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2013-249s:\lega{\our documents\ordinances\13\dcta rae amendment ordinance.doc ORDINANCE NO, 2� 13-249 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE EXECUTION OF A THIRD AMENDMENT TO RIGHT OF ENTRY AND POSSESSION, BY AND BETWEEN THE CITY OF DENTON ("CITY") AND THE DENTON COUNTY TRANSPORTATION AUTHORITY ("DCTA"), AMENDING THAT CERTAIN RIGHT OF ENTRY AND POSSESSION, BETWEEN THE CITY AND DCTA, DATED MAY 3, 2011, AS PREVIOUSLY AMENDED, GRANTING DCTA ACCESS TO THE EULINE BROCK DOWNTOWN DENTON TRANSIT CENTER ("DDTC") AND CERTAIN LANDS SURROUNDING THE DDTC, LOCATED IN THE HIRAM SISCO SURVEY, ABSTRACT NUMBER 1184, TO CONDUCT PUBLIC TRANSPORTATION RELATED OPERATIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, effective May 3, 2011, pursuant to City of Denton Ordinance No. 2011-073, the City and DCTA entered into that certain Right of Entry and Possession (the "Original Right of Entry"), granting DCTA the right to utilize and occupy the DDTC and certain lands surrounding the DDTC, prior to the conveyance thereof by the City to DCTA; WHEREAS, the Original Right of Entry was amended by that certain First Amendment to Right of Entry and Possession (the "First Amendment"), dated on or about June 7, 2011, Ordinance No. 2011-099, expanding certain rights of occupation to DCTA, as more particularly described therein; WHEREAS, the Original Right of Entry �r�� 't��° a��a��r��&�� l�ay �i��u� c�:�'��.tr� ��r�� Amendment to Right of Entry and Possession �'�I��.� "��:c��+� fi��a��c�rt��""�, �:�� " ��ti�� April 17, 2012, Ordinance 2012-072, extenc��, Ck�+u ��:�a�a� �� 1�� (��•i�i:�� i�l�� ` 1-?��'� �� Original Right of Entry, as amended by the l�is•�i ,tir��;,��c��;�� c# �fi�.� ��c�t�� r��clx��t, �� referred to herein as the "Right of Entry"); WHEREAS, the Right of Entry is to expire September 30, 2013; WHEREAS, due to the delay in the conveyance of the above described real property, the City and DCTA desire to extend the term of the Right of Entry; WHEREAS, the City Council of the City deems it to be in the best interest of the City to enter into the Third Amendment to Right of Entry and Possession with DCTA; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: S� ��,°i`1��1 1. The City Manager, or his designee, is hereby authorized to execute the Third Amendment to Right of Entry and Possession, 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. FASSED AND APPROVED this the �� day of �� µ�� m� 2013. MARK A. l�� 1�� a� �:)U(,�� 1 S, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY �� BY�" �.� "`� � � . � � �� - ��— � �..� __ _ _ :. ��,., � APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ��.,, �r� �P , W,�° s„ � � BY: � .� � , ,�,.. ,� �. ...... � ........ . ... s:\legal\our documents\contracts\33\dcta right of entry-third amendment.doc STATE OF TEXAS COUNTY OF DENTON THIRD AMENDMENT TO RIGHT OF ENTRY AND POSSESSION . KNOW ALL MEN BY THESE PRESENTS THIS Third Amendment to Right of Entry and Possession (the "Third Amendment") is entered into and effective as 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, effective May 3, 2011, pursuant to City of Denton Ordinance No. 2011-073, the City and DCTA entered into that certain Right of Entry and Possession (the "Original Right of Entry") granting DCTA the right to utilize and occupy the Property, as more particularly defined and described in the Original Right of Entry, prior to the conveyance of the Property by the City to DCTA; WHEREAS, the Original Right of Entry was amended by that certain First Amendment to Right of Entry and Possession (the "First Amendment"), dated on or about June 7, 2011, Ordinance No. 2011-099, expanding certain rights of occupation to DCTA, as more particularly described therein; WHEREAS, the Original Right of Entry was further amended by that certain Second Amendment to Right of Entry and Possession (the "Second Amendment"), dated on or about April 17, 2012, Ordinance 2012-072, extending the term of the Original Right of Entry (the 1 s:\legal\our documents\contracts\13\dcta right of entry-third amendment.doc Original Right of Entry, as amended by the First Amendment and the Second Amendment, is referred to herein as the "Right of Entry"); WHEREAS, the Right of Entry is to expire by its terms September 30, 2013; WHEREAS, it is presently anticipated that the Property will not be conveyed by the City to the DCTA prior to the expiration of the Right of Entry; WHEREAS, due to the delay in the conveyance of the Property, the City and DCTA desire to extend the Right of Entry; WHEREAS, the City Council finds it to be in the best interest of the citizens of the City of Denton to extend the Right of Entry, as provided below; 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 sufficiency of which is hereby acknowledged, the City and DCTA hereby amend the Right of Entry as follows: 1. Section 1 of the Right of Entry is hereby deleted in its entirety and replaced for all purposes with the following: 1. Beginning on the Effective Date, DCTA may occupy and possess the Property, other than the area of the Property constituting the DDTC, as shown on Exhibit "A" to the Original Right of Entry. Beginning on or about June 1, 2011, DCTA may occupy and possess the Property, inclusive of the DDTC. DCTA's right to occupy and possess the Property, inclusive of the DDTC, shall continue until the earlier to occur of (a) the conveyance of the Property to DCTA and approval of such conveyance by the FTA; and (b) June 30, 2014. DCTA's use and occupancy of the � s:\legal\our documents\contracts\13\dcta right of entry-third amendment.doc Property shall be solely for uses related to public transportation activities and operations in connection therewith (the "DCTA Activities"). Any other use of the Property by DCTA is expressly prohibited. The City agrees to pursue and take reasonable measures to obtain (i) FTA approval of the transfer of the Assets (as each term is defined in that certain Interlocal Cooperation Agreement ("ILA"), dated effective May 6, 2008, by and between the City and DCTA); and (ii) closing of the 5309 Grant (herein so called), number TX- 03-0293-00, said 5309 Grant being referenced in the ILA. DCTA agrees to reasonably cooperate with the City in its activities related to obtaining FTA approval of the transfer of the Assets and the closing of the 5309 Grant. 2. Section 5 of the Right of Entry is hereby deleted in its entirety and replaced for all purposes with the following: 5. In the event DCTA does not purchase the Property from the City on or before June 30, 2014, the rights granted herein shall terminate and DCTA shall immediately cease conducting the DCTA Activities, and 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 July 31, 2014. 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 pursuant to this R.ight of Entry and the property of 3 s:\legal\our documents\contracts\33\dcta right of entry-third amendment.doc DCTA that may be located thereon. Notwithstanding anything herein to the contrary, nothing in this Right of Entry shall be construed as releasing and/or waiving, or requiring the release and/or waiver of, the rights and obligations of either the City or DCTA set forth in the ILA. 3. Each party hereto represents and warrants that it has taken all actions necessary to authorize the person executing this Third Amendment of Right of Entry on such party's �behalf to bind, in all respects, the party the person represents to all terms and provisions of this Third Amendment of Right of Entry, and that such person possesses the authority to execute this Third Amendment of Right of Entry and bind the party represented. 4. The Right of Entry, shall remain valid and subsisting as originally provided, as amended by the First Amendment and hereby. IN WIT'NE�a� �""��"l�l��i. tlr� ��arties hereto have executed this Third Amendment of Right of Entry effec��:ir�� t�� ,.��;� �� of September, 2013 (the "Effective Date"). THE CITY OF DENTON, TEXAS, a Texas home rule municipal corporation �� „� r ��,� �� mw.u�.. By ..� �"�� . � � ,.�� " George C. Campbell �� City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY ��, � �� ,.�� . �� .. �� , � BY: `�,� '�" � � �".� ,AI��"�� :;T.� r"��TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � BY: �� , � ,�.�,..�, �.,,,. 4 s:\legal\our documents\contracts\13\dcta right of entry-third amendment.doc DENTON COUNTY TRANSPORTATION AUTHORITY, a coordinated county transportation authority � � � � � �� l��"_.� �ames C. � ._..�..m� Cline, Jr., P.� , President