HomeMy WebLinkAboutRESOLUTIONS-2015-086-R-15e
86-11-15
A RESOLUTION
8/19/2015
Authorizing the City Manager to Enter into a Sublease
Agreement with SEG Cafe, LLC for Certain Property Located at
1826 Central Street
WHEREAS, the City of Evanston ("City") leases certain real
property at Central Street and Green Bay Road in Evanston, Illinois from Union
Pacific Railroad Company under a lease dated July 24, 1996 for a period of
twenty years, unless sooner terminated; and
WHEREAS, the leased property consists of Union Pacific Railroad
Company's passenger station, the lower level of the passenger station, and the
exterior fagade of the building, including the roof, but not including the platform
areas, stairway, or ramp; and
WHEREAS, the City subleases certain property commonly known
as 1826 Central Street, Evanston, Illinois, which is described on Exhibit 1
attached hereto (the "Subject Premises"), to SEG Cafe, LLC ("SEG") under a
Sublease Agreement that terminates on September 15, 2015; and
WHEREAS, the City and SEG desire to extend and continue their
current sublease agreement for the remainder of the City's lease agreement
with Union Pacific Railroad Company up to and including July 23, 2016; and
WHEREAS, the City Council finds it to be in the best interest of
the City to extend the sublease for the Subject Premises to SEG, and to
negotiate and execute a sublease agreement with SEG,
86-R-15
BE IT RESOLVE® BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COUNTY OF COOK, STATE OF ILLINOIS:
SECTION 1: That the City Manager is hereby authorized and
directed to sign and execute, and the City Clerk hereby authorized and directed
to attest on behalf of the City of Evanston, a sublease by and between the City
and SEG Cafe, LLC. The sublease shall be for a period commencing
September 16, 2015 and ending on July 23, 2016, and shall be in substantial
conformity with the sublease marked as Exhibit 1 ("Sublease") attached hereto
and incorporated herein by reference.
SECTION 2: That the City Manager is hereby authorized and
directed to negotiate any additional terms and conditions of the leases as may
be determined to be in the best interests of the City.
SECTION 3: That this Resolution 86-R-15 shall be in full force
and effect from and after its passage and approval in the manner provided by
law.
Eli a eth B. Tisdahl, Mayor
Attest. �✓%
Rod ey Gree 7C y-tlerk
Adopted: S20e 0W—r 15, 2015
—2—
EXHIBIT 1
SUBLEASE BETWEEN CITY OF EVANSTON
AND SEG CAFE, LLC
SUBLEASE
This Sublease is dated September 16, 2015 and is between the City of Evanston, an Illinois
Municipal Corporation (Sublessor) as Sublessor, and SEG Cafe, LLC, ("Sublessee") as
Sublessee.
The City is presently leasing certain property at Central Street and Green Bay in Evanston,
Illinois from Union Pacific Railroad Company ("UPRC"), lessor, under a lease ("the Prime
Lease") dated July 24, 1996, for a term of twenty (20) years unless sooner terminated. A copy of
the Prime Lease is attached hereto as Exhibit A.
The subject property of the aforesaid Prime Lease is located at 1826 Central Street, Evanston,
Illinois, and consists of UPRC's passenger station, the lower level of the passenger station and
the exterior facade of the building, including the roof, but not including the platform areas,
stairway, or ramp.
The property Subleased hereunder ("the Premises") is that portion of the interior of the passenger
waiting area, designated in Exhibit A. excluding the roof and exterior facade.
Sublessor and Sublessee are desirous of entering into an agreement whereby Sublessor would
sublease to Sublessee the Premises for Sublessee to operate a coffee shop.
NOW, therefore, in consideration of the above recitations and the mutual promises and
agreements contained in this Sublease and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree as follows:
This Sublease is made upon the following express covenants and agreements, each of which is
made an express condition hereof:
RENT AND TERMS
1. This Sublease is for a period commencing on September 16, 2015 and ending on July 23,
2016.
a. The monthly rent shall be seven hundred sixty dollars ($760.00).
b. Rent is due in full in advance on the fifteenth (15) day of each month by check
payable to the City of Evanston and hand -delivered or mailed to: City of Evanston.
Office of Facilities Management, 2100 Ridge Avenue, Evanston, Illinois 60201.
A twenty-five dollar ($25.00) late fee must accompany payments made after the
twentieth (20) day of the month.
d. If this Sublease terminates or expires with respect to all or any part of the Subleased
Premises prior to the end of a Sublease year, then the Base Rent shall be prorated to
reflect such termination or expiration of the partial Sublease year.
e. As used in this Sublease, "Rent" shall mean the Base Monthly Rent and all other
amounts provided for in this Sublease to be paid by Sublessee, all of which shall
constitute rental in consideration for this Sublease and leasing of the Subleased
Premises. The Rent shall be paid at the times and in the amounts provided for herein
in legal tender of the United States of America to Sublessor. The Rent shall be paid
without notice, demand, abatement, deduction, or offset, except as may be expressly
set forth in this Sublease.
PURPOSE
2. The Premises shall be used exclusively for a coffee shop. Sublessee agrees to handle
only such articles as are appropriate to this type of business, occupancy, or use.
TAXES
Sublessor is an Illinois Municipal Corporation, and, as such, is tax-exempt. The
obligations imposed upon Sublessee in this paragraph with respect to taxes are in place in
the event that Sublessee's for -profit enterprise gives rise to taxes associated with the
granting of this Sublease. Sublessee shall pay all real estate taxes or other charges
applicable to or assessed against the Sublessee, the Premises, the business conducted
thereon by Sublessee, and the improvements placed thereon for each year of the term of
this Sublease even though such taxes or charges may not become due and payable until
after the expiration or termination of this Sublease. The general taxes for the year in
which the term of this Sublease shall commence shall be prorated from January 1 to the
date on which the term of this Sublease commences. If Sublessee shall terminate this
Sublease during the term hereof for any reason, Sublessee shall pay the general taxes for
the full year in which the Sublease is so terminated. Final tax payments will be computed
on the basis of the most recent tax bill.
If any such taxes or charges have been paid by Sublessor, Sublessee agrees to reimburse
Sublessor within twenty (20) days .after presentation of a bill therefor. In default of such
reimbursements, all sums so paid by Sublessor shall be deemed an addition to rent and
recoverable as such.
SPECIAL ASSESSMENTS
4. In the event the premises or any part thereof shall be subject to any special assessment or
special tax for public improvement in the amount of $300.00 or more, the rental herein
reserved and stipulated to be paid by Sublessee shall be increased by ten percent (!0%)
per annum of the amount of such special assessment or special tax. If said special
assessment or special tax for public improvement shall be less than $300.00, Sublessee
agrees to reimburse Sublessor the total cost of such assessment within twenty (20) days
after presentation of a bill therefor. In default of such reimbursement, all sums so paid by
Sublessor shall be deemed an addition to rent and recoverable as such.
ADVERTISING SIGN RESTRICTIONS
5. Sublessee shall not post; paint, or place, or permit others to post, paint, or place on the
Premises, any advertisement or sign not related directly to Sublessee's business. No signs
shall be erected or placed in or about said Subleased Premises by the Sublessee without
the Sublessor's consent and Sublessee's compliance with the City's Sign Ordinance.
LAWS AID PREMISES CARE
6. Sublessee shall maintain and use the Premises and buildings and structures thereon in
accordance with the requirements of local ordinances, state, and federal laws. Sublessee
agrees to not commit or allow waste of the Premises.
Sublessee shall bear all cost and expense arising from compliance with said ordinances,
laws, rules or regulations, and shall indemnify and save harmless Sublessor from all
liability; including without limitation, fines, forfeitures and penalties arising in
connection with the failure by Sublessee to comply with such ordinances, laws, rules, or
regulations.
RELOCATION OF UTILITIES FACILITIES
7. Sublessee accepts the Premises subject to rights of any party, including Sublessor, in and
to any existing conduits; sewers, water lines, gas lines, power lines, drainage facilities,
telephone, telegraph, or their wires, and poles and utilities or facilities of any kind
whatsoever, whether or not of record. Should it at any time become necessary to relocate
any of same because of this Sublease, Sublessee shall bear and pay that cost.
ROADWAY ACCESS
Sublessee accepts the Premises subject to rights of any party, including Sublessor, in and
to any existing roadways, easements, permits or licenses. Sublessee agrees to provide to
Sublessor, and other tenants, grantees, and permitees or Sublessor, access over and
through Premises on these existing roadways should Sublessor deem such access
necessary. Sublessee further agrees that Sublessor shall not be responsible for the care or
maintenance of said roadways.
SUBLESSOR' S TITLE
9. Sublessor covvenants and agrees that upon Sublessee paying the Rent any other charges
due and payable and observing and performing all the terms, covenants, and conditions,
on Sublessee's part to be observed and performed, Sublessee may peacefully and quietly
enjoy the Premises hereby demised, subject, nevertheless, to the terms and conditions of
this Sublease and to any mortgages and deeds of trust hereinbefore mentioned. The
aforesaid obligations of Sublessor are subject to the Prime Lease.
INDEMNIFICATION
10. Sublessee accepts this Sublease of the Premises with knowledge of the existence of
railroad tracks upon or in the vicinity of the Premises and of all the risks of damage or
injury which might or could occur to properties or persons upon or in the vicinity of the
Premises from or in connection with the operation of railway equipment, or from or
in connection with the operation, use, maintenance or improvement of said tracks. It
is therefore agreed, as one of the material considerations of the Sublease and without
which this Sublease would not be granted. that Sublessee assumes such risks and
agrees to indemnify and hold harmless Sublessor from and against any and all liability
and expenses whatsoever, (to the extent permitted by law), for bodily injury or death,
including without limitation, injury or death to agents, employees, servants, invitees of
the Sublessor or Sublessee, and or loss or damage of the property of the Sublessor or
Sublessee, Union Pacific Railroad, their agents, employees, servants or invitees, and
to the person or property of any other person or corporation, however arising,
directly or indirectly out of the occupancy of, presence on, or use of said Subleased
Premises or any structures thereon (including their construction, maintenance, repair,
reconstruction or removal) bySublessee, its employees, agents, or invitees.
Notice to or knowledge by the Sublessor of any act or omission by the Sublessee which is
or might be a breach by the Sublessee of any of the terms or conditions of this Sublease
to be performed by the Sublessee, and the acquiescence by the Sublessor in or to such act
or omission, shall neither be considered to relieve the Sublessee of any obligation
assumed by it under this paragraph nor be considered to be a waiver or release by the
Sublessor of any rights granted to it under this paragraph.
INSURANCE
11. Sublessee agrees to add the City of Evanston and Union Pacific Railroad as additional
insured on Sublessee's Commercial General Liability Policy with a minimum of one
million dollars in limits. Sublessee also agrees to show satisfactory evidence of property
insurance for the Subleased property. Within ten days after the execution of the Sublease,
Sublessee shall provide Sublessor in writing with the name, address, and telephone
number of Sublessee's contact with her insurance company. Sublessee shall promptly
notify Sublessor in writing of any changes to this information.
Sublessee agrees to insure property for replacement cost with agreed amount
endorsement. The City is to receive 30 days' advance notice of cancellation or
modification of the policy.
NO SUBROGATION
12. Sublessee agrees to have all insurance policies issued to or for or upon Sublessee's
account, covering any injuries to persons or any loss or damage to property, so written
that the insured shall have no claim or recourse of any kind whatsoever against Sublessor
or the Premises.
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NO LIENS
13. Sublessee shall not suffer or permit any lien of mechanics or material men to be placed
against the Subleased Premises or any part thereof whether created by act of Sublessee,
operation of law or otherwise. In the case of such attachment, Sublessee shall
immediately pay same in full.
HOLD OVER
14. It is further agreed that in case Sublessee, with Sublessors consent, holds possession of
the Premises beyond the term of this Sublease, such action shall have the effect of
extending the term of this Sublease on a month -to- month basis, subject in all aspects to
all of the terms, conditions, covenants, and agreements of this Sublease, including all
rights of termination provided for herein.
BREACH
15. If Sublessee defaults in any of its undertakings or obligations hereunder, then such event
or action shall be deemed to constitute a breach of this Sublease. In the event of a
monetary default, Sublessee shall have ten (10) days to cure. In the case of an event or
action not curable in thirty (30) days, if substantial progress toward cure is not had, this
Sublease shall cease and terminate, at the Sublessor's option. Provided, however,
Sublessor may grant Sublessee less than the aforesaid notice or cure periods in the event
that Sublessee's action or non -action, in Sublessee's sole judgment, creates a public safety
or public health hazard, or in the event Prime Lessor for any reason directs notice cure
period(s) of less than those aforesaid or granted by Sublessor.
TERMINATION
16. Either party may at any time terminate this Sublease by giving eighty (80) days written
notice of its intention to do so.
a. Upon the termination of this Sublease by any manner, means, or contingency whatsoever,
Sublessee shall, without further notice or demand, deliver possession of the Premises to
Sublessor in good condition as when entered upon and broom -clean condition. Sublessee
hereby agrees to remove all buildings, structures, foundations, footings, materials, signs,
debris, or any other articles, structures or facilities owned by Sublessee as permitted to be
placed on the Premises before the termination of this Sublease. Upon any such
termination if rent shall have been paid in advance, Sublessor shall refund to Sublessee
the unearned portion therefor of the period extending beyond such date of termination
provided the Premises has been cleaned by Sublessee in a manner satisfactory to
Sublessor, normal wear and tear excepted.
b. If Sublessee shall fail to so remove such property, such failure shall constitute an
abandonment of such property and title thereto shall pass to Sublessor immediately, if
Sublessor so elects, without any cost either by set-off, credit allowance or otherwise.
Sublessor may retain, tear down, remove or sell such property or any part thereof,
without any liability for damage therefor in any respect whatsoever and Sublessee shall
promptly pay Sublessor for any and all expenses incurred by Sublessor in tearing down,
removing, or selling such property.
RE-ENTRY
17. If Sublessee shall breach or default in any of the terms of this Sublease or if this Sublease
shall expire or terminate in any manner; it shall be lawful for Sublessor then or at any
time thereafter to re-enter the Premises and take possession thereof, with or without
process of law, and to use any reasonable or necessary force for regaining possession.
However, Sublessee shall have the right to remove certain of Sublessee's property
as herein provided.
WAIVER OF REMEDIES
18. No waiver of any default of Sublessee shall be implied from omission by Sublessor to
take any action on account of such default. No express waiver shall affect any default
other than the default specified in the express waiver and that only for the time and to the
extent therein stated. No receipt of money by Sublessor from Sublessee (1) after any
default by Sublessee, (2) after the termination of this Sublease, (3) after the service of any
notice or demand or after the commencement of any suit, or (4) after final judgment for
possession of the premises, shall, waive such default or reinstate, continue, or
extend the term of this Sublease, or affect in any way such notice or suit, as the case
may be.
The erection of improvements in or on the Premises shall not constitute a waiver or affect
in any way the right of either party to terminate this Sublease.
NO ASSIGNMENT
19. Sublessee shall not assign or sublet this sublease without the prior written consent of
Sublessor's City council.
RIGHTS ARE CUMULATIVE
20. All rights and remedies of Sublessor shall be cumulative, and none shall exclude any
other rights and remedies allowed by law.
NOTICES
21. All notices, demands, elections and other instruments required or permitted to be given or
made by either party upon the other by the terms of this Sublease or any statute shall be
in writing. They shall be deemed to have been sufficiently served if sent by certified or
registered mail with proper postage prepaid to Sublessor or Sublessee at the respective
addressee shown below. Such notices, demands, elections, and other instruments shall be
considered as delivered to recipient on the second business day after deposit in the L.S.
Mail.
Notices to:
Sublessor: City of Evanston
2100 Ridge Ave.
Evanston, IL 60201
Sublessee: SEG Cafe LLC
2617 Hurd Ave.
Evanston, IL 60201
ENTIRE AGREEMENT:
22. All the representations and obligations of Sublessor are contained herein. No
modification, waiver, or amendment of this Sublease or any of its terms, shall be binding
upon Sublessor unless it is in writing and signed by a duly authorized Officer of the
Sublessor.
RENTAL REVIEW
23. Sublessor reserves the right to review and revise the rent applicable to this Sublease upon
(1) any change in usage of the Premises (2) any extension of the Sublease term beyond
the five-year term provided for above. In the event of extension beyond the five-year
term provided for, Sublessor may, in addition to the renegotiation of any or all provisions
hereof. renegotiate the rent. In such event, Sublessee must, upon Sublessor's written
request, furnish Sublessor with accurate statements of gross receipts for each month of
operation since inception of this Sublease.
RAIL SERVICE
24. Sublessor makes no warranties or representation, expressed or implied, as to continued
rail service to the Premises.
JOINT OBLIGATION
25. In the event that Sublessee embraces two
covenants and agreements herein containe
each of such persons or corporations.
MAINTENANCE AND UTILITIES
d
or more individuals and/or corporations, the
shall be the joint and several obligations of
26. Sublessee has examined and knows the condition of the Premises and shall enter upon
and take the same in their condition at the commencement of the terra of this Sublease.
Sublessee will at its own cost and expense make any necessary alterations required;
however, no alteration shall be made without the consent of Prime Lessor and Sublessor.
All plans and specifications for modification of the coffee shop proposed herein must
be submitted for Prime Lessors and Sublessor' s approval before start of any work
on the Premises. Sublessor will not install, supply or maintain utilities to the said
Premises.
SNOW
27. Sublessee agrees it will not dump any snow on adjoining land nor adversely alter in any
way the drainage of either the Premises or adjoining land.
LITTER
28. At the close of Sublessee's daily operation, Sublessee shall inspect Prime Lessor's
adjoining waiting rooms and remove therefrom and dispose of any debris (coffee cups,
napkins, orts, etc.) resulting from Sublessee's operations. Sublessee shall pay for its own
scavenger service.
LIQUOR
29. No liquor or alcoholic beverages shall be sold or served on the Subleased Premises and
Sublessee shall diligently attempt to prevent and discourage the presence or consumption
of any liquor or alcoholic beverages within said Subleased Premises.
STANDARDS OF SERVICE
30. All operations and services of the Sublessee in the Subleased Premises shall be carried
out and performed in a first-class mauler and in keeping with the highest standards. If. in
the judgment of Sublessor, the Sublessee is not so conducting its operations or services in
said Subleased Premises or meeting such standards, Sublessee shall promptly change and
comply with this requirement upon receipt of written notice from Sublessor.
HOURS
31. Sublessors hours and days of operation shall be 5:30 a.m. to 2:30 p.m., Monday through
Saturday, and for a maximum of five (5) nights per month, on either a Thursday, Friday
or Saturday night 5:30 p.m. to 11:00 p.m.
UTILITIES
32. The rental herein stated includes the furnishing of heat and water with the distinct
understanding that the Sublessor shall not be liable for any damages on account of failure
to furnish same due to any failure in its facilities for supplying same. All electricity used
on the Premises shall be metered in the name of the Sublessee and paid for by Sublessee.
PRIME LEASE
33. Sublessee acknowledges receipt of a copy of the Prime Lease, executed on July 24, 1996.
Said Prime Lease is incorporated herein and made a part hereof. Sublessee
acknowledges that this Sublease is subject to; and governed by, the Prime Lease,
including in particular, but not limited to, paragraph 4 (Use by Lessor and Public)
paragraph 9 (Pollution), 10 (Environmental Contamination), II (Relocations of Wires). In
said paragraphs, "Lessee" shall be read as "Sublessee".
FUNDS AVAILABLE
34. Sublessee acknowledges that, as an inducement to Sublessor to grant this Sublease,
Sublessee has represented that it has, and will have, sufficient financial resources to meet
its obligations hereunder.
UPRC APPROVAL
35. Sublessee acknowledges that UPRC must approve this Sublease. This Sublease is null
and void if UPRC fails to grant such approval. In the event such approval is denied,
withheld, or not granted, Sublessee shall have no recourse whatsoever against Sublessor
for any reason.
VENUE
36. In the event of litigation between Sublessee and Sublessor, venue shall be within Cook
County, Illinois, the laws of Illinois shall apply, and the parties waive trial by jury.
IN WITNESS WHEREOF, the Parties have caused this Sublease to be duly executed as of the
last date written below.
City of Evanston
By:
Name: Wally Bobkiewicz
Title: City Manager
Date:
SEG Caf6, LLC
By:
Name:
Title:
Date:
EXHIBIT A
LEASE BETWEEN UNION PACIFIC RAILROAD COMPANY
AND CITY OF EVANSTON
LEASE N-Or.
FILE NO. 220-8-5 _
LESSOR: Union Pacific
Railroad Company
1416 Dodge Street
Omaha, NE 68179-1100
LESSEE: City of Evanston
2100 Ridge Avenue
Evanston, IL 60201-2798
On this- ,056ay of , 1 THE CITY OF EVANSTON
(hereinafter caked "Lesse h ; y offers and agrees to lease from the UNION
PACIFIC RAILROAD COMPANY (hereinafter called "Lessor") the passenger station
(hereinafter called "Premises") of Lessor, situated on Central Street in the CITY OF
EVANSTON State of Illinois shown outlined on "Exhibit A", attached hereto and made
a part hereof. In addition to the area outlined on "Exhibit A", the Premises also
include the lower level of the passenger station, and the exterior facade of the
building including the roof, but does not include the platform areas staln+vay or ramps.
The term of this Lease Agreement shall be twenty (20) years, unless sooner ter-
minated as provided herein. The Lease is to commence on the day and year first
above written.
This Lease is made upon the following express covenants and agreements,
each of which is made an express condition hereof:
COVENANT 1. Lessee covenants and agrees to pay Lessor as rent for the
premises the sure of One Dollar and No1100 ($ 1.00) per year and
other valuable considerations.
PURPOSE OF
LEASE 2. The Lessee desires (a) to maintain the existing architectural
appearance of the passenger station on the said premises, (b) to
control and maintain access to the said station, and 0 to develop
commercial endeavors in the station which will serve the Lessor's
commuters. Accordingly, the Lessor has granted the Lessee this
lease. However, the said Premises will continue to be used and
occupied primarily as a railroad commuter station facility. The
Lessor reserves unto itself, its successors and assigns, and
licensees the right to use said Premises in the general conduct of
its railroad business including endeavors to convenience its
commuters and the public.
EXCLUSIVE
USE BY LESSOR 3. Lessor reserves for Its exclusive use and occupancy that
portion of the passenger .station shaded and labeled as the ticket
office on the attached "Exhibit A".
USE BY LESSOR
AND PUBLIC 4. Lessor reserves for lawful use by Lessor and the public,
including but not limited to Lessor's customers, the said Premises
(except such part of said premises as are with Lessor's consent
hereafter sublet by Lessee). 'Lessee shall not interfere with or
infringe upon Lessor's or the public's lawful use of the said
Premises so reserved. Lessor reserves the right to regulate and
control the people who enter said Premises, and their conduct,
and reserves the right to enter upon said premises at any time,
and to eject therefrom any disorderly person or persons.
ROADWAYS
ACCESS 5. Lessee accepts the Premises subject to rights of roadways,
easements, permits, or licenses. Lessee agrees to provide to
Lessor, and the public, access over and through Premises on
these existing roadways and easements should such access be
deemed necessary by Lessor. Lessee further agrees that Lessor
shall not be responsible for the care or maintenance (including
snow removal) of said roadways.
RELOCATION 6. Lessor reserves the right to maintain or relocate its existing
facilities, or to construct and thereafter maintain new facilities, in
the vicinity of the Premises with no liability for damages to
Lessee's Interests or property resulting from such activities.
Lessor agrees, however, that no changes shall be made without
consultation with Lessee.
SiGNS 7. Lessor reserves the right to past, paint, or place, or io have
posted, painted or placed'on the Premises, Informational signs
relative to the operations of the Lessor on the Premises, including,
but not limited to, those designed to enhance the accessibility of
said facilities and services to the elderly and handicapped. Lessor
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agrees, however, that no such signs shalt be posted., painted, or
placed without Lessee's consent. Advertising signs well not be
posted in the Premises.
COMPLIANCE
aEGAL AND
INSURANCE1 8. Lessee shall not use or permit upon the Premises anything
that will invalidate any policies of insurance now or hereafter
carried on the Premises or any building or structure thereon.
Lessee shall maintain and use the Premises and buildings and
structures thereon in accordance with the requirements of at[ local
ordinances, state and federal laws in effect during the term of this
lease.
POLLUTION g. Lessee further agrees to comply with all ordinances, laws,
rules, and regulations enacted by any governmental body or
agency relating to the control, abatement or emission of air and
water contaminants and/or disposal of refuse, solid wastes or
liquid wastes. Lessee sbail bear all cost and expense arising from
compliance with said ordinances, laws, rules, or regulations and
shall indemnify and save harmless Lessor from all liability,
including without limitation, fines, forfeitures, and penalties
arising in connection with the failure by Lessee to comply with
such ordinances, laws, rules or regulations.
ENVIRONMENTAL
CONTAMINATION 10. Lessee recognizes and assumes responsibility for
environmental liability or responsibility Imposed under applicable
environmental laws, regulations or any other similar requirements
relating to any contamination of the Premises or groundwater
thereunder or discharge or release to adjacent property arising
from or in any respect aggravated or altered by any operations or
activities by, or any equipment or facilities used by or permitted
on the Premises by Lessee (the foregoing hereinafter referred to
as "Lessee operations"). Lessee, therefore, agrees to indemnify
and hold harmless Lessor, its officers, agents and employees from
any and all liability, fines, penalties, claims, demands, loss or
lawsuits brought by any third party or governmental agency under
any theory of law against Lessor seeking to hold Lessor liable for
any investigation, response or cleanup costs, penalties or
damages, whether personal, property or environmental, for any
contamination of any property of groundwater thereunder or
discharge or release to adjacent property arising out of or in any
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respect aggravated or altered by Lessee operations. Lessee
agrees that the above indemnity extends to any liability resulting
from or arising out of Lessee's impiementation of any
investigation., response or cleanup plan approved by the United
States Environmental Protection Agency or companion state
agency. Lessee further agrees to undertake, at Its own expense,
any investigation, response or cleanup of any contamination of
the premises and groundwater thereunder arising from or in any
respect aggravated or altered by any Lessee operations and to
promptly notify Lessor of any event, notice, claim, demand or
litigation which involves or alleges contamination of the premises,
the groundwater thereunder or a discharge or release therefrom
to adjacent property.
REL OCA TIONS
OF WIRES 11. Lessee accepts the Premises subject to rights of any party,
including Lessor, in and to any existing tei-epfione, telegraph or
other wires, and poles and facilities of any kind whatsoever,
whether or not of record. Should the Lessee at any time require
the relocation of any of same, Lessee &hail bear and pay the cost
of so doing,
OVIET ,ENJOYMENT
AND LESSOR'S
TITLE 12. Lessor makes no covenarnt for quiet enjoyment of the
premises. Lessee assumes any damages Lessee may sustain as
a result of, or in connection with, any want or failure at any time
of Lessor's title to the Premises.
NO SUBROGATION 13. Lessee agrees all insurance- policies, if any,- issued to It, or
for or upon Lessee's account, covering any injuries to persons or
any loss or damage to property so written that the insurer shall
have no claim or recourse of any kind whatsoever against Lessor,
Metra, or the Premises unless said injuries, loss or damage are the
result of the sale negligence by the Lessor, Metra or Lessor's
representatives.
LIABILITY 14. As a material consideration for entering into this Lease and
without which the Lessor would not enter into same, the Lessee
covenants and agrees to indemnify, save harmless and protect
the Lessor and the Commuter Rail Division of the Regional
Railway Authority ("METRA") from and against any and all loss,
damage, claim, demand, fine, lawsuit and/or liability, and any and
El
a.il costs, expenses and legal fees in connection therewith by
reason of injuries to or death of persons andlor loss of or damage
to property andlor violation of any law, ordinance or regulation
arising or growing out of or connected with this Lease, the
Premises, and/or any act or omission of (1) the Leftee, its
employees or agents, and/or (.H) any other person performing any
work or service for or on behalf of the Lessee on or about said
Premises or arising out of their presence on said Premises.
LIENS 15. Lessee agrees not to suffer or permit any lien of mechanics
or material men to be placed against the Premises or any part
thereof and, in case of any such lien attaching., immediately to
pay off and remove same. It is further agreed by the parties
hereto that Lessee has no authority or power to cause or.permit
any lien or encumbrance of any kind whatsoever, whether created
by act of Lessee, operation of law or. otherwise., to attach to or to
be placed upon Lessor's title or interest in the Premises, and any
and all liens and encumbrances created or suffered by Lessee or
its tenants shall attach to Lessee's interest only.
EMINENT DOMAIN 16. If the whole or any part of the Premises shall be taken or
condemned by any competent authority for any public Use or
purpose, this lease shall, as to the part so taken, terminate as of
the date when taken or required for such use or purpose. The
entire amount of damages or compensation payable or paid for
the part taken and then for remainder, if any, shall be paid to and
retained by Lessor as its own property without apportionment.
Lessee hereby assigns to Lessor any claim which Lessee would
have to such damages. Lessee shall look to said authority solely
for any compensation or damages on account of Lessee's cost
and expense of removing Lessee's personal property from the
Premises and for the cost and expense of moving any building or
other structure placed upon the Premises by Lessee and which
Lessee would have the right to remove as a Lessee of the
Premises.
CAUSE FOR
BREACH 17. If Lessee defaults in any of Lessee's undertakings or
obligations in this lease, then such event or action shall be
deemed to constitute a breach of this lease and if such -default
remains uncured for thirty {3p} days after notice in writing, this
lease shall cease and terminate, at Lessor's option.
5
TERWINATION 18. Either party may at any time terminate this lease by giving
ninety (90) deVs° written notice of Its intention to do so.
SURRENDER OF
PREVISES 19. Upon the termination of this lease by any manner, means,
or contingency whatsoever, Lessee shall, without further notice
or demand, deriver possession of the Premises to Lessor in as
good condition as when entered upon, ordinary wear and tear
accepted.
REENTRY 20. If Lessee shall breach or default in any of the terms of this
lease and if such breach or default is not cured or if this lease
shall expire or terminate in any manner, It shall be lawful for
Lessor, then or at any time thereafter, to reenter the Premises and
tame possession thereof, with or without process of the law, and
to use any reasonable or necessary force for regaining
possession; provided however, the Lessee s<haii have the right to
remove certain of Lessee's properties as hereinabove provided.
WAMER OF
REMEDIES 21. (a) No waiver of any default of Lessee shall be implied
from omission by Lessor to take any action on account of such
default. No express waiver shall affect any default other than the
default specified in the express waiver and that only for the time
and to the extent therein stated. No receipt of money by Lessor
from Lessee (1) after any default by Lessee, (H) after the
termination of this lease, (.ill) after the service of any notice or
demand or after the commencement of aafter
ny suit, or (iv) aer final
judgement for possession of the Premises, shall waive such
default or reinstate, continue or extend the term of this lease or
affect in any way any such notice or suit, as the case may be.
(b) The erection of b-uildings or improvements on the
Premises shad not constitute a waiver or affect in any way the
right of either party to terminate this lease.
SUBLETTING 22, Any rentals or other revenues generated by the subletting
by Lessee of any portion of the Premises shall belong solely to the
Lessee.
L
IMPROVEMENTS 23. Prior to any improvements being made to the premises,
Lessee shall submit to Lessor's Director -Real Estate of .plans and
specifications for improvements on any portion of the Premises.
("Improvements" shall include, but not necessarily be limited to,
replacement or repair of roof, floors, heating plant, plumbing, or
walls; but sha•IJ not include such items of maintenance as window
washing, cleaning., sweeping, or normal services ordinarily
provided by a janitor.)
CUMULA TIVE
RIGHTS 24. All rights and remedies of Lessor shall be cumulative, and
none shall exclude any other rights and remedies allowed by law.
NOr/CES 25. All notices, demands, elections, and other instruments
required or permitted to be :given or made by either party upon
the other by the terms of this lease or any statute, shall be in
writing. They shall be deemed to have been sufficiently served,
if sent by certified or registered mail, with proper postage prepaid
to Lessor or Lessee at the resAective address first above shown.
Such .notices, demands, elections and other instruments shall be
considered as delivered to recipient on the first business day after
deposit in the U.S. Mail.
ENTIRE
AGREEMENr 26. All of the representations and obligations of Lessor are
contained herein. No modifications, waivers or amendments of
this lease, or any of its terms, shall be binding upon Lessor unless
it is in writing and signed by a duly authorized Officer of the
Lessor.
RAIL SERVICE 27. Lessor makes no warranties or representations, expressed
or Impled as to continued rail service to the Premises.
HOURS OPEN
TO PUBLIC 28. Lessee shall control the hours during which the Premises
shalt be open to the public.
7
ACCEPTANCE 29. Lessee has exarriined and knows the condition of the
Premises and shall enter upon and take the same in their condition
at the commencement a the term of this lease.
MAINTENANCE 30. Lessee agrees to provide all cleaning and janitorial service
and supplies, including I toilet paper and hand soap, to keep
Premises In a clean and nbat condition satisfactory to the Lessor's
Director -Real Estate. :Only those areas as defined as the
"Premises„ will be. governed by this section.
During the term of this Agreement, Lessee sbail maintain and
repair said passenger stilton and all fixtures and appurtenances
thereof, and shall keep all of the same, and any area used in the
future for commercial development, In a good state of repair,
appearance and order Oncluding, but not limited to, regular
cleaning of floors, wlndoWs, painting, plumbing fixtures and the
providing of scavenger service?, corresponding to standards that
apply to public buildings and facilities, except Lessee shall not be
responsible for repairing or replacing any structural parts of the
depot building resulting from Qrdinary wear and tear (such as
support walls, structural n embers,, columns, floors, roof, heating
plant and foundation). Lessee shalt be responsible for notifying
the Lessor, in writing, of; the need for improvements or repairs
which are to be the responsibility of the Lessor. For the purpose
of determining what Itemsishal°I be the responsibility of Lessee or
Lessor, hereunder it is her6by agreed that any single item costing
more than 52,500 to reps{ir or replace, shall be the responsibility
of the Lessor and ail othet slrtigle Items costing $2,500 or less to
repair or replace, shall be the responsibility of the Lessee.
RIGHT TO INSPECT 31. Lessor, its agents, !employees and authorized contractors
shall have the right to enter the Premises or any part thereof, at
all reasonable hours, for the purpose of Inspecting the Premises
to determine if Lessee is complying with all terms and conditions
of this tease and/or to determine through inspection and/or testing
if any hazardous condition, pollution or contamination is present
or threatened. Lessee agrees to cooperate with Lessor in any
such inspection and to provide at Lessor's request any and all
permits, reports, journals, bills, shipping papers or records of any
kind, paper or eiectronic, ;relating to any materials used, stored,
heated, disposed of or sold on or transported from the Premises.
d
BUILDING
WSURANCE 32. Lessee further agrees to obtain, at Lessee's own cost and
expense, fire, wind storm and extended coverage insurance in the
amount of full insurable value of the passenger station to be
determined from insurance agentla:p.praiser and approved by
Lessor. Said insurance shall run in favor of Lessee and shall be
endorsed to assume the contractual oblF:gations of Lessee as set
forth in this subject lease. Aduplicate copy of such insurance
policy- or a certificate of insurance and signed copy of report
showing estab:iished insurable value, shall be furnished to the
Lessor and must show on the insurance policy or the certificate
of insurance that the Lessor will be properly notified within a
thirty (30) day written notice of any modification or cancellation
of such policy. Lessee may self -insure against the risks referred
to above.
UTILITIES 33. Lessee will pay all the utility costs incurred by the operation
of the Premises.
SALE OR
ASSIGNMENT 34. Any sale, assignment, transfer, or underletting of this lease
by Lessee without the ,previious written consent of Lessor shall be
void. Such vwrittelm consent shall not be unreasonably withheld
and it is the inters of the parties hereto that portions of the
Premises will be sublet for commuter convenience service. No
act of Lessor, including acceptance of money by Lessor from any
other party, shaii constitute a waiver of this provision.
REHABILITATION 35. In the event funds become available from either a public
agency or other sources for the rehabilitation of railway stations,
the Lessor agrees that it will cooperate with Lessee or other
parties in the applications for suich funds, provided there is no
cost or expense to Lessor of any kind in the acquisition of these
funds and provided such rahabiiitation in no way adversely affects
Lessor's interests in the Passenger Station or adversely affects its
commuter railway operation.
N
IN WITNESS WHEREOF, the parties hereto have executed these presents the
clay and year first above written.
WITNESS- VNIO`N PA.CIW RAILROAD COMPANY
(For Lessor) By -
WITNESS: CITY
FQRMS10015
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NOTE -,BEFORE YOU BEGIN ANY WORK. SEE
�- -^ --- -- ---- - --• - - AGREEMENT FOP. FIBER. OPTIC PROVISIONS.
E%ti1BIT "A"
umoo40 FACQUIOC MAOILUJOAD COMPA98V
EvonsMP 13 Co'k Kanasha macs
Lease of Gen
t of lr-T�ttePOt
to the Y
on
SCALE: NONE
OFFICE OF CONTRACTS & REAL ESTATE
OMAHA, NEBRASKA Date: 4-02-96
REA FILE! 220'�5
4 L LE 0 It RO Dit 4
LEASE AREA OUTLINED ................
AREA RESERVED FOR EXCLUSIVE O,..`M
USE BY LESSOR SHOWN .................
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