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HomeMy WebLinkAbout51-City Attorney ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Resolution of the Mayor and Common City Attorney Council of the City of San Bernardino Authorizing the Execution of a First Amendment to a Lease of Dept: CITY ATTORNEY Property from Union Pacific Railroad Company to the City of San Bernardino. Date: April 7,2008 Synopsis of Previous Council Action: On July 16,2007,the Mayor and Common Council approved the execution of a stipulation allowing the State of California to take immediate possession of property owned by Union Pacific Railroad Company and the City that is the subject of an eminent domain action filed by the State. On September 17, 2007, the Mayor and Common Council approved the settlement of the eminent domain action for a total payment to the City of$188,573. Recommended motion: That the accompanying resolution,authorizing the execution of a First Amendment to Lease ofProperty from Union Pacific Railroad Company to the City of San Bernardino,be adopted. w �G+ James F. Penman Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Ward: 3 FUNDING REQUIREMENTS: Amount: N/A —payment to City Source: N/A Finance: Council Notes: 02©Dp--1 SO APE✓/o?ts[� �/710 5 Agenda Item No. STAFF REPORT Council Meeting Date: April 7, 2008 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: April 4, 2008 AGENDA ITEM: First Amendment to Lease of Property from Union Pacific Railroad Company to the City of San Bernardino On November 27, 2006, the State of California filed an eminent domain action to acquire property in the City of San Bernardino for an 1-215 freeway widening project. The major part of the property is owned by Union Pacific Railroad Company and the remainder is owned by the City. On July 16, 2007, the Mayor and Common Council approved the execution of a stipulation allowing the State to take immediate possession of the property so that it could begin work on the project. As required by law, the State deposited $592,000, the probable compensation value of the property as determined by its appraiser. On September 17, 2007, the Mayor and Common Council approved the settlement of the eminent domain action for a total payment to the City of$188,573 out of the deposit. That amount includes the value of the part of the property that is owned by the City, weed abatement liens recorded by the City against the part of the property owned by Union Pacific, and the value of a 20-year lease from Union Pacific to the City of the part of the property owned by Union Pacific. The lease was entered into in 2005 to permit the City to construct a bicycle trail with the City of Colton on part of the property. To implement the settlement of the eminent domain action,the State, Union Pacific, and the City stipulated to the entry of a judgment allowing the State to take the property and apportioning the $592.000 deposit between Union Pacific and the City according to their respective interests in the property. The City's portion of the deposit totals $188,757, plus statutory interest on the sum of$183,520 from February 10, 2007. To complete the settlement, it is necessary to amend the lease from Union Pacific to the City to delete the part of the lease premises taken by the State in the eminent domain action. Attached hereto is a First Amendment to Lease of Property providing for the amendment of the lease to that effect. Financial Impact: In excess of $188,757 will be paid to City. Recommendation: Adopt Resolution. COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO 3 LEASE OF PROPERTY FROM UNION PACIFIC RAILROAD COMPANY TO THE CITY OF SAN BERNARDINO 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 6 SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed 8 to execute on behalf of said City a First Amendment to Lease of Property from Union Pacific 9 Railroad Company to the City of San Bernardino, a copy of which First Amendment to Lease of lo Property is attached hereto marked Exhibit 1 and incorporated herein by reference as fully as though 11 set forth at length. 12 SECTION 2. The authorization granted by this Resolution shall expire and be void and 13 of no further effect if said First Amendment to Lease of Property is not executed by all parties and 14 returned to the Office of the City Clerk within sixty(60) days following the effective date of this 15 Resolution. 16 17 18 19 20 21 22 23 24 25 26 27 28 t 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO 2 LEASE OF PROPERTY FROM UNION PACIFIC RAILROAD COMPANY TO THE CITY OF SAN BERNARDINO 3 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a meeting thereof, held on the_ 5 day of , 2008, by the following vote, to wit: 6 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 7 8 ESTRADA 9 BAXTER lo BRINKER 11 DERRY 12 KELLEY 13 JOHNSON 14 MC CAMMACK 15 16 Rachel Clark, City Clerk 17 18 19 The foregoing Resolution is hereby approved this_day of , 2008. 20 21 PATRICK J. MORRIS, Mayor 22 City of San Bernardino 23 Approved as to form: 24 JAMES F. PENMAN, City Attorney 25 26 27 28 2 Lease Audit# 236547 Folder # 1564-92 FIRST AMENDMENT TO LEASE OF PROPERTY THIS FIRST AMENDMENT to Lease of Property is made as of the 20th day of March, 2008 (the "Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Lessor"), and CITY OF SAN BERNARDINO, a California municipal corporation ("Lessee"). RECITALS: A. By Lease dated March 23, 2005, the parties entered into a Lease of Property (the "Lease") covering certain premises located at San Bernardino, California ("Premises") for a hike and bike trail,beautification and purposes incidental thereto only, and for no other purpose. B. As a result of an eminent domain action (People of the State of California Department of Transportation v Union Pacific Railroad Company, et al., Case Number SCVSS 144269, Superior Court of California, County of San Bernardino), it is necessary to delete from the Lease that portion of the Premises taken as a result of the eminent domain action. C. The parties desire to amend the Lease as set forth below. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants and undertakings in this First Amendment, the parties agree as follows: Section 1. Definitions. The terms in this First Amendment have the same meanings given such terms in the Lease, except the term "Premises," which shall henceforth have the meaning set forth in Section 2 of this First Amendment. Section 2. New Exhibit A/Premises. Exhibit "A" attached hereto and hereby made a part hereof is hereby substituted for the Exhibit"A" attached to said Lease, and each and every reference in said Lease to Exhibit "A" or to the "Premises" or to the "leased Premises" shall henceforth be deemed a reference to the print dated 2/25/2008, number 2212-68, prepared by Cheryl A. Austin, marked Exhibit "A" and attached hereto. The Lease shall terminate as to that portion of the Premises (as shown in Exhibit "A" to the Lease prior to this First Amendment) taken as a result of the eminent domain action referred to in Recital B of this First Amendment. Pursuant to Article III.B of the Lease, Lessor shall refund to Lessee the portion of the advance fixed rent attributable to the property taken, for the period between the date of the taking and the expiration date of the Lease, agreed by Lessor and Lessee to be $4,355. The refund shall be made by decreasing the compensation to be paid to Lessor pursuant to the judgment in the eminent domain action by $4,355 and increasing the compensation to be paid to Lessee by the same amount. EXHIBIT 1 Section 3. Amendment to Article III.B. The first sentence of Article III.B of the Lease is amended in its entirety to read: "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 the effective date of the termination and the expiration date specified in Article II." Section 4. Amendment Supplemental. This First Amendment is supplemental to the Lease, and nothing herein contained shall be construed as amending or modifying the same, except as herein specifically provided. In the event of any conflict between the terms of this Amendment and the terms of the Lease, the terms of this First Amendment shall prevail. Except as expressly provided herein, all of the terms, covenants and conditions contained in the Lease shall remain in full force and effect. Section 5. Counterparts. This First Amendment may be executed in multiple counterparts. A copy of this First Amendment bearing an original signature shall constitute a counterpart, and all such counterparts shall, taken together, constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed on the dates set forth below, to be effective as of the Effective Date first above written. Lessor: UNION PACIFIC RAILROAD COMPANY Date By: Name: Its: Lessee: CITY OF SAN BERNARDINO Date By: Name: Its: Mayor APPROVED AS TO FORM: James F. Penman City Attorney 2 EXHIBIT 1 Lease Audit#236547 Folder # 1564-92 FIRST AMENDMENT TO LEASE OF PROPERTY THIS FIRST AMENDMENT to Lease of Property is made as of the 20th day of March, 2008 (the "Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Lessor"), and CITY OF SAN BERNARDINO, a California municipal corporation ("Lessee"). RECITALS: A. By Lease dated March 23, 2005, the parties entered into a Lease of Property (the "Lease") covering certain premises located at San Bernardino, California ("Premises") for a hike and bike trail, beautification and purposes incidental thereto only, and for no other purpose. B. As a result of an eminent domain action (People of the State of California Department of Transportation v. Union Pacific Railroad Company, et al., Case Number SCVSS 144269, Superior Court of California, County of San Bernardino), it is necessary to delete from the Lease that portion of the Premises taken as a result of the eminent domain action. C. The parties desire to amend the Lease as set forth below. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants and undertakings in this First Amendment, the parties agree as follows: Section 1. Definitions. The terms in this First Amendment have the same meanings given such terms in the Lease, except the term "Premises," which shall henceforth have the meaning set forth in Section 2 of this First Amendment. Section 2. New Exhibit A/Premises. Exhibit "A" attached hereto and hereby made a part hereof is hereby substituted for the Exhibit "A" attached to said Lease, and each and every reference in said Lease to Exhibit "A" or to the "Premises" or to the "leased Premises" shall henceforth be deemed a reference to the print dated 2/25/2008, number 2212-68, prepared by Cheryl A. Austin, marked Exhibit "A" and attached hereto. The Lease shall terminate as to that portion of the Premises (as shown in Exhibit "A" to the Lease prior to this First Amendment) taken as a result of the eminent domain action referred to in Recital B of this First Amendment. Pursuant to Article III.B of the Lease, Lessor shall refund to Lessee the portion of the advance fixed rent attributable to the property taken, for the period between the date of the taking and the expiration date of the Lease, agreed by Lessor and Lessee to be $4,355. The refund shall be made by decreasing the compensation to be paid to Lessor pursuant to the judgment in the eminent domain action by $4,355 and increasing the compensation to be paid to Lessee by the same amount. EXHIBIT 1 Section 3. Amendment to Article III.B. The first sentence of Article III.B of the Lease is amended in its entirety to read: "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 the effective date of the termination and the expiration date specified in Article II." Section 4. Amendment Supplemental. This First Amendment is supplemental to the Lease, and nothing herein contained shall be construed as amending or modifying the same, except as herein specifically provided. In the event of any conflict between the terms of this Amendment and the terms of the Lease, the terms of this First Amendment shall prevail. Except as expressly provided herein, all of the terms, covenants and conditions contained in the Lease shall remain in full force and effect. Section 5. Counterparts. This First Amendment may be executed in multiple counterparts. A copy of this First Amendment bearing an original signature shall constitute a counterpart, and all such counterparts shall, taken together, constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed on the dates set forth below, to be effective as of the Effective Date first above written. Lessor: UNION PACIFIC RAILROAD COMPANY Date By: Name: Its: Lessee: CITY OF SAN BERNARDINO Date By. Name: Its: Mayor APPROVED AS TO FORM: .Q es F. 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CALIFORNIA { • • TO SAN BERNARDINO INDUSTRIAL LEAD tt TO ACCOMPANY CITY OF SAN BERNARDINO p:/speng/co/JOOS/124-17/col24172.tif SCALE: I ' = • • SCAN t • t • OFFICE OF FILENAME • •a • • •• • • t ••: • • / t • CAA FILE: 2212-68