HomeMy WebLinkAboutCAG1999-0379 - Original - Union Pacific Railroad Company - Lease of Uplands Playfield Property at S Smith St & Sixth Ave S- 07/01/1999 Folder No. 00869-61
Audit No. PLD180
LEASE OF PROPERTY
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THIS LEASE ("Lease") is entered into on the .e/ day of J L,ti ri t�— , 1999, between
UNION PACIFIC RAILROAD COMPANY ("Lessor") and CITY OF KENT, a municipal corporation,
whose address is 220-4th Avenue, Kent, Washington 98032 ("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 Kent,
Washington, as shown on the print dated July 1, 1999, 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 park and recreation and for no other purpose.
Article II. TERM.
The term of this Lease shall commence on July 1, 1999, 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 Four Hundred Dollars ($400.00)annually.
The rent shall be increased by Three Percent(3%)annually, cumulative and compounded.
B. Not more than once every three (3) years, Lessor may redetermine the rent. In the event
that Lessor does redetermine the rent, Lessor shall notify Lessee of such change.
Article IV. SPECIAL PROVISION--CANCELLATION
Effective upon commencement of the term of this Lease, the Lease dated May 31, 1984,
identified as Audit No. PLD180 (the "Prior Lease"), together with any and all supplements and
amendments, is canceled and superseded by this Lease, except for any rights, obligations or liabilities
arising under the Prior Lease before cancellation, including any consent to conditional assignment, chattel
agreement, or consent to sublease. The security deposit provision, if any, contained in the Prior Lease,
will survive the cancellation of the Prior Lease and be made a part of this Lease.
Article V. SPECIAL PROVISION—FENCE/BARRICADE
Lessee, at Lessee's sole cost and expense, shall construct and maintain, at all times during the
term of this Lease, a fence/barricade of a design satisfactory to Lessor, in the location shown on the
attached Exhibit A.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first
herein written.
UNION PACIFIC RAILROAD COMPANY KENT,WASHINGTON, Y OF
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By: By:
mor M a er—Real Estate Title
NOTE: Cancels and supersedes Lease Audit No. PLD180 dated May 31, 1984
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,:1x7`i4 A�/ ', EXHIBIT A
' - 4,1` E1 S1 z7 Ori?_r��r OREGON-WASHINGTON RAILROAD & NAVIGATION COMPANY
.' UNION PACIFIC RAILROAD COMPANY (Lessee)
Kent, King County, Washington
v Lease to The City of Kent
--�.._.�.-...� Scale 1" 100'
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t� Office of Director - Real Estate
# Omaha, Nebraska January 20, 1999
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Do noted Property outlined . .. . ##:<<>.c x�Er,<> ,,_ M*§:;
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9a RRCo. R/W outlined. . .
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APPROVED, LAW
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Section 1. 724PRCVZMZNTS.
no improvements placed upon the Promises by Lessee shall become a part of the realty.
section 2. RwgERVATIOHS Any PRIOR R20ETS.
�. Lessor reserves to itself, its agents and contractors, the right to enter the Premises
at such times as will not unreasonably interfere with Lessee Ia use of the Premises.
H. Lessor reserves (i) the exclusive right to pazmit third party placement of advertising
signs on the Premises, and (ii) the right to construct, maintain and operate nev 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
Losses'$ 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. PAYS�l14' O! REIPl.
Rent (which includes the annual rent and all other amounts to be paid by Lessee under this
Lease) &hall 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. TALCES AHD A89ESSMEPTS.
A. 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, Less** shall
reimburse Lessor in full with'. thirty (30) days after rendition of Lessor's bill.
B. If the Promises are specially assessed for public improvements, the annual rent will
be automatically increased by 12% of the full assessment amount.
Section S. WATER 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 G. CARE AHD USE OF PRffiSES.
A. Lessee shall use reasonable care mad caution against damage or destruction to the
Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain
&my 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 &ball keep the sidewalks and public ways on the Premises, and the
walkways appurtenant to any railroad spur track(s) on or servi..g 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.
a. Lessee shall not permit any sign on the Premises, except signs relating to Losses's
business.
C. If any improvement on the Premises not belonging to Lessor in damaged or destroyed by
fire or other casualty, Lessee shall, with'. thirty (30) days after such casualty, remove all debris
resulting therefrom. If Lease* fails to do so, Lessor may remove such debris, and Lessee agrees to
reimburse Lessor for all expenses incurred wiUin thirty (30) days after rendition of Lessor's bill.
D. Lessee shall comply with all governmental laws, ordinances, rules, regulations and
orders relating to Lessee's use of the Premises.
Section 7. HAZARDOUS IXTERIA-LS, SUBSTANCES AND WASTES.
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 Losses may use M small quantities of common chemicals such as
adhesives, lubricants and cleaning fluids in order to conduct business at the Premises and (ii) other
Hazardous Substances, other thaw hazardous wastes as defined in the Resource Conservation and Recovery
Act, 42 U.S.C. SS 6901. S-t sea., as amended ("ItCRA*), 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 those set fortb below. It
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shall be the sole responsibility of Lessee to dotezmine whether or not a contemplated use of the
premises is a Hazardous Substance use.
a. In no event shall Lessee (i) release, discharge or dispose of any Hazardous
Substances, (ii) 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.
C. 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 infozmation 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 termination of the Lease and shall furnish Lessor a copy of such report, at Lessee's sole cost
and expense.
D. Without limitation of the provisions of Section 12 of this Hxhibit H, 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 nay property in proximity to the Premises)
during the tea of this Lase or, if longer, during Lassoe'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 12), 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 (ii) the cost and
expense of clean-up, restoration, containment, remediation, decontamination, removal, investigation,
monitoring, closure or post-closure. Notwithstanding the foregoing, Lessee shall not be responsible
for Hazardous substances (i) existing on, in or under the Premises prior to the earlier to occur of
the commencement of the term of the Lase or Lessee's taking occupancy of the Premises, or (ii)
migrating from adjacent property not controlled by Leseee, or (iii) 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 Lassoe's responsibility for Hazardous Substances applies.
a. In addition to the other rights and remedies of Lessor under this Lease or as may be
provided by law, if Lessor reasonably dstesmimes that the Premises may have been used during the tea
of this Lease or any prior lease with Lessee for all or any portion of the Premises, or are being used
for any Razardous 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 (i) cause the Premises and/or any adjacent premises of Lessor to be tested,
investigated, or monitored for the presence of any Hazardous Substance, (ii) cause any Hazardous
Substance to be removed from the Promises and any adjacent lands of Lessor, (iii) cause to be
performed any restoration of the Promisee and any adjacent lands of Lessor, and (iv) cause to be
performed any remediation of, or response to, the environmental condition of the Promises and the
adjacent lands of Lessor, as Landlord reasonably may dean necessary or desirable, and the cost and
expense thereof shall be reimbursed by Lessee to Lessor within thirty (30) days after rendition of
Lessor's bill. In addition, Lessor may, at its election, require Losses, at Losses's sole cost and
ez:pense, to perform such work, in which event, Lec_oo shall promptly convenes 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.
P. For purposes of this Section 7, the term -Hazardous Substance- shall mean (i) those
substances included within the definitions of -hazardous substance', 'pollutant", `contaminant`, or
hazardous waste-, in the Comprehensive 3nvironmeatal Response, Compensation and Liability Act of
2980. 42 U.S.C. SS 9601, 11 see., an 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,
(ii) any material, waste or substance which is (A) petroleum, (H) asbestos, (c) flammable or
explosive, or (D) radioactive; and (iii) such other substances, materials and wastes which are or
become regulated or classified as hazardous or toxic under federal, state or local law.
Section 8. UTILITIES.
A. Lessee will arrange and pay for all utilities and services supplied to the Premises or
to Lessee.
B. All utilities and services will be separately metered to Lessee. If not separately
metered, Lessee shall pay its proportionate share as reasonably detezmiaed by Lessor.
Section 9. LIENS.
Lessee shall not allow any lions to attach to the promises for any services. labor or
materials furnished to the Promises or otherwise arising from Lease*,* use of the Praises. Lessor
shall have the right to discharge any such liens at Lesaee's expense.
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Section Ia.
a. so alterations, improvements or installations may be made oa the Promises without the
prior consent of Leaser. Such consent, if given, shall be subject to the used$ and requirements of
the Lessor in the operation of its Railroad and to such other conditions as Lessor determines to
impose. Zn all events such consent shall be Conditioned upon strict conformance with all applicable
goo-rsmsental requirements and Lessor's thee-current clearance standards.
E. All alterations, improvements or installations shall be at Lessee's sole cost and
expense.
C. Lessee shall comply, with Lessor's than-current clearance standards, except U) where
to do so would cause Lessee to violate an applicable governmental requirement, or (ii) 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 tine of its installation.
D. Any actual or implied knowledge of Lessor of a violation of the clearance requirements
of this Lease or of any governmential 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 21. AS-ZS.
Lessee accepts the promises 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. RELEASE AND SNDEMPISS.
A. 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
('Zndemmitied Parties') from and against, any loss, damage (including, without limitation, punitive or
consequential damages), injury, liability, Claim, demand, cost or expense (including, without
limitation, attorneys' fees and court costs), tine or penalty (collectively, 'Loss') incurred by any
person (including, without limitation, Lessor, Lessee, or any employeo of Lessor or Lassos) and
arising Iron or related to (i) any use of the Premises by Lessee or any invitee or licensee of Lessee,
(ii) any act or omission of Lessee, its officers, agents, employees, licensees or invitees, or (iii)
any breach of this Lease by Lessee.
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C. Where applicable to the Loss, the liability provisions of an; contract between Lease
and Lessee covering the carriage of shipments or trackage serving the premises shall govern the Lo
and shall supersede the provisions of this Section 12.
D. 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. SERM20MON.
A. Lessor any terminate this Lease by giving Lessee notice of termination, if Lessee (i)
fails to pay rent within fifteen (1S) days after the due data, or (ii) defaults under any other
Obligation of Lessee under this Leans 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 is all events within thirty (30) days after the default notice is
given.
S. Notwithstanding the Cora of this Lease set forth in Article IZ.A., Lessor or Losses
MAT tsrminate this Lease without cause upon thirty (30) days' notice to the other party; provided,
however, that at Lessor-s election, no such teaination by Lessee shall be effective unless and until
Losses has vacated and restored the Premises as required in Section 15A), at which time Lessor shall
refund to Losses, on a pro rat& basis, any unearned rental paid in advance.
Section 24. LESSOR'S REMEDIES.
Lessor's remedies for Lessee's default are to (a) enter and take possession of the Premises,
without terminating this Loess, and relot the Premises on behalf of Losses, collect and receive the
rent from rolotting, and Charge Losses for the cost of relotting, and/or (b) terminate this Lease as
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provided in section 13 A) above and sue Lessee for damages, and/or (a) exercise such other res►edies as
Lessor say have at law or in equity. Lessor say enter and take possession of the Premises by self-
help, by changing locks, if necessary, and may lack out Lessee, all without being liable for damages.
section 15. VACPMON OF PRSMnS A. VA?• OF LeJ4 'S PROPERTY.
A. opoa 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 tar possession, and (ii) shall have removed fro= the Praises all structures, property and
other =serials not belonging to Lessor, and restored the surface of the ground to as good a condition
as the ease was in before such structures were erected, including, without limitation, the removal of
foundations, the filling in of axcavations and pits, and the removal of debris and rubbish.
a. It Lessee has not completed such removal and restoration vithin thirty (30) days after
earsination of this Lease, Lessor may, at its election, and at any tine or times, (i) perfoa the work
and Losses shall reimburse Lessor for the cost thereof vithia thirty (30) days after bill is rendered,
(ii) take title to all or any portion of such structures or property by giving notice of such election
to Lessee, and/or (III) treat Losses as a holdover tenant at will until such removal and restoration
is completed.
Section 16. FINER OPTICS.
Lessee shall telephone Lessor at 1-800-336-9193 (a 24-hour number) to deteaine if fiber optic
cable is buried on the Premises. If cable is buried on the Premises, Lessee will telephone the
telecommunications company(ies), 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 27. NOTICLIS•
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 a Real Sstate Department, Roos 1100, 1426 Dodge
Strest, 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. hailed notices shall be deemed served five (5) days
after deposit in the U.S. Mail. Notices which are personally served or sent by courier service shall
be deemed served upon receipt.
Section 1s. A.SSZOIdDSNT.
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 Losses.
B. 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 It. CONDEMNATION.
If, as reasonably determined by Lessor, the Premises cannot be used by Lessee because of a
condemnation or sale in lieu of condemnation, then this Lease shall automatically, tozzLin te. 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
Losses's relocation eocpenees, the taking of Lessee's personal property and fixtures, and the
interruption of or damage to Lessee' business.
Section 20. ATLORNEY'S PEES.
It either party retains an attorney to enforce this Lease (including, vitbout limitation, the
indemnity Provisions of this Lease), the prevailing party is entitled to recover reasonable attorney's
fees.
Section 21. ENTIRE AGRMMRWT.
This Lease is the entire agreement betveea the parties, and supersedes all other oral or
written agreements between the parties pertaining to this transaction. R=ept for the unilateral
redetermination of annual rent as provided in Article III., this Lease may be amended only by a
written instrument signed by Lessor and Losses.
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