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HomeMy WebLinkAbout2507V CANADIAN PACIFIC RAILWAY Refer to: 30339/Edina, Minnesota November 25, 1998 Real Estate Suite 1380 Soo Line Building 105 South 5th Street (55402) PO Box 530'(55440) Minneapolis Minnesota Mr. Francis J. Hoffinan, P.E. Director of Public Works and City Engineer City of Edina 4801 West 50th Street Edina, MN 55424 -1394 Dear Mr. Hoffman: Fax (612) 347 -8170 Enclosed is a fully executed copy of agreement number 30339 covering maintenance of lawn and a retaining wall in favor of the City of Edina on railroad property at Edina, Minnesota. This letter will also acknowledge receipt of your check number 194440 in the amount of $100.00. Please refer to the agreement number 30339 and location Edina, Minnesota in any correspondence concerning this agreement. For expedient handling, we ask that all correspondence regarding this agreement be in writing. Sincerely, /��y Peggy Reiman Leasing & Tax Coordinator 612/347 -8324 PR:41 Enclosure L � � LESSEE'S COPY Lease No. 30339 THIS AGREEMENT, made and entered into as of the 1 st day of June, 1998, by and between SOO LINE RAILROAD COMPANY, doing business as Canadian Pacific Railway, hereinafter called "Lessor," and CITY OF EDINA, hereinafter called "Lessee," WITNESSETH: 1. The Lessor, in consideration of the payments, covenants and conditions hereinafter set forth, to be made, performed and complied with by the Lessee, hereby teases to the Lessee those certain premises situated at or near Edina, County of Hennepin, State of Minnesota, described as follows: The easterly 20 feet of Lessor's right of way property, adjacent to the City Park, on Hanson Road, as shown outlined in red on the print attached hereto marked "Exhibit A" and made a part hereof, containing approximately 12, 000 square feet of land excepting and reserving all driveways now or hereafter laid out across said premises to provide access to other industries located on the Lessor's property; TO HAVE AND TO HOLD, for the term of TWELVE (12) months from the date hereof, hereinafter referred to as the "Basic Term," and thereafter from month to month. Except as provided in paragraph 11 below, this lease shall be subject to termination at any time after the Basic Term by either party hereto upon thirty (30) days' written notice to the other. Upon such termination, the Lessor shall make proportionate refund to the Lessee of rental that shall have been paid in advance, after deduction of any amounts payable by the Lessee hereunder. 2. Any and all buildings and improvements, including all necessary machinery and appliances, shall be constructed, installed and maintained at the Lessee's sole expense, upon the leased premises in a manner satisfactory to the Lessor. The premises shall be continuously and exclusively occupied and used by the Lessee during the term of this lease as a site for such buildings and improvements and for the conduct upon the premises in an active and substantial way of maintenance of lawn and retaining wall, or such other kind of activities as may be approved by the Lessor. 3. The Lessee shall pay the Lessor ONE - HUNDRED and NO /100 Dollars ($100.00) every fiveyears in advance, as rental for the leased premises subject to increase as provided in subparagraph 4(C) hereof, hereinafter referred to as the "Base Rent". 4. (A) The Lessee, in addition to the Base Rent, shall pay all taxes, assessments, license fees or other charges (except assessments or taxes for permanent street improvements other than crosswalks) which, during the term of this lease, shall be levied or assessed by, or become payable to any state, municipal, county or federal authority for or against the whole or any part of the leased premises, including all improvements located thereon, or against the business conducted upon the premises. If any assessments or taxes for permanent street improvements other than crosswalks shall be levied or assessed or become payable against the leased premises during the term of this lease, the annual rental hereunder as the same shall have been modified pursuant to reappraisal, if any, shall be increased by an amount equal to the proportionate share of the total gross amount of such assessments or taxes that is properly chargeable to the leased premises. (B) The Lessee, in addition to the Base Rent, shall assume and pay the entire cost of installation, maintenance, repair and renewal of any crosswalks which have been or may be installed to provide exclusive driveway entrance to or exit from the leased premises. The Lessee shall at all times keep clean and free from snow, ice, refuse and obstructions, any such crosswalk and any sidewalk now located or to be located adjacent to the leased premises, and shall fully indemnify, hold harmless, and defend the FORM 100.6197STD SITE LEASE No. 30339 Edina, MN Canadian Pacific Railway Lessor from and against all Claims in any manner arising from or growing out of Lessee's failure to do so. Any maintenance or snow removal by Lessee shall be carried out in a manner that will not interfere with railroad operations on trackage adjacent to the leased premises. (C) The Base Rent shall hereafter be increased or decreased each billing date of this lease to an amount equal to the product of the Base Rent multiplied by the fraction of the "index" for the "comparison month" over the "index" for the "base month "; provided however, that in no event shall the Base Rent be less than the sum provided in paragraph 3 above.As used herein, the term "index" shall mean the "all items" group of the United States city average consumer price index (1982 -84 = 100) issued monthly by the Bureau of Labor Statistics of the United States Department of Labor, or its successor. The term "comparison month" shall mean the month most recently preceding the billing date of this lease for which the "index" is available. The term "base month" shall mean March, 1998. The "index" for the "base month" will appear on the rental bill. 5. The Lessee shall not place or permit any material, structure, equipment, pole, beam, cable, wire or other obstruction nearer than eight (8) feet six (6) inches horizontally (measured at right angles) from the center line of any railway track now or hereafter located upon or adjacent to the leased premises, or nearer than twenty -seven (27) feet vertically measured from the top of the rail; nor permit any excavation to be made or remain nearer than eight (8) feet six (6) inches horizontally from the center line of any such track; nor permit any pipes or facilities to be installed underneath the same without securing the advance written consent of the Lessor. 6. The Lessee shall, during the term of this lease, fully protect the leased premises from all mechanics' and materialmen's liens accruing by reason of the construction, maintenance, repair, replacement or renewal of any buildings or improvements of the Lessee located upon the leased premises, or the use or occupancy thereof by the Lessee. 7. The Lessee shall not permit any advertisements or signs upon the leased premises other than advertisements or signs relating strictly to the business which is being conducted thereon. 8. (A) The Lessee shall not permit the existence of any nuisance upon the leased premises and shall at all times keep the leased premises in a proper, clean, safe and sanitary condition, and free from brush, vegetation and accumulations of waste materials which may create a fire hazard. (B) The Lessee shall not cause or allow the leased premises to be used for any purposes other than as herein authorized, or in any manner cause or allow the leased premises or any of the Lessor's adjacent property to become a hazardous waste treatment, storage or disposal facility within the meaning of, or to otherwise bring any such property within the ambit of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. or any similar state statute or local ordinance. (C) The Lessee shall be familiar with the requirements of, comply with, and secure at the Lessee's own expense any permits or licenses required by, all applicable laws, regulations, ordinances, and standards, including without limitation all Environmental Laws and the orders of any duly constituted public authority now or hereafter in effect which in any way govern or regulate the Lessee's occupancy or use of the leased premises, and shall at the Lessee's sole expense, make all improvements, alterations, repairs or additions, and install all appliances required by any such laws, regulations, ordinances or standards. (D) The Lessee shall, upon written request by the Lessor, provide the Lessor with copies of transportation and disposal contracts and manifests for Hazardous Waste, any permits issued under any Environmental Laws, and any other documents demonstrating that the Lessee has complied with all Environmental Laws relating to the leased premises. Upon reasonable notice to the Lessee, Lessor and Lessor's beneficiaries, agents and employees shall have the right to enter the leased premises at any time and to conduct any inspections and tests deemed advisable by Lessor in order to determine Lessee's compliance with Environmental Laws. FORM 100.6197STD 1 .2- SITE LEASE No. 30339 Edina, MN Canadian Pacific Railway (E) The Lessee shall not, without prior written disclosure to and approval by the Lessor, Use or authorize the Use of any Hazardous Substance on the leased premises, including installation of any above or underground storage tanks; subject thereto, the Lessee shall arrange at its own cost for the lawful transportation and off -site disposal of any and all Hazardous Substances that it shall Use or generate. (F) The Lessee shall not cause or allow the Release or threat of Release of any Hazardous Substance on, to, or from the leased premises. (G) The Lessee shall promptly notify the Lessor of any actual or suspected Release of any Hazardous Substance on, to, or from the leased premises, regardless of the cause of the Release. (H) The Lessee shall promptly provide the Lessor with copies of all summons, citations, directives, information inquiries or requests, notices of potential responsibility, notices of violation or deficiency, orders or decrees, claims, causes of action, complaints, investigations, judgments, letters, notices of environmental liens or Response actions in progress, and other communications, written or oral, actual or threatened, from the United States Environmental Protection Agency, the United States Occupational Safety and Health Administration, or other federal, state or local agency or authority, or any other entity or individual, concerning (1) any Release of a Hazardous Substance on, to or from the leased premises, (ii) the imposition of any lien on the leased premises, or (iii) any alleged violation of or responsibility under any Environmental Law relating to the leased premises. (1) The Lessee shall promptly take all necessary action in Response to any Release or Use of a Hazardous Substance at the leased premises caused by, or attributable to, any act or omission of the Lessee (or the Lessee's employees, agents, representatives or invitees) that (i) gives rise to any Claim under any Environmental Law, (ii) causes a significant public health or workplace effect, or (iii) creates a nuisance. (J) Following receipt of any notice, order, claim, investigation, information request, letter, summons, citation, or directive pursuant to subparagraph H of this paragraph 8 or in connection with any action taken pursuant to subparagraph I of this paragraph 8, Lessee shall notify Lessor of and permit Lessor to participate in any and all investigations, telephone conferences, settlement discussions, remediation plans and all other interactions, direct or indirect, with governmental or regulatory officials, and Lessee shall take all action necessary to ensure that any indemnification, release, or hold harmless agreement benefiting Lessee and arising out of such activities, whether from a governmental or regulatory entity or from a private entity, also benefits Lessor to at least the same extent as Lessee. Lessee acknowledges and agrees that a Release of any Hazardous Substance may impair the value of the leased premises and restrict future use of the leased premises notwithstanding the completion of any cleanup or remediation to the satisfaction of governmental or regulatory officials. Lessee agrees to compensate Lessor fully for any such diminution in value or restriction in use of the leased premises regardless of whether a cleanup or remediation action was performed to the satisfaction of governmental or regulatory officials. No provision of this subparagraph J shall be construed to limit or impair the indemnification provisions of paragraph 9, below. 9. (A) The Lessee acknowledges and agrees that the movement of railroad locomotives, trains or cars and the work incident to the maintenance of the right of way and track in close proximity to the leased premises involves some risk of injury to persons and damage to structures and property thereon by fire, vibration or smoke. As one of the material considerations of this lease, without which it would not be granted, the Lessee expressly assumes said risk and hereby releases and agrees to indemnify, hold harmless and defend the Lessor and its directors, officers, stockholders, divisions, agents, affiliates, subsidiaries, predecessors, successors and assigns, or anyone acting on its behalf or their behalf, from and against any and all Claims of every kind, past, present and future, existing and contingent, known and unknown, arising from any injury to persons, firms or corporations whomsoever (including the parties hereto and their employees, agents and invitees), including injuries resulting in death, and damage to property whatsoever (including property of the parties hereto), including structures and their appurtenances, equipment and appliances, except Claims arising under Environmental Laws, while such persons or property are on, about, or in the vicinity of the leased premises, and when such injury or damage has been caused by or is attributable FORM 100.6 /97STO -3- SITE LEASE No. 30339 Edina, MN Canadian Pacific Railway to, in whole or in part, fire, vibration or smoke in connection with the Lessor's operation of locomotives, trains or cars, the Lessor's performance of railroad maintenance in the vicinity of the leased premises, or any other activity of the Lessee or the Lessor, except that Lessee's assumption of liability and its obligations hereunder shall not extend to damages to the premises of the Lessor, to roiling stock belonging to the Lessor or to others, or to shipments in course of transportation. The Lessee's obligations hereunder shall survive the termination or expiration of this lease. (B) As one of the material considerations of this lease, without which it would not be granted, the Lessee hereby releases and agrees to indemnify, hold harmless and defend the Lessor and its directors, officers, stockholders, divisions, agents, affiliates, subsidiaries, predecessors, successors and assigns, or anyone acting on its behalf or their behalf, from and against any and all Claims arising under any Environmental Law, of every kind, past, present and future, existing and contingent, known and unknown, arising from any injury to persons, firms or corporations whomsoever (including the parties hereto and their employees, agents and invitees), including injuries resulting in death, and damage to property whatsoever (including property of the parties hereto), wherever such persons or property are located, caused by or attributable to, in whole or in part, any act or omission of the Lessee (or the Lessee's employees, agents, contractors, representatives, or invitees), including without limitation the Use or Release of Hazardous Substances by the Lessee and the breach by the Lessee of any of its warranties, representations or covenants. The Lessee's obligations hereunder shall survive the termination or expiration of this lease. 10. (A) The Lessee shall not dispose of or remove any buildings or improvements located upon the leased premises without first obtaining the written consent of the Lessor and paying all rent, taxes, assessments, license fees or other charges which may be due hereunder. (B) When any rent, taxes, assessments, license fees or other charges payable hereunder are past due, the Lessor shall have and is hereby granted a lien therefore upon the buildings and improvements of the Lessee located upon the leased premises, including appliances, and upon thirty (30) days' written notice to the Lessee may take possession of and sell the same and apply the proceeds against such past due indebtedness. 11. If the Lessee shall at any time fail to perform or comply with any of the terms, covenants or conditions of this lease, and such default continues for a period of ten (10) days after written notice thereof by the Lessor to the Lessee, then the Lessor may declare this lease at an end and forthwith re -enter and take absolute possession of the leased premises. Notwithstanding the foregoing, if the Lessee shall default on its obligation to make any payment required under this lease, the Lessor may immediately declare this lease at an end and forthwith re -enter and take absolute possession of the leased premises without advance notice to the Lessee. 12. If required by the Lessor to do so upon termination of this lease for any reason, the Lessee shall promptly remove all of Lessee's buildings, improvements and property then located upon the leased premises, fill up all excavations that may have been made, and surrender complete possession of the premises to the Lessor, in a condition satisfactory to the Lessor. Should the Lessee fail to make such removal or restoration, the Lessor, at its election, may either remove the Lessee's buildings, improvements and property and restore the leased premises to substantially their former state at the sole expense of the Lessee, or may retain the Lessee's buildings, improvements and property as the Lessor's sole property. 13. Any notice of termination or other notice given by the Lessor hereunder, shall be good if served upon the Lessee, or if deposited in a United States post office, certified mail, addressed to the Lessee at the last known address of the Lessee. 14. This lease shall not be assigned or in any manner transferred by the Lessee, voluntarily or involuntarily, by operation of law or otherwise, or the leased premises or buildings thereon sublet, used or occupied for the conduct of any business by any third person or corporation, or for any purpose other than herein authorized, without the advance written consent of the Lessor. Any attempted or purported FORM 100.6197STD -4- SITE LEASE No. 30339 Edina, MN Canadian Pacific Railway assignment, transfer, or sublease by the Lessee without such consent shall be void. Subject thereto, this lease shall inure to the benefit of, and be binding upon the heirs, executors, administrators, successors and assigns of the respective parties. 15. This lease and all provisions thereof shall be subject to revision at any time if made necessary by any order or finding of the Surface Transportation Board, state authorities, or other authorities having jurisdiction. 16. The Lessee agrees that after termination of the lease by either party for breach of any provision of said lease by the Lessee or for any other reason, Lessee shall continue to pay to the Lessor, at the rate in effect on the date of termination, rental for any period of time after said termination during which Lessee remains in possession of the leased premises or during which any buildings or personal property of Lessee remain on said leased premises unless Lessor has notified Lessee that Lessor has exercised the option granted pursuant to paragraph 12 above to retain such buildings and /or personal property as Lessor's sole property. 17. The Lessee covenants and agrees that it will pay and discharge and indemnify the Lessor for and against any and all losses, costs, damages and expenses (including reasonable attorneys' fees and legal expenses of the Lessor) incurred by the Lessor by reason of any breach by the Lessee of any of the terms, conditions or provisions contained in this lease. The Lessee's obligations hereunder shall survive the termination or expiration of this lease. 18. The Lessor does not warrant title to the leased premises, and makes no representations or warranties, express or implied, as to the habitability of the leased premises or the fitness of the leased premises for Lessee's purpose or any other particular purpose. 19. Each provision, paragraph, sentence, clause, phrase, and word of this lease shall apply to the extent permitted by applicable law and is intended to be severable. If any provision, paragraph, sentence, clause, phrase or word of this lease is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality or validity of the remainder of the lease. 20. This agreement completely outlines all of the rights, responsibilities, and obligations of the parties hereto and said lease agreement may not be amended or altered except by an instrument in writing signed by both parties. Furthermore, this lease agreement merges all prior oral representations and negotiations of the parties hereto. 21. (A) "Claim" or "Claims" means any and all liabilities, suits, claims, counterclaims, causes of action, demands, penalties, debts, obligations, promises, acts, fines, judgments, damages, consequential damages, losses, costs, and expenses of every kind (including without limitation any attorney's fees, consultants' fees, response costs, remedial action costs, cleanup costs and expenses which may be related to any Claims); (B) "Environmental Law" or "Environmental Laws" means the Comprehensive Environmental Response, Compensation and Liability Act ( "CERCLA "), 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 9601 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1201 et seq., the Clean Water Act, 33 U.S.C. § 1321 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act, 33 U.S.C. § 1251 et seq., all as amended from time to time, and any other federal, state, local or other governmental statute, regulation, rule, law or ordinance dealing with the protection of human health, safety, natural resources or the environment now existing or hereafter enacted; (C) "Hazardous Substance" or "Hazardous Substances" means any pollutant, contaminant, hazardous substance or waste, solid waste, petroleum product, distillate, or fraction, radioactive material, chemical known to cause cancer or reproductive toxicity, polychlorinated biphenyl or any other chemical, substance or material listed or identified in or regulated by any Environmental Law; FORM 100.6/97STD _ 5 SITE LEASE No. 30339 Edina, MN Canadian Pacific Railway (D) "Release" or "Released" means any actual or threatened spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or spreading of any Hazardous Substance into the environment, as "environment" is defined in CERCLA; (E) " Response" "Respond" or Respond means action taken in compliance with Environmental Laws to correct, remove, remediate, cleanup, prevent, mitigate, monitor, evaluate, investigate, assess or abate the Release of a Hazardous Substance; (F) "Use" means to manage, generate, manufacture, process, treat, store, use, re -use, refine, recycle, reclaim, blend or bum for energy recovery, incinerate, accumulate speculatively, transport, transfer, dispose of, or abandon a Hazardous Substance. 22. The agreement between the parties hereto, or their predecessor, No. M.N.S. Agreement 691 dated August 15, 1963, is hereby terminated and superseded by this agreement. IN WITNESS WHEREOF, the parties hereto have caused this lease to be duly executed, as of the day and year first above written. SOO LINE RAILROAD COMPANY �- By 4Rea Directo , Es a e arketing, U.S. Cll By Its Not Assignable Without Consent NOT TO BE RECORDED IN PUBLIC RECORDS FORM 100.6/97STD - 6 - SITE LEASE No. 30339 Edina, MN Canadian Pacific Railway � 2n NSP (. to /IS[ as e /31J6C\ 31 I I i 2 r 8 � • • �.. sc�. 7 . `W 7 ,. sl Q 41c.7 m4 &7V r I 1 L/ 1I / 40 1/ 31/62 I - -".9 -9---- NPLS GAS Ca 3/23/1!1 8/24/53 \Cia 7/ 3/ 53 JL 3rd5f4D MN- 49. S3 BSI 251D\ 1 TNK WATIA tNA �3ti 3 / 3. w I mid ...;_ .t..•a. I �. 34 "RCP VI AT9Rt.INIt a/ s i E aMIT A " I EDINA, MIIN1NESOU SCALE: 1 " 1100' �i