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Home My WebLink AboutUNION PACIFIC RAILROAD COMPANY - 1999A-1999- 177 IiJ:;URANC~ N07 REQUIRED(WAIVED WORK MAY PROCEED CLERK OF COUNCIL DATE: j -1 I ~ 8 ~ ~~/~ ~1~ THIRTY (30) YEAR LEASE BETWEEN UNION PACIFIC RAILROAD COMPANY AND CITY OF SANTA ANA Santa Ana, California .~ THIRTY (301 YEAR LEASE SUBJECT INDEX PART1 ... .......................................................... ................. 1 A. PREMISES ................. ........................... ................. 1 B. EFFECTIVE DATE .................................... .. ................ 1 C. TERM ................... ..... ....................... ................. 1 D. USE .............. ................................... ................. 1 E. RENT ................................................. ... ............. 1 F. PROOF OF INSURANCE ................................. ................. 1 G. ADDRESSES FOR NOTICES .............................. ................. 2 H. ADDRESS FOR PAYMENTS TO LESSOR ................... ................. 2 PART II ............................................................. ................. 3 1. PREMISES AND TERM ................................... ................. 3 2. USE ............................................. .... ............. ... 3 3. CONDITION OF PREMISES ............................... ................. 5 4. SUBTERRANEAN FACILITIES ............................. ................. 5 5. ADDITIONAL RENT ...................................... ................. 5 6. TAXES AND ASSESSMENTS .............................. ................. 5 7. RELEASE AND INDEMNIFICATION ......................... ................. 6 8. INSURANCE ........................................... ................. 7 9. NOISE LEVELS NEAR RAILROAD TRACKS .................. ................. 7 10. RESERVATIONS ........................................ ................. 7 11. MINERAL RIGHTS ....................................... ................. 8 12. DISPOSSESSION .....................................:. ................. 8 13. PRIOR APPROVAL OF WORK ............................. ................. 8 14. LIENS ................................................. ................. 9 15. CASUALTY INSURANCE ................................. ................ 10 16. MAINTENANCE AND REPAIR ............................. ................ 11 17. BARRICADES .......................................... ................ 11 18. UTILITIES AND SERVICES ............................... ................ 12 19. SURRENDER OF PREMISES .............................. ................ 12 20. LENDER'S AGREEMENT ................................. ................ 12 21. SALE OF LESSEE'S IMPROVEMENTS ...................... ................ 13 22. BANKRUPTCY .......................................... ................ 13 23. DEFENSE ............................................. ................ 13 24. NOTICES .............................................. ................ 13 25. ATTORNEYS'FEES ..................................... ................ 14 26. DEFAULT; REMEDIES ................................... ................ 14 27. LESSOR'S RIGHT TO PERFORM .......................... ................ 14 28. NON-WAIVER .......................................... ................ 15 29. ASSIGNMENT AND SUBLETTING .......................... ................ 15 30. LENDER REQUIREMENTS ................................ ............ ... 16 31 LESSOR'S LIABILITY ................................... ................ 16 32. EMINENT DOMAIN ...................................... ................ 16 33. HOLDOVER ............................................ ................ 17 34. LEGAL DESCRIPTION ................................... ................ 17 35. RECORDATION OF LEASE ............................... ................ 17 36. TESTING/SOILS CONDITIONS ............................ ................ 17 37. LESSOR'S RIGHT-OF-ENTRY ............................. ................ 17 38. TIME OF ESSENCE ..................................... ................ 18 39. TERMINATION O F LEASE ................................ ................ 18 40. SEVERABILITY ......................................... ................ 18 41. RELATIONSHIP OF PARTIES ............................. ................ 18 42. SUCCESSORS ........ ............................... ................. 43. EXHIBITS ...... ....... .............................. 18 ................. 44. LESSOR AND AGENT ............................. ..... .... ............ 18 45. JOINT AND SEVERAL LIABILITY .......................... ................. 19 46. AUTHORITY .......................................... ................. 19 47. INTEREST ................ ........................... ................. 19 48. BROKERAGE COMMISSIONS ............................ ................ 19 49. SUBMISSION OF LEASE ................................ ................. 79 50. CAPTIONS ......................................... .. ................. 19 51. ENTIRE AGREEMENT AND AMENDMENT .................. ................. 20 THIRTY (30) YEAR LEASE Folder: 1573-77 THIS LEASE ("Lease") is made and entered into this day of , 19 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (herein "Lessor"), and the City of Santa Ana, Califomia, (herein "Lessee"). A I B I LEASE TERMS PREMISES The term "Premises" shall refer to the land and any improvements and facilities located thereon (excluding Lessor improvements and facilities} at Santa Ana, California, as shown on the attached two prints dated July 1, 1999, attached hereto both as Exhibit "A" and both made a part hereof. This Lease shall take effect on August 1, 1999 ("Effective Date). TERM This Lease shall be for a term of thirty (30) years ("Lease Term") from Effective Date hereof. The Premises shall be used solely and exGusively for a bike trail and landscaping. The landscaping will be maintained by the Lessee and at a height not to exceed three (3) feet tall, nor, at any time, allowed to grow within ten (10) feet of any signal facility. RE T Commencing as of the Effective Date hereof, Lessee shall pay to Lessor aone-time payment of One Hundred And Twenty Thousand Dollars ($120,000), payable in advance. PROOF OF INSURANCE On or before the execution of this Lease, Lessee shall furnish to Lessor proof of insurance as required under Section 8 of the General Lease Terms, and the effective date of insurance coverage shall be no later than the Effective Date of this Lease. Document 0011 Page 1 of 20 To Lessor: UNION PACIFIC RAILROAD COMPANY Folder: 1573-77. Real Estate Department 1800 Farnam Street Omaha, NE 68102 To Lessee: City of Santa Ana 101 W. Fourth St., M21 Sanfa Ana, CA 92702 ADDRESS FOR PAYMENTS TO LESSOR Checks shall be made payable to Lessor and shall be mailed to: Union Pacific Railroad Company, 1800 Farnam Street, Omaha, Nebraska 68102. The foregoing Basic Lease Terms and the General Lease Terms set forth in attached Part II are incorporated into and made parts of this Lease. IN WITNESS WHEREOF, the parties hereto have executed, or have caused to be executed, this Lease in duplicate the day and year first above written. LESSOR: roe+ed , , ~'-~ CIS}' ~atl2at'f AppAOVED A O FORD2 -CRIS7INE LEE SHAW Deputy City Attorney UNION PACIFIC RAILROAD COMPANY By: Don H. Li e Director - eal Estate LESSEE: CITY aTAA By: 1 A. Pulido Title: Mayor ATTEST: Clerk of the Council /~ / (A~ ~r ~p~tJan C uy / Document 0011 Page 2 of 20 PART II GENERAL LEASE TERMS 1. PREMISES AND TERM Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises for the tenancy shown in the Basic Lease Terms, subject to the terms and conditions as set forth in this Lease. 2. USE 2.1 Rioht to Terminate. Lessee shall have the right to terminate this Lease upon sixty (60) days notice; however, no refund of unearned rental in whole or in part will be due Lessee. Lessor shall have the right to terminate this Lease for railroad purposes only upon sixty (60) days notice to Lessee; however, a prorated refund of unearned rental will be due the Lessee for the first ten years of this Lease only. No refund for cost of improvements will be due the Lessee at any time. 2.2 Permitted Use. Lessee shall not use the Premises or any portion thereof for any use other than that stated in the Basic Lease Terms, and shall not make any alterations, improvements or additions thereto except as provided in Section 13 below. 2.3 Affec on Insurance. Lessee and its agents shall not do or permit anything to be done in or about the Premises nor bring nor keep anything in or about the Premises which will in any way increase the existing rate or affect any insurance upon the Premises, or cause a cancellation of any insurance policy covering the Premises or any part thereof, nor shall Lessee or its agents keep, use or sell or permit to be kept, used or sold in or about the Premises any articles which may be prohibited by a standard form policy of fire insurance. In the event the rate of any insurance upon the Premises or any part thereof is increased because of the acts or omissions by Lessee or its agents, Lessee shall pay the full cost of such increase; provided, however, that this provision shall in no event be deemed to constitute a waiver of Lessor's right to declare a default hereunder by reason of Lessee's failure to comply with the provisions of this Section 2 or any other rights or remedies of Lessor in connection with Lessee's failure to comply with provisions of this Section 2. Lessee shall forward to Lessor within three (3) days of receipt copies of any notices Lessee receives from its insurer(s) advising of changes in rates and/or cancellation. 2.4 Hazardous Materials. Lessee shall not use, generate, manufacture, produce, store, release, discharge, or dispose of, on, under or about the Premises, or transport to or from the Premises, any Hazardous Materials (defined below) or allow its agents or any other person or entity to do so. The term "Hazardous Materials" shall mean (i) those substances included within the definition of "hazardous substances," "hazardous materials," "toxic substances," or "solid waste" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. section 9601 et sec ., the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. sections 6901 et sec ., and the Hazardous Materials Transportation Act, 49 U.S.C. sections 1801, et sec., and in the regulations promulgated pursuant to said laws; (ii) those substances listed in the United States Document 0011 Page 3 of 20 Department of Transportation Table (49 C.F.R. 172.101 and amendments thereto) or designated by the Environmental Protection Agency (or any successor agency) as Hazardous Substances; (iii) such other substances, materials and wastes which are or become regulated under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state or local laws or regulations, and (iv) any material, waste or substance which is (a) petroleum, (b) asbestos, (c) polychlorinated biphenyls, (d) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act of 1977, 33 U.S.C. sections 1251 et sec., (33 U.S.C. section 1321) or listed pursuant to section 307 of the Clean Water Act of 1977 (33 U.S.C. section 1317). 2.5 Third Parties. Lessee and its agents shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of any third parties or injure or annoy such parties or cause structural injury to the Premises. Lessee shall not use or allow the Premises to be used for any unlawful, immoral, hazardous or objectionable purpose, nor shall Lessee cause, maintain or permit any nuisance in, on or about the Premises. Lessee and its agents shall not commit or suffer to be committed any waste in or upon the Premises. 2.6 Compliance with Leaa1 Requirements. Lessee and its agents shall not use the Premises or permit anything to be done in or about the Premises which will in any way violate any law, statute, ordinance, order, rule, regulation or requirement of duly constituted public authorities orquasi-public authorities now in force or which may hereafter be enacted or promulgated (collectively, "Laws"). Lessee shall, at its sole cost and expense, promptly comply with (i) all Laws which relate to or affect the condition, use or occupancy of the Premises, whether or not the same are now contemplated by the parties; (ii) the provisions of all recorded documents affecting the Premises, insofar as the same relate to or affect the condition, use, or occupancy of the Premises; and (iii) the requirements of any board of fire underwriters or other similar body now or hereafter constituted relating to or affecting the condition, use or occupancy of the Premises. Lessee shall furnish satisfactory evidence of such compliance to Lessor upon request. Lessee's obligations pursuant to this Section 2.6 shall include, without limitation, altering, maintaining or restoring the Premises in compliance and conformity with all Laws relating to the condition, use or occupancy of the Premises during the Lease Term, and the filing of any map required under any subdivision map act and of any environmental impact report required by any governmental body having jurisdiction in the matter. (Notwithstanding the foregoing, before finalizing any environmental impact report, Lessee shall submit it to Lessor for its review and approval. No subdivision map shall be filed without review and approval by Lessor, which may, at its sole discretion, withhold approval if the requirements of filing the map are unacceptable to Lessor, impact other property owned by Lessor, or in the reasonable opinion of Lessor, have an adverse impact on the use or marketability of the Premises.) Lessee shall obtain, prior to taking possession of the Premises, any permits, licenses or other authorizations required for the lawful operation of its business at the Premises. The judgment of any court of competent jurisdiction or admission of Lessee in any action against Lessee, whether Lessor be a party thereto or not, that Lessee has violated any Law shall be conclusive of the fact as between Lessor and Lessee. 2.7 Imposition of Conditions. Should any governmental body seek to impose any condition on approval of Lessee's use of the Premises or the zoning thereof, or for the issuance of any map, license, or permit, Lessee covenants to notify Lessor accordingly; and if such condition Document 0011 Page 4 of 20 is unacceptable to Lessor for any reason, Lessor may terminate this Lease. 3. CONDITION OF PREMISES Lessee acknowledges that neither Lessor nor any agent of Lessor has made any representation or warranty with respect to the condition of the Premises or with respect to the suitability of the same for the conduct of Lessee's business, nor has Lessor or any agent of Lessor agreed to undertake any modifcation, alteration or improvement to the Premises. Lessee further acknowledges that Lessee has independently investigated the Premises and is satisfied that the Premises are suitable for Lessee's intended use and that the Premises meet all governmental and quasi-governmental requirements for such intended use. By taking possession of the Premises, Lessee shall be deemed to have accepted the Premises as being in good and sanitary order, condition and repair and to have accepted the Premises in their condition existing as of the date of such possession, subject to all applicable laws, covenants, conditions, restrictions, easements and other matters of public record and any rules and regulations from time to time promulgated by Lessor governing the use of the Premises. Lessee hereby warrants that Lessee is the lawful owner of all the right, title and interest in and to the improvements located upon the premises ("improvements" collectively includes, without limitation, all buildings, sheds, fences, paving, above or below ground tanks, and structures of any kind including, without limitation, any alterations or additions thereto). Lessee assumes all obligations tc maintain said improvements in good condition and to remove same, at the option of Lessor, upon termination of this Lease, in accordance with Section 19 hereof. 4. SUBTERRANEAN FACILITIES The absence of markers, monuments or maps indicating the presence of subterranean facilities within the Premises, whether belonging to Lessor or otherwise, does not constitute a warranty or representation by Lessor or its agents that none exist. Lessee accepts this Lease with full cognizance of the potential presence of such facilities within the Premises, acknowledging that the costs of Lessee's use of the Premises may increase by reason thereof, and acknowledging that the owner or owners thereof may have acquired the right to continue to maintain such facilities by the passage of time. 5. ADDITIONAL RENT All taxes, charges, costs and expenses which Lessee is required to pay under this Lease in addition to Base Rent, and all interest and charges that may accrue thereon in the event of Lessee's failure to pay the same and all damages, costs and expenses which Lessor may incur by reason of any default by Lessee hereunder, shall be deemed to be additional rent hereunder ("Additional Rent"). In the event of nonpayment by Lessee of any Additional Rent, Lessor shall have all the rights and remedies with respect thereto as Lessor has for the nonpayment of Base Rent. The term "Rentals" as used in this Lease shall mean the Base Rent and Additional Rent. All Rentals and other monies due under this Lease shall survive the termination of this Lease or the expiration of the Lease Term, as applicable ("Lease Termination"). Document 0011 Page 5 of 20 6. TAXES AND ASSESSMENTS For as long as this Lease is in effect, Lessee shall pay, commencing as of the Effective Date hereof, the following taxes and assessments: Land Taxes against the real property included in this Lease. s all be made to Lessor within thirty (30) da s ip y Le~ee of Lessor's written statement setting Public Improvements Lessee shall reimburse Lessor for all assessments for public improvements assessed against the real property included in this Lease. Such payments shall be made to Lessor within thirty (30) days following the receipt by Lessee of Lessor's written statement setting forth the amount due. Personalty Lessee shall pay, before they become delinquent, all taxes and assessments levied against the Premises, or which might become a lien thereon, because of any improvements to the real property included in this Lease including without limitation buildings, structures or other property, real or personal, including, without limitation, trade fixtures, furnishings and equipment, which are wholly owned by Lessee on the Premises or because of Lessee's activities. Lessor may, at its option, pay such taxes and assessments, and such payments shall be repaid by Lessee within thirty (30) days following the receipt by Lessee of Lessor's written statement setting forth the amount due. Whenever possible, Lessee shall cause said taxes and assessments to be assessed and billed separately from the real property included in this Lease. Rental Tax Lessee shall pay to Lessor any privilege, sales, gross income or other tax (not including federal or state income tax) imposed upon the payment received by Lessor under this Lease by any agency having the authority to do so. Such payments shall be made to Lessor within thirty (30) days following the receipt by Lessee of Lessor's written statements setting forth the amount due. 7. RELEASE AND INDEMNIFICATION 7.1 Waiver of Claims. Lessor and its agents shall not be liable to Lessee, and Lessee waives all claims against Lessor and its agents, for injury or death to any person, damage to any property, or loss of use of any property on the Premises or loss to Lessee's business by and from any and all causes. The provisions of this paragraph shall not apply to any damage or injury caused by the willful misconduct or sole and active negligence of Lessor or its agents. 7.2 Indemnification of Lessor. Lessee shall hold harmless, defend (with counsel satisfactory to Lessor) and indemnify Lessor and its agents from and against all claims, losses, Document 0011 Page 6 of 20 t liabilities, costs and expenses for loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party hereto) when arising aut of or resulting from, directly or indirectly: (a) the use of the Premises by Lessee and its agents; (b) any breach or default in the performance of any obligation on Lessee's part to be performed under the terms of this Lease; or (c) any occurrence in, upon or at the Premises or on account of the use, condition or occupancy of the Premises; regardless of whether such claims, tosses, liabilities, costs or expenses are caused or contributed to by the negligence, active or passive, of Lessor or arise during or after the Lease Term. The obligations of Lessee under this Section 7.2 shall survive the termination of this Lease with respect to any damage, injury or death occurring prior to Lease Termination. 7.3 L sor as a P~ Defendant. If, by reason of any act or omission by Lessee or Lessee's agents, Lessor or its agents are made a party defendant concerning this Lease or the Premises, Lessee shall indemnify Lessor and its agents against all liability incurred (or threatened against) Lessor and its agents as a party defendant, including all damages, costs and attorneys' fees. 8. INSURANCE While this Lease is in effect, Lessee, at Lessee's expense, shall maintain and furnish Lessor evidence of insurance set forth in Lessors "General Insurance Requirements" form attached hereto as Exhibit "B" and made a part hereof. 9. NOISE LEVELS NEAR RAILROAD TRACKS Lessee hereby recognizes and acknowledges that railroad tracks are located on or adjacent to the Premises (the "Tracks"). Lessee recognizes that the operation of trains over the Tracks is likely to produce noise leve Is which may be considered objectionable by Lessee and its agents. Lessee hereby waives any claim for damages for any injury or inconvenience to or interterence with Lessee's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by the noise produced by the operation oflrains over the Tracks. Lessee agrees to indemnify, defend and hold Lessor and its agents harmless from and against any loss, damage, liability, or expense incurred by Lessor or its agents as a result of any action or complaint of any kind whatsoever initiated against Lessor or its agents from Lessee's agents. 10. RESERVATIONS Lessor hereby excepts and reserves the right, to be exercised by Lessor and by any other who has obtained or may obtain permission or authority from Lessor so to do, to (a) operate, maintain, review and relocate any and all existing pipe, track (if any), power and communication (including without limitation fiber optic) lines and appurtenances Document 0011 Page 7 of 20 and other facilities of Tike character upon, over or under the surface of the Premises; and (b) construct, operate, maintain, review and relocate such additional facilities of the same character as shall not unreasonably interfere with Lessee's use of the Premises as specified in the Basic Lease Terms. Any such construction, operation, relocation or maintenance shall not be done at Lessee's expense unless such work is requested by Lessee or done for the beneft of Lessee. Lessee hereby waives any claim for damages for any injury or inconvenience to or interference with Lessee's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by the exercise of Lessor of any rights reserved by Lessor under this Section 10. 11. MINERAL RIGHTS Lessor reserves for itself and those to whom it grants such right, the title and exclusive right to all th e sand, gravel, minerals and mineral ores of every kind and character now known to exist or hereafter discovered upon, within or underlying the Premises, or that may be produced therefrom, including, without limiting the generality of the foregoing, all petroleum, oil, natural gas and other hydrocarbon substances and products derived therefrom together with the exclusive and perpetual right thereto, without, however, the right to use or penetrate the surface of, or to enter upon, the Premises to extricate or remove the same. 12. DISPOSSESSION Lessor enters this Lease without, and expressly disclaims, any representation or warranty that the Lease is consistent with the documents or rights under which it owns or claims the right to lease the Premises. Lessee accepts this Lease knowing that others may assert that Lessor has no right to lease the rights hereby given, and agrees to hold Lessor harmless from any detriments or liabilities arising therefrom, whether to Lessee or to any person, firm or corporation claiming thereunder, including any forfeitures declared or occurring as a result of this Lease. If Lessee is lawfully deprived of the possession of all or any part of the Premises by a party other than Lessor, Lessor may, upon receipt of notice from Lessee setting forth the circumstances, either install Lessee in possession of the Premises or terminate this Lease and refund to Lessee the pro rata amount of any prepaid Base Rent for the unexpired term of this Lease or any extensions thereto, after receipt of such notice. Lessor shall not be liable to Lessee for any loss, damage or claims resulting from such deprivation of possession. 13. PRIOR APPROVAL OF WORK As set forth in Section 3 heretofore, Lessee owns all existing improvements upon the Premises. Lessee shall not, without Lessor's prior written consent, make any further alterations, further improvements, or additions of any kind in, on or about the Premises costing in excess of $ $1000.00 without the prior written consent of Lessor. Unless Lessor gives Lessee specific written consent (executed by an officer of Lessor), Lessee shall remove any or all of said improvements upon termination of this Lease, and restore the Premises. Lessor may require Lessee to provide Lessor, at Lessee's sole cost and expense, a lien and completion bond, in a form and with a company satisfactory to Lessor, in an amount equal to one and one-half (1-1/2) times the estimated cost of such improvements, to insure Lessor against any liability for mechanics' and materialmen's liens an d Document 0011 Page 8 of 20 to insure completion of the work. Should Lessee make any alterations, improvements or additions without the prior approval of Lessor, Lessor may require that Lessee remove any or all of the same. Lessee shall give Lessor not less than ten (10) business days notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of nonresponsibility in or on the Premises as provided by law. Any alterations, improvements or additions in, on or about the Premises that Lessee shall desire to make shalt be presented to Lessor in written form, with proposed detailed plans and such other information as Lessor may request. If Lessor shall give its consent, the consent shall be deemed conditioned upon Lessee's acquiring a permit to do so from the appropriate governmental agencies, the furnishing of a copy thereof to Lessor prior to the commencement of the work, and compliance by Lessee with all conditions of sai d permit in a prompt and expeditious manner. Any construction, reconstruction or altering of structures consented to by Lessor shall, at Lessee's expense, be installed, constructed and maintained in accordance with applicable building and other codes, in a good and workmanlike manner to the satisfaction of Lessor, and in accordance with all requirements of all departments, boards, bureaus, officials and authorities havirig jurisdiction in the matter. All necessary permits for such construction (including any permits required to cross public streets) shall be obtained by Lessee at Lessee's sole expense. For all subterranean improvements installed, constructed, purchased or acquired by Lessee on the Premises, Lessee shall install and maintain monuments and markers at such locations and intervals, and in form and size satisfactory to Lessor, warning of Lessee's improvements (and any unmonumented or unmarked facilities of others discovered by Lessee during construction) at Lessee's sole cost and expense. Monuments and markers indicating Lessee's improvements shall be promptly relocated or removed upon written request of Lessor at no expense to Lessor. If Lessee shall fail to relocate or remove any such monument within two (2) weeks of such written request, Lessor shall have the right to remove or relocate the same at Lessee's sole cost and expense which Lessee agrees to pay on demand. Lessee agrees that all work upon or in connection with improvements shall be done at such times and in such manner as not to interfere in any way whatsoever with Lessor's operations or the facilities or operations of any other party holding a prior right or rights to the Premises. 14. LIENS 14.1 Premises Lien-Free. Lessee shall pay for all labor and services performed for, and all materials used by or furnished to, Lessee or its agents with respect to the Premises. Lessee shall indemnify and hold Lessor harmless from and keep the Premises free from any liens, claims, demands, encumbrances or judgments, including all costs, liabilities and attorneys' fees with respect thereto, created or suffered by reason of any labor or services performed for, or materials used by or furnished to, Lessee or its agents with respect to the Premises. The foregoing obligation of Lessee shall survive the termination of this Lease. Lessor shall have the right, at all times, to post and keep posted on the Premises any notices permitted or required by law, or which Lessor may deem proper, for the protection of Lessor and the Premises, and any other party having an interest therein, from mechanics' and materialmen's liens, including, without limitation, a notice of nonresponsibility. In the event Lessee is required to post an improvement bond with a public agency in connection with any work pertormed by Lessee on or to the Premises, Lessee shall include Lessor as an additional obligee. 14.2 Notice of Lien; Bond. Should any liens be filed against, or any action be Document 0011 Page 9 of 20 commenced affecting, the Premises or Lessee's interest in the Premises, Lessee shall give Lessor notice of such lien or action within three (3) days after Lessee receives notice of the filing of the lien or the commencement of the action. In the event that Lessee shall not, within twenty (20) days following the imposition of such lien, cause such lien to be released of record by payment or posting of a proper bond, Lessor shall have, in addition to all of the remedies provided herein and by law, the right, but not the obligation, to cause the same to be released by such means as Lessor shall deem proper, including payment of the claim giving rise to such lien or posting of a proper bond. All such sums paid by Lessor and all expenses incurred by Lessor in connection therewith, including attorneys' fees and costs, shall be payable to Lessor by Lessee as Additional Rent on demand. 15. CASUALTY INSURANCE For as long as this Lease is in effect, all alterations, improvements and additions made in, on or about the Premises by Lessee or owned by Lessee upon the Premises, whether new or existing, shall be insured by Lessee, at its sole cost and expense, against loss or damage by fire or other casualty, with extended coverage endorsements, in the joint names of Lessor and Lessee, and any lender ("Lender') who executes Lessor's Lender's Agreement as provided in Section 20 of this Lease. The amount of insurance shall be equal to the full insurable value of the improvements insured, and the insurance company selected by Lessee shall be subject to Lessor's and Lender's prior approval. Lessee shall pay all insurance premiums and related charges and, within ten (10) days after the end of each year that this Lease is in effect, shall furnish Lessor and Lender an updated certificate from the insurance carrier stating the current status of such insurance policy. In the event any material portion of Lessee's improvements on the Premises is damaged or destroyed by fire or other casualty as to render it unft for occupation or use, and as often as the same shall occur, if the damaged improvement can, in Lessor's sole opinion, be restored within ninety (90) days after the occurrence of such fire or other casualty, Lessee shall repair or restore the damaged improvement with reasonable diligence and in accordance with original plans thereof or with such modified plans as shall have been previously approved by Lessor in writing. All funds received in connection with said insurance, together with funds supplied by Lessee from other sources to make up for any defciency in said insurance proceeds, shall be deposited in a national bank or trust company (most conveniently situated) in the names of both Lessor and Lender. All funds so deposited shall be used to repair or restore any damage to the improvement insured, and shall be disbursed to Lessee by Lessor and Lender as the work progresses upon presentation of proper architect's or engineer's statement of expenses in connection with such repair or restoration work. If the insurance proceeds received for such damage shall not exceed the sum of Ten Thousand Dollars ($10,000), the requirement for impounding the insurance proceeds may be waived but Lessee shall nevertheless repair or restore the damaged improvement in the manner as herein provided. If Lessee refuses or fails to repair or restore the damaged improvement, Lessee shall be deemed to be in default hereunder. Should Lender fail or refuse to undertake such work on behalf of Lessee upon notification of such default, then Lessor may terminate this Lease forthwith. Upon termination, all unexpended insurance proceeds so collected and deposited shall, after payment to Lender of sums owed under any existing financing agreement, be applied by Lessor to the removal from the Premises of Lessee's damaged improvement and to the restoration of the Premises; the balance, if any, shall be applied to any damages suffered by Lessor as a result of such default and termination. The rights of Lender under any such insurance policy, or policies as the case may be, shall be subject to and limited by the foregoing provisions. If, however, any material portion of Lessee's improvements on the Premises is so damaged by fire Document 0011 Page 10 of 20 or other casualty as to render it unfit for occupation or use and cannot, in Lessor's sole opinion, be restored within said ninety~ay period, then Lessee shall have the option, to be exercised within thirty (30) days after occurrence thereof, to either repair or restore the damaged improvement (in which event the terms of the foregoing paragraph shall apply with respect to the application of insurance proceeds), or terminate this Lease effective as of the date of the casualty. The option to terminate, however, shall be subject to all applicable provisions of Section 19 hereof and shall be conditioned upon (a) Lessee's removing from the Premises the damaged improvement, including all appurtenant structures thereto, and all debris resulting from such f re or other casualty, (b) Lessee's paying to Lessor in advance any Rental accruing hereunder to the date of termination, and (c) Lessee's paying to Lessor all unpaid taxes and assessments that may have become a lien against the Premises at the time of such damage or destruction. In the event of such termination, Lessor shall assign to Lessee its interest in all insurance policies covering the improvements and all proceeds therefrom but only after Lessee shall have fully complied with the conditions of termination as stipulated in this paragraph and in Section 19 hereof. Lessor and Lessee hereby waive the provisions of any statutes which relate to termination of leases when leased property is destroyed and agree that such event shall be governed by the terms of this Lease. 76. MAINTENANCE AND REPAIR Lessee, at Lessee's expense and to Lessors satisfaction, shall keep and maintain the Premises and all improvements thereon in good repair and in a neat and satisfactory condition, and shall promptly make all repairs and replacements, at Lessee's sole cost and expense, that may become necessary to the Premises or improvements thereon, whether structural or nonstructural, ordinary or extraordi- nary, subject to Section 15 above. Lessee expressly waives the benefits of any statute now or hereafter in effect which would otherwise afford Lessee the right to make repairs at Lessors expense (or deduct the cost of such repairs from Rentals due herein) or to terminate this Lease because of Lessor's failure to keep the Premises in good and sanitary order. All notices and signs upon the Premises shall be neat and properly maintained. Lessor shall have the right to enter the Premises at all reasonable times to inspect the same. 17. BARRICADES In addition to any barricades, fences or gates which may be specified elsewhere in this Lease, Lessee, is requested by Lessor to install and maintain an eight foot high cyclone type fence satisfactory to Lessor between the Premises and the tracks while this Lease is in effect, all at Lessee's expense and to Lessor's satisfaction. Document 0011 Page 11 of 20 18. UTILITIES AND SERVICES 18.1 Services. Lessee shall pay during the Lease Term and prior to delinquency all charges for water, gas, light, heat, power, electricity, telephone or other communication service, janitorial service, trash pick-up, sewer and all other services supplied to or consumed on the Premises (collectively, "Services") and all taxes, levies, fees or surcharges therefor. Lessee shall be solely responsible for arranging for Services to be supplied to the Premises and shall contract for all of the Services in Lessee's name prior to the Effective Date. The Effective Date shall not be delayed by reason of any failure by Lessee to so contract for Services. The lack or shortage of Services due to any cause whatsoever shall not affect any obligation of Lessee under this Lease, and Lessee shall faithfully keep and observe all the terms, conditions and covenants of this Lease and pay all Rentals due hereunder, all without diminution, credit or deduction. 18.2 till Company Contract. If Lessor contracts with a utility company to provide access for service to Lessee at the Premises for Lessee's sole use, Lessee shall pay to Lessor all costs and expenses incurred by Lessor in connection with such contract (including, without limitation, administrative costs). 19. SURRENDER OF PREMISES Upon termination of this Lease, Lessee, without further notice, shall delive r up to Lessor possession of the Premises. Lessee shall, to the satisfaction of Lessor, restore the Premises, including the soil and ground water located beneath the Premises, subject to Section 13 above. Furthermore, Lessee, shall remove any improvements (as defined in Section 3 hereof) unless Lessee obtains Lessor's written authorization to leave said improvements upon the Premises (said authorization must be executed by an officer of Lessor). In the event of such failure or refusal of Lessee to surrender possession of the Premises, Lessor shall have the right to reenter the Premises and remove therefrom Lessee or any other person, firm, or corporation claiming by, through, or under Lessee. Upon the failure or refusal of Lessee to remove the improvements and all personal property from the Premises and restore the Premises, at the option of Lessor, said improvements and personal property shall become the sole property of Lessor and Lessor may retain any portion of the security deposit to apply to restoration/releasing of the Premises or Lessor may remove the improvements and any personal property at Lessee's expense and Lessee shall reimburse Lessor upon demand for expenses of removal/restoration which exceed the security deposit. Lessee hereby acknowledges that Lessee's covenant to remove improvements/personal property upon termination or expiration of the Lease is integral to Lessors agreement to enter into this Lease. 20. LENDER'S AGREEMENT Any assignment of Lessee's leasehold interest hereunder to a Lender as security for a loan shall be subject to Lessors prior approval. If Lessor approves the assignment, Lessor, Lessee, and Lender shall enter into Lessor's standard Lender's Agreement. In the event of such assignment, Lessee shall pay to Lessor, as consideration therefor, all costs and expenses incurred by Lessor in connection with such assignment. Document 0011 Page 12 of 20 21. SALE OF LESSEE'S IMPROVEMENTS All improvements on the Premises are owned by Lessee. Notwithstanding this, Lessee shall not se II or hypothecate any of its fixed improvements upon the Premises without first obtaining Lessor's written consent therefor, which consent shall not be unreasonably withheld. If there is a sale of improvements with or without obtaining Lessor's consent, the improvements must be immediately removed from the Premises unless Lessor has consented in writing to an assignment or sublease thereof. If the sale of any improvements is in connection with a proposed assignment or sublease thereof, the provisions of Section 29 hereof are applicable. 22. BANKRUPTCY Lessor shall also have the right to terminate this Lease by written notice and to take exclusive possession of the Premises in the event of (a) a general assignment by Lessee for the benefit of creditors, (b) the filing of any voluntary petition in bankruptcy by Lessee, or the filing of an involuntary petition by Lessee's creditors, which involuntary petition remains undischarged for a period of thirty (30) days. In the event that under applicable law the trustee in bankruptcy or Lessee has the right to affirm this Lease and continue to perform the obligation of Lessee hereunder, such trustee or Lessee shall, in such time period as may be permitted by the bankruptcy court having jurisdiction, cure all defaults of Lessee hereunder outstanding as of the date of the affirmance of this Lease and provide to Lessor such adequate assurances as may be necessary to insure Lessor of the continued performance of Lessee's obligations under this Lease, (c) the employment of a receiver to take possession of substantially all of Lessee's assets or the Premises, if such attachment or other seizure remains undismissed or undischarged for a period of ten (10) days after the levy thereof, and (d) the attachment, execution or otherjudicial seizure of all or substantially all of Lessee's assets at the Premises, if such attachment or other seizure remains undismissed or undischarged for a period of ten (10) days after the levy thereof. 23. DEFENSE Upon written notice from Lessor, Lessee agrees to assume the defense, with counsel acceptable to Lessor, of any lawsuit, administrative action or other proceeding brought against Lessor or its agents by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Lease for which Lessee has an obligation to assume liability for and/or indemnify, save and hold harmless Lessor or its agents. Lessee shall pay all the costs and expenses incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this provision, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by any statute or ordinance, state or federal. 24. NOTICES All notices shall be in writing and shall be deemed to have been given when delivered personally or deposited in the United States mail, registered or certified, postage prepaid, or delivered by overnight courier, and addressed to the party to whom the notice is directed at the address set forth in the Basic Lease Terms. Payments to Lessor shall be made at the address for payments set forth in the Basic Lease Terms. Either party may change the address for notices or Lessor may change the address for payments by giving the other party written notice to that effect. All notices to Lessor must Document 0011 Page 13 of 20 be sent to the attention of its Real Estate Department as provided in Section I of the Basic Lease Terms Notices directed to other departments of Lessor shall be deemed of no force or effect. If there be more than one Lessee, the notice to any one of them shall constitute notice to all and notice from any one of them shall constitute notice from all. If Lessee be a corporation, joint stock company or association, or unincorporated association (including a general or limited partnership), then service, as aforesaid, upon any employee thereof (which term shall include a partner if Lessee is a partnership) shall constitute service upon such entity. In this regard, Lessee specifically waives any rights as to methods of service a set out in Sections 1161 and 1162 of the California Code of Civil Procedure. Lessee hereby waives all other methods of notice prescribed by the laws and statutes of the State of California. 25. ATTORNEYS' FEES In the event any party hereto shall bring any action or legal proceeding for damages for an alleged breach of any provision of this Lease, to enforce an indemnity obligation, to terminate the tenancy of the Premises, or to enforce, protect, interpret or establish any term, condition, or covenant of this Lease or right or remedy of either party, the prevailing party shall be entitled to recover, as part of such action or proceeding, reasonable attorneys' fees and court costs, including attorneys' and costs for appeal, as may be fixed by the court or jury. 26 DEFAULT: REMEDIES In the event Lessee shall not promptly correct any default by Lessee hereunder within thirty (30) days (10 days for monetary defaults) after receipt of written notice of such default from Lessor, or if Lessee abandons or vacates the Premises, Lessor shall have the right at any time thereafter, with or without notice or demand and without limiting Lessor in the exeroise of any right or remedy which Lessor may have by reason of such default: (a) terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default, including without limitation, the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation a nd alteration of the Premises, reasonable attorneys' fees, and any real estate commission actually paid; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided; that portion of the leasing commission paid by Lessor; (b) maintain Lessee's right to possession in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease; and (c) pursue any other remedy now or hereafter available to Lessor under the laws orjudicial decisions of the state wherein the Premises are located. Waiver of any default shall not be construed as a waiver of a subsequent or continuing default. Termination of this Lease shall not affect any liability by reason of any act, omission or default occurring prior to such termination. 27. LESSOR'S RIGHT TO PERFORM Except as otherwise expressly provided herein, if Lessee shall at any time fail to perform any act required to be made or performed by Lessee under this Lease, Lessor may upon ten (10) days' written notice to Lessee, but shall not be obligated to, without waiving or releasing Lessee from any obligation under this Lease, make such payment or perform such other act to the extent that Lessor Document 0011 Page 14 of 20 may deem desirable and, in connection therewith, pay expenses and employ counsel. All sums so paid by Lessor and all penalties, interest and costs arising in connection therewith shall be due and payable by Lessee to Lessor as Additional Rent upon demand. 28. NON-WAIVER Lessor's failure to enforce or exercise its rights with respect to any provision hereof shall not be construed as a waiver of such rights or provision. Acceptance by Lessor of Rentals or any other sum shall not be a waiver of any preceding breach by Lessee of any provision hereof, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such Rentals or any other sum from Lessee. 29. ASSIGNMENT AND SUBLETTING 29.7 Prohibition A ain t Transfers. Except as provided in Seption 29.2 below, neither Lessee nor Lessee's legal representatives, successors or assigns shall assign this Lease or sublet or permit the Premises or any part thereof to be occupied by others. Any assignment, sublease or occupancy (whether voluntary or by operation of law) shall be voidable at the option of Lessor, and Lessor may, at its option, terminate this Lease. It shall be deemed an assignment under this Lease and shall be subject to all the provisions of this Section 29 if Lessee consists of more than one party and there is a purported assignment from one such party to any other or others of such parties constituting Lessee, or if there is any transfer of control of Lessee, whether by Vansfer of shares of stock, partnership interests or otherwise. 29.2 Permitted Assignments. Subleases. Lessee may assign its interest in this Lease or sublet the Premises, but only upon the following express conditions: (a) The proposed assignment or sublease shall be subject to the prior written consent of Lessor, which consent will not be unreasonably withheld; provided that, without limiting the generality of the foregoing, it shall not be unreasonable for Lessor to deny such consent if: (i) the use to be made of the Premises by the proposed assignee or sublessee would be prohibited by Section 2 or any other portion of this Lease (including but not limited to any rules and regulations then in effect) or would create greater demands upon the facilities, systems and services of the Premises; or (ii) the business reputation and financial responsibility of the proposed assignee or sublessee are not reasonably satisfactory to Lessor. (b) Lessee shall pay to Lessor Lessors then standard processing fee, any taxes or other charges imposed upon Lessor or the Premises as a result of such assignment or sublease, and shall reimburse Lessor for all costs, including the reasonable fees of attorneys, architects or other consultants incurred by Lessor in connection with such assignment or sublease, whether or not such proposed assignment or sublease is consented to by Lessor; (c) The proposed assignee or sublessee shall agree in writing to perform faithfully and be bound by all of the terms, covenants, conditions, provisions and agreements Document 0011 Page 15 of 20 of this Lease; (d) An executed triplicate original of the assignment or sublease agreement, on Lessor's then standard form, shall be delivered to Lessor and the assignment or sublease shalt not be binding upon Lessor until the delivery thereof to Lessor and the execution and delivery of Lessor's consent thereto; (e) The consent by Lessor to an assignment or sublease shall not in any way be construed to relieve Lessee or any assignee or sublessee from obtaining the express consent in writing of Lessor to any further assignment or sublease or to release Lessee from any liability under this Lease, whether past, present or future, or to release Lessee from any liability under this Lease because of Lessor's failure to give notice of default under or in respect of any of the terms, covenants, conditions, provisions or agreements of this Lease; and 30. LENDER REQUIREMENTS This Lease, at Lessor's option, shall be subject and subordinate to the lien of any mortgages or deeds of trust in any amount(s) whatsoever now or hereafter placed on or against or affecting the Premises without the necessity of the execution and delivery of any further instruments on the part of Lessee to effectuate such subordination. If any mortgagee or beneficiary shall elect to have this Lease prior to the lien of its mortgage or deed of trust, and shall give written notice thereof to Lessee, this Lease shall be deemed prior to such mortgage or deed of trust, whether this Lease is dated prior or subsequent to the date of such mortgage or deed of trust or the date of the recording thereof. lessee shall execute and deliver, without charge therefor, such further instruments evidencing subordination of this Lease to the lien of any mortgages or deeds of trust affecting the Premises as may be required by Lessorwithin ten (10) days following Lessors request therefor. Failure of Lessee to execute such instruments evidencing subordination of this Lease shall constitute a default by Lessee hereunder. In the event of foreclosure or the exercise of the power of sale under any mortgage or deed of trust made by Lessor and covering the Premises, Lessee shall attom to the purchaser upon any such foreclosure or sale and recognize such purchaser as Lessor under this Lease, provided such purchaser expressly agrees in writing to be bound by the terms of this Lease. 31. LESSOR'S LIABILITY Notwithstanding any other term or provision of this Lease to the contrary, the liability of Lessor for its obligations under this Lease shall be limited solely to Lessor's interest in the Premises as the same may from time to time be encumbered, and no personal liability shall at any time be asserted or enforceable against Lessor or any other assets of Lessor or against Lessor's agents on account of any of Lessor's obligations or actions under this Lease. 32. EMINENT DOMAIN In the event of the taking or condemnation of all or any part of the Premises (including conveyance by deed in lieu of, or in settlement of, condemnation proceedings), Lessee shall receive compensation only for the taking and damaging of Lessee's improvements; the remaining award balance and interest thereon, as well as the award for the land value and interest thereon, shall belong to Lessor. Under no circumstances shall Lessee be entitled to any "bonus value" for the remaining unexpired Lease Term. Document 0011 Page 16 of 20 33. HOLDOVER In case Lessee holds over the Lease Term with the consent of Lessor, such holding over shall be deemed a tenancy only from month to month but shall be subject to all applicable terms hereof, or as may then be modified in writing by the parties hereto, including Lessor's right to establish Fair Market Value Rent at any time during such holdover period. 34, LEGAL DESCRIPTION This Lease shall be supplemented to include a legal description of the Premises if required by either party in writing. If requested by Lessee, then Lessee shall pay to Lessor the lessor's current document preparation fee. Any expense incurred by Lessor for surveying the Premises shall be paid to Lessor by Lessee promptly upon receipt of bill therefor. 35. RECORDATION OF LEASE Neither party hereto shall record this Lease without the prior written consent of the other; however, upon request of either party, the other party shall join in the execution of a memorandum or short form of lease for recording purposes. The memorandum or short form of lease shall incorporate this Lease by reference and shall describe the parties hereto, the Premises, and the Lease Term. Should Lessee request Lessor to prepare said memorandum or short form of lease for recording purposes, Lessee shall pay to Lessor the Lessor's current document preparation fee. 36. TESTINGISOILS CONDITIONS If Lessee at any time during this Lease or any extension thereof should determine to conduct any soi l or groundwater testing of the Premises either in connection with any proposed improvements by Lessee or in connection with an environmental audit, Lessee shall first obtain from Lessor a permit which shall include confidentiality provisions and shall be executed by Lessee and its consultants before commencement of any testing. Failure to obtain such a permit shall constitute a default under this Lease. 37. LESSOR'S RIGHT-OF-ENTRY Lessee shall permit Lessor and the agents of Lessor to enter into and upon the Premises at all reasonable times for the purpose of inspecting the Premises, posting notices of nonresponsibility, protecting the Premises in the event of an emergency, altering or improving the Premises, conducting environmental audits, and exercising any rights reserved by Lessor pursuant to this Lease. Lessee hereby waives any claim for damages for any injury or inconvenience to or interference with Lessee's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by any entry into the Premises in accordance with this Section 37 or any other provision of this Lease. For each of the aforesaid purposes, Lessor shall, at all times, have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Lessee's vaults and safes, and Lessor shall have the right to use any and all means which Lessor may deem proper to open said doors in an emergency, in order to obtain entry to the Premises. Any entry to the Premises by Lessor as permitted by this Lease shall not under any circumstances be construed or Document 0011 Page 17 of 20 deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Lessee from the Premises or any portion thereof. 38. TIME OF ESSENCE Time is of the essence of each provision of this Lease. 39. TERMINATION OF LEASE Termination or expiration of this Lease shall not release any party hereto from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to such termination or expiration, or thereafter in case by the terms of this Lease it is provided that anything shall or may have to be done after termination or expiration hereof. 40. SEVERABILITY If any term, covenant, condition or provision of this Lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 41. RELATIONSHIP OF PARTIES Nothing contained in this Lease shall be deemed or construed by the parties or by any third person or court to create the relationship of principal and agent or of partnership or of joint venture or of any association between Lessor and Lessee, and neither any other provisions contained in this Lease nor any acts of the parties shall be deemed to create any relationship between Lessor and Lessee, other than the relationship of owner of real property and holder of a limited lease to use the same for the purposes set forth herein. 42. SUCCESSORS Subject to the provisions of Section 29, the covenants, conditions and agreements contained in this Lease shall be binding on the parties hereto and on their respective heirs, successors, assigns and legal representatives. 43. EXHIBITS All exhibits attached to this Lease shall be deemed to be incorporated herein by the individual reference to each such exhibit, and all such exhibits shall be deemed to be a part of this Lease as though set forth in full in the body of this Lease. 44. LESSOR AND AGENT The term "Lessor' as used in this Lease, so far as the covenants or obligations on the part of Lessor are concerned, shall be limited to mean and include only the owner at the time in question of fee title or right to control the Premises. In the event of any transfer(s) of such interest, the Lessor herein named (and in the case of any subsequent transfers or conveyances, the grantor) shall have no further liability under this Lease to Lessee except as to matters of liability which have accrued and are unsatisfed as of the date of such transfer, it being intended that the covenants and obligations contained in this Lease on the part of Lessor shall be binding on Lessor and its successors and Document 0011 Page 18 of 20 assigns only during and in respect of their respective period of ownership of the fee; provided that any funds in possession of Lessor or the then grantor and as to which Lessee has an interest, less any deductions permitted by law or this Lease, shall be turned over to the grantee. The covenants and obligations of Lessor as contained in this Lease shall, subject to the provisions of this Section 44 , be binding upon each Lessor and such Lessor's heirs, personal representatives, successors and assigns only during its respective period of ownership. Except as provided in this Section 44, this Lease shall not be affected by any transfer of Lessor's interest in the Premises, and Lessee shall attorn to any transferee of Lessor. 45. JOINT AND SEVERAL LIABILITY If Lessee is more than one person or entity, each such person or entity shall be jointly and severally liable for the obligations of Lessee hereunder. If Lessee is a husband and wife, the obligations hereunder shall extend tc their sole and separate property as well as their community property. 46. AUTHORITY The undersigned parties hereby warrant that they have proper authority and are empowered to execute this Lease on behalf of Lessor and Lessee, respectively. 47. INTEREST Any payment due from Lessee to Lessor under this Lease shall bear interest from the date due until paid, at an annual rate of ten percent (10%). In addition, Lessee shall pay all costs and attorneys' fees incurred by Lessor in the collection of such amounts. 48. BROKERAGE COMMISSIONS Lessee warrants and represents to Lessor that in the negotiating or making of this Lease neither Lessee nor anyone acting on its behalf has dealt with any real estate broker or finder who might be entitled to a fee or commission. With respect to all claims for brokerage fees or commissions arising in connection with this Lease, Lessee hereby agrees to indemnify, save harmless and defend Lessor from and against any such claims if they shall be based upon any statement, representation or agreement by Lessee or its agents (other than claims made by Broker for fees Lessor has agreed to pay). 49. SUBMISSION OF LEASE Submission of this instrument for Lessee's examination or execution does not constitute a reservation of space nor an option to lease. This instrument shall not be effective until executed by both Lessor and Lessee. Execution of this Lease by Lessee shall constitute an offer by Lessee to lease the Premises, which offer shall be deemed accepted by Lessor when and only when this Lease is executed by Lessor and delivered to Lessee. 50. CAPTIONS The captions contained in this Lease are for purposes of convenience only and are not to be used to interpret or construe this Lease. Document 0011 Page 19 of 20 51. ENTIRE AGREEMENT AND AMENDMENT This Lease sets forth the entire agreement between the parties with respect to the leasing of the Premises and supersedes all prior agreements, communications, and representations, oral or written, express or implied, since the parties intend that this be an integrated agreement. No addition to, or modification of, any term or provision of this Lease shall be effective until and unless such addition or modification is set forth in a written instrument signed by both Lessor and Lessee. This Lease, and all matters relating to this Lease, shall be governed by and construed in accordance with the laws of the state of California. Document 0011 Page 20 of 20 ~..- REQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: OCTOBER 4, 1999 TITLE: LEASE AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR THE CONSTRUCTION OF THE ALTON MAPLE BIRETRAIL GAP CLOSURE PROJECT ~~ %] APPROVED As Recommended As Amended ^ Ordinance on 1~ Reading ^ Ordinance on 2ntl Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO .. Qdsscadon tst CLERK OF COUNCIL USE ONLY: c ! . ~' 7/ !4~ f'!t ~ --.. - RECOMMENDED ACTION FILE NUMBER A-1999- 177 Direct the City Attorney to prepare and authorize the Mayor and Clerk of the Council to execute a 30-year lease agreement with the Union Pacific Railroad Company for the Alton/Maple Biketrail Gap Closure project for an amount not to exceed $120,000. On July 17, 1995, the City Council adopted a resolution authorizing the Executive Director of the Public Works Agency to submit a grant application for Bicycle and Pedestrian Facilities funding. On August 14, 1995, the Orange County Transportation Authority (OCTA) approved an award of $480,174 for the City's Alton/Maple Biketrail project. On July 9, 1996, the OCTA Board approved an additional $100,000 for the Alton/Maple Biketrail under the Transportation Demand Management Competitive Program. The project is recommended in the Orange County Commuter Bikeways Strategic Plan and is included in the City of Santa Ana's Bikeway Master Plan. As planned, the project will link two existing biketrails, Alton and Maple, within the Southern Pacific Railroad right-of-way (Exhibit 1). Both biketrails are uti.Lized by cyclists for work, school, and recreational trips. There are approximately 17 schools, 5 parks, and a number of large employers, residential neighborhoods, and commercial areas adjacent to the trail. Page 33 25. E. .., Lease Agreement With Union Pacific Railroad Company October 4, 1999 Page 2 CEQ~+ Compliance .. After completion of Environmental Review No. 95-60, a Negative Declaration was filed for this project pursuant to the California Environmental Quality Act (Exhibit B). FISCAL IMPACT The one-time cost for this lease agreement is $120,000. Funds are available in the Alton/Maple Gap Closure Project (account nos. 403-553- 6631, project no.8670). APPROVED AS TO FUNDS AND ACCOUNTS: J esl.G. Ross E ecutive Director ublic Works Agency Executi~~ Director Finance & Mgmt. Services Agency 10-99 RFCA Alton Maple Lease Agree (sg nhs) 25.E. Page 34 ... LEGEND Existing Class 1 Bikeway •••••• Proposed Class 1 Bikeway i 5"AN~1 City Council T I t 8: ALTON /MAPLE BIKEWAY `~J~ Agenda Date GAP CLOSURE PROJECT "°` °"m" October 3 1999 , EX[iIBIT A ..~ MAYOR Miguel A. Pulido MAYOR PRO 7EM RulxsJ L. RicharrJson IX)UNCILMEMOERS Tuny Espinuza Thomas E. Lutz Patricia A. McGWgan Lisa Mills "fed R Mureno CITY OF SANTA ANA PLANNING & aU1LDING AGENCY 206 W. Fourth Street (M-201 • P.O. Sax 7 988 Santa Ana, California 91702 Fax (714) 973-1467 NEC3ATI4E DECLARATION ..r ALL-AMERICAN CITY 1982-83 CITY MANAGER David N. Ream CITY ATTORNEY Edward ]. Cooper CLERK OF THE COUNCIL tonics C. Guy Pursuant to the Procedures of the City of Santa Ana for implementation of the California Environmental Quality Act, the Environmental Evaluator has completed an Initial Study for the project described below: Project Numbers ER 95-60 Applicants City of Santa Ana Public Works Agency Project Location/Addreaet The new bikeway will begin at Flower Street, just south of Oyer Road, and extend Northeast along the southeide of the railroad right-of-way. The project will terminate at orange Street and Adams street, where the Maple Bikeway begins. Project Title/Descriptions Alton/Maple Bikeway Gap Closure The Public Works Agency proposes to construct a 0.95 mile bikeway connecting the Alton trail and Maple trail ae one continuous bikeway. The bikeway is proposed within the Southern Pacific Railroad right-of-way. Thies project is consistent with both the City and County Bikeway Master Plan. and doss hereby find: That the proposed project cannot, or will not, have a significant effect on the environment. Negative Declaration Status is therefore granted for this project and the preparation pf an Environmental Impact Report is thereby not necessary. APPROVED BY / ~G`r G~/~~~/"CXL~'1.. DATE~3/lS ENVIRONMENTAL EVALUATOR This Determination is not final until adopted by the decision-making body or administrative official, and a Notice of Determination is filed. EXHIBIT B 25.E. Page 36 ~•.z