2011-073
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2011073
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FirstAmendmenttoRightofEntryandPossessionK
OrdinanceNo.201109906/07/11JR
SecondAmendmenttoRightofEntryandPossessionK
OrdinanceNo.201207204/17/12JR
ThirdAmendmenttoRightofEntryandPossessionK
OrdinanceNo.201324909/17/13JR
FourthAmendmenttoRightofEntryandPossessionK
OrdinanceNo.201416106/03/14JR
sAlegal\our documents\ordinances\I1\dcta roe ordinance.doc
ORDINANCE NO.
2011-073
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE
EXECUTION OF A RIGHT OF ENTRY AND POSSESSION BETWEEN THE CITY OF
DENTON, TEXAS AND THE DENTON COUNTY TRANSPORTATION AUTHORITY
("DCTA"), GRANTING DCTA ACCESS TO THE DOWNTOWN DENTON TRANSIT
CENTER ("DDTC") AND CERTAIN LANDS SURROUNDING THE DDTC LOCATED IN
THE HIRAM SISCO SURVEY, ABSTRACT NUMBER 1184, TO CONDUCT PUBLIC
TRANSPORTATION OPERATIONS; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, pursuant to the provisions of that certain Interlocal Cooperation Agreement
between the City and DCTA dated May 6, 2008 ("the ILA"), the City is in the process of
constructing the DDTC on property owned by the City located between Hickory Street and
Sycamore Street, and adjacent to Denton Rail Station Addition (the "Property");
WHEREAS, in accordance with the provisions of the ILA, the City has agreed to sell to
DCTA the Property, including the DDTC, following completion of construction of the DDTC
and close out of the grant related to the DDTC;
WHEREAS, DCTA needs possession of the Property to conduct its public transportation
operations prior to completion of construction of the DDTC and closing on the purchase of the
Property from the City;
WHEREAS, the City is amenable to providing the right to DCTA to occupy the Property,
upon the terms and conditions provided in that certain Right of Entry and Possession ("Right of
Entry"), attached hereto as Exhibit "A"; and
WHEREAS, the City Council of the City deems it to be in the best interest of the City to
enter into the Right of Entry with DCTA; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute the
Right of Entry, for and on behalf of the City, substantially in the form as attached hereto and
made a part hereof as Exhibit "A".
SECTION 2. This Ordinance shall become effective immediately upon its passage and
approval. ,Q
PASSED AND APPROVED this the'-` day of 2011.
A. BUWOUGH$ MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY. "k~
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: I-r
Page 2 of 2
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RIGHT OF ENTRY AND POSSESSION
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF DENTON §
THIS Right of Entry and Possession (the "Right of Entry") is entered into effective as of
the Effective Date set forth below, by and between the City of Denton, a Texas home rule
municipal corporation (the "City") and Denton County Transportation Authority, a coordinated
county transportation authority created under Chapter 460 of the Texas Transportation Code
("DCTA").
WHEREAS, the City owns the tract of real property described on Exhibit "A", attached
hereto and made a part hereof (the "Property");
WHEREAS, pursuant to the provisions of that certain Interlocal Cooperation Agreement
between the City and DCTA dated May 6, 2008 ("the ILA"), the City is in the process of
constructing the Downtown Denton Transit Center (the "DDTC") on the Property;
WHEREAS, in accordance with the provisions of the ILA, the City has agreed to sell to
DCTA the Property, including the DDTC, following completion of construction of the DDTC;
WHEREAS, DCTA needs possession of the Property to conduct its public transportation
operations prior to completion of construction of the DDTC and closing on the purchase of the
Property from the City; and
WHEREAS, the City is amenable to allowing such entry and possession, upon the terms
and conditions contained herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and no/100 Dollars
($10.00) and other good and valuable consideration to it in hand paid by DCTA, the receipt and
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sufficiency of which is hereby acknowledged, City grants to DCTA the right to enter upon and
possess the Property upon the following terms and conditions.
1. DCTA may occupy and possess the areas of the Property other than the area of the
Property constituting the DDTC as shown on Exhibit "A", for uses related to public
transportation activities and operations in connection therewith (the "DCTA Activities") from
the Effective Date hereof through and including May 1, 2012. DCTA may occupy and use the
DDTC, or applicable portion thereof, for uses related to the DCTA Activities, from the earlier of
(i) the date of the City issued certificate of occupancy, including temporary certificates of
occupancy; or (ii) the date directed by the City Manager of the City, or his designee. Any other
use of the Property by DCTA is expressly prohibited.
2. The City may occupy and utilize the Property during all times (i) to conduct construction
activities related to the DDTC; and (ii) for any other purpose or use deemed necessary or
advisable by the City. The City agrees to take reasonable measures to not unreasonably interfere
with the DCTA Activities during the conduct of the City's use of the Property during the term of
this Agreement.
3. DCTA shall obtain in its name and pay all costs of any nature related to all utility
services used by DCTA in its occupation of the Property during the term of this Right of Entry.
Notwithstanding the prior sentence, the City shall pay all costs of any nature related to utility
services used in relation to and in support of the construction and operation of the DDTC until
DCTA takes possession of the DDTC under this Right of Entry.
4. DCTA shall maintain the Property in a good state of condition, normal wear and tear
excepted, and maintain all conditions required to continue all warranties related to the Property.
DCTA shall maintain the landscaping installed on the Property by the City in a good condition,
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including without limitation, the provision of adequate water and weed control maintenance, and
shall keep and maintain the Property clear and free of all debris, trash, litter and other waste.
DCTA hereby expressly stipulates that except as otherwise provided herein the City is not
obligated to repair, replace or maintain any part of the Property during the term of this Right of
Entry. Notwithstanding the lack of obligation related to repairs, replacement and maintenance,
the City shall use reasonable efforts to require from its contractors and materials providers, as
applicable, any repairs or other work covered by warranties in favor of the City, as requested by
DCTA. Furthermore, notwithstanding anything to the contrary herein, the City shall retain all
maintenance, repair, and replacement obligations, including landscaping maintenance, of the
DDTC until DCTA takes possession of the DDTC under this Right of Entry.
5. In the event DCTA does not purchase the Property from the City on or before May 1,
2012, the rights granted herein shall terminate and DCTA shall immediately cease conducting
the DCTA Activities. shall vacate, in its entirety, the Property and remove all personal property,
rolling stock, trade fixtures and any other property owned by DCTA from the Property not later
than May 15, 2012. Further, DCTA shall execute and deliver to the City a written stipulation and
acknowledgement on such date expressly (i) stipulating that all such property of DCTA has been
removed from the Property; and (ii) waiving any and all rights DCTA may have to the Property
and the property of DCTA that may be located thereon.
6. DCTA ACCEPTS THE PROPERTY IN ITS PRESENT CONDITION, "AS IS",
"WHERE IS" AND "WITH ALL FAULTS". DCTA STIPULATES THAT IT HAS
THOROUGHLY INSPECTED THE PROPERTY AND FINDS THAT THE PROPERTY IS
SUITABLE FOR THE USES PERMITTED UNDER THIS RIGHT OF ENTRY. CITY
MAKES NO REPRESENTATIONS, COVENANTS OR WARRANTIES, EXPRESSED,
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STATUTORY OR IMPLIED, OR OF ANY OTHER KIND OR NATURE, CONCERNING OR
WITH RESPECT TO THE PROPERTY, INCLUDING WITHOUT LIMITATION, AS TO THE
TITLE, 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, FITNESS FOR PURPOSE,
MERCHANTABILITY, ABSENCE OF LATENT DEFECTS AND COMPLIANCE WITH
LAWS AND REGULATIONS RELATED TO THE PROPERTY.
7. DCTA shall comply with (i) all applicable federal, state and local laws, statutes, rules,
ordinances and regulations relating to the DCTA Activities and the use, condition and occupancy
of the Property; and (ii) any requirements imposed by utility companies serving, or insurance
companies covering, the Property.
8. TO THE EXTENT PERMITTED BY LAW, DCTA SHALL AND DOES INDEMNIFY
AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, ELECTED OFFICIALS
AND EMPLOYEES FROM AND AGAINST ALL SUITS, DAMAGES, ACTIONS, LOSSES
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 DCTA, ITS AGENTS, EMPLOYEES., CONTRACTORS,
VOLUNTEERS OR SUBCONTRACTORS RELATED TO THE RIGHTS GRANTED
HEREIN; (II) ANY ACTION OR OMISSION OF DCTA, ITS AGENTS, EMPLOYEES,
CONTRACTORS, VOLUNTEERS OR SUBCONTRACTORS RELATED TO THE RIGHTS
GRANTED HEREIN; (III) BREACH OF ANY TERM HEREOF; AND/OR (IV) THE
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OCCUPATION OF THE PROPERTY BY DCTA, ITS AGENTS, EMPLOYEES,
CONTRACTORS, VOLUNTEERS OR SUBCONTRACTORS; AND SHALL PAY ANY
LOSS, DAMAGE, CLAIM, INCLUDING WITHOUT LIMITATION, REASONABLE
ATTORNEYS' FEES, AND ANY JUDGMENT, WITH COSTS, WHICH MAY BE
INCURRED BY, OCCASIONED UPON OR BE OBTAINED AGAINST THE CITY, ITS
OFFICERS, AGENTS, ELECTED OFFICIALS AND EMPLOYEES GROWING OUT OF OR
RELATED TO SUCH INJURY OR DAMAGE.
9. DCTA shall not locate, store or dispose any Hazardous Substances in or on, or release or
discharge any Hazardous Substance on or from, the Property. As used herein "Hazardous
Substance" means and includes all hazardous and toxic substances, waste or materials, and any
pollutant or contaminant, including without limitation, polychlorinated biphenyls, asbestos,
asbestos containing materials, petroleum products and raw- materials that are included under or
regulated by any Environmental Law or that would or may pose a health, safety or environmental
hazard. As used herein, "Environmental Law" means and includes all federal, state and local
statutes, ordinances, regulations and rules presently in force or hereafter enacted or amended
related to environmental quality, contamination and cleanup of Hazardous Substances, including
without limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. 9601, et seq), as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
6901, et seq), as amended by the Hazardous and Solid Waste Amendments of 1985, and state
super lien and environmental cleanup statutes and all rules and regulations presently or hereafter
promulgated under such statutes as amended.
10. DCTA shall not:
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(a) Use the Property for any purpose other than that permitted herein.
(b) Create a nuisance.
(c) Utilize the Property in any way that would increase insurance premiums or void
insurance on the Property.
(d) Alter the Property without written approval by City Manager's Designee.
(e) Allow a lien to be placed on the Property.
(f) Assign the rights set forth herein or any right to occupy the Property.
11. DCTA shall maintain the insurance coverage described in the attached Insurance
Addendum.
12. DCTA HEREBY RELEASES THE CITY FROM AND AGAINST ANY AND ALL
CLAIMS, LOSSES AND/OR LIABILITIES FOR DAMAGE TO PROPERTY; DAMAGE OR
INJURY RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS, DAMAGE TO OR
LOSS OF PERSONAL PROPERTY WITHIN OR ON THE PROPERTY, AND LOSS OF
BUSINESS REVENUES, ARISING FROM OR RELATED TO (I) THE OPERATIONS OF
DCTA, ITS AGENTS, EMPLOYEES, CONTRACTORS, VOLUNTEERS OR
SUBCONTRACTORS RELATED TO THE RIGHTS GRANTED HEREIN; (II) ANY ACTION
OR OMISSION OF DCTA, ITS AGENTS, EMPLOYEES, CONTRACTORS, VOLUNTEERS
OR SUBCONTRACTORS RELATED TO THE RIGHTS GRANTED HEREIN; AND/OR (1II)
THE OCCUPATION OF THE PROPERTY BY DCTA, ITS AGENTS, EMPLOYEES,
CONTRACTORS, VOLUNTEERS OR SUBCONTRACTORS.
13. In the event DCTA shall fail to comply, within twenty (20) calendar days after written
notice, with any provision of this Right of Entry, DCTA shall be in default hereunder. Upon
such default, City shall be entitled to (a) enter and take possession of the Property; (b) terminate
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this Right of Entry by written notice; and (c) exercise any right or remedy available to it by
contract, law, equity or otherwise. The exercise of any remedy hereunder by City shall not
constitute an election of remedies, and City shall be entitled to exercise any and all of the
remedies provided for herein concurrently and cumulatively.
14. THIS RIGHT OF ENTRY IS PERFORMABLE IN DENTON COUNTY, TEXAS.
SOLE AND EXCLUSIVE VENUE FOR ANY ACTION ARISING HEREUNDER SHALL LIE
IN COURTS OF COMPETENT JURISDICTION LOCATED IN DENTON COUNTY,
TEXAS.
15. Any notice given by one party to the other in connection with this Right of Entry shall be
in writing and shall be hand delivered, sent by certified mail, return receipt requested, with
postage fees prepaid or via facsimile as follows:
City of Denton
Attn: City Manager of the City of Denton
215 E. McKinney
Denton, Texas 76201
Tel. Facsimile No.940/349-8596
With copy to:
Mark Nelson, Director of Transportation
215 E. McKinney
Denton, Texas 76201
Tel. Facsimile No.940/349-7206
Denton County Transportation Authority
Attn: President/CEO
1660 South Stemmons, Suite 250
Lewisville, Texas 75067
Tel. Facsimile No.(972) 221-4601
With copy to:
Nichols, Jackson, Dillard, Hager & Smith, LLP
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Attn: Peter G. Smith
500 N. Akard, Suite 1800
Dallas, Texas 75201
Tel. Facsimile No.(214) 965-0010
Notice shall be deemed to be provided and received when delivered by hand delivery or
telephone facsimile or the third day after being placed in the United States Mail, in the manner
and addressed as set forth herein. The addresses for either party hereto may be changed by notice
to the other party, provided as set forth herein, of such address change.
16. Each Party represents and warrants that it has taken all actions necessary to authorize the
person executing this Right of Entry on the Party's behalf to bind, in all respects, the Party the
person represents to all terms and provisions of this Right of Entry, and that such person
possesses the authority to execute this Right of Entry and bind the Party represented.
17. This Right of Entry does not convey any interest of any kind in the Property and shall be
at all times construed as a mere license to DCTA to occupy the Property pursuant to the terms
hereof.
18. No waiver or modification of this Right of Entry 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
Right of Entry, 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.
19. In the event that any one or more of the provisions contained in this Right of Entry 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 Right of Entry, and the
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Right of Entry shall be construed as if such invalid, illegal, or unenforceable provision had never
been contained in this Right of Entry.
20. This License and the exhibits 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.
21. This Right of Entry may be executed in multiple original counterparts, in which case all
counterparts taken together will constitute this Right of Entry.
IN WITNESS WHEREOF, the parties hereto have executed this Right of Entry
effective the 3rd day of May, 2011 (the "Effective Date").
THE CITY OF DENTON, TEXAS,
a Texas home rule municipal corporation
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: , 0,vAZ)
APPhVED 4OTO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
By
George C. Campbell
City Manager
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DENTON COUNTY TRANSPORTATION
AUTHORITY, a coordinated county transportation
authority /I
By
Chief Executive Officer
s:\legal\our docu men ts\contracts\ll\d cta right of entry-execution original.doc
INSURANCE ADDENDUM
Prior to May 3, 2011, DCTA shall be required to provide written proof of the following
insurance coverages to the City and shall maintain such insurance coverages throughout the term
of this Right of Entry:
1. All Risk Property Insurance covering the full Replacement Cost of all facilities
(including all furnishings and equipment) and improvements on the Property, including
the DDTC.
2. Commercial General Liability Insurance to include premises/operations,
products/completed operations, blanket contractual liability, underground property
damage, broad form property damage, independent contractors and personal injury. This
coverage should be a minimum Combined Single Limit of $1,000,000 per occurrence for
Bodily Injury and Property Damage.
3. Automobile Liability. Insurance:
(a) Minimum Combined Single Limit of $500,000 per occurrence for Bodily Injury
and Property Damage; and
(b) The Business Auto Policy must include coverage for hired, leased and non-owned
vehicles.
4. General provisions
(a) All policies shall be endorsed to read "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".
(b) Commercial General Liability and Automobile Liability insurance shall be written
by companies with A: VIII or better rating in accordance with the current AM
Best Key Rating Guide.
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(c) Commercial General Liability and Automobile Liability insurance policies shall
name the City, and its officials, agents, employees, and volunteers, as an
Additional Insured.
(d) Certificates of Insurance must reflect all coverages and endorsements required by
this section.
(e) 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 the City.
48831(W 4/14/11)
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