HomeMy WebLinkAboutORD.3085.10-21-2002BILL NO. 02-220
ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
EXECUTE A LEASE AGREEMENT WITH THE BURLINGTON
NORTHERN AND SANTA FE RAILWAY TO OPERATE A
RAILROAD AND OTHER RELATED ACTIVITIES ON CITY
PROPERTY ALONG THE RIVERFRONT 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
granting The Burlington Northern and Santa Fe Railway the right
to operate a railroad and other related activities on city
property along the riverfront in the City of Cape Girardeau,
Missouri. A copy of said Lease Agreement 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 DAY OF l' r '1. 20 6,_1.
Jay Knudtson, Mayor
'ATTEST:
Gayler, .Conrad; City Clerk
LEASE AGREEMENT
THIS AGREEMENT, made and entered into the Z5"' day of 501e AlWL , 2002, by and
between the City of Cape Girardeau, Missouri, a municipal corporation of the State of Missouri, hereinafter called
"Lessor," and Burlington Northern and Santa Fe Railway, a Delaware corporation, hereinafter called "Lessee."
WHEREAS, the Lessor owns property in the City of Cape Girardeau upon which the Lessee wishes to
maintain railroad tracks and operate railway traffic; and
WHEREAS, Lessee's predecessor -in -interest first obtained the rights and privileges to operate a railway on
City property by Aldermanic Form Ordinance No. 341 in 1880, as amended by Ordinance No. 474 in 1892, Ordinance
No. 616 in 1900, Ordinance No. 6321n 1902, Ordinance 930 in 1910, Ordinance No. 935 in 1911, Ordinance No.
1047 in 1913, Ordinance No. 950 in 1942, Ordinance No. 1710 in 1956, and Ordinance 2078, approved on June 3rd,
1960; and
WHEREAS, the rights and privileges of operating a railway on City property, as last authorized by Ordinance
No. 2078, expired on September 1, 2000;
NOW, THEREFORE, for and in consideration of the premises and mutual undertakings, agreements and
covenants hereinafter set forth, the parties hereto agree as follows:
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
attendantprivileges, 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 at Morgan Oak Street as the south
terminus, continuing north to 100 feet north of Broadway Street, as generally shown in Exhibit A.
B. USE OF DEMISED PREMISES
(1) Lessor hereby grants Lessee the right to operate a railroad as now located on the demised premises,
including connecting up segments of track on the north and south boundaries of the demised
premises for the interstate transportation of freight of all kinds and passengers including the right to
use the demised premises for all lawful purposes. Additionally, the Lessor grants the Lessee the right
to maintain office space and a maintenance facility in the area so designated on Exhibit A.
(2) Lessor hereby grants to Lessee all easements, rights and privileges appurtenant to the demised
premises, including all rights heretofore enjoyed by Lessee and the right to connect to or with all
utility installations, subject to all City ordinances and fees, and to use adjoining streets, roads, alleys,
parking areas, and means of ingress and egress.
(3) Lessee shall have the right to construct, place, operate, maintain, alter, repair, replace, renew, improve
and remove communication lines above, below and on the surface of the demised premises,
including, without limitation, transmission by conduit, fiber optics, cable, wire or other means of
electricity, voice data, video digitized information, or other materials or information. Lessee shall
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provide access to any such communication lines to Lessor for City governmental purposes at no cost
to Lessor.
(4) 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.
(5) Lessor reserves the right, for purposes of the public interest only, to place utilities, signs, lights or
similar utility installations within the leased area in a manner that does not interfere with the Lessee's
use of the leased area.
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
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.
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Lessee agrees to the following conditions of this Lease Agreement:
A. The Lessee shall continue to be a party in good standing of the Main Street and North Main Street Levee Districts.
B. The Lessee shall not park any railway cars in front of the floodwall between the Sloan Creek and Morgan Oak
floodgates when the Sloan Creek floodgate is closed, except for emergency situations, as approved by the City
Manager.
C. The Lessee shall keep its office and maintenance area in good condition, in keeping with the historic downtown
Cape Girardeau appearance.
D. The Lessee shall make annual payments to the City of Cape Girardeau on September 11, of each year, effective
September 1, 2002. The September 1, 2002 payment shall be $21,854. Each of the successive annual payments
shall increase by an annual inflation factor of three (3) percent per year of the prior year's annual rental payment.
Payment will be considered to be delinquent if not received by September 15th of each year, after which a late fee
of 1.5 % per month will be due.
E. The Lessee shall make a payment of $7,920 at the time of the execution of this lease which constitutes a holdover
rental payment for the period of September 1, 2000 to September 1, 2002.
F. Within 30 days of the completion of the installation of communication lines by the Lessee in the demised area,
except for communication lines used solely by the Lessee, the Lessee shall pay the Lessor the sum of $112,500,
which is determined to be the value of such communication lines for the term of this Agreement.
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ARTICLE III
NEGOTIATION OF RENT
Lessor and Lessee agree that the annual rent contained in Article II of this Lease may be renegotiated by the
parties in the following manner:
A. The existing rent may be renegotiated at the option of either party five (5) years from the date of the
execution of this Lease and every five(5) years thereafter of the anniversary date of this Lease. To renegotiate
the rent in accordance with this paragraph, Lessor or Lessee shall submit to the other party in writing notice of
the proposed new annual rent for the succeeeding five (5) years. Lessor and Lessee shall exchange these
written proposals not more than sixty (60) days before the applicable five (5) year anniversary date. If neither
party submits a proposed new annual rent to the other party, then the rent applicable for the previous five (5)
year period shall continue in full force and effect.
B. Upon substantial decrease or modification of Lessee's use of the demised premises, Lessor or Lessee may
renegotiate the annual rent provided for in Article II of this Lease. In order to renegotiate the rent in
accordance with this paragraph, within one hundred eighty (180) days of the decrease in use or completion of
the modifications, Lessor or Lessee shall submit to the other party notice of the proposed new annual rent in
writing for the remainder of that current five (5) year period. If neither party submits a proposed new annual
rent to the other party during the period, then the rent in effect at that time shall continue in full force and
effect until the next five (5) year anniversary date.
C. The Lessor and Lessee agree that in the vent they are unable to successfully renegotiate the annual rent within
sixty (60) days of submission of notice of the proposed new annual rent in accordance with paragraphs A and
B above, then the annual rent shall be determined by binding arbitration I accordance with the provisions of
the Missouri Uniform Arbitration Act (Chapter 435 Revised Statutes of Missouri) as amended from time to
time, and the rules of the American Arbitration Association for Commercial Arbitrations. Either party may,
by written notice to the other, given no earlier than sixty (60) days after the notice specified in paragraphs A or
B above, notify the other party of its intention to arbitrate and at the same time notify the American
Arbitration Association of its intention to arbitrate such dispute and request the appointment of an arbitrator.
The arbitrator shall hold arbitration hearings at such place in the County of Cape Girardeau as designated by
the arbitrator. The arbitrator shall render his decision within thirty (30) days following the date of the final
arbitration hearing. The cost of the arbitrator and fees to the American Arbitration Association shall be paid
one-half by Lessor and one-half by Lessee. The arbitrator's decision shall be binding on the parties hereto and
judgment may be entered thereon in any court having jurisdiction thereof.
ARTICLE N
TERM OF LEASEHOLD
This Lease Agreement shall be effective retroactively to the ist day of September, 2002, and expire on the
thirtieth (30th) anniversary thereof.
ARTICLE V
TRACK CLEARANCE
A. Except for the existing concrete seawall or floodwall and existing utility poles, lights, wires, streets and curbs,
as presently located, Lessor shall not erect or place or allow to be erected or placed any buildings, structures,
fixtures or obstructions of any kind (including parked vehicles and stored or piled loose materials), either
temporary or permanent, on the demised premises or within twenty feet (20') horizontally of the nearest track
over which Lessee operates, or less than thirty feet (30') above the top of rail of any track for the full width of
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said horizontal clearance, unless the written consent of Lessee shall be obtained. Nothing herein shall be
construed to permit any clearance less than the minimum required by any applicable law or regulation.
110103 21010611 wffol
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 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 or resulting
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.
��_: •► • ARTICLE 1• / -•\
A. TERMINATION
This Lease shall terminate at the end of the full term hereof, 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
(1) Lessee reserves the right at any time to permanently abandon or discontinue the use of its rail line
within the demised premises, and the Lessee shall have no obligation or liability whatsoever to Lessor
under this Lease by reason of such permanent abandonment or discontinuance; provided, however,
that the Lessee endeavor to give Lessor written notice of its intent to permanently abandon or
discontinue the railroad within demised premises, provided, however, Lessee shall have no liability in
the event it fails to give such notice. The annual payments set forth in Article II above would
continue until such time that all Lessee's personal property, including railroad tracks, is removed from
the demised premises.
(2) Should any change in existing or new law, regulation or other governmental order restrict or limit
Lessee's use of the demised premises in such a manner that Lessee is not able to reasonably operate
its railroad on the demised premises, then Lessee may cancel this Lease upon ninety (90) days prior
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written notice to Lessor and said cancellation shall be effective upon the 901h day following said
notice.
C. TERMINATION BY LESSOR
This lease shall be subject to termination at the option of Lessor upon the happening of any one or more of
the following events, which events may be elsewhere described in this Lease as events of default:
(1) 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; or
(2) If Lessee, its successors or assigns, abandons or discontinues occupation or use of the demised
premises for a period longer than twelve (12) months (provided that such abandonment or discontinuance does not
result from causes beyond the control of Lessee, its successors or assigns, including, but not limited to, act of God,
governmental actions, fire, flood or other catastrophes, national emergencies, riots and war) and fails to resume
occupation or use of the demised premises within sixty (60) days after receipt of written notice by Lessee, its
successors or assigns, of such abandonment or discontinuance, then this Lease shall be immediately terminated.
If, after sixty (60) days' written notice setting forth a default as defined in Subsections (1) or (2) 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. Upon said default,
all rights of Lessee shall be terminated, and Lessee hereby agrees to surrender possession of the demised 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
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.
ARTICLE VIII
RIGHTS UPON TERMINATION
A. IMPROVEMENTS
At the termination of this Lease for any reason, Lessee shall have the option to remove its railway tracks,
office and maintenance 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 fixed improvements, but any such improvements not so
removed within this time period shall be the sole and exclusive property of Lessor without cost.
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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 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.
=. La Mr va 9 KDATJ 163 Lei.
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.
THIS AGREEMENT CONTAINS A BINDING ARB OVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
CITY F CAPE GIRARDEAU, MISSOURI
Michael G. Miller
City Manager
ATTEST:
n
Gayle 0 onrad
City Clerk
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
AVP -
ATTEST: j�RP0D
Corporate %� Secretary = Z CFj L . V
-&6t t"rvt r'Jti�•, ►J L 1
Page 7 of 8
STATE OF MISSOURI )
) ss.
COUNTY OF CAPE GIRARDEAU )
BE IT REMEMBERED, That on this Z15-1- day of 0 0�0 L Q �r 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 officials, 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.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year last
above written.
MARTHA J. BROWN
Notary Public - State of Missouri
County of Cape Girardeau
My Commission Expires Dec. 6, 2005
STATE OF 1EY )
ss.
COUNTY OF
[Typed Name of Notary Public]
BE IT REMEMBERED, That on this ZSR day of %qC ki�"Q_ , 2002 before me,
the undersigned, a Notary Public in and for the County and State aforesaid, came ,)A e:5 J C► CL , to
me personally known, who, being by me duly sworn, did state that he is the A10 fWPKl ( AN0 fjlkALmo 1V A of The
Burlington Northern and Santa Fe Railway Company, a Delaware Corporation, and that said instrument was signed in
behalf of said corporation by authority of its Board of Directors for the consideration stated therein and no other, and
said MkU11 ZvlC*-)¢5K,1 acknowledged said instrument fo belthe free act and deed of said corporation.
written.
IN WITNESS WHEREOF, I have hereunto set my hand 4" Xed my official seal, the day and year last above
IN
WY JODY SCOTT JONES
Notary Public
STATE OF TEXAS
0
OF My Comm. Exp. 11/28/05
Joie{ SCou JO►1E5
[Typed Name of Notary Public]
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William Street P.,f
Exhibit A
Detail of Maintenance/ Feet
Storaqe Yard 0 200 400 , I