1995-049C:\WPDOCS\ORD\MISSPAC.O
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 ~'/day of ~ ~, 1995.
BOB CASTLE~ERRY, ~
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
MICHAEL A. BUCEK, ACTING CITY ATTORNEY
Folder No: 1407-4~-
LEASE OF PROPERTY
, 19~ between MISSOURI PACIFIC RAILROAD COMPANY and
the ~ITY 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) Ail 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 MONEX RESOURCES, INC.
'Sash'or Ma nagem - Real Estate T~io: ~ ~/~., ~~~
CITY OF DENTON, TEXAS
Title /
Note: New Lease !
/
DENTON TEX.
'~O . ~.%'~ ~' ~ ~ Dated February 28, 19,,
\-:\ \5~ \' '/ ~cale-l?2OO'
Non exclusive roadway shown ........ ~~.
/ Truck scale & overhead hoppr shown- ~
EXHIBIT B
No lm~rovemen:s placed upon :he Premises by Lessee shall become a par~ of the realty.
su:~ rimes aa will no: unreasonably interfere vi:h Lessee's use of :he ~re~ses.
8] Lessor rese~es (i) :he exclusive right =o per~: third 9a~y placement of adve~lsing signs
on the ~re~ses, and (ti) the right ~o construct, ~ln:ain and opera:e ~ and existing
facilities (lncludinq, without liml~a=lon, trackage, fences, co~unlca~lon facilities, roa~ays
and utilities} upon, over, across or under ~he Premises, and :o gran~ to ochers such rights,
provided Chat Lessee's use of the ~remises Is ~oC interfered w~th unreasonably.
C] This Lease is ~de subJec~ ~o all ou:s~andiag righ:~, whether or not of reco~.
reserves ~he right ~o renew such outstandimq rights.
Sermon 3. ~A~ 0F ~.
Rent (which includes :he annual rent and all other amounts :o be paid by Lessee under this
Lease} shall be paid in Lawful money of the United Suedes of ~erica, at suc~ gLac~ as shall be
deslgna~e~ by the Lessor, amd wi~hou~ offset or
shall rei~urse Lessor in full wi:bin =hi~y (30) days after rendl=ion of Lessor's bill.
au~oma:lcally increased by 12% of the full assessmenC
Lessee shall not use or permit ~he use of =he ~re~ses for any unlawful purDose, ~ln~ain any
in good condition and repair. Lessee shall kee~ the sid~al~ and public ways on =he ~re~ses,
~} Lessee shall no~ ~ermlt any sign on ~he Pre~ses, excep~ signs r~latinq :o Lessee's
C~ If any improvement on :he ?:emises so: belonging ~o Lessor is de,ged or destroyed by fire
bill.
0~ Lessee sUall ~omply with all governmental law~, o~lnan~es, rules, ~egula~lons and o~ers
sad Recove~ Ac:, 42 U.S.C. S~ 690~, ~ seq., as amended ("RC~"), Char'are aecessa~ for
fee~ (i00'} of the =eh=er line of any ~ln track.
Lessor. ~f requested by Less~r, Lessee shall cause to be performed an environmental assessment
responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any
manner ~o any Hazardous Substance use of the 8remlses (or any property in proximity to the
~remises) during the term of this Lease or, if longer, during Lessee's occupancy of the ~remlses,
regardless of Lessor's consent.to such use, or any negligence, mlsconduc~ or strict liability
any Indem-~lfied ~arty (as defined in Sec%ion 12), and including, without limitation, (i) any
diminution in the value of the ~remlses and/or any adjacent property of any of the Indemnified
~arties, and (ii) the ocs= and expense of clean-up, res%oration, containment, remediation,
~he foregoing, Lessee shall ao~ be resDonsible for Hazardous Substances (ii exiSt!hq on, in
Lessee's ~akinq occupancy of ~he ~remises, or (il~ miqracinq from adjacent gcogercy
con,roiled by Lessee, or (iii} ~laced on, in or under =he ~remlses by any of ~he [ade~ified
foregoing ~0 Lessee's responsibility for Hazardous Substances aoolies.
(ii) cause any Mazardous Substance ~o be r~moved from ~he ~remlse= and any adJacea= land= of
condition of =he ~emises and ~he ad~acen~ lands of Lessor, as Landlord reasonabl~ may deem
necessary or desirable, and ~he coa~ and expense ~hereof shall be cei,~urs~ by Lessee ~o Lessor
completion ~uch work, using one or mo~e contracco~s and a supervising consulclnq enqineer
F) Fo~ purposes of ~his Sec~io~ 7, ~he term "~azardous Substance" shali mean (i) ~hose
substances included within ~he definitions of "hazardous substance", "Dollu=ant", "con~a~nan~",
of i980, 42 U.S.C. ~ 960~, ~ seq., as amended or In RC~, ~he r~gula~lons promulgated
such Ac~, [iii any ~erial, waste or subs=ante which Is (Al petroleum, (B) asbestos, (C]
fla~a~le or explosive, or (~} radioac%lve; and (iii} such o~her substances, ma=erials and
waic~ are or become regula=ed or classified as hazardous or toxic under f~eral, s~a~e or local
!aw.
Se=~on ~. ~IL~TI~S.
A) Lessee wlli arrange and pay for ail u~i~i=les and services supplied ~o ~he ~remises or
Lessee shall pay its proportionate share as reasonably de~ermined by Lessor.
Lessee shall not allow any ~lens to a~tach to the PreSses for any se~ices, labor or
~erials furnished ~o C~e ?remises or oche~wise arising from Les~ee~s use of ~he
Lessor shall have the right Co discharge any such liens an Lassee's expense.
impose. ~n all events such coasen~ shall Oe coa~i~loned upon strict conformance wish al!
g) Ali al=era~ions, im~ovemen=s o~ installations shall be a~ Lessee's sole cos~ and expense.
C} Lessee shall comply with Lessor's then-ourren~ clearance s~andards, except (1) where to do
so would cause Lessee to violate an applicable governmental requirement, or (11] for any
lmprovemsn= or device in place prior to Lessee taking possession of the Premises if such
lmprovemen% or device complle~ with Lessor's clearance standards a= the %lme of l~.s
D) Any actual or implied knowledge of Lessor of a viola=ion of %he clearance requirements of
this Lease or of any qovernmWntal regulremen=s shall not relieve Lessee of the obligation to
of such compliance.
sect. ion 11. AS-IS.
late:=, and without warranties or covenants, express or implied. Lessee acknowledges the= Lessor
shall have no du%y to maintain, repair or improve the Premises.
A) As a material part of the consideration for this Lease, Lessee, to the extent It may
Lawfully do so, waives and £eleases any and all claims against Lessor for, and agrees
indemnify, defend and hold harmless Lessor, its affiliates, and its and their officers, agents
and employees ("Indemnified Parties"} from and against, any loss, damage [including, without
Limitation, punitive or consequential damages), injury, liability, claim, demand, cost or expense
(including, without limitation, a==orney=' fees and cou~ cos%r}, fine or penalty (ccllec~ively,
Lessee) and arising from or related to (i) any use of the Premises by Lessee or any invites or
Licensee of Lessee, (ii) any act Or omission of Lessee, its officers, agents, employees,
licensees or lnvitees, or [iii} any breach of thls Lease by Lessee.
8) The foregoing release and indemnity shall apply regardless of any negligence, misconduct or
striot Liability of any ~ndemnified Pa~y, except that :he indemnity, only, shall not apply
any Loss caused by the sole, active and direr= negligence of any Indemnified Par~y if the Loss
(i) was not occasioned by fire or other casualty, or (ii) was no= occasioned by water, including,
wichcu= limits=ion, water damage due to %he posl%lon, loon%ion, cons=ruction or condition of any
s:ructures or other improvements or facilities of any Indemnified
CI ~here applicable to the Loss, the liability provisions cf any con:rat% be:ween Lessor and
Lessee covering :he carriage of shipments or trackage serving the Premises shall govern ~he Loss
and shall supersede the provisions of thls Section
01 No provision of this Lease with respect to insurance shall llaxlt the ex=et: of the release
and indemnity provisions of Chis Section 12.
Seot.1~n 13.
A) Lessor may terminate this Lease by giving Lessee notice of termination, if Lessee [i) fails
o~llga=lcn of Lessee under :his Lease and, after writ=et notice is given by Lessor to Lessee
specifying =he default, Lessee fails el:her to immedia=ely commence to cure the default, or
complete the cure expeditiously but in all events within thirCy {30) days after the default
notice is given.
8) Nocwl:hstanding :he term of chis Lease set forth in A~lcle II.A., Lessor or Lessee may
termlna=e this Lease withou= cause upon thirty (30) days' no%ice =o the o%her par~y: provided,
however, the= a= Lessor's election, no such termination by Lessee shall be effec=!ve unless and
un=il Lessee has vacated and restored the Premises as required in Section 1SA).
Sect-ton 14. LES~OR'S
Lessor's remedies for Lesree's defaul: are to (a) enter ~nd ~ake possession of the Premises,
without CermlAatlng this Lease, and relet the ~remises on behalf of Lessee, oollec~ and receive
Lease as provided in Sec=ion 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 et=er and take possession of
CAe Premises by self-help, by changing looM. s, if necessary, and may lock ou~ Lessee, all wl~hou=
being liable for damages.
Sec~-ton 1~. VACATION OF P~EHIS~S; R~X~GVA~ OF LESS~'S
A} Upon termination howsoever of this Lease, Lessee (i) shall have peaceably and quietly
rata:ed and surrendered possession of the Premises to Lessor, w!thou= Lessor giving any notice to
gui: or demand for possession, aRd (ii) shall have removed from =he ~remises all
prope~y and other ma~erials no= belonging =o Lessor, and res=bred the surface of ~he ground
as good a oondl=lon as the same was in before such s~ruc=ures were ecsc%ed, including,
~imltation, the removal of foundations, the filling in of excava=lons and pits, and ~he removal
Page 3 of 4
~) ~f Leasae has not coa~le~ed such removal an~ res~ora~_ton wi~2xin ~-~irKy (30) ~ a~er
~ende~ (ii) Ca~e title C~ all o~ an7 ~ion o~ such s~es o~ p~ope~7 by ~i~nq noC~ca
o~ ~uch elec~on ~o Le~see, and/o: {~) ~e~ L~ssae as a holdove~ ~enan~ a~ will un~l ~uch
~e~val and ~es~o~ation ~s co~ple~.
=he teleco~unicatlons co~anT(les), ar=ange for a cable loca=or, a~ ~ka arrang~en=~ fo~
de.ge or des=~c~lon of an~ =eleco~unica=ions
Set.on 17.
:e~urn recelp~ reques~e~, =o Lessor at: Con=rac~= ~ ~eal E~a~e Oepa~en=, aoom 1100, 1416
~7 be denied a= Lessor~s sole and absolute discre~on. ~7 P~
w~chouc Lessor~s consent shall be ~ld and'shall be a defa~= by Lessee.
Lesso~.~hall be encicl~ CC CAe entire award o~ p~oce~s ~or any total o~ pa~lal ~nd~a~on or
sale In lieu =hereo~, including, wi=bout ii.ration, any awa~ or 9roce~ for ~he ~lue of ~e
If el=her pa~7 re~alns an at=o~e7 =o enforce ~ls Lease ~ncluding, wi~ou~
r~e=e~na=lon of annual rent as provld~ In A~lcle ~II.A, ~ Lease ~7 be ame~ only by a
Pave 4 of 4