2006-119
S:\Our Documcnts\Ordinances\06\DCTA Firs! Amendment Ordinance.doc
ORDINANCE NO. 2000-//9
AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A
FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT TRANSFERRING ALL
BUSES, EQUIPMENT, AND OTHER RELATED ASSETS FROM THE CITY PASSENGER
MOTOR CARRIER TRANSIT SYSTEM KNOWN AS LINK TO THE DENTON COUNTY
TRANSPORTATION AUTHORITY; AUTHORIZING AN EXTENSION OF THE TIME FOR
FEDERAL TRANSIT ADMINISTRA TION APPROVAL TO MARCH 30, 2007;
AUTHORIZING THE CITY MANAGER TO TAKE NECESSARY ACTIONS TO
COMPLETE THE TRANSFER; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, on September 20, 2005 the City Council passed Ordinance No. 2005-299
authorizing the Mayor to execute an Asset Purchase Agreement of the same date along with
other documents, transferring all LINK public transportation service assets to the Denton County
Transportation Authority ("OCT A"); and
WHEREAS, as a part of that Agreement the parties agreed that the Asset Purchase
Agreement and all other asset transfer documents would be held in escrow by a third party
escrow agent until approval of the transfer by the Federal Transit Administration of the United
States Department of Transportation ("FT A") and if FT A approval was not obtained by the close
of business on March 31, 2006 the parties would enter into a lease of all the vehicles by the City
as Seller to the DCTA as Buyer; and
WHEREAS, the FT A has approved the transfer of title of the vehicles and other assets
subject to certain other approvals which have not yet been finalized; and
WHEREAS, the FTA final approval has taken longer than anticipated and the parties
desire to amend certain terms and conditions of the Asset Purchase Agreement dated September
20, 2005 ("Original Agreement") to extend the time for FT A approval to March 30, 2007, to
terminate the escrow agreement and to allow the City to hold the transfer documents in escrow
until final FTA approval with the third party escrow agent; and
WHEREAS, City Council determines that the First Amendment will further the
objectives of the Asset Purchase Agreement and is in the best interest of the parties. NOW,
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
,
SECTION I. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. City Council hereby approves and authorizes the Mayor, or in her absence,
the Mayor Pro-Tem, to execute the First Amendment to the Asset Purchase Agreement
substantially in the form of the attached First Amendment.
SECTION 3. The City Manager, or his designee, is authorized to expend the funds as
authorized in the agreement and to exercise all rights and duties of the City of Denton under the
First Amendment to Asset Purchase Agreement.
SECTION 4. A true and correct executed copy of this Ordinance will be transmitted to
the appropriate officials of the OCT A and FT A by the City Manager or his designee,
immediately upon its passage and approval.
SECTION 5. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the 21t<ay of 1 ~ ,2006.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
c~AcZ
EULINE BROCK, MAYOR
BY~\U LWo & hi ~/
APPROV AS T~LEGAL FORM:
EDWIN SNYDER, CITY ATTORNEY
BY:
STATE OF TEXAS ~
~
COUNTY OF DENTON ~
First Amendment to Asset Purchase Agreement
This First Amendment to Asset Purchase Agreement ("Agreement") is made by and
between the Denton County Transportation Authority ("Buyer") and City of Denton, Texas,
("Seller"), acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the parties previously entered into that certain Asset Purchase Agreement
dated September 30, 2005 for the purchase and sale of certain assets (the "Original Agreement");
and
WHEREAS, the parties desire to amend certain terms and conditions of the Original
Agreement as set forth herein in connection with the Federal Transit Administration of the
United States Department of Transportation ("FT A") approval of the transfer of title of certain
vehicles as contemplated by the Original Agreement; and
WHEREAS, the FTA has approved the transfer of title of the Vehicles and other assets
which are identified in the Original Agreement subject to certain other approvals which have not
yet been finalized; and
WHEREAS, the Seller and Buyer have determined that this Agreement will further the
objectives of the Original Agreement and is in the best interests of the parties;
NOW, THEREFORE, in consideration of the foregoing, and on the terms and
conditions hereinafter set forth, and other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. The Parties agree that Section 7.5 of the Original Agreement is hereby amended
to read as follows:
"7.5 FTA Approval. As in accordance with Section 3.2(d) above, at Closing the
Titles were deposited with the Escrow Agent to be held by and then released by the Escrow
Agent to the Buyer in accordance with the terms and conditions of the Escrow Agreement upon
Seller receiving FT A approval to transfer the Vehicles to the Buyer and promptly executing and
delivering to the Escrow Agent the Statement of FTA Approval By the City of Denton, Texas
(Exhibit B to the Escrow Agreement) and upon Buyer receiving FT A approval to receive the
Vehicles from the Seller and promptly executing and delivering to the Escrow Agent the
Statement of FT A Approval By Denton County Transportation Authority (Exhibit C to the
Escrow Agreement), as contemplated herein. However, the FTA has approved the transfer and
receipt of the Titles subject to other approvals that have not yet been finalized. Accordingly, the
Buyer and Seller further agree that since the FT A has tentatively approved, but is not expected to
finalize and compete its approval of the sale of the Assets by the Seller to the Buyer and the
conveyance and transfer of the Other Buses by the Seller to the Buyer as originally contemplated
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in this Agreement by the close of business on March 31, 2006, that if the FT A has not finally
approved the sale of the Assets by the Seller to the Buyer and the conveyance and transfer of the
Other Buses by the Seller to the Buyer as contemplated in this Agreement by the close of
business on March 30, 2007, the Seller and Buyer shall immediately commence the good faith
negotiation of the terms and conditions of an appropriate lease for all of the Vehicles by the
Seller to the Buyer for the purpose of the Buyer's unlimited use of the Vehicles in the
establishment, operation and maintenance of an intra-city bus line in the City of Denton and such
terms and conditions (among others) of such lease shall include, without limitation, each of the
following:
(a) the Purchase Price shall be deemed by Seller and Buyer to be the full and complete rental
to be paid by Buyer and Seller under such lease and therefore Buyer shall not have any
other or additional rental obligation under the lease beyond the Purchase Price as paid at
Closing; and
(b) the term of the lease shall have a schedule date of April 30, 2010.
Further, seller and Buyer agree that such lease shall be executed by the Seller and Buyer by no
later than the close of business on May 31, 2007 unless such date be extended in writing by
Seller and Buyer that shall provide for interim operation by the Buyer."
2. The Parties agree that the Original Agreement is hereby amended to add the
following new section to read as follows:
"7.6 Delivery of Titles bv Escrow Aeent.
(a) The Seller and Buyer agree to cause the termination of the Escrow Agreement
unless the Escrow Agreement has already terminated by its own terms and the Escrow Agent has
delivered the Titles to the Seller in accordance with the Escrow Agreement. In the event the
Escrow Agent has not already delivered the Titles to the Seller, the Seller and Buyer shall direct
the Escrow Agent to deliver the Titles to the Seller which shall hold the Titles until such time as
the Seller receives final written FTA approval to transfer the Vehicles to the Buyer and the Buyer
receives final written FT A approval to receive the Vehicles from the Seller, at which time the
Seller shall deliver the Titles to Buyer.
(b) In the event the Escrow Agent has already delivered the Titles to Seller in
accordance with the Escrow Agreement, the Seller agrees to hold the Titles until such time as the
Seller receives final written FT A approval to transfer the Vehicles to the Buyer and the Buyer
receives final written FT A approval to receive the Vehicles from the Seller, at which time the
Seller shall deliver the Titles to Buyer."
3. This Amendment to the Original Agreement shall take effect on the last date of
execution hereof.
effect.
4. Except as amended herein the Original Agreement shall continue in full force and
First Amendment to Asset Purchase Agreement - 2
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EXECUTED on this 2.1 t~ay of A uJ" '" I
I
DENTON COUNTY TRANSPORTATION AUTHORITY
,2006.
By:
Approved as to Legal Form
~G~
Peter G. Smith, General Counsel
EXECUTED on this 21t'-day of <-f'l[ I1r
CITY OF DENTON, TEXAS
,2006.
By: C~~~
Euline Brock, Mayor
Approved as to Legal Form
Edwin M. Snyder
Attest:
By:
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