HomeMy WebLinkAboutResolution 116-1994 ,
RESOLUTION NO. 116-94
AUTHORIZIHG MAYOR TO SIGN A RAILROAD SPUR LEASE AGREEMENT FOR
CHARLES GREGORY FOSTER (RAINBOW PLAY SYSTEMS)
WHEREAS, the City Mill construct at ite expense, and thereafter
opn a railroad spur, consisting of a railroad track running ad�acent
to and along property oKned by Lessee herein, and
WHEREAS, the City ie constructing the aforesaid railrosd apur for
the sole purpose of serving the aforementioned property owned by the
Lessee herein and therefore desires to lease the railroad spur to
Lessee herein,
NOW, THEREF'ORE, BE IT RESOLVED by the Board of City roved9andnere
of the City of Brookinge that such lease agreement be app
that the Mayor be authorized to sign the Agreement
Passed end approved this 6th day of December, 1994.
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BY
RAILROAD S��S�LER�@E�REEMEN�':";`•�,DEPU7Y
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� THIS AGREEMENT is made and executed; ���e d�ay.;:'and d�t� set
�,� forth by the undersigned below , by and be�Ween'`:�tYie� ,C���Y'OF
t�o BROOKINGS SOUTH DAKOTA, a Municipal Cor�S�i:a��.ion;����e.s3oz�,� also
��� referred to herein as the "City" , and CHAfi�E�S,'.��EGOR3��FOSTER ,
�1 of Brookings , South Dakota , Lessee ; .,�,-� � � ,�cy>,,•�_ �
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WITNESSETH:
WHEREAS , the City will construct at its expense , and
thereafter own a railroad spur , consisting of a railroad track
running adjacent to and along .a building owned by Lessee herein ,
and �
WHEREAS , the City i� constructing the afore�said railroad spur
for the sole purpose of serving the aforementioned building
owned by the Lessee herein and therefore desires to lease� the
railroad spur to Lessee herein , NOW THEREFORE ,
I . Description of Leasehold
IT IS HEREBY MUTUALLY AGREED , COVENANTED and UNDERSTOOD by
and between the parties hereto that Lessor, in consideration of
the covenants hereinafter mentioned , does hereby lease unto
Lessee , and Lessee does hereby lease, hire and take from the
Lessor , the railroad spur located �upon the following property,
to-wit :
Lot One ( 1 ) of Block One ( 1 ) of Rainbow Addi-
tion to the City of Brookings , County of Brookings ,
State of South Dakota.
Lessor covenants with Lessee that Lessee shall and may peace-
fully and quietly have and hold the railroad spur for the term
set forth herein .
II . Term
The term of this Lease shall be ninety-nine (99) years from
and after the date of execution of this Agreement .
III. Purpose
The Railroad Spur is intended by the parties hereto to be
�. . .
.. .
� used by Lessee to provide railroad service to the building owned
by Lessee .
IV. Rent
The Lessee , as consideration for this Agreement , together
� with the payment of One ($1 . 00) Dollar annual rent and other
good and valuable consideration , the receipt and sufficiency is
hereby conclusively acknowledged , shall also be obligated to
maintain and repair the railroad spur, and pay for the cost
thereof, so that it is in good working order sufficient to
receive railroad c�rs .
V. Assignment of Lease
Lessee may assign this Lease at any time during the term of
this Lease upon notice to the Lessor and the assignee shall be
subject to the same terms and provisions as contained in this
Agreement .
VI. Mechanic' s Liens Prohibited •
The Lessee shall , during the term of this Lease , fully pro-
tect the leased premises from all mechanie' s and materialman's
liens .
VII . Compliance With Applicable Law
The Lessee shall not permit the existence oF any nuisance
upon the leased premises or permit them to be used for any purpose
other than as herein authorized; shall at all times keep them in
proper, clean , safe and sanitary condition ; shall at all times
strictly comply with requirements of all federal , state and muni-
cipal regulations , ordinances and laws , and the orders of any
duly constituted public authority , now or hereafter in effect ,
wh ' nh in any way govern or regulai,e oecupaney or use of the
leased premises by the Lessee , and at the Lessee ' s sole expense
make all improvements , alterations , repairs or additions and
install all equipment required by any such regulations , ordinan-
ces or laws .
VIII. Insurance/Indemnification
The Lessee hereby releases Lessor from, and agrees to indem-
nify it against all loss , damage or injury caused by or resulting
from any act or omission of the Lessee , its employees or agents
of the Lessee , to the person or property of the City and its
employees or agents and to the person or property of any other
person , firm or corporation , while on or about said leased pre-
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mises; and if any claim or liability , other than fire shall
arise from the joint or concurring negligence of both parties
hereto , it shall be borne by them equally.
The Lessor shall have the full benefit of any insurance
effected by the Lessee upon the leased premises so far as
necessary to protect it against the liability specified above .
IX. Termination
This Lease will be subjeet to termination only upon a default
by Lessee herein and fail to cure after notice has been provided
as hereinbefore set forth or upon notice of termination by
Lessee to Lessor. Upon termination , Lessee shall remove all
personal property belonging to Lessee and surrender possession
of said premises to Lessor.
X. Removal of Improvements
If required by Lessor to do so upon termination of this Lease
for any reason , the Lessee shall fill any excavations that may
ha�;:: been made and surrender complete possession of the premises
to �he Lessor , in a condition satisfactory to Lessor. Should
Le:�see fail to make such restoration , the Lessor, at its elec-
tion , may restore the leased premises to substantially their
former state or may retain the Lessee ' s improvements and pro-
perty as the Lessor' s sole property.
XI . Required Revisions
This Lease and all provisic�ns thereof shall be subject to
revision at any time if made necessary by any order or finding of
the Interstate Commerce Commission or state authorities having
jurisdiction .
XII. Abandonment of Leased Premises by City
In the event the City desires to abandon the leased premi-
ses , it shall notify Lessee or its assignee and upon written
notice of acceptance of leased premises , shall by Warranty Deed ,
convey the leased premises to Lessee or its assignee for One
($1 . 00) . In the event of abandonment of the leased premises and
conveyance of said premises to Lessee herein , the Lessor shall
not be required to pay any transfer fees or incur any expense in
connection with the abandonment and conveyance to Lessee .
XIII . Notices
Any notice of termination or other notice given by the Lessor
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hereunder, shall be good if served upon the Lessee or if depo-
sited in a United States Post Office , certified mail , addressed
to the Lessee at the last known address of the Lessee.
Dated this a9 day of /V�9tJe.�� , 1994•
�gRo��'��,y^ CITY OF BROOKINGS, Lessor
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CHARLES GREGORY FOSTER
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Charles Gregory Foster, Lessee
STATE OF SOUTH DAKOTA )
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County of Brookings )
On this the � day of � , 199� , before
me , the undersigned officer , personally appeared WAYNE A.
HAUSCHILD and THEO . C. KRYGER , to me personally known , who,
being by me duly sworn , did say that they are the Mayor and City
Finance Officer , respeetively , of the City of Brookings , a
Municipal Corporation , and that they, as such Mayor and City
Finance Officer , being authorized so to do , executed the
foregoing instrument for the purposes therein contained , by
signing the name of the City by themselves as Mayor and City
Finance Officer .
IN WITNESS WHEREOF , I hereunto set my hand and official seal.
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.6 '� ' souYH �AKor�► ��� � Nota P �lic , Sta/ of Sout Dakota
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STATE OF SOUTH DAKOTA )
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County of Brookings )
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On this the d+ � � day of N��`�- r'^�01�- r , 1994 , before
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� me , the undersigned officer, personally appeared CHARLES GREGORY
FOSTER , known to me or satisfactorily proven to be the person
whose name is subscribed to the within instrument and
aeknowledged that he executed the same for the purposes therein
' contained .
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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�:L'- .�J..�.../. ..�BY_
REGIST�R OF DEL•DS '' � �� � dF��
OPTION T-O��U�C�SE:f:
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�� Option granted this �9 day:o� Novemk�e�', :1994, by the CITY
i:'': OF BROOKINGS, hereinafter called; �h��:�Qptior�s���-to CHARLES GREGORY
�'� FOSTER of Brookings, South Dakot�,;#�ie'r��,m3f�e� .called the Optionee.
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�1 ��' ,� ~ ��� � Yn�-consideration of the
1. Grant of Option. The Optibno ;
sum of One Dollar ($1.00) , the receipt�o�\which is hereby acknowl-
edged, hereby grants to the Optionee the exclusive riqht, at his
option, from the date of execution of this instrument for a period
of ninety-nine (99) years, to purchase the following described
parcel of land:
Lot One (1 ) in Block �One (1) of Rainbow _.. ..___„ .
Addition to the City of Brookings, County
of Brookings, State of South Dakota,
for a price of One Dollar ($1.00) , subject to the followinq:
2. Exercise of Option. This Option may be exercised by
Optionee at any time after Optionor' s liability and obligation to
maintain ownership of the property described herein expires under
the terms of a Community Development Block Grant. In case the
� Optionee shall elect to purchase the said property, he shall
signify such election by written notice thereof, served upon the
• Optionor by U.S. Mail, within the time above limited; and there-
after the Optionor shall deliver to the Optionee a certificate of
title insurance to said property, within fifteen (15) days from the
service of said notice, and Optionee shall have fifteen (15) days
after delivery of said certificate of title insurance in which to
complete said purchase. The costs of title insurance, and all
costs of transfer, shall be paid by Optionee.
3. Conveyance. If the Optionee shall complete such purchase,
as described above, the Optionor shall give a good and merchanta.ble
title, in fee simple, to said property, free and clear of all taxes
anci encumbrances, and shall convey the same by Warranty Deed to the
O��_ionee.
4 . Place of Performance. All notices, tenders, and
deliveries hereunder shall be served and made at the office of
Optionee' s Attorney, RONALD C. AHO, at 518 Main Avenue, City of
Brookings, County of Brookings, State of South Dakota.
5 . Right to Assign. Optionee shall have the right to assign
this Option to Purchase, in its entirety, without the consent of
the Optionor.
6 . Successors Bound. This agreement shall be binding upon
and inure to the benefit of each of the parties hereto and their
respective heirs, executors, administrators, assigns and
successors. '
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7. Restriction on Sale to Others. Optionor agrees not to
sell or offer for sale the above-described real estate during the
life of this option or any renewal thereof, to anyone other than
the Optionee, or his assigns.
8. Warrantv of Title: Optionor warrants that it is the title
holder of record to all real estate described herein and that upon
the exercise of the options provided for herein, will deliver to
Optionee, clear title to the property, free and clear of all liens
and encumbrances.
Dated this �_ day of November, 1994.
CITY OF BROOKINGS
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pF «« '�Gy BY•
����°���' i �Wayne . Hauschild, Mayor
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CHARLES GREGORY FOSTER
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Charles regory Foster, Optionee
STATE OF SOUTH DAKOTA )
) ss
County of Brookings )
On this the � day of November, 1994, before me the under-
signed officer, personally appeared WAYNE A. HAUSCHILD and TIiEO C.
KRYGER, to me personally known, who, being by me duly sworn, did
say that they are the Mayor and City Finance Officer, respectively,
of the CITY OF BROOKINGS, a Municipal Corporation, and that they,
as such Mayor and City Finance Officer, being authorized so to do,
executed the foregoing instrument for the purposes therein
contained, by signing the name of the City by themselves as Mayor
and City Finance Officer.
IN WITNESS WHEREOF I hereunto set my hand and official seal.
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STATE OF SOUTH DAKOTA )
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County of Brookings )
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On this the o�9 � day of November, 1994, before me the under-
signed officer, personally appeared CHARLES GREGORY FOSTER, known
to me or satisfactorily proven to be the person whose name is
subscribed to the within instrument and acknowledged that he
executed the same for the purposes therein contained.
IN WITNESS WHEREOF I hereunto set and and official seal.
(SEAL) �Not y lic - South Dakota
My commission expires: � ��
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PREPARED BY: �
Ronald C. Aho, P.C.
Attorney at Law
P.O. Box 767
Brookings, SD 57006-0767
(605) 692-9456