HomeMy WebLinkAboutORD.3084.10-21-2002BILL NO. 02-219
ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE AGREEMENT WITH THE BURLINGTON
NORTHERN AND SANTA FE RAILWAY TO OPERATE A
MAINTENANCE AND STORAGE FACILITY AT GOOD HOPE
AND AQUAMSI STREETS IN THE CITY OF CAPE
GIRARDEAU, MISSOURI
BE IT ORDAINED 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 The Burlington Northern and Santa Fe Railway
to operate a maintenance and storage facility on a tract of land
along the riverfront beginning approximately 100 feet north of
the north right-of-way line of Good Hope Street and the east
right-of-way line Aquamsi Street, continuing south 415 feet. A
copy of said Contract is attached to this Ordinance and made a
part hereof.
ARTICLE 2. This Ordinance shall be in full force and effect
ten days after its passage and approval.
PASSED AND APPROVED THIS _10fir DAY OF �� 200,.,)�.
Jay Knudtson, Mayor
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.ES•:t ��.X'
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Gayl e,; Conrad, City Clerk
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LEASE AGREEMENT
THIS AGREEMENT, made and entered into the Z51" day of SEa E015Q- , 2002, by and
between the City of Cape Girardeau, Missouri, a municipal corporation of the State of Missouri, hereinafter called
"Lessor," and The Burlington Northern and Santa Fe Railway Company, a Delaware corporation, hereinafter called
"Lessee."
WHEREAS, the Lessor owns property in the City of Cape Girardeau upon which the Lessee wishes to
maintain a storage and work area; and
NOW, THEREFORE, for and in consideration of the premises and mutual undertakings, agreements and
covenants hereinafter set forth, the parties hereto agree as follows:
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For and in consideration of the terms, conditions and covenants of this Lease to be performed by Lessee, all
of which Lessee accepts, Lessor hereby leases to Lessee and Lessee hereby hires and takes from Lessor certain
attendant privileges, uses and rights as hereinafter specifically set out.
A. DESCRIPTION OF PREMISES DEMISED
The premises hereby leased is a tract of land along the riverfront beginning approximately 100 feet north of
the north right-of-way line of Good Hope Street and east of the right-of-way line of Aquamst Street, continuing south
415 feet, as shown in Exhibit A.
B. USE OF DEMISED PREMISES
(1) Lessor hereby grants Lessee the right to operate a maintenance and storage facility on the demised
premises designated on Exhibit A.
(2) Lessor hereby grants to Lessee all easements, rights and privileges appurtenant to the demised
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 leased premises in any other manner than set
forth above without the prior written consent of Lessor.
C. OBSERVANCE OF STATUTES, ETC.
The granting of this lease and its acceptance by Lessee is conditioned upon the right to use said property for
the above stated uses; provided, however that, to the extent not pre-empted by federal law, Lessee shall observe and
comply with any and all reasonable 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 which do not materially interfere with Lessee's use of railway operations as
may hereafter be promulgated from time to time by the Cape Girardeau City Council.
D. FORCE MAJEURE
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In the event that either party hereto shall be delayed or hindered in or prevented from the performance or 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, earthquakes, accidents, fires, floods, explosives,
actions of the elements, sabotage, condemnation, war or any other reason, whether similar or dissimilar to the
foregoing, not within the reasonable control of the party delayed in performing work or doing acts, such party shall be
excused for the period of delay. The period for the performance of any such act shall then be extended for the period
of such delay.
Mae
Lessee agrees to the following conditions of this Lease Agreement:
A. The Lessee shall keep the storage and maintenance facility area in good condition, in keeping with the historic
downtown Cape Girardeau appearance.
B. The Lessee shall make an annual payment of $2,490 to the City of Cape Girardeau with the first payment due
upon execution of this lease agreement. The annual lease payment shallincrease by an annual inflation factor of
three (3) percent per year of the prior year's annual rental payment. Subsequent annual payments shall be
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 will be due.
This Lease Agreement shall be effective upon the complete execution of this lease agreement and shall expire
one (1) year following the execution of this lease agreement, but may be renewed on an annual basis, with the consent
of Lessor, subject to termination as set out in Article V herein.
A. INDEMNITY
Lessee agrees to indemnify, defend and hold harmless the 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, to the extent caused by the negligent or willful
misconduct of Lessee, its agents, employees, contractors or anyone directly or indirectly acting on behalf of Lessee.
B. INDEMNITY AGAINST ENVIRONMENTAL MATTERS
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 Conservation and Recovery Act of 1976, as amended by
the Used Oil Recycling Act 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 kind or character including, but not limited to,
reasonable attorneys' fees of Lessor, arising out of any discharge, spill or release onto, in, adjacent to or under the
Leased Property any hazardous substance as hereinabove defined, in violation of any applicable state, local or federal
law, rule or regulation governing the storage, release, discharge, presence or clean-up appropriate to the use of the
Leased Property any such discharge or spill of any hazardous substance occurring on the Leased Property and resulting
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from the Lessee's operations. This environmental indemnity shall be the exclusive remedy under this contract, at law
or in equity for an environmental problem.
�60
A. TERMINATION
This Lease shall terminate at the end of one (1) full year and Lessee shall have no further right or interest in
any of the ground hereby demised, except as expressly provided herein.
B. TERMINATION BY LESSEE
Lessee reserves the right to terminate this lease upon ninety (90) days written notice to Lessor. Lessee forfeits
any rights to the annual lease payment already paid to Lessor.
C. TERMINATION BY LESSOR
Lessor reserves the right to terminate this lease upon ninety (90) days written notice to the Lessee. If
terminated by the Lessor, a pro -rata share of the annual lease payment shall be returned to Lessee for the remaining
lease period. Additionally, the Lessor shall have the right to terminate this lease if the Lessee shall be in default, after
having been given a two-month notice and cure period, of the annual payment or any part thereof. Lessor may
terminate this Lease Agreement without additional notice or cure period should Lessee fail to pay its annual payment
agreed upon herein by the date due pursuant to the terms of this Lease.
D. WAR OR NATIONAL EMERGENCY
During the time of war or national emergency, Lessor or Lessee shall have the right to terminate this Lease
should the Federal Government assume control and possession of the demised premises for military use.
E. ASSIGNMENT
Lessee shall have the absolute right to sublet, assign or otherwise transfer its interest in this Lease to any
parent or operating subsidiary of Lessee, or any subsidiary of Lessee's parent, or to a corporation with which it may
merge or consolidate, without Lessor's approval, written or otherwise, as long as Lessee remains fully liable for full
performance of all its obligations under this lease.
A. IMPROVEMENTS
At the termination of this Lease for any reason, Lessee shall have the option to remove its maintenance
equipment and buildings within a period of ninety (90) days from the date of termination 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
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Lessor shall have a lien upon all of Lessee's property, personal or otherwise, located on the demised premises
on the date of termination for any sums due Lessor from Lessee upon termination of this Lease 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 the sole property of Lessor.
ARTICLE VII
GENERAL PROVISIONS
A. MISCELLANEOUS
Lessee will not engage in salvage type operations on the demised premises nor will Lessee store wrecked
railway or damaged railway parts outdoors for longer than thirty (30) days.
B. This Lease shall be accepted, approved, and adopted by ordinance duly passed by the City of Cape Girardeau,
executed and signed by the Mayor, and published in form and manner required by law and thereupon become binding
upon and unure to the benefit of both parties hereto, their successors and assigns.
C. 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.
D. NOTICES, CONSENTS AND APPROVALS
Whenever any notice or payment is required by this Lease to be made, given or transmitted to the parties
hereto, such notice or payment shall be deemed to have been given if enclosed in an envelope with sufficient postage
attached to insure delivery and deposited in the United States mail addressed to:
Lessor: City of Cape Girardeau, Missouri
City Manager
401 Independence
Cape Girardeau, MO 63703
And a copy to:
City Attorney
City of Cape Girardeau
401 Independence
Cape Girardeau, Mo. 63703
Lessee: The Burlington Northern and Santa Fe Railway Company
Attn: Manager Leases and Permits
2500 Lou Menk Drive
Fort Worth, TX 76131-2828
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And a copy to:
Staubach Global Services
Attn: Missouri Manager
5650 Riverside Drive
Fort Worth, TX 76137
E. 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 day first
above mentioned at Cape Girardeau, Missouri.
ATTEST:
Gayle L. Conrad
City Clerk
r„r
AND S
NZ -
ATTEST:
CL.
AWPR- ' �0
Corporate,,Secretary
A"jsrANr
STATE OF MISSOURI
) ss.
COUNTY OF CAPE GIRARDEAU
CITY OF CAPE GIRARDEAU, MISSOURI
By:
Michael G. Miller
City Manager
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
By6
r ert
P - PJ&Facilities Mgn:°
Typed Name and Title
BE IT REMEMBERED, That on this day of 2002, before me, the
undersigned, a Notary Public in and for the County and State aforesaid, came Michael G. Miller, City Manager of Cape
Girardeau, Missouri, a City duly organized, incorporated and existing under and by virtue of the laws of the State of
Missouri, and who is personally known to me to be the same person who executed, as such official, the within
instrument on behalf of said municipal corporation, and such person duly acknowledged the execution of the same to
be the act and deed of said municipal corporation.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year last
above written.
[Typed Name of Notary Public]
STATE OF
ss.
COUNTY OF'(A�.MN� )
BE IT REMEMBERED, That on diis 25'q" day of 5d)rfrM$0L- , 2002 before me,
the undersigned, a Notary Public in and for the County and State aforesaid, came JMS5 . - OrgM , to
me personally known, who, being by me duly sworn, did state that he is the h-4 P909' II iW TAULAIM5 AW1of The
Burlington Northern and Santa Fe Railway Company, a Delaware Corpo ation, and that said instrument was signed in
behal� of said corporation by authority of its Board of Directors for the nsidetact
tion stated therein and no other, and
said MNIA Uk(k0a`5.0 acknowledged said instrument to N e fre and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and
seal, the day and year last above
written.
r JODY SCOTT JONES
Notary Public —W'j
* * STATE OF TEXAS J
[Typed Name of Notary Public]
or My Comm. Exp. 11/28/05
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