2011-026s;\legal\our documents\ordinances\11\draft dcta ordinance.doc
ORDINANCE NO. 2011-026
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE AN AGREEMENT TO PURCHASE REAL PROPERTY ("AGREEMENT"), BY
AND BETWEEN THE CITY OF DENTON, TEXAS AND DENTON COUNTY
TRANSPORTATION AUTHORITY ("DCTA"), A COORDINATED COUNTY
TRANSPORTATION AUTHORITY UNDER CHAPTER 460 OF THE TEXAS
TRANSPORTATION CODE, CONTEMPLATING (I) THE SALE AND PURCHASE OF
APPROXIMATELY 1.61 ACRES OF REAL PROPERTY IN THE HIRAM SISCO SURVEY,
ABSTRACT NO. 1184, CITY OF DENTON, DENTON COUNTY, TEXAS. ("REAL
PROPERTY"), FOR PUBLIC PURPOSES, BEING LOCATED ADJACENT TO THE
DALLAS AREA RAPID TRANSIT RAIL BETWEEN HICKORY STREET AND PRAIRIE
STREET, AND BEING A PORTION OF THE LANDS CONVEYED TO THE CITY OF
DENTON BY UNION PACIFIC RAILROAD COMPANY, BY DEED RECORDED IN
VOLUME 4962, PAGE 02851, REAL PROPERTY RECORDS, DENTON COUNTY, TEXAS;
(II) THE EXECUTION AND DELIVERY OF A STREET USE LICENSE TO USE CERTAIN
CITY PROPERTY FOR RAIL CROSSING PURPOSES RELATED TO DCTA'S USE OF
SYCAMORE STREET IN THE VICINITY OF THE REAL PROPERTY; AND (III) THE
EXECUTION AND DELIVERY OF AN ASSIGNMENT AND ASSUMPTION
AGREEMENT, ASSIGNING THAT CERTAIN LEASE, DATED ON OR ABOUT
SEPTEMBER 25, 2001, BY AND BETWEEN UNION PACIFIC RAILROAD COMPANY
AND TRINITY INDUSTRIES, INC.; AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO EXECUTE AND DELIVER ANY AND ALL DEEDS, LICENSES,
ASSIGNMENTS AND ANY OTHER DOCUMENTS NECESSARY TO ACCOMPLISH
CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, DCTA is in the process of constructing infrastructure within and outside of
the City of Denton related to the provision of rail transportation to the City of Denton; and
WHEREAS, DCTA is in need of the Real Property and a street use license to cross
Sycamore Street, a City street, related to such rail transportation service; and
WHEREAS, DCTA desires, and has requested, that the City convey to it the Real
Property, along with a street use license to cross Sycamore Street; and
WHEREAS, the City Council finds the transactions contemplated by the Agreement are
in the best interest of the citizens of the City of Denton; NOW, THEREFORE;
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1. The recitals and findings contained in the preamble of this ordinance are
incorporated into the body of this ordinance.
s:\legal\our documents\ord1nances\11\d raft dcta ordinance.doc
SECTION 2. The City Manager, or his designee, is hereby authorized to execute the
Agreement on behalf of the City of Denton, and to carry out the City's responsibilities and rights
under the Agreement, including, without limitation: (i) to execute and deliver any deeds,
licenses, assignments, waivers of notice, and any other documents necessary to accomplish
closing of the transactions contemplated by the Agreement; and (ii) the authorization to make the
expenditures set forth in the Agreement.
SECTION 3
approval.
This ordinance shall become effective immediately upon its passage and
PASSED AND APPROVED this the J5 J day of llm~xff,¢X , 2011.
, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPR ED AS O LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
sAlegahour documents\contractsli Ildcta purchase contract city of denton downtown dcta.doc
T
i T
AGREEMENT TO PURCHASE REAL PROPERTY
County: Denton
Parcel No.: City of Denton
THIS AGREEMENT TO PURCHASE REAL PROPERTY ("Agreement") is made by and
between the City of Denton, a Texas home rule municipality, hereinafter referred to as "City", and
Denton County Transportation Authority, a coordinated county transportation authority under Chapter
460 of the Texas Transportation Code, hereinafter referred to as "DCTA."
For and in consideration of TEN AND NO/100 DOLLARS ($10.00), the mutual covenants and
conditions herein contained, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, the City agrees to sell to DCTA and DCTA agrees to
purchase from City, upon the terms and provisions hereof and subject to the reservations herein, (i) the
surface estate of the real property situated in Denton County, Texas, described below for all pertinent
purposes (the "Land") TOGETHER WITH all improvements thereon and all rights and appurtenances
pertaining thereto (collectively with the Land, the "Property"); (ii) a. Street Use License to Use Certain
City Property for Rail Crossing Purposes ("License") over and across Sycamore Street in the City of
Denton, Texas, as more particularly described in Exhibit "D"; and (iii) an assignment of that certain Lease
(herein so called), dated September 25, 2001, by and between Union Pacific Railroad Company and
Trinity Industries, Inc., in the form of that certain Assignment and Assumption Agreement (the
"Assignment") attached hereto as Exhibit "E" (if such Lease has not terminated prior to Closing).
1. DESCRIPTION:
The Land, subject to platting requirements, as provided in Paragraph II.A., below, is
described as the surface estate of Lot 1 and Lot 2 of Block A, Denton Rail Station, an Addition
to the City of Denton, Denton County, as depicted on Exhibit "A", attached hereto. The sale of
the Property shall be subject to the reservation by the City of, and the City shall reserve from the
conveyance of the Property, a perpetual easement for pedestrian and bicycle trail purposes over
and across a portion of the Property as described on Exhibit "B" attached hereto and made a part
hereof, which easement shall include all related rights, enjoyments and benefits as contained in
the Deed Without Warranty (herein so called), attached hereto and made a part hereof as Exhibit
"C". The parties agree that without the necessity of amending this Agreement, the platted lot and
block description that will attach to the Land upon approval and recording of the final plat
described in Section II.A., below, shall be the legal description of the Land used in the Deed
Without Warranty signed by City and conveyed to DCTA as well as other closing documents
requiring such description.
II. PURCHASE PRICE: Amount to be paid by DCTA to City at closing: $212,608.00.
II.A. PLATTING: DCTA shall, prior to Closing, have obtained approval of a Final Plat of the Land
from the Planning and Zoning Commission in accordance with the terms of the Denton Development
Code, including without limitation, Section 35.16.12. The Final Plat shall depict the Land in two separate
lots, bisected by and excluding from the lots, the existing Sycamore Street right of way, as depicted on
Exhibit "A", attached hereto, and shall describe a 30 foot wide perpetual public walkway and bike trail
easement for pedestrian and bicycle trail purposes. Without waiving the enforcement of any applicable
City ordinances, regulations, or standards, City agrees to reasonably cooperate with DCTA in the
prosecution of the foregoing application for Final Plat of the Land including, but not limited to, signing as
owner of the Land all necessary applications and related documents.
AGREEMENT TO PURCHASE REAL PROPERTY:
CITY OF DENTON To DCTA: Page 1
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e '
III. CONDITIONS AND LIMITATIONS:
(A) The Effective Date of this Agreement is the date this Agreement is signed by authorized
representatives of the City and DCTA, whichever is later to execute, following approval of this
Agreement by City's and DCTA's governing body. References to the date of signing of this
Agreement are to the Effective Date.
(B) DCTA represents and warrants to City that it has made an independent inspection and
evaluation of the Property and the title to same and the ability and legal authority of City to
execute this Agreement and deliver the Deed Without Warranty, License, and Assignment,
described in Paragraph III. (G), below and acknowledges that City has made no statements or
representations concerning the present or future value of the Property or Lease, the state of title of
the Property or Lease, or the condition, including the environmental condition of the Property or
the ability and legal authority of City to execute this Agreement and deliver the License,
Assignment and Deed Without Warranty to DCTA.
(C) EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH III. M., CITY MAKES NO
REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESSED,
STATUTORY, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE
DESCRIPTION, TITLE, VALUE, QUALITY, QUANTITY, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR MATERIALS
CONTAINED OR LOCATED IN, ON OR UNDER TI-IE PROPERTY, THE NATURE
OF THE PAST OR HISTORIC USE OF THE PROPERTY, AND/OR
MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY,
ABSENCE OF LATENT DEFECTS, COMPLIANCE WITH LAWS AND
REGULATIONS RELATED TO THE PROPERTY OR THE ABILITY AND LEGAL
AUTHORITY TO EXECUTE THIS AGREEMENT AND DELIVER THE DEED
WITHOUT WARRANTY, THE ASSIGNMENT AND LICENSE. DCTA further
acknowledges that, in executing and accepting this Agreement, it has relied solely upon
its independent evaluation and examination of the Property, and public records relating to
the Property and the independent evaluations and studies based thereon. CITY makes no
warranty or representation as to the accuracy, completeness or usefulness of any
information furnished to DCTA, if any, whether furnished by CITY or any third party.
CITY, its officers, employees, elected officials, independent contractors, and agents
assume no liability for the accuracy, completeness or usefulness of any material furnished
by CITY, if any, or any of its officers, employees, elected officials, independent
contractors and/or agents, and/or any other person or party, if any and DCTA hereby
releases such parties from and against any claims related to such matters. Reliance on
any material so furnished shall not give rise to any cause, claim or action against CITY,
its officers, employees, elected officials, independent contractors and/or agents, and any
such reliance shall be at DCTA's sole risk.
THE CONVEYANCE OF THE PROPERTY AND EXECUTION AND
DELIVERY OF THE ASSIGNMENT AND LICENSE SHALL BE ON A "WHERE IS",
"AS IS", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT
REPRESENTATION OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED,
INCLUDING, BUT WITHOUT LIMITATION, AS TO TITLE, THE DESCRIPTION,
PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR
AGREEMENT TO PURCHASE REAL PROPERTY:
CITY OF DENTON TO DCTA: Page 2
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s
MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY,
THE NATURE OF THE PAST OR HISTORIC USE OF THE PROPERTY, THE
QUALITY, QUANTITY AND VALUE OF THE PROPERTY FITNESS FOR
PURPOSE, MERCHANTABILITY, ABSENCE OF LATENT DEFECTS AND
COMPLIANCE WITH LAWS AND REGULATIONS RELATED TO THE
PROPERTY AND/OR THE ABILITY AND LEGAL AUTHORITY TO EXECUTE
THIS AGREEMENT AND DELIVER THE DEED WITHOUT WARRANTY, THE
ASSIGNMENT AND THE LICENSE, OR OTHERWISE. DCTA has satisfied itself as
to the title, type, condition, quality and extent of the property and property interests
which comprise the Property and other interests contemplated to be conveyed or assigned
by this Agreement.
(D) Intentionally omitted.
(E) City is a political subdivision of the State of Texas and represents, to its knowledge, that
the Property is exempt from payment of ad valorem taxes pursuant to Texas Tax Code § 11.11 and
that no ad valorem taxes will be due at Closing for any period of time relating to City's ownership
of the Property prior to Closing. Any and all taxes attributable to periods of time after Closing,
and any subsequent assessments for prior years due to change in usage of the Property after
Closing, if any, shall be paid by DCTA. The terms and provisions of this Paragraph III. (E) shall
survive Closing.
(F) At the Closing, DCTA shall deliver (1) the Purchase Price in cash or other immediately
available funds, to Republic Title of Texas, Inc. ("Title Company") for disbursement to City; and
(2) any other documents reasonably required to complete the Closing in accordance with the
usual practices for closing real estate transactions in Denton County, Texas. DCTA shall pay (a)
all costs of the survey, if performed, and expenses related to platting; (b) the premium for the
Owner's Policy of Title Insurance, inclusive of any premiums or fees for endorsements thereto;
(c) all costs involved in preparation and recording all documents required for Closing; (d) all Title
Company escrow fees; and (e) to the extent not specifically addressed herein, all costs
customarily paid by the buyer in real property sales transactions in Denton County, Texas.
(G) At the Closing, City shall (1) deliver the Deed Without Warranty, substantially in the
form as attached hereto as Exhibit "C", conveying the Property, with reservation of the pedestrian
and bicycle trail easement described in Exhibit "B", attached hereto, and in the Deed Without
Warranty; (2) the Street Use License to use Certain City Property for Rail Crossing Purposes,
substantially in the form as attached hereto as Exhibit "D"; (3) Assignment and Assumption
Agreement, substantially in the form as attached hereto as Exhibit "E"; and (4) any other
documents reasonably required to complete the Closing in accordance with the usual practices for
closing real estate transactions in Denton County, Texas. Notwithstanding anything to the
contrary herein, in the event City receives prior to Closing a written request from the lessee under
the Lease to terminate the Lease, City agrees to waive any required notice period and consent to
the immediate termination of the Lease, in which case execution of the Assignment and
Assumption Agreement described herein shall not be a condition of Closing.
(IT) Not later than ten (10) days following the Effective Date, DCTA shall obtain a
Commitment for Title Insurance ("Commitment") issued by the Title Company with respect to
the Property. DCTA shall, after receipt of the Commitment, give written notice to City of any
objections DCTA has to the title as disclosed by the Commitment. City shall have a reasonable
time, not to exceed ten (10) days after receipt of DCTA's title objections to attempt to cure such
objections, and City covenants and agrees to make a reasonable effort, but shall not be obligated,
AGREEMENT TO PURCHASE REAL PROPERTY:
CITY OF DENTON TO DCTA: Page 3
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to eliminate the objected to exceptions. Notwithstanding anything to the contrary herein, City
shall not be obligated to expend funds to remove any such objections. In the event City is unable
to remove such title objections within the time provided, DCTA may either (1) waive the
objections and accept such title as City is able to convey and proceed to Closing with no
abatement or reduction in the Purchase Price, or (2) terminate this Agreement. In the event
DCTA shall waive the objections, any uncured exceptions to title shall constitute Permitted
Exceptions; provided, however, in no case shall any matter appearing on Schedule C of the Title
Commitment constitute a Pennitted Exception unless expressly waived by DCTA.
(I) In the event City does not cure one or more title objections pursuant to Paragraph III.
(H), above, and DCTA elects to purchase the Property subject to any such encumbrances, City
hereby grants its consent to DCTA to cure such objections to title by acquiring any related real
property interests of a party other than City through the exercise of the power of eminent domain
pursuant to Texas Transportation Code §460.107. This Paragraph III. (1) shall (i) not be deemed
to include consent by the City to DCTA to condemn any interest of any kind or type of the City;
and (ii) shall survive the Closing..
(J) The Closing (herein so called) of this Agreement shall take place at the Title Company's
offices, 2626 Howell Street, 10th Floor, Dallas, Texas, 75204, on or before forty-five (45) days
after the Effective Date, or within fifteen (15) days after the completion of the title curative work,
and recording of the final plat in the Denton County Real Property Records as a result of the
completion of the platting requirements as provided in Paragraph II.A. above, whichever is later,
but in no event to be later than ninety (90) days after the Effective Date.
(K) City and DCTA represent and agree that no broker has been engaged by either party in
this transaction and that under no circumstances will either party pay for or be responsible for a
real estate commission to a broker or a sales person as a result of the Closing of this Agreement.
(L) All notices provided herein to be given to City shall be in writing and shall be given to
City at 215 E. McKinney Street, Denton, Texas 76201 to the attention of the City Manager,_ with
a copy to Anita Burgess, City Attorney, at the same address, and Paul Williamson, Real Estate
and Capital Support Manager, at Utilities Engineering, 901-A Texas Street, 2nd Floor, Denton,
Texas 76209 or to such other address as City shall hereafter designate to DCTA by written notice.
All notices provided herein to be given to DCTA shall be in writing and shall be given to DCTA
at 1660 South Stemmons, Suite 250, Lewisville, Texas 75067 or to such other address or
individual as DCTA shall hereafter designate to City by written notice; with copy to DCTA's
attorney, Kevin B. Laughlin, Nichols Jackson, Dillard, Hager & Smith, LLP, 500 N Akard, Suite
1800, Dallas, Texas 75201. Any and all notices required or provided for herein shall be deemed
to be effectively given when delivered in person or when mailed by United States Registered or
Certified Mail with postage prepaid, return receipt requested, and addressed as herein above set
forth,
(M) City hereby acknowledges and represents that:
(1) DCTA has obtained and has provided to the City, an appraisal of the fair market
value of certain real property containing the Property and DCTA and City have valued
the Property based upon square foot value of the real property appraised ; and
(2) the Purchase Price is equal to or greater than the appraisal of the Property
conducted in accordance with the procedure described in Paragraph III. M. (1).
(N) DCTA hereby acknowledges and represents that DCTA is a governmental entity that has
AGREEMENT TO PURCHASE REAL PROPERTY:
CITY OF DENTON To DCTA: Page 4
s:llegallour documentskontractsU lWeta purchase contract city of Benton downtown dcta.doc
the power of eminent domain as contemplated by Tex. Loc. Govt. Code §272.001(b).
(O) The representations and warranties contained in this Agreement shall survive Closing
(P) Miscellaneous:
(1) This Agreement shall be construed under and in accordance with the laws of the
State of Texas, and is entirely performable in Denton County, Texas. Sole and exclusive.
venue for any action related to this Agreement shall lie in courts of competent jurisdiction
of Denton County, Texas.
(2) This Agreement, including the Exhibits and all terms and provisions of such
Exhibits, as attached to this Agreement, embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, relating to the
Property and transactions contemplated by this Agreement, and may be amended or
supplemented only by a written instrument executed by both parties, except as to that
certain Right of Entry (herein so called), dated March 3, 2009, as amended from time to
time, by and between City and DCTA, related to rights to enter and conduct activities as
prescribed therein. The Right of Entry shall expire and terminate upon Closing.
(3) If any provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws, such provisions shall. be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable provision had
never comprised a part of the Agreement. The remaining provisions of this Agreement
shall be and remain in full force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu
of such illegal, invalid or unenforceable provision, there shall be added, automatically as
a part of this Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid or enforceable.
(4) This Agreement shall be binding and inure to the benefit of DCTA and City and
their respective successors and permitted assigns.
(5) Words of any gender used in this Agreement shall be held and construed to
include any other gender and words in the singular shall include the plural, and vice
versa, unless the context clearly requires otherwise.
(6) Neither party may assign its interest in this Agreement.
(7) If this Agreement is executed in multiple counterparts, all counterparts taken
together will constitute this Agreement.
(Q) In the event City or DCTA shall fail to perform any obligation hereunder, or any of its
representations are untrue as of the date of Closing, such party shall be in default under
this Agreement ("Default'). Upon Default, the non-defaulting party may, as its sole and
exclusive remedy, either (i) terminate this Agreement prior to Closing; or (ii) enforce
specific performance of this Agreement.
(Signatures on Following Page)
AGREEMENT TO PURCHASE REAL PROPERTY'
CITY OF DENTON TO DICTA: Page 5
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SIGNED AND AGREED by City this the Addy of 2011.
CITY OF DENTON, TEXAS
By:
George . Campbell, City Manager
ATTEST:
Jennifer Walters, City
B
Ap"ved As TYLegal Form:
Anita Burgess, City Attorney
By: e~~ 0'-~
SIGNED AND AGREED by DCTA this the Aft day of C4CK , 2011.
DENTON COUNTY TRANdORTEA44WAUTHORITY
By:
Jim WWehief Executive Officer
APPROVED AS TO FORM:
Peter G. Smith, General Counsel
AGREEMENT TO PURCHASE REAL PROPERTY:
CITY OF DENTON TO DCTA: Paee 6
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3
Page 1 of 2
DCTA shall have a survey of the Pedestrian and Bicycle Trail Easement, acceptable in forin and
substance to City, prepared prior to Closing, said Pedestrian and Bicycle Trail Easement being
roughly depicted herein. City and DCTA agree that the surveyed description of the Pedestrian
and Bicycle Trail Easement, as contemplated herein, shall be used as Exhibit "A" to the
Agreement at Closing without necessity of amendment of the Agreement.
Page 2 of 2
After Recording, Return to:
Kevin B. Laughlin
Nichols, Jackson, Dillard, Hager & Smith, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM
ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT
IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVER'S LICENSE NUMBER.
DEED WITHOUT WARRANTY
DATE: March 31, 2011
GRANTOR: City of Denton, Texas, a Texas home rule municipal corporation
GRANTOR'S MAILINGADDRESS:
215 E. McKinney
Denton, Texas 76201
GRANTEE: Denton County Transportation Authority, a Coordinated County Transportation
Authority under Chapter 460 of the Texas Transportation Code
GRANTEE'S MAILING ADDRESS:
1660 South Stemmons, Suite 250
Lewisville, Texas 75067
CONSIDERATION:
Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt
and sufficiency of same herein acknowledged.
PROPERTY:
The Surface Estate Only of Lot 1 and Lot 2, Block A, Denton Rail Station, an
Addition to the City of Denton, Denton County, Texas, according to the plat
thereof filed as Instrument No. 2011-54, Plat Records, Denton County, Texas.
PAGE 1 DEED WITHOUT WARRANTY: CITY OF DENTON TO DCTA~.P~s
RESERVATIONS FROM CONVEYANCE:
1. There is hereby reserved for Grantor and Grantor's successors and assigns, a perpetual
and permanent easement for a pedestrian and bicycle trail.and the free and uninterrupted
use and liberty of passage in, on, along, over, upon, under, and across that portion of the
Property as described on Exhibit "A", attached hereto (the "Easement Property") for the
purposes herein stated, said easement including, but is not limited to, the free and
uninterrupted use, liberty and privilege of passage in, along, over, across, under, and upon
all of the Easement Property for the purpose of constructing, reconstructing, replacing,
inspecting, maintaining, repairing and clearing said premises for the free and
unobstructed use of pedestrian and bicycle travel of the public; together with the right of
ingress, egress, and regress for such purposes in, on, along, through and across all of the
Easement Property.
2. To the extent not previously reserved by prior grantors, there is hereby reserved for
Grantor and Grantor's successors and assigns, all oil, gas and other minerals owned by
Grantor located in and under, and that may be produced from, the Property; provided,
however, to the extent Grantor is the owner of the oil, gas and minerals in, under and that
may be produced from the Property and the executive rights related to same, Grantor, for
itself and its successors and assigns, hereby waives all surface rights and other rights of
ingress and egress in and to the Property related to such reserved mineral interest, and
agree that in conducting operations with respect to the exploration for and production,
processing, transporting and marketing of oil, gas and other minerals from the Property,
that no portion of the surface of the Property will be used or occupied and that fixtures,
equipment, buildings or structures used in connection with the exploitation of the
reserved mineral, oil and gas rights, shall not be placed on the surface of the Property.
Nothing herein, however, restricts or prohibits the pooling or unitization of the mineral
estate owned by Grantor with land other than the Property; or the exploration or
production of the oil, gas, and other minerals by means of wells that are drilled or mines
that open on land other than the Property but enter or bottom under the Property, provided
that these operations in no manner interfere with the surface or subsurface support of any
improvements constructed or to be constructed on the Property.
EXCEPTIONS TO CONVEYANCE:
Thirty Foot (30.0') perpetual easement reserved by Union Pacific Railroad Company, for
itself, its successors and assigns in that certain Deed Without Warranty conveyed to
Grantor dated October 31, 2001, and filed November 9, 200.1, in Volume 4962, Page
2851, Real Property Records, Denton County, Texas, and as shown on the final plat of the
Property recorded as Instrument No. 2011-54, Plat Records, Denton County, Texas.
2. Mineral reservation by Union Pacific Railroad Company, for itself, its successors and
assigns, in that certain Deed Without Warranty conveyed to Grantor dated October 31,
2001, and filed November 9, 2001, in Volume 4962, Page 2851, Real Property Records,
Denton County, Texas.
_
PACE 2 [DEED VIT OIJT WARRANTY: CITY OF DENTON To DCTA
REPRESENTATIONS AND WARRANTIES OF GRANTEE:
Grantee represents and warrants to Grantor that it has made an independent inspection
and evaluation of the Property and the title to same and. the ability and legal authority of Grantor
to execute and deliver this Deed Without Warranty and acknowledges that Grantor has made no
statements or representations concerning the present or future value of the Property, the state of
title of the Property, or the condition, including the enviromnental condition of the Property or
the ability and legal authority of Grantor to execute and deliver the Deed Without Warranty to
Grantee.
GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS
TO THE DESCRIPTION, TITLE, VALUE, QUALITY, QUANTITY, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR MATERIALS
CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE
PAST OR HISTORIC USE OF THE PROPERTY, AND/OR MERCHANTABILITY OR
FITNESS FOR PURPOSE OF ANY OF THE PROPERTY, ABSENCE OF LATENT DEFECTS,
COMPLIANCE WITH LAWS AND REGULATIONS OR THE ABILITY AND LEGAL
AUTHORITY TO EXECUTE THIS AGREEMENT AND DELIVER THE DEED WITHOUT
WARRANTY. Grantee further acknowledges that, in executing and accepting this Deed Without
Warranty, it has relied solely upon its independent evaluation and examination of the Property,
and public records relating to the Property and the independent evaluations and studies based
thereon. Grantor makes no warranty or representation as to the accuracy, completeness or
usefulness of any information furnished to Grantee, if any, whether furnished by Grantor or any
third party. Grantor, its officers, employees, elected officials, independent contractors, and
agents assume no liability for the accuracy, completeness or usefulness of any material furnished
by Grantor, if any, or any of its officers, employees, elected officials, independent contractors
and/or agents, and/or any other person or party, if any and Grantee hereby releases such parties
from and against any claims related to such matters. Reliance on any material so furnished shall
not give rise to any cause, claim or action against Grantor, its officers, employees, elected
officials, independent contractors and/or agents, and any such reliance shall be at Grantee's sole
risk.
THE CONVEYANCE OF THE PROPERTY IS ON A "WHERE IS", "AS IS", AND
"WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR
WARRANTY, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT
LIMITATION, AS TO TITLE, DESCRIPTION, PHYSICAL AND ENVIRONMENTAL
CONDITION OF THE PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED IN,
ON OR UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF
THE PROPERTY, THE QUALITY, QUANTITY AND VALUE OF THE PROPERTY, FITNESS
FOR PURPOSE, MERCHANTABILITY, ABSENCE OF LATENT DEFECTS AND
COMPLIANCE WITH LAWS AND REGULATIONS RELATED TO THE PROPERTY, THE
ABILITY AND LEGAL AUTHORITY TO EXECUTE AND DELIVER THIS DEED
WITHOUT WARRANTY, OR OTHERWISE. Grantee has satisfied itself as to the title, type,
condition, quality and extent of the property and property interests which comprise the Property.
PAGE 3 DEED WITHOUT WARRANTY: CITI' Of DENTON TO DCTA~~~
Grantor, for the consideration stated herein and subject to the Reservations from and.
Exceptions to Conveyance, grants, sells, and conveys to Grantee the Property, to have and to
hold it to Grantee and Grantee's successors and assigns forever, without warranty, express or
implied, statutory or otherwise, and all warranties that might arise by common law and the
warranties created by Section 5.023 of the Texas Property Code (and all amendments and
successors thereto) are expressly excluded.
EXECUTED AND EFFECTIVE THIS DAY OF 12011
GRANTOR:
CITY OF DENTON
GEbRGE C. CAMPBELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BYQ~O,~,,~,kk , I kv_ A
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
GRANTEE:
DENTON COUNTY TRANSPORTATION
AUTHORITY, a coordinated county transportation
authority
By:
JiVV, itt, Chief Executive Officer
PAGE 4 DEED WITHOUT WARRANTY: CITY OF DEi\'TO\ To DCTA~
STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on-PO-bV ) 2011, by George C.
Campbell, City Manager of the City of Denton, on behalf of the City of Denton.
ERS
P.1E`1NIER K. WALT
of Texas
Statz
Notary Public,
my Commission Expire`
;E* IDecember 19, 2014
o IT ary 4i( State of Texa
commission expires
STATE OF TEXAS
COUNTY OF DENTON
F~
This instrument was acknowledged before me on 04 rt~ c~ 2011, by Jim Witt,
Chief Executive Officer of Denton County Transportation Authority, a coordinated county
transportation authority, on behalf of said transportation authority.
LESLEE.A. BACHl1S Vry Pub ic, State of Texas
TOT PUBLIC
STkV OF TES My commission expires
My Cofl1B nim 07.01=2012
PACE S DEED WITHOUT WARRANTY: CITY OF DENTON TO DCTA
EXHIBIT "A"
BOUNDARY DESCRIPTION OF EASEMENT PROPERTY
DESCRIPTION of an 8,343 square foot (0.192 acre) tract of land situated in the Hiram Sisco
Survey, Abstract No. 1184, Denton County, Texas; said tract being part of Lot 2, Block A,
Denton Rail Station an Addition to the City of Denton, Denton County, Texas, according to the
plat thereof recorded as Instrument No. 2011-54, Plat Records, Denton County, Texas; said tract
being part of that tract of land described in Deed Without Warranty to the City of Denton
recorded in Volume 4962, Page 2851 of the Deed Records of Denton County, Texas; said 8,343
square foot tract being more particularly described as follows (Bearing system for this survey is
based on the Texas State Plane Coordinate System NAD-83(93), Ham Adjustment North Central
Zone 4202 being the Denton County Transportation Authority network utilizing a surface scale
factor of 1.000136506.):
BEGINNING, at a 1-inch square tubing found in the west line of said City of Denton tract and
the east line of a tract of land described in Deed to Dallas Area Rapid Transit (DART) recorded
in Volume 4870, Page 2208 of said Deed Records; said point being the proposed southeast corner
of said Lot 2, Block A, Denton Rail Station and the southeast corner of said City of Denton tract;
said point being the southwest corner of a tract of land described in Special Warranty Deed to
Trinity Tank Car, Inc. "Fifteenth Tract" recorded in Instrument No. 2007-6585 of said Deed
Records;
THENCE, along the proposed west line of Lot 2, Block A, Denton Rail Station and the said east
line of Dallas Area Rapid Transit (DART) tract, the following three (3) calls:
North 89 degrees, 53 minutes, 10 seconds West, a distance of 0.71 feet to a 1/2-inch iron
rod with "PACHECO KOCH" cap set for corner;
North 00 degrees, 12 minutes, 13 seconds East, a distance of 28.00 feet to a 1/2-inch iron
rod with "PACHECO KOCH" cap set for corner;
North 89 degrees, 53 minutes, 10 seconds West, a distance of 9.89 feet to a point for
comer;
THENCE, North 09 degrees, 32 minutes, 39 seconds East, departing the said proposed west line
of Lot 2, Block A, Denton Rail Station, a distance of 550.57 feet to a point for corner in the
apparent south line of East Sycamore Street (59-feet wide at this point);
THENCE, South 89 degrees, 58 minutes, 26 seconds East, along the said apparent south line of
East Sycamore Street, a distance of 15.21 to a at a 1/2-inch iron rod found at an reentrant corner
of said City of Denton tract; said point being the proposed northeast corner of Lot 2, Block A,
Denton Rail Station and also being the northwest corner of said Trinity Tank Car, Inc. "Fifteenth
Tract";
PACE 1EXHIBIT "A" To DEED WITHOUT WARRANTY: CITY OF DENTON TO DCTA~~~
THENCE, South 09 degrees, 32 minutes, 39 seconds West, departing the said apparent north line
of East Sycamore Street and along the proposed east line of said Lot 2, Block A, Denton Rail
Station and the west line of said Trinity Tank Car, Inc. "Fifteenth Tract", a distance of 578.97 feet
to the POINT OF BEGINNING;
CONTAINING: 8,343 square feet or 0.192 acres of land, more or less.
PAGE 2 EXHIBIT "A" TO DEED WITHOUT WARRANTY: CITY OF DENTON TO DCTA
After Recording, Return to:
Kevin B. Laughlin
Nichols, Jackson, Dillard, Hager & Smith, LLP
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
STREET USE LICENSE TO USE CERTAIN CITY PROPERTY
FOR RAIL CROSSING PURPOSES
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DENTON §
THAT the City of Denton, Texas, a Texas home rile municipal corporation ("Licensor"),
for the consideration set out below, the receipt and sufficiency of which is hereby acknowledged,
does hereby grant unto Denton County Transportation Authority, a coordinated county
transportation authority under Chapter 460 of the Texas Transportation Code ("Licensee"), its
successors and permitted assigns, the right to enter upon (a) the lands described in Exhibit "A"
attached hereto and incorporated herein by reference ("Licensed Premises") to construct, operate,
maintain, repair, replace and expand rail crossing facilities over and across Sycamore Street
including the right to construct, install, operate, maintain, replace, repair, inspect, reconstruct and
remove the rail crossing within the Licensed Premises, including but not limited to one or more
tracks and related improvements and equipment (including, but not limited to, equipment houses,
rail control boxes, railroad crossing safety equipment, electrical lines, poles, conduit,
transformers, generators and related equipment) and appurtenances in connection with and as a
part of the operation and maintenance of the Licensee's passenger rail system (collectively the
"Rail Facilities"), which grant includes the right to temporarily interrupt the free flow of rail,
pedestrian, and vehicular traffic using the Licensed Premises to accommodate the free and safe
passage of Licensee's trains through the Licensed Premises using the rail crossing; and (b) the
adjacent lands within the public street right-of-way, as depicted on the "as built drawings"
described below (the "Licensed Sign Premises"), necessary to accommodate and provide for the
construction, maintenance, operation, repair and replacement of advance rail road signage and
related poles and advance rail road markings on the surface of the street all incorporated herein
by reference (together with the Rail Facilities)(the "Overall Rail Facilities"). Licensee shall
provide discreet "as built drawings" of the Overall Rail Facilities to the office of the City
Engineer of the City of Denton upon completion of construction pursuant to the terms and
conditions of this agreement (the "License"). The set of discrete "as built drawings"
contemplated herein shall be titled "Sycamore Street Rail Crossing - Overall Rail Facilities
Layout", and be taken from the as-built drawings prepared for Licensee's plans for the A-train
Project.
Section 1. Application.
Licensor acknowledges and agrees that Licensee has submitted a complete application
("Application") for the License to Licensor's Development Review Committee ("DRC"),
containing a plan accurately showing the proposed location, course and alignment of the
48465
proposed rail crossing(s) and a written application (the "Application"), which application shows
the time, manner, means and method of the proposed construction. Licensor further
acknowledges and agrees that the granting of this License constitutes acknowledgment that the
Application has been approved.
Section 2. Terms and Conditions.
For and in consideration of the execution of this License and the mutual promises and
covenants of the parties hereto, it is mutually promised, understood and agreed as follows, to wit:
A. Term. This License shall expire and terminate fifty (50) years after the date of execution
of this License by Licensor unless terminated earlier as provided hereafter.
B. Ownership and Operations. Licensee agrees that it and its successors and permitted
assigns shall own the Overall Rail Facilities at all times, and be solely responsible, at its
sole cost and expense, for the construction, reconstruction, repair and maintenance of the
Overall Rail Facilities within the Licensed Premises and Licensed Sign Premises and the
street or roadway within the Licensed Premises. Licensee and Licensor each agree to
provide the other notice not later than thirty (30) days prior to commencement of
construction within the Licensed Premises and Licensed Sign Premises that will result in
a disruption of traffic within the Licensed Premises and Licensed Sign Premises, except
that repairs, replacement, or maintenance which, if not performed immediately, will
reasonably result in damage to real or personal property and/or will endanger the public
health, the party responsible for the repair, replacement, or maintenance, need only to
provide oral notice to the other party prior to performing such emergency repairs,
replacement, or maintenance. Licensee shall comply with all laws, statutes, regulations,
rules, orders and ordinances applicable to the ownership, maintenance and operation of
the Overall Rail Facilities or occupation of the Licensed Premises and Licensed Sign
Premises, including without limitation, those relating to safety or warning issues. The
portion of the street located within the Licensed Premises, including without limitation,
the rail crossing area, shall be constructed, reconstructed, repaired and maintained at the
expense of Licensee in accordance with all applicable ordinances and criteria adopted by
the Licensor related to city streets. If in the future, Licensee shall change the grade of the
Facilities to the extent the grade of the street area outside of the Licenses Premises must
be altered, Licensee shall be responsible, at its sole cost, for all costs related to
construction or reconstruction of the affected street area, both within and outside the
Licensed Premises.
C. Updating information. Licensee shall update permit application information within 30
days after changes occur.
D. As Built Drawings. Licensee shall provide "as built drawings" to the office of the City
Engineer of the City of Denton after completion of construction of the Overall Rail
Facilities.
E. Licensee Option to Terminate. Licensee shall have the option to terminate this License
Page 2
at any time upon giving the Licensor written notice sixty (60) days in advance of such
termination.
R. Licensor Option to Terminate. Licensor shall have the option to cancel and terminate
this License for failure of Licensee to comply with any material provision or requirement
contained in this License if Licensee has failed to cure any such non-compliance on or
before the sixtieth (60th) day after delivering to Licensee written notice containing a
detailed description of the provisions with which Licensee is in non-compliance and a
description of the act, omission, or condition constituting such non-compliance; provided,
however, the sixty (60) day cure period shall be extended (1) for any period of time
during which an event of Force Majeure prevents Licensee from taking any action to cure
the alleged non-compliance, or (2) for such period of time that Licensee is diligently
pursuing cure of the non-compliance if such non-compliance cannot be reasonably cured
within sixty (60) days.
As prescribed herein, a Force Majeure event is a delay caused by reason of war, civil
commotion, act of God, governmental restriction, regulation or interference (other than
that caused or related to act of the Licensee), fire or other casualty, or any other
circumstance beyond the Licensee's control. In the event Licensee shall claim force
majeure, Licensee shall exercise its best efforts to eliminate the force majeure event, and
shall provide notice to Licensor, as soon as reasonably practicable, but in no event to be
later than two (2) business days after the occurrence of such alleged force majeure event,
specifying (i) the description of such force majeure event and all relevant facts and
circumstances related to such force majeure event; (ii) the period of time such force
majeure event is anticipated to continue; and (iii) the actions and activities taken and/or to
be taken by the Licensee to eliminate such force majeure event.
G. Condition Upon Termination. Upon termination of this License, Licensee shall vacate
the Licensed Premises and Licensed Sign Premises and remove the Overall Rail Facilities
from the Licensed Premises and Licensed Sign Premises prior to such termination.
H.. Abandoned Overall Rail Facilities. In the event the Overall Rail Facilities are
abandoned, Licensee shall notify the City Engineer as soon as practicable, and shall
remove such abandoned Overall Rail Facilities from the Licensed Premises and Licensed
Sign Premises within 120 days of such abandonment. As used herein, "abandoned" shall
mean the cessation of use of the Overall Rail Facilities for the Overall Rail Facilities'
intended purposes, as set forth herein, for ninety (90) consecutive days after the initial
operation thereof.
City Inspection. Licensor retains the right to make visual, non-invasive inspections of
the Overall Rail Facilities.
J. Construction Upon Execution. Subject to the provisions of this License, Licensee shall
have the right to begin construction of the Overall Rail Facilities upon the execution of
this License by all parties hereto. Licensee shall obtain all applicable City permits prior
to construction activities of any kind from the City Engineer, who shall have the right to
Page 3
approve the plans and specifications for the crossing of the right of way by construction
activities, which approval shall not be unreasonably withheld or delayed. Except as may
be permitted or authorized by this License or the Licensor, no street or highway in the
City of Denton shall be blocked or obstructed during construction or regular maintenance
after construction.
K. Insurance. Licensee shall provide or cause to be provided the insurance described below
upon execution of this License.
a. Commercial General Liability Insurance. This coverage must include
premises/operations, products/completed operations, blanket contractual liability,
broad form property damage, independent contractors and personal injury and
where the exposure exists, explosion, collapse and underground property damage.
This coverage should be a minimum Combined Single Limit of $1,000,000 per
occurrence for Bodily Injury and Property Damage. The insurance shall also
include coverage for Environment Impairment.
b. Automobile Liability Insurance.
(1) Minimum Combined Single Limit of $500,000 per occurrence for Bodily
Injury and Property Damage; and
(2) The Business Auto Policy must show Symbol 1 in the Covered Autos
Portion of the liability section in Item 2 of the declarations page which
includes coverage for hired, leased and non-owned vehicles.
C. Worker's Compensation Insurance. In addition to the minimum statutory
requirements:
(1) Employer's Liability limits of at least $100,000 for each accident,
$100,000 for each employee, and a $500,000 policy limit for occupational
disease; and
(2) The insurer agrees to waive rights of subrogation against Licensor, its
officials, agents, employees, and volunteers for any work performed for
Licensor by the Licensee.
(3) The Licensee shall comply with the provisions of Section 406.096 of the
Texas Labor Code and 28 TAC §110.110 of the Texas Worker's
Compensation Commission to the extent such statute and regulation apply
to Licensee.
d. Excess Liability Insurance. Excess Liability Insurance shall be provided with
limits of not less than Five Million ($5,000,000.00) annual aggregate.
e. Indemnification. To the extent permitted by law, Licensee shall and hereby does
Page 4
indemnify, defend and hold harmless the Licensor, its officers, agents, elected
officials and employees from and against all suits, damages, actions or claims of
any character, name and description brought for or on account of any injuries or
damages received or sustained by any person, persons or property on account of
or related to (i) the operations of the Licensee, its agents, employees, contractors
or subcontractors related to the rights granted herein; (ii) any action or omission
of Licensee, its agents, employees, contractors or subcontractors related to the
rights granted herein; (iii) breach of any term hereof, and/or (iv) the occupation of
city owned property or property interests by Licensee, its agents, employees,
contractors or subcontractors; and shall pay any loss, damage, claim and any
judgment, with costs, which may be incurred by, occasioned upon or be obtained
against the Licensor, its officers, agents, elected officials and employees growing
out of or related to such injury or damage.
f. General provisions
(1) All policies shall be endorsed to read substantially as follows: "THIS
POLICY WILL NOT BE CANCELLED OR NON-RENEWED
WITHOUT 30 DAYS ADVANCED WRITTEN NOTICE TO THE
OWNER AND THE CITY EXCEPT WHEN THIS POLICY IS BEING
CANCELLED FOR NONPAYMENT OF PREMIUM, IN WHICH CASE
10 DAYS ADVANCE WRITTEN NOTICE IS REQUIRED".
(2) Commercial General Liability and Automobile Liability insurance shall be
written by companies with "A" or better rating in accordance with the
current AM Best Key Rating Guide.
(3) Commercial General Liability, Automobile Liability, and Excess Liability
insurance policies shall name as "Additional Insured" the Licensor and its
officials, agents, employees, and volunteers.
(4) Certificates of insurance must reflect all coverages and. endorsements
required by this section.
(5) Coverage shall be placed with insurance carriers licensed to do business in
the State of Texas or with nonadmitted carriers that have a financial rating
comparable to carriers licensed to do business in Texas approved by
Licensor.
L. Subordination. This License is subordinate and subject to Licensor's interests and the
interests of any outstanding rights in the Licensed Premises and Licensed Sign Premises.
Licensor reserves the right to use the Licensed Premises and Licensed Sign Premises and
the airspace above the Licensed Premises and Licensed Sign Premises for any public
purpose allowed by law and to do and permit to be done, any work in connection
therewith which may be deemed necessary or proper by the Licensor under and over said
Licensed Premises and Licensed Sign Premises, all with due regard for the operation
Page 5
requirements of the Overall Rail Facilities and provided such work does not unreasonably
interfere with Licensee's use of the Licensed Premises and/or Licensed Sign Premises as
provided herein.
M. Conflicts. In the event of any conflict between the parties hereto such that either party
brings or commences any legal action or proceeding related to this License, including,
but not limited to any action pursuant the provisions of the Texas Uniform Declaratory
Judgments Act (Tex. Civ. Prac. & Rem. Code §37.001, et. seq.), the parties hereto agree
to waive any and all rights to attorneys fees to which the prevailing party might otherwise
be entitled.
N. Notice. Any notice or communication required in the administration of this License shall
be sent by United States Mail, certified, return receipt requested, to the Licensor as
follows:
City of Denton
Attn: City Manager of the City of Denton
215 E. McKinney
Denton, Texas 76201
Any notice or communication required in the administration of this License shall be sent
to the Licensee as follows:
Denton County Transportation Authority
Attn: President
1660 South Stemmons, Suite 250
Lewisville, Texas 75067
With copy to:
Nichols, Jackson, Dillard, Hager & Smith, LLP
Attn: Peter G. Smith
500 N. Akard, Suite 1800
Dallas, Texas 75201
Notice shall be deemed delivered and received three (3) days after mailing as provided
herein. The parties may from time to time change the person or address to whom notice
is required to be delivered by providing written notice of such change to the other party.
0. Non-Waiver of Police Powers. Licensor does not by the grant of this License waive any
police powers it may have with respect to the placement, operation and maintenance of
the Overall Rail Facilities, as such police powers currently exist and as may be enacted
and/or amended in the future. To the extent not otherwise pre-empted by Federal or State
law, Licensor retains regulatory authority over all health, welfare and safety issues,
including without limitation, those that may arise in regard or related to the operation of
its streets and rights of way.
Page 6
P. Non-Transferable Without Consent. The rights granted by this License inure to the
benefit of the Licensor. The rights shall not be assigned or transferred by Licensee
without the express written consent of the Licensor, by and through the governing body.
Any required consent is to be evidenced by ordinance or resolution of the City Council of
the City of Denton.
Q. Waiver and Modifications. No waiver or modification of this License or of any
covenant, condition, or limitation herein contained shall be valid unless in writing and
duly authorized and executed by the party to be charged therewith. No evidence of any
waiver or modification shall be offered or received in evidence in any proceeding arising
between the parties hereto out of or affecting this License, or the rights or obligations of
the parties hereunder, unless such waiver or modification is in writing, and duly
authorized and executed by the party to be charged therewith.
R. Unenforceable Provisions. In the event that any one or more of the provisions contained
in this License shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect the other provisions
of this License, and the License shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in this License.
S. Entire Agreement. This License and the exhibit attached hereto, constitute the entire
agreement among the parties hereto with respect to the subject matter hereof, and
supersede any prior understandings or written or oral agreements between the parties with
respect to the subject matter of this License.
T. No Waiver for Failure to Enforce. The failure of either party to enforce or insist upon
compliance with any of the terms or conditions of this License shall not constitute a
general waiver or relinquishment of any such terms or conditions, but the same shall be
and remain at all times in full force and effect.
U. Captions. The captions contained in this License are for informational purposes only
and shall not in any way affect the substantive terms or conditions of this License.
V. LAWS OF TEXAS. THIS LICENSE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
VENUE FOR ANY DISPUTE OR ACTION ARISING FROM OR RELATED TO THIS
LICENSE SHALL SOLELY BE IN COURTS OF COMPETENT JURISDICTION IN
DENTON COUNTY, TEXAS. ALL PAYMENTS AND ALL PERFORMANCES
UNDER THIS LICENSE ARE PERFORMABLE IN DENTON COUNTY, TEXAS.
Section 3. As Is.
Licensee represents and warrants to Licensor that it has made an independent inspection
and evaluation of the Licensed Premises and the Licensed Sign Premises and the title to same
and the ability and legal authority of Licensor to execute and deliver this License and
Page 7
acknowledges that Licensor has made no statements or representations concerning the present or
future value of the Licensed Premises and the Licensed Sign Premises, the state of title of the
Licensed Premises and the Licensed Sign Premises, or the condition, including the
environmental condition of the Licensed Premises and the Licensed Sign Premises or the ability
and legal authority of Licensor to execute and deliver the License to Licensee.
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS
TO THE DESCRIPTION, TITLE, VALUE, QUALITY, QUANTITY, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE LICENSED PREMISES AND THE LICENSED
SIGN PREMISES AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER
THE LICENSED PREMISES AND THE LICENSED SIGN PREMISES, THE NATURE OF
THE PAST OR HISTORIC USE OF THE LICENSED PREMISES AND THE LICENSED
SIGN PREMISES, MERCHANTABILITY OR FITNESS FOR PURPOSE OF ANY OF THE
LICENSED PREMISES AND THE LICENSED SIGN PREMISES, ABSENCE OF LATENT
DEFECTS OF THE LICENSED PREMISES AND LICENSED SIGN PREMISES,
COMPLIANCE WITH LAWS AND REGULATIONS AS RELATES TO THE LICENSED
PREMISES AND LICENSED SIGN PREMISES, THE ABILITY AND LEGAL AUTHORITY
TO EXECUTE THIS AGREEMENT AND DELIVER THE LICENSE. Licensee further
acknowledges that, in executing and accepting this License, it has relied solely upon its
independent evaluation and examination of the Licensed Premises and the Licensed Sign
Premises, and public records relating to the Licensed Premises and the Licensed Sign Premises
and the independent evaluations and studies based thereon. Licensor makes no warranty or
representation as to the accuracy, completeness or usefulness of any inforn-lation furnished to
Licensee, if any, whether furnished by Licensor or any third party. Licensor, its officers,
employees, elected officials, independent contractors, and agents assume no liability for the
accuracy, completeness or usefulness of any material furnished by Licensor, if any, or any of its
officers, employees, elected officials, independent contractors and/or agents, and/or any other
person or party, if any and Licensee hereby releases such parties from and against any claims
related to such matters. Reliance on any material so furnished shall not give rise to any cause,
claim or action against Licensor, its officers, employees, elected officials, independent
contractors and/or agents, and any such reliance shall be at Licensee's sole risk.
THE EXECUTION AND DELIVERY OF THIS LICENSE IS ON A "WHERE IS", "AS
IS", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION
OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT
LIMITATION, AS TO TITLE, DESCRIPTION, PHYSICAL AND ENVIRONMENTAL
CONDITION OF THE LICENSED PREMISES AND THE LICENSED SIGN PREMISES
AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR UNDER THE LICENSED
PREMISES AND THE LICENSED SIGN PREMISES, THE NATURE OF THE PAST OR
HISTORIC USE OF THE LICENSED PREMISES AND THE LICENSED SIGN PREMISES,
THE QUALITY, QUANTITY OR VALUE OF THE LICENSED PREMISES AND THE
LICENSED SIGN PREMISES, FITNESS FOR PURPOSE, MERCHANTABILITY, OR
ABSENCE OF LATENT DEFECTS OF THE LICENSED PREMISES AND LICENSED SIGN
PREMISES, COMPLIANCE WITH LAWS AND REGULATIONS AS RELATES TO THE
LICENSED PREMISES AND LICENSED SIGN PREMISES, THE ABILITY AND LEGAL
Page 8
AUTHORITY TO EXECUTE AND DELIVER THIS-LICENSE, OR OTHERWISE. Licensee
has satisfied itself as to the title, type, condition, quality and extent of the property and property
interests affected by this License.
IN WITNESS WHEREOF, the parties hereto have executed this License in duplicate
originals on this day of March, 2011.
LICENSOR
THE CITY OF DENTON, TEXAS,
a Texas home rule municipal corporation
B
y
George C. Campbell
City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: -
APPROVED AS`TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
LICENSEE
DENTON COUNTY TRANSPORTATION
AUTHORITY, a coordinated county transportation
authority ___1 I-P,
By
Page 9
STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on the day of March, 2011, by Jim
Witt, Chief Executive Officer of Denton County Transportation Authority, a coordinated county
transportation authority, on behalf of said transportation authority.
r LESLEE X BACFIUS
NOTARY PUBLIC
STATE OF TEXAS
My 0oint*sbn 5*m 07.01-2012
,L
41-o"tary Public, State of Texas
- J
My Commission Expires:
STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on day of March, 2011, by George
C. Campbell, City Manager, of the City of Denton, Texas, on behalf of said City.
PYp"," JENNIFER K. WALTERS
Notary Public, State of Texas
My Commission Expires
December 19, 2014
r 1 ,i e
N p ry PubliState o f f exas
My Commission Expires: o~
Page 10
EXHIBIT "A"
STREET USE LICENSE TO USE CERTAIN CITY PROPERTY
FOR RAIL CROSSING PURPOSES
Proposed Lots 1 and 2, Block A, Denton Rail Station
Hiram Sisco Survey, Abstract No. 1184
City of Denton, Denton County, Texas
DESCRIPTION of a 3,596 square foot (0.083 acre) tract of land situated in the Hiram Sisco Survey,
Abstract No. 1184, Denton County, Texas; said tract being part of that tract of land described in Deed
Without Warranty to the City of Denton recorded in Volume 4962, Page 2851 of the Deed Records of
Denton County, Texas; said 3,596 square foot tract being more particularly described as follows (Bearing
system for this survey is based on the Texas State Plane Coordinate System NAD-83(93), Ham
Adjustment North Central Zone 4202 being the Denton County Transportation Authority network utilizing
a surface scale factor of 1.000136506.):
BEGINNING, at the intersection of the apparent south line of East Sycamore Street (60-feet wide at this
point) and the east line of a tract of land described in Deed to Dallas Area Rapid Transit (DART) recorded
in Volume 4870, Page 2208 of said Deed Records;
THENCE, North 00 degrees, 04 minutes, 06 seconds East, departing the said apparent south line of East
Sycamore Street and along the said east line of Dallas Area Rapid Transit (DART) tract, a distance of
60.00 feet to a point for corner in the apparent north line of said East Sycamore Street;
THENCE, departing the said east line of Dallas Area Rapid Transit (DART) tract, Denton Rail Station and
along the said apparent north line of East Sycamore Street, the following three (3) calls:
South 89 degrees, 58 minutes, 26 seconds East, a distance of 52.69 feet to an angle point;
South 04 degrees, 12 minutes, 38 seconds West, a distance of 0.49 feet to a 1/2-inch iron rod
with "PACHECO KOCH" cap found for corner;
South 89 degrees, 32 minutes, 40 seconds East, a distance of 7.34 feet to a point for corner;
THENCE, South 00 degrees, 04 minutes, 06 seconds West, departing the said apparent north line of East
Sycamore Street, a distance of 59.45 feet to a point for corner in the said apparent south line of East
Sycamore Street;
THENCE, North 89 degrees, 58 minutes, 26 seconds West, along the said apparent south line of East
Sycamore Street, a distance of 60.00 feet to the POINT OF BEGINNING;
CONTAINING: 3,596 square feet or 0.083 acres of land, more or less.
The undersigned, Registered Professional Land Surveyor, hereby certifies that the foregoing description
accurately sets out the metes and bounds of the tract described.
i e, .-f•
Michael Larry Lewis Date'
Registered Professional Land Surveyor No. 5773
Pacheco Koch Consulting Engineers, Inc.
8350 N. Central Expwy, #1000, Dallas TX 75206
(972) 235-3031
TX Reg. Surveying Firm LS-100080-00
~E.,OF ,JF
h ~~G RF '~9cr
•
MICHAEL LARRY LEWIS, JR
~ :A 5773
9yo FE s s, ~ v ~yo
SUR
3038-09.258EX16.doc RMT
3038-09.258EX16.dwg
PAGE 1 of 2
0 25 50 100
GRAPHIC SCALE IN FEET
[EK L1R O PU "All
W
TRINITY TANK CAR, INC.
ho~ (INST. NO. 2007-6585)
~I (SECOND TRACT)
2-INCH IRON
PIPE FOUND
0
X
N
0
M
CA
N
0
i
i
0
i
150.00'
PART OF
CITY OF DENTON
(VOL. 4962, PG. 2851)
S 89°32'40" El
7.34'l`
S 04°12'38" W~
L=63.00' - 0.49'
PROPOSED 88.78,
LOT 1, BLOCK A
DENTON RAIL STATION
PART OF S 89°58'26" E
CITY OF DENTON 52.69'
(VOL. 4962, PG. 2851)
599.44'
STREET USE LICENSE TO USE
CERTAIN CITY PROPERTY
FOR RAIL CROSSING PURPOSES
3,596 SF
(0.083 ACRES)
D. A. R. T.
(VOL. 4870, PG. 2208)
LEGEND
- - - PROPERTY LINE
EASEMENT LINE
O POINT FOR CORNER
(UNLESS OTHERWISE NOTED)
IRF 1/2-INCH IRON ROD
W/"PACHECO KOCH" CAP FOUND
(C.M.) - CONTROLLING MONUMENT
al ~ ~ to
ml h
L
d h
N
N
59' R.O.W.
S 00°04'06 W
59.45'
IRF
00°04'06" E
60.00'
TRINITY TANK CAR, INC.
(INST. NO. 2007-6585)
5/8-INCH IRON ROD
W/"LGG" CAP FOUND
499.02'
571.10'
1/2-INCH IRON TRINITY TANK CAR, INC.
ROD FOUND (C.M.) (INST. NO. 2007-6585)
(FIFTEENTH TRACT)
. 57a.s7'
JN 89°58'26 W
60.00'
PROPOSED
LOT 2, BLOCK A
DENTON RAIL STATION
PART OF
CITY OF DENTON
(VOL. 4962, PG. 2851)
161.78'
196.45' - - -
PoINT OF
BEGINNING
60' R.O.W. --i
D. A. R. T.
(VOL. 4870, PG. 2208)
NOTES:
o
The undersigned, Registered Professional Land
Surveyor, hereby certifies that this plat of
survey accurately sets out the metes and
OF
~E,.••••..TF
1
TE
~
bounds of the tract described.
Q~G
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.
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.
MICHAEL LARRY LEWIS, JF
.
i
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5773 P :
p
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Michael Larry Lewis, JR. Date
y
F O
,yo•, fs s .•~t
S
R~
Registered Professional
U
Land Surveyor No. 5773
if 1. A metes and bounds description of even
8350 N. CENAL ALLAS, TX 79206 XP 972.2 510030
Pacheco Koch D
. =-i TX REG. ENGINEERING FIRM F-469
DALLAS . FORT WORTH . HOUSTON TX REG. SURVEYING FIRM LS-100080-00
J
DRAWN BY CHECKED BY SCALE DATE JOB NUMBER
RMT MLL 1"=50 ' MAR. 2011 T 3038-09.258
survey date herewith accompanies this plat
of survey.
2. Bearing system and coordinates for this plat
are based on a bearing of North 00 degrees,
04 minutes, 06 seconds East for the east
line of the Dallas Area Rapid Transit railroad
and using the Texas State Plane Coordinate
System NAD-83(93), Horn Adjustment North
Central Zone 4202 being the Denton County
Transportation Authority network utilizing a
surface scale factor of 1.000136506.
STREET USE LICENSE
TO USE CERTAIN CITY
PROPERTY FOR RAIL
CROSSING PURPOSES
PROPOSED LOTS 1 AND 2, BLOCK A,
DENTON RAIL STATION
HIRAM SISCO SURVEY, ABSTRACT NO, 1184
CITY OF DENTON, DENTON COUNTY, TEXAS
PAGE 2 OF 2
UWG FILL: JU-5b-U9.ZnbLX1b.UWl;
s:\iegai\our documents\contracts\11\dcta assignment and assumption agreement-final.doc
EXHIBIT "E"
TO
AGREEMENT TO PURCHASE REAL PROPERTY
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement") is dated this
date of 2011, by and between the City of Denton, a Texas home rule
municipality ("Assignor") and Denton County Transportation Authority, a coordinated county
transportation authority under Chapter 460 of the Texas Transportation Code ("Assignee").
WHEREAS, on or about September 25, 2001, Union Pacific Railroad Company, as
Lessor, leased approximately 4,000 square feet of real property, as more particularly described
therein, to Trinity Industries, Inc., as Lessee (the "Lease");
WHEREAS, on or about November 2, 2001, Union Pacific Railroad Company assigned
and transferred all of its right, title and interest in and to the Lease to Assignor;
WHEREAS, Assignor has of even date hereof conveyed to Assignee certain real
property, said real property containing the property covered by and included in the Lease, and
desires to now transfer and assign, upon the terms set forth herein, the Lease;
NOW THEREFORE, for and in consideration of the sum of Ten and no/t00 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Assignor, has, subject to the terms and conditions herein, ASSIGNED
AND TRANSFERRED and by these presents does ASSIGN AND TRANSFER, unto Assignee
all of Assignor's right, title and interest in and to the Lease, said Lease being attached hereto and
incorporated herein as Exhibit "A".
Assignee represents and warrants to Assignor that it has made an independent inspection
and evaluation of the lands covered by and included in the Lease (the "Property") and the title to
the Property and the Lease and the ability and legal authority of Assignor to execute and deliver
this Assignment and Assumption Agreement and acknowledges that Assignor has made no
statements or representations concerning the validity or subsistence of the Lease, present or
future value of the Property or the Lease, the state of title of the Property or the Lease, or the
condition, including the environmental condition of the Property or the ability and legal authority
of Assignor to execute and deliver the Assignment and Assumption Agreement to Assignee.
ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION,
AS TO THE VALIDITY OR SUBSISTENCE OF THE LEASE, TITLE TO THE PROPERTY
OR LEASE, THE DESCRIPTION, VALUE, QUALITY, QUANTITY, PHYSICAL AND
ENVIRONMENTAL CONDITION OF THE PROPERTY AND/OR MATERIALS
CONTAINED OR LOCATED IN, ON OR UNDER THE PROPERTY, THE NATURE OF THE
PAST OR HISTORIC USE OF THE PROPERTY, MERCHANTABILITY OR FITNESS FOR
s:\legal\our documents\contracts\11\dcta assignment and assumption agree ment-final.doc
PURPOSE OF THE LEASE OR PROPERTY, ABSENCE OF LATENT DEFECTS, OR
COMPLIANCE WITH LAWS AND REGULATIONS RELATED TO THE LEASE OR
PROPERTY OR THE ABILITY AND LEGAL AUTHORITY TO EXECUTE THIS
AGREEMENT AND DELIVER THE ASSIGNMENT AND ASSUMPTION AGREEMENT.
Assignee further acknowledges that, in executing and accepting this Assignment and Assumption
Agreement, it has relied solely upon its independent evaluation and examination of the Property
and Lease, and public records relating to the Property and Lease and the independent evaluations
and studies based thereon. Assignor makes no warranty or representation as to the accuracy,
completeness or usefulness of any information furnished to Assignee, if any, whether furnished
by Assignor or any third party. Assignor, its officers, employees, elected officials, independent
contractors, and agents assume no liability for the accuracy, completeness or usefulness of any
material furnished by Assignor, if any, or any of its officers, employees, elected officials,
independent contractors and/or agents, and/or any other person or party, if any and Assignee
hereby releases such parties from and against any claims related to such matters. Reliance on
any material so furnished shall not give rise to any cause, claim or action against Assignor, its
officers, employees, elected officials, independent contractors and/or agents, and any. such
reliance shall be at Assignee's sole risk.
THE ASSIGNMENT OF THE LEASE IS ON A "WHERE IS", "AS IS", AND "WITH ALL
FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY,
EXPRESSED, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION,
AS TO THE VALIDITY OR SUBSISTENCE OF THE LEASE, THE TITLE TO THE LEASE
OR PROPERTY, THE DESCRIPTION, PHYSICAL AND ENVIRONMENTAL CONDITION
OF THE PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR
UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF THE
PROPERTY, THE QUALITY, QUANTITY AND VALUE OF THE PROPERTY OR LEASE,
MERCHANTABILITY OR FITNESS FOR PURPOSE OF THE LEASE OR PROPERTY,
ABSENCE OF LATENT DEFECTS, OR COMPLIANCE WITH LAWS AND
REGULATIONS RELATED TO THE LEASE OR PROPERTY, THE ABILITY AND LEGAL
AUTHORITY TO EXECUTE AND DELIVER THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT, OR OTHERWISE. Assignee has satisfied itself as to the title, type, condition,
quality and extent of the Lease and Property.
Assignee, for itself and its successors and assigns, agrees to (a) perform all of the
obligations of Lessor under and pursuant to the Lease accruing after the date hereof; and (b) to
the extent permitted by law, indemnify and hold Assignor harmless from and against any and all
claims, causes of action and expenses (including reasonable attorney's fees) incurred by
Assignor and arising out of or related to (1) Assignee's failure to comply with the terms of the
Lease after the date hereof, and (2) claims under the Lease by the tenant named in the Lease, or
its successors and assigns, accruing after the date hereof.
All exhibits attached to this Agreement are incorporated herein for all purposes.
This Assignment and Assumption Agreement shall inure to and be binding upon the
parties, their successors and assigns.
s:\legal\our documents\contracts\11\dcta assignment and assumption agreement-final.doc
TO HAVE AND TO HOLD the Lease unto Assignee, its successors and assigns, This
Assignment is made and accepted without recourse against Assignor as to the performance by
any party under such Lease.
Dated the , 2011.
ASSIGNOR:
CITY OF DENTON
GEORGE C. CAMPBELL
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
ASSIGNEE:
DENTON COUNTY TRANSPORTATION
AUTHORI~
a coordinat d ansportation authority
Z y ame Witt
Titl . hief Executive Officer
Exhibit "A" IPLICATE ORIGINAL
To
Assignment and Assumption Agreement Fol erNo. 0199714
.u it No. 42
LEASE OF PROPERTY
THIS LEASE ("Lease") is entered into on the L day of 2001, between
UNION PACIFIC RAILROAD COMPANY ("Lessor") and TRINITY INDUSTRIES, INC., a Delaware
corporation, whose address is 617 East Sycamore Street, Denton, Texas 76201 ("Lessee'.
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS: .
Article 1. PREMISES; USE.
Lessor leases to Lessee and Lessee leases from Lessor the premises ("Premises") at Denton,
Texas, as shown on the print dated June 1, 2001, 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 a fence encroachment area'to protect Lessee's rail loading and unloading
operations and for no other purpose. i
Article IL TERM.
The term of this Lease shall commence on June 1, 2001, and unless sooner terminated as
provided in this Lease, shall extend for one year, and thereafter, shall automatically be extended from
year to year.
Article M. RENT
A. Lessee shall pay to Lessor, in advance, rent of Two Hundred Fifty Dollars ($250.00) .
annually.
Article IV. SPECIAL PROVISION--I FENCE/BARRICADE
Lessee, at Lessee's sole cost and expense, shall construct-and maintain, at all times during *the
term of this Lease, a fence/barricade of a design satisfactory to Lessor, in the'location shown on the
attached Exhibit A.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first
herein written.
UNION PACIFIC ILROAD COMPANY TRINITY INDU TRIES, INC.
By: s JAI. -L, By:
Printed Name: D V;C4 A- l.~1 S Printed Name: fl, Q s d ~ ~
Title: $/~/?1A~1AGfR ~F9L ~'fT Title: S'~rJ r yr
ISVI A
TIT Prairle St. Crossing
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Lease Area:
I -Approx. 4,000 Square Feet .
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Sycamore St. Crossing
NOTE: BEFORE YOU BEGIN ANY WORK, SEE
AGREEMENT FOR FIBER OPTIC PROVISION.
I
EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY
DENTON,TX
MY. 721.7 - Denton Branch
I
Lease to TRINITY INDUSTRIES, INC.
SCALE: V'= 100'
REAL ESTATE DEPARTMENT
1 OMAHA, NE Date: June 1, 2001
1
Folder: 1997-14
*LEGEND*
Lease Area Shown., " .................................Yellow Highlii
(RR)RIW Outlined
IND LS 11/15/99
APPROVED, LAW
EXHIBIT B
Section 1. IMPROVEMENTS.
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Section 2. RESERVATIONS AND PRIOR RIGHTS.
A. Lessor reserves to itself, its agents and contractors, the right to enter the Premises at such
times as will not unreasonably interfere with Lessee's use of the Premises.
B. Lessor reserves Q)_ the exclusive right to permit third party placement of advertising signs on
the Premises, and (Ji) the right to construct, maintain and operate new and existing facilities (including, without
limitation, trackage, fences, communication facilities, roadways and utilities) upon, over, across or under the
Premises, and to grant to others such rights, provided that Lessee's use of the Premises is not interfered with
unreasonably.
C. This Lease is made subject to all outstanding rights, whether or not of record. Lessor
reserves the right to renew such outstanding rights.
Section 3. PAYMENT OF RENT.
Rent (which includes the annual rent and all other amounts to be paid by Lessee under this Lease)
shall be paid in lawful money of the United States of America, at such place as shall be designated by the
Lessor, and without offset or deduction.
Section 4. TAXES AND ASSESSMENTS.
A. Lessee shall pay, prior to delinquency, all taxes levied during the life of this Lease on all
personal properly and improvements on the Premises not belonging to Lessor. If such taxes-are paid by
Lessor, either separately or as a part of the levy on Lessor's real property. Lessee shall reimburse Lessor in
full within thirty (30) days after rendition of Lessor's bill.
B. If the Premises are specially assessed for public improvements. the annual rent will be
automatically increased by 12% of the full assessment amount.
Section 5. WATER RIGHTS.
This Lease does not include any right to the use of water under any water right of Lessor, or to
establish any water rights except in the name of Lessor.
Section 6. CARE AND USE OF PREMISES.
A. Lessee shall use reasonable care and caution against damage or destruction to the
Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises in any way that creates a hazard to persons or property.
Lessee shall keep the Premises in a safe, neat, clean and presentable condition, and in good condition and
repair. Lessee shall keep the sidewalks and public ways on the Premises, and the walkways appurtenant to
any railroad spur track(s) on or serving the Premises, free and dear 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-.
Page 1 of 6
GILAWADMIP►.RWWORMVNOLE S £X -DOG
IND LS 11/15/99
APPROVED,LAW
C. If any improvement on the Premises not belonging to Lessor is damaged or destroyed by fire
or other casualty, Lessee shall, within thirty (30)_ days after such casualty, remove all debris resulting
therefrom. If Lessee fails to do so, Lessor may remove such debris, and Lessee agrees to reimburse Lessor
for all expenses incurred within thirty (30) days after rendition of Lessor's bill.
D. Lessee shall comply with all governmental laws, ordinances, rules, regulations and orders
relating to Lessee's use of the Premises.
Section 7. HAZARDOUS MATERIALS, SUBSTANCES AND WASTES.
A. Without the prior written consent of Lessor, Lessee shall not use or permit the use of the
Premises for the generation, use, treatment, manufacture, production, storage or recycling of any Hazardous
Substances, except that Lessee may use (i) small quantities of common chemicals such as. adhesives,
lubricants and cleaning fluids in order to conduct business at the Premises and '(ii) other Hazardous
Substances, other than hazardous wastes as defined in the Resource Conservation. and Recovery Act, 42
U.S.C. 6901, et se., as amended ("RCRA"), that are necessary for the conduct of Lessee's business at
the Premises as specified in Article 1. The consent of Lessor may be withheld by Lessor for any reason
whatsoever, and may be subject to conditions in addition to those set forth below. It shall be the sole
responsibility of Lessee to determine whether or not a contemplated use of the Premises is a Hazardous
Substance use.
g_ In no event shall Lessee (i) release, discharge or dispose of any Hazardous Substances, (ii)
bring any hazardous wastes as defined in RCRA onto the Premises, (ill) install or use on the Premises any
underground storage tanks, or (iv) store any Hazardous Substances within one hundred- feet (1001 of the
center line of any main track.
C. If Lessee uses or permits the use of the Premises for a Hazardous Substance use, with or
without Lessor's consent, Lessee shall fumish 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. tf 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 B, Lessee shall -be
responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any manner to
any Hazardous Substance use of the Premises (or any property in proximity to the Premises) during the term
of this Lease or, if longer, during Lessee's occupancy of the Premises, regardless of Lessot's consent to such
use, or any negligence, misconduct or strict liability of any indemnified Party (as defined in Section 12), and
including, without limitation, (1) any diminution in the value of the Premises and/or any adjacent property of
any of the Indemnified Parties, 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 (t) 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 (n) migrating from adjacent property not controlled by Lessee, or (iii) placed
on, in or under the Premises by any of the Indemnified Parties; except where the Hazardous Substance is
discovered by, or the contamination is exacerbated by, any excavation or investigation undertaken by or at
the behest of Lessee. Lessee shall have the burden of proving-by-a preponderance of the evide* 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 taw, 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 Lessors consent thereto, and that a release or other contamination may have
occurred, Lessor may, at its election and at any time during the life of this Lease or thereafter (i) cause the
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Premises and any adjacent premises of Lessor to be tested, investigated, or monitored for the- presence
of any Hazardous Substance, (ii) cause any Hazardous Substance to be removed from the Premises and any
adjacent lands of Lessor, (in) cause to be performed any restoration of the Premises and any adjacent lands
the environmental condition of
of Lessor, and (iv) cause to be performed any remediation.of; or response to,
the premises and the adjacent lands of Lessor, as Landlord reasonably may deem necessaryor desirable,
and the cost and expense thereof shall be reimbursed by Lessee to Lessor within thirty (30) days after
rendition of Lessor's bill. In addition, ich event, Lessee shallip prorequi Lessee, at mptly commence Lessee's sole cost and
and thereafter
expense, to perform such work,
diligently prosecute to completion such work, using one or more contractors and a supervising consulting
engineer approved in advance by Lessor.
F. For purposes. of this Section 7, the term "Hazardous Substance" shall mean (i) those
substances included within the definitions of "hazardous substance", "pollutant", "contaminant', dr "hazardous
waste", in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601, et se as amended or in RCRA, the regulations promulgated pursuant to either such Act, or state' waste -or
laws and regulations similar or promulgated
explos a or (D))radany ioactivve, and { 0 such
substance which is (A) petroleum, (I3) (C) flammable o
other substances, materials and wastes which are or become regulated or classified as hazardous or toxic
under federal, state or local law.
section 8. LITILITIES.
A- Lessee will arrange and pay for all utilities and, services supplied to,the Premises or to
Lessee.
g. All utilities and services will be separately metered to Lessee. If not separately metered,
Lessee shall pay its proportionate share as reasonably determined by Lessor.
Section 9. LIENS,
Lessee shall not allow any liens to attach to the Premises for any services, labor or materials
furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall have the right
to discharge any such liens at Lessee's expense.
Section 10. ALTERATIONS AND IMPROVEMENTS; CLEARANCES.
A. No alterations, improvements or installations may be made on the Premises without the prior
consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the Lessor in
the operation of its railroad and to such other conditions as Lessor determines to impose. In all events such
consent shall be conditioned upon strict conformance with all_ applicable governmental requirements` and
Lessor's then-current clearance standards.
B. All alterations, improvements or installations shall be at Lessee's sole-cost and expense.
C. Lessee shall comply with Lessor's then-current clearance standards, except (i) where to do
so would cause Lessee to violate an applicable governmental requirement, or (11) for any improvement or
device in place prior to Lessee taking possession of the Premises if such improvement or device complied
with Lessor's clearance standards at the time of its installation.
D. Any actual or implied knoWedg a of Lessor of a violation of the clearance requirements of this
Lease or of any govemmental 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..
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j Section 11. AS-IS.
Lessee accepts the Premises in its present condition with all faults, whether patent or latent, and
without warranties or covenants, express or implied. Lessee acknowledges that Lessor shall have no duty
to maintain, repair or improve the Premises.
Section 12. RELEASE AND INDEMNITY.
A. As a material part of the consideration for this Lease, Lessee, to the extent it may. lawfully
do so, waives and releases any and all claims against Lessor for, and agrees to indemnify, defend and hold
harmless Lessor, its affiliates, and its and their officers, agents and employees ("indemnified Parties") from
and against, any loss, damage (including, without limitation, punitive or consequential damages), injury,
liability, claim, demand, cost or expense (including, without limitation, attorneys' fees and court costs), fine
or penalty (collectively, "Loss") incurred by any person (including, without. limitation, Lessor, Lessee, or any
employee of Lessor or Lessee) and arising from or related to (i) any use of the Premises by Lessee or any
invitee or licensee of Lessee, (ii) any act or omission of Lessee, its officers, agents, employees, licensees or
invitees, or (iii) any breach of this Lease by Lessee.
B. The foregoing release and indemnity shall apply regardless of any negligence, misconduct
or strict liability of any Indemnified Party, except that the indemnity, only, shall not apply to any Loss caused
by the sole, active and direct negligence of any Indemnified Party. if the Loss (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.
CC. Where applicable to the Loss, the liability provisions of any contract between Lessor and
Lessee covering the carriage of shipments or trackage serving the Premises shall govern the Loss and shall
supersede the provisions of this Section 12.
D. No provision of this Lease with respect to insurance shall limit the extent of the release and
indemnity provisions of this Section 12.
Section 13. TERMINATION,
A. Lessor may terminate this Lease by giving Lessee notice of termination, if Lessee (s) fails to
pay rent within fifteen (15) days after the due date, or (ii) defaults, under any other obligation of Lessee under
this Lease and, after written notice is given by Lessor to Lessee specifying the default. Lessee fails either to
immediately commence to cure the default, or to complete the cure expeditiously but in all events within thirty
(30) days after the default notice is given.
B. Notwithstanding the term of this Lease set forth in Article 11, 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), at which time Lessor shall refund to Lessee, on a pro rata basis,
any unearned rental paid in advance.
Section 14. LESSOR'S REMEDIES.
Lessors remedies for Lessee's default are to (a) enter and take possession of the Prerrirses, 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 oul Lessee, all without being liable for damages.
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} Section 15. VACATION OF PREMISES; REMOVAL OF LESSEES 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.
bon, the removal of foundations, the filling
was in before such structures were erected, el of incdebris luding,
anwithout. d rubbish.
in of excavations and pits, and h
B. If Lessee has not completed such removal and restoration within thirty (30) days after work
and termination of this Lease, Lessor may, at its election, and at tiny ttclays after bill is re perform
edth( ) take title. nde,
Lessee shall reimburse Lessor for the cost thereof within notice of such election to Lessee, and/or (iii) treat
to all or any portion of such structures or property by giving n
Lessee as a holdover tenant at will until such removal and restoration is completed.
Section 16. FIBER OPTICS.
Lessee shall telephone Lessor during normal business hours (7:00 a.m. to 9:00 p.m., Central Time,
Monday through Fridays, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for
emergency calls) to determine if fiber optic cable is buried on the Premises. If cable -is buried on the
Premises, Lessee will telephone the telecommunications company(ies), arrange for a cable locator, and make
arrangements for relocation or other protection of the cable. Notwithstanding compliance by Lessee with this
Section 16, the release and indemnity provisions of Section 12 above shall apply fully to any damage or
destruction of any telecommunications system.
Section 17. - NOTICES.
Any notice, consent or approval to be given under this Lease shall be -in writing, and personally
served, sent by reputable courier service, or sent by certified mail, postage prepaid, return receipt requested,
to Lessor at: Union Pacific Railroad Company, Attn: Assistant Vice President - Real Estate, Real Estate
Department, 18001=amam Street, Omaha, Nebraska 68102; and to Lessee `t ae aboces shall ss, or d sur other address as a party may designate in notice given to the other party.
served five (5) days after deposit in the U.S. Mail. Notices which are personally served or sent by courier
service shall be deemed served upon receipt
Section 18. ASSIGNMENT.
A. Lessee shall not sublease the Premises, in whole or in part, or assign, encumber or transfer
(by operation of law or otherwise) this Lease, without the prior c transfer sent of Lessor, meat conse ttLmay byes
denied at Lessor's sole and absolute discretion. Any purported wit
consent shall be void and shall be a default by Lessee.
S. Subject to this Section 18, this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
Section 19- CONDEMNATION.
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
f entitled to the entire award or proceeds for any total or partial condemnation or sale in lieu thwecf, including',
without limitation, any award or proceeds for the value of the leasehold estate created by this Lease.
Notwithstanding the foregoing, Lessee shall have the right to pursue recovery from the condemning authority
of such compensation as may be separately awarded to Lessee for Lessee's relocation expenses, the taking
of Lessee's personal property and fixtures, and the interruption of or damage to Lessee' business.
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Section 20. ATTORNEY'S FEES.
It either party retains an attorney to enforce this Lease (including, without limitation, the indemnity
provisions of this Lease), the prevailing party is entitled to recover reasonable attorney's fees.
Section 21. ENTIRE AGREEMENT.
parties,
Except foptheeunpiateall other oral or ral redetermin written of
This Lease is the entire agreement between the
agreements between the parties pertaining to this. transaction.
annual rent as provided in Article Ill., this Lease may be amended only by a written instrument signed by
Lessor and Lessee.
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