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HomeMy WebLinkAbout895731i OOK 54 J PRPAOn RECEIVED LINCOLN COUNTY CLERK 03~[C-5 ~H 2:06 JEANNE ;:¢AGNER This TERMINATION OF WATER SYSTEM LEASE is entered into by and between ASTARIS PRODUCTION LLC, a Delaware limited liability company ("Astaris"), as assignee and successor of FMC Corporation, a Delaware corporation ("FMC"), and THE PITTSBURG & MIDWAY COAL MINING CO., a Missouri corporation ("P&M"). WHEREAS, by Lease dated July 9, 1987, P&M leased to FMC certain real property located in Lincoln County, Wyoming ("Lease") for the purpose of FMC's ownership, operation and maintenance of a water pumping system and reservoir ("Water System"). WHEREAS, The Lease was thereafter assigned to Astaris and Astaris assumed all rights and obligations under sUch Lease as lessee thereunder. PacifiCorp purchased the Water System from Astaris on December 13, 2002 and Astaris and P&M have mutually agreed to terminate the Lease effective as of such date ("Termination Date"). WHEREAS, the Lease covered the lands set forth on Attachment 1 hereto. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Astaris and P&M agree and confirm that the Lease is terminated as of the Termination Date set forth above, is no longer of any force or effect as of such date, and that neither party has any further rights or obligations under the Lease. IN WITNESS WHEREOF, this Termination of Water System Lease is executed and delivered effective as of the Termination Date. ASTARIS PRODUCTION LLC Name' Robert Ashton Its' Secretary THE PITTSBURG & MIDWAY COAL MINING CO. Nam~. J. G. di Zere~:r f Its: Vice-president STATE OF MISSOURI COUNTY OF ST. LOUIS SS. The foregoing instrument was acknowledeed before me by Robert Ashton, as Secretary of Astaris Production LLC, this ][~-k_ day of .~:r:-'~9~ e ~ge_P... 2003. Witness my hand and official seal. i ' ' ' LINDA $. NICKEL$ON Notary Publl(~ - Notary Seal STATE OF MISSOURI St, Louis County./') ' My Commission [xpires: A,ffri.J,/1.73~OOC:;t// My comtnisslun =xpuc~. r'.,cq,.'~., ~,~ - /~ - l'~otary PublF 2oo6 STATE OF COLORADO CITY & COUNTY OF DENVER SS. The foregoing instrument was acknowledged before me by J. G. di Zerega, Vice- president of The Pittsburg & Midway Coal Mining Co. this ~t~.day of August, 2003. Witness my hand and official seal. Notary Public My commission expires: 298754 I_6.DOC LEASE THIS AGREEMENT made this . 9th day of July 1987 between THE PITTSBURG & MIDWAY COAL MINING CO., a MiSsouri torpor- ation [hereinafter "Le-~-~or") , and FMC CORPORATION, a Delaware corporation (hereinafter "nessee"). W I T NE S S ET H ; 1. Lessor, in consideration of the rents and covenan-ts herein agreed to be paid and performed by Lessee, does hereby demise, lease and let, and Lessee does hereby hire and take from Lessor, the surface only of the following described premises located in the County of Lincoln and State of Wyoming, to-wit: Township 21 North, Range 116 West, 6th P.M. Parcel #A" - Pumping Site: A portion of Tract 38, commencing at the South ~ection corner common 'to Sections 35 and 36; thence N67"52'E a distance of 1756' to the point of beginning; thence S49"00'E a distance of 138', to a point on the West right-of-way boundary line of the Union Pacific Oregon Short Line Railroad; thenc~ in a southeasterly direction along the right-of-way curve of the West right-of-way boundary line of said Union Pacific Railroad a disuance of 386'; thence N49"0O'W a distance of 920'; thence N41"[)0'E a distance of 200'; thence S49'00'E a distance of 452' to the point of beginning, containing 3,446 acres, more or less. Parcel "8" - Reservoir Site: Section -1- 285 Parcel "C", .y Pumping _Site: A parcel of land located in a portion of the NW%SE% and in a portion of NE%SW% of the Besurvey of Section .7, T20N, Rll6W of the 6th P.M., Lincoln County, Wyoming, being more particularly described .as follows: Commencing at a brass cap mon~nent represent:- ing the South quarter corner of said Smction 7; thence N06~40'26"W a distance of 2185.71' more or less to a point on the East right-of-way of Highway U.S. 189, said point also being the point of b~ginnin~; thence S02"14'16"W along said right-of- way a distance of 150'; thence $87"45'44"E a distance of 290.40'; thence N02"1¢'16"~ a distance of 150'; thence N87"45'44"W a distance of 290.¢0~ to the point of beginning, containing 1.0 acres, more or less. The above described properties are hereinafter referred to as the "Leased Premises." 2. This Lease shall continue for a term of ten (10) years from the date first written above; subject, however, to Lessee's option to renew the Lease on the same terms and conditions for a furthmr period of ten (10) years, provided Lessee give~ Lessor written notice of its election to renew at least ninety (90) days prior to the expiration date of the lease period, and provided further, that at the time of much renewa~ the rental ,~hall be determined by mutual agreement between the parties, such adjusted rental to be in an a~ount not in excess of the then fair rental valu~ per acre for like land. Fair rental value shall be deemed -2- to mean the amount of rental being charged ~t the tame of' renewal for. leased land ~J. milar in character to the Leased Premises. If Lessor and Lessee are unable to agree upon a fair market r~.ntal for the second ten-year lease term; the re:ntal for the second ten-year lease term shall be determined by a panel of three arbitrators. Lessor and Lessee shall each designate an arbitrator and the two arbitrators so appoin'ted shall designate a third arbitrator. The arbitrators shall agree upon a fair'market rental for the second ten-year lease term period. If the three arbitrators cannot agree, the fair market r~ntal set by two of the three arbitrators ~hall be binding on Lessor and Lessee for the second %eh-year lease term. 3. Lessee is expressly given the right and privilege to use the Leased Premises for the construction, operation and mainten- ance of a pumping station and reservoir. 4. Consideration for this Lease ~hall be the execution by Lessee of the Lease attauhed hezeto as £xhibit "A" which cover~ property owned by Lessee which Lessor desires to lease. 5. Lessee shall have the right of ingres~ and egress to and from the Leased Premises for the purpose~ aforesaid, and Lessee hereby expressly covenants and agrees that Lezsor and/or its -3- lessees shall have the right of ingress and egress 'to the Hamsfork River, traversing Parcel "A" of said premi~e~, for %h~ purpose of watering livestock. 6. Thc Lease of the Leased Premises unto Lessee shall not in any way interfere with, Limit or hinder ~uid Lessor in the operation of its business; provided, such operations shall not interfere with the use of said Leased Premises by Lessee for the purposes hereinabove specified, and Lessor expressly reserves unto iti the right of ingress and egress, and this Leas~ is ~pre~sly made subject to all ~urface grants of recora or discernible from inspection of ~he Lea~ed Premises. 7. Lessee agrees to save Lessor harmless from an~ indemnify it against any and all loss, damage, claim~, demands and causes of action, including alI costs and expenses to Lessor incident thereto, whiUh may result from injury to or death of persons whomsoever, or loss of or damage to property or property rights whatsoever, or any such injury, death, loss, damage, cla~,, demand or cause of action arising or in any way growing out of the negligencm or improper acts of Lessee. ~. Lessee agrees not to assign or sublet this Lease, in whole or .in ~art, without the consent in writing, of Les~or, and it is agreed tha~ any assignment thereof, ~hether voluntary or involuntary, without such consent in writing' sAall be a~solutely void and ~hall terminate this Lea~e; subject, however, to Lessee's right to a.~ign or sublet this Lease w£thou% the consent of Lessor to the s~¢cessors and assigns.of Lessee's business, wh.~ther by merger, ~onso'lidation or other trans£er of Lessee's business. Les~or's consent shall not be un:easonably withheld. 9. Title to any materials and equipment installed on the Leased Premises, including buildings erected thereof, by Lessee shall remain with Lessee and shall bs p~rsonal property~ regard- less of location or mode of attachment to realty, and Lessee ~hall have a period of ninety {90) days after the said expiration of this Lease wi'thin which to remove any of said personal property from the Leased Premises. 10. In the even~ of Lessee's default in performance of its obligations hereunder, on ten {10) day~' prior written notice from Lessor to Lessee, Lessor shall be entitled to take such action as is permissible under the laws of the State of Wyoming. 11. The provisions of this Lease shall extend to the succes- sors and assigns of either of the parties hereto. 12. Lessee hereby relinquishes that lease dated Noven~er [0, 1979 by and between Lessee and The Kemmerer Coal Company, Les$or's p.r'e~ecessor in kitle ~o the Leased Premises, which lease covers Parcels "A' and "~# of the Lea~ed Premi~e~. -5- ',:,'..',:,~ IN WITNESS WHZR$OF, the parties hereto have hereunto set their hands and smals by their duly authorized officers on the date. first, written above. Attest: Assistant ~ecretar~ Attest: THE PITTSBUBG & MIDWAY COAL MINING CO., Lessor ~-re sidb'n% ' // ~MC CQRFORATION~ L~sHee STATE OF COLORADO COUNTY OF ARAPAHOE Thm foregoing instrument was acknowledged before me hy __ , of The Pittsburg & Midway Coal MiH}~hg Co., on behalf of the Gorporation this day of , 1987. Witness my hand and o~ficial seal. My commission expires · 4 ) ss. COUNTY OF ~[~o,~'~.~h~/~ ) Address The foregoing instrument was acknowledged before me by {~..~ ~W~-EAF~ , ~/,~,L~ /~AmA&~ of FMC Corporation, on behalf of the corporation this ~t~' day of ~&~ ....... , 1987. Witness my hand and officialseal. My commission expires _~~ /~ t~/ . IXHIEIT "A" ~.~ 9 0 LEASE THIS AGREEMENT made this day of , 1987 between FMC CO~ORATION, a Delaware corporation (hereinafter '~essor'), and THE PITTSBURG & MIDWAY COAL MINING CO., a Missouri corporation (hereinafter "Lessee") . W I TN E S SETH : herein demise, ~essor, located in the County of Lincoln and State of Wyoming, Lessor, in consideration Of the rents and covenants agreed to be paid and performed by Lessee, does hereby lease and let, and Lessee does hereby hire and take from the surface only of the following described premises to-wit~ A parcel of land located in the' NWR of Section 12, T20N, Rll7W of the 6th P.M., Lincoln County, Wyoming, and more particularly described as follows~ Commencing at a brass cap being the West quarter- corn,er of said Section 12; thence N00°18'37''E a distance of 460.70' to a point on the West section line of said Section 12 and on the centerline of the Elkol branch of the Oregon Short Line Railroad Company, being the Southwest corner of said parcel, also being the point of beginning; thence N00"lS'37"E a distanc~ of 103.25' 'to a point on the West section line of said Section 12 and on the North right-of-way line o~ the Elkol branch of the Orego[~ Short Line Railroad Company; thence continuing N00~lS'37"E along said section line a distance of 22~.63' to a point, being the Northwest corner of said parcel; thence N90"00'00"E a distance of ~80.48' to a point, being the Northeast corner of said parcel; thence S00"00'00"W a distance of 34~.87' to a point on the North right-of-way line of the Elkol County Road Nco 12-304, being the Southeast corner of said parcel; thence S56"28'37"W a distance of 181.24' to a point on the North right-of-way lane of the Elkol branch of the Oregon Short Line Railroad Company an4 on the North right-of-way line of the Elkol County Road No. 12-304; thenc,~ S56"2§'37"W along said North right-of-way lime of Elkol County Road No. 12-304 a distance of 134.04' to a point on the centerline of the Elkol branch of the Oregon Short Line Railroad Company, being the ~outhern- most .corner of paid parcel;, thence N75"16'23"W along said centerline of the Elkol'branch of the Oregon Short Line Railroad Company a dl~'tance of 743.87' to the true point of beginning, bounding 9.60 acres, more or less. Basis of bearing is grid North for the Wyoming State Plane Coordinate System, .Western Zone. 291 The above described property is hereinafter referred to. as the "Leased Premises-." 2. Thi~ Lease shall continue for a term of ten (10) years from the date first written above; subject, however, to L~ssee'$ option to renew the L~a~ on ~he mame terms an& conditions fo~ a further period of ten (10) years, provided Lessee giu~s Lessor written notice of its election to renew at least ninety (90) days prior to =he e~piration 4ate of ~he lease period, and provided further, that at the time of such renewal ~he rental ~hai1 be determined by mutual agreement between the patti,s, such adjus'ted rental to be in an amount not in excess of the then fair rental value per acre for like land. Fair rental value shall be deemed to mean the amount of renfal being charged at the time of renewal for leased land similar in character to the L~ased Pre~isem. If Lessor and Lessee are unable to agree upon a fair market r~ntal for the second ten-year lease term, the rental for the second ten-year lease term shall be d,termined by' s panel of three arbitrators. Lessor and Lessee shall each dali. gnats an 92 arbitrato~ and the two arbitrator~ so appointed shall designate a third arbitrator. The arbitrators shall agree upon a fair market rental for the second ten-year lease term period. If the three arbitrators cannot agree, the fai~ markBt rental set by two of the three arbitrators shall be binding on Lessor and Lessee for the second ten.-year lease term. 3. Le-qsee is e~pressly given the right and privilege to use the Leased Premises for the construction, operation and mainten- ance of a rail line for the diversion of runaway railroad cars. 4. Consideration for this Lease shall be the execution by Lessee of the Lea~s attached hereto as ~xhibit 'A' which covers property owned by Lessee which Lessor desires to lease. 5. Lessee shal[ have the right of ingres~ and egress to and from the Leasmd Premises for the purposes aforesaid. 6. The Lease of the Leased Premises unto Lessee shall not in any way interfere with, limit or hinder said Lessor in the operation of its business; provided, such operatic~'s shall not interfere with the use of said LeaEed Premises by Lessee for the purpome~ hereinabove specified, and Lessor expressly reserve~ unto it the right of ingress and egress, and this Lease is expressly made subject to all surface gran~s of record or discernible inspection of the Leased Premises. -3- 7. Lessee agrees to save Lessor harmless from and indemnify it against any and all lo~s, damage, claims, demands and causes of action, including all costs and expenses to Lessor incident thereto, which lnay 'result from injury to or death of persons whomsoever, or lo~s of or damage to property or property rights whatsoever, or any such injury, death, loss, damage, claim, domand or cause of action arising or in any way growing out of the neglig'encs or improper acts of Lessee. B. Lessee agrees not %o assign or sublet this Lease, in whole or in part, without the consent in writing of Lessor, and i't is agreed that any assignment thereof, whether voluntary or involuntary, without such consent in writing shall be absolutely void and mhall terminate this Lease; subject~ however, to Le$~ee's right to assign or sublet this Lease without the consent of Lessor to the successors and assigns of Lessee's business, whether by merger, consolidation or other transfer of Lessee's busine~s. LesSON'S consent shall not be unreasonably withheld. 9. Title to any materials and equipment installed on the Lea~ed Premises, including buildings erected thereof, by Lessee shall remain with Lessee and shall be personal property, =egara- less o~ location or mode of attachment to realty, and Le~a shall have a period of ninety (90) days after the said expiration of this Lease within which to remove any of said personal property from the Leased{ Premises. 10. In the event of LesSee's default in performance of its obligations hereunder, on ten (10) days' prior written notice from Lessor to Lsssee, Lessor shall be entitled to take such action as is permissible under' the lawm of the State of Wyoming. 11. The provisions of this Lease shall extend to the succes- sors and assigns of either of the parties hereto. IN WITNESS WHEREOF, the parties hereto have hereunto set their haBd$ and seals by their duly authorized officer~! on thm date first written above. Attest~ THE PITT~BURG & MIDWAY COAL MINING CO., Las~e~ Asmi~tant Secretary By President Attest' Secretary FMC CORPORATION, Lessor ¸-5- 95 STATE OF COLORADO cOUNTY OF ARAPAHOS The foregoing instr~unent was acknowledged before me by , of The Pit~sburg & ~'Idway Co~i'"Mining C6., on behalf'of the corporation this _-- day of , 1987. Witness my h~nd and offiuial seal. My commission expires Title: Address: STATE OF ) ) ss. COUNTY OF ) The foregoing ins=rument was acknowledged before me by __, of FMC Corporation, on behalf of t~e corporation this __ day of , 1987. Witness my hand and official sea!. 'My commission expires Title: Address: -6-