HomeMy WebLinkAboutCAG2023-213 - Original - Burlington Northern Santa Fe Railway - 2023 BNSF Railroad Quiet Zone Trespass Fence - 05/01/2023 run i.i i T ur RCIv i urrIUAL U3C u1VLT
Sup/Mgr:
Agreement Routing Form DirAsst:
• For Approvals,Signatures and Records Management Dir/Dep:
KENT This form combines&replaces the Request for Mayor's Signature and Contract Cover (Optional)
W A S H I N G T O N Sheet forms. (Print on pink or cherry colored paper)
Originator: Department:
Toby Hallock Public Works
Date Sent: Date Required:
> 04/06/2023 4/10/2023
0
L Authorized to Sign: Date of Council Approval:
a
Q F,/—]Mayor or Designee 1/17/2023
Budget Account Number: Grant? Yes NOE
R00016
Budget? Yes❑No Type: N/A
Vendor Name: Category:
Burlington Northern Santa Fe Railway (BNSF) Lease
Vendor Number: Sub-Category:
c
Original
0
Project Name: 2023 BNSF Railroad Quiet Zone Trespass Fence
c Project Details, Safety improvements, including fencing at seven crossings to
= build towards a railroad Quiet Zone on the BNSF tracks.
40
E Agreement Amount: 0
Basis for Selection of Contractor:
� *Memo to Mayor must be attached
i Start Date: 5/1/2023 Termination Date:
p1
Q Local Business?❑Yes❑No*If meets requirements per KCC 3.70.100,please complete"Vendor Purchase-Local Exceptions"form on Cityspace.
Business License Verification: Yes❑In-Process❑Exempt(KCC 5.01.045) Authorized Signer Verified
Notice required prior to disclosure? Contract Number:
�Yes�No ' _
Comments: -
This lease will allow the City to install and maintain fencing along the BNSF
railroad to reduce trespassing onto and across the tracks
0
40
�a a�
c c
in 0
0
3 cc
a,
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Date Received:City Atto ey: to Routed:Mayor's Office City Clerk's OfficeiT7 , /1_
adccW22373_1_20 Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20221201
DocuSign Envelope ID:7D7A9EFA-B7A6-41 ED-91 C6-2EEA9BCED4B6
INDEFINITE TERM LEASE
LAND
27 THIS INDEt�MTE TERM LEASE 29R LAND ("Lease") is made and entered into to be effective as of the
day of , ("Effective Date"), by and between BNSF RAILWAY
COMPANY, a Delaware corporation ("Lessor") and City of Kent, a municipal Washington corporation
("Lessee").
RECITALS
A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks
("Lessor's Track(s)") and various real properties associated therewith, including certain Premises as described
below which Lessee desires to lease from Lessor.
B. Lessor has agreed to lease to Lessee the Premises, subject to the terms, conditions and
limitations provided herein.
AGREEMENTS
In consideration of the mutual covenants herein, Lessor and Lessee hereby agree as follows:
Section 1. Premises and Term.
A. Lessor leases to Lessee and Lessee leases from Lessor, subject to the covenants, agreements,
terms, provisions and conditions of this Lease, that certain parcel of real property, situated in the City of Kent,
County of King, State of Washington, along Line Segment 0051, Mile Post 15.58 to 16.86 and constituting the
shaded area shown upon Print No. 52415, dated March 3, 2023 a copy of which is attached hereto as Exhibit
"A" and made a part hereof("Premises").
B. Lessee leases the Premises from Lessor beginning May 1, 2023 ("Commencement Date"), and
shall continue until terminated by either party as provided in this Section 1(B). This Lease may be terminated
by either party, at any time, without cause, for convenience, by serving upon the other party written notice of
termination at least thirty (30) days in advance. Upon the expiration of the time specified in such notice, this
Lease and all rights of Lessee shall absolutely cease.
C. Upon termination, either (i) Lessor may retain from prepaid rent, as an additional charge for use
of the Premises, a sum equal to three (3) months Base Rent (as defined below), and any unearned portion of
the annual Base Rent, in excess of such retainage, paid in advance shall be refunded to Lessee or (ii) if Lessor
has not been paid sufficient Base Rent to satisfy the above retainage, then Lessee shall pay Lessor a sufficient
sum so that, together with sums already held by Lessor, Lessor shall hold a sum equal to three (3) months Base
Rent which Lessor shall retain as an additional charge for use of the Premises, and such additional sum shall
be paid by Lessee within thirty (30) days of termination of the Lease.
D. Each consecutive twelve-month period this Lease is in effect, beginning with the Effective Date
of this Lease, is herein called a "Lease Year."
E. Lessee acknowledges that it is assuming all risks associated with Lessor's right to terminate this
Lease at any time as provided above, and (i) Lessor gives no assurance that Lessor will delay termination of this
Lease for any length of time whatsoever, (ii) Lessee may expend money and effort during the term of this Lease
which may not ultimately be of any benefit to Lessee if Lessor terminates this Lease, but nonetheless, Lessor
shall have the right to terminate the Lease if Lessor determines in its sole and absolute discretion that Lessor
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desires to terminate, and (iii) in no event shall Lessor be deemed to have any legal obligations to continue to
lease the Premises for any length of time.
Section 2. Use and Compliance.
A. Lessee may use the Premises for the sole and exclusive purpose of installing and maintaining
Lessee owned chain link trespass fencing and for no other purpose without the prior written consent of Lessor.
Lessee shall respond to Lessor's reasonable inquiries regarding the use or condition of the Premises.
B. Lessee shall comply with all Laws applicable to Lessee, the Premises, this Lease and Lessee's
activities and obligations hereunder, and shall have the sole responsibility for costs,fees, or expenses associated
with such compliance. As used herein, the term "Laws"shall mean any and all statutes, laws, ordinances, codes,
rules or regulations or any order, decision, injunction,judgment, award or decree of any public body or authority
having jurisdiction over Lessee, the Premises, this Lease, and/or Lessee's obligations under this Lease, and
shall include all Environmental Laws (as defined in Section 4(A)).
C. If any governmental license or permit is required or desirable for the proper and lawful conduct of
Lessee's business or other activity in or on the Premises, or if the failure to secure such a license or permit might
in any way affect Lessor, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license
or permit and submit the same to inspection by Lessor. Lessee, at Lessee's expense, shall at all times comply
with the requirements of each such license or permit.
Section 3. Rent.
A. Lessee shall pay as rental for the Premises, in advance, an amount equal to Zero Dollars and
00/100 cents ($0.00)annually during the term of the Lease, ("Base Rent"). Base Rent shall increase 3% annually
during the term of the Lease. Lessor reserves the right to change rental rates as conditions warrant. Billing or
acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either party from canceling
this Lease as provided herein. Either party hereto may assign any receivables due it under this Lease; provided,
however, such assignments shall not relieve the assignor of any of its rights or obligations under this Lease. All
rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the
following address:
BNSF Railway Company
PO Box 676160
Dallas TX 75267-6160
Lessor shall have the right to designate at any time and from time to time a different address for delivery of such
payments by written notice to Lessee pursuant to the notice provisions of Section 36 below. No rent or other
payment sent to any other address shall be deemed received by Lessor unless and until Lessor has actually
posted such payment as received on the account of Lessee, and Lessee shall be subject to all default provisions
hereunder, late fees and other consequences as a result thereof in the same manner as if Lessee had failed or
delayed in making any payment.
B. Lessee acknowledges that Lessor utilizes the rental collection system involving direct deposit of
monies received through a financial institution selected by Lessor, which precludes Lessor's ability to exercise
rejection of a rental payment before Lessee's check is cashed. Lessee agrees that as a condition of Lessor
granting this Lease Lessee hereby waives any rights it may have under law to force continuation of this Lease
due to Lessor having accepted and cashed Lessee's rental remittance. Lessor shall have the option of rejecting
Lessee's payment by refunding to Lessee the rental amount paid by Lessee, adjusted as set forth in this Lease,
and enforcing the termination provisions of this Lease.
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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C. Lessee shall pay the Base Rent and all additional amounts due pursuant to Section 9 as and
when the same become due and payable, without demand, set-off, or deduction. Lessee's obligation to pay
Base Rent and all amounts due under this Lease is an independent covenant and no act or circumstance,
regardless of whether such act or circumstance constitutes a breach under this Lease by Lessor, shall release
Lessee of its obligation to pay Base Rent and all amounts due as required by this Lease.
D. If any Base Rent or any payment under Section 9 or any other payment due by Lessee hereunder
is not paid within five (5) days after the date the same is due, Lessor may assess Lessee a late fee ("Late Fee")
in an amount equal to 5% of the amount which was not paid when due to compensate Lessor for Lessor's
administrative burden in connection with such late payment. In addition to said Late Fee, Lessee shall pay
interest on the unpaid sum from the due date thereof to the date of payment by Lessee at an annual rate equal
to (i)the greater of(a)for the period January 1 through June 30, the prime rate last published in The Wall Street
Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through
December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-
half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less.
Section 4. Environmental.
A. Lessee shall strictly comply with all federal, state and local environmental laws and regulations in
its occupation and use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Clean Air Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Lessee shall not
maintain any treatment, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws, on the Premises. Lessee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws, on or about the Premises.
B. Lessee shall give Lessor immediate notice to Lessor's Resource Operations Center at (800) 832-
5452 of any release of hazardous substances on or from the Premises and to Lessor's Manager Environmental
Leases at (785) 435-2386 for any violation of Environmental Laws, or inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to Lessee's use of the Premises. Lessee
shall use its best efforts to promptly respond to any release on or from the Premises. Lessee also shall give
Lessor's Manager Environmental Leases immediate notice of all measures undertaken on behalf of Lessee to
investigate, remediate, respond to or otherwise cure such release or violation and shall provide to Lessor's
Manager Environmental Leases copies of all reports and/or data regarding any investigations or remediations of
the Premises.
C. In the event that Lessor has notice from Lessee or otherwise of a release or violation of
Environmental Laws on the Premises which occurred or may occur during the term of this Lease, Lessor may
require Lessee, at Lessee's sole risk and expense, to take timely measures to investigate, remediate, respond
to or otherwise cure such release or violation affecting the Premises or Lessor's right-of-way.
D. Lessee shall promptly report to Lessor in writing any conditions or activities upon the Premises
which create a risk of harm to persons, property or the environment and shall take whatever action is necessary
to prevent injury to persons or property arising out of such conditions or activities; provided, however, that
Lessee's reporting to Lessor shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease.
Lessee shall promptly respond to Lessor's request for information regarding said conditions or activities.
E. Hazardous Materials are not permitted on the Premises except as otherwise described herein.
Lessee expects to use on the Premises the following Hazardous Materials: None, and to store on the Premises
the following Hazardous Materials (as defined in Section 4(F) below): None; provided, however, that Lessee
may only use and store the listed Hazardous Materials in such amounts as are necessary and customary in
Lessee's industry for the permitted uses hereunder ("Permitted Substances"). All such Permitted Substances
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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shall be placed, used, and stored in strict accordance with all Environmental Laws. Use or storage on the
Premises of any Hazardous Materials not disclosed in this Section 4(E) is a breach of this Lease.
F. For purposes of this Section 4, "Hazardous Materials" means all materials, chemicals,
compounds, or substances (including without limitation asbestos, petroleum products, and lead-based paint)
identified as hazardous or toxic under Environmental Laws.
G. Lessor may, at its option prior to termination of this Lease, require Lessee to conduct an
environmental audit of the Premises through an environmental consulting engineer acceptable to Lessor, at
Lessee's sole cost and expense, to determine if any noncompliance or environmental damage to the Premises
has occurred during Lessee's occupancy thereof. The audit shall be conducted to Lessor's satisfaction and a
copy of the audit report shall promptly be provided to Lessor for its review. Lessee shall pay all expenses for any
remedial action that may be required as a result of said audit to correct any noncompliance or environmental
damage, and all necessary work shall be performed by Lessee prior to termination of this Lease.
Section 5. Access to Adjacent Property by Lessee.
If access to and from the Premises can be accomplished only through use of Lessor's property adjacent
to the Premises, such use is granted for ingress and egress only and on a non-exclusive basis, subject to such
restrictions and conditions as Lessor may impose by notice to Lessee. Lessor shall have the right to designate
the location or route to be used. Lessee understands and agrees that all of the terms and obligations under this
Lease applicable to Lessee shall also be applicable to Lessee with respect to Lessee's use of any property
adjacent to the Premises which Lessee may use just as though the property has been specifically described as
part of the Premises, including, without limitation, the indemnity provisions of Section 13. Notwithstanding
anything to the contrary herein, this Section 5 shall not grant Lessee any right to cross any of Lessor's Tracks.
Any such crossing rights may only be granted by a separate written agreement between Lessor and Lessee.
Section 6. Access to Premises by Lessor.
A. Lessor and its contractors, agents and other designated third parties may at all reasonable times
and at any time in case of emergency, in such manner as to not unreasonably interfere with Lessee's use of the
Premises as allowed hereunder, (i) enter the Premises for inspection of the Premises or to protect the Lessor's
interest in the Premises or to protect from damage any property adjoining the Premises, (ii) enter the Premises
to construct, maintain, and operate trackage, fences, pipelines, communication facilities, fiber optic lines,
wireless towers, telephone, power or other transmission lines, or appurtenances or facilities of like character,
upon, over, across, or beneath the Premises, without payment of any sum for any damage, including damage to
growing crops, (iii) take all required materials and equipment onto the Premises, and perform all required work
therein, for the purpose of making alterations, repairs, or additions to the Premises as Lessor may elect if Lessee
defaults in its obligation to do so, (iv) enter the Premises to show the Premises to holders of encumbrances on
the interest of Lessor in the Premises, or to prospective purchasers or mortgagees of the Premises, and all such
entries and activities shall be without any rebate of rent to Lessee for any loss of occupancy of the Premises, or
damage, injury or inconvenience thereby caused.
B. For purposes stated in this Section 6, Lessor will at all times have keys with which to unlock all of
the doors and gates on the Premises, and Lessee will not change or alter any lock thereon without Lessor's
permission.
C. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper
to open doors, gates, and other entrances to obtain entry to the Premises. Any entry to the Premises by Lessor
as described in this Section 6 shall not under any circumstances be construed or deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or any eviction of Lessee from the Premises, and any damages
caused on account thereof will be paid by Lessee.
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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Section 7. Warranties.
LESSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND
LESSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT
IS MADE. This Lease is made subject to all outstanding rights or interests of others. If the Premises are
subsequently found to be subject to prior claim, this Lease shall terminate immediately on notice to that effect
from Lessor. Lessee accepts this Lease subject to that possibility and its effect on Lessee's rights and ownership
of the Lessee Improvements. In case of eviction of Lessee by anyone other than Lessor, or anyone owning or
claiming title to or any interest in the Premises, Lessor shall not be liable to Lessee for damage of any kind
(including any loss of ownership right to Lessee's Improvements) or to refund any rent paid hereunder, except
to return the unearned portion of any rent paid in advance.
Section 8. Premises Condition; Lessee Improvements.
A. Lessee represents that the Premises, the Lessee owned fencing, (or other improvement), the title
thereto, any subsurface conditions thereof, and the present uses thereof have been examined by the Lessee.
Lessee accepts the same in the condition in which they now are, without representation or warranty, expressed
or implied, in fact or by law, by the Lessor, and without recourse to the Lessor as to the title thereto, the nature,
condition or usability thereof, or the uses to which the Premises may be put. By taking possession or
commencing use of the Premises, Lessee (i) acknowledges that it is relying on its own inspections of the
Premises and not on any representations from Lessor regarding the Premises; (ii) establishes conclusively that
the Premises are at such time in satisfactory condition and in conformity with this Lease and all zoning or other
governmental requirements in all respects; and (iii) accepts the Premises in its condition as of the
Commencement Date on an "AS IS," "WHERE IS," and "WITH ALL FAULTS" basis, subject to all faults and
infirmities, whether now or hereafter existing. Nothing contained in this Section 8 affects the commencement of
the term of the Lease or the obligation of Lessee to pay rent as provided above. Lessee represents and warrants
to Lessor as follows: (i) Lessee does not intend to, and will not, use the Premises for any purpose other than as
set forth in Section 2; (ii)Lessee has previously disclosed in writing to Lessor all special requirements (but Lessor
shall have no responsibility relative to any such special requirement), if any, which Lessee may have in
connection with this intended use; and (iii) Lessee has undertaken and has reasonably and diligently completed
all appropriate investigations regarding the suitability of the Premises for Lessee's intended use. Lessee shall
comply with any covenants, conditions or restrictions now or hereafter affecting the Premises, and acknowledges
that Lessor may place any covenants, conditions or restrictions of record affecting the Premises prior to or during
the term of the Lease. In such event, this Lease will be subject and subordinate to all of the same without further
action by either party, including, without limitation, the execution of any further instruments. Lessee
acknowledges that Lessor has given material concessions for the acknowledgements and provisions contained
in this Section 8, and that Lessor is relying on these acknowledgments and agreements and would not have
entered into this Lease without such acknowledgements and agreements by Lessee.
B. If improvements are necessary for Lessee's use of the Premises, Lessee, at Lessee's sole cost
and expense, shall, on or after the Commencement Date, construct and install such improvements to the
Premises which are necessary for Lessee's use of the Premises and are acceptable to Lessor in Lessor's sole
discretion ("Lessee Improvements"). The construction and installation of any Lessee Improvements shall be
subject to Lessor's prior written approval of plans and specifications for such Lessee Improvements to be
prepared by Lessee and submitted to Lessor for approval as set forth below, such approval to be in Lessor's
sole and absolute discretion. Within forty-five (45) days after the Commencement Date, Lessee shall submit
detailed plans and specifications, and the identity of Lessee's proposed general contractor for the Lessee
Improvements for Lessor's review and approval. Lessor shall either approve or disapprove the plans and
specifications and general contractor (in its sole and absolute discretion) by written notice delivered to Lessee
within sixty (60)days after receipt of the same from Lessee. In the event of any disapproval, Lessor shall specify
the reasons for such non-approval. If Lessor fails to deliver notice to Lessee of Lessor's approval or disapproval
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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of the plans, specifications, and proposed general contractor within the time period discussed above, Lessee's
plans, specifications and proposed contractor shall be deemed disapproved. If Lessor specifies objections to
the plans and specifications or general contractor as herein provided and Lessor and Lessee are unable to
resolve the objections by mutual agreement within a period of thirty (30) days from the date of delivery of written
notice thereof, Lessee, as its sole remedy, to be exercised not later than ten (10)days after the expiration of said
thirty (30) days period, may terminate this Lease by written notice to Lessor. Upon approval of the plans and
specifications by Lessor, Lessor and Lessee shall sign the same, and they shall be deemed a part hereof. All
Lessee Improvements shall be constructed and installed in accordance with the terms and conditions of Exhibit
"B" attached to the Lease and all applicable terms and conditions of the Lease regarding alterations and
improvements. Lessee shall not construct any other alteration or improvement to the Premises without Lessor's
prior written consent. The Lessee Improvements constructed pursuant to the above provisions shall be owned
by Lessee during the term of the Lease and removed from the Premises or surrendered to the Lessor pursuant
to Section 20 below upon termination of this Lease.
C. Lessee agrees to reimburse Lessor for all costs and expenses incurred by Lessor in connection
with Lessee's use of the Premises, including but not limited to the furnishing of Lessor's flaggers and any
vehicle rental costs incurred. Lessee shall bear the cost of flagger services and other safety measures
provided by Lessor, when deemed necessary by Lessor's representative. Flagging costs shall include, but not
be limited to the following: pay for at least an eight (8) hour basic day with time and one-half or double time for
overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and
unemployment insurance; public liability and property damage insurance; health and welfare benefits;
transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates.
Flagging rates in effect at the time of performance by the flaggers will be used to calculate the flagging costs.
To arrange flagger services, contact BNSF's Scheduling Agent at wilsoncompany.utility.ic@wilsonco.com or
(816) 556-3624 at least fifteen (15) days in advance of entry and BEFORE YOU DIG, CALL (800) 533-2891
(option 7).
Section 9. Taxes and Utilities.
A. In addition to Base Rent, Lessee shall pay all taxes, utilities, and other charges of every kind and
character, whether foreseen or unforeseen, ordinary or extraordinary, which are attributable to the term of this
Lease and may become due or levied against the Premises, against Lessee, against the business conducted on
the Premises or against the Lessee Improvements placed thereon during the term hereof, even though such
taxes, utilities or other charges may not become due and payable until after termination of this Lease provided;
however, that Lessee shall only be responsible for the payment of property taxes levied against the Premises to
the extent such taxes are separately assessed by the applicable taxing authority as a result of this Lease. Lessee
agrees that Lessor shall not be required to furnish to Lessee any utility or other services. If this Lease is a
transfer of an existing lease, Lessee must make arrangements with the present lessee for payment of any
delinquent and current taxes, utilities, and other charges prior to taking possession. If such arrangements are
not made, Lessee agrees to pay all such taxes, utilities, and other charges. If Lessor should make any such
payments, Lessee shall promptly upon demand reimburse Lessor for all such sums.
B. Should the Premises be subject to special assessment for public improvements in the amount of
Five Hundred Dollars ($500.00) or less during any Lease Year, Lessee shall promptly reimburse Lessor the
amount in full. Should the assessment exceed Five Hundred Dollars ($500.00)during any Lease Year then such
excess shall be paid by Lessor, but the Base Rent herein shall be increased by an amount equal to twelve
percent (12%) of such excess payable for each Lease Year such amounts are payable.
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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Section 10. Track Clearance.
A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary
material, structure, pole, or other obstruction within (i) 8'/2 feet laterally from the centerline of any of Lessor's
Tracks on or about the Premises (nine and one-half(9-1/2)feet on either side of the centerline of any of Lessor's
Tracks which are curved) or(ii) 24 feet vertically from the top of the rail of any of Lessor's Tracks on or about the
Premises ("Minimal Clearances"); provided that if any law, statute, regulation, ordinance, order, covenant or
restriction ("Legal Requirement") requires greater clearances than those provided for in this Section 10, then
Lessee shall strictly comply with such Legal Requirement. However, vertical or lateral clearances which are less
than the Minimal Clearances but are in compliance with Legal Requirements will not be a violation of this Section
10, so long as Lessee strictly complies with the terms of any such Legal Requirement and posts a sign on the
Premises clearly noting the existence of such reduced clearance. Any such sign shall be painted with black and
white reflective paint.
B. Lessor's operation over any Lessor's Track on or about the Premises with knowledge of an
unauthorized reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 10 or
of Lessor's right to recover for and be indemnified and defended against such damages to property, and injury
to or death of persons, that may result therefrom.
C. Lessee shall not place or allow to be placed any freight car within 250 feet of either side of any at-
grade crossings on Lessor's Tracks.
Section 11. Repairs; Maintenance.
A. Lessee shall, at its sole expense, take good care of the Premises (including all Lessee
Improvements) and shall not do or suffer any waste with respect thereto and Lessee shall promptly make all
necessary or desirable Repairs to the Premises. The term "Repairs" means all reasonable repair and
maintenance necessary to keep the Premises (including all Lessee Improvements) in good condition and
includes, without limitation, replacements, restoration and renewals when necessary. Lessee shall keep and
maintain any paved areas, sidewalks, curbs, landscaping, and lawn areas in a clean and orderly condition, and
free of accumulation of dirt and rubbish.
B. Lessor shall not have any liability or obligation to furnish or pay for any services or facilities of
whatsoever nature or to make any Repairs or alterations of whatsoever nature in or to the Premises, including
but not limited to structural repairs, or to maintain the Premises in any manner. Lessee acknowledges that
Lessor shall have no responsibility for management of the Premises.
C. Within thirty (30) days of the effective date of the agreement, Lessee shall, at its sole cost and
expense, construct a protective chain link fence minimum of six (6)feet in height along the north and west sides
of the parking area of the Premises as shown by a solid line with X's on Exhibit "A" of this agreement. Lessee
shall thereafter repair, maintain, and renew said fence, so as to keep in good repair at the sole cost to the Lessee.
If fence is not constructed within this time frame, Lessor may construct said fence at the sole cost of Lessee and
Lessee shall pay Lessor all associated costs within 10 days of receipt of bills.
Section 12. Safety; Danqerous and Hazardous Conditions.
A. It is understood by Lessee that the Premises may be in dangerous proximity to railroad tracks,
including Lessor's Tracks, and that persons and property, whether real or personal, on the Premises will be in
danger of injury, death or destruction incident to the operation of the railroad, including, without limitation, the
risk of derailment, fire, or inadequate clearance (including sight clearance or vision obstruction problems at grade
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crossings on or adjacent to the Premises), and Lessee accepts this Lease subject to such dangers, and
acknowledges that its indemnification obligations hereunder extend to and include all such risks.
B. Prior to entering the Premises, Lessee shall and shall cause its contractor(s) to comply with all of
Lessor's applicable safety rules and regulations. Lessee must ensure that each of its employees, contractors,
agents or invitees entering upon the Premises completes the safety orientation program at the website
"www.BNSFcontractor.com" (the "Safety Orientation") within one (1) year prior to entering upon the
Premises. Additionally, Lessee must ensure that each and every employee of Lessee, its contractors, agents
and invitees possess a card certifying completion of the Safety Orientation prior to entering upon the
Premises. Lessee must renew the Safety Orientation annually.
Section 13. Indemnity.
A. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL RELEASE, INDEMNIFY,
DEFEND AND HOLD HARMLESS LESSOR AND LESSOR'S AFFILIATED COMPANIES, PARTNERS,
SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF
ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND
GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY
"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR
INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(i) THIS LEASE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS;
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE;
(iii) LESSEE'S OCCUPATION AND USE OF THE PREMISES;
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY,
AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN PART, BY LESSEE; OR
(v) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS, INVITEES,
EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY
OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY
NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S
OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT
PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN
INDEMNITEE.
B. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE
LIMITATION IN SECTION 13(A), LESSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS,
REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON STRICT LIABILITY, NEGLIGENCE OR
OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER"
WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL
LAWS. LESSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND
ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LESSEE FURTHER
AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LEASE SHALL NOT IN ANY
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WAY SUBJECT LESSOR TO CLAIMS THAT LESSOR IS OTHER THAN A COMMON CARRIER FOR
PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND
HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LESSOR
BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES,
REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO
INDEMNIFY,AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY
LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE
FEDERAL EMPLOYERS' LIABILITY ACT ("FELA")WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS
AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY
INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA
CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS
OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
D. Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit or other
proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Lease for which
Lessee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Lessee shall
pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation
and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments.
Section 14. Equal Protection.
It is agreed that the provisions of Sections 10, 12, and 13 are for the equal protection of other railroad
companies, including, without limitation, the National Railroad Passenger Corporation (Amtrak), permitted to use
Lessor's property, and such railroad companies shall be deemed to be included as Indemnitees under Sections
10, 12, and 13.
Section 15. Assignment and Sublease.
A. Lessee shall not (i) assign or otherwise transfer this Lease or any interest herein, or (ii) sublet the
Premises or any part thereof, without, in each instance, obtaining the prior written consent of Lessor, which
consent may be withheld in Lessor's sole and absolute discretion. For purposes of this Section 15, in the event
that there are aggregate transfers or other changes in the ownership interests of Lessee resulting in a change
of more than 20% of the ownership interests as held on the date hereof, a transfer shall be deemed to have
occurred hereunder. Any person or legal representative of Lessee, to whom Lessee's interest under this Lease
passes by operation of law, or otherwise, will be bound by the provisions of this Lease.
B. Any assignment, lease, sublease or transfer made pursuant to Section 15(A) may be made only
if, and shall not be effective until, the assignee cures all outstanding defaults of Lessee hereunder and executes,
acknowledges and delivers to Lessor an agreement, in form and substance satisfactory to Lessor, whereby the
assignee assumes the obligations and performance of this Lease and agrees to be personally bound by and
upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of Lessee to be
performed or observed. Lessee covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this Lease, and notwithstanding the acceptance of rent by Lessor from an assignee
or transferee or any other party, Lessee will remain fully and primarily liable along with the assignee for the
payment of the rent due and to become due under this Lease and for the performance of all of the covenants,
agreements, terms, provisions, and conditions of this Lease on the part of Lessee to be performed or observed.
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Section 16. Liens.
Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders arising
out of any construction, alterations or repairs, suffered or permitted to be done by Lessee on the Premises.
Lessor is hereby authorized to post any notices or take any other action upon or with respect to the Premises
that is or may be permitted by law to prevent the attachment of any such liens to the Premises; provided,
however, that failure of Lessor to take any such action shall not relieve Lessee of any obligation or liability under
this Section 16 or any other Section of this Lease.
Section 17. Insurance.
Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease the following
insurance coverage:
A. All risks property insurance covering all of Railroads property including property in the care,
custody, or control of Lessee. Coverage shall include the following:
♦ Issued on a replacement cost basis.
♦ Shall provide that in respect of the interest of Railroad the insurance shall not be
invalidated by any action or inaction of Lessee or any other person and shall insure the
respective interests of Railroad as they appear, regardless of any breach or violation of
any warranty, declaration or condition contained in such policies by Lessee or any other
person.
♦ Include a standard loss payable endorsement naming Railroad as the loss payee as its
interests may appear.
♦ Include a waiver of subrogation in favor of Railroad.
B. Commercial General Liability Insurance. This insurance shall contain broad form contractual
liability with a combined single limit of a minimum of $1,000,000 each occurrence and an
aggregate limit of at least $ 2,000,000 but in no event less than the amount otherwise carried by
Lessee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and
include coverage for, but not limited to, the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance:
• The definition of insured contract shall be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
• Waiver of subrogation in favor of and acceptable to Railroad.
• Additional insured endorsement in favor of and acceptable to Railroad and Jones Lang
LaSalle Brokerage, Inc.
• Separation of insureds.
The policy shall be primary and non-contributing with respect to any insurance carried by
Railroad.
It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial
General Liability insurance policy(s) required herein are intended to apply to employees of the policy
holder and shall not apply to Railroad employees.
No other endorsements limiting coverage may be included on the policy.
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C. Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railroad.
♦ Additional insured endorsement in favor or and acceptable to Railroad.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
D. Workers Compensation and Employers Liability insurance including coverage for, but not limited
to:
♦ Lessee's statutory liability under the worker's compensation laws of the state(s) in which the
work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railroad.
E. If construction is to be performed on the Premises by Lessee, Lessee or Lessee's contractor shall
procure Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least
$2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO form
CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or services
under this Lease.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket
Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of
coverage are the same as above. The cost is 18 368.82.
❑ I elect to participate in Licensor's Blanket Policy;
I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
All policies (applying to coverage listed above) shall contain no exclusion for punitive damages and
certificates of insurance shall reflect that no exclusion exists.
Lessee agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or through policy endorsement, waive their right of
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subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of
subrogation endorsement. Lessee further waives its right of recovery, and its insurers also waive their right of
subrogation against Railroad for loss of its owned or leased property or property under Lessee's care, custody,
or control.
Lessee is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad,
any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by
Lessee in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Lease, be covered by Lessee's insurance will be covered as if Lessee elected not to include a
deductible, self-insured retention or other financial responsibility for claims.
Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments.. The policy(ies) shall contain a provision that obligates the insurance
company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation,
renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of
insurance. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with
a current Best's Guide Rating of A-and Class VII or better, and authorized to do business in the state(s) in which
the Premises is located.
Lessee represents that this Lease has been thoroughly reviewed by Lessee's insurance
agent(s)/broker(s), who have been instructed by Lessee to procure the insurance coverage required by this
Lease. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance
coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in
the insurance industry.
If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall
provide and maintain insurance coverages as set forth herein, naming Railroad as an additional insured, and
shall require that the contractor shall release, defend and indemnify Railroad to the same extent and under the
same terms and conditions as Lessee is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this Section 17 shall entitle, but not require, Railroad to
terminate this Lease immediately. Acceptance of a certificate that does not comply with this section shall not
operate as a waiver of Lessee's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by Lessee shall not be
deemed to release or diminish the liability of Lessee including, without limitation, liability under the indemnity
provisions of this Lease. Damages recoverable by Railroad shall not be limited by the amount of the required
insurance coverage.
For purposes of this Section 17, Railroad shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
Section 18. Water Rights and Use of Wells.
This Lease does not grant, convey or transfer any right to the use of water under any water right owned
or claimed by the Lessor which may be appurtenant to the Premises. All right, title, and interest in and to such
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water is expressly reserved unto Lessor, and the right to use same or any part thereof may be obtained only by
the prior written consent of the Lessor. Lessee shall not use, install or permit to be installed or used any wells
on the Premises without the prior written consent of Lessor.
Section 19. Default.
A. An "Event of Default" by Lessee shall have occurred hereunder if any of the following shall occur:
(i) if Lessee violates any safety provision contained in this Lease;
(ii) if Lessee fails to pay rent or any other monetary payment hereunder when due or fails to
perform any other obligations under this Lease and such failure continues thirty (30) days after written
notice from Lessor to Lessee of Lessee's failure to make such payment or perform such obligations;
(iii) if a decree or order of a court having jurisdiction over the Premises for the appointment of
a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Lessee
or over all or a substantial part of the property of Lessee shall be entered; or if Lessee becomes insolvent
or makes a transfer in fraud of creditors; or an interim receiver, trustee or other custodian of Lessee or of
all or a substantial part of the property of Lessee shall be appointed or a warrant of attachment, execution,
or similar process against any substantial part of the property of Lessee shall be issued and any such
event shall not be stayed, dismissed, bonded or discharged within thirty(30)days after entry, appointment
or issuance;
(iv) if the Premises is abandoned or vacated by Lessee.
B. If an Event of Default occurs as provided above, Lessor may, at its option, (i)terminate this Lease
by serving five (5) days notice in writing upon Lessee, in which event Lessee shall immediately surrender
possession of the Premises to Lessor, without prejudice to any claim for arrears of rent or breach of covenant,
(ii) proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance
by Lessee of the applicable provisions of this Lease or to recover damages for a breach thereof, (iii) cure the
default by making any such payment or performing any such obligation, as applicable, at Lessee's sole expense,
without waiving or releasing Lessee from any obligation, or (iv) enter into and upon the Premises or any part
thereof and repossess the same without terminating the Lease and, without obligations to do so relet the
Premises or any part thereof as the agent of Lessee and in such event, Lessee shall be immediately liable to
Lessor for all costs and expenses of such reletting, the cost of any alterations and repairs deemed necessary by
Lessor to effect such reletting and the full amount, if any, by which the rentals reserved in this Lease for the
period of such reletting exceeds the amounts agreed to be paid as rent for the Premises for the period of reletting.
The foregoing rights and remedies given to Lessor are and shall be deemed to be cumulative and the exercise
of any of them shall not be deemed to be an election excluding the exercise by Lessor at any time of a different
or inconsistent remedy. If, on account of breach or default by Lessee of any of Lessee's obligations hereunder,
it shall become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor's rights or
remedies hereunder, then, in any such event, any reasonable amount incurred by Lessor for attorneys'fees shall
be paid by Lessee. Any waiver by Lessor of any default or defaults of this Lease or any delay of Lessor in
enforcing any remedy set forth herein shall not constitute a waiver of the right to pursue any remedy at a later
date or terminate this Lease for any subsequent default or defaults, nor shall any such waiver in any way affect
Lessor's ability to enforce any Section of this Lease. The remedies set forth in this Section 19 shall be in addition
to, and not in limitation of, any other remedies that Lessor may have at law or in equity, and the applicable
statutory period for the enforcement of a remedy will not commence until Lessor has actual knowledge of a
breach or default.
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Section 20. Termination.
Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall
relinquish possession of the Premises and shall remove any Lessee Improvements, and restore the Premises
to substantially the state and environmental condition in which it was prior to Lessee's use ("Restoration
Obligations"). If Lessee shall fail within thirty (30) days after the date of such termination of its tenancy to
complete the Restoration Obligations,then Lessor may, at its election (i)either remove the Lessee Improvements
or otherwise restore the Premises, and in such event Lessee shall, within thirty (30) days after receipt of bill
therefor, reimburse Lessor for cost incurred, (ii) upon written notice to Lessee may take and hold any Lessee
Improvements and personal property as its sole property, without payment or obligation to Lessee therefor, or
(iii) specifically enforce Lessee's obligation to restore and/or pursue any remedy at law or in equity against
Lessee for failure to so restore. Further, in the event Lessor has consented to Lessee Improvements remaining
on the Premises following termination, Lessee shall, upon request by Lessor, provide a Bill of Sale in a form
acceptable to Lessor conveying such Lessee Improvements to Lessor.
Section 21. Survival of Obligations.
Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification
obligations and any other obligations that have accrued but have not been satisfied under this Lease prior to the
termination date shall survive such termination.
Section 22. Holding Over.
If Lessee fails to surrender the Premises to Lessor upon the termination of this Lease, and Lessor does
not consent in writing to Lessee's holding over, then such holding over will be deemed a month-to-month tenancy.
Lessee's holdover will be subject to all provisions of this Lease.
Section 23. Multiple Party Lessee.
In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee
herein contained shall be the joint and several covenants and agreements of such parties.
Section 24. Damage or Destruction.
If at any time during the term of this Lease, the Premises are damaged or destroyed by fire or other
casualty, then Lessor may terminate this Lease or repair and reconstruct the Premises to substantially the same
condition in which the Premises existed immediately prior to the damage or destruction, except that Lessor is
not required to repair or reconstruct any Lessee Improvements, personal property, furniture, trade fixtures, or
office equipment located on the Premises and removable by Lessee under the provisions of this Lease.
Section 25. Eminent Domain.
If any part of the Premises is taken by eminent domain, Lessor may either terminate this Lease or continue
the Lease in effect. If Lessor elects to continue the Lease, rent will be reduced in proportion to the area of the
Premises taken by eminent domain, and Lessor shall repair any damage to the Premises resulting from the
taking. All sums awarded or agreed upon between Lessor and the condemning authority for the taking of the
interest of Lessor or Lessee, whether as damages or as compensation, will be the property of Lessor; without
prejudice, however, to claims of Lessee against the condemning authority for moving costs and the unamortized
cost of leasehold improvements paid for by Lessee taken by the condemning authority. If this Lease is terminated
under this Section 25, rent will be payable up to the date that possession is taken by the condemning authority,
and Lessor shall refund to Lessee any prepaid unaccrued rent less any sum then owing by Lessee to Lessor.
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Section 26. Representations.
Neither Lessor nor Lessor's agents have made any representations or promises with respect to the
Premises except as herein expressly set forth.
Section 27. Si ns.
No signs are to be placed on the Premises without the prior written approval of Lessor of the size, design,
and content thereof.
Section 28. Consents and Approvals.
Whenever in this Lease Lessor's consent or approval is required, such consent or approval shall be in
Lessor's sole and absolute discretion. If Lessor delays or refuses such consent or approval, such consent or
approval shall be deemed denied, and Lessee in no event will be entitled to make, nor will Lessee make, any
claim, and Lessee hereby waives any claim, for money damages (nor will Lessee claim any money damages by
way of set-off counterclaim or defense) based upon any claim or assertion by Lessee that Lessor unreasonably
withheld or unreasonably delayed its consent or approval.
Section 29. Captions.
The captions are inserted only as a matter of convenience and for reference, and in no way define, limit
or describe the scope of this Lease nor the intent of any provision thereof.
Section 30. Public Record.
It is understood and agreed that this Lease shall not be placed of public record.
Section 31. Governing Law.
All questions concerning the interpretation or application of provisions of this Lease shall be decided
according to the laws of the state in which the Premises are located.
Section 32. No Waiver.
One or more waivers of any covenant, term, or condition of this Lease by Lessor shall not be construed
as a waiver of a subsequent breach of the same covenant,term, or condition. The consent or approval by Lessor
to or of any act by Lessee requiring such consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any subsequent similar act.
Section 33. Binding Effect.
All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable
by the respective successors and assigns of Lessor and Lessee to the same extent as if each such successor
and assign was named a party to this Lease.
Section 34. Force Maieure.
Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in,
or prevented from the performance required under this Lease (except for payment of monetary obligations) by
reason of earthquakes, landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts
of God or other reason of the like nature not the fault of the party delayed in performance of its obligation, such
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party is excused from such performance for the period of delay. The period for the performance of any such act
will then be extended for the period of such delay.
Section 35. Entire Agreement/Modification.
This Lease is the full and complete agreement between Lessor and Lessee with respect to all matters
relating to lease of the Premises and supersedes any and all other agreements between the parties hereto
relating to lease of the Premises. If this Lease is a reissue of an existing agreement held by Lessee, it shall
supersede and cancel the previous lease or leases, without prejudice to any liability accrued prior to cancellation.
This Lease may be modified only by a written agreement signed by Lessor and Lessee.
Section 36. Notices.
Any notice or documents required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given or shall be deemed to have been served and given if(i)delivered in person
to the address hereinafter set forth for the party to whom the notice is given, (ii) placed in the United States mail,
certified - return receipt requested, addressed to such party at the address hereinafter set forth, or(iii) deposited
into the custody of any reputable overnight carrier for next day delivery, addressed to such party at the address
hereinafter set forth. Any notice mailed as above shall be effective upon its deposit into the custody of the U. S.
Postal Service or such reputable overnight carrier, as applicable; all other notices shall be effective upon receipt.
All rent and other payments due to Lessor hereunder shall also be made as provided in Section 3(A) above, and
delivery of such rental and other payments shall only be effective upon actual receipt by Lessor. From time to
time either party may designate another address or telecopy number within the 48 contiguous states of the
United States of America for all purposes of this Lease by giving the other party not less than fifteen (15) days'
advance written notice of such change of address in accordance with the provisions hereof.
If to Lessee:
City of Kent
220 Forth Ave. South
Kent, WA 98032
If to Lessor:
BNSF Railway Company
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2828
Attn: Director Real Estate
With a copy to:
Jones Lang LaSalle Global Services - RR, Inc.
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2828
Attn: Director Leases
Section 37. Counterparts.
This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages
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from any counterpart may be appended to any other counterpart to assemble fully executed documents, and
counterparts of this Agreement may also be exchanged via electronic facsimile machines and any electronic
facsimile of any party's signature shall be deemed to be an original signature for all purposes.
Section 38. Relationship.
Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held, by
virtue of this Lease, to be the agent, partner, joint venturer, or associate of the other party hereto, it being
expressly understood and agreed that the relationship between the parties hereto is and at all times during the
term of this Lease, shall remain that of Lessor and Lessee.
Section 39. Severability.
If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws
effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that
in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part
of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision
as may be possible and be legal, valid and enforceable.
Section 40. Transferability: Release of Lessor.
Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under
this Lease and in the Premises, and upon such transfer, Lessor shall be released from any further obligations
hereunder, and Lessee agrees to look solely to the successor in interest of Lessor for the performance of such
obligations.
Section 41. Tax Waiver.
Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal
regarding the Premises (including Lessor's personalty), irrespective of whether Lessor contests the same.
Section 42. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing
party shall be entitled to reasonable attorneys'fees, costs, and necessary disbursements in addition to any relief
to which it may be entitled.
Executed by the parties to be effective as of the Effective Date above.
LESSOR
BNSF Railway Company
DocuSigned by:
By: yuun F(IM's
Name:
Title: E-k-tul OF and iteal Estate Management
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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DocuSign Envelope ID:7D7A9EFA-B7A6-41 ED-91 C6-2EEA9BCED4B6
LESSEE
City of Kent
By: l
Name:
Title: WAAA
BNSF- IndcRnite'I'ermlease—Land Farm 205;Rev. 07/01/14
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DocuSign Envelope ID:7D7A9EFA-B7A6-41 ED-91 C6-2EEA9BCED4B6
EXHIBIT "B"
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (the "Agreement") supplements that certain Indefinite Term Lease
for Land ("Lease") dated by and between BNSF Railway Company, a Delaware
corporation ("Lessor") and , a(n) ("Lessee"). In the event of
any conflict between the provisions of this Agreement and the provisions of the Lease, the provisions of this
Agreement shall control. Unless the context otherwise requires, capitalized terms not defined herein shall have
the meaning assigned to such terms in the Lease.
In the event Lessee uses one or more general contractors or subcontractors ("Contractor(s)") for any
improvements, alterations, build out, finish out, or other similar work on the Premises ("Work"), Lessee agrees
to and accepts the following:
1. Prior to performing any Work, Lessee shall obtain Lessor's approval of each Contractor and any
Work to be performed by such Contractor shall be performed pursuant to a written contract between Lessee and
the Contractor ("Work Contract") approved in advance by Lessor.
2. Prior to commencing any Work, Lessee shall submit for Lessor's review and approval Lessee's
plans, specifications and/or drawings for such Work (collectively, "Plans") in accordance with the procedure set
forth in the Lease.
3. All Work must be performed at Lessee's sole cost and expense and in accordance with the Plans
which have previously been approved by Lessor.
4. Lessee shall cause its Contractors to meet all insurance and indemnification requirements
required of Lessee under the Lease and shall obtain indemnification and insurance provisions from its
Contractors in favor of Lessor and in the same form as set forth in the Lease.
5. Prior to the commencement of the Work, all required local building, fire, health and other
departments must approve all Plans requiring approval by local building codes. In addition, the Work shall be
performed, installed and/or constructed in accordance with all applicable federal, state and local laws, codes,
ordinances, rules and regulations, including without limitation, the Americans With Disabilities Act of 1990, 42
U.S.C.A. 12101 et seq.
6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits
for the Work with copies furnished to Lessor prior to commencement of any construction.
7. Lessee shall furnish Lessor, for Lessor's approval, a copy of its schedule of the Work. Lessee
shall perform the Work in accordance with the schedule approved by Lessor, and any changes in such schedule
must be approved by Lessor in writing in advance.
8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Base
Rent and other amounts due under the Lease shall commence on the Commencement Date provided in the
Lease. Notwithstanding anything herein to the contrary, Lessor may, in Lessor's sole discretion, permit Lessee
and Lessee's Contractors to enter the Premises prior to the Commencement Date in order to commence Work;
provided, however, that Lessee agrees that such early entry or occupation of the Premises shall be governed by
all of the terms and conditions of the Lease and this Agreement (including the insurance and indemnity
requirements therein), as such terms and conditions are more specifically set forth in the Lease and this
Agreement.
1
DocuSign Envelope ID:7D7A9EFA-B7A6-41 ED-91 C6-2EEA9BCED4B6
9. During construction, Lessor reserves the right to inspect the Work at any time upon reasonable
notice to Lessee.
10. Lessee's Contractors shall keep the Premises reasonably clean at all times during the
performance of the Work.
11. All Work must be performed in a good and workmanlike manner, free from defects in materials
and workmanship.
12. If any materialman's, mechanic's, laborer's or any other liens for any work claimed to have been
undertaken for Lessee or at Lessee's request is filed against the Premises, Lessee shall indemnify, defend and
hold harmless Lessor from any such liens filed during the term of the Lease and shall, at Lessee's own expense,
cause all such liens to be removed within ten (10) days after written notice from Lessor to Lessee of the filing
thereof.
13. Lessee must obtain Lessor's reasonable approval that the Work has been completed in
substantial accordance with the approved plans and specifications. Lessor shall receive copies of all Certificates
of Occupancy and as-built drawings (electrical, mechanical, fire and architectural) prior to approving the Work.
14 All guarantees and warranties provided by Lessee's Contractors shall be issued to Lessee and,
for Work which is or will at the termination of this Lease be Lessor's property, also to Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date
first set forth above.
LESSOR:
BNSF Railway Company
By:
Name:
Title:
LESSEE:
By:
Nam .
.Title:
BNSF- Indefinite Term Lease—Land Form 205;Rev. 07/01/14
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