HomeMy WebLinkAboutRes.2782.09-23-2013BILL NO. 13-135 RESOLUTION NO. , o
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE AGREEMENT WITH BNSF RAILWAY
COMPANY, FOR PROPERTY LOCATED ON AQUAMSI STREET,
IN THE CITY OF CAPE GIRARDEAU, MISSOURI
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
ARTICLE 1. The City Manager, for and on behalf of the City
of Cape Girardeau, Missouri, is hereby authorized to execute a
Lease Agreement with BNSF Railway Company for property located
on Aquamsi Street. A copy of said Lease Agreement is attached
to this Resolution and made a part hereof.
,r
PASSED AND ADOPTED THIS DAY OF 2013.
ATTEST:
Gayle ,t Conrad, City Clerk
Harry E. R Iger, Mayor
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this,)day of � Q, , 2013, by and
between the City of Cape Girardeau, Missouri, a municipal corporation of the State of Missouri, hereinafter referred
to as "Lessor," and BNSF Railway Company (f/k/a The Burlington Northern and Santa Fe Railway Company), a
Delaware corporation, hereinafter referred to as "Lessee."
WITNESSETH
WHEREAS, the Lessor owns property in the City of Cape Girardeau upon which the Lessee wishes to
maintain a storage and maintenance facility for railroad equipment.
NOW, THEREFORE, for and in consideration of the premises and mutual undertakings, agreements and
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PREMISES AND PRIVILEGES
For and in consideration of the terms, conditions and covenants of this Lease Agreement to be performed
by Lessee, all of which Lessee accepts, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor certain
attendant privileges, uses and rights as hereinafter specifically set out.
A. DESCRIPTION OF PREMISES
The premises hereby leased (hereinafter referred to as "Premises") is a tract of land along the riverfront
beginning at a point on the east line of Aquamsi Street and the north line of Good Hope extended, continuing south
approximately 350 feet to a point; then east approximately 60 feet to a point; then north approximately 350 feet to a
point; then west to the point of beginning, being approximately 21,000 square feet in area, as generally shown in the
attached illustration.
B. USE OF DEMISED PREMISES
(1) Lessor hereby grants to Lessee the right to operate a storage and maintenance facility on the
Premises.
(2) Lessor hereby grants to Lessee all easements, rights and privileges appurtenant to the Premises and
the right to connect to or with all utility installations, subject to all City ordinances and fees.
(3) Lessee shall not use or permit the use of any part of the Premises in any other manner than set
forth above without prior written consent of Lessor.
(4) Lessor reserves the right to place utilities, signs, lights or similar items on the Premises in a manner
that does not interfere with the Lessee's use of the Premises.
C. OBSERVANCE OF STATUTES, ETC.
This Lease Agreement and its acceptance by Lessee is conditioned upon the right to use the Premises for
the above stated uses; provided, however that Lessee shall observe and comply with any and all requirements of the
constituted public authorities and with federal, state or local statutes, ordinances or regulations in effect at the time
of this Agreement and such valid and reasonable health and safety regulations of general application as may
hereafter be promulgated from time to time by the City Council.
Page 1 of 6
D. FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in or prevented from performance of any
Act required hereunder by reason of strikes, lockouts, labor troubles, action of labor unions, failure of power, riots,
insurrection, civil or military authority, acts of the public enemy, acts of nature, fires, explosives, actions of the
elements, sabotage, condemnation, war or any other reason, whether similar or dissimilar to the foregoing, or any
similar cause beyond the reasonable control of either party, said parties shall be excused from the period of delay.
The period for the performance of any such act shall then be extended for the period of such delay.
ARTICLE H
OBLIGATIONS OF LESSEE
Lessee agrees to the following conditions of this Lease Agreement:
A. Lessee shall keep the storage and maintenance facility in good condition, in keeping with the Historic
Downtown Cape Girardeau appearance.
B. Lessee shall pay to Lessor an annual rent, with the first payment in the amount of $2,660 due immediately upon
execution of this Lease Agreement. Thereafter, the rent amount shall increase by an annual inflation factor of
three percent (3%) of the prior year's rent. Rent payments shall be considered delinquent if not received within
fifteen (15) days of the anniversary date of this Lease Agreement of each year, after which a late fee of 1.5% per
month shall be assessed to the late payment.
ARTICLE III
TERM OF LEASEHOLD
This Lease Agreement shall be effective September 25, 2013 and shall run for a term of ten (10) years, and
is set to expire on the tenth (10th) anniversary thereof.
ARTICLE IV
INDEMNITY AND INSURANCE BY LESSEE
A. INDEMNITY
Lessee agrees to indemnify, defend and hold harmless Lessor from claims, demands, actions and suits of
every kind because of, but not limited to: bodily injury, including death; damage to the environment; and property
damage, which may arise both out of and during this contract, whether such operations be by Lessee, agent, assign,
employee or anyone directly or indirectly acting on behalf of Lessee.
B. INDEMNITY AGAINST ENVIRONMENTAL MATTERS
During the term hereof, Lessee shall not store, discharge, spill or release onto, in or under the Premises any
hazardous substance as hereinafter defined, in violation of any federal, state, or local law, rule or regulation
governing the storage, release, discharge, presence, clean-up and handling of hazardous substances. Lessee agrees to
promptly remove or clean up any such discharge or spill of any hazardous substance occurring on the Premises. For
the purpose of this Lease Agreement, the term "hazardous substance" shall mean such substances, materials, wastes,
petroleum products or compounds defined as being a hazardous substance in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, or the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil
Recycling Act of 1980, the Solid Waste Disposal Act Amendments of 1980, and the Hazardous Solid Waste
Amendments of 1984, or any other applicable Environmental Laws. Lessee agrees to indemnify and hold Lessor
harmless from any liability, demand, action, claim, loss, cost, penalty, fine, clean-up expense or other expense of any
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kind or character including, but not limited to, reasonable attorneys' fees of Lessor, arising out of a breach or
violation of Lessee's agreements, covenants or representations set forth in this paragraph.
ARTICLE V
TERMINATION OF LEASE AND ASSIGNMENT PROVISIONS
A. TERMINATION
This Lease Agreement shall terminate at the end of the full term hereof, and Lessee shall have no further
right or interest in any of the Premises, except as expressly provided herein.
B. TERMINATION BY LESSEE
This Lease Agreement shall be subject to termination at the option of Lessee upon the abandonment of the
Premises. Lessee may exercise the right of termination by written notice to Lessor at any time within thirty (30) days
after the execution of this Lease Agreement and this Lease Agreement shall terminate as of the date of such notice.
The Lessor shall not refund any portion of the annual payment for the year that the Lessee requests the termination
of this Lease Agreement.
C. TERMINATION BY LESSOR
This Lease Agreement shall be subject to termination at the option of Lessor upon the happening of any
one or more of the following events, which may be elsewhere described in this Lease as events of default:
(1) Lessee fails to pay the annual rent, plus applicable late fees, within six (6) months after the
anniversary date; or
(2) Lessee abandons the Premises; or
(3) Lessee fails to maintain current licenses or authorizations required for its operation.
If, after thirty (30) days' written notice setting forth a default as defined in Subsections (1), (2) or (3) above,
default shall continue by the Lessee in the performance or observance of any other covenant, agreement or
condition herein contained to be performed on its part; then Lessor shall have the right to reenter and take
possession of the Premises, and Lessee will peaceably surrender possession thereof to Lessor upon written demand,
and all rights and interests of Lessee hereunder shall cease and terminate, and at its option, Lessor may remove
Lessee's effects, forcibly if necessary, without being guilty of trespass or conversion. Upon said default, allrights of
Lessee shall be terminated, and Lessee hereby agrees to surrender possession of the Premises to the City Manager or
his designee immediately. Lessor and Lessee shall have and reserve all other available remedies at law as a result of
such breach of contract.
D. WAR OR NATIONAL EMERGENCY
During the time of war or national emergency, Lessor or Lessee shall have the right to terminate this Lease
Agreement should the federal government assume control and possession of the Premises for military use.
E. ASSIGNMENT
This Lease Agreement shall not be assigned without prior written consent of Lessor. In the event this
Lease Agreement is assigned, the party to which it is assigned shall be bound by the same terms, conditions, and
obligations as the Lessee, and Lessee shall remain liable to Lessor for said party's actions.
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ARTICLE VI
RIGHTS UPON TERMINATION
A. IMPROVEMENTS
Upon termination of this Lease Agreement for any reason, Lessee shall have the option to remove its
equipment and buildings within a period of ninety (90) days from the date of termination and restore the Premises
to its original condition without said improvements, but any such improvements not so removed within this time
period shall be the sole and exclusive property of Lessor without cost.
B. RIGHTS UPON TERMINATION
Lessor shall have a lien upon all property, personal or otherwise, of Lessee for any sums due Lessor from
Lessee upon termination of this Lease Agreement for any cause. Lessor may sell the same in a commercially
reasonable manner as that term is utilized in the Uniform Commercial Code of Missouri, including the right to sell at
public auction upon ten (10) days notice to Lessee and to the public, which notice may be given by publication of
such notice for five (5) consecutive days in a newspaper of general circulation published in Cape Girardeau County,
Missouri, and Lessor may, upon such sale and after deducting the reasonable expense thereof including attorneys'
fees, apply the proceeds to any sums due by Lessee to Lessor. Any excess after the payment of all such expenses
shall be paid over by Lessor to Lessee.
ARTICLE VII
GENERAL PROVISIONS
A. MISCELLANEOUS
Lessee will not engage in salvage type operations on the Premises, not will Lessee store wrecked railway or
damaged railway equipment or parts outdoors for longer than thirty (30) days.
B. PARAGRAPH HEADINGS
The paragraph headings contained herein are for convenience in reference and are not intended to define or
limit the scope of any provisions of this Lease Agreement.
C. NOTICES, CONSENTS AND APPROVALS.
Whenever any notice or payment required by this Lease Agreement is transmitted to the parties hereto, such
notice or payment shall be deemed to have been transmitted if enclosed in an envelope with sufficient postage
attached to ensure delivery and deposited in the United States mail addressed to:
Lessor: City of Cape Girardeau, Missouri
Attn: Planning Services Division
401 Independence Street
Cape Girardeau, Missouri 63703
Lessee: BNSF Railway Company
C/o Jones Lang LaSalle, attn.: Facility Lease Administration
4300 Amon Carter Blvd., Suite 100
Fort Worth, Texas 76155
or such other place as either party shall in writing designate in the manner herein provided.
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D. SUCCESSORS AND ASSIGNS
All of the terms, covenants and agreements herein contained shall be binding upon and shall inure to the
benefit of successors and assigns of the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed as of the date
above written.
fx�G CITY :CAPE IRARDEAU, MISSOURI
_ Scott A. Meyer
h e j
City Manager
ATTEST: r
Gayle/ . Conrad
City Clerk
STATE OF MISSOURI )
) ss.
COUNTY OF CAPE GIRARDEAU )
BE IT REMEMBERED, That on this 'j day of <��QIJ li°I b l— 2013, before me, the undersigned,
a Notary Public in and for the County and State aforesaid, came Scott A. Meyer, who did state that he is the City
Manager of the City of Cape Girardeau, a municipal corporation of the State of Missouri, and that he is authorized
to execute said instrument on behalf of said municipal corporation; and acknowledged said instrument to be the free
act and deed of said municipal corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the date first above
written.
BRUCE TAYLOR
Notary Public - Notary Seal
STATE OF MISSOURI
Scott County
My Commission Expires: Oct 2, 2015
Commission # 11249070
My
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,�`l rac e� 7;-a h-
Name of Notary Public
BNSF RAILWAY COMPANY
Kurt Geringer
General Director Real Estate
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STATE OF
ss.
COUNTYOF
BE IT REMEMBERED, That on this / ,VA day of 'S 4k Ill &-A , 2013 before me, the
undersigned, a Notary Public in and for the County and State aforesaid, came Kurt Geringer, to me personally
known, who, being by me duty sworn, did state that he is the General Director Real Estate of BNSF Railway
Company, a Delaware corporation, and that said instrument was signed on behalf of said corporation by authority of
its Board of Directors for the consideration stated therein and no other, and acknowledged said instrument to be the
free act and deed of said corporation.
IN TNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the date first above
written. D�PAY Puy` JOYIA SIMMONS
* * Notary Public
Nr y STATE OF TEXAS
''Foy*r My comm. Exp. Mar. 07, 2016
My Commission Expires:!
Name of Notary Public
Page 6 of 6
BNSF LEASE AGREEMENT
AQUAMSI STREET
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City of Cape Girardeau
Division of Planning Services
GIS Data
' . September 23, 2013
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