1995-079E:\WPDOCS\ORD\PRK.LOT
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 llf' - ay of , ~.
JENNIFER WALTERS, CITY SECRETARY
BY:
APPR V~D ~S ~ LEG~ FORM:
MICHAEL A. BUCEK, ACTING CITY ATTORNEY
BY: ~~-~ __~~
UNION PACIFIC RAILROAD COMPANY
CONTRACTS & REAL ESTATE DEPARTMENT
R.D. UHRICH ~ J.A. ANTHONY
ASSISTANT VICE PRESIDENT DIRECTOR-CONTRACTS &
JOINT FACILITIES
D D BROWN
ROOM 1100. 1416 DODGE STREET DIRECTOR-REAL ESTATE
OMAHA. NEBRASKA68179 J. L HAWKINS
(402) 271-3753 DIRECTOR-OPERATIONS SUPPORT
FAX(402) 271 5493 ~.pril 5 v 1995 D.H. LIGHTWINE
DIRECTOR-REAL ESTATE
W. R ULRICH
DIRECTOR-BUILDING SERVICES
1374-30
U.S. CERTIFIED MAIL
~ETURN RECEIPT REOUESTED
Mr. Michael Bucek
Acting city Attorney
City of Denton
Municipal Building
215 East McKinney
Denton, Texas 76201
Dear Mr. Bucek:
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
hse of a certain property for public parking and for a rails to
trails right of way.
The Railroad Company is agreeable to the following:
1. Description of Property to be exchanqed:
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.
3. City to qrant Railroad Company an easement:
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.
4. Establishment of additional city parkinq south of Hickory St.
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.
5. Donation and relocation of the depot buildlnq:
The Railroad Company will donate the depot building to the
City; whereupon, the city will relocate the depot building to
City property.
6. Relocation of the Railroad Company's material storaqe yard:
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.
7. Retirement of a portion of the existinq spur tracks:
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.
8. ~evi~ion of the Parkinq lease south of Hickory St:
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.
9. Existinq Parkinq lease north of Hickory St:
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,
Senior Manager - Real Estate
Accepted and approved on this /~day of ~ , 19~.
UNION PACIFIC RAILROAD COMPANY CONTRACTS & REAL ESTATE DEPARTMENT
J.A. ANTHONY
Fi D. UHRICH DIRECTOR CONTRACTS &
ASSISTANT VICE PRESIDENT JOINT FACILITIES
D. D BROWN
ROOM ~ 100, 1416 DODGE STREET DIRECTOR-REAL ESTATE
OMAHA NEBRASKA 68179 April 26, 1995 J L. HAWKINS
(402) 271 3753 DIRECTOR-OPERATIONS SUPPORT
FAX (402)271 5493 D.H. LIGHTWlNE
DIRECTOR-REAL ESTATE
w. R. ULRICH
DIRECTOR-BUILDING SERVICES
Folder: 1369-64
MR. MICHAEL BUCEK
ACTING CITY ATTOmIEY - I 1995
CITY OF DENTON
MUNICIPAL BUILDING
215 EAST MCKINNEY CiTY OF DENTON
DENTON TX 76201 LEGAL DEPT.
Dear Mr. Bucek:
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 ~nclosed 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.
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 MISSOURI PACIFIC RAILROAD COMPANY
Title-' Director - Real Estate
0786n
- ~ ~f"'~UNION PACIFIC RAILROAD COMPANY
' CONTRACTS & REAL ESTATE DEPARTMENT
R D. UHRICH ~ J.A. ANTHONY
ASSISTANT VICE PRESIDENT ~ DIRECTOR-CONTRACTS &
JOINT FACILITIES
D. D BROWN
ROOM 1100 1418 DODGE STREET DIRECTOR-REAL ESTATE
OMAHA NEBRASKA 68179 J. L HAWKINS
(402) 271-3753 DIRECTOR-OPERATIONS SUPPORT
FAX(402) 2?1-5493 D. H LIGHTWlNE
DIRECTOR-REAL ESTATE
MAY 3 0 1995 w. R, ULRICH
DIRECTOR-BUILDING SERVICES
Folder: 1369-64
MICHAEL BUCEK ~;= ~:, '-'=L ,!, 't;
ACTING CITY ATTORNEY
CZT¥ OF DENTON JUN- :~ 1995
MUNICIPAL BUILDING
215 ~.AST MC~<INN~,¥ CITY ,.,, ~,~Ju~
LEGAL DEPT.
Dear Mr. Bucek:
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 MISSO~I PACIFIC ~ILROAD COMP~Y's correct Federal Taxpayer
Identification Number and we are doing business as a corporation.
sincerely yours,
~. P. Horn
Folder No: 1369-64
Audit No: 162380
LE~SE OF PROPERTY
THIS LEASE ("Lease") is entered into on the 1st day of
, 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 ann~m 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. /
By: / ~ City Manager
Title: A$$i$~an~ViceP~e$ide,]! T~tle:L d ~. Harrel]
Note: Cancels and Supersedes Lease 162380 Dated 5/26/.92
IND LS 010195
APPROVED, LAW
EXHIBIT B
NO improvements placed upon the Premises by Lessee shall become a part of the realty.
kc~Lon 2. I%KS~VATI0~S Jt~D ~
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 pa~y placement of advertising signs
on the Premises, and (ii) the right to construct, maintain and operate n~ and existing
facilities (including, without limitation, trackage, fences, co~unication facilities, roa~ays
.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.
~e~ 3. PA~ OF ~.
Rent (which includes the annual rent and all other amounts to be paid by Lessee under this
Lease) shall be paid in lawful mDney of the United States of ~erica, at such place as shall be
designated by the Lessor, and without offset or deduction.
A) Lessee shall paF, p~l~ to delinquencF, ~11 t~xes levied du~in~ the li~e c~ thi~ Lease
all pe~sonal p~ope~ 3nd ~mprovements on the ~remises not ~elon~ln~ ~ Les~c~. I~ such taxes
are pa~d b~ Lesso~, eithe~ se~3~atelF or 3s 3 pa~t off the lev~ on Less~r*s re~l pro,ertl, Lessee
shall rel~urse Lessor in full within thirty (30) days after rendition of Lessor's bill.
B) If the ~re~ses are specially assessed for public improvements, the annual rent will be
automatically increased by 12% of the full assessment amount.
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.
~ 6. ~ ~ USE OF
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
property. Lessee shall keep the Premises ina safe, neat, clean and presentable condition, and
in good condition and repair. Lessee shall keep ~he sid~alks and public ways on the Premises,
and the wal~ays appu~enant 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 rei~urse Lessor for all expenses incurred within thi~y (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.
A} Without the prior written consent of Lessor, Lessee shall not use or permit the use of the
~remises for the generation, use, treatment, ~nufacture, production, storage or recycling of any
Haza~ous Substances, except that Lessee may use (i) small quantities of co,on chemicals such as
adhesives, lubricants and cleaning fluids in order to conduct business at the Premises and
other Hazardous Substances, other than hazardous wastes as defined in the Resource Conservation
and Recovery Act, 42 U.S.C. ~ 6901, ~ seq., as amended ("RC~"), that are necessary for the
conduct of Lessee's business at the Premises as specified in A~icle I. The consent of Lessor
~y be withheld by Lessor for any reason whatsoever, and may be subject to conditions in addition
to those set forth bel~. It shall be the sole responsibility of Lessee to determine whether or
not a conte~lated use of the Premises Is a Hazardous Substance use.
B} In no event shall Lessee (l) release, discharge or dispose of any Hazardous Substances, (ii)
bring any hazardous wastes as defined in RC~ onto the Premises, (iii) install or use on the
PreSses any underground storage tanks, or (iv) store any Hazardous Substances within one hundred
feet (100') of the center line of any ~ln track.
Page i of 4
IND LS 010195
APPROVED, LAP~
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 cost and expense.
D) Without limitation of the provisions of Section 12 of this Exhibit
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 Par~y {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
'Par~les, and (ii) 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
Par~les; except where the Hazardous Substance is discovered
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 (l) cause the Premises and/or any adjacent premises
of Lessor to be tested, investigated, or monitored for the presence of any Hazardous Substancet
(ii) cause any Hazardous Substance to be removed from the Premises and any adjacent lands of
Lessor, (iii) 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 Lessorms bill. In addition, Lessor may, at its
election, require Lessee, at Lesseets 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 An advance by Lessor.
F) For purposes of this Section 7, the term ~Hazardous Substance" shall mean (l) 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, et ~q., as amended or in RCRA, ~he 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.
kef/on 8, UTILITIZS.
A) Lessee will arrange and pay for all utilities and services supplied to the Premises or to
Lessee.
B) Ail utilities and services will be separately metered to Lessee. If not separately metered,
Lessee shall pay its proportionate share as reasonably determined by Lessor.
seotio~ 9. LI~l~S.
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 Lesseets use of the Premises.
Lessor shall have the right to discharge any such liens at Lessee~s expense.
~='c:l. on 10. ALTF.~ATiONS
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) Ail 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 (l) 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 complie~ 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.
~cti. on 11. ~-I~.
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.
kctl~ 12. ~%EL~ASlAND INDE)~/TY.
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 Ii) any use of the Premises by Lessee or any invites Or
licensee of Lessee, (ii) any act or omission of Lessee, its officers, agents, employees,
licensees or lnvitess, 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
(1) 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.
~Lm't 13. x~ra,,mlZNATXO~.
A) Lessor may terminate this Lease by giving Lessee notice of termination, if Lessee (l) 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 inunediately 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).
Seatloz* 14. LESSOR'SRPJ4~DIES.
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.
SectzLon 15. VACATI0~IOF PRF~ISES; REMOVAL OFLESSP~'S PROPERTY.
A) Upon termination howsoever of this Lease, Lessee (i) 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, (l) perform the
work and Lessee shall reimburse Lessor for the cost thereof within thirty (30) days after bill is
rendered, {ii} take title to all or any portion of such structures or property by giving notice
of such election to Lessee, and/or (iii) treat Lessee as a holdover tenant at will until such
removal and restoration is completed.
· ec~o~ 16. FIB~OPTZ~.
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 ~ke 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
~amage or destruction of any telecommunications system.
~on 17. NO~XC~S.
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 & 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. Mall. Notices which are personally served or sent
by courier service shall be deemed served upon receipt.
ke~on 18. ~8XCH~NT.
A) Lessee shall not sublease the Premises, in whole or in part, or assign, encumber or transfer
Iby operation of law or othe~iael 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.
ko,on 19.
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 Leeseefs personal property and
fixtures, and the interruption of or damage to Lessee' business.
· mction 20. ATTO~NEY*B FEES.
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.
Seo~Lon 21. I~NTIRgA~M~NT.
This Lease is the entire agreement between the parties, and supersedes all other oral or
written agreements between the par~les pertaining to this transaction. Except for the unilateral
redetermination of annual rent as provided in Article III.A, thls Lease may be amended only by a
written instrument signed by Lessor and Lessee.
Page 4 of 4
'
]c°"°°Pt'/~/c.~ /t/t~r-ae-.~ /c°' Ze~ Ci~A~orn~'s Office
1~ .....~ ~ ...... Ci~ of Denton, T~as
,~ E/~ ~'"-~ Denton, T~as 76201
~ ~c~ ~ (940) 349-8333
GlrY OF D~NTON, r~X~ F~ (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 Famam 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.
Hom, 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
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 Attomey 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. fi 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,
Michael A. Bucek
First Assistant City Attorney