HomeMy WebLinkAbout1995-049C:\WPDOCS\ORD\MISSPAC.O
ORDINANCE NO. -45--6
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF DENTON, MISSOURI PACIFIC RAILROAD COMPANY AND
MONEX RESOURCES, INC. FOR THE LEASE OF RAILS TO TRAILS RIGHT-OF-WAY
BETWEEN SYCAMORE AND PRAIRIE STREETS TO EXPEDITE UNLOADING OF
RAILCARS; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the City Manager is hereby authorized to
execute an agreement between the City of Denton, Missouri Pacific
Railroad Company and Monex Resources, Inc., for the lease of Rails
to Trails right-of-way between Sycamore and Prairie Streets to
expedite unloading of railcars, under the terms and conditions
contained in the agreement, a copy of which is attached hereto and
made a part hereof.
SECTION II. That the City Council hereby authorized the
expenditure of funds set forth in the agreement.
SECTION III. That this ordinance shall become effective
immediately upon its passage and approval.
PASSED AND APPROVED this the jTovday of ���, 1995.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
AP OVED AS TO LEGAL FORM:
MICHAEL A. BUCEK, ACTING CITY ATTORNEY
cry
Folder No: 1447---45- •-�
Audit No: 1
LEASE OF PROPERTY
\ THIS LEASE ("Lease") is entered into on the day of
19 between MISSOURI PACIFIC RAILROAD COMPANY and
the ISITY OF DENTON, TEXAS collectively referred to as ("Lessor"),
and MONEX RESOURCES, INC., an Ohio corporation, whose address is 45
NE Loop 410, Suite 700, San Antonio, Texas 78216 ("Lessee").
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
Article I. PREMISES; USE.
Lessor leases to Lessee and Lessee leases from Lessor the
premises ("Premises"), at Denton, Texas as shown on the print dated
February 28, 1995 marked Exhibit A, hereto attached and made a part
hereof, subject to the provisions of this Lease and of Exhibit B
attached hereto and made a part hereof. The Premises may be used
for a site for a fly ash unloading facility including a truck scale
and roadway and purposes incidental thereto, only, and for no other
purpose.
Article II. TERM.
The term of this Lease shall commence on March 15, 1995,
and, unless sooner terminated as provided in this Lease, shall
extend for one year and thereafter shall automatically be extended
from year to year.
Article III. RENT.
A. Lessee shall pay to Lessor, in advance, rent of One
Thousand Two Hundred Dollars ($1,200.00) per annum.
B. Not more than once every three (3) years, Lessor may
redetermine the rent. In the event Lessor does redetermine the
rent, Lessor shall notify Lessee of such change.
Article IV. SPECIAL PROVISION - ROADWAY (NON-EXCLUSIVE).
Subject to the terms and conditions of this Lease, Lessee may
construct, use and maintain the roadway shown on the attached
exhibit print, provided that:
1) The roadway is to be strictly private and not intended for,
and may not be used for, public purposes.
2) The use of the roadway is not exclusive. The roadway is to be
used jointly with Lessor and others to whom Lessor has given
or may give similar rights.
3) Lessee, at Lessee's sole cost and expense, shall maintain the
roadway in a condition satisfactory to Lessor.
4) Lessee's right to construct, maintain and use the roadway is
a license and not a lease, and the roadway is not a part of
the Premises except that all of Lessee's obligations and
Lessor's rights under this Lease regarding the Premises shall
also apply to the roadway.
Article V. SPECIAL PROVISION - INSURANCE.
A. At all times during the term of this Lease, Lessee shall,
at Lessee's sole cost and expense, procure and maintain the
following insurance coverage:
General Public Liability providing bodily injury, including
death, personal injury and property damage coverage with combined
single limit of at least One Million Dollars ($1,000,000.00) per
occurrence and a general aggregate limit of at least One Million
Dollars ($1,000,000.00). This insurance shall provide Broad Form
Contractual Liability covering the indemnity provisions contained
in this Agreement, severability of interests, and name Lessor as an
additional insured. If coverage is purchased on a "claims made"
basis, it shall provide for at least a three (3) year extended
reporting or discovery period, which shall be invoked if insurance
covering the time period of this Agreement is cancelled.
B. Lessee shall furnish Lessor with certificate(s) of
insurance evidencing the required coverage and, upon request, a
certified duplicate original of the policy. The insurance company
issuing the policy shall notify Lessor, in writing, of any material
alteration including any change in the retroactive date in any
"claims -made" policies or substantial reduction of aggregate
limits, or cancellation at least thirty (30) days prior thereto.
The insurance policy shall be written by a reputable insurance
company or companies acceptable to Lessor or with a current Best's
Insurance Guide Rating of B and Class VII or better, and which is
authorized to transact business in the state where the Premises are
located.
C. Lessee hereby waives its right of subrogation under the
above insurance policy against Lessor for payment made to or on
behalf of employees of Lessee or its agents or for loss of its
owned or leased property or property under its care, custody and
control while on or near the Premises or any other property of
Lessor. Lessee's insurance shall be primary with respect to any
insurance carried by Lessor.
Article VI. SPECIAL PROVISION - DEVICE.
Subject to the terms and conditions of this Lease, Lessee may
construct, maintain and use on the Premises the device, provided
that:
1) Device is firmly secured and stored in a position outside
Lessor's standard clearance horizontally at least 8-1/2 feet
from the centerline of the rail and vertically at least 23
feet from the top of the rail.
2) For any curved portion of the track, the standard horizontal
clearance shall be increased one and one-half inches for each
degree of curvature.
3 ) All doors, windows and gates shall be sliding or open away
from the track, if opening toward the track would impair
clearances.
4) Any movable appliance, including but not limited to, dock
plates and loading or unloading spouts or equipment, that only
when in use impairs the standard clearances, shall be securely
stored or fastened by Lessee when not in use, so that such
equipment will not impair such clearances.
5) Lessee shall notify Lessor, not less than 72 hours in advance,
of any work in connection with the construction and
maintenance of the device.
IN WITNESS WHEREOF, the parties have executed this Lease
as of the day and year first herein written.
MISSOURI PACIFIC RAILROAD
COMPANY
By:
Senior Manager - Real Estate
CITY OF DENTON, TEXAS
BY: XV &bU
Title m /# ft
Note: New Lease
MONEX RESOURCES, INC.
N
EXHIBIT -A-
Missouri Pacific Railroad Company
Illustrative print showing property to
be leased to
MONEX RESOURCES, INC.
Denton, Texas
Dated February 28, 1995
Scale-1"=200,
LeaseArea shown-------------------
Non exclusive roadway shown--------
Truck scale & overhead hoppr shown- O
APPROVED, LAW
section 1. 11f7ROV32C1iTS.
3X 3IBIT B
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Section 2. ARSBAVATIONS Aim PRIOR RIGHTS
A) Lessor reserves to itself, Its agents and contractors, the right to enter the Premises at
such times as will not unreasonably interfere with Lessee's use of the Premises.
81 Lessor reserves (i) the exclusive right to permit third party placement of advertising signs
on the Premises, and (ii) the right to construct, maintain and operate new and existing
facilities (including, without limitation, trackage, fences, communication facilities, roadways
and utilities) upon, over, across or under the Premises, and to grant to others such rights,
provided that Lessee's use of the Premises is not interfered with unreasonably.
C) This Lease Is made subject to all Outstanding rights, whether or not of record. Lessor
reserves the right to renew such outstanding rights.
Section 3. PAYMENT OF RENT.
Rent (which includes the annual rent and all other amounts to be paid by Lessee under this
Lease) shall be paid in lawful money of the United States of America, at such Place as shall be
designated by the Lessor, and without offset or deduction.
Section 4. TAXZS AND ASSESSMENTS.
Al Lessee shall pay, prior to delinquency, all taxes levied during the life of this Lease on
all personal Property and Improvements on the Premises not belonging to Lessor. If such taxes
are paid by Lessor, either separately or as a part of the levy on Lessor's real property, Lessee
shall reimburse Lessor in full within thirty (30) days after rendition of Lessor's bill.
8) If the Premises are specially assessed for public improvements, the annual rent will be
automatically increased by 121 of the full assessment amount.
section S. WATBA RIGHTS.
This Lease does not include any right to the use of water under any water right of Lessor,
or to establish any water rights except in the name of Lessor.
Section 6. CARB Attu USE OF PR7-%asES.
A) Lessee shall use reasonable care and caution against damage or destruction to the Premises.
Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises in any way that creates a hazard to persons or
property. Lessee shall keep the Premises in a safe, neat, clean and presentable condition, and
In good condition and repair. Lessee shall keep the sidewalks and public ways on the Premises,
and the walkways appurtenant to any railroad spur track(s) on or serving the Premises, free and
clear from any substance which might create a hazard and all water flow shall be directed away
from the tracks of the Lessor.
8) Lessee shall not permit any sign on the Premises, except signs relating to Lessee's
business.
C) If any improvement on the Premises not belonging to Lessor is damaged or destroyed by fire
or other casualty, Lessee shall, within thirty (301 days after such casualty, remove all debris
resulting therefrom. If Lessee falls to do so, Lessor may remove such debris, and Lessee agrees
to reimburse Lessor for all expenses Incurred within thirty (301 days after rendition of Lessor's
bill.
01 Lessee shall comply with all governmental laws, ordinances, rules, regulations and orders
relating to Lessee's use of the Premises.
section 7. HAZARDOUS MATBAIAI.S, SUBSTANCES Aim WASTB9.
A) Without the prior written consent of Lessor, Lessee shall not use or permit the use of the
Premises for the generation, use, treatment, manufacture, production, storage or recycling of any
Hazardous Substances, except that Lessee may use (1) small quantities of common chemicals such as
adhesives, lubricants and cleaning fluids in order to conduct business at the Premises and (il)
ocher Hazardous Substances, other than hazardous wastes as defined In the Resource Conservation
and Recovery Act, 42 U.S.C. 55 6901, et sue., as amended ("RCRA"), that are necessary for the
conduct of Lessee's business at the Premises as specified in Article I. The consent of Lessor
may be withheld by Lessor for any reason whatsoever, and may be subject to conditions in addition
to chose set forth below. It shall be the sole responsibility of Lessee to determine whether or
not a contemplated use of the Premises is a Hazardous Substance use.
8) In no event shall Lessee (1) release, discharge or dispose of any Hazardous Substances, (Si)
bring any hazardous wastes as defined in RCRA onto the Premises, (III) install or use on the
Premises any underground storage tanks, or (iv) store any Hazardous Substances within one hundred
feet (1001) of the center line of any main track.
Page 1 of 4
APPROVED, LAW
CI If Lessee uses or permits the use of the Premises for a Hazardous Substance use, with or
without Lessor's consent, Lessee shall furnish to Lessor copies of all permits, identification
numbers and notices issued by governmental agencies in connection with such Hazardous Substance
use, together with such other information on the Hazardous Substance use as may be requested by
Lessor. If requested by Lessor, Lessee shall cause to be performed an environmental assessment
of the Premises upon terminatlon of the Lease and shall furnish Lessor a copy of such report, at
Lessee's sole cost and expense.
0) Without limitation of the provisions of Section 12 of this Exhibit 8, Lessee shall be
responsible for all damages, Losses, costs, expenses, claims, fines and penalties related in any
manner to any Hazardous Substance use of the Premises (or any property in proximity to the
Premises) during the term of this Lease or, if longer, during Lessee's occupancy of the Premises,
regardless of Lessor's consent.to such use, or any negligence, misconduct or strict liability of
any Indemnified Party (as defined in Section 121, and including, without limitation, (I) any
diminution in the value of the Premises and/or any adjacent property of any of the Indemnified
Parties, and (ill the cost and expense of clean-up, restoration, containment, remediation,
decontamination, removal, investigation, monitoring, closure or cost -closure. Notwithstanding
the foregoing, Lessee shall not be responsible for Hazardous Substances (1) existing on, in or
under the Premises prior to the earlier to occur of the commencement of the term of the Lease or
Lessee's caking occupancy of the Premises, or (ill migrating from adjacent property not
controlled by Lessee, or (lii) placed on, in or under the Premises by any of the Indemnified
Parties; except where the Hazardous Substance is discovered by, or the contamination is
exacerbated by, any excavation or investigation undertaken by or at the behest of Lessee. Lessee
shall have the burden of proving by a preponderance of the evidence that any exceptions of the
foregoing to Lessee's responsibility for Hazardous Substances applies.
E1 In addition to the ocher rights and remedies of Lessor under this Lease or as may be
provided by law, 1f Lessor reasonably deter:al.^.es that the Premises may have been used during the
term of this Lease or any prior Lease with Lessee for all or any portion of the Premises, or are
being used for any Hazardous Substance use, with or without Lessor's consent thereto, and that a
release or other contamination may have occurred, Lessor may, at its election and at any time
during the life of this Lease or thereafter (11 cause the Premises and/or any adjacent premises
of Lessor to be tested, investigated, or monitored for the presence of any Hazardous Substance,
(ill cause any Hazardous Substance to be removed from the Premises and any adjacent lands of
Lessor, (III) cause cc be performed any restoration of the Premises and any adjacent lands of
Lessor, and (iv) cause to be performed any remediatlon of, or response to, the environmental
condition of the Premises and the adjacent lands of Lessor, as Landlord reasonably may deem
necessary or desirable, and the cost and expense thereof shall be reimbursed by Lessee to Lessor
within thirty (301 days after rendition of Lessor's bill. In addition, Lessor may, ac its
election, require Lessee, ac Lessee's sole cost and expense, to perform such work, in which
event, Lessee shall promptly commence to perform and thereafter diligently prosecute to
completion such work, using one or more contractors and a supervising consulting engineer
approved in advance by Lessor.
f) For purposes of this Section %, the term "Hazardous Substance" shall mean (1) those
substances included within the definitions of "hazardous substance", "pollutant", "contaminant",
or "hazardous waste", In the Comprehensive Environmental Response, Compensation and Liability Act
of L980, 42 U.S.C. 55 9601, et sec., as amended or in RCRA, the regulations promulgated pursuant
to either such Act, or state laws and regulations similar to or promulgated pursuant to either
such Act, (ill any material, waste or substance 'which is (Al petroleum, (8) asbestos, (C)
flammable or explosive, or (01 radioactive; and (ill) such other substances, materials and wastes
which are or become regulated or classified as hazardous or toxic under federal, state or local
law.
Section S. UTILITIES.
Al Lessee will arrange and pay for all utilities and services supplied to the Premises or to
Lessee.
el All ut111cles and services will be separately metered to Lessee. If not separately metered,
Lessee shall pay its proportionate share as reasonably determined by Lessor.
Section 9. LIMIS.
Lessee shall not allow any liens to attach to the Premises for any services, labor or
materials furnished to the Premises or otherwise arising from Lessee's use of the Premises.
Lessor shall have the right to discharge any such liens at Lessee's expense.
section 10. ALTZRATIONS AND 1XMOV?JgZNTS; C..3aAAN(=3.
A) No alterations, improvements or installations may be made on the Premises without the prior
consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the
Lessor in the operation of its Railroad and to such other conditions as Lessor determines to
impose. In all events such consent shall be conditioned upon strict conformance with all
applicable governmental requirements and Lessor's then -current clearance standards.
8) All alterations, improvements or installations shall be at Lessee's sole cost and expense.
Page 2 of 4
APPKovtu, LAW
C) Lessee shall comply with Lessor's Chan -current clearance standards, except (1) where to do
so would cause Lessee to violate an applicable governmental requirement, or (ill for any
improvement or device in place prior to Lessee taking possession of the Premises if such
improvement or device complied with Lessor's clearance standards at the time of Su installation.
D) Any actual or implied knowledge of Lessor of a violation of the clearance requirements of
this Lease or of any governmental requirements shall not relieve Lessee of the obligation to
comply with such requirements, nor shall any consent of Lessor be deemed to be a representation
of such compliance.
section 11. AS -Is.
Lessee accepts the Premises in Its present condition with all faults, whether patent or
latent, and without warranties or covenants, express or implied. Lessee acknowledges that Lessor
shall have no duty to maintain, repair or improve the Premises.
section 12. RELBASY AND nMZUNITY.
AI As a material part of the consideration for this Lease, Lessee, to the extent it may
Lawfully do so, waives and releases any and all claims against Lessor for, and agrees to
indemnify, defend and hold harmless Lessor, Its affiliates, and its and their officers, agents
and employees ("Indemnified Parties") from and against, any loss, damage (includinq, without
Limitation, punitive or consequential damages), injury, liability, claim, demand, cost or expense
(including, without limitation, attorneys' fees and court costs), fine or penalty (collectively,
"Lass') incurred by any person (including, without Limitation, Lessor, Lessee, or any employee of
Lessee) and arising from or related to (L) any use of the Premises by Lessee or any invitee or
licensee of Lessee, (ill any act or omission of Lessee, its officers, agents, employees,
licensees or invitees, or (III) any breach of this Lease by Lessee.
8) The focegoinq release and Indemnity shall apply regardless of any negligence, misconduct or
strict liability of any indemnified Party, except that the Indemnity, only, shall not apply to
any Loss caused by the sole, active and direct negligence of any Indemnified Party if the Loss
(1) was not occasioned by fire or other casualty, or (ill was not occasioned by water, including,
without limitation, water damage due to the position, location, construction or condition of any
structures or other improvements or facilities of any Indemnified Party.
Cl Where applicable to the Loss, the liability provisions of any contract between Lessor and
Lessee covering the carriage of shipments or trackage serving the Premises shall govern the Loss
and shall supersede the provisions of this Section 12.
0) No provision of this Lease with respect to insurance shall limit the extent of the release
and indemnity provisions of this Section 12.
section 13. TMIMATION.
AI Lessor may terminate this Lease by giving Lessee notice of termination, if Lessee (1) fails
cc pay rent within fifteen (15) days after the due date, or (ill defaults under any other
obligation of Lessee under this Lease and, after written notice is given by Lessor to Lessee
specifying the default, Lessee fails either to Immediately commence to cure the default, or to
complete the cure expeditiously but in all events within thirty (30) days after the default
notice is given.
8) Notwithstanding the term of this Lease set forth in Article II.A., Lessor or Lessee may
terminate this Lease without cause upon thirty (30) days' notice to the other party; provided,
however, that at Lessor's election, no such termination by Lessee shall be effective unless and
until Lessee has vacated and restored the Premises as required in Section 15A).
Section 14. LESSOR'S RMI=133.
Lessor's remedies for Lessee's default are to (al enter and take possession of the Premises,
without terminating this Lease, and relet the Premises on behalf of Lessee, collect and receive
the rent from reletting, and charge Lessee for the cost of reletting, and/or (b) terminate this
Lease as provided in Section 13 A) above and sue Lessee for damages, and/or (c) exercise such
other remedies as Lessor may have at law or in equity. Lessor may enter and take possession of
the Premises by self-help, by changing locks, if necessary, and may lock out Lessee, all without
being liable for damages.
section Is. VACATION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY.
A) Upon termination howsoever of this Lease, Lessee (i) shall have peaceably and quietly
vacated and surrendered possession of the Premises to Lessor, without Lessor giving any notice to
quit or demand for possession, and (ill shall have removed from the Premises all structures,
property and other materials not belonging to Lessor, and restored the surface of the ground to
as good a condition as the same was in before such structures were erected, including, without
limitation, the removal of foundations, the filling in of excavations and pits, and the removal
of debris and rubbish.
Page 3 of 4
AlermuVZO, LAW
e) If Lessee has not completed such removal and restoration within thirty (30) days after
termination of this Lease, Lessor may, at its election, and at any time or times, (1) perform the
work and Lessee shall reimburse Lessor for the cost thereof within thirty (30) days after bill is
rendered, (il) take title to all or any portion of such structures or property by giving notice
of such election to Lessee, and/or (III) treat Lessee as a holdover tenant at will until such
removal and restoration is completed.
.section 16. ?I= OPTICS.
Lessee shall telephone Lessor at 1-800-336-9193 (a 24-hour number) to determine if fiber
optic cable is buried on the Premises. If cable is buried on the Premises, Lessee will telephone
the telecommunications campany(les), arrange for a cable locator, and make arrangements for
relocation or other protection of the cable. Notwithstanding compliance by Lessee with this
Section 16, the release and indemnity provisions of Section 12 above shall apply fully to any
damage or destruction of any telecommunications system_.
Section 17. H0TIC83.
Any notice, consent or approval to be given under this Lease shall be in writing, and
personally served, sent by reputable courier service, or sent by certified mail, postage prepaid,
return receipt requested, to Lessor at: Contracts 9 Real Estate Department, Room 1100, 1416
Dodge Street, Omaha, Nebraska 68179; and to Lessee at the above address, or such other address
as a party may designate in notice given to the other party. Mailed notices shall be deemed
served five (5) days alter deposit in the U.S. Mail. Notices which are personally served or sent
by courier service shall be deemed served upon receipt.
section Is. ASSIGNMENT.
A) Lessee shall not sublease the Premises, in whole or in part, or assign, encumber or transfer (by operation of law or otherwise) this Lease, without the prior consent of Lessor, which consent
may be denied at Lessor's sole and absolute discretion. Any purported transfer or assignment
without Lessor's consent shall be void and'shall be a default by Lessee.
8) Subject to this Section 18, this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
Section 19. CONDX4NATION.
If, as reasonably determined by Lessor, the Premises cannot be used by Lessee because of a
condom nation or sale in lieu of condemnation, then this Lease shall automatically terminate.
Lessor.shall be entitled to the entire award or proceeds for any total or partial condemnation or
sale in lieu thereof, including, without limitation, any award or proceeds for the value of the
Leasehold estate created by this Lease. Notwithstanding the foregoing, Lessee shall have the
right to pursue recovery from the condemning authority of such compensation as may be separately
awarded to Lessee for Lessee's relocation expenses, the taking of Lessee's personal property and
fixtures, and the Interruption of or damage to Lessee' business.
Section 20. ATT0MMYI S 7=3.
If either party retains an attorney to enforce this Lease (including, without limitation,
the indemnity provisions of this Lease), the prevailing party is entitled to recover reasonable
attorney's fees.
Section 21. BNTIRB AGRIMMiT
This Lease is the entire agreement between the parties, and supersedes all other oral or
written agreements between the parties pertaining to this transaction. Except for the unilateral
redetermination of annual rent as provided in Article III.A, this Lease may be amended only by a
written instrument signed by Lessor and Lessee.
Page 4 of 4