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HomeMy WebLinkAbout08- Exercise of Option to Renew Lease No. 500,539 with Montana Rail Link`~~ RA%L L/NK February 2g, 200$ Attn Mayor City of Bozeman Ott E. Main St. Bozeman, MT 59715 RE: Exercise of Option to Renew Lease No. 500,539 Uear Mr. Mayor: MONTANA RAIL LINK, INC. PROPERTY MANAGEMENT DIVISION 101 INTERNATIONAL WAY POST OFFICE BOX 16630 MISSOULA, MONTANA 59808 (800) 241-5676 (406) 523-1300 (406) 523-1324 FAX Montana Rail Link, Inc. (MRL) has prepared an Exercise of Option to Renew Agreement. The purpose of this Agreement is to renew the City of Bozeman's lease for five (5) years. The rental rate and fee for this agreement have been waived. Please ensure that all provisions of the Agreement are read and understood. Then please sign all copies of the Agreement and forward all signed copies of the Agreement to the Property Management Division at the address shown above. Also, please provide our office with valid insurance certificate(s) as provided in the Lease Agreement. The certificate(s) must meet the requirements shown on the enclosed insurance checklist. Failure to rovide a valid insurance certificate with the si ned co ies of the A reernent will halt the rocessin of this A reement. Thisrs not a binding Agreement until all parties to the contract have signed it and your lease interest in the premises is not renewed according to the Agreement until you have received the Agreement signed by all parties to the contract. Thank you in advance for your attention and cooperation regarding this matter. If you have any questions, please contact me at 406/523-1314 or 1.$00.241.566. Assistant Lease Administrator Property Management Division A Washington Company Commission Memorandum REPORT TO: FROM: SUBJECT: MEETING DATE Honorable Mayor and City Commission Debbie Arkell, Director of Public Services Chris Kukulski, City Manager Exercise of Option to Renew Lease No. 500,539 with Montana Rail Link, Inc. for Story Mill Spur Bike and Pedestrian Trail March 17, 2008 CONSENT AGENDA RECOMMENDATION: Authorize City Manager to Sign Exercise of Option to Renew Lease No. 500,539 with Montana Rail Link, Inc. for Story Mill Spur Bike and Pedestrian Trail for a five year term. BACKGROUND: On April 1, 199$, the City Manager signed a ten year Bicycle Path/Pedestrian Walkway Term Sublease (No. 500,539) with Montana Rail Link, Inc. This spur runs from approximately Peaz Street to Bridger Canyon Road. The Agreement required the City to construct, abicycle/pedestrian trail in the Story Mill Spur area. This trail and bridge were constructed in partnership with GVLT. The lease renewal is effective for five years and will expire on March 31, 2013. FISCAL EFFECTS: The City Pazks Department maintains the trail as needed. The rental rate and fee for the agreement have been waived by MRL. ALTERNATIVES: As suggested by the City Commission. Attachments: Exercise of Option to Renew Lease No. 500,539 Report compiled on 3/7/0$ CERTIFICATE OF COVERAGE IS5UEpATE(MM/pp/YY) March 26, 200$ POOLhD RISK RETENTION GROUP THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY MONTANA MUNICIPAL INSURANCE AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AUTI-IORiTY AFFORDED BY TWE MEMORANpUM OF COVERAGE. PO BOX 6669 HELENA, MT 59604-6669 (406) 443-0907 COMPANIES AFFORDING COVERAGE NY A Montana Municipal Insurance Authority ~~~ ___ CDVEREp PARTY ~_ ~~~ ~~~_~ ~ ~. LETTER Cit of Bozeman y COMPANY B - ~ ---- LETTER "..` -___~.„_._ PO Box 1230 -_ _.__..-~.,..,„..,...___ ,.. COMPANY C LETTER _ ~u~ _---_~..~. ~~m Bozeman MT 59771-1230 . ~..,_,..„.,__ _~___.._._ COMPANY D LETTER COMPANY E __-.-....~.__~___..T_-.__~~_ ._.~_ LETTER ..._._..~ . _.._. ~` COVERAGES THIS IS TD CERTIFY THAT A MEMORANDUM pF COVERAGE HAS BEEN ISSUED TO THE COVERED PARTY NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHS7ANpING ANY REpUIREMENT, TERM OR CONDITION OF ANV CONTRACT pR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE COVERAGE AFFORDED BY THE MEMORANDUM IS SUBJECT TO ALL THE TERMS, EXGLUSION5 AND CONDITIONS OF SUCH MEMORANDUM. LIMITS SHOWN MAY HAVE t3EEN REDUCED BY PgID CLAIMS. CO I TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE _ ____ POLICY EXPIRATION LIMITS LTR DATE MMIDD/YY ATE MM1DplYY GEN ERAL LIABILITY I GENERAL AGGREGATE COMMERCIAL GENERAL PRODUCTS-COMPIOP I LIABILITY ~ AGG. __ ~ CLAIMS i X I OCCUR i _ _ PERSONAL & AUV, ~ _ _ _.._.....___ 750,000 ~ MADE INJURY_ pWNER'S & CONTRACTOR'S I - EACH OCCURRENCE 1 500 000 PROT. _ ___ ~mm , , A I X Public Entity LiBbilily 1017 RP July 1, 2007 ~ July 1, 2008 FIRE DAMAGE (Any one ~_ _ r _ _ ____ _ ~. _ Mire ~ _ w u A X ProfesSipnalLia6ilily ~ 1017RP July 1, 2007 July 1, 2008 MED. EXPENSE (Any one erson I ~~~~ AUT OMOBILE LIABILITY i I PROPERTY DAMAGE I4 ANY AU70 ~ (Per Person) 750,000 A %~ ALLOWNEpAUTOS I 1017RP JUIy 1, 2007 JUIy 1, 2008 PROPERTY DAMAGE SCHEDULED AUTOS ~ I i (Per Occurrence) 1 500 000 _ i HIRED AUTOS BODILY INJURY µ , , -_.~ _ NON-OWNED AUTOS (Per person) 750,000 GARAGE LIABILITY BODILY INJNURY ~~~~-~~ (Per Occurrence) 1,500,000 EXCESS LIABILITY I EACH OCCURRENCE ~ 11,000,000 A I ~ X UMBRELLAPORM GEM-0002-A08001 Jan 1, 2008 July 1, 2008 For coverages not subject to the limitations an governmental liability for damages in tort under Montana Law Sec. 2-9-108, MCA. i STATUTORY LIMITS X I { A i WORKER'S COMPENSATION 1017WC July 1, 2007 I July 1, 2008 EACH ACCIDENT I ANp j __ pISEASE-POLICY LIMIT EMPLOYER'S LIABILITY r DISEASE-EACH EMPLOYEE OTHER pESCRIPTION OF OPERATIONS/LOCATIONSNEHIGLESlSPECIAL I7EM5 Certificate of Liability Policy does not exclude work within 50 feet of railroad property. BNSF and Stabauch Global Leasing are named as additional insured subject to the terms and conditions of endorsement to the MMIA Memorandum of Liabilit Covera e. Endorsement #FY08-1017-1 CERTIFICATE WOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE 117: 500.539 EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL Theresa BeCkWltll 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. Montana Rail Link PO Box 16630 l / - Missoula MT 59808 ! AUTHOR ED REP ESENTA E \\fs 1 \pata\Office Files\vwilha m\Certificates\FY2007-2008Certs\CertbfLia bilityBNS F07-08MergeForm.doc EXERCISE OF OPTION TO RENEW LEASE NO. 50D,539 02BOZEMAN THIS EXERCISE OF OPTION TO RENEW ("Renewal Agreement") is dated as of the 29th day of February, 2008 (the "Effective Date") between MONTANA RAIL LINK, INC., a Montana corporation ("Lessor"), whose mailing address is Property Management Division, PO Box 16630, Missoula, MT 5980&6630 and physical address is 101 International Way, Missoula, MT 59808 and the City, of Bozeman, ("Lessee"), whose address is 411 East Main Street Bozeman, MT 59715 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 Premises described below which Lessee desires to further lease from Lessor. B. Lessee and Lessor entered into a Definite Term Lease Agreement for Land ("Lease") on AA ril~1,~, C. By the terms and provisions of the Lease, Lessor leases to Lessee and Lessee leases from Lessor that certain property located at City of Bozeman, County of Gallatin, State of Montana, Mile Post 0+3678, Survey Station 36+78, as more particularly described in the Lease ("Premises"). D. The current Term of the Lease for the Premises commenced on April 1. ,1998 and will expire on March 31.2008. E. The Lease contains an option to renew ("Option") pursuant to the Addendum For Renewal Option attached to the Lease. The renewal period shall commence on AA ril~1~$ and expire on March 31 2013. F. Lessee desires to exercise the Option and Lessor and Lessee desire to extend the Term of the Lease pursuant to the terms set forth below in this Renewal Agreement. AGREEMENTS NOW, THEREFORE, in consideration of the mutual covenants, premises, and agreements contained in this Renewal Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Lessee hereby exercises the Option, and Lessor and Lessee hereby extend the Term of the Lease for a period of five. (5) years (the "Extended Term") under the same terms and conditions set forth in the Lease except as otherwise provided herein. The Extended Term will commence on A ril. P 1 ,2008 and shall expire on March 31 2013. During the Extended Term, Rent shall be at an annual rate of zero dollars ( 0.00). 4. Rent for the Extended Term shall be adjusted as provided in the Lease. 5. This Renewal Agreement and the Lease are subject and subordinate to the Master Lease. BNSF by its signature below acknowledges Lessee's rights under the Lease, if, prior to the termination of the Lease, or to the expiration of the term of the Lease, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters and repossesses the Premises after a default by Lessor under the Master Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease, Lessee agrees that (i) BNSF shall not be liable or responsible for any breach of or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessee as the "Lessor" under the Lease; (ii) BNSF shall not be required to cure or correct any breach or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease; and (iii) no breach of or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease shall excuse, delay, release or relieve Lessee from the payment and performance of all of Lessee's duties and obligations under the 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 the 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 the Lease and timely tender payment Exercise of Option to Renew MRl_ Form 414 Page 1 of 7 and performance of Lessee's duties and obligations under the Lease to BNSF as if BNSF were named as "Lessor" in the Lease. 6. Lessee agrees that Lessor has complied fully and completely with all of Lessor's obligations under the Lease with the result that Lessee is fully obligated to pay, and will pay, the rent and other charges due thereunder in accordance with the terms and provisions set forth in the Lease, and Lessee is fully obligated to perform, and is performing, all of the other obligations of Lessee under the Lease, without the right of counterclaim, offset, or defense. 7. Unless otherwise provided herein, all capitalized and/or defined terms herein shall have the same meaning given to such capitalized and/or defined terms in the Lease. 8. Except as amended hereby, or by other previous amendments signed by the parties, all of the terms and provisions of the Lease are hereby reaffirmed and remain in full force and effect. In the event there is a conflict between the terms and provisions of the Lease and the terms and provisions of this Renewal Agreement, the terms and provisions of this Renewal Agreement shall control. 9. This Renewal 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 Renewal 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. Executed by the parties to be effective as of the Effective Date set forth above. LESSOR Montana Rail Link, Inc., a Montana corporation By: John H. Crowley Authorized Agent LESSEE City Of Bozeman _ / By: Y - ~ ~ ~ printed Name: f ~ Title: BNSF's execution in the space provided below evidences BNSF's consent to this Renewal Agreement. This Renewal 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: BNSF Railway Company 2500 Lou Menk Drive, AOB-3 Fort Worth, TX 76131-288 Attn: Exercise of Option to Renew MRL Form 414 Page 2 of 2 ~~ February 29, 2008 Attn Mayor City of Bozeman 4~i E. Main St. Bozeman, MT 59715 RF,: Exercise of Option to Renew Lease No. 500,539 Dear Mr. Mayor: MONTANA RAIL LINK, INC. PROPERTY MANAGEMENT pIVISION 101 INTERNATIONAL WAY POST OFFICE 60X 16630 MISSOULA, MONTANA 598p8 (800)241.5676 (406) 523-1300 (AOfi) 523.1324 FAX Montana Rail Link, lnc. (MRL) has prepared an Exercise of Option to Renew Agreement. The purpose of this Agreement is to renew the City of Bozeman's lease for five (5) years. The rental rate and fee for this agreement have been waived. Please ensure that al] provisions of the Agreement are read and understood. Then please sign all copies of the Agreement and forward all signed copies of the Agreement to the Property Management Division at the address shown above. Also, please provide our office with valid insurance certificate(s) as provided in the Lease Agreement. The certificate(s) must meet the requirements shown on the enclosed insurance checklist. Failure tr _ prov>t e a va > insurance c . _ _ _ _ ertificate with _the signed -. r_opies of the Agreement will halt the processing of this Agreeml.ent. This is not a binding Agreement until all parties to the contract have signed it and your lease interest in the premises is not renewed according to the Agreement until you have received the Agreement signed by all parties to the contract. Thank you in advance for your attention and cooperation regarding this matter. if you have any questions, please contact meat 4o6/S2g-1314 or 7.8ao.24i.5b~6. Assistant Lease Administrator Property Management Division A WasMingcan Compeny EXERCISE OF OPTION TO RENEW LEASE NO. 500,539 02BOZEMAN THIS EXERCISE OF OPTION TO RENEW ("Renewal Agreement") is dated as of the 29~" day of February, 2008 (the "Effective Date") between MONTANA RAIL LINK, INC., a Montana corporation ("Lessor"), whose mailing address is Property Management Division, PO Box 16630, Missoula, MT 59808-6630 and physical address is 101 International Way, Missoula, MT 59808 and the Cit of Bozeman, ("Lessee"), whose address is 411 East Main Street Bozeman M 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 Premises described below which Lessee desires to further lease from Lessor. B. Lessee and Lessor entered into a Definite Term Lease Agreement for Land ("Lease") on AA ril~ggg. C. By the terms and provisions of the Lease, Lessor leases to Lessee and Lessee leases from Lessor that certain property located at City of Bozeman, County of Gallatin, State of Montana, Mile Post 0+3678, Survey Station 36+78, as more particularly described in the Lease ("Premises"), D. The current Term of the Lease for the Premises commenced on A ril 1 1998 and will expire on March 31, 2008. E. The Lease contains an option to renew ("Option") pursuant to the Addendum Far Renewal Option attached to the Lease. The renewal period shall commence on A ri1~2008 and expire on March 31_, 2013. F. Lessee desires to exercise the Option and Lessor and Lessee desire to extend the Term of the Lease pursuant to the terms set forth below in this Renewal Agreement. AGREEMENTS NOW, THEREFORE, in consideration of the mutual covenants, premises, and agreements contained in this Renewal Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Lessee hereby exercises the Option, and Lessor and Lessee hereby extend the Term of the Lease for a period of five 5 ears (the "Extended Term") under the same terms and conditions set forth in the Lease except as otherwise provided herein. 2. The Extended Term will commence on A riles 1~p8 and shall expire on March 31 2013. 3. During the Extended Term, Rent shall be at an annual rate of zero dollars ( 0.00). 4. Rent for the Extended Term shall be adjusted as provided in the Lease. 5. This Renewal Agreement and the Lease are subject and subordinate to the Master Lease. BNSF by its signature below acknowledges Lessee's rights under the Lease, if, prior to the termination of the Lease, or to the expiration of the term of the Lease, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters and repossesses the Premises after a default by Lessor under the Master Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease, Lessee agrees that (i) BNSF shall nvt be liable or responsible for any breach of or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessee as the "Lessor" under the Lease; (ii) BNSF shall not be required to cure or correct any breach or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease; and (iii) no breach of or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease shall excuse, delay, release or relieve Lessee from the payment and performance of all of Lessee's duties and obligations under the 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 the 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 the Lease and timely tender payment Exercise of Option to Renew MRL Form 414 peps 1 of ~ and performance of Lessee's duties and obligations under the Lease to BNSF as if BNSF were named as "Lessor" in the Lease. 6. Lessee agrees that Lessor has complied fully and completely with all of Lessor's obligations under the Lease with the result that Lessee is fully obligated to pay, and will pay, the rent and other charges due thereunder in accordance with the terms and provisions set forth in the Lease, and Lessee is fully obligated to perform, and is performing, all of the other obligations of Lessee under the Lease, without the right of counterclaim, offset, or defense. 7. lJnless otherwise provided herein, all capitalized and/or defined terms herein shall have the same meaning given to such capitalized and/or defined terms in the Lease. 8. Except as amended hereby, or by other previous amendments signed by the parties, all of the terms and provisions of the Lease are hereby reaffirmed and remain in full force and effect. In the event there is a conflict between the terms and provisions of the Lease and the terms and provisions of this Renewal Agreement, the terms and provisions of this Renewal Agreement shall control. 9. This Renewal 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 Renewal 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. Executed by the parties to be effective as of the Effective Date set forth above. LESSOR Montana Rail Link, Inc., a Montana corporation By: LESSEE John H. Crowley Authorized Agent Title: ~ ~r BNSF's execution in the space provided below evidences BNSF's consent to this Renewal Agreement. This Renewal 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: BNSF Railway Campany 2500 Lau Menk Drive, AOB-3 Fort Worth, TX 76131-2828 Attn: Exercise of Option to Renew MRL Form 414 Page 2 of 2 BXERCISE OF OPTION TO RENEW LEASE NO. 500,,539 02BOZEMAN THIS EXERCISE OF OPTION TO RENEW ("Renewal Agreement") is dated as of the 29t" day of February, 2008 (the "Effective Date") between MONTANA RAIL LINK, INC., a Montana corporation ("Lessor"), whose mailing address is Property Management Division, PO Box 16630, Missoula, MT 59808-6630 and physical address is 101 International Way, Missoula, MT 59808 and the City of Bozeman, ("Lessee"), whose address is 411 East Main Street Bozeman MT 59715 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 Premises described below which Lessee desires to further lease from Lessor. B. Lessee and Lessor entered into a Definite Term Lease Agreement for Land ("Lease") on April 1, 1998. C. By the terms and provisions of the Lease, Lessor leases to Lessee and Lessee leases from Lessor that certain property located at City of Bozeman, County of Gallatin, State of Montana, Mile Post 0+3678, Survey Station 36+78, as mare particularly described in the Lease ("Premises"). D. The current Term of the Lease for the Premises commenced on Aril 1, 1998 and will expire on March 31, 2008. E, The Lease contains an option to renew ("Option") pursuant to the Addendum For Renewal Option attached to the Lease. The renewal period shall commence on A rilg ,,,.,,1, 2008 and expire on March 31.2013. F. Lessee desires to exercise the Option and Lessor and Lessee desire to extend the Term of the Lease pursuant to the terms set forth below in this Renewal Agreement. AGREEMENTS NOW, THEREFORE, in consideration of the mutual covenants, premises, and agreements contained in this Renewal Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Lessee hereby exercises the Option, and Lessor and Lessee hereby extend the Term of the Lease for a period of five (5) years (the "Extended Term") under the same terms and conditions set forth in the Lease except as otherwise provided herein. 2. The Extended Term will commence on AA ril~1~,_2008 and shall expire on March 31,, 2013. 3. During the Extended Term, Rent shall be at an annual rate of zero dollars ( 0.00), 4. Rent for the Extended Term shall be adjusted as provided in the Lease. 5. This Renewal Agreement and the Lease are subject and subordinate to the Master Lease. BNSF by its signature below acknowledges Lessee's rights under the Lease, if, prior to the termination of the Lease, or to the expiration of the term of the Lease, the term of the Master Lease expires, the Master Lease is terminated or BNSF reenters and repossesses the Premises after a default by Lessor under the Master Lease. If BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease, Lessee agrees that (i) BNSF shall not be liable or responsible for any breach of or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessee as the "Lessor" under the Lease; (ii) BNSF shall not be required to cure or correct any breach or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease; and (iii) no breach of or default under the Lease arising prior to the date that BNSF succeeds to the rights of Lessor as the "Lessor" under the Lease shall excuse, delay, release or relieve Lessee from the payment and performance of all of Lessee's duties and obligations under the 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 the 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 the Lease and timely tender payment Exercise of Option to Renew MRL Form 414 Page 1 of 2 and performance of Lessee's duties and obligations under the Lease to BNSF as if BNSF were named as "Lessor" in the l,.ease. 6. Lessee agrees that Lessor has complied fully and completely with all of Lessor's obligations under the Lease with the result that Lessee is fully obligated to pay, and will pay, the rent and other charges due thereunder in accordance with the terms and provisions set forth in the Lease, and Lessee is fully obligated to perform, and is performing, all of the other obligations of Lessee under the Lease, without the right of counterclaim, offset, or defense. 7. Unless otherwise provided herein, all capitalized and/or defined terms herein shall have the same meaning given to such capitalized and/or defined terms in the Lease. 8. Except as amended hereby, or by other previous amendments signed by the parties, all of the terms and provisions of the Lease are hereby reaffirmed and remain in full force and effect. In the event there is a conflict between the terms and provisions of the Lease and the terms and provisions of this Renewal Agreement, the terms and provisions of this Renewal Agreement shall control. 9. This Renewal 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 Renewal 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. Executed by the parties to be effective as of the Effective Date set forth above. LESSOR Montana Rail Link, Inc., a Montana corporation By: LESSEE City By: John M. Crowley Authorized Agent j ~ Printed Name: ~I v J Title: ~ rT ~ ah ~ e r BNSF's execution in the space provided below evidences BNSF's consent to this Renewal Agreement. This Renewal 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: BNSF Railway Company 2500 Lou Menk Drive, AOB-3 Fort Worth, TX 76131-2$28 Attn: Exercise of pption to Renew MRL Form 414 Page 2 pf 2 `~~RA%L L%NK BICYCLE PATWlPEDESTRIAN WALKWAY TERM SUBLEASE N0. 50039 0280ZEMAN THIS AGREEMENT made this 1St day of April , 19 98 ,between MONTANA RAIL LINK, INC., a Montana corporation, whose address is Property Management Division, PO Box 8182, Missoula, Montana 59807-8182, hereinafter called "Railroad", and THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, hereinafter called "BNSF", and CITY OF BOZEMAN whose mailing address is 411 EAST MAIN STREET P.O. BOX 411 BOZEMAN, MT 59715 hereinafter called "Sublessee," In consideration of the covenants hereinafter contained to be kept and performed by Sublessee, Railroad hereby subleases to Sublessee upon the terms and conditions hereinafter set forth, the following described Premises ("Premises") located in the City of Bozeman ,County of Gallatin ,State of Montana :All that part of the Railroad's Premises at Milepost on the Sta Mill S ur between Mife ost 0+16 and Milepost 0+3678 as shown on the attached plat marked Exhibit "A," dated .Revised February 24, ,1997 and made a part hereof. Sublessee hereby subleases the Premises for a term of _ten (10) „years commencing April 1, 1998 and ending two 2 five 5 ear renewal o tions. At the end of the term Sublessee ma ne otiate another lease Special Provisions: Sublessee shall construct a bicyclelpedestrian trail subject to the following conditions: If there are increased Railroad operations on the Story Mill Spur, Railroad's Chief Engineer will require construction of a fence at the sole cost and expense of Sublessee. The fence shall be of suitable height, type and quality as determined by Railroad and shall be located between the trail and the track at a minimum distance of ten (10) feet from the centerline of the track. Railroad shall provide thirty (30) days written notice for fencing requirement. If a footbridge is required to cross waterways, the footbridge must be constructed at Sublessee's sole cost and expense. Sublessee hereby agrees to the following terms and conditions: PURPOSE: a. Sublessee shall occupy and continue to use the Premises during the term far the exclusive purpose of a bic clel edestrian trail . b. No structure shall be constructed on the Premises without the express written consent of Railroad's Property Management pivisi0n, c. Any improvements erected by Sublessee shall be maintained in good and workmanlike condition, according to standards in the applicable industry. d. Sublessee shall, within three_j,3) months of the effective date of this Sublease, begin the construction and complete within six (6) months of said date, improvements. In the event of destruction of any improvements, in whole or in part, Sublessee shall within three (3) months thereafter commence the work of repairing or rebuilding and complete the same within six 6 months after the date of said destruction. 2. RENT, TAXES, ASSESSMENTS AND UTILITIES: a. In consideration of the parties' mutual covenants, Lessor has agreed that Sublessee shall pay as rental for the Premises the sum of One Dollar ($1.00) only for purposes of providing consideration far the grant of the Sublease hereunder. The rental for any option renewal term shall similarly be One Dollar ($1.00) for each term. Railroad has granted the Sublease herein for the benefit of Sublessee and the public in part for the recreational benefits to be derived from use of Railroad's property under the Sublease. Both parties acknowledge that the public's use of Railroad's property will provide a recreational benefit and is therefore a "recreational purpose" as that term is defined in Section 70-16-301, M.C.A. MRL 1 1 D/97 b. Sublessee shall pay all taxes, utilities and other charges which may become due or be levied against the Premises, against Sublessee, against any business conducted on the Premises or against improvements placed thereon during the term hereof, even though the taxes, license fees or other charges may not become due and payable until after termination of this Sublease, If Railroad should make any such payments, Sublessee shall reimburse Railroad for all payments. c. If the Premises are subject to special assessments for public improvements, the rental shall be increased by one hundred percent (100%) per year of the total assessment amount related to the subleased Premises under this agreement. d. In case of nonpayment of rental, taxes, or other charges, the same shall, until paid, constitute a lien on any improvements nr other property owned by Sublessee on the Premises, foreclosable according to law. Sublessee shall not remove any improvement or property until the rental, taxes, or other charges are paid, unless directed to do so by Railroad, e. Sublessee shall pay all charges for the use on the Premises of water, heat, gas, electricity, telephone, and any other utility services and shall save harmless Railroad, the Premises and the improvements thereon from any and all liens attaching thereto by reason of nonpayment of any such charges. 3. RESTRICTIONS: a. Sublessee shall not place or permit to be placed any advertising matter upon any part of the Premises or upon any improvements thereon except what is necessary to advertise Sublessee's own business or for activities and public announcements. Also, no structure shall be placed under any circumstances within fifty (50) feet of a crossing, measured from the outermost track and from the shoulder of the road. Sublessee shall insure that no visual obstruction exists on the Premises during the term of the Sublease which interferes with the view of any grade crossing that is located on or adjacent to the subleased Premises. b. Sublessee shall not nor shall Sublessee foster, sanction or permit others to operate any equipment, motor driven or otherwise, for the purpose of serving Sublessee, upon or across any railroad track located on or adjacent to the demised Premises except at established crossings. c. Sublessee shall not permit the existence of any nuisance on the Premises; shall keep the same in clean and safe condition and free of any explosive, flammable or combustible material which would increase the risk of fire, except such material necessary to 5ublessee's business; shall not handle or store any dangerous or toxic materials; nor permit the accumulation of junk, debris or other unsightly materials, Sublessee shall at its sole expense keep the Premises and any improvements in good repair. Further, Sublessee shall comply with all federal, state, local, and police requirements, regulations, ordinances and laws respecting the Premises and activities thereon, d. Sublessee shall use the Premises only in the manner described in Section 1 hereof, and shall not construct or place on the Premises any advertising billboards, structures, additions, or improvements not described herein, or plant or remove trees and shrubbery, except with express written permission of Railroad, and at Sublessee's sole risk and expense. However, Sublessee shall be required to remove all noxious weeds pursuant to the laws of the state where the Premises are located. FIRE PROTECTION: If Sublessee constructs any improvements, it shall be solely responsible for fire protection and all risks associated with such improvements. 5. ASSUMPTION OF LIABILITIES: It is understood by Sublessee that the Premises are in dangerous proximity to railroad tracks and that persons and property on the Premises may be in danger of injury or death and Sublessee accepts this Sublease subject to such dangers. Sublessee releases Lessor from any claim, liability, cost or damage arising out of the Sublessee's possession or use of the Premises. b. Asa material consideration of this Sublease, without which it would not be granted, Sublessee agrees, to the fullest extent provided by law, to defend, indemnify and hold Railroad, and BNSF, harmless from and against any liability, claim, cost or damage on account of personal injury to or death of any persons whomsoever, or damage to or destruction of property to whomsoever belonging, caused by or contributed to Sublessee's occupation of the property during the term of this agreement. Nothing herein obligates Sublessee to indemnify Railroad for any such personal injury, death or property damage that is the result of Railroad's negligent acts or willful misconduct. c. Sublessee shall not create or permit any condition on the Premises that could present a threat to human health or to the environment. Sublessee shall release, defend, indemnify and hold harmless Railroad and BNSF from and against any suit, cause of action, claim, cost or obligation with respect to any damages alleged to have been caused, in whole or in part, by an unhealthful, hazardous or dangerous condition caused by, contributed to, or aggravated by Sublessee's presence on and use of the Premises or Sublessee's violation of any laws, ordinances, regulations or requirements pertaining to solid or other wastes, weeds, chemicals, oil and gas, toxic, corrosive, or hazardous materials, air, water (surface or groundwater) or noise MRL 1 10197 pollution, and the storage, handling, use or disposal of any such material. Sublessee shall bear the expense of all practices or work, preventative or remedial, which may be required because of Sublessee's use of the Premises or those claiming by, through or under Sublessee, during Sublessee's term of occupancy, Sublessee shall also give Railroad timely notice of all measures undertaken by or on behalf of Sublessee to investigate, remediate, respond to or otherwise cure such release or violation. If Railroad receives notice from Sublessee or otherwise of a release or violation of environmental laws which occurred or is occurring during the term of this Sublease, Railroad may require Sublessee, at Sublessee's sole expense, to take timely measures to investigate, remediate, respond to, or otherwise cure such release or violation regardless of the nature or cause of the release or violation. Sublessee expressly agrees that the indemnification and hold harmless obligations it hereby assumes shall survive termination of this Sublease, and that statutory limitation terms on actions to enforce these obligations shall not be deemed to commence until Railroad discovers any such health or environmental impairment, and Sublessee hereby knowingly and voluntarily waives the benefits of any shorter limitation term. d. The obligations of Sublessee to release, defend, indemnify, and hold harmless Railroad and BNSF shall apply to any suit, cause of action, claim, cost or obligation including, without limitation, those alleged under the common law or pursuant to a federal or state statute or regulation such as those arising in tort, trespass, nuisance, and strict liability, and those asserted pursuant to the Resource Conservation and Recovery Act, 42 USC § 6901 et sey., the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC § 9601 et sec ., the Clean Water Act, 33 USC §§ 1251 et seg., and any other applicable state and federal law. Each as hereafter amended. 6. EQUAL PRDTECTIDN: It is agreed that the provisions of this Agreement are for the equal protection of other railroad companies, including National Railroad Passenger Corporation (AMTRAK), permitted to use Railroad's property. DEFAULT: If Sublessee shall default on any covenant or agreement herein assumed, and such default shall not be remedied or corrected within 60 (sixty) days after written notice by Railroad to Sublessee of such default, this Sublease shall terminate without further notice. Any waiver by Railroad of any default shall not be construed as a waiver of any subsequent default. While such default continues Sublessee shall not remove from said Premises any improvement or other property owned by Sublessee unless directed to do so by Railroad, and shall remain subject to all terms and conditions contained herein. 8. TERMINATION DR CANCELLATION: a. If Railroad shall require the Premises for railroad purposes at any time during the term of this Sublease, it may terminate this Sublease upon written notice of not less than one year. In case of such termination, Railroad shall purchase any improvement(s) owned by Sublessee on the Premises, but shall not purchase equipment or movable fixtures or any of the contents thereof which are capable of being removed without damage to the improvement(s), Railroad is not required to compensate Sublessee for any sod, landscaping or similar improvements. If Railroad purchases any other improvements, the price will be based upon their original cost, reduced by the percentage of the term of this Sublease during which Sublessee was in possession of the Premises. Sublessee may also claim any improvements made by Sublessee and shall remove them within ninety (90) days from the date written notice of termination is given by Railroad so long as the Premises are restored to condition satisfactory to Railroad. b. If this Sublease is terminated far any reason, Sublessee, before the termination date fixed in the notice, shall remove all Sublessee's personal property and any other removable fixtures and improvements (regardless of who made them), unless directed otherwise by Railroad. Rent and taxes shall be paid by Sublessee until a final inspection has been made by Railroad approving the condition of the Premises. If Sublessee fails to remove Sublessee's personal property and any other existing removable fixtures and improvements as requested by Railroad, Sublessee hereby grants Railroad the right to remove such property at the sole cost and expense of Sublessee. Railroad shall also have the right to keep, convey, destroy or otherwise dispose of the property described in this paragraph, in any way Railroad chooses. Sublessee agrees to pay any net costs incurred by Railroad in so doing, c. Except as otherwise provided in Sections 2d and 7 hereof, before the Sublease expires, Sublessee shall, at its own sole cost and expense, remove and cause to be removed all buildings, structures, foundations, footings, materials, signs or signboards, debris or other articles or facilities owned or used by Sublessee or placed on, above or below the surface of the Premises by Sublessee or by any person, firm or corporation, or former Sublessee. Sublessee agrees to restore and level the Premises to a condition satisfactory to Railroad. It is expressly understood by Sublessee that until such time as the Premises are surrendered to Railroad free and clear of all buildings, structures, foundations, footings, materials, signs or signboards, debris or other articles or facilities not belonging to Railroad, and the Premises are restored to a neat and orderly condition satisfactory to Railroad, Sublessee shall be liable to Railroad for rental, including taxes, under this Sublease. Sublessee shall also be liable to Railroad for any and all losses and/or damages which Railroad may sustain or become liable for, resulting from the failure of Sublessee to restore the Premises to a neat and orderly condition satisfactory to Railroad. Railroad may at its own sole discretion dispose of any such property or improvements as provided in Section 8(b) above. MRL 3 10197 ASSIGNMENT OF SUBLEASE: a. Without the prior written consent of Railroad and BNSF, Sublessee shall not assign or sublet this Sublease or any interest therein, or grant a security interest in any buildings or improvements on the Premises, and no heir, personal representative, administrator, receiver, master, sheriff, trustee in bankruptcy, or other assignee by operation of law shall assign or sublet without such written consent. b. If this Sublease is assigned, Railroad will credit all unearned rental hereunder to the assignee, unless advised otherwise. Any other disposition of unearned rental will be made by Railroad only upon the joint written request of Sublessee and Sublessee's assignee at the time the assignment is submitted to Railroad for its consent. 10, LIENS AND OTHER CHARGES: If, because of any act or omission of Sublessee, any mechanic's lien or other lien, charge or order for the payment of money shall be filed against Railroad or BNSF or any portion of the Premises, Sublessee shall, at its own cost and expense, cause the same to be discharged of record within thirty (30) days after written notice from Railroad, to Sublessee of the filing thereof; and Sublessee shall indemnify and save harmless Railroad and BNSF against and from all costs, liabilities, suits, penalties, claims and demands, including legal fees and court costs, resulting therefrom. 11. RESERVATIONS BY RAILROAf): a. Nothing herein contained shall imply or import a covenant of quiet enjoyment or imply any warranty of title for peaceable possession. Railroad will not defend Sublessee in the peaceable possession or use thereof. b. Nothing in this Sublease shall prevent Railroad or BNSF from discontinuing service over any railroad line or lines by which rail service may be provided to the Premises. c. Sublessee accepts the Premises subject to any and all existing permits, licenses, leases, easements, railroad facilities, pipelines, telephone, telegraph, communication, power and signal lines or any other similar facilities, together with any future installations thereof provided such future installations do not unreasonably interfere with Sublessee's use of the subleased Premises. d. Railroad reserves the right at any time to change the grade of its tracks without compensation to Sublessee, and, if a change is made, or the grade of any highway in proximity to the Premises is changed, Sublessee shall bear all expense necessary to adapt the Premises and improvements thereon to the changed conditions. e. Railroad reserves to itself, and others, the right of access to its adjoining property and the right to construct, maintain, and operate trackage, fences, pipelines, signal and communication facilities, telegraph, telephone, power, or other transmission lines upon, over, across, or beneath the Premises, without payment of any sum for any damage, including damage to growing crops, occasioned thereby. The foregoing rights, (except the right of access, which is unconditional), shall not be exercised in a manner that unreasonably interferes with Sublessee's use of the Premises. f. Railroad shall have the right to remove trees, shrubbery or any other type of vegetation located on the subleased Premises that may interfere with the operation of the Railroad. Railroad shall also have the right to remove or relocate, or request the Sublessee to remove or relocate, any fences on the subleased property. Any removal or relocation of any type shall be at the sole cost of the Sublessee. g. Railroad and BNSF reserve the right to use its property in any manner not inconsistent with this Sublease herein made, including, but not limited to, the right to cross under or over the Premises as the case may be, at any point for the purpose of constructing or maintaining tracks, roads or roadways and the right to permit other uses not in conflict with this Sublease. 12. INSPECTION: Sublessee acknowledges that Sublessee has made an inspection of the Premises prior to the execution of this agreement. Sublessee further agrees to take the Premises "AS IS, WHERE IS" and "WITH ALL FAULTS". Railroad is not obligated by this Sublease to make any changes, removals, or repairs of any kind nor to construct any fences. 13. REISSUE: If this Sublease is a reissue of an existing agreement(s) held by Sublessee, it shall supersede and cancel the previous sublease or subleases, without prejudice to any liability accrued prior to cancellation. 14. NOTICE REQUIREMENT: All notices hereunder to be given by Railroad to Sublessee may be given by letter from Railroad or its agents or attorney and forwarded by Certified Mail, Return Receipt Requested, postage prepaid, addressed to Sublessee at Sublessee's mailing address above stated or at such address as Sublessee may later give Railroad in writing. All notices hereunder to be given by Sublessee to Railroad may be given by letter from Sublessee or Sublessee's agent or attorney and forwarded by Certified Mail, Return Receipt Requested, postage prepaid, addressed to Railroad's Property Management pivision, Box $182, Missoula, Montana, 59$07-8182. MRL 4 10/97 15. INSURANCE COVERAGE must be provided as follows: a. Sublessee agrees to obtain, to keep in force and effect, and to pay premiums on worker's compensation insurance for those of its employees who are concerned in any way with Sublessee's performance under this Sublease. Sublessee shall furnish Railroad with adequate evidence of its self-insurance coverage, upon Railroad's request, in advance of construction or maintenance activities undertaken by Sublessee on the premises Prior to the performance of any construction or maintenance on the premises (other than routine maintenance such as lawn mowing, snow removal, fence maintenance, and garbage collection, and the like), Sublessee shall notify Railroad in writing of its intention to enter the Premises for construction and maintenance purposes. No construction or maintenance activities other than routine maintenance shall be undertaken by Sublessee, or any contractor on its behalf, without prior written approval of Railroad. If construction or maintenance activity is undertaken by personnel of the Sublessee , no additional insurance shall be required by Railroad. If construction or maintenance is undertaken by contractors retained by the Sublessee, Railroad shall have the right in its reasonable discretion to disapprove of any contractor selected by the Sublessee; and Railroad shall have the right to require any contractor to provide evidence of Railroad Protective Liability Insurance, in such farm and amounts as Railroad determines in its discretion. Sublessee, and other workers, may not enter non-leased railroad property except by written permission of Railroad d. Any party performing any work related to this Sublease shall have a copy of the Sublease at the designated job site. 16. SVIVAL: All of the indemnities, assumption of liabilities and obligations of Sublessee hereunder, including those under Section 5 and 1 shall survive any termination of this Sublease, 17. ENVIRONMENTAL REQUIREMENTS: a. Sublessee covenants, agrees, and represents that it will not use or dispose of toxic or hazardous wastes on the premises, b. Sublessee covenants and agrees to obey all local, state, and federal laws, regulations and ordinances. Sublessee agrees to notify Railroad and/or BNSF of any violation or breach of any such law, regulation or ordinance which relates in any way to toxic or hazardous wastes and/or materials or any other environmentally detrimental substance. c. Sublessee agrees to respond to and participate in any environmental clean-up action required on this property, caused or contributed to by Sublessee's acts or occupation of this property. Further, Sublessee will respond and participate in any environmental clean-up actions as above described whether or not Sublessee is presently occupying this property. d. Sublessee agrees that in addition to all other indemnification provisions in the Sublease, Sublessee accepts all responsibility for environmental damage created on the Premises by Sublessee or caused by buildings or improvements owned or controlled by Sublessee on the Premises during this Sublease and will indemnify and protect Railroad and BNSF from all cost related to such environmental damage. This provision and all other indemnification provisions are to remain in effect after the termination of this Sublease. 18. ATTORNEY FEES: If either party takes legal action to enforce any terms of this agreement, the prevailing party shall be entitled to recover its reasonable attorney fees and all costs associated with the action. 19. WATER RIGHTS: This Sublease does not grant, convey, or transfer any right to the use of water under any water right owned or claimed by the Sublessor which may be appurtenant to or otherwise associated with the Premises. All right, title and interest in and to such water is expressly reserved unto Sublessor, its successors and assigns. The right to use the same or any part thereof may be obtained only by the prior written consent of the Sublessor. 20. MISCELLANEpUS PROVISIONS: a. The parties warrant and represent that the party signing this agreement on behalf of each has authority to enter into this agreement and to themselves be bound respectively, to the terms, covenants and conditions contained herein. Each party shall deliver to the other, upon request, all documents reasonably requested by the other evidencing such authority, including a copy of any corporate or partnership resolutions, consents or minutes reflecting the authority of persons or parties to enter into agreements on behalf of such party. b. All questions regarding the interpretation or application of provisions of this Sublease shall be decided by a court of competent jurisdiction and according to the laws of the State where the property is located. c. If any term or provision of this agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this agreement or the application of such term or provision to persons or MRL 5 10x97 circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision shall be valid and be enforced to the fullest extent permitted by law. A waiver of any right to enforce any provision of this Sublease in one instance shall not be deemed to be a waiver of any future right to enforce any provision hereof. Subject to the foregoing provisions, this Sublease and all the covenants and promises thereof shall inure to the benefit of and be binding upon the parties and their personal representatives, administrators, successors and assigns. In addition to, and not in exclusion of, other provisions of this Sublease, Railroad holds BNSF harmless from liability occurring as a result of Railroad's provision of rail freight service over the property described herein. Sublessee holds BNSF and Railroad harmless from any actions or omission of Sublessee causing liability. The parties have executed this Sublease the day and year first hereinabove written. THE BURLINGTON NORTHERN ANQ SANTA FE RAILWAY COMPANY By; Catellus Ma agement Corporation, Its Attorney in Fact By; Title: / a~ L ~}?/~N-S Title ~ r•~-j iCit erg-~,,ej L-~.~,,. o:~ealest~east~50o539.1se MRL 6 10/97 CITY OF BO EM N