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HomeMy WebLinkAbout66-77 RESOLUTIONRESOLUTION NO. 64-77 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE WITH ST. LOUIS -SAN FRANCISCO RAILWAY COMPANY FOR THE PURPOSE OF PROVIDING LANDSCAPING ON DICKSON STREET WEST OF WEST AVENUE. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: That the Mayor and City Clerk be, and they hereby are, authorized and directed to execute a lease with St. Louis -San Francisco Railway Company for the purpose of providing land- scaping on Dickson Street West of West Avenue. A copy of said lease, marked Exhibit "A", is attached hereto and made a part hereof. PASSED AND APPROVED THIS ,-,' DAY OF ,T , 1977. APPROVED: OO�� MAYOR ATTEST: •CITY CLERK MICROFILMED DATE OCT 2 0 1978 REEL i 1 LS 04 —77 Farm 1502 Rev. April 74 Appr.: BCD 6/13/77 Lease No. 19917 THIS LEASE AGREEMENT, entered into this 14th day of June 19 77 between ST. LOUIS - SAN FRANCISCO RAILWAY COMPANY, a Missouri corporation hereinafter called "Lessor", and CITY OF FAYETTEVI7.T,F, ARKANSAS, a municipal corporation (Address: Fayetteville, Arkansas 72701) hereinafter (whether one party or more) called "Lessee"• WITNESSETH, That the parties hereto, for the consideration hereinafter expressed, covenant and agree as follows: 1. Lessor hereby leases unto Lessee, from the 14th day of June 1977 until this lease shall be terminated as hereinafter provided, certain property (hereinafter called "premises") situated at or near Fayetteville County of Washington State of Arkansas the location of which is shown by shaded area on print dated June 7 1977 _' -- 41..404.x4._ ^r' r. hibit$� attached hereto and made a part hereof, subject to easements and other restrictions, recorded and unrecorded, to be used and occupied by Lessee exclusively as a site for 1 andsraping and for no other purpose; subject and subordinate, however, to the right of Lessor, its lessees and licensees, to maintain, operate and renew, upon, beneath or above surface of premises, any telephone, telegraph, power or signal lines and poles, tracks, roadways, sewer, water and pipe lines, and facilities of like character, as now located, and to construct, operate, maintain and renew such additional facilities of the same character, or to relocate existing facilities, in such manner as will not unreasonably interfere with the use of said premises by Lessee for the purpose above specified; Lessee hereby releases Lessor, its lessees and licensees, from all loss or damage which Lessee may sustain by reason thereof. Each provision of this agreement relieving against or limiting liability shall inure to the benefit of each railway company or other person, firm or corporation that may at any time with the consent of Lessor operate engines, trains or cars upon any track or tracks of Lessor, or use any of Lessor's facilities. 2. Lessee covenants and agrees to pay to Lessor as rent for said premises the sum of One and No/100 Dollars, ``$ 1 0 receipt of which is hereby acknowledged, tor the duration hereof. . Lessee also covenants to pay all taxes or other charges which may become due or which may be assessed against the said premises, the Lessee, the business conducted on said premises, or any and all improvements placed thereon during the term hereof, except special assessments for public improvements; and shall reimburse Lessor for any such taxes or other charges which may be paid by Lessor promptly upon the presentation by Lessor of bills for the amount thereof; and if in default of such reimburse- ments, all sums so paid by Lessor shall be deemed as additional rental and recoverable as such. In the event the premises hereby demised, or any part thereof, shall be subject to any special assessment for any public improvement or improvements, the rental herein reserved and stipulated to be paid by Lessee shall be increased by seven percent (7%) per annum of the amount of such assessments, and such amount shall thereafter be considered a part of the annual rental for said leased premises. To secure the payment of rent herein reserved, Lessor is hereby given a lien upon all improvements and property of every kind of Lessee at any time erected or located on said leased premises. -1- • • Form 1502 Rev. 1.72 3. This agreement shall inure to the benefit of and be binding upon the respective successors, lessees and assigns of the parties hereto; provided, however, that Lessee shall have no right to assign this agreement, or sublet said leased premises, or any part thereof, or permit the same to be used or occupied by any person, firm or corporation other than Lessee, without first obtaining the written consent of Lessor thereto, and any transfer or assignment of this lease, whether voluntary or otherwise, without such consent of Lessor in writing, shall be absolutely void and, at the option of Lessor, shall terminate this lease. Prior to any assign- ment, sublease or occupation of the premises by any person, firm or corporation other than Lessee as herein- before provided, Lessor shall in addition have the right to adjust both the rental and term of this lease. 4. Lessee further agrees to indemnify and hod harmless Lessor and said leased premises from any and all fines, liens, damages, forfeitures, penalties and judgments that may accrue upon or against said leased Premises or Lessor by reason of the use or occupancy of said leased premises by Lessee, and to waive all right to claim damages in the event Lessee is ejected from, or is required to surrender possession of, the leased premises, or any part thereof. Lessee further agrees to assume all damages resulting `rom want or failure of title on the part of Lessor to said leased premises, or any part thereof. In the event of condemnation or other taking of said leased premises or any part thereof, or interference with or impairment of access, for public use, Lessor shall be entitled to the entire award or payment, except that Lessee may prove and collect from the con- demning authority the value of non -removable fixtures and improvements installed or made to said premises by Lessee, but only to the extent that such claim or collection does not reduce the amount to which Lessor would otherwise be entitled. 5. Lessee further covenants and agrees to observe and comply fully with all Federal and State laws and Municipal ordinances, and all rules and regulations issued by the Interstate Commerce Commission, or other lawful authority, and all rules and regulations of Lessor, now or hereafter in force, applicable to the use by Lessee of said leased premises. Lessee shall not use said leased premises for the loading, unloading, handling or storage of liquid nitrogen fertilizer solutions, anhydrous ammonia, ammonium nitrate, petroleum or its products, or any toxic, hazardous, explosive or flammable commodities, except by express provision in paragraph 1 hereof, or prior written consent of Lessor. No bulk storage tank or tanks shall be installed on the leased premises in addition to the number shown on the attached print, and tank or tanks shall not be re- located, without prior written consent of Lessor. 6. Lessee may construct, install, operate and maintain an overhead pipe, swinging arm, flexible pipe, gravity pipe, conveyor, or other loading or unloading device of any kind whatsoever, over or upon said leased premises, for the sole purpose of loading or unloading non-toxic and non -hazardous commodities, except as otherwise provided in paragraph 5 hereof, from cars, tanks, reservoirs or other receptacles on or off said leased premises into cars, tanks, reservoirs or other receptacles on or off said leased premises. Lessee shall not leave any such device in use except during times when at least one employee of Lessee is actually super- vising the loading or unloading of said commodities. Lessee shall disconnect any such device from any car or cars on any track and fully retract the same when tis not in actual or immediate use and whenever Lessor is engaged in switching operations in the vicinity thereof. 7. Lessee shall not erect or maintain, or allow to be erected or maintained, any building, structure or fixture, or place or store, or allow to be placed or stored, material of any kind, adjacent to or over any track of Lessor at distances less than those prescribed by lawful authority; and in no event shall any such building, structure, fixture or material be erected, maintained, placed or stored nearer than twenty (20) feet from the center line of main track, ten (10) feet from the center line of siding track, and eight and one-half (8/) feet from the center line of any other track, or at a height of less than twenty-three (23) feet above the top of the rails of any such track; except that no wires shall be placed or maintained over such track without Lessee first securing the written consent of Lessor thereto. 8.(a) It is understood that the operation of a railroad involves some risk of fire, and Lessee covenants and agrees to protect, indemnify and save harmless Lessor from and against all loss, damage and expense in con- sequence of death of, or injury to, persons whomsoever on the leased premises or Lessor's right of way adjacent thereto, and loss of or damage to property whatsoever and to whomsoever belonging, on the leased premises or Lessor's right of way adjacent thereto, caused or contributed to by fire communicated from the right of way —2— • • Form 1502 Rev. 1.72 of Lessor and/or by fire originating upon said leased premises whether caused by the negligence of Lessor or otherwise. (b) If any improvement placed upon said leased premises by Lessee shall be in any manner damaged or destroyed, wholly or partially, Lessee will, at Lessee's sole cost and expense, within ten (10) days from date of such damage or destruction, remove all debris, trash and rubbish resulting therefrom. If Lessee fails or refuses so to do, Lessor may do so at Lessee's sole cost, which cost shall be paid by Lessee within thirty (30) days of the presentation of the bill therefor. 9. Premises shall be kept in a neat, orderly and safe condition at all times, and Lessee shall not obstruct, or in any way interfere with the flow of water through said leased premises. Lessee shall not paint, post, erect or maintain, or permit the painting, posting, erection or maintenance of any sign or advertisement of any kind or description on or about said leased premises, except that Lessee may paint, post, erect or main- tain any sign designating Lessee's trade, business or occupation so long as the same does not, in the opinion of Lessor, interfere with Lessor's signals. 10.(I) This lease agreement may be terminated forthwith: (a) by Lessor if Lessee fails to occupy and use said leased premises for the purpose herein mentioned for a period of thirty (30) consecutive days, or if said premises are used for any purpose not herein mentioned; (b) by Lessor without notice upon failure of Lessee to pay any rental bill within thirty (30) days after presentation of bill therefor; (c) by Lessor upon the breach by Lessee of any of the provisions of any of the paragraphs of this lease; (d) by mutual agree- ment; and, (e) by either party at any time upon giving to the other party not less than thirty (30) days' written notice of such termination, unless this lease is for a term of years as hereinafter provided; provided, however, that rent shall be paid by Lessee to the date of termination fixed by said notice; and if rent has been paid in advance and the amount refundable is in excess of Twenty -Five Dollars ($25.00), the propor- tionate amount for the unexpired term shall be refunded to Lessee. (11) Upon the termination of this agreement in any manner, whether as herein provided orotherwise, Lessee shall surrender possession of said leased premises to Lessor, or its authorized agents, peaceably and without delay, and shall remove from said premises all buildings, structures and other property, of whatever kind, not belonging to Lessor, and restore said premises to substantially its former state and in a condition satisfactory to Lessor. This covenant requires, among other things, the removal of all tanks, foundations and debris, and the filling of all pits, excavations or other depressions on or about said leased premises. In case of failure so to do within thirty (30) days after termination, Lessee's improvements located on the leased premises shall become the property of Lessor, and Lessor may, at its discretion, tear down or remove the same and restore said premises, at the expense of Lessee, or maintain the same at its pleasure. (111) Any notice, including notice of termination, to Lessee hereunder shall be deemed to be properly served if the same be delivered to Lessee, or if left with any of Lessee's agents, servants or employees on said leased premises, or if posted on said leased premises, or if mailed, postpaid, addressed to Lessee at Lessee's last known address; and any such notice to Lessor shall be addressed and mailed, postpaid, to its Land and Tax Commissioner, Frisco Building, Springfield, Missouri. (IV) No termination of this agreement shall release either party from any liability or obligation that may have been incurred by or that may have been accrued against it hereunder during the term hereof. 11. If either party hereto shall violate, continuously or otherwise, any of the terms of this agreement binding upon it, the other party hereto shall thereby be deemed neither to have waived nor relinquished any such term of this agreement, nor to have acquiesced in such violation thereof,. unless the other party shall expressly consent thereto in writing. 12. Lessee agrees to indemnify and hold harmless Lessor against all loss, damage and expense in con- sequence of death of or injury to persons whomsoever, and loss or destruction of or damage to property whatsoever and to whomsoever belonging, caused or directly contributed to by the use or occupancy by Lessee of said leased premises, or any act or omission of Lessee, Lessee's agents, servants, employees or invitees, while on or about said premises, and/or the violation or breach, by Lessee, Lessee's agents, servants, employees or invitees, of any of the provisions of any of the paragraphs of this lease except as otherwise provided herein, if any claim or liability other than from fire shall arise from the joint and concurring negligence of any of the parties hereto, it shall be borne by them equally. —3— Form 1502 Rev. Jan. 1972 13. Lessee shall, at Lessee's expense, procure the passage and approval of an ordinance or resolution of the City Council, or the governing body, of the City of Fayetteville. Arkansas authorizing the Mayor, or some other appropriate officer of said City, to execute this agreement on beha'f of Lessee and bind Lessee to the terms and provisions hereof, a certified copy of said ordinance or resolution being hereto attached and made a part hereof. 14. Lessee further agrees not to erect, place, maintain or store, or allow to be erected placed, maintained or stored, any material closer than fifty (50) feet of the street line of W. Dickerson St. as shown on print attached hereto and made a part hereof, and further agrees not to plant, cultivate or maintain at any time any trees, shrubs, plants or bushes (and to keep the same properly cut and trimmed) which will be an obstruction to view at any of the crossings of said street with Lessor's railroad and right of way. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. Paragraphs 1 and 2 amended prior to execution. (Affix Seal) ATTEST: City Clerk ST. LOUIS -SAN FRANCISCO RAILWAY COMPANY By Land and Tax Commissioner CITY OF FAYETTEVILLE, ARKANSAS By 61,4%._( a:�1 r. -u1 L Mayor -4- • • • [Machine . Her , L-12590 Ma.estic Calc Ft. Ssn.fh • E1da. jk▪ i • CI ao BS GREGG ST. Main Trach ;1 307 Par: 2 /4 S32 Sp. Pt 1 4 264 L 19114 Downtown Faye it et,. fie UnIin1 1eti, Inc. a n I D E P 0 T 4 Team Track N° 1 • v N. SCHOOL ST. 1 Z 0 h vl 0 /4 / Kelly Lbr. Co. SOur a4` • 45 ON Freight House Trk 1491 03 ncnett DoCk Freight House1 1/5.2' 4 • N. WEST ST. Laundry N ST LOUIS - SAN FRANCISCO RAILWAY COMPANY CENTRAL DIV. FT. SMITH SUB—DIV FAYETTEVILLE - ARK. SKETCH SHOWING PROPOSED LEASE TO CITY Or FAYETTEVILLE SCALE:- I"=IOO' OFFICE OF CHIEF ENGR. JUNE 7, 1977 SPRINGFIELD, MO. SERVICE BLUEPRINT CO,