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HomeMy WebLinkAbout16-Development Services roo",,,, ~, ~~~"C.,""",,'"'" " --.~~< "," ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Date: March 8, 2005 Subject: Resolutions approving a Lease of Property 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. MCC Date: 03/21/2005 From: James Funk, Director Dept: Development Services 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 "Inland Center Drive: Bike lane Agreement with the City of Colton." 09-20-04 Adopted Resolution No. 2004-292 authorizing execution of a Cooperative Agreement between the City of San Bernardino and the City of Colton for a Hike-and-Bike Trail, " beautification and purposes incidental thereto on Union Pacific Railroad Company property along Inland Center Drive. Recommended Motion: Adopt Resolution. rJ~ Contact person: Mike Grubbs, Enwneerin~ Mana~er/Field Enwneer Phone: 5179 Supporting data attached: Staff Report, Resolution, Attachments A and Location Map Ward: 3 FUNDING REQUIREMENTS: Amount: $20.000 Source: (Acct. No.) 250-370-5504-7480 Acct. Description: Inland Center Drive: Bike Lane Agreement with Colton Finance: CouncUNotes ~. ~{)OS,., 7 3/~J I/)5 Agenda Item J" '="_~'VC", '~'c, ." "''''''-'~''<< ~- ~ ._,<< '" " ," ",=~=".. City of San Bernardino - Reauest for Council Action Staff Report Subject: Resolutions approving a Lease of Property 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. 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 "A"). The City of Colton has approved a similar lease. The Mayor and Common Council approved a cooperative agreement for the hike and bike trail with the City of Colton on September 20, 2005. Under terms of the agreement, 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 environmental clearance necessary for federal funding, design, advertising for bids, award of contract and management of the construction of the project. The lease agreement with UPRR was also presented to San Bernardino in September 2004, for approval; however, the City Attorney raised concerns about language in the agreement related to the potential for discovery of hazardous substances at the site. To address the concern, UPRR has modified the language in Section 7D of the agreement so that San Bernardino will not be responsible for cleanup if hazardous substances are found on the property during excavation for construction of the trail and landscaping. The City Attorney's office has advised that the revised language is acceptable. 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. 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. 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 ~_"~""qcc,',,c_'_ ,-,- , ,n T~--W'W'"'''' ---~'''~~-r~'l~"j -r ' _en, ~" ~"~,__n,,~~, - en< ',," ~-, ,- "~': ---:-""''',,,,,,,,''1''' _ ",,_,"", 'n'_ _en ,_ City of San Bernardino - Reauest 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 Lease be executed so that each party can retain an original. Financial Impact: Funds for this lease in the amount of $20,000 will come from Account No. 250-370-5504-7480 "TC 04-22 Class I Inland Center Bike Path". Recommendation: Adopt Resolution, 3 ,~'~:~!l"""" '0 ~,'~.'<~"~'" ,~"-'" o o o '~p'~-~~" "..,"~,= 1 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING 3 EXECUTION OF A LEASE WITH THE UNION PACIFIC RAILROAD COMPANY FOR A HIKE-AND-BIKE TRAIL, BEAUTIFICATION AND PURPOSES INCIDENTAL 4 THERETO ON UNION PACIFIC RAILROAD COMPANY PROPERTY ALONG 5 INLAND CENTER DRIVE. 6 7 8 9 10 11 12 13 14 15 16 1 18 19 20 21 22 23 24 25 26 RESOLUTION NO. 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 purposes 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" 1" 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 III 27 28 Vl 0 . I~ .I / Itl If)" - 1 - ___,!;",T"""W' ~"""'~"-~"~ ' ","'" .., ", , ""'" '''",.,~ o o o <..~~.">~""""''''~,,. ~ '~~~ , '.~'H 1 RESOLUTION...AUmORIZING EXECUTION OF LEASE WITH THE UNION 2 PACIFIC RAILROAD COMPANY FOR A HIKE-AND-BIKE TRAIL, BEAUTIFICATION AND PURPOSES INCIDENTAL mERETO ON UNION PACIFIC 3 RAILROAD COMPANY PROPERTY ALONG INLAND CENTER DRIVE. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 2005, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA LONGVILLE MC GINNIS DERRY KELLEY JOHNSON MC CAMMACK City Clerk The foregoing. resolution. is hereby approved this day of ,2005. 23 Approved as to 24 form and legal content: 25 26 Judith Valles, Mayor City of San Bernardino JAMES F. PENMAN, City Attorney 27 By:Jtf/J..- ?--r~ 28 /1 - 2 - o o o ,.:"/",","'~e'f"1<irl",,-~"'" ... ~ .~.~=. ......:.-~.._.,--'''-,..,.~''''''~~~_':'>.="'''' ._ H A TT ACHME~T "1" INDL TLEASE 08/02 form Approved, Law 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, beautification 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, 2005, and expiring on December 31, 2024, 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 of the ternl. 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. 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 o o o ~ <-'l1'i'~- .. ATTACHMEl'\T "I" INDL TLEASE 08/02 Form Approved, Law Folder: 02212-68 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: Title: General Director- Real Estate MARGINAL NOTES: New 2 _rJi!~l.l~~~~~"; ~"'-~~I;'--'-"-~"'~ _~"~----".']' o ...."..~.. ...."'~".".. o e- z: - - w.;;. Z'" - '".... ~~ M ~ . -: i .... ~ ~: !w ZOcel:l.,..-_c I... : :I~.: ~r ~ ..... C..:I c:; C ill; ..i:izo ~ ii II : - ! z c '" ~ .... gj :I: X W . . .. .. Ii ~ : ; .. .. N i i i ;:: ~ i i I :i .. .. .. .. i .. ---- ;; ,"0"'0 .. Id: 1:1 0 ~ -...-.. ;I' !!1 ! i in& I J on a ... f c ~ ... 'IIC'IIC ~ 0: C -0-0 .; 6-A_ ill I c ~ &~ e. s.'" o ," ./ ~ I. .. I~' 'a cl\. ,,::,,:.:,,"""""x'"'~.;T,!,'eu-'~r"~""'" . -- ......-." ~~ .~, .....,. "..,~..._e "". ,., ,. ~."~ ./ '+ 6' .J' o , "'> <I ""oft 'J',.. ~ A) ~,p + .I.,. o .. N .. o .. z en = Ia... 2tl+St.7t L C,...i", .U.e..8I1Hi41.03 E.-'-AOEll-'-STRE ---l I . I 0 !. I 0 . . . . ;. .. . I .. c ~ c I 0' ,. .. .. . .. I I q, ~, >< :I: iD :::j . -h: ~ O]D o Q >< % 6i ~ .~_~:!=~~~=_ '-1K7=~'~---~~ ~c"'''''''''''''''~~"'_~_CC_'"> ._~ "" >.'" "C"."v" . ~ .. ~ !: !! .. ... : -. CD:D ....,., "'. -. .... N lJl o .. ... .. .., ... .. ... .. .. :: ~ ;f . ERHARDIH 0 U2+U3.t. Xln'I!OC...~-5~ , , "" " o o. Q )( :J: ijj :::j . :> ~""'''''''-<' .......- _. '",.'D'_ a % E 'l- 0 - 0 .. lit!!: ~ . .. .. .. I:: .. . f: ~ "!Ii .. .. I ~ .~".. D' ........... l ===J ::~ -.-- I~ .. .... ... ....." ..~ . ....... ~ .. .. ..... sL1\.1I. ~ ~~ .. '" .. .. .. .. ~ .. . .. .. IS ~ o o o ~'''.''~~TTI'--''-''.' ,,,,.,~~,",,,~ INDLTLEASE 08/02 Fornl Approved, Law Folder: O~212-68 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 ....1th 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 o o o -- ~~~ ~" ~ ~~~,~'~,',~,. _.'m' ,~,._~ EXHIBIT "B" I}\;DL TLEASE 08/02 Form Approved, Law Folder: 02212-68 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 bill. 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 MA TERIALS. 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 ofthe 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, (Hi) 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 oi the Lease and shall 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. 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 fO.1~ny 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 bill. In addition, Lessor may, at its election, require Lessee, at Lessee's sole cost and expense, to perform such work, in which event, Lessee 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 2 o o o "_~~=',""'e.,,-.m_~'m' -~,. i"T'''T~' "....T..-e_~'.' .. ,."...~- ,. EXHIBIT "B" ISOL TLEASE 08/02 Foml Approved, Law Folder: 01111.68 1980, 42 U.S.C. ~~ 9601, et ~., as amended or in RCRA, the regulations promulgated pursuant to either such Act, or state laws and regulations similar to or promulgated pursuant to either such Act, (ii) any material, waste or substance which is (A) petroleum, (B) asbestos, (C) flammable or explosive, or (D) radioactive; and (Hi) such other substances, materials and wastes which 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 the Premises for any services, labor or materials furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall have the right to discharge any such liens at Lessee's expense. Section 10. AL TERA TIONS AND IMPROVEMENTS; CLEARANCES. A. No alterations, improvements or installations may be made on the 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 other conditions as Lessor determines to impose. In all events such consent 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 with 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 the Premises if such improvement or device complied wit:hl.esso['s clearance standards at the time of its installation. D. Any actual or implied knowledge of Lessor of a violation of the clearance requirements of this 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 11. 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 the Premise~ 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, 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 3 o G o -- --- "'"=""''''''''''''7.~,~..,.,_=" -- - EXHIBIT "B" Il'>DL TLEASE 08/02 Form Approved, Law Folder: 02212-68 determined by final order of a court of competent jurisdiction to have been primarily caused by the sole active direct negligence of any Indemnified Party. C. \<\'here 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 13. TERMINATION. A. Lessor may terminate this Lease for Lessee's default by glvmg 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 immediately 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 ofthe proposed contract and notify Lessee of the intention of Lessor to accept the same. Lessee shall have the right 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, except 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 pa}ment of the advance fixed rent to Lessor, Lessee may terminate this Lease ""ithout 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 enter 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. Section 15. V ACA nON 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 (ii) shall have removed from the Premises all structures, property and-Qther materials not belonging to Lessor, and restored the surface of the ground to as good a condition as the 4 o o o ~~.__..~ ~~ o~ ~- ''i'7~ T--'- 1f" > _>_~O" _~> >.._>...~ I"'DL TLEASE 08/02 Form Approved, Law same was in before such structures were erected, including, without limitation, 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 (30) 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 (iii) treat Lessee as a holdover Lessee at will until such removal and restoration is completed. Folder: 02212-68 the removal of 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 17. 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 (5) days after deposit in the U.S. Mail. Notices which are personally served or sent by courier senice 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 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. The costs, salary and expenses of the City Attorney of the City of San Bernardino and members of his office shall be considered attorneys' fees for the purposes of this section of this Lease. 5 o o G -.-' ~~'~ .- EXHIBIT "B" INDL TLEASE 08/02 Form Approved, Law Folder: 02212-68 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 agreements between the parties pertaining to this transaction. This Lease may be amended only by a written instrument signed by Lessor and Lessee. 6 . CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT INTEROFFICE MEMORANDUM TO: FROM: Eileen Gomez, Senior Secretary, City Clerk Mike Grobbs, Engineering ManagerlField Engin~ ~ SUBJECI': Lease Agreement with UPRR for Inland Center Bikeway (Approved 03/21/05, Reso. 2005-67) DATE: May 9, 2005 COPIES: Les Fogassy, Real Property Official; File No. 1.7480 w/Copy of Lease Agreement Transmitted enclosed is one fully executed original of the subject Lease Agreement which was executed by UPRR and is being returned for your file. A copy has been retained in the files of the Real Property Section. Duplicate originals were retained by UPRR for their files. If you have any questions regarding this matter, please contact me at (909) 384.5179.