HomeMy WebLinkAbout39-Development Services
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James Funk, Director
Subject: Resolutions approving Agreement
with the City of Colton and a Lease with the
Union Pacific Railroad Company for a hike-
and-bike trail, beautification and purposes
incidental thereto on Union Pacific Railroad
Company property along Inland Center
Drive between the easterly City Limit and
Mill Street.
Dept: Development Services
Date: August 23,2004
ORIGINAL
MCC Date: 09/07/2004
Synopsis of Previous Council Action:
09-15-03 Adopted FY 2003-2008 5-year Capital Improvement Program (CIP) which included proposed
funding in FY 2004/05 in the amount of $25,000 for TC 04-22 "I nland Center Drive: Bike
lane Agreement with the City of Colton. "
Recommended Motion:
Adopt Resolutions.
aeA~S~R/
Contact person:
Mike Grubbs, Engineering Manager/Field Engineer Phone:
5179
Supporting data attached:
Staff Report, (2) Resolutions,
Attachments A & B and Location Map
Ward:
J
FUNDING REQillREMENTS:
Amount:
$25.000
Source: (Acct. No.) 250-370-5504-XXXX
Acct. Description: Inland Center Drive: Bike Lane
Agreement with Colton
Finance:
Council Notes
if31
I O/~/oL(
City of San Bernardino - Request for Council Action
Staff Report
Subject:
Resolutions approving an Agreement with the City of Colton and a Lease with the Union
Pacific Railroad Company for a hike-and-bike trail, beautification and purposes incidental
thereto on Union Pacific Railroad Company property along Inland Center Drive between the
easterly City Limit and Mill Street.
Background:
The City of Colton has proposed a cooperative project with the City to install a hike-and-bike
trail, landscaping and other improvement on the Union Pacific Railroad Company property
along Inland Center Drive between the easterly City Limit and Mill Street (See Attachment
"A"). The Union Pacific Railroad Company has offered San Bernardino a 20-year Lease of
the property for that portion in the City Limits of San Bernardino (See Attachment "B"). A
similar lease has been offered to the City of Colton.
Under terms of the Agreement, the City of Colton will design the project, contract out the
work and bill San Bernardino for its share as indicated in Exhibit "A" attached to the
Agreement. The total estimated cost of the project is $1,301,890; however, Colton has agreed
to limit San Bernardino's share of the cost to $25,000. San Bernardino's share will consist of
$20,000 to purchase the Lease from the Union Pacific Railroad Company and $5,000 toward
the cost of construction. Colton has applied for TEA-21 and CMAQ (Federal Aid) funding in
the amount of $1,106,057 to cover the majority of the construction cost.
The Bikeway Project has been approved by SCAG to receive TEA-21 and CMAQ funding in FY
04/05 in the amount of $1, I 06,057. Colton has submitted a request to Caltrans for authorization
to proceed with preliminary engineering. Federal funding for the project has been secured
subject to compliance with FHW A regulations.
Staff believes this cooperative project will be beneficial to both agencies. Selected projects
typically have elements under two or more jurisdictions and, therefore, lend themselves well to
such a cooperative effort.
If this agreement is approved, the City of Colton will be the lead agency and will proceed with
preparation of improvement plans, specifications, and estimated costs (PS&E). Colton will
also be responsible for all costs associated with enviromnental clearance necessary for federal
funding, design, advertising for bids, award of contract and management of the construction of
the project per the attached Agreement. Exhibit "A", attached to the Agreement, provides an
overall summary of the estimated project costs.
Upon approval of the Lease with the Union Pacific Railroad Company, the City will be
required to pay an advanced fixed rent to the Union Pacific Railroad Company in the amount
of $20,000. This amount may not be refundable, in part or in full, if San Bernardino cancels
the Lease for any reason.
2
City of San Bernardino - Request for Council Action
Staff Report (Continued)
It is anticipated that construction of the hike-and-bike trail could commence in FY 2006/07 to
coincide with the Caltrans 1-215, Segment 3, widening project.
It is requested that two originals of the Agreement and two originals of the Lease be executed
so that each party can retain an original.
Financial Impact:
Funds for this project in the amount of $25,000 will come from the $2.4 million that was
appropriated as part of the FY 200412005 budget for Fund 250 (Traffic System Construction).
Recommendation:
Adopt Resolutions.
3
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING
3 EXECUTION OF A LEASE WIm THE UNION PACIFIC RAILROAD COMPANY
4 FOR A mKE-AND-BIKE TRAIL, BEAUTIFICATION AND PURPOSES INCIDENTAL
THERETO ON UNION PACIFIC RAILROAD COMPANY PROPERTY ALONG
5 INLAND CENTER DRIVE.
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19 III
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City, a Lease with the Union Pacific Railroad Company
for a hike-and-bike trail, beautification and proposes incidental thereto on railroad property
along Inland Center Drive between the easterly City Limit and Mill Street. A copy of said
Lease is attached as Attachment "B" and made a part hereof.
SECTION 2.
The authorization to execute the above-referenced agreement is
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
III
- 1 -
1 RESOLUTION..AUTHORIZING EXECUTION OF LEASE WITH THE UNION
2 PACIFIC RAILROAD COMPANY FOR A HIKE-AND-BIKE TRAIL,
BEAUTIFICATION AND PURPOSES INCIDENTAL THERETO ON UNION PACIFIC
3 RAILROAD COMPANY PROPERTY ALONG INLAND CENTER DRIVE.
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5
and Common Council of the City of San Bernardino at a
meeting thereof, held on
6
7 the
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, 2004, by the following vote, to wit:
day of
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
LONGVILLE
MC GINNIS
DERRY
KELLEY
JOHNSON
MC CAMMACK
City Clerk
,2004.
day of
The foregoing resolution is hereby approved this
Judith Valles, Mayor
City of San Bernardino
Approved as to
24 form and legal content:
25 JAMES F. PENMAN,
26 City Attorney
27 By:
28
- 2 -
INDL TLEASE 08102
Fonn Approved, Law
DUPLICATE ORIGINAL"' ~SEE'S COPY
ATTACHMENT "B"
Folder; 02212-68
'.;
LEASE OF PROPERTY
THIS LEASE ("Lease") is entered into on the _ day of , 20_,
between UNION PACIFIC RAILROAD COMPANY ("Lessor") and CITY OF SAN
BERNARDINO, a California municipal corporation, whose address is 300 N. D St., San Bernardino, CA
92418 ("Lessee").
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
Article I.
PREMISES; USE.
Lessor leases to Lessee and Lessee leases from Lessor the premises ("Premises") at San
Bernardino, California, shown on the print dated October 24, 2003, marked Exhibit "A", hereto
attached and made a part hereof, subject to the provisions of this Lease and of Exhibit B attached hereto
and made a part hereof. The Premises may be used for a hike and bike trail,beautifcation and purposes'
incidental thereto, only, and for no other purpose.
Article II.
TERM.
The term of this Lease is for twenty (20) years beginning on January I, 2004, and expiring on
December 31, 2023, unless sooner terminated as provided in this Lease.
Article III.
RENT.
A. Lessee shall pay to Lessor advance fixed rent of Twenty Thousand And 00/100 Dollars
($20,000.00) for the term. Payment of the advance fixed rent shall be made before the commencement
date ofthe term.
B. If Lessor terminates this Lease for any reason other than Lessee's default, or if this Lease
is terminated under Section 19 of Exhibit B, then Lessor shall refund to Lessee the portion of the advance
fixed rent attributable to the period between effective date and of the termination and the expiration date
specified in Article II. The refund shall be calculated on a pro rata basis using a 360-day year. No
refund of advance fixed rent shall be made except as specifically provided in this Article III.B. The fixed
rent for the entire term shall be deemed earned by Lessor upon execution of this Lease by both parties.
Article IV.
SPECIAL PROVISION .- INSURANCE
A. At all times during the term of this Lease, Lessee shall, at Lessee's sole cost and expense,
procure and maintain the following insurance coverage;
General Public Liability providing bodily injury, including death, personal injury and property
damage coverage with combined single limit of at least One Million Dollars ($1,000,000.00) per
occurrence and a general aggregate limit of at least One Million Dollars ($1,000,000.00). This insurance
shall provide Broad Form Contractual Liability covering the indemnity provisions contained in this
Agreement, severability of interests, and name Lessor as an additional insured. If coverage is purchased
on a 'claims-made' basis, it shall provide for at least a three (3) year extended reporting or discovery
period, which shall be invoked if insurance covering the time period of this Agreement is canceled.
I
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ATTACHMENT "B"
INDLTLEASE 08102
Fonn Approved, Law
Folder: 02212-68
B. Lessee shall furnish Lessor with certificate(s) of insurance, identifying Folder No. 2212-68,
evidencing the required coverage and, upon request, a certified duplicate original of the policy. The
insurance company issuing the policy shall notify Lessor, in writing, of any material alteration including
any change in the retroactive date in any 'claims-made' policies or substantial reduction of aggregate
limits, or cancellation at least thirty (30) days prior thereto. The insurance policy shall be written by a
reputable insurance company or companies acceptable to Lessor or with a current Best's Insurance Guide
Rating of B and Class VII or better, and which is authorized to transact business in the state where the
Premises are located.
C. Lessee hereby waives its right of subrogation under the above insurance policy against
Lessor for payment made to or on behalf of employees of Lessee or its agents or for loss of its owned or
leased property or property under its care, custody and control while on or near the Premises or any other
property of Lessor. Lessee's insurance shall be primary with respect to any insurance carried by Lessor.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first
herein written.
LESSOR:
LESSEE:
UNION PACIFIC RAILROAD COMPANY
CITY OF SAN BERNARDINO
By:
By:
General Director- Real Estate
Title:
MARGINAL NOTES: New
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EXHIBIT B
Section 1.
IMPROVEMENTS.
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Section 2.
RESERV A nONS AND PRIOR RIGHTS.
A. Lessor reserves to itself, its agents and contractors, the right to enter the Premises at such
times as will not unreasonably interfere with Lessee's use of the Premises. .
B. Lessor reserves (i) the exclusive right to permit third party placement of advertising signs
on the Premises, and (ii) the right to construct, maintain and operate new and existing facilities
(including, without limitation, trackage, fences, communication facilities, public and private roadways,
pipelines and utilities) upon, over, across or under the Premises, and to grant to others such rights,
provided that Lessee's use of the Premises is not interfered with unreasonably. .
C. This Lease is made subject to all outstanding rights, whether or not of record. Lessor
reserves the right to renew such outstanding rights.
Section 3.
PAYMENT OF RENT.
Rent (which includes the fixed advance rent and all other amounts to be paid by Lessee
under this Lease) shall be paid in lawful money of the United States of America, at such place as shall be
designated by the Lessor, and without offset or deduction.
Section 4.
TAXES AND ASSESSMENTS.
Lessee shall pay, prior to delinquency, all Property Taxes on the Premises and on all
personal property and improvements on the Premises. Lessee shall reimburse Lessor within thirty (30)
days of rendition of Lessor's bill for any Property Taxes paid by Lessor, whether paid separately, as a part
of the levy on other real property of Lessor, or as a part of the central or unit assessment of Lessor's
property. For purposes of this Lease, "Property Taxes" means all governmental charges and levies
(including, without limitation, real estate and personal property taxes, special assessments and other
charges for public improvements or services, and impact fees, but not including income taxes) as may
during the term of this Lease be levied upon, assessed against or imposed upon, or become due and
payable with respect to, the Premises or the rents payable under this Lease.
Section 5.
WATER RIGHTS.
This Lease does not include any right to the use of water under any water right of Lessor,
or to establish any water rights except in the name of Lessor.
Section 6.
CARE AND USE OF PREMISES.
A. Lessee shall use reasonable care and caution against damage or destruction to the
Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises in any way that creates a hazard to persons or property.
Lessee shall keep the Premises in a safe, neat, clean and presentable condition, and in good condition and
repair. Lessee shall keep the sidewalks and public ways on the Premises, and the walkways appurtenant to
any railroad spur track(s) on or serving the Premises, free and clear from any substance which might
create a hazard and all water flow shall be directed away from the tracks of the Lessor.
B.
business.
Lessee shall not permit any sign on the Premises, except signs relating to Lessee's
C. If any improvement on the Premises is damaged or destroyed by fire or other casualty,
Lessee shall, within thirty (30) days after such casualty, remove all debris resulting therefrom. If Lessee
1
EXHIBIT "B"
fails to do so, Lessor may remove such debris, and Lessee agrees to reimburse Lessor for all expenses
incurred within thirty (30) days after rendition of Lessor's bilI.
D. Lessee shall comply with all governmental laws, ordinances, rules, regulations and orders
relating to Lessee's use of the Premises and this Lease, including, without limitation, any requirements for
subdividing or platting the Premises.
Section 7.
HAZARDOUS MATERIALS. SUBSTANCES AND WASTES.
A. Without the prior written consent of Lessor, Lessee shall not use or permit the use of the
Premises for the generation, use, treatment, manufacture, production, storage or recycling of any
Hazardous Substances, except that Lessee may use, if lawful, small quantities of common chemicals such
as adhesives, lubricants and cleaning fluids in order to conduct business at the Premises. The consent of
Lessor may be withheld by Lessor for any reason whatsoever, and may be subject to conditions in addition
to those set forth below. It shall be the sole responsibility of Lessee to determine whether or not a
contemplated use of the Premises is a Hazardous Substance use.
B. In no event shall Lessee (i) release, discharge or dispose of any Hazardous Substances, (ii)
bring any hazardous wastes as defined in RCRA onto the Premises, (iii) install or use on the Premises any
underground storage tanks, or (iv) store any Hazardous Substances within one hundred feet (100') of the
center line of any main track.
C. If Lessee uses or permits the use of the Premises for a Hazardous Substance use, with or
without Lessor's consent, Lessee shall furnish to Lessor copies of all permits, identification numbers and
notices issued by governmental agencies in connection with such Hazardous Substance use, together with
such other information on the Hazardous Substance use as may be requested by Lessor. If requested by
Lessor, Lessee shall cause to be performed an environmental assessment of the Premises upon
termination of the Lease and shan furnish Lessor a copy of such report, at Lessee's sole cost and expense.
D. Without limitation of the provisions of Section 12 of this Exhibit B, Lessee shall be
responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any manner to
any Hazardous Substance use of the Premises (or any property in proximity to the Premises) during the
term of this Lease or, if longer, during Lessee's occupancy of the Premises, regardless of Lessor's consent
to such use or any negligence, misconduct or strict liability of any Indemnified Party (as defined in Section
12), and including, without limitation, (i) any diminution in the value of the Premises and/or any adjacent
property of any of the Indemnified Parties, and (ii) the cost and expense of clean-up, restoration,
containment, remediation, decontamination, removal, investigation, monitoring, closure or post-closure.
Notwithstanding the foregoing, Lessee shall not be responsible for Hazardous Substances (i) existing on,
in or under the Premises prior to the earlier to occur of the commencement of the term of the Lease or
Lessee's taking occupancy of the Premises, or (ii) migrating from adjacent property not controlled by
Lessee, or (iii) placed on, in or under the Premises by any of the Indemnified Parties; except where the
Hazardous Substance is discovered by, or the contamination is exacerbated by, any excavation or
investigation undertaken by or at the behest of Lessee. Lessee shan have the burden of proving by a
preponderance of the evidence that any of the foregoing exceptions to Lessee's responsibility for
Hazardous Substances applies.
E. In addition to the other rights and remedies of Lessor under this Lease or as may be
provided by law, if Lessor reasonably determines that the Premises may have been used during the term of
this Lease or any prior lease with Lessee for all or any portion of the Premises, or are being used for any
Hazardous Substance use, with or without Lessor's consent thereto, and that a release or other
contamination may have occurred, Lessor may, at its election and at any time during the life of this Lease
or thereafter (i) cause the Premises and/or any adjacent premises of Lessor to be tested, investigated, or
monitored for the presence of any Hazardous Substance, (ii) cause any Hazardous Substance to be
removed from the Premises and any adjacent lands of Lessor, (iii) cause to be performed any restoration
of the Premises and any adjacent lands of Lessor, and (iv) cause to be performed any remediation of, or
response to, the environmental condition of the Premises and the adjacent lands of Lessor, as Lessor
reasonably may deem necessary or desirable, and the cost and expense thereof shall be reimbursed by
Lessee to Lessor within thirty (30) days after rendition of Lessor's bilI. In addition, Lessor may, at its
election, require Lessee, at Lessee's sole cost and expense, to perform such work, in which event, Lessee
2
EXHIBIT "B"
shall promptly commence to perform and thereafter diligently prosecute to completion such work, using
one or more contractors and a supervising consulting engineer approved in advance by Lessor.
F. For purposes of this Section 7, the term "Hazardous Substance" shall mean (i) those
substances included within the definitions of "hazardous substance", "pollutant", "contaminant", or
"hazardous waste", in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. ~~ 9601, ~ mi., as amended or in RCRA, the regulations promulgated pursuant to either
suclt Act, or state laws and regulations similar to or promulgated pursuant to either such Act, (ii) any
material, waste or substance whiclt is (A) petroleum, (B) asbestos, (C) flammable or explosive, or (D)
radioactive; and (iii) suclt other substances, materials and wastes whiclt are or become regulated or
classified as hazardous or toxic under any existing or future federal, state or local law.
Section 8.
UTILITIES.
A.
Lessee.
Lessee will arrange and pay for all utilities and services supplied to the Premises or to
B. All utilities and services will be separately metered to Lessee. If not separately metered,
Lessee shall pay its proportionate share as reasonably determined by Lessor.
Section 9.
LIENS.
Lessee shall not allow any liens to attach to tlte Premises for any services, labor or
materials furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall
have tlte right to discltarge any such liens at Lessee's expense.
Section 10.
ALTERATIONS AND IMPROVEMENTS: CLEARANCES.
A. No alterations, improvements or installations may be made on tlte Premises without the
prior consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the
Lessor in the operation of its Railroad and to such otlter conditions as Lessor determines to impose. In all
events such cOlisent shall be conditioned upon strict conformance. with all applicable governmental
requirements and Lessor's then-current clearance standards.
B. All alterations, improvements or installations shall be at Lessee's sole cost and expense.
C. Lessee shall comply witlt Lessor's then-current clearance standards, except (i) where to do
so would cause Lessee to violate an applicable governmental requirement, or (ii) for any improvement or
device in place prior to Lessee taking possession of tlte Premises if such improvement or device complied
with Lessor's clearance standards at tlte time of its installation.
D. Any actual or implied knowledge of Lessor of a violation of the clearance requirements of
tltis Lease or of any governmental requirements shall not relieve Lessee of the obligation to comply with
such requirements, nor shall any consent of Lessor be deemed to be a representation of such compliance.
Section II.
AS-IS.
Lessee accepts the Premises in its present condition with all faults, whether patent or
latent, and without warranties or covenants, express or implied. Lessee acknowledges that Lessor shall
have no duty to maintain, repair or improve tlte Premises.
Section 12.
RELEASE AND INDEMNITY.
A. As a material part of the consideration for this Lease, Lessee, to the extent it may lawfully
do so, waives and releases any and all claims against Lessor for, and agrees to indemnify, defend and hold
harmless Lessor, its affiliates, and its and their officers, agents and employees ("Indemnified Parties")
from and against, any loss, damage (including, without limitation, punitive or consequential damages),
injury, liability, claim, demand, cost or expense (including, without limitation, attorneys' fees and court
costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, Lessor,
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EXHIBIT "B"
Lessee, or any employee of Lessor or Lessee) (i) for personal injury or property damage caused to any
person while on or about the Premises, or (ii) arising from or related to any use of the Premises by Lessee
or any invitee or licensee of Lessee, any act or omission of Lessee, its officers, agents, employees, licensees
or invitees, or any breach of this Lease by Lessee.
B. The foregoing release and indemnity shall apply regardless of any negligence, misconduct
or strict liability of any Indemnified Party, except that the indemnity, only, shall not apply to any Loss
determined by final order of a court of competent jurisdiction to have been caused by the sole active direct
negligence of any Indemnified Party.
C. Where applicable to the Loss, the liability provisions of any contract between Lessor and
Lessee covering the carriage of shipments or trackage serving the Premises shall govern the Loss and shall
supersede the provisions of this Section 12.
D. No provision of this Lease with respect to insurance shall limit the extent of the release
and indemnity provisions of this Section 12.
Section U.
TERMINATION.
A. Lessor may terminate this Lease for Lessee's default by glVlng Lessee notice of
termination, if Lessee (i) defaults under any obligation of Lessee under this Lease and, after written notice
is given by Lessor to Lessee specifying the default, Lessee fails either to intmediately commence to cure the
default, or to complete the cure expeditiously but in all events within thirty (30) days .after the default
notice is given, or (ii) Lessee abandons the Premises for a period of one hundred twenty (120) consecutive
days.
B. Lessee acknowledges that Lessor's possible future needs for the Premises in connection
with Lessor's transportation operations are paramount. Accordingly, if at any time
Lessor, in its sole and absolute discretion, determines that the Premises or any portion
thereof are necessary or desirable for use in connection with Lessor's transportation
operations, or that Lessee's use of the Premises should be terminated due to safety
considerations associated with Lessor's transportation operations, Lessor may terminate
this Lease upon thirty (30) days notice to Lessee or, in emergency situations, upon such
shorter notice as is reasonable in the circumstances.
C. If Lessor shall receive a bona fide offer from a prospective buyer to purchase the Premises
and Lessor desires to accept such offer, Lessor shall furnish Lessee with a copy of the proposed contract
and notify Lessee of the intention of Lessor to accept the same. Lessee shall have the rigltt to elect to
accept such contract by giving Lessor written notice thereof within fifteen (15) days after receipt by Lessee
of such contract, and by delivering to Lessor at the same time the full amount of any earnest money
specified in such contract. If Lessee shall not so elect within such fifteen (15) day time period, the
provisions of this Section 13 (C.) shall terminate and be without any further force and effect, and Lessor
may enter into such contract with the third party, "1<cept that if the transaction with the third party is not
consummated according to the terms of such contract, then the provisions of this Section 13(C.) shall be
reinstated. Lessor may terminate this lease upon ninety (90) days notice to Lessee if the Premises is
subsequently sold to a third party.
D. After payment of the advance fixed rent to Lessor, Lessee may terminate this Lease
without cause upon thirty (30) days notice to Lessor.
Section 14.
LESSOR'S REMEDIES.
Lessor's remedies for Lessee's default are to (a) enter and take possession of the Premises,
without terminating this Lease, and relet the Premises on behalf of Lessee, collect and receive the rent
from reletting, and charge Lessee for the cost of reletting, and/or (b) terminate this Lease as provided in
Section 13 A. above and sue Lessee for damages, and/or (c) exercise such other remedies as Lessor may
have at law or in equity. Lessor may enler and take possession of the Premises by self-help, by changing
locks, if necessary, and may lock out Lessee, all without being liable for damages.
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EXHIBIT "B"
Section 15.
V ACA TION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY.
A. Upon termination howsoever of this Lease, Lessee (i) shall have peaceably and quietly
vacated and surrendered possession of the Premises to Lessor, without Lessor giving any notice to quit or
demand for possession, and (il) shall have removed from the Premises all structures, property and other
materials not belonging to Lessor, and restored the surface of the ground to as good a condition as the
same was in before such structures were erected, including, without limitation, the removal of
foundations, the filling in of excavations and pits, and the removal of debris and rubbish.
B. If Lessee. has not completed such removal and restoration within thirty (Jo) days after
termination of this Lease, Lessor may, at its election, and at any time or times, (i) perform the work and
Lessee shall reimburse Lessor for the cost thereof within thirty (30) days after bill is rendered, (ii) take
title to all or any portion of such structures or property by giving notice of such election to Lessee, and/or
(iil) treat Lessee as a holdover Lessee at will until such removal and restoration is completed.
Section 16.
FIBER OPTICS.
Lessee shall telephone Lessor during normal business hours (7:00 a.m. to 9:00 p.m.,
Central Time, Monday through Fridays, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day
number for emergency calls) to determine if fiber optic cable is buried on the Premises. Lessor may
change the telephone number and hours of operation by giving Lessee notice of the change. If cable is
buried on the Premises, Lessee will telephone the telecommunications company(ies), arrange for a cable
locator, and make arrangements for relocation or other protection of the. cable. Notwithstanding
compliance by Lessee with this Section 16, the release and indemnity provisions of Section 12 above shall
apply fully to any damage or destruction of any telecommunications system. .
Section 1 7.
NOTICES.
Any notice, consent or approval to be given under this Lease shall be in writing, and
personally served, sent by reputable courier service, or sent by certified mail, postage prepaid, return
receipt requested, to Lessor at: Union Pacific Railroad Company, Attn: Assistant Vice President - Real
Estate, Real Estate Department, 1800 Farnam Street, Omaha, Nebraska 68102; and to Lessee at the above
address, or such other address as a party may designate in notice given to the other party. Mailed notices
shall be deemed served five (s) days after deposit in the U.S. Mail. Notices which are personally served or
sent by courier service shall be deemed served upon receipt.
Section 18.
ASSIGNMENT.
A. Lessee may sublease the Premises or assign this Lease, by operation of law or otherwise,
only if Lessee provides Lessor with advance notice of the assignment or sublease and the sublessee's or
assignee's written agreement for the benefit of Lessor to be bound by the terms of this Lease. No
subletting or assignment shall relieve Lessee of its obligations under this Lease. Any assignment or
sublease by Lessee in violation of this Paragraph A shall be void and ineffective and shall, at the option of
Lessor, result in an immediate termination of this Lease.
B. Subject to this Section 18, this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
Section 19.
CONDEMNATION.
If, as reasonably determined by Lessor, the Premises cannot be used by Lessee because of
a condemnation or sale in lieu of condemnation, then this Lease shall automatically terminate. Lessor
shall be entitled to the entire award or proceeds for any total or partial condemnation or sale in lieu
thereof, including, without limitation, any award or proceeds for the value of the leasehold estate created
by this Lease. Notwithstanding the foregoing, Lessee shall have the right to pursue recovery from the
5
EXHIBIT "B"
condemning authority of such compensation as may be separately awarded to Lessee for Lessee's
relocation expenses, the taking of Lessee's personal property and fixtures, and the interruption of or
damage to Lessee' business.
Section 20. ATTORNEYS' FEES.
If either party retains an attorney to enforce this Lease (including, without limitation, the
indemnity provisions of this Lease), the prevailing party is entitled to recover reasonable attorneys' fees.
Section 21. RIGHTS AND OBLIGATIONS OF LESSOR.
If any of the rights and obligations of Lessor under this Lease are substantially and
negatively affected by any changes in the laWs applicable to this Lease, whether statutory, regulatory or
under federal or state judicial precedent, then Lessor may require Lessee to enter into an amendment to
this Lease to eliminate the negative effect on Lessor's rights and obligations to the extent reasonably
possible.
Section 22. ENTIRE AGREEMENT.
This Lease is the entire agreement between the parties, and supersedes all other oral or
written agrP.ements between the parties pertaining to this transaction; inr.luding, without limitation, Lease
Audit No. and any other lease under which all or any portion of the Premises was leased to Lessee.
Notwithstanding the prior sentence, Lessee shall retain any and all obligations and liabilities which may
have accrued under any other such agreements prior to the commencement of the term of this Lease. This .
Lease may be amended only by a written instrument signed by Lessor and Lessee.
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