HomeMy WebLinkAbout2014-237sAlegal\our documents\ordinances\14\4984 reimbursement agreement ordinance.docx
ORDINANCE NO. 2014-237
AN ORDINANCE PROVIDING AUTHORIZATION FOR THE CITY MANAGER OR HIS
DESIGNEE TO EXECUTE A REIMBURSEMENT AGREEMENT WITH 4984 PARTNERS,
LTD. FOR THE PURPOSES OF 4984 PARTNERS, LTD. REIMBURSING THE CITY FOR
AN ANNUAL LICENSE FEE PAYABLE BY THE CITY TO DALLAS AREA RAPID
TRANSIT FOR THE PURPOSES OF CONSTRUCTING, INSTALLING, MAINTAINING,
AND OPERATING A SANITARY SEWER LINE CROSSING THE NORTHWEST DENTON
LINE NORTHWEST OF LAKEVIEW BLVD.; AND, PROVIDING AN EFFECTIVE DATE.
WHEREAS, after due consideration of the health, safety and welfare of its citizens;
NOW, THEREFORE:
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council finds that:
A. 4984 Partners, Ltd., ("Developer") is the owner of real property in the City
of Denton, Denton County, Texas, described as Lot 1, Block A, Classic Cars Addition, an
Addition to the City of Denton, Denton County, Texas, according to the plat recorded at
Document No. 2014-266, Plat Records, Denton County — County Clerk, Denton County,
Texas ("Property").
B. The Property is suitable for development but was without sewage disposal
services.
C. The City owns and operates sanitary sewer systems throughout the city
("City Sewer Systems").
D. The Developer, at its sole cost and expense, has designed, constructed (or
will have constructed) and installed (or will have installed) the necessary valves, services,
sewage pumping station, force main, gravity sewer mains, manholes, laterals and other
needed improvements at its expense to provide sewage disposal service to the Property
through the City Sewer Systems.
E. To obtain sewage disposal service to the Property the Developer has
installed (or will have installed) a sanitary sewer line from the Property through City park
property and under Dallas Area Rapid Transit ("DART") rail property and connect the
same to the City Sewer Systems.
F. To accommodate the connection of the sanitary sewer line from the
Property to the City Sewer Systems the City granted permission to the Developer to
construct the sanitary sewer line on City park property and obtained a license from
DART for the same to be constructed under DART rail property.
s:\legal\our documents\ordinances\14\4984 reimbursement agreement ordinance.docx
G. The license agreement between the City and DART requires that the
license agreement be renewed annually and that an annual license fee not less than
$1,695.00 be paid by the City ("License Agreement"; A copy of the License Agreement
is attached as Exhibit "A".).
H. The sanitary sewer line constructed by Developer on City park property
and under DART rail property is for the sole and exclusive use of the Property. However,
after the completion and construction of the sanitary sewer line, the portion of the
sanitary sewer line located on City park property and DART rail property will be owned
and maintained by the City.
I. In order to provide sewage disposal services to the Property the Developer
has agreed to reimburse the City for each annual license fee the City pays to DART.
J. The only reason the City has entered into the License Agreement with
DART is the agreement of the Developer to reimburse the City for each annual license
fee it pays to DART.
K. The City entered into the License Agreement with DART on July 17,
2014.
SECTION 2. The City Manager, or his designee, is authorized (a) to execute (i) the City
of Denton Reimbursement Agreement, between the City and Developer, in the form attached as
Exhibit `B"; and (ii) any other documents necessary for closing the transactions contemplated by
the Agreement.
SECTION 3. To the extent any other Ordinance or Resolution is inconsistent with the
provisions herein it is repealed and superseded by the provisions of this Ordinance.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day ofs', 2014.
CI-MPMA
sAlegal\our documents\ordinances\14\4984 reimbursement agreement ordinance.docx
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
w
BY:°
Exhibit A
to
Ordinance
LICENSE AGREEMENT
AGREEMENT NO, 220719
THIS Agreement ("License"), is made by and between DALLAS AREA RAPID TRANSIT
("Licensor"), a regional transportation authority, created, organized and existing pursuant to Chapter 452,
Texas Transportation Code, as amended (the "Act") and CITY OF DENTON ("Licensee"), a Texas home
rule municipal corporation acting herein by and through its duly authorized official, whose mailing
address is 215 E. McKinney Street, Denton, Texas 76201.
Pursuant to an agreement between Licensor and Dallas, Garland and Northeastern Railroad
Company, (hereinafter the "Railroad"), freight railroad operations exist on Licensor's corridor. Pursuant
to an agreement between Licensor and Denton County Transportation Authority (DCTA), passenger
operations exist on Licensor's corridor. Licensor contracts with Herzog Transit Services, Inc. to provide
the DCTA passenger service and Railroad maintenance.
I. Purpose. Licensor hereby grants a license (the "License") to Licensee for the purposes of constructing,
installing, maintaining and operating one 3-inch HDPE sanitary sewer line within one 8-inch steel casing
(the "Permitted Improvement") crossing the Northwest Denton Line approximately 1,723 feet northwest
of Lakeview Boulevard, at Mile Post 726.23, in Denton, Denton County, Texas, more particularly
described as shown in Exhibit "A", dated June 2014, attached hereto and incorporated herein for all
pertinent purposes, (the "Property").
The Property shall be used by Licensee solely for the purpose of operating and maintaining the
Permitted Improvement (the "Permitted Use"). Licensee's right to enter upon and use the Property shall
be limited solely to the Permitted Use and the Permitted Improvement,
2. Term. The effective date ("Effective Date") of this License shall begin on the later of the dates when
signed by the Licensor or Licensee.
2.01. Primary Term. The primary term of this License shall be one (1) year from the Effective
Date of the same, and renewable annually as provided herein.
2.02. Right to Renew. The Licensee shall have the right to renew the License annually.
2.03. Renewal Presumed. This License is presumed to be renewed annually, subject to the
payment of the consideration as required herein, , unless the Licensee gives written notice to Licensor of
earlier termination no later than ninety (90) days prior to the expiration of the term.
3. Consideration.
3.01. The consideration for the granting of this License shall be (a) payment by Licensee to
Licensor the sum of ONE THOUSAND SIX HUNDRED NINETY FIVE AND NO1100 ($1,695.00)
DOLLARS per annum, payable annually in advance (the "License Fee"), and (b) the performance by
Licensee of each of the obligations undertaken by Licensee in this License, PROVIDED, HOWEVER,
that the "License Fee" shall be adjusted annually as follows;
a) The adjustment and change in the License Fee shall be determined according to the cost of
living changes in the Consumer Price Index for All Urban Consumers — (CPI-U), Dallas -Fort
Worth, TX., "All Items", as published by the Bureau of Labor Statistics, U.S. Department of
Labor (the "CP1 Index").
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 1 of 6 Mile Post 726.23
b) The CPI Index figure for the month of July 2014 is hereby fixed and established as the Base
Index Figure in the computation of adjustment of rentals herein provided. At the
commencement of each annual period as provided herein, the CPI Index for the month of
March of such year shall be ascertained and noted and the rent for the next annual period
shall be adjusted by increasing or decreasing the License Fee, percentage -wise as the CPI
Index for the month of March has increased or decreased as compared with the Base Index
Figure as herein fixed, PROVIDED HOWEVER, that under no circumstances shall the
License Fee ever be less than $1,695.00 per year.
c) If any time during the term hereof the U.S. Bureau of Labor Statistics shall discontinue the
issuance of the CAI Index, the parties shall use any other standard nationally recognized cost -
of -living index for the Dallas -Fort Worth area then issued and available, which is published
by the U.S. Government.
d) Acceptance of any License Fee by Licensor after written notice of termination or expiration
of this License shall not waive, reinstate, continue or extend the terms of this License.
e) It shall be the obligation of the Licensor to calculate the License Fee annually and invoice the
Licensee 30 days prior to each anniversary date of the Effective Date of this License. The
invoice shall be mailed to the Director of Finance, City of Denton, 215 E. McKinney St.,
Denton, Texas 76201.
3.02. The payment shall be due on each anniversary date of the Effective Date of this License.
3.03. Acceptance of any License Fee by Licensor after written notice of termination or
expiration of this License shall not waive, reinstate, continue or extend the term of this License.
3.04. Any payment not received by Licensor by the loth day after it is due, shall bear a late
charge of $25.00 to help offset the administrative cost involved in handling such late payment. For any
payment not received by Licensor by the 15th day after it is due, such payment shall bear interest at the
rate of 18% per annum from the date it was due until it is paid, in addition to the late charge.
4. Non Exclusive License. This License is non-exclusive and is subject to (a) any existing utility,
drainage or communication facility located in, on, under, or upon the Property owned by Licensor, any
Railroad, utility, or communication company, public or private; (b) all vested rights presently owned by
any Railroad, utility or communication company, located within the boundaries of the Property; and (c)
any existing lease, license or other interest in the Property granted by Licensor to any individual,
corporation or other entity, public or private.
5. Design, Construction, Operation and Maintenance. Licensor's use of the Property and
adjoining property may include the use of electrically powered equipment. Notwithstanding Licensor's
inclusion within its system of measures designed to reduce stray current which may cause corrosion,
Licensee is hereby warned that such measures may not prevent electrical current being present in
proximity to the Permitted Improvement and that such presence could produce corrosive effects to
the Permitted Improvement. Licensee waives any claim and releases Licensor with regard to any
claim arising from such corrosion.
5.01. All design, construction, reconstruction, replacement, removal, operation and
maintenance of the Permitted Improvement on the Property shall be done in such a manner so as not to
interfere in any way with the operations of Licensor or other Railroad operations. In particular, cathodic
protection or other stray current corrosion control measures of the Permitted Improvement as required
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 2 of 7 Mile Post 726.23
shall be made a part of the design and construction of the Permitted Improvement.
5.02. During the design phase and prior to commencing any construction on the Property, a
copy of the construction plans showing the exact location, type and depth of the construction, any
cathodic protection measures and any working area, shall be submitted for written approval to Licensor
and Railroad. Such approval shall not be unreasonably withheld. No work shall commence until said
plans have been approved by Licensor.
5.03. Licensee agrees to design, construct and maintain the Permitted Improvement in such a
manner so as not to create a hazard to the use of the Property, and further agrees to pay any damages
which may arise by reason of Licensee's use of the Property.
5.04. Licensee covenants and agrees to institute and maintain a reasonable testing program to
determine whether or not additional cathodic protection of its Permitted Improvement is necessary and if
it is or should become necessary, such protection shall be immediately instituted by Licensee at its sole
cost and expense.
5.05. Licensor makes no warranty regarding subsurface installations on the Property.
Licensee shall conduct its own inspection of same and will not rely on the absence or presence of
markers.
5.06. Licensee shall provide to Licensor final construction drawings ("as-builts") that are
signed and sealed by a Texas Professional Engineer within sixty (1160") days of completion of the
project.
6. Governmental Approvals. Licensee, at its sole cost and expense, shall be responsible for and
shall obtain, any and all licenses, permits, or other approvals from any and all governmental agencies,
federal, state or local, required to carry on any activity permitted herein.
7. Licensor's Standard Contract and Insurance. No work on the Property shall be commenced
by Licensee or any contractor for Licensee until such Licensee or contractor shall have executed Licensor
's Construction Agreement and Contractor's Right of Entry covering such work, and has furnished
insurance coverage in such amounts and types as shall be satisfactory to Licensor. A company -issued
photo identification of Licensee's employees, contractors or agents shall be required to work on the
Property.
8. Duty of Care in Construction. Licensee or its contractor shall use reasonable care during the
construction period and thereafter, to avoid damaging any existing buildings, equipment and vegetation
on or about the Property and any adjacent property owned by or under the control of Licensor, If the
Licensee or its contractor causes damage to the Property or any adjacent property, cite Licensee and/or its
contractor shall immediately replace or repair the damage at no cost or expense to Licensor, If Licensee
or its contractor fails or refuses to make or effect any such repair or replacement, Licensor shall have the
right, but not the obligation, to make or effect any such repair or replacement at the sole com and expense
of Licensee, which cost and expense Licensee agrees to pay to Licensor upon demand.
9. Environmental Protection.
9.01. Licensee shall not use or permit the use of the. Property for any purpose that may be ill
violation of any local, state or federal laws pertaining to licalth or the environment, including but not
limited to, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
the Resource Conservation and Recovery Act ("RCRA"), the Clean Water Act. ("C A") and the Clean
Air Act ("CAA").
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 3 of 7 Mile Post 726.23
9.02. Licensee warrants that the Permitted Use of the Property will not result in the disposal or
other release of any hazardous substance or solid waste on or to the Property, and that it will take all steps
necessary to ensure that no such hazardous substance or solid waste will ever be discharged onto the
Property by Licensee or its Contractors.
9.03. Tile terms "hazardous substance" and "release" shall have the meanings specified in
CERCLA and the terms "solid waste" and "disposal" (or "disposed") shall have the meanings specified in
the RCRA; PROVIDED, HOWEVER, that in the event either CERCLA or RCRA is amended so as to
broaden the meaning of any tern defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment; and PROVIDED FURTHER, that to the extent that the laws of the
State of Texas establish a meaning for "hazardous substance", "release", "solid waste", or "disposal",
which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply.
9.04. Licensee shall indemnify, defend and hold Licensor, Railroad, DCTA and Herzog
Transit Services, Inc. harmless, to the extent allowed by law applicable to Texas home -rule
municipalities, against all cost of environmental clean up to the Property resulting from Licensee's
use of the Property under this License.
10. Mechanic's Liens Not Permitted. Licensee shall fully pay for all labor and materials used in,
on, or about the Property and will not permit or suffer any mechanic's or materialmen's liens of any nature
to be affixed against the Property by reason of any work done or materials furnished to the Property at
Licensee's instance or request.
11. Maintenance of Completed Improvements. The Permitted Improvement shall be maintained
by the Licensee in such a manner as to keep the Property in a good and safe condition with respect to
Licensee's use. In the event the Licensee fails to maintain the Property as required, upon discovery,
Licensor shall notify Licensee of such occurrence in writing. In the event Licensee shall not have
remedied the failure within ten (10) days from the date of such notice, Licensor shall have the right, but
not the obligation to remedy such failure at the sole cost and expense of Licensee. In the event Licensor
exercises its right to remedy Licensee's failure, Licensee agrees to immediately pay to Licensor all costs
incurred by Licensor upon demand.
12. Future Use by Licensor.
12.01. This License is made expressly subject and subordinate to the right of Licensor to use the
Property for any purpose whatsoever.
12.02. In the event that Licensor shall, at any time subsequent to the date of this License, at its
sole discretion, determine that the relocation of the Permitted Improvement shall be necessary or
convenient for Licensor's use of the Property, Licensee shall, at its sole cost and expense relocate said
Permitted Improvement so as not to interfere with Licensor's or Licensor's assigns use of the Property.
In this regard, Licensor may, but is not obligated to, designate other property for the relocation of the
Permitted Improvement. Licensor shall give a minimum of one hundred eighty (180) days written notice
of any required relocation. Licensee shall promptly commence to make the required changes thereafter
and shall diligently complete the relocation as required within a reasonable period.
13. Relocation Benefits. The parties hereto agree that the construction of the Permitted
Improvement on the Property shall be subsequent to the acquisition of the Property by Licensor and that
Licensee does hereby waive any and all claim that it may have under the Act, or otherwise, regarding the
payment of any and all relocation benefits and that all costs associated with any relocation of such
Improvements shall be borne by Licensee.
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 4 of 7 Mile Post 726.23
14. Duration of License. This License shall terminate and be of no further force and effect (a) in the
event Licensee shall discontinue or abandon the use of tine Permitted Improvement; (b) in the event
Licensee shall relocate the Permitted Improvement from the Property; (c) upon termination in accordance
with paragraph 19 of this License, whichever event first occurs.
15. Compliance With Laws and Regulations. Licensee agrees to abide by and be governed by
all laws, ordinances and regulations of any and all governmental entities having jurisdiction over
the Licensee and by railroad regulations, policies and operating procedures established by the
Railroad, or other applicable railroad regulating bodies, and Licensee agrees to indemnify and hold
Licensor harmless, to the extent allowed by law applicable to Texas home -rule municipalities, from
any failure to so abide and all actions resulting therefrom.
16. Indemnification. Licensee shall at all times protect, indemnify, defend and hold Licensor
and the Railroad harmless, to the extent allowed by law applicable to Texas home -rule
municipalities, against and from any and all loss, cost, damage or expense, including attorney's fees
and including, without limitation, claims of negligence, arising out of this License (including by
example and not limitation, Licensee's acts or failure to act hereunder), Licensee's use in any way
of the Property, or arising from any accident or other occurrence on or about the Property,
resulting in personal injury, death, or property damage, except to the extent fault is judicially
determined against Licensor.
17. Termination of License. At such time as this License may be terminated or canceled for any
reason whatsoever, Licensee, upon request by Licensor, shall remove all improvements and
appurtenances owned by it, situated in, on, under or attached to the Property, regardless of whether or not
such improvements were placed thereon by Licensee, and shall restore the Property to a condition
satisfactory to Licensor, at Licensee's sole expense.
18. Assignment. Licensee shall not assign or transfer its rights under this License in whole or in
part, or permit any other person or entity to use the License hereby granted without the prior written
consent of Licensor which Licensor is under no obligation to grant.
19. Methods of Termination. This License may be terminated in either of the following ways:
19.01. By written agreement of both parties; or
19.02. By either party giving the other parry one hundred eighty (180) days written notice; or.
19.03. By expiration of the term of the License without further renewal.
20. Miscellaneous.
20.01. Notice. When notice is permitted or required by this License, it shall be in writing and
shall be deemed delivered when delivered in person or when placed, postage prepaid, in the U.S. Mail,
Certified, Return Receipt Requested, and addressed to the parties at the following addresses:
LICENSOR: Dallas Area Rapid Transit OR
1401 Pacific Avenue P. O. Box 660163
Dallas, Texas 75202-7210 Dallas, Texas 75266-7210
ATTN: Railroad Management
Denton -NW of Lakeview Blvd,
Sanitary Sewer Line Page 5 of 7 Mile Post 726.23
LICENSEE: City of Denton
215 E. McKinney Street
Denton, Texas 76102
Either party may from time to time designate another and different address for receipt of notice
by giving written notice of such change of address.
20.02. Governing Law. This License shall be construed under and in accordance with the laws
of the State of Texas.
20.03. Entirety and Amendments. This License embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, relating to the Property and the
matters addressed herein, and may be amended or supplemented only by a written instrument executed by
the party against whom enforcement is sought.
20.04. Parties Bound, This License shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
20.05. Number and Gender. Words of any gender used in this License shall be held and
construed to include any other gender; and words in the singular shall include the plural and vice versa,
unless the text clearly requires otherwise.
20.06. No Joint Enterprise. The parties do not intend that this License be construed as finding
that the parties have formed a joint enterprise. The purposes for which each party has entered into this
License are separate and distinct. It is not the intent of any of the parties that a joint enterprise
relationship is being entered into and the parties hereto specifically disclaim such relationship. This
License does not constitute a joint enterprise, as there are no common pecuniary interests, no common
purpose and no equal right of control among the parties hereto.
20.07. Counterparts. The parties may execute this Agreement in multiple originals and when
taken together, those originals constitute a whole.
Denton -NW of Lakeview Blvd,
Sanitary Sewer Line Page 6 of 7 Mile Post 726.23
IN WITNESS WHEREOF, the parties have executed this License in multiple originals on the date last
signed,
LICENSOR: DALLAS AREA RAPID TRANSIT
BY:
�0 A DE LA CARZA A R RO
' I
Vice President
C01111111tir Rail & Railroad a11419elnelit
Date: 1? - / 7 1 i IV,
LICENSEE: CITY OF DENTON
BY:
GEORGE C. CAMPBELL
City Manager
Date-6 2 �/�
Denton -NW of Lakeview Blvd,
Sanitary Sewer Line Page 7 of 7 Mile Post 726.23
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Citv of Denton Reimbursement Agreement
(Regarding DART License Fee)
This City of Denton Reimbursement Agreement ("the Agreement") is between the City
of Denton, Texas, a Texas municipal corporation ("City"), and 4984 Partners, Ltd., a Texas
limited partnership ("Developer"). City and Developer shall collectively be referred to as the
"Parties." The effective date of the Agreement is the date last signed by either the City or the
Developer.
A. Recitals
1. The Developer is the owner of real property in the City of Denton, Denton
County, Texas, described as Lot 1, Block A, Classic Cars Addition, an Addition to the City of
Denton, Denton County, Texas, according to the plat recorded at Document No. 2014-266, Plat
Records, Denton County — County Clerk, Denton County, Texas ("Property").
2. The Property is suitable for development but was without sewage disposal
services.
3. The City owns and operates sanitary sewer systems throughout the city ("City
Sewer Systems").
4. The Developer, at its sole cost and expense, has designed, constructed (or will
have constructed) and installed (or will have installed) the necessary valves, services, sewage
pumping station, force main, gravity sewer mains, manholes, laterals and other needed
improvements at its expense to provide sewage disposal service to the Property through the City
Sewer Systems.
5. To obtain sewage disposal service to the Property the Developer has installed (or
will have installed) a sanitary sewer line from the Property through City park property and under
Dallas Area Rapid Transit ("DART") rail property and connect the same to the City Sewer
Systems.
6. To accommodate the connection of the sanitary sewer line from the Property to
the City Sewer Systems the City granted permission to the Developer to construct the sanitary
sewer line on City park property and obtained a license from DART for the same to be
constructed under DART rail property.
7. The license agreement between the City and DART requires that the license
agreement be renewed annually and that an annual license fee not less than $1,695.00 be paid by
the City ("License Agreement"; A copy of the License Agreement is attached as Exhibit "A".).
8. The sanitary sewer line constructed by Developer on City park property and under
DART rail property is for the sole and exclusive use of the Property. However, after the
completion and construction of the sanitary sewer line, the portion of the sanitary sewer line
located on City park property and DART rail property will be owned and maintained by the City.
Page 1 of 6 - City of Denton Reimbursement Agreement
9. In order to provide sewage disposal services to the Property the Developer has
agreed to reimburse the City for each annual license fee the City pays to DART.
10. The Parties desire to enter into the Agreement setting forth the mutual
understandings and undertakings regarding the reimbursement to the City by Developer of each
annual license fee required by DART under the terms of the license agreement between the City
and DART.
Therefore, in consideration of the mutual covenants contained in the Agreement, and
other good and valuable consideration, the receipt and adequacy of which the parties
acknowledge, the Parties agree as follows:
B. Agreements
1. Reimbursement of Annual License Fee. The Developer shall reimburse the
City for all amounts the City pays to DART in accordance with the terms of License Agreement
so long as the License Agreement remains in full force and effect.
a. Annual Payment Amount; Payment Due Date; Place of Payment. The
annual payment amount payable to the City (payable to the order of the "City of Denton,
Texas") from Developer shall be $1,695.00 ("Annual Payment"). Beginning in 2015,
Developer shall make the Annual Payment to the City on or before August 31 of each
year. The Annual Payment shall be delivered to the City at City of Denton, Texas,
Finance Department, 901A Texas St., Denton, Texas 76210 or any other place that the
City may designate in writing.
b. Reimbursement of Annual License Fees That Exceed the Annual Payment
Amount. If the annual license fee paid by the City to DART exceeds the Annual Payment
the Developer paid to the City, the City will notify the Developer in writing of the
difference in the amount. The Developer shall pay that amount within 15 days of the
receipt of the written notice from the City.
C. Annual Interest Rate on Unpaid Amounts. Unpaid amounts include
amounts in both B. La. and B.2.b which remain unpaid after the date in which those
respective amounts were due ("Unpaid Amounts"). The annual interest rate on all Unpaid
Amounts is ten (10.0%) percent.
2. City May File Lien Against Property for Unpaid Amounts. The City may, at
anytime, file a lien in the Real Property Records, Denton County, Texas, against the Property for
any and all Unpaid Amounts.
a. Contents of the Lien. The lien shall include a sworn statement of the
unpaid amounts claimed, the name and last known address of the owner of the Property, a
general statement indicate the period covered and amount owed for that period, and a
description, legally sufficient for identification of the Property sought to be charges with
the lien.
Page 2 of 6 - City of Denton Reimbursement Agreement
b. Notice of Filed Lien. The City shall send a copy of the lien by registered
or certified mail to the owner of the Property at the owner's last known address not later
than the tenth day after the date the notice is filed in the Real Property Records, Denton
County, Texas.
3. Limitations for Collection or Foreclosure Waived; Other Rights and Remedies
Not Waived. The Developer waives any and all statute of limitation periods that may be
applicable to the City pursuant to the Agreement for either the collection of any unpaid amounts
owed by Developer or foreclosure of any of the liens filed against the Property. The City does
not waive all other rights and remedies, at law or in equity, it may have for breach of the
Agreement.
4. Covenants Running with the Land. The Parties agree that the provisions of this
Agreement will be deemed to be covenants running with the land that are for the benefit of, and
create burdens on, the Property.
5. Binding Effect. This Agreement binds, benefits, and may be enforced by the
successors in interest to the parties.
6. Choice of Law. This Agreement will be construed under the laws of the state of
Texas, without regard to choice -of -law rules in any jurisdiction. Venue is in Denton County,
Texas.
7. Attorney's Fees. If either party retains an attorney to enforce this Agreement,
the party prevailing in litigation will be entitled to recover reasonable attorney's fees and court
and other costs.
8. Severability. If a provision in the Agreement is unenforceable for any reason, to
the extent the unenforceability does not destroy the basis of the bargain among the parties, the
unenforceability does not affect any other provision of this agreement, and the Agreement will
be construed as if the unenforceable provision had never been a part of the same.
9. Remedies Cumulative. Except as otherwise provided herein, all rights,
privileges, and remedies afforded the parties by the Agreement will be deemed cumulative and
not exclusive and the exercise of any remedy will not be deemed to be a waiver of any other
right, remedy, or privilege provided for herein or available at law or in equity. It is expressly
understood that a recovery in damages may not be an adequate remedy for a violation of the
provisions of the Agreement and that the granting of equitable remedies may, and probably will,
be necessary.
10. Captions. Captions used in the Agreement are for convenience only and will not
be considered as a limitation on or an expansion of the terms of the Agreement.
11. Construction of Agreement. The terms and provisions of the Agreement are the
result of negotiation between the Parties and neither of which has acted under duress or
compulsion, legal, economic, or otherwise. Consequently, the terms and provisions of this
agreement will be interpreted and construed in accordance with their usual and customary
Page 3 of 6 - City of Denton Reimbursement Agreement
meanings, and the parties expressly waive and disclaim any rule of law or procedure interpreting
or construing this agreement otherwise, including, without limitation, any rule of law to the
effect that ambiguous or conflicting terms or provisions in this agreement must be interpreted or
construed against the party whose attorney prepared this agreement or any draft hereof.
12. Other Instruments. The Parties to the Agreement covenant and agree that they
will execute any further instruments and agreements necessary or convenient to carry out the
purposes of the Agreement.
13. Entire Agreement. The Agreement is the entire agreement of the Parties
concerning the matters described herein. There are no representations, agreements, warranties, or
promises, and neither party is relying on any statements or representations of any agent of the
other party, that are not in the Agreement.
14. Notices. Any notice required or permitted under the Agreement must be in
writing. Any notice required by the Agreement will be deemed to be delivered (whether actually
received or not) when deposited with the United States Postal Service, postage prepaid, certified
mail, return receipt requested, and addressed to the intended recipient at the address shown in the
Agreement. Notice may also be given by regular mail, personal delivery, courier delivery,
facsimile transmission, or other commercially reasonable means and will be effective when
actually received. Any address for notice may be changed by written notice delivered as
provided herein. As of the date of the Agreement notices shall be sent to:
City of Denton, Texas ("City")
City of Denton — Legal Department
215 E. McKinney St.
Denton, Texas 76201
4984 Partners, Ltd. ("Developer")
4984 Partners, Ltd.
c/o 4984 Land, LLC, General Partner
Thomas R. Durant, Registered Agent
1101 State Highway 114
Grapevine, Texas 76099
15. No Third -Party Beneficiaries. Nothing in the Agreement, expressed or implied,
is intended or may be construed to confer on any person or entity, other than the Parties and their
respective successors, and assigns, any right, remedy, or claim by reason of the Agreement. This
agreement is intended for the sole and exclusive benefit of the parties and their respective
successors and assigns.
16. Time. Time is of the essence with respect to each covenant, agreement, and
obligation of the Parties set forth in the Agreement.
Page 4 of 6 - City of Denton Reimbursement Agreement
17. Counterparts. If the Agreement is executed in multiple counterparts, all
counterparts taken together will constitute the Agreement.
4984 Partners, Ltd., a Texas limited partnership ("Developer")
Executed on the day of , 2014.
By: 4984 Land, LLC, a Texas limited liability company, and its Sole General Partner and
Managing Partner
By _A996vz paulV+t
Thomas R. Durant, President
City of Denton, Texas ("City")
Executed on the 5"?/ day of _ Cf , � a 2014.
By:
George Campbell, City Manager
Page 5 of 6 - City of Denton Reimbursement Agreement
Acknowledgements
State of Texas
Denton County
f
1`his instrument was acknowledged before me on the day of
, 2014 by George Campbell, City Manager, City of Denton,
Texas, a lexas municipal corporation, on behalf of the City of Denton, Texas.
im-
JAN t. I A S
June 27, 2 1 '
,--- Nota6 Pubfic, State of Texas
State of Texas §
Denton County §
Zhis instrument was acknowledged before me on the day of
►.�,.�.� � , 2014, Thomas R. Durant, President of a 4984 Land, LLC, a
Texas limited liability company, in its capacity as Sole General Partner and Managing Partner of
4984 Partners, Ltd., and acknowledged to me that the same is the act of 4984 Partners, Ltd, a
Texas limited partnership, on behalf of said limited liability company, on behalf of said limited
partnership.
TAMMY KIMBER
d MY COMMISSION EXPIRES
[stamp
May 15, 2016
Ur
After recording, return to:
Paul Williamson, Real Estate Manager
City of Denton
City Service Center
901 A Texas St.
Denton, Texas 76210
Nel
otary Ali , Sta a of Texas
Page 6 of 6 - City of Denton Reimbursement Agreement
Exhibit A
to
Reimbursement Agreement
AGREEMENT NO.220719
LICENSE AGREEMENT
THIS Agreement ("License"), is made by and between DALLAS AREA RAPID TRANSIT
("Licensor"), a regional transportation authority, created, organized and existing pursuant to Chapter 452,
Texas Transportation Code, as amended (the "Act") and CITY OF DENTON ("Licensee"), a Texas home
rule municipal corporation acting herein by and through its duly authorized official, whose mailing
address is 215 E. McKinney Street, Denton, Texas 76201.
Pursuant to an agreement between Licensor and Dallas, Garland and Northeastern Railroad
Company, (hereinafter the "Railroad"), freight railroad operations exist on Licensor's corridor. Pursuant
to an agreement between Licensor and Denton County Transportation Authority (DCTA), passenger
operations exist on Licensor's corridor. Licensor contracts with Herzog Transit Services, Inc. to provide
the DCTA passenger service and Railroad maintenance.
1. Purpose. Licensor hereby grants a license (the "License") to Licensee for the purposes of constructing,
installing, maintaining and operating one 3-inch HDPE sanitary sewer line within one 8-inch steel casing
(the "Permitted Improvement") crossing the Northwest Denton Line approximately 1,723 feet northwest
of Lakeview Boulevard, at Mile Post 726.23, in Denton, Denton County, Texas, more particularly
described as shown in Exhibit "A", dated June 2014, attached hereto and incorporated herein for all
pertinent purposes, (the "Property").
The Property shall be used by Licensee solely for the purpose of operating and maintaining the
Permitted Improvement (tile "Permitted Use"). Licensee's right to enter upon and use the Property shall
be limited solely to the Permitted Use and the Permitted Improvement,
2. Term. The effective date ("Effective Date") of this License shall begin on the later of the dates when
signed by the Licensor or Licensee.
2.01. Primary Term. The primary term of this License shall be one (1) year from the Effective
Date of the same, and renewable annually as provided herein.
2.02. Right to Renew. The Licensee shall have the right to renew the License annually.
2.03. Renewal Presumed. This License is presumed to be renewed annually, subject to the
payment of the consideration as required herein, , unless the Licensee gives written notice to Licensor of
earlier termination no later than ninety (90) days prior to the expiration of the term.
3. Consideration.
3.01. The consideration for the granting of this License shall be (a) payment by Licensee to
Licensor the sum of ONE THOUSAND SIX HUNDRED NINETY FIVE AND N0/100 ($1,695.00)
DOLLARS per annum, payable annually in advance (the "License Fee"), and (b) the performance by
Licensee of each of the obligations undertaken by Licensee in this License, PROVIDED, HOWEVER,
that the "License Fee" shall be adjusted annually as follows:
a) The adjustment and change in the License Fee shall be determined according to the cost of
living changes in the Consumer Price Index for All Urban Consumers — (CPI-U), Dallas -Fort
Worth, TX., "All Items", as published by the Bureau of Labor Statistics, U.S. Department of
Labor (the "CPI Index").
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 1 of 6 Mile Post 726.23
b) The CPI Index figure for the month of July 2014 is hereby fixed and established as the Base
Index Figure in the computation of adjustment of rentals herein provided. At the
commencement of each annual period as provided herein, the CPI Index for the month of
March of such year shall be ascertained and noted and the rent for the next annual period
shall be adjusted by increasing or decreasing the License Fee, percentage -wise as the CPI
Index for the month of March has increased or decreased as compared with the Base Index
Figure as herein fixed, PROVIDED HOWEVER, that under no circumstances shall the
License Fee ever be less than $1,695.00 per year.
c) If any time during the term hereof the U.S. Bureau of Labor Statistics shall discontinue the
issuance of the CAI Index, the parties shall use any other standard nationally recognized cost -
of -living index for the Dallas -Fort Worth area then issued and available, which is published
by the U.S. Government.
d) Acceptance of any License Fee by Licensor after written notice of termination or expiration
of this License shall not waive, reinstate, continue or extend the terms of this License.
e) It shall be the obligation of the Licensor to calculate the License Fee annually and invoice the
Licensee 30 days prior to each anniversary date of the Effective Date of this License. The
invoice shall be mailed to the Director of Finance, City of Denton, 215 E. McKinney St.,
Denton, Texas 76201.
3.02. The payment shall be due on each anniversary date of the Effective Date of this License.
3.03. Acceptance of any License Fee by Licensor after written notice of termination or
expiration of this License shall not waive, reinstate, continue or extend the term of this License.
3.04. Any payment not received by Licensor by the loth day after it is due, shall bear a late
charge of $25.00 to help offset the administrative cost involved in handling such late payment. For any
payment not received by Licensor by the 15th day after it is due, such payment shall bear interest at the
rate of 18% per annum from the date it was due until it is paid, in addition to the late charge.
4. Non Exclusive License. This License is non-exclusive and is subject to (a) any existing utility,
drainage or communication facility located in, on, under, or upon the Property owned by Licensor, any
Railroad, utility, or communication company, public or private; (b) all vested rights presently owned by
any Railroad, utility or communication company, located within the boundaries of the Property; and (c)
any existing lease, license or other interest in the Property granted by Licensor to any individual,
corporation or other entity, public or private.
5. Design, Construction, Operation and Maintenance. Licensor's use of the Property and
adjoining property may include the use of electrically powered equipment. Notwithstanding Licensor's
inclusion within its system of measures designed to reduce stray current which may cause corrosion,
Licensee is hereby warned that such measures may not prevent electrical current being present in
proximity to the Permitted Improvement and that such presence could produce corrosive effects to
the Permitted Improvement. Licensee waives any claim and releases Licensor with regard to any
claim arising from such corrosion.
5.01. All design, construction, reconstruction, replacement, removal, operation and
maintenance of the Permitted Improvement on the Property shall be done in such a manner so as not to
interfere in any way with the operations of Licensor or other Railroad operations. In particular, cathodic
protection or other stray current corrosion control measures of the Permitted Improvement as required
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 2 of 7 Mile Post 726.23
shall be made a part of the design and construction of the Permitted improvement.
5.02. During the design phase and prior to commencing any construction on the Property, a
copy of the construction plans showing the exact location, type and depth of the construction, any
cathodic protection measures and any working area, shall be submitted for written approval to Licensor
and Railroad. Such approval shall not be unreasonably withheld. No work shall commence until said
plans have been approved by Licensor.
5.03. Licensee agrees to design, construct and maintain the Permitted Improvement in such a
manner so as not to create a hazard to the use of the Property, and further agrees to pay any damages
which may arise by reason of Licensee's use of the Property.
5.04. Licensee covenants and agrees to institute and maintain a reasonable testing program to
determine whether or not additional cathodic protection of its Permitted Improvement is necessary and if
it is or should become necessary, such protection shall be immediately instituted by Licensee at its sole
cost and expense.
5.05. Licensor makes no warranty regarding subsurface installations on the Property.
Licensee shall conduct its own inspection of same and will not rely on the absence or presence of
markers.
5.06. Licensee shall provide to Licensor final construction drawings ("as-builts") that are
signed and scaled by a Texas Professional Engineer within sixty (116011) days of completion of the
project.
6. Governmental Approvals. Licensee, at its sole cost and expense, shall be responsible for and
shall obtain, any and all licenses, permits, or other approvals from any and all governmental agencies,
federal, state or local, required to carry on any activity permitted herein.
7. Licensor's Standard Contract and Insurance. No work on the Property shall be commenced
by Licensee or any contractor for Licensee until such Licensee or contractor shall have executed Licensor
's Construction Agreement and Contractor's Right of Entry covering such work, and has furnished
insurance coverage in such amounts and types as shall be satisfactory to Licensor. A company -issued
photo identification of Licensee's employees, contractors or agents shall be required to work on the
Property.
8. Duty of Care in Construction. Licensee or its contractor shall use reasonable care during the
construction period and thereafter, to avoid damaging any existing buildings, equipment and vegetation
on or about the Property and any adjacent property owned by or under the; control of Licensor. if the
Licensee or its contractor causes damage to the Property or any adjacent property, the Licensee and/or its
contractor shall immediately replace or repair the damage at no cost or expense to Licensor. If Licensee
or its contractor fails or refuses to make or effect any such repair or replacement, Licensor shall have tine
right, but not the obligation, to make or effect any such repair or replacement at tlae sole cost and expense
of Licensee, which cost and expense Licensee agrees to pay to Licensor upon demand.
9. Environmental Protection.
9.01. Licensee shall not use or permit the use of the Property for any purpose~ that may be in
violation of any local, state or federal laws pertaining to health or the environment, including but not
limited to, the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"),
the ReSOLIMe Conservation and recovery Act ('11CRA"), the Clean Water Act ("CWA") and the Clean
Air Act ("CAA").
Denton -NW of Lakeview Blvd,
Sanitary Sewer Line Page 3 of 7 Mile Post 726.23
9.02. Licensee warrants that the Permitted Use of the Property will not result in the disposal or
other release of any hazardous substance or solid waste on or to the Property, and that it will take all steps
necessary to ensure that no such hazardous substance or solid waste will ever be discharged onto the
Property by Licensee or its Contractors.
9.03. The terms "hazardous substance" and "release" shall have the meanings specified in
CERCLA and the terms "solid waste" and "disposal" (or "disposed") shall have the meanings specified in
the RCRA; PROVIDED, HOWEVER, that in the event either CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment; and PROVIDED FURTHER, that to the extent that the laws of the
State of Texas establish a meaning for "hazardous substance", "release", "solid waste", or "disposal",
which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply.
9.04. Licensee shall indemnify, defend and hold Licensor, Railroad, DCTA and Herzog
Transit Services, Inc. harmless, to the extent allowed by law applicable to Texas home -rule
municipalities, against all cost of environmental clean up to the Property resulting from Licensee's
use of the Property under this License.
10. Mechanic's Liens Not Permitted. Licensee shall fully pay for all labor and materials used in,
on, or about the Property and will not permit or suffer any mechanic's or materialmen's liens of any nature
to be affixed against the Property by reason of any work done or materials furnished to the Property at
Licensee's instance or request.
11. Maintenance of Completed Improvements. The Permitted Improvement shall be maintained
by the Licensee in such a manner as to keep the Property in a good and safe condition with respect to
Licensee's use. In the event the Licensee fails to maintain the Property as required, upon discovery,
Licensor shall notify Licensee of such occurrence in writing. In the event Licensee shall not have
remedied the failure within ten (10) days from the date of such notice, Licensor shall have the right, but
not the obligation to remedy such failure at the sole cost and expense of Licensee. In the event Licensor
exercises its right to remedy Licensee's failure, Licensee agrees to immediately pay to Licensor all costs
incurred by Licensor upon demand.
12. Future Use by Licensor.
12.01. This License is made expressly subject and subordinate to the right of Licensor to use the
Property for any purpose whatsoever.
12.02. In the event that Licensor shall, at any time subsequent to the date of this License, at its
sole discretion, determine that the relocation of the Permitted Improvement shall be necessary or
convenient for Licensor's use of the Property, Licensee shall, at its sole cost and expense relocate said
Permitted Improvement so as not to interfere with Licenser's or Licensor's assigns use of the Property.
In this regard, Licensor may, but is not obligated to, designate other property for the relocation of the
Permitted Improvement. Licensor shall give a minimum of one hundred eighty (180) days written notice
of any required relocation. Licensee shall promptly commence to make the required changes thereafter
and shall diligently complete the relocation as required within a reasonable period.
13. Relocation Benefits. The parties hereto agree that the construction of the Permitted
Improvement on the Property shall be subsequent to the acquisition of the Property by Licensor and that
Licensee does hereby waive any and all claim that it may have under the Act, or otherwise, regarding the
payment of any and all relocation benefits and that all costs associated with any relocation of such
Improvements shall be borne by Licensee.
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 4 of 7 Mile Post 726.23
14. Duration of License. This License shall terminate and be of no further force and effect (a) in the
event Licensee shall discontinue or abandon the use of the Permitted Improvement; (b) in the event
Licensee shall relocate the Permitted Improvement from the Property; (c) upon termination in accordance
with paragraph 19 of this License, whichever event first occurs.
15. Compliance With Laws and Regulations. Licensee agrees to abide by and be governed by
all laws, ordinances and regulations of any and all governmental entities having jurisdiction over
the Licensee and by railroad regulations, policies and operating procedures established by the
Railroad, or other applicable railroad regulating bodies, and Licensee agrees to indemnify and hold
Licensor harmless, to the extent allowed by law applicable to Texas home -rule municipalities, from
any failure to so abide and all actions resulting therefrom.
16. Indemnification. Licensee shall at all times protect, indemnify, defend and hold Licensor
and the Railroad harmless, to the extent allowed by law applicable to Texas home -rule
municipalities, against and from any and all loss, cost, damage or expense, including attorney's fees
and including, without limitation, claims of negligence, arising out of this License (including by
example and not limitation, Licensee's acts or failure to act hereunder), Licensee's use in any way
of the Property, or arising from any accident or other occurrence on or about the Property,
resulting in personal injury, death, or property damage, except to the extent fault is judicially
determined against Licensor.
17. Termination of License. At such time as this License may be terminated or canceled for any
reason whatsoever, Licensee, upon request by Licensor, shall remove all improvements and
appurtenances owned by it, situated in, on, under or attached to the Property, regardless of whether or not
such improvements were placed thereon by Licensee, and shall restore the Property to a condition
satisfactory to Licensor, at Licensee's sole expense.
18. Assignment. Licensee shall not assign or transfer its rights under this License in whole or in
part, or permit any other person or entity to use the License hereby granted without the prior written
consent of Licensor which Licensor is under no obligation to grant.
19. Methods of Termination. This License may be terminated in either of the following ways:
19.01. By written agreement of both parties; or
19.02, By either party giving the other party one hundred eighty (180) days written notice; or.
19.03. By expiration of the term of the License without further renewal.
20. Miscellaneous.
20.01. Notice. When notice is permitted or required by this License, it shall be in writing and
shall be deemed delivered when delivered in person or when placed, postage prepaid, in the U.S. Mail,
Certified, Return Receipt Requested, and addressed to the parties at the following addresses:
LICENSOR: Dallas Area Rapid Transit OR
1401 Pacific Avenue
Dallas, Texas 75202-7210
ATTN: Railroad Management
P. O. Box 660163
Dallas, Texas 75266-7210
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 5 of 7 Mile Post 726,23
LICENSEE: City of Denton
215 E. McKinney Street
Denton, Texas 76102
Either party may from time to time designate another and different address for receipt of notice
by giving written notice of such change of address.
20.02. Governing Law. This License shall be construed under and in accordance with the laws
of the State of Texas.
20.03. Entirety and Amendments. This License embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, relating to the Property and the
matters addressed herein, and may be amended or supplemented only by a written instrument executed by
the party against whom enforcement is sought.
20.04. Parties Bound. This License shall be binding upon and inure to the benefit of the
executing parties and their respective heirs, personal representatives, successors and assigns.
20.05. Number and Gender. Words of any gender used in this License shall be held and
construed to include any other gender; and words in the singular shall include the plural and vice versa,
unless the text clearly requires otherwise.
20.06. No Joint Enterprise. The parties do not intend that this License be construed as finding
that the parties have formed a joint enterprise. Tile purposes for which each party has entered into this
License are separate and distinct. It is not the intent of any of the parties that a joint enterprise
relationship is being entered into and the parties hereto specifically disclaim such relationship. This
License does not constitute a joint enterprise, as there are no common pecuniary interests, no common
purpose and no equal right of control among the parties hereto.
20.07. Counterparts. The parties may execute this Agreement in multiple originals and when
taken together, those originals constitute a whole.
. ........ _.
Denton -NW of Lakeview Blvd
Sanitary Sewer Line Page 6 of 7 Mile Post 726.23
IN WITNESS WHEREOF, the parties have executed this License in multiple originals on the date last
signed.
LICENSOR: DALLAS AREA RAPID TRANSIT
BY.9NOIRklu
A DE LA GARZA- AVARRO
vice President
er Rail & Railroad 'ana ement
Date: ` 17 ' ow,
LICENSEE: CITY OF DENTON
Few �M-
BY:i _ ..
GEORGE C. CAMPBELL�
City Manager
Date: ` /P
Denton -NW of Lakeview Blvd.
Sanitary Sewer Line Page 7 of 7 Mlle Post 726.23
I
A"4 �Hf