HomeMy WebLinkAbout12/02/2008, C2 - UNION PACIFIC RAILROAD LEASE AGREEMENT 1 i
council M°°in Date
December 2,jj8�]
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C I T Y O F SAN LUIS OBISPO
FROM: Jay D. Walter,Director of Public Wor ^'
Prepared By: Peggy Mandeville, Principal Transporta ' n.Planner TkA
SUBJECT: UNION PACIFIC RAILROAD LEASE AGREEMENT
CAO RECOMMENDATION
1. Adopt a resolution approving a lease agreement with Union Pacific Railroad for the
development of a Class 1 bicycle path along a section of the railroad corridor on the west
side of California Boulevard generally between Hathway Street and the Cal Poly campus.
2. Authorize the Mayor to execute the agreement which includes accepting weed abatement
and debris removal responsibilities within the city limits of the railroad corridor.
DISCUSSION
Background
In 2001 the City Council approved preliminary alignment plans for the Railroad Safety Trail
bicycle path through the city limits. Since that time, the City has been working with Union
Pacific Railroad (UPRR) to lease portions of their property along the railroad corridor for the
development of the Railroad Safety Trail bike path. The lease agreement that is the subject of
this staff report is the first the City has requested from UPRR. As a condition for granting the
lease agreement, UPRR shall be provided the opportunity to review and approve engineered
drawings that identify improvements on UPRR property and dimension the lease area and
improvements in relation to their centerline of track. This will ensure that the lease area will not
restrict existing or future railroad operations. The engineered drawings are more detailed than
preliminary alignment plans approved by Council in 2001 and UPRR in 2004.
Proposed Lease Agreement
As part of the Railroad Safety Trail's Phase 4 project, the City developed engineered drawings
for the section of the Railroad Safety Trail west of California Boulevard, between Hathway
Street and the Cal Poly campus (see Attachment 1). The City submitted the engineered drawings
to UPRR with a request to lease the outer ten feet of UPRR property for the installation of
security fencing and a graded slope (instead of constructing a retaining wall) as part of the
Railroad Safety Trail Phase 4 bicycle path development.
Construction of this section of the Railroad Safety Trail with improvements all on City property
was approved by Council earlier this year. The contractor has staged the site for construction
and is waiting for a right of entry agreement or lease agreement approval so Union Pacific
Railroad property can be used to facilitate construction even if all improvements are located on
City property.
Union Pacific Railroad (UPRR) supports the City's request for the lease with the condition that
the City assume weed abatement and debris removal responsibilities from the railroad.
Specifically, the City is being asked to "control vegetation and abate trash and debris" on UPRR
property that lies ten feet or more from the nearest rail line within the City limits (see
Attachment 2). Staffs original response to this request was to agree to accept responsibility for
portions of the railroad corridor where UPRR has granted the City a lease. This revision to the
agreement was not acceptable to UPRR. City staff countered that in order to assume weed
abatement and debris removal responsibilities within the railroad corridor of the city limits, the
City needs assurance that future leases will be granted along other segments of the railroad
corridor; specifically from Hathway south to the Amtrak train station. In discussions with Union
Pacific Railroad's Public Relations Director, Wes Lujan, he has confirmed the railroad's support
for the path and its completion to the train station.
Currently UPRR is responsible for weed abatement and debris removal of their property within
the City. Vegetation control is contracted out to a private party that works with the City's Fire
Department to maintain compliance with City regulations. Debris removal is conducted by
railroad employees working out of Guadalupe, California. When the City is notified of debris
within the railroad corridor, a UPRR representative is contacted and it typically takes a week or
more for the debris to be removed. Having local control will improve the debris abatement
response time significantly as well as provide the City will access to UPRR property to remove
graffiti.
Another value received by both the City and UPRR through this agreement, is the security
fencing that will be installed parallel to the railroad tracks as a part of each segment of
construction of the trail. There has always been great concern about random crossings of the
railroad tracks, as well as unauthorized trespassing in the railroad right of way. The security
fence will be installed on UPRR property in the lease area, providing more room for the bicycle
path.
City staff found that the City of Santa Barbara recently assumed weed abatement and debris
removal responsibilities along their portion of the railroad corridor to gain local control for the
removal of homeless camps. They report a high level of satisfaction with the arrangement, but
instead of a lease of UPRR property in return, Santa Barbara is compensated for its efforts.
Lease Agreement Options
It is physically impossible to construct the entire length of the Railroad Safety Trail bicycle path
without some use of UPRR property. The section of bicycle path that is the subject of this lease
agreement can be developed without the use of UPRR property during construction, however the
bicycle path width will need to be reduced from its proposed width of 12 feet (as constructed on
existing sections of the Railroad Safety Trail) to allow for construction of the retaining wall
without any encroachment onto UPRR property during construction. Given the site's proximity
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to the Cal Poly campus, a minimum 12 foot wide path is recommended. UPRR prefers the use of
a lease agreement to address construction of the project. City approval of the lease agreement
shows the City's good faith effort to collaborate with the railroad.
Implementation of City Goals
The City's 2007-09 Financial Plan includes a Major City Goal titled `Bikeway Improvements"
which calls for the City "continuing to work toward completion of the Railroad Safety Trail".
Approving the lease agreement with UPRR will allow for the development of the Railroad Safety
Trail, which is the highest priority commuter bikeway in the City.
CONCURRENCES
The City Attorney's office reviewed the lease agreement language and recommended minor
modifications that were accepted by Union Pacific Railroad. The attached modified lease
agreement is acceptable to both parties.
FISCAL UAPACT
The cost of the lease agreement with UPRR shall be at the rate of $1.00 per year, however the
estimated cost to the City to assume weed abatement and debris removal responsibilities along the
segment of the railroad corridor is $25,000-$30,000 annually. This estimate was provided by the
contractor currently performing these services. Following approval of the lease agreement, staff
proposes that weed abatement and debris removal responsibilities will continue through use of
contract services and we will bid this service out to see if we can improve upon the current cost
estimate.
While this is not the time when we wish to incur higher operating costs (even if less than the .
current estimate),the completion of the Railroad Safety Trail has been a Major Council and
community goal for nearly 20 years and our ability to complete a link to Cal Poly is essential to
its success and our significant past investment. This added cost should also be considered with
the recognition that the City has been extraordinarily successful in the funding the extension of
the Railroad Safety Trail from the Amtrak Station to Cal Poly with grant money(over$ 2
million to date), donations ($50,000 from the Rotary Club thus far), and with very modest
General Fund contributions. As noted earlier, assuming responsibility for the appearance of this
stretch of California Boulevard will also enhance the quality of this important gateway into the
University area. For this reason, we should continue to move forward.
Staff is recommending that the necessary funding needed to assume these additional duties be
incorporated into the department's operating budget as part of the 2009-11 Financial Plan. Staff
will prepare and submit a Significant Operating Program Change (SOPC) request which shall
identify the budget required to support these additional operating costs on an annual basis.
ALTERNATIVES
1. The City Council may continue the item with direction to staff to work with Union
Pacific Railroad to further modify specific language in the lease agreement.
2. The City Council may decide not to approve the Union Pacific Railroad lease agreement
at this time. If this is Council's action, direction should be given to staff regarding how
staff should proceed with the Railroad Safety Trail bicycle path project.
ATTACHMENTS
1. Vicinity Map
2. Proposed lease agreement between Union Pacific Railroad and the City of San Luis
Obispo
3. Resolution approving the proposed lease agreement
G:\Staff-Reports-Agendas-Minutes\_CAR\2008\Transportation\UPRR Agreement\UPRR Agreement CAR.doc
ATTACHMENT I
Vicinity Map
R.R.Safety Trail Phase,
Hathway-Cal Poly
�%.'dMENT a2
Industrial Lease(Yew To Year)09-01-06 Folder No.02040.46
(Unimproved Property) Audit No.
Fonn Approved,Law
LEASE OF PROPERTY
THIS LEASE ("Lease") is entered into on 2008, between
UNION PACIFIC RAILROAD COMPANY ("Lessor") and CITY OF SAN LUIS OBISPO, a
California municipal corporation,whose address is Public Works Department, 919 Palm Street, San Luis
Obispo, California 93401 ("Lessee").
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
Article 1. PREMISES:USE.
Lessor leases to Lessee and Lessee leases from Lessor the premises ("Premises") at San Luis
Obispo, California, shown on the prints dated June 25, 2008, 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 construction and maintenance of a vandal-resistant security
fence, landscaping, and pavement encroachments associated with Lessee's adjoining pedestrian/bicycle
trail,and purposes incidental thereto,only,and for no other purpose.
Article 2. TERM.
The tetra of this Lease shall commence October 1, 2008, and, unless sooner terminated as
provided in this Lease, shall extend for one year and thereafter shall automatically be extended from year
to year.
Article 3. RENT.
A. Lessee shall pay to Lessor, in advance, fixed rent of One Dollar ($1.00) annually.
(WAIVED)-
B. As further consideration,Lessee agrees to control vegetation and abate trash and debris in
accordance with any and all current and future local, state, and federal laws on all of Lessor's properties
that are not under lease to a third party and that lie within the city limits of the City of San Luis Obispo,
subject to the following terms:
a. Lessee is responsible for vegetation control and trash abatement only on those parts
of Lessor's property that lie ten or more feet from the nearest rail on any railroad
track.
b. Under no circumstances, shall Lessee or anyone acting on its behalf come or place
materials or equipment any closer than twenty five (25) feet from any railroad track
located on Lessor's property without a railroad flagman present. Lessor shall
provide, at no cost to Lessee, a flagman for any work done under this Article upon
Lessee's request to Lessor's Manager-Vegetation Control at least 72 hours in
advance of commencing work.
- ATTACHMENT
c. During any work that Lessee does on Lessor's property, Lessee shall have fire-
suppression equipment on site. At a minimum, this equipment shall include a 50-
gallon tank of water with an application hose.
d. In the event that city limits should change,the locations to which the requirements of
this Article apply shall change accordingly.
t
e. Lessee shall be responsible for any fine, citation, or other penalty issued against
Lessor due to Lessee's failure to meet its obligations under this Article.
f. Lessee agrees to release, indemnify,and defend Lessor against any losses, claims, or
injuries that arise in connection with Lessee's work or obligations under this Article
under the terms and conditions set forth in Section 12 of Exhibit B to the same extent
that those provisions apply to the Premises.
Article 4. INSURANCE.
A. Before commencement of the term of this Lease, Lessee shall provide to Lessor a
certificate issued by its insurance carrier evidencing the insurance coverage required under Exhibit C
hereto attached and made a part hereof.
B. Not more frequently than once every two years, Lessor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the railroad industry and
underwriting practices in the insurance industry.
C. All insurance correspondence, certificates and endorsements shall be directed to: Real
Estate Department, 1400 Douglas Street STOP 1690, Omaha, Nebraska 68179-1690,Folder No. 02040-
46.
Article 5. SPECIAL PROVISION FENCEBARRICADE, NO TRESPASSING. SIGNS.
LANDSCAPING APPROVAL,FENCING ON OPPOSITE SIDE OF TRACKS.
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A. Lessee,at Lessee's sole cost and expense,shall construct and maintain,at all times during
the term of this Lease,an glgfii-foot-tall vandal-resistant fence of a design satisfactory to Lessor along the
entire length of the Premises in the location shown on the attached Exhibit A. Maintenance of the fence
includes, but is not limited to,the removal of all graffiti by keeping the fence painted black at all times.
No posters or banners of any kind may be attached to the fence. If such posters or banners are discovered,
Lessee shall remove them immediately. No items that could obstruct vision between the Premises and
Lessor's railroad corridor are allowed on the Premises or fence. Should the fence become damaged,
Lessee shall repair it within five days of discovering or receiving notice of the damage. If Lessee does
not perform timely repairs to the fence,Lessor shall have the option of making repairs and billing Lessee
for the actual costs of repairs,including any additive rates that may apply to the work.
B. Lessee, at Lessee's sole cost and expense, shall install and maintain, at all times during
the term of this Lease, "No Trespassing" signs at intervals along the fence line on the Premises as
determined by Lessor's Police Department and in conformance with any City of San Luis Obispo
regulations regarding such signs.
C. Prior to installation of landscaping on the Premises, Lessee shall obtain approval of said
landscaping plans from Lessor's Manager-Vegetation Control. No landscaping that could obstruct vision
between the Premises and Lessor's Railroad corridor will be allowed
ATTACHMENT 2_
D. Lessee shall cooperate with California Polytechnic State University and Lessor in efforts
to encourage adjoining landowners on the opposite side of the tracks from the Premises to install and
maintain fences or take other measures to prevent trespassing onto Lessor's right of way.
IN WITNESS WHEREOF,the parties have executed this Lease as of the day and year first herein
written.
Lessor: Lessee: t!
UNION PACIFIC RAILROAD COMPANY CITY OF SAN LUIS OBISPO
By: By_
General Director-Real Estate Title:
NOTE: New Lease
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ATTACHMENT
Industrial Lease(Year To Year)09-0I-06
(Unimproved Property)
Form Approved Law
EXHIBIT B
TO
INDUSTRIAL LEASE(UNIMPROVED YEAR TO YEAR)
Section L EUPROVEMENTS.
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Section 2. RESERVATIONS,TITLE 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, roadways 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. Lessee acknowledges that Lessor makes no representations or warranties, express or
implied,concerning the title to the Premises,and that the rights granted to Lessee under this Lease do not
extend beyond such right,title or interest as Lessor may have in and to the Premises. Without limitation
of the foregoing, this Lease is made subject to all outstanding rights; whether or not of record. Lessor
reserves the right to renew any such outstanding rights granted by Lessor or Lessor's predecessors.
D. Without limitation of Subparagraphs B. and C. above, Lessee shall not interfere in any
manner with the use or operation of any signboards now or hereafter placed on the Premises or with arty
property uses in connection with such signboards (such as, by way of example and not in limitation,
roadways providing access to such signboards). In no event may Lessee construct on the Premises any
improvements that interfere in any manner with the visibility or operation of any signboards now or
hereafter on the Premises or on property in proximity to the Premises.
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.
A. Lessee shall pay,prior to delinquency,all taxes levied during the life of this Lease on all
personal property and improvements on the Premises not belonging to Lessor. If such taxes are paid by
Lessor, either separately or as a part of the levy on Lessor's real property, Lessee shall reimburse Lessor
in full within thirty(30)days after rendition of Lessor's bill.
B. If the Premises are specially assessed for public improvements, the annual rent will be
automatically increased by 12%of the full assessment amount
Ca- 13
ATTACHMENT
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 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.
B. Lessee shall not permit any sign on the Premises, except signs relating to Lessee's
business.
C. If any improvement on the Premises other than the Lessor Improvements 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 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 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 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
- ATTACHMENT
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, f
containment, remediation, decontamination, removal, investigation, monitoring, closure or post-closure. I
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 shall 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 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
1980,42 U.S.C. §§9601,et seg.,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 (iii) 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. ITTELMES.
A. Lessee will arrange and pay for all utilities and services supplied to the Premises or to
Lessee.
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.
i
- ATTACHMENT
I
Section 10. ALTERATIONS 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 with Lessor'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. ASIS.
Lessee accepts the Premises in its present condition with al] 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 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, 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.
\' ATTACHMENT
Section 13. TERMINATION.
A. Lessor may terminate this Lease for Lessee's default by giving 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. Notwithstanding the terns of this Lease set forth in Article 11, Lessor or Lessee may
terminate this Lease without cause upon thirty(30)days'notice to the other party;provided,however,that
at Lessor's election, no such termination by Lessee shall be effective unless and until Lessee has vacated
and restored the Premises as required in Section I SA, at which time Lessor shall refund to Lessee, on a
pro rata basis,any unearned rental paid in advance.
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 above and sue Lessee for damages, and/or (c) exercise such other remedies as Lessor may
have at taw 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. VACATION 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 other
materials not belonging to Lessor, and restored the surface 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 (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 tenant 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
Iocator, 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.
ATTACHMENT
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: General Manager-Real Estate,
Real Estate Department, I400 Douglas Street, Stop 1690,Omaha, Nebraska 68179; 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 service shall be deemed served upon receipt.
Section I& 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 subtenant'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's business.
Section 20. ATTORNEY'S 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 attorney's 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
agreements between the parties pertaining to this transaction, including,without.limitation,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
ATTACHMENT
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.
Ca- I�(
ATTACHMENT `2 `
i
Approved:Insurance Group
Created:2/10/06
Last Modified:72/07
EXMrr C
Union Pacific Railroad
Contract Insurance Requirements
Lease of Land
Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease (except as
otherwise provided in this Lease)the following insurance coverage:
A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of
not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL
insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing
equivalent coverage). The policy must also contain the following endorsement,which must be stated on
the certificate of insurance: Contractual Liability Railroads ISO form CG 24 1.7 10 01 (or a substitute I
form providing equivalent coverage)showing"Premises"as the Designated Job Site.
B. Business Automobile Covera¢e insurance. Business auto coverage written on ISO form CA 00
01 10 01 (or a substitute form providing equivalent liability coverage)with a combined single limit of not f
less $2,000,000 for each accident, and coverage must include liability arising out of any auto (including
owned,Erred,and non-owned autos).
The policy must contain the following endorsements,which must be stated on the certificate of insurance:
• Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a
substitute form providing equivalent coverage)showing"Premises"as the Designated Job Site: t
• Motor Carrier Act Endorsement-Hazardous materials clean up(MCS-90)if required by law.
C. Workers Compensation and Employers Liability insurance. Coverage must include but not be
limited to:
• Contractor's statutory liability under the workers' compensation laws of the state(s) affected by
this Agreement.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease
policy limit$500,000 each employee.
If Lessee is self-insured, evidence of state approval and excess workers compensation coverage must be
provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers'
Act,the Jones Act,and the Outer Continental Shelf Land Act, if applicable.
In any and all Claims against Lessor by any employee of Lessee,Lessee's indemnification obligation
under this section shall not be limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable under any workers compensation acts,disability benefits acts or other
employee benefits acts.
D. Pollution Liability insurance. If permitted use as defined in this Lease includes any generation,
handling, enrichment, storage, manufacture, or production of hazardous materials pollution liability
insurance is required. Pollution liability coverage must be written on ISO form Pollution Liability
Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability
coverage),with limits of at least$5,000,000 per occurrence and an aggregate limit of$10,000,000.
�a-ab
ATTACHMENT
If hazardous materials are disposed of from the Premises, Lessee must furnish to Lessor evidence of
pollution legal liability insurance maintained by the disposal site operator for losses arising from the
insured facility accepting the materials, with coverage in minimum amounts of$1,000,000 per loss, and
an annual aggregate of$2,000,000.
E. Umbrella or Excess insurance. If Lessee utilizes umbrella or excess policies,these policies must-
"follow form"and afford no less coverage than the primary policy..
Otber Requirements
F. All policy(ies) required above must include Lessor as"Additional Insured" using ISO Additional
Insured Endorsement CG 20 11 (or a substitute form providing equivalent coverage). The coverage
provided to Lessor as additional insured shall, to the extent provided under ISO Additional Insured
Endorsement CG 20 11, provide coverage for Lessor's negligence whether sole or partial, active or
passive, and shall not be limited by Lessee's Iiability under the indemnity provisions of this Lease.
G. Lessee waives all rights against Lessor and its agents,officers,directors and employees for recovery
of damages to the extent these damages are covered by the workers compensation and employers' liability
or commercial umbrella or excess liability insurance obtained by Lessee required by this agreement.
Ii. Punitive damages exclusion,if any,must be deleted(and the deletion indicated on the certificate
of insurance), unless(a) insurance coverage may not lawfully be obtained for any punitive damages that
may arise under this Lease,or(b)all punitive damages are prohibited by all states in which the Premises
are located.
I. Prior to execution of this Lease, Lessee shall furnish Lessor with a certificates) of insurance,
executed by a duly authorized representative of each insurer, showing compliance with the insurance
requirements in this Lease.
J. All insurance policies must be written by a reputable insurance company acceptable to Lessor or
with a current Best's Insurance Guide Rating of A-and Class VII or better, and authorized to do business
in the state where the Premises are located.
IC The fact that insurance is obtained by Lessee,or by Lessor on behalf of Lessee,will not be deemed
to release or diminish the liability of Lessee, including, without limitation, liability under the indemnity
provisions of this Lease. Damages recoverable by Lessor from Lessee or any third party will not be
limited by the amount of the required insurance coverage.
ATTACHMENT 3
RESOLUTION NO. (2008 Series)
A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO
APPROVING A LEASE AGREEMENT WITH UNION PACIFIC RAILROAD FOR THE
DEVELOPMENT OF A CLASS I BIKE PATH ALONG A SECTION OF THE
RAILROAD CORRIDOR ON THE WEST SIDE OF CALIFORNIA BOULEVARD
GENERALLY BETWEEN HATHWAY STREET AND THE CAL POLY CAMPUS
WHEREAS, San Luis Obispo's Bicycle Transportation Plan ranks the Railroad Safety Trail
as the highest priority commuter bikeway in the City; and
WHEREAS, approving a lease agreement with Union Pacific Railroad for the section of
bike path on the west side of California Boulevard generally between Hathway Street and the Cal
Poly campus will provide a wider corridor for the bike path users and reduce construction costs; and
WHEREAS, accepting weed abatement and debris removal responsibilities from Union
Pacific Railroad will provide the City with local control to address these issues and mark the start of
a long term relationship with Union Pacific Railroad to complete the Railroad Safety Trail bike path
project; and
WHEREAS, the City Council finds that implementation of this project described below
will improve bicycle commuting in San Luis Obispo, consistent with the City's Major City Goals,
the General Plan Circulation Element and the Bicycle Transportation Plan.
NOW THEREFORE,BE IT RESOLVED by the Council of the City of San Luis Obispo
that it: 1) approves a lease agreement between with Union Pacific Railroad and the City of San
Luis Obispo for the development of a Class I bike path along a section of the railroad corridor on
the west side of California Boulevard generally between Hathway Street and the Cal Poly
campus; and 2) acknowledges that by entering into said lease agreement the City accepts weed
abatement and debris removal responsibilities along the railroad corridor within the City limits;
and 3) authorizes the Mayor to sign such lease agreement on behalf of the City.
1 I
Resolution No. (2008 Series)
Page 2
On motion of seconded by
and on the following vote:
AYES:
NOES:
ABSENT:
the following resolution was adopted this day of 2008.
David F. Romero, Mayor
ATTEST:
Audrey Hooper, City Clerk
APPROVED AS TO FORM:
Jonathan P. Lowell,City Attorney
Page 1 of 1
Council, SloCity
From: Terry Mohan [catsdad@sbcgiobal.net] Sent: Mon 12/1/2008 8:19 AM
To: Council,SloCity; Council,SloCity
Cc:
Subject Consent Agenda Item 2
Attachments:
Mr. Mayor and Council Members,
As I will be unable to attend the 4 PM meeting I wish to comment in writing
concerning Consent agenda number 2. Also I hope these early start meeting will not
become as regular as they were a couple of years ago as they inhibit participation of
the general public.
In regards to Consent agenda item 2 concerning the lease agreement with Union
Pacific Railroad, I hope you will consider combining the funding for the Graffiti
Enforcement Officers position with the railroad maintenance position. As I
was informed by Lt. Polling the graffiti officer was a part time position to be paid some
$20,000 annually. He envisioned someone to collect and compile evidence to
prosecute graffiti taggers while also coordinating volunteer citizens to paint over the
graffiti. The former duty should be the job of the police.
I recommend using allotted funds from both the graffiti and maintenance positions
and hiring a full time city employee. Hopefully someone who lives in the city that will
take pride in keeping the railroad corridor clean and debris free, as well as
coordinating the volunteers to eliminate the graffiti in a matter of days not weeks.
Contractors might be less expensive in the short term but generally you get what you
pay for.
Whatever happened to the county prisoners that used to fix the fencing along the
Railroad Bicycle Trail? Those fences are a mess.
Terry Mohan
2416 Santa Clara
San Luis Obispo, CA 93401
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