Res 1599 - Lease Prop Union Pac
COUNCIL BILL NO. 2263
RESOLUTION NO. 1599
A RESOLUTION ENTERING INTO A LEASE OF PROPERTY WITH THE UNION
PACIFIC RAILROAD COMPANY AND AUTHORIZING THE MAYOR SIGN SAID
LEASE.
WHEREAS, in 1997, the City of Woodburn entered into a commercial lease agreement
with the Southern Pacific Transportation Company for the lease of property where a public
works shop is located; and
WHEREAS, the Southern Pacific Transportation Company was legally acquired by the
Union Pacific Railroad Company; and
WHEREAS, it is now necessary to renew and update this lease on terms which are
satisfactory to the parties; NOW, THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. That the City of Woodburn enter into a Lease of Property with the Union
Pacific Railroad Company. A copy of said agreement is affixed hereto as Attachment "A" and is
by this reference incorporated herein.
Section 2. That the Mayor of the City of Woodburn is authorized to sign said lease on
behalf of the City.
Approved as to form~ % ~
City Attorney
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Dat
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Approved: ~~
ichard Jenmng Mayo
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Office of the Recorder
September 25, 2000
September 27. 2000
September 27,2000
September 27. 2000
ATTEST: ~ ~
Mary e t, City Recorder
City of Woodburn, Oregon
Page 1 - COUNCIL BILL NO. 2263
RESOLUTION NO. 1599
ATTACHMENT A
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Folder No. 01570-61
Audit No. 201022
LEASE OF PROPERTY
THIS LEASE ("Lease") is entered into on the _ day of , 2000, between
UNION PACIFIC RAILROAD COMPANY ("Lessor") and WOODBURN, CITY OF, an Oregon
municipal corporation, whose address is 270 Montgomery Street, Woodburn, Oregon 97071 ("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 Woodburn,
Oregon, as shown on the print dated August 4, 1998, 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 maintenance and use of lessee owned improvements for a municipal public
works shop and for purposes incidental thereto, only, and for no other purpose.
Article II.
TERM.
The term of this Lease shall commence on October 10, 2000, 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 Three Thousand Dollars ($3,000.00)
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 October 10, 1996,
identified as Audit No. 20 I 022 (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.
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IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first
herein written.
UNION PACIFIC RAILROAD COMPANY
CITY OF WOODBURN
By:
By:
Senior Manager - Real Estate
Title:
NOTE: Cancels and supersedes Lease Audit No. 201022 dated October 10, 1996
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NOTE: BEFORE you BEGIN ANY WORK. SEE
AGREEMENT FOR FIBER OPTIC PROVISIONS.
EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY
WOODBURN. MARION COUNTY. OREGON
M.P. 737.38 - WEST STAYTON BRANCH
TO ACCOMPANY AGREEMENT WITH
CITY OF WOODBURN
UPRRCO. R/W OUTLINED
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SCALE: 1" = 100'
OFFICE OF REAL ESTATE
OMAHA. NEBRASKA DATE: 8/4/1998
CAA FILE: 1570-51
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EXHIBIT B
Section 1.
IMPROVEMENTS.
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Section 2.
RESERVATIONS AND PRIOR RIGHTS.
A. Lessor reserves to itself, its agents and contractors, the right to enter the Premises at such
times as will not unreasonably interfere with Lessee's use of the Premises.
B. Lessor reserves (i) the exclusive right to permit third party placement of advertising signs on
the Premises, and (ii) the right to construct, maintain and operate new and existing facilities (including, without
limitation, trackage, fences, communication facilities, roadways and utilities) upon, over, across or under the
Premises, and to grant to others such rights, provided that Lessee's use of the Premises is not interfered with
unreasonably.
C. This Lease is made subject to all outstanding rights, whether or not of record. Lessor
reserves the right to renew such outstanding rights.
Section 3.
PAYMENT OF RENT.
Rent (which includes the annual rent and all other amounts to be paid by Lessee under this Lease)
shall be paid in lawful money of the United States of America, at such place as shall be designated by the
Lessor, and without offset or deduction.
Section 4.
TAXES AND ASSESSMENTS.
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, Lessee shall reimburse Lessor in
full within thirty (30) days after rendition of Lessor's bill.
B. If the Premises are specially assessed for public improvements, the annual rent will be
automatically increased by 12% of the full assessment amount.
Section 5.
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 6.
CARE AND USE OF PREMISES.
A. Lessee shall use reasonable care and caution against damage or destruction to the
Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises in any way that creates a hazard to persons or property.
Lessee shall keep the Premises in a safe, neat, clean and presentable condition, and in good condition and
repair. Lessee shall keep the sidewalks and public ways on the Premises, and the walkways appurtenant to
any railroad spur track( s) on or serving the Premises, free and clear from any substance which might create
a hazard and all water flow shall be directed away from the tracks of the Lessor.
B. Lessee shall not permit any sign on the Premises, except signs relating to Lessee's business.
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C. If any improvement on the Premises not belonging to Lessor is damaged or destroyed by fire
or other casualty, Lessee shall, within thirty (30) days after such casualty, remove all debris resulting
therefrom. If Lessee fails to do so, Lessor may remove such debris. and Lessee agrees to reimburse Lessor
for all expenses incurred within thirty (30) days after rendition of Lessor's bill.
D. Lessee shall comply with all govemmentallaws, ordinances, rules, regulations and orders
relating to Lessee's use of the Premises.
Section 7.
HAZARDOUS MATERIALS, 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 Lessee may use (i) 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 than hazardous wastes as defined in the Resource Conservation and Recovery Act, 42
U.S.C. 99 6901, et seq., as amended ("RCRA"), that are necessary for the conduct of Lessee's business at
the Premises as specified in Article I. The consent of Lessor may be withheld by Lessor for any reason
whatsoever, and may be subject to conditions in addition to those set forth below. It shall be the sole
responsibility of Lessee to determine whether or not a contemplated use of the Premises is a Hazardous
Substance use.
B. 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 (100') 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 information on the Hazardous Substance use as may be requested by Lessor. If requested by
Lessor, Lessee shall cause to be performed an environmental assessment of the Premises upon 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 Exhibit B, Lessee shall be
responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any manner to
any Hazardous Substance use of the Premises (or any property in proximity to the Premises) during the term
of this Lease or, if longer, during Lessee's occupancy of the Premises, regardless of Lessor's consent to such
use, or any negligence, misconduct or strict liability of any Indemnified Party (as defined in Section 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 Lease or Lessee's taking
occupancy of the Premises, or (ii) migrating from adjacent property not controlled by Lessee, 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 Lessee's responsibility for Hazardous Substances applies.
E. In addition to the other rights and remedies of Lessor under this Lease or as may be provided
by law, if Lessor reasonably determines that the Premises may have been used during the term of this Lease
or any prior lease with Lessee for all or any portion of the Premises, or are being used for any Hazardous
Substance use, with or without Lessor's consent thereto. and that a release or other contamination may have
occurred, Lessor may, at its election and at any time during the life of this Lease or thereafter (i) cause the
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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 Premises and any
adjacent lands of Lessor, (iii) cause to be performed any restoration of the Premises and any adjacent lands
of Lessor, and (iv) cause to be performed any remediation of, or response to, the environmental condition of
the Premises and the adjacent lands of Lessor, as Landlord reasonably may deem necessary or desirable,
and the cost and expense thereof shall be reimbursed by Lessee to Lessor within thirty (30) days after
rendition of Lessor's bill. In addition, Lessor may, at its election, require Lessee, at Lessee's sole cost and
expense, to perform such work, in which event, Lessee shall promptly commence to perform and thereafter
diligently prosecute to completion such work, using one or more contractors and a supervising consulting
engineer approved in advance by Lessor.
F. For purposes of this Section 7, the term "Hazardous Substance" shall mean (i) those
substances included within the definitions of "hazardous substance", "pollutant", "contaminanr, or "hazardous
waste", in the Comprehensive Environmental Response, Compensation and Liability Act of 1980,42 U.S.C.
999601, et seq., as amended or in RCRA, the regulations promulgated pursuant to either such Act, or state
laws and regulations similar to or promulgated pursuant to either such Act, (ii) any material, waste or
substance which is (A) petroleum, (B) 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.
Lessee will arrange and pay for all utilities and services supplied to the Premises or to
B. All utilities and services will be separately metered to Lessee. If not separately metered,
Lessee shall pay its proportionate share as reasonably determined by Lessor.
Section 9.
LIENS.
Lessee shall not allow any liens to attach to the Premises for any services, labor or materials
furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall have the right
to discharge any such liens at Lessee's expense.
Section 10.
ALTERATIONS AND IMPROVEMENTS; CLEARANCES.
A. No alterations, improvements or installations may be made on the Premises without the prior
consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the Lessor in
the operation of its Railroad and to such other conditions as Lessor determines to impose. In all events such
consent shall be conditioned upon strict conformance with all applicable governmental requirements and
Lessor's then-current clearance standards.
B. All alterations, improvements or installations shall be at Lessee's sole cost and expense.
C. Lessee shall comply with Lessor's then-current clearance standards, except (i) 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 time of its installation.
D. Any actual or implied knowledge of Lessor of a violation of the clearance requirements of this
Lease or of any governmental requirements shall not relieve Lessee of the obligation to comply with such
requirements, nor shall any consent of Lessor be deemed to be a representation of such compliance.
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Section 11.
AS-IS.
ATTACHMENT A-
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Lessee accepts the Premises in its present condition with all faults, whether patent or latent, and
without warranties or covenants, express or implied. Lessee acknowledges that Lessor shall have no duty
to maintain, repair or improve the Premises.
Section 12.
RELEASE AND INDEMNITY.
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 ("Indemnified Parties") from
and against, any loss, damage (including, without limitation, punitive or consequential damages), injury,
liability, claim, demand, cost or expense (including, without limitation, attomeys' fees and court costs), fine
or penalty (collectively, "Loss") incurred by any person (including, without limitation, Lessor, Lessee, or any
employee of Lessor or Lessee) and arising from 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.
B. The foregoing release and indemnity shall apply regardless of any negligence, misconduct
or strict liability of any Indemnified Party, except that the indemnity, only, shall not apply to any Loss caused
by the sole, active and direct negligence of any Indemnified Party if the Loss (i) was not occasioned by fire
or other casualty, or (ii) was not occasioned by water, including, without limitation, water damage due to the
position, location, construction or condition of any structures or other improvements or facilities of any
Indemnified Party.
C. Where applicable to the Loss, the liability provisions of any contract between Lessor and
Lessee covering the carriage of shipments or trackage serving the Premises shall govern the Loss and shall
supersede the provisions of this Section 12.
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.
TERMINATION.
A. Lessor may terminate this Lease by giving Lessee notice of tennination, if Lessee (i) fails to
pay rent within frtleen (15) days after the due date, or (ii) defaults under any other obligation of Lessee under
this Lease and, after written notice is given by Lessor to Lessee specifying the default, Lessee fails either to
immediately commence to cure the default, or to complete the cure expeditiously but in all events within thirty
(30) days after the default notice is given.
B. Notwithstanding the tenn of this Lease set forth in Article II, Lessor or Lessee may tenninate
this Lease without cause upon thirty (30) days' notice to the other party; provided, however, that at Lessor's
election, no such termination by Lessee shall be effective unless and until Lessee has vacated and restored
the Premises as required in Section 15A), at which time Lessor shall refund to Lessee, on a pro rata basis,
any uneamed rental paid in advance.
Section 14.
LESSOR'S REMEDIES.
Lessor's remedies for Lessee's default are to (a) enter and take possession of the Premises, without
tenninating this Lease, and relet the Premises on behalf of Lessee, collect and receive the rent from reletting.
and charge Lessee for the cost of reletting, and/or (b) tenninate this Lease as provided in Section 13 A) above
and sue Lessee for damages, and/or (c) exercise such other remedies as Lessor may have at law or in equity.
Lessor may enter and take possession of the Premises by self-help, by changing locks, if necessary, and
may lock out Lessee, all without being liable for damages.
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Section 15.
VACATION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY.
A. Upon termination howsoever of this Lease, Lessee (i) shall have peaceably and quietly
vacated and surrendered possession of the Premises to Lessor, without Lessor giving any notice to quit or
demand for possession, and (ii) shall have removed from the Premises all structures, property and other
materials not belonging to Lessor, and restored the surface of the ground to as good a condition as the same
was in before such structures were erected, including, without limitation, the removal of foundations, the filling
in of excavations and pits, and the removal of debris and rubbish.
B. If Lessee has not completed such removal and restoration within thirty (30) days after
termination of this Lease, Lessor may, at its election, and at any time or times, (i) perform the work and
Lessee shall reimburse Lessor for the cost thereof within 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
Lessee as a holdover tenant at will until such removal and restoration is completed.
Section 16.
FIBER OPTICS.
Lessee shall telephone Lessor during normal business hours (7:00 a.m. to 9:00 p.m., Central Time,
Monday through Fridays, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for
emergency calls) to determine 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 17.
NOTICES.
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: Union Pacific Railroad Company, Altn: Assistant Vice President - Real Estate, Real Estate
Department, 1800 Farnam Street, Omaha, Nebraska 68102; and to Lessee at the above address, or such
other address as a party may designate in notice given to the other party. Mailed notices shall be deemed
served five (5) days after deposit in the U.S. Mail. Notices which are personally served or sent by courier
service shall be deemed served upon receipt.
Section 18.
ASSIGNMENT.
A. Lessee shall not sublease the Premises, in whole or in part, or assign, encumber or transfer
(by operation of law or otherwise) this Lease, without the prior consent of Lessor, which consent may be
denied at Lessor's sole and absolute discretion. Any purported transfer or assignment without Lessor's
consent shall be void and shall be a default by Lessee.
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 19.
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 terminate. Lessor shall be
entitled to the entire award or proceeds for any total or partial condemnation or sale in lieu thereof, including,
without limitation, any award or proceeds for the value of the leasehold estate created by this Lease.
Notwithstanding the foregoing, Lessee shall have the right to pursue recovery from the condemning authority
of such compensation as may be separately awarded to Lessee for Lessee's relocation expenses, the taking
of Lessee's personal property and fixtures, and the interruption of or damage to Lessee' business.
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Section 20.
ATTORNEY'S FEES.
If either party retains an attorney to enforce this Lease (including, without limitation, the indemnity
provisions of this Lease), the prevailing party is entitled to recover reasonable attorney's fees.
Section 21.
ENTIRE AGREEMENT.
This Lease is the entire agreement between the parties, and supersedes all other oral or written
agreements between the parties pertaining to this transaction. Except for the unilateral redetermination of
annual rent as provided in Article ilL, this Lease may be amended only by a written instrument signed by
Lessor and Lessee.
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