111730 •
1 RESOLUTION NO. 11,173
2
3 A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY CLERK TO
4 EXECUTE DOCUMENTS FOR THE PURCHASE OF ABANDONED UNION
5 PACIFIC RIGHT -OF -WAY THAT WILL BE PART OF THE WILLIAM
6 JEFFERSON CLINTON PRESIDENTIAL PARK; TO TAKE ALL STEPS
7 NECESSARY TO FINALIZE THIS PURCHASE; AND FOR OTHER
8 PURPOSES.
9
10 WHEREAS, the City Board of Directors adopted Little Rock, Ark., Resolution No.
11 10,125 (November 7, 1997) ( "LRR_ "), to create the William Jefferson Clinton Presidential
12 Park District ( "Clinton Presidential Park "), and
13 WHEREAS, pursuant to Little Rock, Ark., Ordinance No. 17,690 (March 17, 1998)
14 ( "LRO _ ") the City issued capital improvement revenue bonds, authorized by
15 Amendment 65 to the Arkansas Constitution, and the proceeds from this bond issue
16 included monies to pay for land acquisition for the Clinton Presidential Park, and
17 WHEREAS, in 1998 and 1999 the City began to acquire property, through purchase
18 or condemnation, for the property within the park boundaries which includes a certain
19 amount of now abandoned right -of -way owned by the Union Pacific Railroad and the old
20 railroad bridge immediately adjacent to the park site, and
21 WHEREAS, LRO 17,690 expressly authorizes that some of the proceeds may be
22 used to purchase this right -of -way for inclusion in the Clinton Presidential Park, and to the
23 extent necessary may be used to move the railroad switch that otherwise would serve this
24 area and other railroad right -of -way in the near vicinity and part of the park chain along
25 the Arkansas River, and
[PAGE 1 OF 31
Clinton Presidential Park
Purchase of railroad right -of -way
0
f
i WHEREAS, the City has negotiated with representatives for the purchase of this
2 right -of -way and for the donation of additional property, and are in agreement in concept
3 as to the terms and conditions of the purchase, and are close to final agreement to the
4 language, and wish to complete the transaction as soon as possible,
5 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF
6 THE CITY OF LITTLE ROCK, ARKANSAS:
7 Section 1. The Mayor and City Clerk are authorized to execute any and all
8 documents to effect the transfer of title of certain railroad right -of -way from the Union
9 Pacific Railroad to the City of Little Rock, Arkansas, in accordance with the various terms
10 and conditions set forth in an agreement that shall be the same, or substantially similar to,
11 that attached as Exhibit A to this Resolution.
12 Section 2. Although the City will receive in donation additional right -of -way
13 and property through the execution of this agreement, funds for the three million dollars
14 ($3,000,000) portion to purchase a part of this right of way, which was identified as one of
15 the uses of proceeds from the $16,405,000 City of Little Rock, Arkansas, Capital
16 Improvement Revenue Bonds: Parks & Recreation Projects, Series 1998A, are available in
17 Account No. 305 - 214 -A105.
18 Section 3. Severability. In the event any title, section, paragraph, item, sentence,
19 clause, phrase, or word of this resolution is declared or adjudged to be invalid or
20 unconstitutional, such declaration or adjudication shall not affect the remaining portions
21 of the resolution which shall remain in full force and effect as if the portion so declared or
22 adjudged invalid or unconstitutional was not originally a part of the resolution.
23 Section 4. Repealer. All resolutions, bylaws, and other matters inconsistent with
24 this resolution are hereby repealed to the extent of such inconsistency.
25 ADOPTED: December 4, 2001
26
Clinton Presidential Park
Purchase of railroad right -of -way
[PAGE 2 OF 31
0
1 ATTEST:
2
3
4 Nana Woo , City Clerk
5 APPROVED AS TO LEGAL FORM:
6
8 Thomas M. Carpenter, Ci Attorney
9 H
to H
11 H
12 H
13 H
14 H
15 H
16 H
17 H
18 H
19 H
20 H
21 H
22 H
23 H
24 H
25 H
26 H
[PAGE 3 OF 3]
Clinton Presidential Park
Purchase of railroad right -of -way
0
APPROVED:
Mw
u.
Clfffln/l ll �X .
Jim Bailey, Mayor
1
0
• 2016 -59
DONATION, PURCHASE AND SALE AGREEMENT
This Donation, Purchase and Sale Agreement is entered into this day of
' 2001 ( "Execution Date "), between UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation, whose address is 1416 Dodge Street, Omaha, Nebraska
68179 ( "Seller "), and CITY OF LITTLE ROCK, a municipal corporation of the State of
Arkansas, whose address is City Hall, 500 W. Markham, Little Rock, Arkansas 72201
( "Purchaser "), WITNESSETH:
IT IS MUTUALLY AGREED by and between the parties hereto as follows:
Section 1. Donation, Purchase and Sale of the Property.
Seller agrees to sell and donate and Purchaser agrees to purchase and accept, on
the terms and conditions of this Agreement, Seller's right, title and interest in and to certain real
and personal property (hereafter sometimes collectively called the "Property "),situated in Little
Rock and North Little Rock, Pulaski County, Arkansas, shown on the print marked Exhibit A,
attached hereto and hereby made a part hereof, which are generally described as follows:
A. Seller's right -of -way from the south boundary of the Presidential Library site at
approximately East Second Street running westwardly to the Little Rock Junction
Railroad Bridge in Little Rock;
B. Seller's right -of -way north of the Little Rock Junction Railroad Bridge running
northwardly to the north right -of -way line of Washington Avenue in the City of
North Little Rock ( "North Little Rock Parcel ");
C. The real property owned by Seller contiguous with such rights -of -way referenced
in Paragraphs A. and B. above;
D. A parcel of land containing approximately 40,000 square feet, more or less,
situated generally south of the Little Rock Junction Railroad Bridge between
Cumberland and Rock Streets in Little Rock (the real property described in
Paragraphs A, B, C and D, and the interests therein, collectively the "Real
Property "); and
E. The Little Rock Junction Railroad Bridge and the CRI &P Railroad Bridge,
together with any trackage and appurtenances thereto located thereon
(collectively, the "Personal Property "), EXCEPTING, however, from such
conveyance all signal, communication and similar electronic equipment used or
useful in Seller's railroad operations which shall be removed by Seller after
obtaining the STB Approval as set forth in Section 8 below.
EXCEPTING from this sale and RESERVING unto Seller, its successors and
assigns, forever, exclusive PERPETUAL EASEMENTS ten feet (10') in width measured from
EX IIBTT A: Page 1 of 27
Clinton Presidential Park: UP Right -of -Way Purchase
IOIOM 1
GUAWADMI MWSANWK* I LL. tt1eRmk.pu#3.dm
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the ccnterline of the Fiber Optic Im rove •
except 20]6 -59
p or the North Little P menu, in on
(and its easement Rock parcel ( "fiber o , over, under and across the
right too holders, lessees, sublessees Phcs easement Real property
Own reconstruct ,licensees property ), in which
communications , maintain, o successors or areas Seller
to, all existing ystems, lines and facilities of everate, use and/or re assigns} shall have the I-V equipment facilities, telephone tele ra ktnd and nature m] cludii existing
(the Fiber O g Ph, television g, but not li�ture
successors and tics Irnprovemcnts "). Seller and fiber o tic roiled
over and across the s
assigns, a limited ri does P lines and related
Real Propert ght of-wr t and right of accesrto the fiber eo t0 itself, its
the use, enjoyment, Y (except for the No
Fiber O maintenance, operation and access h the Little
fi Roo parcel optics easement
optics in present! ), for the
easement property shalt remain the Y existing Purposes of
revenues derived from all Cu, °n or hereafter Optics
All
personal property of Seller constructed on the fiber o
fiber optics easement orient and future a Seller shall be entitled to all
Optics easement ro property. Seller further reserves to which Seller is a party
easements, license s e leases with other lawful the right to use the subsurfae affect-
casements,
Purpose, includin g the
no material or obstruction of wltlt third g, but not Limited to, e of the fiber
Parties. No permanent building, Optics easement anY kind or character shall be ntering into
written consent oft e erty which would stored or g' structure or fence and
obstruct or interfere with maintained
easement owner• to or °n said fiber
without the prior
successors and assiR nsI aReEXCEPT�rG
Mainten g temporary from this sale and RESERVING
ance, repair renewal and re for pn °of railroad trackage present location over ght °f waY for the Construction unto Seller, its
Seller's railroad and across the pro , operation,
over the Pro e pertY, together with h and appurtenances in their
Approval (as defined in P for a period to (i) the exclusive right uAon said easement area for then 8 below and including the date ght to operate
), and (ii) the right of ingress
Seller rec
expire ninety (9Q days t OrS Ofexercisin the rights herein reserved receives ST13
Y after receipt of STB A g g egress to, from and
pproval. , said easement to
and all applicable The sale and donation
s federal state and local laws orders
to
outstanding rights Of era],
or o this Agreement shall
pen and obvious on then rules and regulations, subject to any
Section 2 ground, gulations, and any and all
�_• Purchase Price. Donation•
($3,0O0000 OQThe purchase price for the
Property exceeds the Purchaser Price, Property rs
)• The parties acknowled eTHREE MILLION
Charitable contribution to the extent -, , excess. r g that the fair DOLLARS
and that the Property is being market value of the
execute and furnish to Seiler Internal g donated to Purchaser as a
Property as a contribution to the extent nt e ue Service F n request of Seller
Purchaser to Seller at Closing, ° 82g3 acknowled in haser agrees to
xcess. The purchase price shall receipt pt of the
paid by
,mono,
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• • 2016 -59
Section 3. Conditions Precedent to Sale.
This Agreement is made and executed by the parties hereto subject to the
following conditions precedent:
(a) Title Review. On or before October 12, 2001, Purchaser, at its sole cost
and expense, shall obtain from Beach Abstract & Guaranty Company, 100 Center Street, Little
Rock, Arkansas 72201 ( "Title Company "), a preliminary title report on the Property, and copies
of all documents referred to therein, and furnish same to Seller. Purchaser shall have until
October 26, 2001 in which to approve or disapprove any defects in the title or any liens,
encumbrances, covenants, rights of way, easements or other outstanding rights disclosed by the
preliminary title report or the survey referred to in subparagraph (b) below, except those matters
set forth in Section 6. Disapproval shall be by written notice given by Purchaser to Seller setting
forth the specific item or items disapproved by Purchaser. If no such notice of disapproval is
given by Purchaser on or before October 26, 2001, it shall be conclusively presumed that
Purchaser approves of said preliminary title report and survey. In the event of disapproval by
Purchaser of any item or items contained in or disclosed by said preliminary title report or
survey, Seller shall have ten (10) days after receipt of Purchaser's notice of disapproval to
eliminate any disapproved items from the policy of title insurance to be issued in favor of
Purchaser. In the event any such disapproved item is not eliminated within such ten (10) day
time period, then this Agreement shall terminate unless Purchaser shall have elected to waive its
prior disapproval in writing at least five (5) days prior to the Closing Date (as defined in Section
7 below). In the event of termination due to any such uncorrected defect in title, this Agreement
shall terminate and be without any further force and effect, and without further obligation of
either party to the other.
(b) Survey. Purchaser may elect, at its sole cost and expense, to obtain a
survey of the Property. If Purchaser so elects, Purchaser shall furnish a copy of same, prepared
and certified by a public surveyor registered in the State of Arkansas, to Seller on or before
October 12, 2001. The survey, as approved by Purchaser as set forth in subparagraph (a) above
and as approved by Seller, shall be used by Seller as the basis for preparation of the metes and
bounds description of the Property.
(c) Feasibility Studies. Upon execution of this Agreement, Purchaser, and its
agents and contractors, are granted the privilege for a period to and including October 26, 2001
( "Feasibility Review Period ") of entering upon the Property for the purpose of performing
environmental audits, soil tests, engineering and feasibility studies of the Property as Purchaser
may deem necessary to determine the suitability of the soil conditions and other physical
conditions of the Property. If the results of such audits, tests or studies are unsatisfactory in
Purchaser's reasonable opinion, Purchaser may, at its option, terminate this Agreement by giving
Seller written notice of termination before expiration of the Feasibility Review Period. If no
such written notice of termination is given by Purchaser to Seller before expiration of the
Feasibility Review Period, the Property shall be deemed suitable for Purchaser's purposes. In
the event of such termination by Purchaser, then Purchaser shall surrender to Seller copies of all
audits, soils, engineering and any other reports prepared for Purchaser pertaining to the Property
and said reports shall become the sole property of Seller without cost or expense of Seller (and
EXHIBIT A: Page 3 of 27
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the contents thereof shall be kept confidential by Purchaser and Purchaser's consultants), and this
Agreement shall terminate and be without any further force and effect, and without further
obligation of either party to the other. Regardless of whether or not this Agreement is
terminated, Purchaser shall promptly furnish Seller with a copy of any and all reports on
environmental assessments performed for the benefit of Purchaser.
In the event Purchaser, its agents or contractors, shall enter upon the Property for the
purposes set forth in this Section 3(c), such entry shall be subject to the following terms and
conditions:
(i) Purchaser agrees to indemnify and save harmless Seller and /or Seller's
affiliates ( "Seller's affiliates" means any corporation which directly or indirectly controls
or is controlled by or is under common control with Seller), their officers, agents,
servants and employees, against and from any and all liability, loss, costs and expense of
whatsoever nature growing out of personal injury to or death of persons whomsoever, or
loss or destruction of or damage to property whatsoever, where such personal injury,
death, loss, destruction or damage arises in connection with or incident to the occupation
or use of the Property by, or the presence thereon of Purchaser, Purchaser's agents,
contractors, servants or licensees prior to Closing;
(ii) Purchaser covenants and agrees to pay in full for all materials joined or
affixed to, at the instance or request or on behalf of Purchaser, and to pay in full all
persons who perform labor upon, the Property, and not to permit or suffer any mechanic's
or materialman's lien of any kind or nature to be enforced against the Property for any
work done or materials furnished thereon at the instance or request or on behalf of
Purchaser; and Purchaser agrees to indemnify and hold harmless Seller against and from
any and all liens, claims, demands, costs and expenses of whatsoever nature in any way
connected with or growing out of such work done, labor performed or materials furnished
prior to Closing;
(iii) In the event the donation, sale and purchase of the Property does not close,
Purchaser shall, as soon as possible and at Purchaser's sole expense, restore the Property
to the same condition it was in immediately prior to the time Purchaser entered the
Property, failing in which Seller may perform the work of restoration and Purchaser shall
reimburse Seller for the cost and expense thereof within thirty (30) days after rendition of
bill therefor by Seller; and
(iv) Notwithstanding any provisions in this Agreement to the contrary, in the
event this Agreement is terminated for any reason whatsoever, Purchaser nevertheless
shall be obligated to comply with the provisions of this Section 3(c).
(d) Seller's Management Approval. The terms and conditions of this transaction are
subject to approval in accordance with Seller's Management Policy Statement. Notice of
approval or disapproval shall be given by Seller to Purchaser on or before , 2001, and
failure to give such notice within said time period shall be deemed notice of disapproval. In the
event, within said time period, the terms of this Agreement are not approved in accordance with
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Clinton Presidential Park UP Right -of -Way Purchase
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Seller's Management Policy Statement for any reason whatsoever, this Agreement shall be
deemed terminated forthwith. In the event of such termination, the Escrow Fund shall be
returned to Purchaser, and this Agreement shall be without any further force and effect, and
without further obligation of either party to the other.
Section 4. Escrow.
Upon execution of this Agreement by both parties, an escrow account shall be
opened with Title Company, and Seller and Purchaser shall thereupon deposit with Title
Company a copy of this Agreement. On or before the Closing Date, Purchaser shall deposit with
Title Company the Purchase Price, and the Donative Bill of Sale referred to in Section 5 and the
Assignment and Assumption Agreement referred to in Section 6 as executed by Purchaser, and
Seller shall deposit therein the Donative Bill of Sale referred to in Section 5, the Quitclaim Deed
referred to in Section 5, and the Assignment and Assumption Agreement referred to in Section 6
as executed by Seller. Title Company shall be instructed that when it is in a position to deliver to
Seller the Purchase Price, and to issue a standard owner's policy of title insurance in the full
amount of the Purchase Price, insuring fee simple title to the Property in Purchaser, subject only
to the items set forth in Section 6, Title Company shall:
(a) record and deliver the Quitclaim Deeds to Purchaser;
(b) deliver the Donative Bill of Sale to Purchaser;
(c) deliver an executed counterpart of the Assignment and Assumption
Agreement to Purchaser and Seller;
(d) deliver to Seller the Purchase Price; and
(e) issue and deliver to Purchaser the standard owner's policy of title
insurance.
At closing,
(a) Seller shall pay Seller's pro rata share of real estate taxes (whether general
or special) assessed against the Property and due and payable for the year of Closing;
(b) Purchaser shall pay the following costs:
(1) The escrow fee;
(2) The cost of recording the Quitclaim Deeds;
(3) The premium for the issuance of the standard owner's policy of
title insurance;
(4) The Arkansas State real estate excise tax, if any;
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(5) The cost of the required state revenue stamps, if any; and
(6) Purchaser's pro rata share of real estate taxes (whether general or
special) assessed against the Property and due and payable for the
year of Closing.
Section 5. Title.
(a) Upon closing of escrow as set forth in Section 4, (i) all of Seller's right,
title and interest in and to the Real Property (except for the North Little Rock Parcel) shall be
transferred to Purchaser by a duly executed Quitclaim Deed in the form marked Exhibit B -1,
attached hereto and hereby made a part hereof, and (ii) all of Seller's right, title and interest in
and to the North Little Rock Parcel shall be transferred to Purchaser (or to the City of North
Little Rock if Purchaser assigns its interest under this Agreement as it relates to the North Little
Parcel as provided in Section II(b) below) by a duly executed Quitclaim Deed in the form
marked Exhibit B -2 attached hereto and hereby made a part hereof. Title shall be insurable as in
fee, free and clear of all liens, encumbrances, exceptions, and reservations other than the
following:
(1) The fiber optic easement reservation set forth in Section 1 (except as to the
North Little Rock Parcel);
(2) The Lease(s) referred to in Section 7;
(3) Non - delinquent real property taxes (whether general or special);
(4) Standard printed exceptions in the title policy; and
(5) Items disclosed in the preliminary title report and survey and approved or
waived by Purchaser as set forth in Section 3(a).
Purchaser acknowledges that the Real Property may be subject to licenses and
other third party rights that have not been disclosed by Seller to Purchaser. It is the
responsibility of Purchaser to determine if any of these undisclosed rights exist. If any license
that affects only the Property is identified after the Execution Date, Seller's rights (including,
without limitation, any income) and obligations under such license will be assigned to and
assumed by Purchaser at or after Closing.
(b) Upon closing of escrow as set forth in Section 4, all of Seller's right, title
and interest in and to the Personal Property shall be transferred by Seller to Purchaser by a duly
executed Donative Bill of Sale in the form marked Exhibit C, attached hereto and hereby made a
part hereof.
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(c) The Property is subject to two (2) Mortgages as follows:
(1) that certain First Mortgage dated January 1, 1955, executed by
Missouri Pacific Railroad Company (Seller's predecessor in interest) in favor of
The Boatmen's National Bank of St. Louis (now The Bank of New York,
Successor Trustee); and
(2) that certain General (Income) Mortgage dated January 1, 1955,
executed by Missouri Pacific Railroad Company (Seller's predecessor in interest)
in favor of Manufacturer's Trust Company (now The Chase Manhattan Bank,
corporate successor Trustee) and Charles Herman (now Donnell Reid, individual
successor Trustee).
It is understood and agreed that promptly upon Closing, application will be made
to the respective Mortgage Trustees for the release of the Property from the liens of the two (2)
Mortgages. Immediately upon receipt of the Partial Releases, the same will be forwarded to
Title Company. Seller agrees to indemnify and hold Title Company harmless against failure to
provide such Partial Releases.
Section 6. Assignment of Lease(s).
Upon closing of escrow, Seller shall assign to Purchaser, and Purchaser shall
assume, all of Seller's right, title and interest in and to and obligations under the following Lease
Agreement(s) (the "Leases "):
1)
The Leases shall be assigned by Seller to Purchaser at Closing and assumed by Purchaser by
duly executed Assignment and Assumption Agreement in the form attached hereto as Exhibit D
and hereby made a part hereof. Rentals and other payments under the Leases shall be prorated
between Seller and Purchaser as of the Closing Date.
Section 7. Closing; Possession.
Escrow for the Property shall close ( "Close" or "Closing ") on or before November
9, 2001 ( "Closing Date "). Possession of the Property shall pass to Purchaser on closing of
escrow. Purchaser shall have no right to possession or occupancy of or entry upon any portion of
the Property [except as set forth in Section 3(c)] and title thereto shall be and remain vested in
Seller until Closing of escrow.
Section 8. Post - Closing Obligation.
This Agreement is made and executed by the parties hereto subject to the
following post -sale conditions:
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(a) STB Abandonment. Seller shall petition for and use its best efforts to
receive all necessary authorizations or exemptions to be granted by the Surface
Transportation Board ( "STB ") for the permanent abandonment of rail service by Seller to
shippers served from Seller's line track over the Property ( "STB Approval "). If STB
Approval is not obtained by December 31, 2001, this Agreement shall automatically
expire and terminate. In the event of such termination, (i) Purchaser shall deliver to
Seller a duly executed Quitclaim Deed transferring Purchaser's right, title and interest in
and to the Property to Seller, and an Assignment and Assumption Agreement in the form
of Exhibit D assigning Purchaser's right, title and interest in and to the Leases to Seller;
and (ii) Seller shall return to Purchaser the Purchase Price paid to Seller at Closing and an
Assignment and Assumption Agreement in the form of Exhibit D assuming Purchaser's
right, title and interest in and to the Leases.
Seller's agreement to use its best efforts to obtain STB Approval for the
permanent abandonment of service is predicated upon the current understanding that: (a)
there are no shippers on the Property; (b) that no additional shippers shall be located upon
the Property by Purchaser post- Closing; and (c) that no shippers locate upon any adjacent
property and demand rail service before the STB Approval process is completed.
(b) Indemnity for Reserved Easement. As of Closing, Seller shall indemnify,
defend and hold harmless Purchaser, its agents, representatives, contractors and
employees from and against any and all proceedings, suits, actions, claims, damages,
judgments, liabilities, awards and expenses ( "Claims ") that may be brought or instituted
on account of or growing out of any injuries or damages to persons or property, relating
to or arising out of the occupation of any portion of the Property by Seller pursuant to the
reserved easement for trackage and appurtenances, the operation by Seller of Seller's
railroad over the reserved easement, and/or construction and related activities conducted
on the Property pursuant to the reserved easement by Seller or Seller's licensees, invitees,
agents, contractors, representatives or employees, including, but not limited to, all
reasonable costs of defending against, investigating and settling the Claims. Seller shall
assume on behalf of the indemnified parties and conduct with due diligence and in good
faith the defense of any and all Claims against any of the indemnified parties to which the
indemnification in this subparagraph (b) applies. Seller shall have the right to contest the
validity of any Claims, in the name of Seller or Purchaser, as Seller may deem
appropriate, provided that Seller shall bear the expense of contesting any claim
indemnified against by Seller under this subparagraph (b).
Section 9. As Is; Release.
(a) As Is. Purchaser and its representatives, prior to the Closing Date, will
have been afforded the opportunity to make such inspections of the Property and matters related
thereto as Purchaser and its representatives desire. Purchaser acknowledges and agrees that the
Property is to be sold and conveyed to and accepted by Purchaser in an "as is" condition with all
faults. Purchaser further acknowledges that the Property was used for railroad right -of -way.
Seller makes no representation or warranties of any kind whatsoever, either express or implied,
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with respect to the Property; in particular, but without limitation, Seller makes no representations
ordinances, regulations, requirements,
or warranties with respect to the use, condition, title, occupation or management of the Property,
or compliance with applicable statutes, laws, codes, purchaser acknowledges that it
covenants, conditions and restrictions (whether or not of record).
is entering into this Agreement on the basis on tiding Purchaser's Ownurfacet onditions,hand Purchaser
environmental conditions of the Property, not have been revealed
prior or contemporaneous
assumes the risk that adverse physical and es thatn twit conditions may this Agreement
by its investigation. Purchaser acknowledges that notwithstanding nY P g
oral or written representations, statements, documents or understandings,
constitutes the entire understanding of d peltany such prior or Contemporaneous eoral or
the purchase and sale of the Property supersedes
written representations, statements, documents or understandings. waives,
(b) Release. Purchaser, for itself, its successors and assigns, hereby agents,
and all claims, suits, actions, causes of action,
releases, remises, acquits and forever discharges Seller, its affiliates, their employees,
officers, successors and assigns, of and from nY
demands, rights, damages, costs, expenses, penalties, fines or compensation whatsoever, direct or
or environmental
any way
indirect, which purchaser
out of ornn connectionlwithuthe known or unknown physical re on account of or m
arising without limitation, any contamination in, on, under or
including, federal, state or
condition of the Property (�
adjacent to the Property by any hazardous or toxic substance of material, or any
Compensation and
local law, ordinance, ce Control Act, the Comprehensive Environmental Envi onmental Responsiehouot�p limitation, the
Toxic Substances
Liability Act, and the Resource Conservation and Recovery Act.
section Notices.
Any notices required or desired to be given under this Agreement shall be in
writing and personally served, given by overnight express delivery, or given by mail. Telecopy
notices shall be deemed valid only to the extent they are (a) actually received by the individual to
whom addressed an d (b) followed by delivery of actual notice in the l shall be described
postage
age
within three (3) business days thereafter. Any notice given by to receive at the
mail, return receipt requested, addressed from time time direct in writing:
prepaid, by certified
following address or at such other address as the party
Seller: UNION PACIFIC RAILROAD COMPANY
ATTN: Ronald L. Mayer
1800 Farnam Street
Omaha, Nebraska 68102
Telephone: (402) 997 -3630
Facsimile: (402) 997 -3601
With copy to: UNION PACIFIC RAILROAD COMPANY
ATTN: Gerard Sullivan, Law Dept.
1416 Dodge Street, Room 830
Omaha, Nebraska 68179 EMBrf A: Page 9 of 27
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• • 2016 -59
Telephone: (402) 271 -4468
Facsimile: (402) 271 -5610 or 271 -7107
And: UNION PACIFIC RAILROAD COMPANY
ATTN: Paul B. Benham III
400 W. Capitol Avenue, Suite 2000
Little Rock, Arkansas 72201
Telephone: (501) 370 -1517
Facsimile: (501) 376 -2147
Purchaser: CITY OF LITTLE ROCK
ATTN: Bruce Moore, Assistant City Manager
City Hall, Office of the Mayorl
500 W. Markham
Little Rock, Arkansas 72201
Telephone: (501)
Facsimile: (501)
Title Company: BEACH ABSTRACT & GUARANTY COMPANY
ATTN:
100 Center Street
Little Rock, Arkansas 72201
Telephone: (501) 376 -5630
Facsimile: (501) 376 -5681
Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be
deemed to be given three (3) days after deposit with the United States Postal Service. Copies of
all notices to Seller or Purchaser shall be given to Title Company, and copies of all notices to
Title Company shall be given to the other party to this Agreement.
Section 11. Assignment.
(a) Purchaser's interest under this Agreement may not be assigned,
encumbered or otherwise transferred, whether voluntarily, involuntarily, by operation of law or
otherwise without Seller's prior written consent, which consent shall not be unreasonably
withheld, and provided that such assignee is a qualified charitable organization under the federal
Internal Revenue Code and the rules and regulations promulgated thereunder and the assignee
assumes the obligations of Purchaser under this Agreement in writing for the benefit of Seller
and agrees in writing to execute and deliver to Seller the Internal Revenue Service Form 8283
referenced in Section 2 above. Any assignment, encumbrance or other transfer in violation of
the foregoing is void and will be deemed a default under this Agreement.
(b) Notwithstanding the foregoing, Seller acknowledges and agrees that
Purchaser may, without Seller's prior written consent, assign its interest under this Agreement as
it relates to the North Little Rock Parcel, the Little Rock Junction Railroad Bridge and the
CRI &P Railroad Bridge to the City of North Little Rock, provided that the City of North Little
EXHIBIT A: Page 10 of V
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Rock assumes Purchaser's obligations under this Agreement as they relate to the North Little
Rock Parcel and Purchaser gives Seller written notice of such assignment, together with an
originally executed Partial Assignment and Assumption Agreement executed by Purchaser and
the City of North Little Rock in the form of Exhibit E attached hereto and hereby made a part
hereof, at least ten (10) days prior to the Closing Date, and the City of North Little Rock agrees
in writing to execute and deliver to Seller, if necessary, the Internal Revenue Service Form 8283
referenced in Section 2 above.
Section 12. Waiver of Breach.
_ A waiver by either party hereto of a breach by the other party hereto of any
covenant or condition of this Agreement shall not impair the right of the party not in default to
avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist
upon strict performance of any agreement, covenant or condition of this Agreement, or to
exercise any right herein given in any one or more instances, shall not be construed as a waiver
or relinquishment of any such agreement, covenant, condition or right.
Section 13. Time of the Essence.
Time is of the essence of this Agreement.
Section 14. Law Governing.
This Agreement shall be governed in all respects by the laws of the State of
Arkansas.
Section 15. Merger.
The terms, provisions, covenants and conditions herein contained shall merge into
the deed or deeds to be delivered by Seller to Purchaser at closing and shall not survive the
closing of escrow, except for the provisions of Section 3(c), 8, 9, 16 and 18.
Section 16. No Brokers.
The negotiations relative to this Agreement and the transactions contemplated
hereby have been carried on by the parties without the intervention of any person which would
give rise to any valid claim against either of the parties hereto for brokerage commissions or
other like payment. Each party hereto shall indemnify and hold harmless the other party against
and from any and all claims for brokerage commission or other like payment arising out of the
transaction contemplated by this Agreement and occasioned by the actions of such indemnifying
party.
Section 17. Successors and Assigns.
Subject to the provisions of Section 11, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns.
EXHIBIT A: Page 11 of 27
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Section 18. Special Provision.
• 2016 -59
Seller, Federal ID No. 94- 6001323, is not a foreign corporation and withholding
of Federal Income Tax from the amount realized will not be made by Purchaser. A certification
prepared in conformance with IRS regulations under Section 1445 of the Internal Revenue Code
is attached as Exhibit F.
Section 19. Entire Agreement.
It is understood and agreed that all understandings and agreements, whether
written or oral, heretofore had between the parties hereto are merged in this Agreement, which
alone fully and completely expresses their agreement, that neither party is relying upon any
statement or representation not embodied in this Agreement, made by the other, and that this
Agreement may not be changed except by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate as of the date first herein written.
SELLER: UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
Title:
PURCHASER: CITY OF LITTLE ROCK, a municipal
corporation of the State of Arkansas
By: 171
Title: AA 64$aZ
EXHIBIT A: Page 12 of 27
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EXHIBIT A
• 2016 -59
PRINT OF PROPERTY TO BE ATTACHED
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EXHIBIT B -1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO: °
• ?016 -59
SPACE ABOVE FOR RECORDER'S USE ONLY
QUITCLAIM DEED
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (successor
in interest by merger to Union Pacific Railroad Company, a Utah corporation, successor in
interest by merger to Missouri Pacific Railroad Company, a Delaware corporation), Grantor, in
consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration, to
it duly paid, the receipt of which is hereby acknowledged, does hereby GRANT, SELL AND
QUITCLAIM unto , an Arkansas
, whose address is shown above, and unto its successors and assigns, all of
Grantor's right, title, interest, estate, claim and demand, both at law and in equity, of, in, and to
the real estate (hereinafter the "Property ") located in Little Rock, Pulaski County, Arkansas,
more particularly described in Exhibit A attached hereto and hereby made a part hereof.
EXCEPTING from this quitclaim and RESERVING unto Grantor, its successors
and assigns, forever, exclusive PERPETUAL EASEMENTS ten feet (10') in width measured
from the centerline of the Fiber Optic Improvements, in, on, over, under and across the Property
( "fiber optics easement property "), in which areas Grantor (and its easement holders, lessees,
sublessees, licensees, successors or assigns) shall have the right to own, construct, reconstruct,
maintain, operate, use and/or remove existing and /or future communication systems, lines and
facilities of every kind and nature, including, but not limited to, all existing facilities, telephone,
telegraph, television and fiber optic lines and related equipment (the "Fiber Optics
Improvements "). Grantor does further reserve unto itself, its successors and assigns, a limited
right -of -way and right of access to the fiber optics easement over and across the Property, for the
purposes of the use; enjoyment, maintenance, operation and access to the fiber optics easement
property. All Fiber Optics Improvements presently existing on or hereafter constructed on the
fiber optics easement property shall remain the personal property of Grantor. Grantor shall be
entitled to all revenues derived from all current and future agreements to which Grantor is a party
affecting the fiber optics easement property. Grantor further reserves the right to use the
subsurface of the fiber optics easement property for any other lawful purpose, including, but not
limited to, entering into easements, licenses or leases with third parties. No permanent building,
structure or fence and no material or obstruction of any kind otE*Pdff4eA:sfl� l3acyed or
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maintained on said fiber optics easement property which would obstruct or interfere with the
easement without the prior written consent of the easement owner.
TOGETHER with all and singular the hereditaments and appurtenances thereunto
belonging; TO HAVE AND TO HOLD the same, subject to the aforesaid provisions, together
with all rights and appurtenances to the same belonging, unto Grantee, its successors and assigns
forever.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed by
its duly authorized officers the day of 2001.
Attest:
Assistant Secretary
(SEAL)
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By:
Title:
OaHBIT A: Page 15 of Tl
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• • 2016 -59
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS 1
On
and State, personally appeared
2001, before me, a Notary Public in and for said County
and
and Assistant Secretary, respectively, of UNION PACIFIC
RAILROAD COMPANY, a Delaware corporation, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed to the within
instrument, and acknowledged to me that they executed the same in their authorized capacities,
and that by their signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
(SEAL)
This instrument prepared by:
Union Pacific Railroad Company
Law Department, Room 830
1416 Dodge Street
Omaha, Nebraska 68179
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EXHIBIT A TO EXHIBIT B -1
LEGAL DESCRIPTION OF PROPERTY
TO BE ATTACHED
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EXHIBIT B -2
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
• 2016 -59
SPACE ABOVE FOR RECORDER'S USE ONLY
QUITCLAIM DEED
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (successor
in interest by merger to Union Pacific Railroad Company, a Utah corporation, successor in
interest by merger to Missouri Pacific Railroad Company, a Delaware corporation), Grantor, in
consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration, to
it duly paid, the receipt of which is hereby acknowledged, does hereby GRANT, SELL AND
QUITCLAIM unto , an Arkansas
, whose address is shown above, and unto its successors and assigns, all of
Grantor's right, title, interest, estate, claim and demand, both at law and in equity, of, in, and to
the real estate (hereinafter the "Property ") located in North Little Rock, Pulaski County,
Arkansas, more particularly described in Exhibit A attached hereto and hereby made a part
hereof.
TOGETHER with all and singular the hereditaments and appurtenances thereunto
belonging; TO HAVE AND TO HOLD the same, subject to the aforesaid provisions, together
with all rights and appurtenances to the same belonging, unto Grantee, its successors and assigns
forever.
IN WITNESS WHEREOF, Grantor has caused this instrument to be executed by
its duly authorized officers the day of 2001.
Attest:
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By:_
Assistant Secretary Title:
(SEAL)
EXHIMIT A: Page 18 of 27
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STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
• 2016 -59
On 2001, before me, a Notary Public in and for said County
and State, personally appeared and
and Assistant Secretary, respectively, of UNION PACIFIC
RAILROAD COMPANY, a Delaware corporation, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the persons whose names are subscribed to the within
instrument, and acknowledged to me that they executed the same in their authorized capacities,
and that by their signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
(SEAL)
This instrument prepared by:
Union Pacific Railroad Company
Law Department, Room 830
1416 Dodge Street
Omaha, Nebraska 68179
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EXHIBIT A TO EXHIBIT B -2
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LEGAL DESCRIPTION OF NORTH LITTLE ROCK PARCEL
TO BE ATTACHED
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EXHIBIT C
DONATIVE BILL OF SALE
• 2016 -59
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (successor
in interest by merger to Union Pacific Railroad Company, a Utah corporation, successor in
interest by merger to Missouri Pacific Railroad Company, a Delaware corporation) ( "Donor "),
does hereby donate, transfer and deliver to , a
( "Donee "), its successors and assigns, the following
described personal property, to wit:
Insert description of Little Rock Junction Railroad Bridge and
CRI &P Railroad Bridge (including, without limitation, all support
structures and appurtenances as such Bridges are located in the
Cities of Little Rock and North Little Rock, Pulaski County,
Arkansas, and located on Donor's abandoned Branch
at Milepost _ and Milepost
DONOR, BY THIS INSTRUMENT, MAKES NO WARRANTY OF ANY
KIND, EXPRESS OR IMLIED, AND FURTHER MAKES NO WARRANTY AS TO THE
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IT BEING
UNDERSTOOD THAT THE DONEE IS ACQUIRING THE PERSONAL PROPERTY
DESCRIBED ABOVE IN AN "AS IS" AND "WHERE IS" CONDITION WITH ALL
FAULTS.
By its acceptance of this Donative Bill of Sale and from and after the date hereof,
Donee, its successors and assigns, agrees that, in its use and maintenance of the Bridges, it will
accept and assume all liability, loss, damage, costs and expenses arising from or growing out of
the existence, use or maintenance of the Bridges, including any third party's use or maintenance
of the Bridges.
IN WITNESS WHEREOF, Donor and Donee have each duly executed this
instrument as of the day of 2001.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
C
[INSERT NAME OF DONEE]
By:
Title:
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EXHIBIT D
• 2016 -59
ASSIGNMENT AND ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, UNION PACIFIC RAILROAD COMPANY, a Delaware
corporation ( "Assignor "), has ASSIGNED AND TRANSFERRED, and by these presents does
ASSIGN AND TRANSFER unto a
whose address is ( "Assignee "), all of
Assignor's right, title and interest in and to the tenant leases ( "Leases ") now or hereafter
affecting the real property and improvements (collectively the "Property ") described on
Exhibit A, which Leases and all amendments thereto are described on Exhibit B.
TO HAVE AND TO HOLD THE LEASES unto Assignee, its successors and assigns.
This Assignment is made and accepted without recourse against Assignor as to the performance
by any party under such Leases.
Assignee agrees to (a) perform all of the obligations of Assignor pursuant to the Leases
accruing after the date hereof, and (b) indemnify and hold Assignor harmless from and against
any and all claims, causes of actions and expenses (including reasonable attorney's fees) incurred
by Assignor and arising out of (1) Assignee's failure to comply with terms of the Leases after the
date hereof, and (2) claims under the Leases by the tenants named in the Leases accruing after
the date hereof.
All exhibits attached to this Agreement are incorporated herein for all purposes.
The covenants, agreements, representations, and warranties contained herein shall inure
to and be binding upon the parties, their heirs, successors and assigns.
DATED the day of 2001.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By:_
Title:
a
Lo
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EXHIBIT A TO EXHIBIT D
LEGAL DESCRIPTION OF PROPERTY
TO BE ATTACHED
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EXHIBIT B TO EXHIBIT D
LIST OF LEASE(S) TO BE ASSIGNED
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EXHIBIT E
. 2016 -59
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT, Made
and entered into as of the day of 2001, by and between CITY OF
LITTLE ROCK, a municipal corporation of the State of Arkansas ( "Assignor "), and CITY OF
NORTH LITTLE ROCK, a municipal corporation of the State of Arkansas ( "Assignee "), whose
address is North Little Rock, Arkansas
WITNESSETH:
IT IS MUTUALLY AGREED by and between the parties hereto as follows:
Section 1. Assignor, for a valuable consideration, does hereby partially sell, transfer and
set over to Assignee all of Assignor's right, title and interest in and to the following:
Donation, Purchase and Sale Agreement dated 2001 between
Assignor, as Buyer, and Union Pacific Railroad Company, a Delaware
corporation, as Seller (the "Purchase Agreement "), covering the purchase of
certain real property situated in Little Rock and North Little Rock, Pulaski
County, Arkansas. but only as the Purchase Agreement relates to Seller's right -of-
way north of the Little Rock Junction Railroad Bridge running northwardly to the
north right -of -way line of Washington Avenue in the City of North Little Rock
and the real property owned by Seller contiguous with such right -of -way (the
"North Little Rock Parcel ").
Section 2. Assignee hereby accepts the above assignment as it relates to the North Little
Rock Parcel and, for the benefit of Assignor and Seller, agrees to be bound by and to perform
and observe fully and faithfully all of the covenants, stipulations and conditions outlined in the
Purchase Agreement to be performed and observed by Assignor as they relate to the North Little
Rock Parcel and assumes all liabilities mentioned in the Purchase Agreement to be assumed by
Assignor as they relate to the North Little Rock Parcel.
Section 3. This Assignment shall be considered as taking effect as of
2001.
IN WITNESS WHEREOF, the parties hereto have caused this Partial Assignment
and Assumption Agreement to be executed in duplicate as of the date first herein written.
CITY OF LITTLE ROCK, a municipal corporation
of the State of Arkansas
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• • 2016 -59
CITY OF NORTH LITTLE ROCK, a municipal
corporation of the State of Arkansas
0
UNION PACIFIC RAILROAD COMPANY, as Seller, hereby consents to the
foregoing partial assignment, without in any manner releasing Assignor from its obligations
under the Purchase Agreement and without authorizing any additional assignment.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By: _
Title:
EXHIBrr A: Page 26 of 27
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EXHIBIT F
• 2016 -59
CERTIFICATION OF NON - FOREIGN STATUS
Under Section 1445(e) of the Internal Revenue Code, a corporation, partnership, trust, or
estate must withhold tax with respect to certain transfers of property if a holder of an interest in
the entity is a foreign person. To inform the transferee, , that no
withholding is required with respect to the transfer of a U.S. real property interest by UNION
PACIFIC RAILROAD COMPANY, the undersigned hereby certifies the following on behalf of
UNION PACIFIC RAILROAD COMPANY:
UNION PACIFIC RAILROAD COMPANY is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
UNION PACIFIC RAILROAD COMPANY'S U.S. employer identification number is
94- 6001323; and
UNION PACIFIC RAILROAD COMPANY'S office address is 1416 Dodge Street,
Omaha, Nebraska 68179, and place of incorporation is Delaware.
UNION PACIFIC RAILROAD COMPANY agrees to inform the transferee if it becomes
a foreign person at any time during the three -year period immediately following the date of this
notice.
UNION PACIFIC RAILROAD COMPANY understands that this certification may be
disclosed to the Internal Revenue Service by the transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this Certification and to the best
of my knowledge and belief it is true, correct and complete, and I further declare that I have
authority to sign this document on behalf of UNION PACIFIC RAILROAD COMPANY.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By:
Title:
Date:
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