of any Hazardous Substances, except that Lessee may use (i) small quantities of common chemicals such as adhesives, lubricants and cleaning fluids in order to conduct business at the Premises and (ii) other Hazardous Substances, other than hazardous wastes as defined in the Resource Conservation and Recovery Act, 42 U.S.C. 55 6901, et sec., as amended ("RCRA•), that are necessary for the conduct of Lessee's business at the Premises as specified in Article I. The consent of Lessor may be withheld by Lessor for any reason whatsoever, and may be subject to conditions in addition to those set forth below. It shall be the sole responsibility of Lessee to determine whether or not a contemplated use of the Premises is a Hazardous Substance use. B) In no event shall Lessee (1) release, discharge or dispose of any Hazardous Substances, (ii) bring any hazardous wastes as defined in RCRA onto the Premises, (III) install or use on the Premises any underground storage tanks, or (iv) store any Hazardous Substances within one hundred feet (1001) of the center line of any main track. Page 1 of 4 IND LS 010195 APPROVED, LAW C) If Lessee uses or permits the use of the Premises for a Hazardous Substance use, with or without Lessor's consent, Lessee shall furnish to Lessor copies of all permits, identification numbers and notices issued by governmental agencies in connection with such Hazardous Substance use, together with such other. information on the Hazardous Substance use as may be requested by Lessor. If requested by Lessor, Lessee shall cause to be performed an environmental assessment of the Premises upon termination of the Lease and shall furnish Lessor a copy of such report, at Lessee's sole coat and expense. D) Without limitation of the provisions of Section 12 0£ this Exhibit B, Lessee shall be responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any manner to any Hazardous Substance use of the Premises (or any property in proximity to the Premises) during the term of this Lease or, if longer, during Lessee's occupancy of the Premises, regardless of Lessor's consent to such use, or any negligence, misconduct or strict liability of any Indemnified Party (as defined in Section 12), and including, without limitation, (i) any diminution in the value of the Premises and/or any adjacent property of any of the Indemnified 'Parties, and (11) the cost and expense of clean-up, restoration, containment, remediation, decontamination, removal, investigation, monitoring, closure or post -closure. Notwithstanding the foregoing, Lessee shall not be responsible for Hazardous Substances (i) existing on, in or under the Premises prior to the earlier to occur of the commencement of the term of the Lease or Lessee's taking occupancy of the Premises, or (ii) migrating from adjacent property not controlled by Lessee, or (iii) placed on, in or under the Premises by any of the Indemnified Parties; except where the Hazardous Substance is discovered by, or the contamination is exacerbated by, any excavation or investigation undertaken by or at the behest of Lessee. Lessee shall have the burden of proving by a preponderance of the evidence that any exceptions of the foregoing to Lessee's responsibility for Hazardous Substances applies. E) In addition to the other rights and remedies of Lessor under this Lease or as may be provided by law, if Lessor reasonably determines that the Premises may have been used during the term of this Lease or any prior lease with Lessee for all or any portion of the Premises, or are being used for any Hazardous Substance use, with or without Lessor's consent thereto, and that a release or other contamination may have occurred, Lessor may, at its election and at any time during the life of this Lease or thereafter (i) cause the Premises and/or any adjacent premises of Lessor to be tested, investigated, or monitored for the presence of any Hazardous Substance, (ii) cause any Hazardous Substance to be removed from the Premises and any adjacent lands of Lessor, (111) cause to be performed any restoration of the Premises and any adjacent lands of Lessor, and (iv) cause to be performed any remediation of, or response to, the environmental condition of the Premises and the adjacent lands of Lessor, as Landlord reasonably may deem necessary or desirable, and the cost and expense thereof shall be reimbursed by Lessee to Lessor within thirty (30) days after rendition of Lessor's bill. In addition, Lessor may, at its election, require Lessee, at Lessee's sole cost and expense, to perform such work, in which event, Lessee shall promptly commence to perform and thereafter diligently prosecute to completion such work, using one or more contractors and a supervising consulting engineer approved in advance by Lessor. F) For purposes of this Section 7, the term "Hazardous Substance" shall mean (i) those substances included within the definitions of "hazardous substance", "pollutant", "contaminant", or "hazardous waste", in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. SS 9601, Its sec., as amended or in RCRA, the regulations promulgated pursuant to either such Act, or state laws and regulations similar to or promulgated pursuant to either such Act, (ii) any material, waste or substance which is (A) petroleum, (B) asbestos, (C) flammable or explosive, or (D) radioactive; and (iii) such other substances, materials and wastes which are or become regulated or classified as hazardous or toxic under federal, state or local law. Section S. UTILITIES. A) Lessee will arrange and pay for all utilities and services supplied to the Premises or to Lessee. B) All utilities and services will be separately metered to Lessee. If not separately metered, Lessee shall pay its proportionate share as reasonably determined by Lessor. Section 9. LIENS. Lessee shall not allow any liens to attach to the Premises for any services, labor or materials furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall have the right to discharge any such liens at Lessee's expense. Section 10. ALTERATIONS AND IMPROVEMENTS; CLEARANCES. A) No alterations, improvements or installations may be made on the Premises without the prior consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the Lessor in the operation of its Railroad and to such other conditions as Lessor determines to impose. In all events such consent shall be conditioned upon strict conformance with all applicable governmental requirements and Lessor's then -current clearance standards. B) All alterations, improvements or installations shall be at Lessee's sole cost and expense. Page 2 of 4 IND LS 010195 APPROVED, LAW C) Lessee shall comply with Lessor's then -current clearance standards, except (i) where to do so would cause Lessee to violate an applicable governmental requirement, or (ii) for any improvement or device in place prior to Lessee taking possession of the Premises if such improvement or device complied with Lessor's clearance standards at the time of its installation. D) Any actual or implied knowledge of Lessor of a violation of the clearance requirements of this Lease or of any governmental requirements shall not relieve Lessee of the obligation to comply with such requirements, nor shall any consent of Lessor be deemed to be a representation of such compliance. Section 11. AS -IS. Lessee accepts the Premises in its present condition with all faults, whether patent or latent, and without warranties or covenants, express or implied. Lessee acknowledges that Lessor shall have no duty to maintain, repair or improve the Premises. Section 12. RELEASE AND INDEMNITY. A) As a material part of the consideration for this Lease, Lessee, to the extent it may lawfully do so, waives and releases any and all claims against Lessor for, and agrees to indemnify, defend and hold harmless Lessor, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against, any loss, damage (including, without limitation, punitive or consequential damages), injury, liability, claim, demand, cost or expense (including, without limitation, attorneys' fees and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, Lessor, Lessee, or any employee of Lessee) and arising from or related to (i) any use of the Premises by Lessee or any invitee or licensee of Lessee, (ii) any act or omission of Lessee, its officers, agents, employees, licensees or invitees, or (III) any breach of this Lease by Lessee. B) The foregoing release and indemnity shall apply regardless of any negligence, misconduct or strict liability of any Indemnified Party, except that the indemnity, only, shall not apply to any Loss caused by the sole, active and direct negligence of any Indemnified Party if the Loss (i) was not occasioned by fire or other casualty, or (ii) was not occasioned by water, including, without limitation, water damage due to the position, location, construction or condition of any structures or other improvements or facilities of any Indemnified Party. C) Where applicable to the Loss, the liability provisions of any contract between Lessor and Lessee covering the carriage of shipments or trackage serving the Premises shall govern the Loss and shall supersede the provisions of this Section 12. D) No provision of this Lease with respect to insurance shall limit the extent of the release and indemnity provisions of this Section 12. Section 13. TERMINATION. A) Lessor may terminate this Lease by giving Lessee notice of termination, if Lessee (1) fails to pay rent within fifteen (15) days after the due date, or (ii) defaults under any other obligation of Lessee under this Lease and, after written notice is given by Lessor to Lessee specifying the default, Lessee fails either to immediately commence to cure the default, or to complete the cure expeditiously but in all events within thirty (30) days after the default notice is given. B) Notwithstanding the term of this Lease set forth in Article II.A., Lessor or Lessee may terminate this Lease without cause upon thirty (30) days' notice to the other party; provided, however, that at Lessor's election, no such termination by Lessee shall be effective unless and until Lessee has vacated and restored the Premises as required in Section 15A). section 14. LESSOR'S REMEDIES. Lessor's remedies for Lessee's default are to (a) enter and take possession of the Premises, without terminating this Lease, and relet the Premises on behalf of Lessee, collect and receive the rent from reletting, and charge Lessee for the cost of reletting, and/or (b) terminate this Lease as provided in Section 13 A) above and sue Lessee for damages, and/or (c) exercise such other remedies as Lessor may have at law or in equity. Lessor may enter and take possession of the Premises by self-help, by changing locks, if necessary, and may lock out Lessee, all without being liable for damages. Section 15. VACATION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY. A) Upon termination howsoever of this Lease, Lessee (1) shall have peaceably and quietly vacated and surrendered possession of the Premises to Lessor, without Lessor giving any notice to quit or demand for possession, and (ii) shall have removed from the Premises all structures, property and other materials not belonging to Lessor, and restored the surface of the ground to as good a condition as the same was in before such structures were erected, including, without limitation, the removal of foundations, the filling in of excavations and pits, and the removal of debris and rubbish. Page 3 of 4 IND LS 010195 APPROVED, LAW B) If Lessee has not completed such removal and restoration within thirty (30) days after termination of this Lease, Lessor may, at its election, and at any time or times, (1) perform the work and Lessee shall reimburse Lessor for the cost thereof within thirty (30) days after bill is rendered, (11) take title to all or any portion of such structures or property by giving notice of such election to Lessee, and/or (111) treat Lessee as a holdover tenant at will until such removal and restoration is completed. Section 16. Via= OPTICS. Lessee shall telephone Lessor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried on the Premises. If cable is buried on the Premises, Lessee will telephone the telecommunications company(ies), arrange for a cable locator, and make arrangements for relocation or other protection of the cable. Notwithstanding compliance by Lessee with this Section 16, the release and indemnity provisions of Section 12 above shall apply fully to any damage or destruction of any telecommunications system. Section 17. NOTICES. Any notice, consent or approval to be given under this Lease shall be in writing, and personally served, sent by reputable courier service, or sent by certified mail, postage prepaid, return receipt requested, to Lessor at: Contracts 6 Real Estate Department, Room 1100, 1416 Dodge Street, Omaha, Nebraska 68179; and to Lessee at the above address, or such other address as a party may designate in notice given to the other party. Mailed notices shall be deemed served five (5) days after deposit in the U.S. Mail. Notices which are personally served or sent by courier service shall be deemed served upon receipt. Section 18. ASSIGNMENT. A) Lessee shall not sublease the Premises, in whole or in part, or assign, encumber or transfer (by operation of law or otherwise) this Lease, without the prior consent of Lessor, which consent may be denied at Lessor's sole and absolute discretion. Any purported transfer or assignment without Lessor's consent shall be void and shall be a default by Lessee. B) Subject to this Section 18, this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. Section 19. CONDZW"TION. If, as reasonably determined by Lessor, the Premises cannot be used by Lessee because of a condemnation or sale in lieu of condemnation, then this Lease shall automatically terminate. Lessor shall be entitled to the entire award or proceeds for any total or partial condemnation or sale in lieu thereof, including, without limitation, any award or proceeds for the value of the leasehold estate created by this Lease. Notwithstanding the foregoing, Lessee shall have the right to pursue recovery from the condemning authority of such compensation as may be separately awarded to Lessee for Lessee's relocation expenses, the taking of Lessee's personal property and fixtures, and the interruption of or damage to Lessee' business. Section 20. ATTOFNEY'S PSEB. If either party retains an attorney to enforce this Lease (including, without limitation, the indemnity provisions of this Lease), the prevailing party is entitled to recover reasonable attorney's fees. Section 21. ENTIRE AGAEEL0N'r. This Lease is the entire agreement between the parties, and supersedes all other oral or written agreements between the parties pertaining to this transaction. Except for the unilateral redetermination of annual rent as provided in Article III.A, this Lease may be amended only by a written instrument signed by Lessor and Lessee. Page 4 of 4 Post-W Fax Note 7671 Date L 9 p"a"ge0' L / V TO / C J� From Co k �p eL Co./Dept. eti Le City Attorney's Office City of Denton, Texas 215 East McKinney lo°e��5 w� ClCA Denton, Texas 76201 (940) 349-8333 CITY OF DENTON, TEXA Fax (940) 382-7923 November 2, 1999 VIA FACSIMILE NO. 402-997-3602 MR. D.A. (DAN) LEIS Manager -Real Estate Union Pacific Railroad Company 1800 Farnam Street Omaha, Nebraska 68102 Re: Trespass by Trinity Industries and/or Union Pacific upon park land owned by the City of Denton, Texas located between Prairie and Sycamore Streets & east of Trinity Industries (Doc.68022[?]) Dear Mr. Leis: This letter is written to formalize our conversation of earlier today regarding the above referenced subject matter. By a letter agreement dated April 5, 1995 executed by Michael P. Horn, Senior Manager -Real Estate for Union Pacific Railroad (Union Pacific) and accepted by Lloyd V. Harrell, City Manager for the City of Denton, Texas (City) on April 11, 1995 the City conveyed to Union Pacific approximately 107,000 square feet of land (& other easements and rights) and Union Pacific conveyed to City approximately 30,000 square feet of land (& other easements and rights) identified in REA File: 1374-30 relating to M.P.721.50-Denton Branch. In October, 1999 Trinity Industries (Trinity) with the approval of Union Pacific began the construction of railroad improvements (spur) across a portion of the 30,000 square feet City tract referenced above to Trinity property from Union Pacific property. Such action constitutes a trespass/violation/breach of at least the following laws and others that we may substitute or add at a later date: a) Common law trespass b) Civil trespass (and criminal trespass if work continues on the City property after receipt of this letter) c) Violation of Chapter 26 of the Texas Parks and Wildlife Code (This statute provides a municipality may not approve any project that requires the use of public land designated as park property unless the governing body determines that there is no feasible and prudent alternative to the use of such land. The determination of the governing body must not occur until notice is given at least 30 days before the date for a public hearing on the project, with such notice being published in a newspaper once a week for three consecutive weeks.) d) Breach of Contract "Dedicated to Quality Service" Page 2/letter to Leis Work on the City property should cease and desist until the requirements of Chapter 26 have been met. Unless written assurance is received by this office from an appropriate manager of Union Pacific before 5:00 p.m. Thursday, November 4, 1999 that (1) the work will be halted; or (2) a bond (in an amount approved by the City Manager and City Attorney for the City of Denton guaranteeing that if the work is allowed to progress and the City Council does not approve the use as allowed under Chapter 26 that Union Pacific will pay all reasonable costs to return the impacted property to the condition in which it existed prior to the construction of the spur.); or (3) such other documentation that we may mutually agreed upon by the parties; is provided, then our office will recommend to the City Manager that a Temporary Restraining Order (TRO) be obtained on Friday, November 5, 1999 to stop the immediate and irreparable injury and damage to park land. Additionally, if the TRO is not required, City Staff would seek from Union Pacific some written assurance that the negotiations by the City's Engineering Department with Union Pacific's Special Projects Division that Union Pacific will grant a crossing for (a) Nottingham, if the City closes Texas Street and the Acme Drive Private Crossing and (b) Ruddell, if the City closes Pertain and Willis Streets, will not be impaired by reason of the City complying with its rights under the laws referenced above. As I mentioned to you earlier today, state law (Article 3, Sec. 52 of the Texas Constitution) requires the City to receive fair market value for any use granted a non -governmental entity. City Staff would suggest that an exchange of 30,000 square feet of land being leased for a parking lot (with an appropriate proportional reduction in the compensation paid under the present parking lease) from Union Pacific under the April 5, 1995 agreement for the 30,000 square feet of City land desired by Union Pacific/Trinity may constitute fair market rental value that could be recommended to the city council. City Staff would recommend that the depot discussed in the above agreement be placed on the former parking lot lease and that an appropriate easement be granted from the proposed depot area through Union Pacific property (between Sycamore and Hickory Streets) for pedestrian/bicycle/vehicular[SPAN] traffic and (between Sycamore and Prairie Streets) for pedestrian/bicycle traffic to allow access to the rails for trails park from Hickory Street. The staff would recommend to council that the depot be - moved from Union Pacific property within six (6) months of the receipt by the City of the deed conveying the 30,000 sq. ft former parking lot lease to the City. (With the understanding that no entry fees/insurance premiums, etc. would be required of City to remove the depot from Union Pacific property.) Sincerely yours, A, /, , , 4 Z Michael A. Bucek First Assistant City Attorney