HomeMy WebLinkAbout21- Indefinite Term Lease for Land - Montana Rail Link - Manley Ditch (waiting for MRL Signature)Indefinite Term Lease – Land MRL Form 405 February 2015 Page 1
INDEFINITE TERM LEASE LAND NO. 502,160
02BOZEMAN
THIS INDEFINITE TERM LEASE FOR LAND ("Lease") is dated as of the 1st day of May, 2021 (the "Effective
Date") between MONTANA RAIL LINK, INC., a Montana corporation ("Lessor"), whose mailing address is PO Box
16624, Missoula, MT 59808-6624 and physical address is 101 International Way, Missoula, MT 59808 and;
CITY OF BOZEMAN, ("Lessee")
whose address is 121 N. ROUSE AVE.
PO BOX 1230
BOZEMAN, MT 59771
RECITALS
A. Lessor is in the railroad transportation business and leases a system of rail tracks ("Lessor's Track(s)")
and various real properties associated therewith from BNSF Railway Company, a Delaware corporation ("BNSF"),
pursuant to that certain Agreement between Lessor and BNSF dated July 21, 1987 ("Master Lease"), including the
Property described below which Lessee desires to further lease from Lessor.
B. Lessor has agreed to lease to Lessee the Property, 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. Property, Term and Master Lease.
A. Lessor leases to Lessee and Lessee rents 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 Bozeman, County of
Gallatin, State of Montana, Mile Post 141+3712, Survey Station 7482+12, as shown on the plat, dated February 15, 2021
a copy of which is attached hereto as Exhibit "A" and made a part hereof ("Property").
B. Lessee leases the Property from Lessor beginning May 1, 2021 ("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 termination, 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
Property, a sum equal to three (3) months Rent (as defined below), and any unearned portion of the annual Rent, in
excess of such retainage, paid in advance shall be refunded to Lessee or (ii) if Lessor has not been paid sufficient 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 Rent which Lessor shall retain as an additional charge for use
of the Property, 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 desires to terminate, and (iii) in no
event shall Lessor be deemed to have any legal obligations to continue to lease the Property for any length of time.
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F. This Lease is subject and subordinate to the Master Lease. BNSF hereby agrees by its signature below
to recognize Lessee’s rights under this Lease, if, prior to the termination of this Lease, or to the expiration of the term of
this Lease, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters and repossesses the
Property after a default by Lessor under the Master Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under
this Lease, Lessee agrees that (i) BNSF shall not be liable or responsible for any breach of or default under this Lease
arising prior to the date that BNSF succeeds to the rights of Tenant as the "Lessor" under this Lease; (ii) BNSF shall not
be required to cure or correct any breach or default under this Lease arising prior to the date that BNSF succeeds to the
rights of Lessor as the "Lessor" under this Lease; and (iii) no breach of or default under this Lease arising prior to the date
that BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease shall excuse, delay, release or relieve
Lessee from the payment and performance of all of Lessee’s duties and obligations under this Lease. The preceding
sentence is not intended and shall not be construed to affect any rights or remedies of Lessee against Lessor arising or
resulting from a breach of or default under this Lease by Lessor prior to the date that BNSF succeeds to the rights of
Lessor as the "Lessor" under this Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under this Lease,
Lessee agrees to recognize BNSF as the "Lessor" under this Lease and timely tender payment and performance of
Lessee’s duties and obligations under this Lease to BNSF as if BNSF were named as "Lessor" in this Lease.
Section 2. Use and Compliance.
A. Lessee may use the Property for the sole and exclusive purpose of a historical municipal open channel
storm drainage system conveying stormwater runnoff to the Cherry Creek Fishing Access referred to as the Manley Ditch
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 Property.
B. Lessee shall comply with all Laws applicable to Lessee, the Property, 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 Property, 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 Property, or if the failure to secure such a license or permit might in any
way affect Lessor or BNSF, 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 Property, in advance, an amount equal to Thirty Seven Dollars ($37.00)
annually ("Rent"). Lessor may, in its sole discretion, adjust the Rent annually to reflect a then current fair market rental
value. 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:
Montana Rail Link, Inc.
PO Box 16624
Missoula, MT 59808
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
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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.
C. Lessee shall pay the 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 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 Rent and all amounts due as
required by this Lease.
D. If any 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 Property, 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 Property.
Lessee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws, on or
about the Property.
B. Lessee shall give Lessor immediate notice to Lessor's Manager of Environmental Projects at
406.523.1415 and to BNSF's Resource Operations Center at 800.832.5452 of any release of hazardous substances on or
from the Property and to Lessor's Manager of Environmental Projects at 406.523.1415, Lessor’s Real Estate Department
promptly in writing, and to BNSF'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 Property. Lessee shall use its best efforts to promptly respond to any release on or from the Property.
Lessee also shall give Lessor's Manager of Environmental Projects, Lessor’s Real Estate Department and BNSF'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 of Environmental
Projects, Lessor’s Real Estate Department and BNSF's Manager Environmental Leases copies of all reports and/or data
regarding any investigations or remediations of the Property.
C. In the event that Lessor and/or BNSF have notice from Lessee or otherwise of a release or violation of
Environmental Laws on the Property which occurred or may occur during the term of this Lease, Lessor and BNSF 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 Property or Lessor's right-of-way.
D. Lessee shall promptly report to Lessor and BNSF in writing any conditions or activities upon the Property
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 and BNSF shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease. Lessee shall
promptly respond to Lessor’s and/or BNSF's request for information regarding said conditions or activities.
E. Hazardous Materials are not permitted on the Property except as otherwise described herein. Lessee
expects to use on the Property the following Hazardous Materials: none, and to store on the Property 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 shall be placed, used, and stored in strict
accordance with all Environmental Laws. Use or storage on the Property of any Hazardous Materials not disclosed in this
Section 4(E) is a breach of this Lease.
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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 or BNSF may, at its option prior to termination of this Lease, require Lessee to conduct an
environmental audit of the Property through an environmental consulting engineer acceptable to Lessor or BNSF, at
Lessee's sole cost and expense, to determine if any noncompliance or environmental damage to the Property has
occurred during Lessee's occupancy thereof. The audit shall be conducted to Lessor's and BNSF satisfaction and a copy
of the audit report shall promptly be provided to Lessor and BNSF for their 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 Property can be accomplished only through use of Lessor's property adjacent to the
Property, 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 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 Property, 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 Property 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 Property as
allowed hereunder, (i) enter the Property for inspection of the Property or to protect the interests of Lessor and BNSF in
the Property or to protect from damage any property adjoining the Property, (ii) enter the Property 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 Property;
provided that Lessor and BNSF shall have no obligation to pay any sum for any damage, including damage to growing
crops, (iii) take all required materials and equipment onto the Property, and perform all required work therein, for the
purpose of making alterations, repairs, or additions to the Property as Lessor may elect if Lessee defaults in its obligation
to do so, (iv) enter the Property to show the Property to holders of encumbrances on the interest of Lessor in the Property,
or to prospective purchasers or mortgagees of the Property, and all such entries and activities shall be without any rebate
of Rent to Lessee for any loss of occupancy of the Property, 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 Property, 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 Property. Any entry to the Property 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 Property, or any eviction of Lessee from the Property, and any damages caused on account thereof will be paid by
Lessee.
Section 7. Warranties.
LESSOR DOES NOT WARRANT ITS LEASEHOLD INTEREST IN OR BNSF'S TITLE TO THE PROPERTY
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
Property is 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 Property, Lessor and BNSF 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.
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Section 8. Property Condition; Lessee Improvements.
A. Lessee represents that the Property, 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 and BNSF as to the title thereto, the nature, condition or usability thereof, or the uses to which the Property may
be put. By taking possession or commencing use of the Property, Lessee (i) acknowledges that it is relying on its own
inspections of the Property and not on any representations from Lessor regarding the Property; (ii) establishes
conclusively that the Property is 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 Property 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 Property 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
Property for Lessee’s intended use. Lessee shall comply with any covenants, conditions or restrictions now or hereafter
affecting the Property, and acknowledges that Lessor may place any covenants, conditions or restrictions of record
affecting the Property 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 acknowledgements and agreements and would not have entered into
this Lease without such acknowledgements and agreements by Lessee.
B. If initial improvements are necessary for Lessee's use of the Property, Lessee, at Lessee's sole cost and
expense, shall, on or after the Commencement Date, construct and install such initial improvements to the Property which
are necessary for Lessee's use of the Property and are acceptable to Lessor and BNSF in Lessor's and BNSF's sole
discretion ("Lessee Improvements"). The construction and installation of any Lessee Improvements shall be subject to
Lessor's and BNSF's prior written approval of plans and specifications for such Lessee Improvements to be prepared by
Lessee and submitted to Lessor and BNSF for approval as set forth below, such approval to be in Lessor's and BNSF'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 and BNSF's review and approval. Lessor and BNSF shall either approve or disapprove the plans and
specifications and general contractor (in their 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 and BNSF shall specify the
reasons for such non-approval. If Lessor and BNSF fail to deliver notice to Lessee of Lessor's approval or disapproval 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 or BNSF specifies objections to the plans
and specifications or general contractor as herein provided and Lessor and Lessee or BNSF 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 and
BNSF, Lessor, BNSF 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 Property without Lessor's Real Estate Department’s prior written consent and
BNSF'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 Property or surrendered to the Lessor pursuant to Section 20
below upon termination of this Lease.
Section 9. Taxes and Utilities.
A. In addition to 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 Property, against Lessee, against the business conducted on the Property 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 Property 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
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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 Property 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 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.
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) 8½ feet laterally from the centerline of any of Lessor's Tracks on or about the
Property (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 Property ("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 Property clearly noting the existence of such reduced clearance.
Any such sign shall be painted with black and white reflective paint.
B. Lessor's or BNSF's operation over any Lessor's Track on or about the Property 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 or BNSF's rights to recover for and be indemnified and defended against such damages to property, and injury to
or death of persons, that may result therefrom. In addition to, and not in exclusion of, other provisions of this Lease,
Lessor and Lessee hold BNSF harmless from liability occurring as a result of Lessor's provision of rail freight services
over the Property.
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 Property (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 Property. The term "Repairs" means all reasonable repair and maintenance necessary to keep the Property (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 Property, including but not limited to
structural repairs, or to maintain the Property in any manner. Lessee acknowledges that Lessor shall have no
responsibility for management of the Property.
Section 12. Safety; Dangerous and Hazardous Conditions.
It is understood by Lessee that the Property may be in dangerous proximity to railroad tracks, including Lessor's
Tracks, and that persons and property, whether real or personal, on the Property 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 crossings on or adjacent to the Property), and
Lessee accepts this Lease subject to such dangers, and acknowledges that its indemnification obligations hereunder
extend to and include all such risks.
Section 13. Indemnity.
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A. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL RELEASE, INDEMNIFY, DEFEND
AND HOLD HARMLESS LESSOR, BNSF, BURLINGTON NORTHERN SANTA FE LLC AND EACH OF THE
AFOREMENTIONED PARTIES' 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 PROPERTY;
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PROPERTY 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 ANY NEGLIGENCE OF ANY INDEMNITEE.
THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES
DOES NOT APPLY ARE LIABILITIES (1) TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF AN INDEMNITEE OR (2) WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF AN
INDEMNITEE.
B. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE
LIMITATION IN SECTION 14A, LESSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS,
REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE,
THAT AN INDEMNITEE IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO
THE PROPERTY 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 PROPERTY AS CONTEMPLATED BY THIS LEASE SHALL NOT IN ANY WAY SUBJECT ANY INDEMNITEE TO
CLAIMS THAT ANY INDEMNITEE 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 PROPERTY.
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 BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
D. Upon written notice from any Indemnitee, Lessee agrees to assume the defense of any lawsuit or other
proceeding brought against such 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 such 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.
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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
Property or any part thereof, without, in each instance, obtaining the prior written consent of Lessor and BNSF, which
consent may be withheld in the sole and absolute discretion of Lessor and BNSF. 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.
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 Property. Lessor is hereby
authorized to post any notices or take any other action upon or with respect to the Property that is or may be permitted by
law to prevent the attachment of any such liens to the Property; 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 Lessee’s 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 interests of Lessor and BNSF the insurance shall not be
invalidated by any action or inaction of Lessee or any other person and shall insure the respective
interests of Lessor and BNSF 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 Lessor and BNSF as the loss payee as its
interests may appear.
¨ Include a waiver of subrogation in favor of Lessor and BNSF.
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.
Coverage must be purchased on a post 1998 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
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This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance:
¨ The employee and workers compensation related exclusions in the above policy shall not apply
with respect to claims related to railroad employees.
¨ 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.
¨ Any exclusions related to the explosion, collapse and underground hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
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
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.
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 Lessor and BNSF for all claims and suits against Lessor and
BNSF. In addition, its insurers, through the terms of the policy or through policy endorsement, waive their right of
subrogation against the Lessor and BNSF 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 the Lessor and BNSF for loss of its owned or leased property or property under Lessee's care, custody or control.
Lessee’s insurance policies through policy endorsement must include wording that states that the policy shall be
primary and non-contributing with respect to any insurance carried by any Indemnitee. The certificate of insurance must
reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall
include a severability of interest endorsement and shall name the Lessor and BNSF as additional insureds with respect to
work performed under this Lease. Severability of interest and naming the Lessor and BNSF as additional insureds shall
be indicated on the certificate of insurance.
Lessee is not allowed to self-insure without the prior written consent of Lessor and BNSF. If granted by Lessor
and BNSF, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by
Lessee in lieu of insurance. Any and all liabilities of the Lessor and BNSF 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 Property, Lessee shall furnish to Lessor an acceptable certificate(s) of insurance including
an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments
and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the
insurance company(ies) issuing such policy(ies) to notify Lessor in writing at least 30 days prior to any cancellation, non-
renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance.
Upon request from Lessor, a certified duplicate original of any required policy shall be furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to Lessor 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 Property is
located.
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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, Lessor and BNSF 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 Lessor and BNSF as additional insureds, and shall require
that the contractor shall release, defend and indemnify the Lessor and BNSF to the same extent and under the same
terms and conditions as Lessee is required to release, defend and indemnify the Lessor and BNSF herein.
Failure to provide evidence as required by this section shall entitle, but not require, Lessor 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 the Lessor and BNSF shall not be limited by the amount of the required insurance coverage.
For purposes of this section, BNSF 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 BNSF which may be appurtenant to the Property. All right, title, and interest in and to such water is
expressly reserved unto BNSF, and the right to use same or any part thereof may be obtained only by the prior written
consent of the BNSF. Lessee shall not use, install or permit to be installed or used any wells on the Property without the
prior written consent of BNSF.
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 Property 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 Property 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 Property 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 Property or any part thereof and repossess
the same without terminating the Lease and, without obligations to do so relet the Property or any part thereof as
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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 Property 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.
C. In the event of a default by Lessee, Lessor shall be allowed to recover one hundred percent (100%) of
its costs or outstanding amounts owed, including any amount received by a collection agency in connection with
pursuing any unpaid portion of rent or other amounts due under this Lease on Lessor’s behalf.
Section 20. Termination.
Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall
relinquish possession of the Property and shall remove any Lessee Improvements, and restore the Property 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 Property,
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 Property 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 Property to Lessor upon any termination of this Lease, and Lessor and BNSF do
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 Property is damaged or destroyed by fire or other casualty, then
Lessor may terminate this Lease or repair and reconstruct the Property to substantially the same condition in which the
Property 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 Property and
removable by Lessee under the provisions of this Lease.
Section 25. Eminent Domain.
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If any part of the Property 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 Property taken
by eminent domain, and Lessor shall repair any damage to the Property 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.
Section 26. Representations.
Neither Lessor nor Lessor's agents have made any representations or promises with respect to the Property
except as herein expressly set forth.
Section 27. Signs.
No signs are to be placed on the Property 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 or BNSF's consent or approval is required, such consent or approval shall be in
their sole and absolute discretion. If Lessor and BNSF delay or refuse 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 or BNSF 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 substantive laws of the state in which the Property is located.
Section 32. No Waiver.
One or more waivers of any covenant, term, or condition of this Lease by Lessor or BNSF shall not be construed
as a waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by Lessor or BNSF
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 Majeure.
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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 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 Property and supersedes any and all other agreements between the parties hereto relating to lease of the
Property. 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
herein above or 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 herein above or 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
herein above or 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, at the address shown above.
If to Lessor, at the address shown above.
If to BNSF:
BNSF Railway Company
Jones Lange LaSalle Brokerage, Inc., Its Attorney in Fact
4200 Buckingham Road, Suite 110
Ft. Worth, TX 76155
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 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
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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 Property, 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 Property (including Lessor's personalty), irrespective of whether Lessor contests the same. However, if the
Property is separately assessed by the applicable taxing authority as a result of this Lease, the Lessee may, at its own
cost and upon written consent of Lessor, contest the assessed value of the Property.
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 set forth above.
LESSOR
Montana Rail Link, Inc., a Montana corporation
By:
Joe Gentri, Manager Real Estate
LESSEE
City of Bozeman
By:
Printed Name:
Title:
BNSF's execution in the space provided below evidences BNSF's consent to this Lease. This Lease is not valid and shall
have no force and effect without BNSF's signature.
BNSF
BNSF Railway Company
By:
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Jeff Mihelich
City Manager
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EXHIBIT "B"
WORK LETTER AGREEMENT
THIS WORK LETTER AGREEMENT (the "Agreement") supplements that certain Indefinite Term Lease For
Land ("Lease") dated ___________, _____ by and between MONTANA RAIL LINK, INC., a Montana 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 Property ("Work"), Lessee agrees to and
accepts the following:
1. Prior to performing any Work, Lessee shall obtain Lessor's and BNSF'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 and BNSF.
2. Prior to commencing any Work, Lessee shall submit for Lessor's and BNSF'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 and BNSF.
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 BNSF 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 and BNSF prior to commencement of any construction.
7. Lessee shall furnish Lessor and BNSF, for Lessor's and BNSF's approval, a copy of its schedule of the
Work. Lessee shall perform the Work in accordance with the schedule approved by Lessor and BNSF, and any changes
in such schedule must be approved by Lessor and BNSF in writing in advance.
8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of 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 and BNSF may, in Lessor's and BNSF's sole discretion, permit Lessee and
Lessee's Contractors to enter the Property prior to the Commencement Date in order to commence Work; provided,
however, that Lessee agrees that such early entry or occupation of the Property 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.
9. During construction, Lessor and BNSF reserves the right to inspect the Work at any time upon reasonable
notice to Lessee.
10. Lessee's Contractors shall keep the Property 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.
DocuSign Envelope ID: 74A2B73C-0FBA-46E8-BCC6-EB4123ADF4F2
Indefinite Term Lease – Land MRL Form 405 February 2015 Page 17
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 Property, Lessee shall indemnify, defend and hold
harmless Lessor and BNSF 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 or BNSF to Lessee of the filing
thereof.
13. Lessee must obtain Lessor's and BNSF's reasonable approval that the Work has been completed in
substantial accordance with the approved plans and specifications. Lessor and BNSF 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 and BNSF.
IN WITNESS WHEREOF, the parties hereto have executed this Work Letter Agreement to be effective as of the
date first set forth above.
LESSOR:
Montana Rail Link, Inc., a Montana corporation
By:
Name:
Title:
LESSEE:
By:
Name:
Title:
BNSF's execution in the space provided below evidences BNSF's consent to this Work Letter Agreement. This Work
Letter Agreement is not valid and shall have no force and effect without BNSF's signature.
BNSF
BNSF Railway Company, a Delaware corporation
By:
Name:
Title:
DocuSign Envelope ID: 74A2B73C-0FBA-46E8-BCC6-EB4123ADF4F2
P.C. 7487+94.5P.T. 7485+01.4P.C. 7479+98.1At Permittee's Expense May Be Required.
Railroad Right of Way. A Railroad Flagger
Working Days Before Starting Work On
(406) 570-5993, At Least Five (5)
Notify Signal Supervisor Nathan Kluck,
Permittee's Expense May Be Required.
Right of Way. A Railroad Flagger At
Days Before Starting Work On Railroad
223-3237, At Least Five (5) Working
Notify Roadmaster Chris Seymour, (406)
GALLATIN
CITY COUNTY STATE
FEB. 15, 2021
DATE
SECOND
SUBDIVISION
sheet
1" = 150'
SCALE
FOR STORM DRAINAGE PURPOSES
PLAT SHOWING LEASE AREA
FOR: CITY OF BOZEMAN
ENGINEERING DEPARTMENT
BOZEMAN MONTANA
EXHIBIT "A"
Verify scale!
on paper
one-inch (1")
This should be
ACRES), MORE OR LESS, AS DEPICTED HEREON.
TOGETHER THE TWO SUBAREAS CONTAIN 108,100 SQUARE FEET (2.482
LEASE SUBAREA #2 CONTAINS 103,700 SQUARE FEET, MORE OR LESS.
LEASE SUBAREA #1 CONTAINS 3,400 SQUARE FEET, MORE OR LESS.
DRAINAGE PURPOSES. AREA CONSISTS OF TWO LEASE SUBAREAS.
A PLAT DEPICTING AN IRREGULARLY SHAPED SITE LEASE FOR STORM
: DESCRIPTIONto Sheet 2is MatchlineSheet Border MAIN TRACK
RAILROAD RIGHT OF WAY
RAILROAD RIGHT OF WAY
200'
200'
Filepath: S:\mrleng\NWB\2nd Sub\MP 141 Lease CityofBozeman 021521_2D.dgn
Sheet 1 of 2
ORIGINAL MAIN TRACK
to Sheet 2is MatchlineSheet Border 7497+60142Subarea #1
Lease
Lease Subarea #2
UTILITY OCCUPATIONS.
CONFLICTS WITH THE EXISTING
RESPONSIBILITY TO RESOLVE ANY
AREA. IT IS THE PERMITTEE'S
THE RAILROAD RIGHT OF WAY IN THIS
HAVE UNDERGROUND FACILITIES WITHIN
NUMEROUS OTHER UTILITY COMPANIES
U.S. SPRINT AT 1-800-521-0579.
CROSS IT MUST BE OBTAINED FROM
OF THIS CABLE AND AUTHORITY TO
RIGHT OF WAY IN THIS AREA. LOCATION
OPTIC CABLE ON MONTANA RAIL LINK
HAS INSTALLED AN UNDERGROUND FIBER
U.S. SPRINT COMMUNICATIONS COMPANY
bio-retention basin
Drop structure and
access roadway
Maintenance
gate
Locked
by City of Bozeman
Culvert maintained
storm drain
channel
Open
storm drain
Open channel
(typical three locations)
Riprap at culvert MRL CULV. 141.74DIA. C.I.P., 7483+70 42" MRL Culv. 141.74
ATTACHED THERETO
AND THE CONCRETE HEADWALLS
AND MAINTAIN CULVERT 141.74
MRL WILL CONTINUE TO OWN
: NOTE
TO SANDPOINT JCT.JCT.
JONES
TO
STA 7482+12
MP 141+3,712'
DocuSign Envelope ID: 74A2B73C-0FBA-46E8-BCC6-EB4123ADF4F2
P.T. 7493+69.1Verify scale!
on paper
one-inch (1")
This should be to Sheet 1is MatchlineSheet Border MAIN TRACK
RAILROAD RIGHT OF WAY
RAILROAD RIGHT OF WAY
H
IGHWAY
EASEMENTHI
GHWAY
E
AS
E
ME
NT7497+6014 2
GALLATIN
CITY COUNTY STATE
FEB. 15, 2021
DATE
SECOND
SUBDIVISION
sheet
1" = 150'
SCALE
FOR STORM DRAINAGE PURPOSES
PLAT SHOWING LEASE AREA
FOR: CITY OF BOZEMAN
ENGINEERING DEPARTMENT
BOZEMAN MONTANA
EXHIBIT "A"
Sheet 2 of 2
Filepath: S:\mrleng\NWB\2nd Sub\MP 141 Lease CityofBozeman 021521_2D.dgn
ORIGINAL MAIN TRACK
to Sheet 1is MatchlineSheet Border Permittee's Expense May Be Required.
Right of Way. A Railroad Flagger At
Days Before Starting Work On Railroad
223-3237, At Least Five (5) Working
Notify Roadmaster Chris Seymour, (406)
At Permittee's Expense May Be Required.
Railroad Right of Way. A Railroad Flagger
Working Days Before Starting Work On
(406) 570-5993, At Least Five (5)
Notify Signal Supervisor Nathan Kluck,
Lease Subarea #2
UTILITY OCCUPATIONS.
CONFLICTS WITH THE EXISTING
RESPONSIBILITY TO RESOLVE ANY
AREA. IT IS THE PERMITTEE'S
THE RAILROAD RIGHT OF WAY IN THIS
HAVE UNDERGROUND FACILITIES WITHIN
NUMEROUS OTHER UTILITY COMPANIES
U.S. SPRINT AT 1-800-521-0579.
CROSS IT MUST BE OBTAINED FROM
OF THIS CABLE AND AUTHORITY TO
RIGHT OF WAY IN THIS AREA. LOCATION
OPTIC CABLE ON MONTANA RAIL LINK
HAS INSTALLED AN UNDERGROUND FIBER
U.S. SPRINT COMMUNICATIONS COMPANY
railroad right of way
continues outside the
Storm drainage system
bio-retention basin
Drop structure and
storm drain
Open channel
TO SANDPOINT JCT.
JCT.
JONES
TO
STA 7500+76
MP 142+0316'
DocuSign Envelope ID: 74A2B73C-0FBA-46E8-BCC6-EB4123ADF4F2