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2011-073 %(+$1$%$1$-"$%.1, 2011073 AdditionalFileExists AdditionalFileContainsRecordsNotPublic,AccordingtothePublicRecords Act Other %(+$2#§º«(´¯º¯§²¹ 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 s;\legal\our documents\contracts\11\dcta right of entry-execution origin aLdoc 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 1 48831 (014/14/11) s:\legal\our documents\contracts\11\dcta right of entry-execution original.doc 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, 2 48831 (kbl 4/14/11) s:\legal\ourdocuments\contracts\11\dcta right of entry-execution original.doc 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, 3 48831(kbl 4/14/11) s;\legal\our documents\contracts\11\dcta right of entry-executiorroriginal.doc 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 4 48831 (kbl 4/14/11) s:\legal\our documents\contracts\11\dcta right of entry-execution original.doc 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: 5 48831 (kb14/14/11) s:\legal\cur documents\contracts\11\dcta right of entry-execution origin aLdoc (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 6 48831 (W 4/14/11) s:\legal\ourdocuments\contracts\31\dcta right ofentry•execution original.doc 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 7 48831 (kbl 4/14/11) s:\legal\our documents\contracts\11\dcta right of entry-execution original.doc 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 8 48831 (kbl 4/14/11) s:\legal\our documents\contracts\11\dcta right of entry-execution original.doc 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 9 48831 (kbl 4/14/11) s:\legal\our documents\contracts\11\dcta right of entry-execution original,doc 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. 11 48831 (kbl 4/14/11) s:\legal\our documents\contracts\11\dcta right of entry-execution original.doc (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) �ARCHITECTIlHAL SRE PLAM �, i - I i i -- ___ �,.._..,_._ _:..�- —�-�—�-. ___. ii�� ---- _ . —�.::.._ � .. _ _L:-:::.::. JACQBS� ��� � +,. ,4 I�G ��k; �` ��� �; _ ..... _...... � 1Lt F— Z W C? H � Z � � H Z O E- Z W � ,.�. m w.a. a„�..�.�.� on�w„or a�s 8/ZB/O�g. ano. MNlDIL A�/ai �aaio _.,_,_ .� �. ARCittTECTUAAL SITE PLAii z A i.� V