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Res 1595 - Lease Union Pac Rail COUNCIL BILL NO. 2059 RESOLUTION NO. 1595 A RESOLUTION ENTERING INTO AN AGREEMENT FOR LEASE OF PREMISES FOR HIGHWAY PURPOSES FOR PROPERTY IN THE CITY OF WOODBURN WITH UNION PACIFIC RAILROAD COMPANY AND AUTHORIZING THE MAYOR TO SIGN SUCH AGREEMENT. WHEREAS, The City of Woodburn desires to make street improvements to South Front Street in the City, and WHEREAS, The Union Pacific Railroad Company owns property on which a portion of the proposed street improvement will be constructed, and WHEREAS, The City and Union Pacific Railroad Company have agreed to a lease agreement for the property that is required for the desired street improvement, and WHEREAS, The City must complete an agreement for lease of premises for highway purposes with the Union Pacific Railroad Company to utilize the property for desired improvements to South Front Street; NOW THEREFORE THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That the City of Woodburn enter into an agreement, which is affixed as Attachment "A" and by this reference incorporated herein, for lease of premises for highway purposes for property in the City of Woodburn with the Union Pacific Railroad Company. Section 2. That the Mayor of the City of Woodburn is authorized to sign said agreement on behalf of the City. Page 1 - COUNCIL BILL NO. 2059 RESOLUTION NO. 1595 'hOT Approved as to form~' ~ ~ City Attorney APPROVED: Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: /lfr ~ . M ~n'antl Recorder City of Woodburn, Oregon Page 2 - COUNCIL BILL NO. 2059 RESOLUTION NO. 1595 'r o ~ '6 - '2000 Date August 14, 2000 August 15, 2000 August 15, 2000 August 15, 2000 Lease of Premises for Highway Purposes at Milepost 734.94 ATTACHMENT Ii Page -L- of I:Z.. 9.0.- Folder: 01885-31 Audit No: TIllS AGREEMENT, made and entered into as of the _ day of , 2000, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Lessor"), and the CITY OF WOODBURN, to be addressed at 270 Montgomery Street, Woodburn Oregon 97701 (hereinafter the "Lessee"). WITNESSETH: IT IS MUTUALLY COVENANTED AND AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Section 1. LEASE; TERM. The Lessor hereby leases to the Lessee for a term of twenty (20) years effective as of the date first herein written, unless sooner terminated in accordance with the terms hereof, the premises (hereinafter "Leased Premises") narrated in the description dated June 15,2000 marked Exhibit "A", hereto attached. Section 2. ONE-TIME PAYMENT Lessee shall pay to Lessor a one-time payment in the amount of One Dollars ($1.00). Section 3. TAXES; ASSESSMENTS; CONSTRUCTION; LIABILITY. The Lessee also agrees to assume all taxes and assessments levied upon the Leased Premises during the continuance of this Lease, not including taxes or assessments levied against the Leased Premises as a component part of the railroad property of the Lessor in the state as a whole; to construct and maintain the highway on the Leased Premises in accordance with plans and profiles submitted to and approved by the Chief Engineer of the Lessor before the work is commenced; to keep the Leased Premises free from combustible material; to plant no trees or shrubbery thereon without the previous written consent of the Lessor, and to erect no structures thereon except such as may be necessary for highway purposes; to put nothing upon the Leased Premises which might obstruct or interfere with the view; to provide, in locations and in accordance with plans approved by the Lessor before the work is commenced, such ditches, culverts, bridges and other structures as may be necessary to properly care for the drainage from the Leased Premises and the adjoining right of way of the Lessor; and to hold the Lessor harmless from any and all damages to any of such structures on the Leased Premises arising from fire caused directly or indirectly by sparks or fire emitted from the engines or trains of the Lessor; and further to hold the Lessor harmless from any damages to the highway upon the Leased Premises which may result from the construction or maintenance of drainage ditches or waterways by the Lessor. The Lessee shall, in the construction, maintenance and improvement of the highway on the Leased Premises, take every precaution to prevent damage to, or the impairment of the stability of, the poles in any pole line of the Lessor or of its tenants; and the Lessee shall, at its own expense, reset or relocate, at and under the direction of the Lessor any pole or poles that are, or are likely to be, damaged Folder 01885-31 Lease of Premises For Highway Purposes Page 1 June 30, 2000 . '-'-"T'-' _..."" " ATTACHMENT /9 Page..2:::... of I' 2- or weakened because of the construction of such highway or the maintenance or improvement of the 9.... same, or shall reimburse the Lessor for the cost of resetting or relocating any such pole or poles if the Lessor elects to do the work itself. Section 4. COST OF CHANGES. In connection with the construction of the highway on the Leased Premises the Lessee shall assume the cost of any necessary changes within the limits of the right of way of the Lessor in the construction, grade or drainage of highways or other roadways crossing the Lessor's right of way. Section 5. REPOSSESSION FOR RAILROAD PURPOSES; SUBJECT TO MINERAL DEED DATED AS OF APRIL 1,1971. The Lessor reserves the right to take possession of all or any portion of the Leased Premises whenever the use thereof may become necessary or expedient, in the judgment of the Lessor, for railroad purposes, including the location of public or private warehouses, elevators, or other structures with the design to facilitate and promote traffic; PROVIDED, however, that in the event the Lessor elects to take possession of all or any portion of the Leased Premises in accordance with this reservation, it shall first serve upon the Lessee ninety (90) days' written notice of such election. This Lease is made subject to deed dated as of April 1, 1971, whereby Lessor conveyed to Union Pacific Land Resources Corporation all minerals and mineral rights of every kind and character now known to exist or hereafter discovered, including, without limiting the generality of the foregoing, oil and gas and rights thereto, together with the sole, exclusive and perpetual right to explore for, remove and dispose of, such minerals by any means or methods suitable to Union Pacific Land Resources Corporation, its successors and assigns, but without entering upon or using the surface of the lands hereby leased, and in such manner as not to damage the surface of such lands or to interfere with the use thereof by the Lessor, its successors and assigns. Section 6. RESERV A nON OF RIGHT TO CROSS LEASED PREMISES WITH RAILROAD TRACKS. The Lessor reserves the right to cross the Leased Premises with such railroad tracks as may be required for its convenience or purposes in such manner as not unreasonably to interfere with their use as a public highway. In the event the Lessor shall place tracks upon the Leased Premises in accordance with this reservation, it shall, upon completion of such tracks, restore the highway across the same to its former state of usefulness. Section 7. USE OF LEASED PREMISES. The Lessee shall not use the Leased Premises or permit them to be used except for the usual ordinary purposes of a street or highway, and it is expressly understood and agreed that such purposes shall not be deemed to include the use by the Lessee, or by others, of the Leased Premises for railroad, street or interurban railway or other rail transportation purposes or for the construction or maintenance of electric power transmission lines, gas, oil or gasoline pipelines. Section 8. SUPERIOR RIGHTS, This Lease is subject to all outstanding superior rights (including those in favor of licensees and lessees of the Lessor's property, and others) and to the right of the Lessor to renew and extend the same; Folder 01885-31 Lease of Premises For Highway Purposes Page 2 June 30, 2000 ~"T' ATTACHMENT A- Page -3- of -L' and it is understood that nothing in this Lease contained shall be construed as a covenant to put the ~ ...... Lessee into possession or to protect the Lessee in the peaceable possession of such premises. Section 9. SPECIAL ASSESSMENTS. No special assessments for establishing or improving the highway located upon the Leased Premises are to be made against the adjacent railroad right of way of the Lessor, and the Lessee agrees to protect the Lessor against and save it harmless from such special assessments. Section 10. CONSTRUCTION, MAINTENANCE AND RELOCATION OF FENCES AND BARRIERS. The Lessee agrees that, at points where the Lessor at the date hereof maintains a fence on its right of way between its track and the inner margin of the Leased Premises, the Lessee will, at its own cost and expense, move such fence to the inner margin of the Leased Premises, and that, at points where the Lessor does not maintain a fence in such location, the Lessee will construct a fence on the inner margin of the Leased Premises when and where requested in writing by the Lessor. The Lessee further agrees to assume the responsibility of constructing or of making such arrangements as may be necessary with owners or lessees of property abutting upon the right of way along the line of such highway for constructing, maintaining and repair fences on the outer margin of the Lessor's right of way,; and to relieve the Lessor of all obligation, if any there be, to establish or maintain fences upon the outer margin of its right of way and of all expense incident to the construction, maintenance and repair of such fences. In the relocation of existing fences and in the construction of new fences in accordance with the provisions of this section, the Lessee shall, at its own cost and expense, also relocate or construct such wing fences that may be necessary and also any necessary connections with existing fences of the Lessor. All fences shall be in accordance with the standards of the Lessor and all work of relocating and constructing fences shall be done in a manner satisfactory to the Lessor. At points where the highway is higher than or on the same level as or less than two (2) feet below the level of tracks of the Lessor and forms a curve convex to such tracks, the Lessee, at its expense, shall construct and thereafter maintain substantial barriers on the track side of the highway so as to prevent vehicles moving from such highway or being overturned or thrown therefrom across the roadbed or tracks of the Lessor, and such barriers shall be of such nature, material, dimensions and strength as shall be approved by the Chief Engineer of the Lessor. Section 11. PROTECTION OF REVERSIONARY INTERESTS. For the purpose of protecting the reversionary interests of the Lessor against the assertion of adverse rights, the Lessee agrees to prevent encroachments upon the Leased Premises, and to this end will, at its own expense, take all necessary action, including as far as practicable the building of its ditches on and the borrowing of earth from the outer margin of the Leased Premises. Section 12. TERMINATION ON DEFAULT. If the Lessee should breach or fail to keep any of the covenants or conditions hereof, or fail to perform such covenants or conditions, or to remedy the same for thirty (30) days after written notice of such failure or breach on the part of the Lessee, given by the Lessor to the Lessee, then this Lease shall be null and void. Folder 01885-31 Lease of Premises For Highway Purposes Page 3 June 30, 2000 .~-...,.~ Section 13. TERMINATION ON NONUSER. ATTACHMENT~ Page.!t::- of ...... Nonuser by the Lessee of the Leased Premises for highway purposes continuing at any time during the term hereof for a period of eighteen (18) months shall, at the option of the Lessor, work a termination of this Lease and of all rights of the Lessee hereunder, and nonuser by the Lessee of a portion of the Leased Premises continuing for a like period shall, at the option of the Lessor, work a termination of all rights and interests of the Lessee with respect to such portion. Section 14. RAILROAD PROTECTIVE LIABILITY INSURANCE. The Lessee agrees that any contractor performing work contemplated hereunder shall be required to procure for and on behalf of the Lessor and to keep in effect, during the entire period of the operations of such contractor or any subcontractor, insurance of the kinds and amounts stated in the Railroad Protective Liability Form, marked Exhibit B, attached hereto, such insurance to be acceptable to the Lessor and to be in addition to any other forms of insurance or bonds required under the terms of any contracts between the Lessee and such contractor or subcontractors. The originals of all policies of insurance required under Exhibit B shall be furnished to the Lessor and shall be acceptable to and approved by the Lessor as to form, substance and execution and as to the insurer issuing such policy or policies. Such insurance shall be kept in effect until all of the work to be performed by such contractor or subcontractors shall have been completed and formally accepted by the Lessee. Section 15. PROTECTION OF FIBER OPTICS. Fiber optic cable systems may be buried on the Lessor's property. Lessee shall telephone the Lessor at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on the Leased Premises. If it is, Lessee will telephone the telecommunicationscompany(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Leased Premises. In addition to the liability terms elsewhere in this Lease, the Lessee shall indemnify and hold the Lessor harmless against and from all cost, liability, and expense whatsoever (including, without limitation, attorneys' fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of the Lessee, its contractor, agents and/or employees, that causes or in any way or degree contributed to (a) any damage to or destruction of any telecommunications system by the Lessee, and/or its contractor, agents and/or employees, on Lessor's property, (b) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Lessor's property, and/or (c) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecommunication company(ies). Section 16. LESSEE NOT TO ASSIGN OR SUBLET. This Lease is not to be assigned, nor is any portion of the Leased Premises to be sublet, without the written consent of the Lessor. The Lessee will surrender peaceable possession of the Leased Premises at the expiration of this Lease. Section 17. SUCCESSORS AND ASSIGNS. Folder 01885-31 Lease of Premises For Highway Purposes Page 4 June 30, 2000 ."-. ."-"..__....... ATTACtiMENT ---r 11.~ Page ~ of --'. All covenants and agreements herein recited are made by the parties hereto for, and shall be ~ .a- binding upon, themselves and for their successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY CITY OF WOODBURN By: By: Senior Manager - Real Estate Title: NOTE: New Lease Folder 01885-31 Lease of Premises For Highway Purposes Page 5 June 30, 2000 . "'''''T.--. .-..----.... ---.....~._----".. "" ----- ATTACHMENT i I).. Page...1i2- of EXHIBIT A DESCRIPTION OF LEASED PREMISES June 15,2000 The leased premises constitute the westerly five feet of Union Pacific Railroad Company's Brooklyn Subdivision right-of-way in Woodburn, Marion County, Oregon, from Cleveland Street (mile post 734.94) South 550 feet to the approximate south boundary of the vacated poplar street. Lease Area = 2,750.0 Square Feet = 0.063 Acre ----'"T~-' IND LS 11/15/99 APPROVED, LAW EXHIBIT B ATTACHMENT page::1- of A 1'2... 9~ 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, Page 1 of 6 G:\LAWADMlPARIKJOIFORMSIINDLEASE .EXB.DOC .. 'T- ...-....-.....----...~.-.---.....-...... ---.......-.'1-.....-.--.....-.....-..-...... IND LS 11/15/99 APPROVED, LAW ATTACHMENT A Page ~ of 1'2- ~...., 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 governmental laws, 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.SC ~~ 6901, ~ 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 S, 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 Page 2 of 6 G:lLAWADMlPARIKJOIFORMSIINDLEASE EXB.DOC T' ATTACHMENT 11 Page....!L- of I'Z- 9 L. 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. INDLS 11/15/99 APPROVED, LAW F. For purposes of this Section 7, the term "Hazardous Substance" shall mean (i) those substances included within the definitions of "hazardous substance", "pollutant", "contaminant", or "hazardous waste", in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42U.S.C. 999601, ~ 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, Page 3 of 6 G:\LAWADMlPAR\KJO\FORMS\INDLEASE.EXB DOC T' IND LS 11/15/99 APPROVED, LAW ATTACHMENT A Page...!.!!... of ~-L- Section 11. AS-IS. 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, attorneys' 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 termination, if lessee (i) fails to pay rent within fifteen (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 term of this Lease set forth in Article II, Lessor or Lessee may terminate 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 unearned 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 terminating 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) terminate 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. Page 4 of 6 G:lLA WADMlPARIKJOIFORMSIINDLEASE .EXB.DOC ...... . ----~---~."....I'.._.-"'..---""-~--~'-"~-,................ Section 15. ATTACHMENT /1 page..L!- of VACATION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY. IND LS 11/15/99 APPROVED, LAW ~~ 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 th,= Premises, Lessee will telephone the telecommunications companY6es), 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, Attn: 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. Page 5 of 6 GILA WADMlPARIK.JOIFORMSIINDLEASE.EXB.DOC 'T" INO LS 11/15/99 ~ APPROVEO,LAVV /J Ap:rrAC~MENT /2- age -1= of 90 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 III., this Lease may be amended only by a written instrument signed by Lessor and Lessee. Page 6 of 6 G~WN>tN'AR\K.IOIFORMS\lNOLEASE.EXB.DOC -T'