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Resolution No. 81891 2 3 4 5 6 7 8 9 10 low 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8189 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A LEASE OF LAND BY AND BETWEEN THE CITY OF VERNON AND LOS ANGELES JUNCTION RAILWAY COMPANY REGARDING THE MALBURG GENERATING STATION PROJECT WHEREAS, the City of Vernon ("City") is proceeding at this time to develop a 134 MW Combined Cycle Power Plant officially named the Malburg Generating. Station (the "Malburg Project") for the purpose of installing additional generating capacity that will yield an efficient, cost-effective, and reliable source of electric generation to the City of Vernon's inhabitants; and WHEREAS, during the construction of the Malburg Project, the Utility Department staff ("Staff") has determined that the City needs the use of real property near the Malburg Project area for construction -related uses; and WHEREAS, Staff has negotiated a lease with Los Angeles Junction Railway Company, the owner of real property adjacent to, and west of, Seville Avenue, between Leonis Boulevard and Fruitland Avenue, at a rate of Three Thousand Five Hundred Forty -Five Dollars and Thirty Cents (3,545.30) per month for the period commencing May 1, 2003 and continuing each month thereafter until terminated upon 30 days written notice; and WHEREAS, by letter dated May 1, 2003, Bruce V. Malkenhorst, City Administrator/City Clerk, recommended that the Lease with L.A. Junction be approved and executed; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into the Lease with L.A. Junction, to enhance services provided to the Vernon community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY -COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Lease of Land with L.A. Junction, a copy of which is attached hereto as Exhibit "A" and made a part hereof, and authorizes the payment of fees in accordance with the terms of the Lease. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor and the City Clerk to execute said Lease for, and on behalf of, the City of Vernon. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to send two (2) executed Leases to: Los Angeles Junction Railway Company Attn: David Chavez, Supervisor 4433 Exchange Avenue Los Angeles, CA 90058 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 7th day of May, .2003. FATTEST: IBRUCE V. MALKENHORST, City Clerk EONIS C. MALhURG, gayor - 3 - 1 STATE OF CALIFORNIA ) 2 ) ss COUNTY OF LOS ANGELES ) 3 4 I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do 5 hereby certify that the foregoing Resolution, being'Resolution No.. 6 8189, was duly adopted by the City Council of the City of Vernon at a 7 regular meeting of the City Council duly held on Wednesday, May 7, 8 2003, and thereafter was duly signed by the Mayor of the City of 9 Vernon. 10 12 BRUCE V. MALKENHORST, City Clerk 13 (SEAL) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - EXHIBIT LEASE OF LAND THIS LEASE, made as of the 1" day of May 2003, between LOS ANGELES JUNCTION RAILWAY COMPANY, a California. corporation (hereinafter called "Railroad"), and CITY OF VERNON, a municipal corporation (hereinafter called "City"). WITNESSETH: That the parties hereto for the considerations hereinafter expressed covenant and agree as follows: Railroad hereby leases to City, subject to the rights and easements hereinafter excepted and reserved, and upon the terms and conditions hereinafter set forth, that certain land (hereinafter called "Premises") situated in City of Vernon, County of Los Angeles, State of California, as described or shown on Map No. A-2202, dated May 1, 2003, attached hereto and marked Exhibit "A", for a term beginning on May 1, 2003 and ending when this Lease shall be terminated as hereinafter provided. 2. Railroad hereby excepts and reserves the right, to be exercised by Railroad and by any others who have obtained or may obtain permission or authority from Railroad so to do, (a) to operate, maintain, renew and relocate any and all existing pipe, power, and communication lines and appurtenances and other facilities of like character upon, over or under the surface of the Premises; and (b) from time to time to construct, operate, maintain, renew and relocate such additional facilities of the same character as will not unreasonably interfere with the use of the Premises by City for the purpose specified in Section 4 hereof. 3. City shall pay to Railroad, as rental for the use of the Premises, the sum of Three Thousand Five Hundred Forty -Five and 30/00 Dollars ($3,545.30) per month payable in advance on the first day of each month. Upon termination of this Lease, unless City is then in default, any unearned portion of said rental paid in advance, will be refunded to City upon written demand by City therefor made within thirty (30) days following termination. 4. City will also pay to Railroad, a one-time fee of Five Thousand Three Hundred Ninety -Three and 00/Dollars ($5,393.00) for temporary fence relocation and reinstallation costs incurred during the term of this Lease as shown on Exhibit "B", dated January 15, 2003 and Exhibit "C", dated January 22, 2003. 5. City shall use the Premises exclusively as a site for storage and shall not use said Premises for loading or unloading of hazardous materials. 6. Railroad hereby grants to City the non-exclusive use of Railroad's property adjoining the Premises as shall be required for ingress to or egress from the Premises as shown on Exhibit "A". However, Railroad shall have the right, to be exercised at any time, to designate the location or route to be used for such purpose. For the purpose of this Lease, said route, whether specifically defined or not, shall be and is included under the definition of Premises. 7. (a) City has examined the Premises and accepts the use and occupancy thereof with full knowledge of their condition, and shall observe and comply with any and all laws, ordinances or governmental regulations relating to the use and maintenance of the Premises. (b) City shall make no change or alteration in, nor additions to, the Premises without first obtaining the written consent of Railroad which shall not be unreasonably withheld. (c) City shall pay any and all charges assessed or taxed to the premises, for the supply or use of water, gas, 30 sewer, heat, light, power and telephone service and such other services. City agrees that Railroad shall not be required to finuish to City any water, gas, sewer, heat, light, power or telephone service or any other facilities, equipment, labor, materials or services of any kind whatsoever. 8. (a) City agrees to keep the Premises free from rubbish and in a neat and safe condition satisfactory to Railroad. The Premises shall not be used for displaying signs and notices other than signs or notices identifying or relating to City's business, which have been approved by Railroad. Railroad shall have the right to enter the Premises at reasonable times to inspect the same. (b) City shall not use or permit the use of the Premises in any manner that will tend to create waste or a nuisance. In using the Premises, City shall comply with any and all requirements imposed by federal or state statutes or by ordinances, orders or regulations of any governmental body having jurisdiction thereover, including, but not limited to, building and zoning ordinances, restricting, evaluating or prohibiting the occupancy, use or enjoyment of the Premises. Should any governmental body having jurisdiction in the matter require Railroad to dedicate, restrict or otherwise encumber any portion of the Premises, or any of its adjoining property, as a condition to approval of City's use of the Premises, Railroad may, if said condition is unacceptable to Railroad, terminate this Lease, according to Section 16 of this Lease. City covenants to properly notify Railroad accordingly should any of the above occur. 9. (a) City shall indemnify and hold harmless Railroad, its parent and affiliated companies, for any claim, loss, damage, expense or injury, including death, arising out of any act or omission of the City, its employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other public body, individual, partnership, corporation, or other legal entity while on or about the Premises or while exercising any right or performing any obligation, pursuant to this Agreement, except to the extent such claims, losses, damages, expenses, death, or injury are caused by the sole negligence or wilful misconduct of Railroad, its officers, agents, or employees. (b) City shall indemnify and hold harmless Railroad, its parent and affiliated companies, from any liability or claimed liability arising under the Federal Employees Liability Act (45 U.S.C. S 51 et. seq.) for any incident caused, wholly or in part, by property, equipment, fixtures or condition on the Premises belonging to or under the control of City, except to the extent such incident is caused by the sole negligence or wilful misconduct of Railroad. 10. Title to the Premises, and to all property furnished by Railroad in the maintenance thereof, shall be in the name of the Railroad. 11. City shall indemnify and save harmless Railroad, its parent and affiliated companies, from any and all claims, loss, damage or expense for loss of or damage to property, including without limitation, the facilities described in Section 5, and injury to or death of persons, including without limitation, employees and agents of Railroad, arising out of the breach by City of the obligations or resulting in any manner from the construction, installation, maintenance, use, state of repair, presence or removal of such facilities on the Premises, except to the extent such loss, damage, injury or death is caused by the sole negligence and wilful misconduct of Railroad, its agents, or employees. City shall promptly, upon receipt of bill, pay to Railroad the full amount of any loss or damage that Railroad may sustain, incur or become liable for, and all sums which Railroad may pay or be compelled to pay in settlement of any claims on account thereof. City shall also reimburse Railroad for any money which Railroad has paid as a result of a violation by City of any statute, ordinance, rule, order or judgement referred to in this Section to the extent Railroad is entitled to indemnity under this paragraph. 12. (a) City shall comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as "Standards"), issued by any federal, state, or local governmental body or agency established thereby (hereinafter referred to as "Authority") relating to City's use of the Premises. In its use of the Premises, City shall at all times be in full compliance with all Standards set by any Authority during the duration of City's tenancy under this Lease, including but not limited to -2- Standards concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the event City fails to be in full compliance with Standards set by any Authority, Railroad may, after giving reasonable notice of the failure to City, and City within thirty (30) days of such notice, fails either to correct such noncompliance or to give written notice to Railroad of its intent to contest the allegation of noncompliance before the Authority establishing the Standard or in any other proper forum, take whatever action is necessary to bring the Premises into compliance. City shall reimburse the Railroad for all costs (including but not limited to consulting, engineering, cleanup and disposal costs and legal costs) incurred by Railroad in complying with such Standards, and also such costs incurred by Railroad in abating a violation of such Standards, protecting against a threatened violation of such Standards, defending any claim of violation of such Standards in any proceeding before any Authority or court, and paying any fines or penalties imposed for such violations. (b) Except as otherwise provided in this Section 12, in case of a breach of the obligations contained in this Section relating to "hazardous waste" and/or "hazardous substance", City agrees to assume liability for and to save and hold harmless Railroad, its parent and affiliated companies, from and against all claims for injuries to any person or damage to property including without limitation, employees and property of the Railroad and City, and all related expenses including without limitation attorney's fees, investigators' fees, litigation expense, resulting in whole or in part from City's failure to comply with any Standard issued by any governmental authority concerning "hazardous substances" and/or "hazardous waste". City at its cost shall assume the defense of all claims, suits, or actions brought for damages, and fines or penalties hereunder, regardless of whether they are asserted against Railroad or City. City also agrees to reimburse Railroad for all costs of any kind incurred as a result of City's failure to comply with this section, including but not limited to fines, penalties, clean up and disposal costs, and legal costs incurred as a result of City's generating, handling, transporting, treating, storing for a period of more than thirty (30) consecutive days, or disposing of "hazardous waste" and/or "hazardous substances" on the Premises. (c) In case of breach of Standards concerning air quality, water quality or noise, City shall assume liability for and save and hold harmless the Railroad from any claim of a violation of such Standards regardless of the nature thereof or the Authority or person asserting such claim which results from the City's use of the Premises, except to the extent the claim results from the acts or omissions of the Railroad. City, at its costs, shall assume the defense of all such claims regardless of whether they are asserted against the Railroad or City. (d) It is understood and agreed that City is not responsible for clean up costs of any "hazardous waste" and/or "hazardous substances" or contamination resulting therefrom which occurred prior to City's occupancy or use of the Premises, or which do not arise out of the City's use or occupancy of the Premises. 13. Upon written notice from Railroad, City agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Railroad by any public body, individual, partnership, corporation, or other legal entity, for which City has an obligation to assume liability for and/or save and hold Railroad harmless under Sections 9, 12 and/or 13 of this Lease. City shall pay all the costs incident to such defense including, but not limited to, attorney's fees, investigators' fees, litigation expenses, settlement payments, and amount paid in satisfaction of judgment. Any and all lawsuits or administrative actions brought or threatened on any theory or relief available at law, in equity or under the rules of any administrative agency shall be covered by this section 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. 14. (a) City shall, at its expense, procure and keep in force at all times during the term of this Lease, a comprehensive form of insurance covering its liability, including but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability, in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, and, if necessary, City shall provide for restoration of the aggregate limit in the event the limits of the policy are exhausted. Such insurance shall contain -3- no exclusion with respect to property of Railroad in the care, custody or control of City. City shall also, at its expense, procure and maintain throughout the term of this Lease, an automobile liability policy with limits of $1,000,000 covering "any auto". LOS ANGELES JUNCTION RAILWAY COMPANY AND THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY ARE NAMED AS ADDITIONAL INSURED PARTIES. (b) All risk insurance on the property of the Railroad, or in City's care, custody and control, shall contain a waiver of subrogation of claims against Railroad. (c) All insurance shall be placed with insurance companies licensed to do business in the State of California and shall be approved by Railroad. City shall provide, and thereafter maintain in effect, a current Certificate of Insurance evidencing such insurance. When any portion of or all of the Premises are located within fifty (50) feet of a railroad track, insurance shall provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted. Each policy shall provide that it shall not be canceled or materially changed unless at least thirty (30) days' prior written notice of cancellation or changes shall have been mailed by the insurance company to Railroad at the address designated on the signature page hereof and shall contain wording as follows: "Policy covers the indemnity obligations of the insured in favor of Los Angeles Junction Railway Company and The Burlington, Northern and Santa Fe Railway Company as provided for in that certain Lease of Land dated May 1, 2003, between the Los Angeles Junction Railway Company and the insured." (d) In the event City, at any time, fails to procure such insurance or to maintain it in effect, Railroad shall have the right, but shall not be obligated, to pay for such insurance. The cost thereof, together with interest thereon at ten (10%) percent per annum (computed from date of Railroad's payment to the date of City's reimbursement), shall be reimbursed by City to Railroad as additional rent hereunder on the fast day of the month next following. (e) Lessee shall maintain Workers compensation Insurance which shall contain a waiver of subrogation against Railroad. In the event that such waiver of subrogation is not provided, City hereby agrees to waive any workers compensation subrogation claims, liens, or demands, which could be asserted against Railroad by City, its employees, or its insurance carrier, and further agrees to indemnify Railroad and its employees, regardless of Railroad's negligence, for any and all workers compensation subrogation claims, liens, or demands, asserted by City, its employees or City's insurance carrier. (0 The furnishing or procuring of the insurance or evidence thereof as required by this Section 13 shall in no way limit or diminish the liability or the responsibility of City as provided under any section of this Lease. 15. If any rental hereunder shall be due and unpaid, or if default shall be made in any of the covenants or agreements of City herein contained, or in case of any assignment or transfer of this Lease by operation of law, Railroad may, at its option, terminate this Lease by service of five (5) days notice in writing upon City; but any waiver by Railroad of any default or defaults shall not constitute a waiver of the right to terminate this Lease for any subsequent default or defaults. 16. This Lease may be terminated at any time, by either party serving thirty (30) days' written notice of termination upon the other party, and upon expiration of the time specified in such notice, this Lease and all rights of City hereunder shall absolutely cease. Upon any such termination, any excess unearned portion of the rental paid in advance shall be refunded to City. 17. Any notice to be given by Railroad to City herein, and any notice to be given by City to Railroad herein, shall be deemed to be properly served if it shall be deposited with the United States Postal Service or its successor, or other universally acceptable mailing service, postage prepaid, addressed to the other party or parties hereto, at the address shown beneath the signature of the respective parties hereto, or to such other address as the parties hereto may from time to time designate. 18. Upon termination of this Lease in any manner herein provided, City shall forthwith surrender to Railroad the possession of the Premises and shall remove the City -owned improvements and all personal property, and restore the Premises to substantially the state in which they were prior to the effective date hereof, and in case City shall fail within thirty (30) days after the date of such termination to make such removal or restoration, then Railroad may, at its election, either remove the City -owned improvement, and all or any part of any personal property and restore the Premises for the account of City, and in such event City shall, within thirty (30) days after the rendition of bill therefor, reimburse Railroad for the cost so incurred, or may take and hold the City - owned improvements and all or any part of any personal property as its sole property. 19. If City fails to surrender to Railroad the Premises, upon any termination of this Lease, all the liabilities and obligations of City hereunder shall continue in effect until the Premises are surrendered, and no termination hereof shall release City from any liability or obligation hereunder, whether of indemnity or otherwise resulting from any acts, omission or events happening prior to the date of termination or the date, if later, when the City - owned improvements are removed and the Premises are restored or Railroad elects to take and hold the City - owned improvements as its sole property as referred to in Section 18 above. 20. Neither City, nor its authorized representatives, successors or assigns, nor any subsequent assignee, shall underlease or sublet the Premises or any part thereof, nor assign or transfer this Lease or any interest herein, without the prior written consent and approval in each instance of Railroad. 21. All the covenants and agreements of City herein contained shall be binding upon the authorized representatives, successors and assigns of City, and shall inure to the benefit of the successors and assigns of Railroad. -5- IN WITNESS WHEREOF, this Lease has been duly executed in duplicate, by the parties hereto as of the day and year fast above written. ATTEST: LOS ANGELES JUNCTION RAILWAY COMPANY 4433 Exchange Avenue Los Angeles, California 90058 By: By: Assistant Secretary President RAILROAD $ BBRQ*ft-A- CITY OF VERNON ATTEST: 4305 Santa Fe Avenue Vernon, California 90058 By: By: LEONIS C. MALBURG,�� BRUCE V. MALKENHORST, City Mayor Administrator/City Clerk CITY APPROVED AS TO FORM: By: EDUARDO OLIVO, City Attorney e L t, SUPPORTING DOCUMENTS LEASE OF LAND THIS LEASE, made as of the 1" day of May 2003, between LOS ANGELES JUNCTION RAILWAY COMPANY, a California corporation (hereinafter called 'Railroad"), and CITY OF VERNON, a municipal corporation (hereinafter called "City"). WITNESSETH: That the parties hereto for the considerations hereinafter expressed covenant and agree as follows: Railroad hereby leases to City, subject to the rights and easements hereinafter excepted and reserved, and upon the terms and conditions hereinafter set forth, that certain land (hereinafter called "Premises") situated in City of Vernon, County of Los Angeles, State of California, as described or shown on Map No. A 2202, dated May 1, 2003, attached hereto and marked Exhibit "A", for a term beginning on May 1, 2003 and ending when this Lease shall be terminated as hereinafter provided. 2. Railroad hereby excepts and reserves the right, to be exercised by Railroad and by any others who have obtained or may obtain permission or authority from Railroad so to do, (a) to operate, maintain, renew and relocate any and all existing pipe, power, and communication lines and appurtenances and other facilities of like character upon, over or under the surface of the Premises; and (b) from time to time to construct, operate, maintain, renew and relocate such additional facilities of the same character as will not unreasonably interfere with the use of the Premises by City for the purpose specified in Section 4 hereof. 3. Thee Thousand Five Hundred Seventy —Seven and City shall pay to Railroad, as rental for"theiise of the Premises, the sum of4��1Aaflrdad 50/00 Dollars BWI�ARiB l Dollars ($2" M) per month payable in advance on the first day of each month. Upo termination of this Lease, unless City is then in default, any unearned portion of said rental paid in advance, will be refunded to City upon 1written demand by City therefor made within thirty (30) days following termination. ($ 3 , 57 7.50 ) Five Thousand Four Hundred Forty —Two and 50/00 Dollars 4. City will also pay to Railroad, a one-time fee of 1$7111 �l�ijtA[0 ($ 5 , 4 4 2.50) — MURM for temporary fence relocation and reinstallation costs incurred during the term of this Lease as shown on Exhibit "B", dated January 15, 2003 and Exhibit "C", dated January 22, 2003. y 5. City shall use the Premises exclusively as a site for storage and shall not use said Premises for loading or l' oad unloading of hazardous materials. 6. Railroad hereby grants to City the non-exclusive use of Railroad's property adjoining the Premises as shall be required for ingress to or egress from the Premises as shown on Exhibit "A". However, Railroad shall have the right, to be exercised at any time; to designate the location or route to be used for such purpose. For the purpose of this Lease, said route, whether specifically defined or not, shall be and is included under the definition of Premises. 7. (a) City has examined the Premises and accepts the use and occupancy thereof with frill knowledge of their condition, and shall observe and comply with any and all laws, ordinances or governmental regulations relating to the use and maintenance of the Premises. (b) City shall make no change or alteration in, nor additions to, the Premises without first obtaining the written consent of Railroad which shall not be unreasonably withheld. (c) City shall pay any and all charges assessed or taxed to the premises, for the supply or use of water, gas, -1- sewer, heat, light, power and telephone service and such other services. City agrees that Railroad shall not be required to furnish to City any water, gas, sewer, heat, light, power or telephone service or any other facilities, equipment, labor, materials or services of any kind whatsoever. 8. (a) City agrees to keep the Premises free from rubbish and in a neat and safe condition satisfactory to Railroad. The Premises shall not be used for displaying signs and notices other than signs or notices identifying or relating to City's business, which have been approved by Railroad. Railroad shall have the right to enter the Premises at reasonable times to inspect the same. (b) City shall not use or permit the use of the Premises in any manner that will tend to create waste or a nuisance. In using the Premises, City shall comply with any and all requirements imposed by federal or state statutes or by ordinances, orders or regulations of any governmental body having jurisdiction thereover, including, but not limited to, building and zoning ordinances, restricting, evaluating or prohibiting the occupancy, use or enjoyment of the Premises. Should any governmental body having jurisdiction in the matter require Railroad to dedicate, restrict or otherwise encumber any portion of the Premises, or any of its adjoining property, as a condition to approval of City's use of the Premises, Railroad may, if said condition is unacceptable to Railroad, terminate this Lease, according to Section 16 of this Lease. City covenants to properly notify Railroad accordingly should any of the above occur. 9. (a) City shall indemnify and hold harmless Railroad, its parent and affiliated companies, for any claim, loss, damage, expense or injury, including death, arising out of any act or omission of the City, its employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other public body, individual, partnership, corporation, or other legal entity while on or about the Premises or while exercising any right or performing any obligation, pursuant to this Agreement, except to the extent such claims, losses, damages, expenses, death, or injury are caused by the sole negligence or wilfW misconduct of Railroad, its officers, agents, or employees. (b) City shall indemnify and hold harmless Railroad, its parent and affiliated companies, from any liability or claimed liability arising under the Federal Employees Liability Act (45 U.S.C. S 51 et. seq.) for any incident caused, wholly or in part, by property, equipment, fixtures or condition on the Premises belonging to or under the control of City, except to the extent such incident is caused by the sole negligence or wilful misconduct of Railroad. 10. Title to the Premises, and to all property furnished by Railroad in the maintenance thereof, shall be in the name of the Railroad. 11. City shall indemnify and save harmless Railroad, its parent and affiliated companies, from any and all claims, loss, damage or expense for loss of or damage to property, including without limitation, the facilities described in Section 5, and injury to or death of persons, including without limitation, employees and agents of Railroad, arising out of the breach by City of the obligations or resulting in any manner from the construction, installation, maintenance, use, state of repair, presence or removal of such facilities on the Premises, except to the extent such loss, damage, injury or death is caused by the sole negligence and wilful misconduct of Railroad, its agents, or employees. City shall promptly, upon receipt of bill, pay to Railroad the full amount of any loss or damage that Railroad may sustain, incur or become liable for, and all sums which Railroad may pay or be compelled to pay in settlement of any claims on account thereof. City shall also reimburse Railroad for any money which Railroad has paid as a result of a violation by City of any statute, ordinance, rule, order or judgement referred to in this Section to the extent Railroad is entitled to indemnity under this paragraph. 12. (a) City shall comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as "Standards"), issued by any federal, state, or local governmental body or agency established thereby (hereinafter referred to as "Authority") relating to City's use of the Premises. In its use of the Premises, City shall at all times be in Rill compliance with all Standards set by any Authority during the duration of City's tenancy under this Lease, including but not limited to -2- Standards concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the event City fails to be in frill compliance with Standards set by any Authority, Railroad may, after giving reasonable notice of the failure to City, and City within thirty (30) days of such notice, fails either to correct such noncompliance or to give written notice to Railroad of its intent to contest the allegation of noncompliance before the Authority establishing the Standard or in any other proper forum, take whatever action is necessary to bring the Premises into compliance. City shall reimburse the Railroad for all costs (including but not limited to consulting, engineering, cleanup and disposal costs and legal costs) incurred by Railroad in complying with such Standards, and also such costs incurred by Railroad in abating a violation of such Standards, protecting against a threatened violation of such Standards, defending any claim of violation of such Standards in any proceeding before any Authority or court, and paying any fines or penalties imposed for such violations. (b) Except as otherwise provided in this Section 12, in case of a breach of the obligations contained in this Section relating to "hazardous waste" and/or "hazardous substance", City agrees to assume liability for and to save and hold harmless Railroad, its parent and affiliated companies, from and against all claims for injuries to any person or damage to property including without limitation, employees and property of the Railroad and City, and all related expenses including without limitation attorney's fees, investigators' fees, litigation expense, resulting in whole or in part from City's failure to comply with any Standard issued by any governmental authority concerning "hazardous substances" and/or "hazardous waste". City at its cost shall assume the defense of all claims, suits, or actions brought for damages, and fines or penalties hereunder, regardless of whether they are asserted against Railroad or City. City also agrees to reimburse Railroad for all costs of any kind incurred as a result of City's failure to comply with this section, including but not limited to fines, penalties, clean up and disposal costs, and legal costs incurred as a result of City's generating, handling, transporting, treating, storing for a period of more than thirty (30) consecutive days, or disposing of "hazardous waste" and/or "hazardous substances" on the Premises. (c) In case of breach of Standards concerning air quality, water quality or noise, City shall assume liability for and save and hold harmless the Railroad from any claim of a violation of such Standards regardless of the nature thereof or the Authority or person asserting such claim which results from the City's use of the Premises, except to the extent the claim results from the acts or omissions of the Railroad. City, at its costs, shall assume the defense of all such claims regardless of whether they are asserted against the Railroad or City. (d) It is understood and agreed that City is not responsible for clean up costs of any "hazardous waste" and/or "hazardous substances" or contamination resulting therefrom which occurred prior to City's occupancy or use of the Premises, or which do not arise out of the City's use or occupancy of the Premises. 13. Upon written notice from Railroad, City agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Railroad by any public body, individual, partnership, corporation, or other legal entity, for which City has an obligation to assume liability for and/or save and hold Railroad harmless under Sections 9,12 and/or 13 of this Lease. City shall pay all the costs incident to such defense including, but not limited to, attorney's fees, investigators' fees, litigation expenses, settlement payments, and amount paid in satisfaction of judgment. Any and all lawsuits or administrative actions brought or threatened on any theory or relief available at law, in equity or under the rules of any administrative agency shall be covered by this section 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. 14. (a) City shall, at its expense, procure and keep in force at all times during the term of this Lease, a comprehensive form of insurance covering its liability, including but not limited to, Public Liability, Personal Injury and Property Damage, as well as Contractual Liability, in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, and, if necessary, City shall provide for restoration of the aggregate limit in the event the limits of the policy are exhausted. Such insurance shall contain -3- (b) no exclusion with respect to property of Railroad in the care, custody or control of City. City shall also, at its expense, procure and maintain throughout the term of this Lease, an automobile liability policy with limits of $1,000,000 covering "any auto". LOS ANGELES JUNCTION RAILWAY All risk insurance on the property of the Railroad, or in City's care, custody and control, shall contain a waiver of subrogation of claims against Railroad. (c) All insurance shall be placed with insurance companies licensed to do business in the State of California and shall be approved by Railroad. City shall provide, and thereafter maintain in effect, a current Certificate of Insurance evidencing such insurance. When any portion of or all of the Premises are located within fifty (50) feet of a railroad track insurance shall provide for coverage of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to the contrary must be specifically deleted. Each policy shall provide that it shall not be canceled or materially changed unless at least thirty (30) days' prior written notice of cancellation or changes shall have been mailed by the insurance company to Railroad at the address designated on the signature page hereof and shall contain wording as follows: "Policy covers the indemnity obligations of the insured in favor of Los Angeles Junction Railway Company and The Burlington, Northern and Santa Fe Railway Company as provided for in that certain Lease of Land dated May 1, 2003, between the Los Angeles Junction Railway Company and the insured." (d) In the event City, at any time, fails to procure such insurance or to maintain it in effect, Railroad shall have the right, but shall not be obligated, to pay for such insurance. The cost thereof, together with interest thereon at ten (10%) percent per annum (computed from date of Railroad's payment to the date of City's reimbursement), shall be reimbursed by City to Railroad as additional rent hereunder on the first day of the month next following. (e) Lessee shall maintain Workers compensation Insurance which shall contain a waiver of subrogation against Railroad. In the event that such waiver of subrogation is not provided, City hereby agrees to waive any workers compensation subrogation claims, liens, or demands, which could be asserted against Railroad by City, its employees, or its insurance carrier, and fiuther agrees to indemnify Railroad and its employees, regardless of Railroad's negligence, for any and all workers compensation subrogation claims, liens, or demands, asserted by City, its employees or City's insurance carrier. (f) The furnishing or procuring of the insurance or evidence thereof as required by this Section 13 shall in no way limit or diminish the liability or the responsibility of City as provided under any section of this Lease. 15. If any rental hereunder shall be due and unpaid, or if default shall be made in any of the covenants or agreements of City herein contained, or in case of any assignment or transfer of this Lease by operation of law, Railroad may, at its option, terminate this Lease by service of five (5) days notice in writing upon City; but any waiver by Railroad of any default or defaults shall not constitute a waiver of the right to terminate this Lease for any subsequent default or defaults. 16. This Lease may be terminated at any time, by either party serving thirty (30) days' written notice of termination upon the other party, and upon expiration of the time specified in such notice, this Lease and all rights of City hereunder shall absolutely cease. Upon any such termination, any excess unearned portion of the rental paid in advance shall be refunded to City. -4- 17. Any notice to be given by Railroad to City herein, and any notice to be given by City to Railroad herein, shall be deemed to be properly served if it shall be deposited with the United States Postal Service or its successor, or other universally acceptable mailing service, postage prepaid, addressed to the other party or parties hereto, at the address shown beneath the signature of the respective parties hereto, or to such other address as the parties hereto may from time to time designate. 18. Upon termination of this Lease in any manner herein provided, City shall forthwith surrender to Railroad the possession of the Premises and shall remove the City -owned improvements and all personal property, and restore the Premises to substantially the state in which they were prior to the effective date hereof, and in case City shall fail within thirty (30) days after the date of such termination to make such removal or restoration, then Railroad may, at its election, either remove the City -owned improvement, and all or any part of any personal property and restore the Premises for the account of City, and in such event City shall, within thirty (30) days after the rendition of bill therefor, reimburse Railroad for the cost so incurred, or may take and hold the City - owned improvements and all or any part of any personal property as its sole property. 19. If City fails to surrender to Railroad the Premises, upon any termination of this Lease, all the liabilities and obligations of City hereunder shall continue in effect until the Premises are surrendered, and no termination hereof shall release City from any liability or obligation hereunder, whether of indemnity or otherwise resulting from any acts, omission or events happening prior to the date of termination or the date, if later, when the City - owned improvements are removed and the Premises are restored or Railroad elects to take and hold the City - owned improvements as its sole property as referred to in Section 18 above. 20. Neither City, nor its authorized representatives, successors or assigns, nor any subsequent assignee, shall underlease or sublet the Premises or any part thereof, nor assign or transfer this Lease or any interest herein, without the prior written consent and approval in each instance of Railroad. 21. All the covenants and agreements of City herein contained shall be binding upon the authorized representatives, successors and assigns of City, and shall inure to the benefit of the successors and assigns of Railroad. -5- IN WITNESS WHEREOF, this Lease has been duly executed in duplicate, by the parties hereto as of the day and year first above written. ATTES LOS ANGELES JUNCTION RAILWAY COMPANY 4433 Exchange Avenue Los Angeles, California 90058 6 By: By: Assistant Secretary President RAILROAD ATTEST: CITY OF VERNON 4305 Santa Fe Avenue Vernon, California 90058 )� THOMAS A. YBARRA BRUCE V . MALKENHORST ,VX City Administrator/City Clerk Mayor Pro Tem APPROVED TO FORM: CITY By, - '� - I - -le r(at DUARDO OLIVO, City Attorney Ell IN WITNESS WHEREOF, this Lease has been duly executed in duplicate, by the parties hereto as of the day and year fast above written. —Assis-t Seketary ATTEST: By:v -� I:Q&Rw �t�jtL�i�iC�C3C BRUCE V. MALKENHORST, City Administrator/City Clerk APPZARDO-OLIVO, TO FORM: By: City At orney APPROVED ASSISTANT GENERAL MANAGER L.A.J. LOS ANGELES JUNCTION RAILWAY COMPANY 4433 Exchange Avenue Los Angeles, California. 90058 By. President RAILROAD CITY OF VERNON 4305 Santa Fe Avenue Vernon, California 90058 ,— «. —1--- .n JDI& I+IFRL%X6i%X0.k% &i Mayor Pro Tem CITY in WWh ?0 6a U q w z" o o H n � U M FRUTTLAND AVENUE .117C dr w m z z 11 W J a W 0 a G 501" STREET Pilgrim Fence Co. "Established 1949" STATE LICENCE # 360110 FQ►X TI�,ANSM17TAhL To: DAVID CHAVEZ FROM DICK FASSBINDER COMPANY LA. JUNCTION R.R. Date 1115103 Fax Number 277.2009 Phone Number 277.2005 i Re: CITY OF VERNON PROJECT Total. Number of pages including Cover Sheet 1 ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Xgp,ease Recycl 2e 851 �- , RAilroad LABOR AND MATERIAL TO INSTALL_940=' TEM ORARY CHAIN LINK FENCE. NO GATES INCLUDED. UNIT PRICE=$4.50 PER LIN. FT. USAGE WILL BE FORA (12) MONTH PERIOD. REMOVAL IS INCLUDED TOTAL=$WJBAW $3,829.50 IN ADDITION WE PROPOSE TO RELOCATE OWNERS 20'X8'. SWING GATE. PRICE INCLUDES (1) NEW 6 5/8" POST, AND 28' OF TEMPORARY CHAIN. -LINK. SAME DURATION. TOTAL=$1013. 00 DICK FASSBINDER WWW.PILGFIIMFENCE.COM 3275 E. FLORENCE AVE. HUNTINGTON PARK, CA. 90255 PHONE # (323) 582-8191 FAX #(323) 582-2016 Exhibit "B" i Pilgrim Fence Co. "Established 194911 STATE LICENCE # 360110 F,L" TU A SSMIIT,A 1- To: DAVID C iAVEZ FROM DICK FASSBINDER COMPANY L.A. JUNCTION R.R. Fax Number 277.2009 Phone Number 277.2005 Date 1/22/03 Re: CITY OF VERNON --ADDENDUM Total Number of pages including Cover Sheet 1 ❑ Urgent ❑ For Review ❑ Please Cornmeal ❑ Please Reply ❑ Please Recycle PLEASE ADD THE FOLLOWING ITEM TO OUR BID DATED JAN. 15,'03. INCREASE THE TOTAL $600.00. THIS COST WILL COVER OUR LABOR AND MATERIAL TO RE -INSTALL YOUR 8'X20' SWING GATE, TO IT'S ORIGINAL LOCATION, AFTER THE CITY HAS COMPLETED THEIR PROJECT. ORIGINAL QUOTE TOTAL=$1013.00 ADDITIONAL COST =$ 600.00 TOTAL COST=$1613.00 DICK FASSIBINDER WWW.PILGRIMFENCE.COM 3275 E. FLORENCE AVE. HUNTINGTON PARK, CA. 90255 PHONE # (323) 582-8191 FAX #(323) 582-2016 Exhibit "C"