2011-R-57 Lease with Union Pacific RailoadRESOLUTION NO. 11-R-57
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A LEASE AGREEMENT WITH
UNION PACIFIC RAILROAD, AND OTHER MATTERS IN
CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has recommended that the
City enter into a Lease of Property agreement with Union Pacific Railroad relating to an existing
paved parking lot adjacent to Main Street; and
WHEREAS, the City Council has determined that it is in the best interest of the City to
contract with Union Pacific Railroad pursuant to the Lease of Property agreement attached
hereto as Exhibit A (the "Agreement").
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Union Pacific Railroad in substantially the form set forth. on
Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be consri•ued and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the r•emainder• of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
soass~ai.r
PASSED AND ADOPTED, this 29th day of November, 2011.
CITY OF SC RTZ, T S
Ma or
ATTEST:
Tn~61k,1~
City Secretary
(CITY SEAL)
soasai~~.i
OEC 2 ~ 2011
Folder: 2572-73
MR. JOHN E. BIERSCHWALE
ASST. CITY MANAGER
CITY OF SCHERTZ
1400 SCHERTZ PARKWAY
SCHERTZ, TX 78154
RE: Lease Covering Use of Railroad Property at Schertz, Texas
Dear Mr. Bierschwale:
Attached for your permanent record is a fully executed original of the above-referenced Lease.
The Railroad Company has authorized the installation of fiber optic cable facilities oo its property in
certain areas. Prior to digging on the Railroad's property you must contact the Railroad Company
at 1-800-336-9193 to determine if this property contains fiber optic cable. In any event, you should
thm•oughly review the terms and conditions of this Lease.
In compliance with the Internal Revenue Service's policy regarding Form 1099, please be advised that
94-6001323 is Union Pacific Railroad Company's Federal Taxpayer Identification Number and we are
doing business as a corporation.
m rely,
J' Mat
enior Manager-Real Estate
(402)544-8562
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fz. (402) 507-0340
Industrial Lease (Year To Year) 09-01-06 Folder No.2572-77
(Unimproved Property) Aadit No.~.
Form Approved, Law
LEASE OF PROPERTY
(INDUSTRIAL LEASE -UNIMPROVED -YEAR TO YEAR)
THIS LEASE ("Lease") is entered into on December 1, 2011, between UNION PACIFIC
RAILROAD COMPANY ("Lessor") and CITY OF SCHERTZ, a Texas municipal corporation, whose
address is 1400 Schertz Parkway, Schertz, Texas 78154 ("Lessee").
IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:
Article 1. PREMISES; USE.
Lessor leases to Lessee and Lessee leases from Lessor the premises ("Premises") at Schertz,
Texas, shown on the print dated October 28, 2011, marked Exhibit A, hereto attached and made a part
hereof, subject to the provisions of this Lease and of Exhibit B attached hereto and made a pats hereof.
The Premises inchtded in this Lease is defined by the following:
1) Property along the track, depicted on the attached print in orange screen, to be used by Lessee
for weed /h•ash and debris control within the corporate limits of Schertz, and purposes
incidental thereto, only, and for no other puraose.
Property to be used For weed/trash and debris control includes the outer 25 feet of Lessor's
100 foot wide right-of--way. If Lessee needs to get within 25 feet of the track, they should
contact Mr. Russell Mrazek, Union Pacific's Manager -Track Maintenance, 402-501-4333
(office) and 512-227-2075 (cell).
2) In exchange for Lessee performing weed/hash and debris control, as mentioned above,
Lessor grants Lessee use of the property depicted on the attached print in green, to be used by
the City as a public parking lot located on the east side of First Street.
Article 2. TERM.
The term of this Lease shall commence December 1, 2011, and, unless sooner terminated as
provided in this Lease, shall extend for one year and thereafter shall automatically be extended from year
to year.
Article 3. RENT.
In lieu of rent, Lessee will maintain Premises.
Article 4. INSURANCE.
A. Before commencement of [he tern of this Lease, Lessee shall provide to Lessor a
certrtificate issued by its insurance carrier evidencing the insm~ance coverage required under Exhibit C
hereto attached and made a part hereof.
B. Not more frequently than once every hvo years, Lessor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the railroad indushy and
unde~tivriting practices iu the insurance indusGy.
C. All insurance correspondence, certificates and endorsements shall be directed to: Real
Estate Department, 1400 Douglas Street STOP 1690, Omaha, Nebraska 68179-1690, Folder No. 2572-
73.
Article 5. DECORATIVE WALL AS SAFETY BARRIER
Lessee, at Lessee's expense, will install a decorative wall, not to exceed tlu~ee feet in height along
the south line of the parking lot, measured 50 feet north from centerline of the hack. In addition, Lessee
will also install decorative wall across curb cut into parking parcel at First Sleet. Decorative wall location
is shown depicted by red line on the attached print. Invitees to parking lot will only gain ingress/egress to
parking lot from Main Street.
IN WITNESS WHEREOF, the pasties have executed this Lease as of the day and year first herein
written.
Lessor:
UNION PACIFIC RAILROAD COMPANY
Lessee:
CITY OF SCHERTZ
By: ~ ~~ ,
enior M~auager -Real stafd
By:
Tit sty Manager
NOTE: New Lease
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AGREEMENT FOR FIBER OPTIC PROVISIONS.
E%HIBIT "A"
UNION PACIFIC RAILROAD COMPANY
SCHERTZ. GUADALUPE COUNTY. T%
APPROX. M. P. 191.37 TO 193.14 - GLIDDEN SUB.
TO ACCOMPANY AGREEMENT WITH
CITY OF SCHERTZ
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SCALE: 1" = 400'
OFFICE OF REAL ESTATE
OMAHA. NEBRASKA DATE: 1lh-2$'-2011
NLP FILE: 2572-73
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Industrial Lcase (Year To Ycar) 09-01-06
(Unimprovcd Property)
Form Approved, Law
EXHH3IT B
TO
INDUSTRIAL LEASE (UNIMPROVED YEAR TO YEAR)
Section 1. IMPROVEMENTS.
No improvements placed upon the Premises by Lessee shall become a part of the realty.
Sectimr 2. RESERVATIONS, TITLE AND PRIOR RIGHTS.
A. Lessor reserves to itself, its agents and contractors, the right to enter the Premises at such
times as will not unreasonably interfere with Lessee's use of the Premises.
B. Lessor reserves (i) the exclusive right to permit third party placement of advertising signs
on the Premises, and (ii) the right to construct, maintain and operate new and existing facilities (including,
without limitation, trackage, fences, communication facilities, roadways and utilities) upon, over, across
or under the Premises, and to grant to others such rights, provided that Lessee's use of the Premises is not
interfered with unreasonably.
C. Lessee acknowledges that Lessor makes no representations or warranties, express or
implied, concerning the title to the Premises, and that the rights granted to Lessee under this Lease do not
extend beyond such right, title or interest as Lessor may have in and to the Premises. Without limitation
of the foregoing, this Lease is made subject to all outstanding rights, whether or not of record. Lessor
reserves the right to renew any such outstanding rights granted by Lessm• or Lessor's predecessors.
D. Without limitation of Subparagraphs B. and C. above, Lessee shall not interfere in any
manner with the use or operation of any signboards now or hereafter placed on the Premises or with any
property uses in connection with such signboards (such as, by way of example and not in limitation,
roadways providing access to such signboards). In no event may Lessee consG'uct on the Premises any
improvements that interfere in any mamrer with the visibility or operation of any signboards now or
hereafter on the Premises or on property in proximity to the Premises.
Section 3. PAYMENT OF RENT.
hi this instance, in lieu of cash rent, Lessee maintains Premises.
Section 4. TAXES AND ASSESSMENTS.
A. Lessee shall pay, prior to delinquency, all taxes levied during the life of this Lease on all
personal property and improvements on the Premises not belonging to Lessor. If such taxes are paid by
Lessor, either separately or as a part of the levy on Lessor's real property, Lessee shall reimburse Lessor
in full within thirty (30) days after rendition of Lessor's bill.
B. If the Premises are specially assessed for public improvements, the annual rent will be
automatically increased by ] 2% of the full assessment amount.
Section 5. WATER RIGHTS.
This Lease does not include any right to the use of water under any water right of Lessor, or to
establish any water rights except in the name of Lessor.
Section 6. CARE AND USE OF PREMISES.
A. Lessee shall use reasonable care and caution against damage or destruction to the
Premises. Lessee shall not use or permit the use of the Premises for any unlawful purpose, maintain any
nuisance, permit any waste, or use the Premises iu any way that creates a hazard to persons or property.
Lessee shall keep the sidewalks and public ways on the Premises, and the walkways appurtenant to any
railroad spur track(s) on or sewing the Premises, free and clear from any substance which might create a
hazard.
B. Lessee shall not permit any sign on the Premises, except signs relating to Lessee's
business.
C. If any improvement on the Premises other than the Lessor Improvements is damaged or
destroyed by fire or other casualty, Lessee shall, within thirty (30) days after such casualty, remove all
debris resulting therefrom. If Lessee fails to do so, Lessor may remove such debris, and Lessee agrees to
reimburse Lessor for all expenses incurred within thirty (30) days after rendition of Lessor's bill.
D. Lessee shall comply with all governmental laws, ordinances, rules, regulations and orders
relating to Lessee's use of the Premises and this Lease, including, without limitation, any requirements for
subdividing or platting the Premises.
Section 7. HAZARDOUS MATERIALS, SUBSTANCES AND WASTES.
A. Without the prior written consent of Lessor, Lessee shall not use or permit the use of the
Premises for the generation, use, treatment, manufachu~e, production, storage or recycling of any
Hazardous Substances, except that Lessee may use, if lawful, small quantities of common chemicals such
as adhesives, lubricants and cleaning fluids in order to conduct business at the Premises. The consent of
Lessor may be withheld by Lessor for any reason whatsoever, and may be subject to conditions in
addition to those set forth below. It shall be the sole responsibility of Lessee to determine whether or not
a contemplated use of the Premises is a Hazardous Substance use.
B. In no event shall Lessee (i) release, discharge or dispose of any Hazardous Substances,
(ii) bring any hazardous wastes as defined in RCRA onto the Premises, (iii) install or use on the Premises
any underground storage tanks, or (iv) store any Hazardous Substances within one hundred feet (100') of
the center line of any main track.
C. If Lessee uses or permits the use of the Premises for a Hazardous Substance use, with or
without Lessor's consent, Lessee shall furnish to Lessor copies of all permits, identification numbers and
notices issued by governmental agencies in connection with such Hazardous Substance use, together with
such other information on the Hazardous Substance use as may be requested by Lessor. If requested by
Lessor, Lessee shall cause to be performed an environmental assessment of the Premises upon
termination of the Lease and shall furnish Lessor a copy of such report, at Lessee's sole cost and expense.
D. Without limitation of the provisions of Section 12 of this Exhibit B, Lessee shall be
responsible for all damages, losses, costs, expenses, claims, fines and penalties related in any manner to
any Hazardous Substance use of the Premises (or any property in proximity to the Premises) during the
term of this Lease or, if longer, during Lessee's occupancy of the Premises, regardless of Lessor's consent
to such use or any negligence, misconduct or sG•ict liability of any Indemnified Pasty (as defined in
Section 12), and including, without limitation, (i) any diminution in the value of the Premises and/or any
adjacent property of any of the Indemnified Parties, and (ii) the cost and expense of clean-up, restoration,
containment, remediation, decontamination, removal, investigation, monitoring, closure or post-closure.
Notwithstanding the foregoing, Lessee shall not be responsible fa' Hazardous Substauces (i) existing on,
in or under the Premises prior to the earlier to occur of the commencement of the term of the Lease or
Lessee's taking occupancy of the Premises, or (ii) migrating from adjacent property not controlled by
Lessee, or (iii) placed on, in or under the Premises by any of the Indemnified Pasties; except where the
Hazardous Substance is discovered by, or the contamination is exacerbated by, any excavation or
investigation undertaken by or at the behest of Lessee. Lessee shall have the burden of proving by a
preponderance of the evidence that any of the foregoing exceptions to Lessee's responsibility for
Hazardous Substances applies.
E. In addition to the other rights and remedies of Lessor under this Lease or as may be
provided by law, if Lessor reasonably determines that the Premises may have been used during the term
of this Lease or any prior lease with Lessee for all or any portion of the Premises, or are being used for
any Hazardous Substance use, with or without Lessor's consent thereto, and that a release or other
contamination may have occurred, Lessor may, at its election and at any time during the life of this Lease
or thereafter (i) cause the Premises and/or any adjacent premises of Lessor to be tested, investigated, or
monitored for the presence of any Hazardous Substance, (ii) cause any Hazardous Substance to be
removed from the Premises and any adjacent lands of Lessor, (iii) cause to be performed any restoration
of the Premises and any adjacent lands of Lessor, and (iv) cause to be performed any remediation of, or
response to, the environmental condition of the Premises and the adjacent lands of Lessor, as Lessa•
reasonably may deem necessary or desirable, and the cost and expense thereof shall be reimbursed by
Lessee to Lessor within thirty (30) days after rendition of Lessor's bill. In addition, Lessor may, at its
election, require Lessee, at Lessee's sole cost and expense, to perform such work, in which event, Lessee
shall promptly commence to perform and thereafter diligently prosecute to completion such work, using
one or more contractors and a supervising consulting engineer approved in advance by Lessor.
F. For purposes of this Section 7, the term "Hazardous Substance" shall mean (i) those
substances included within the definitions of "hazardous substance", "pollutant", "contaminant", or
"hazardous waste", in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. §§ 9601, et sec ., as amended or in RCRA, the regulatious promulgated pursuant to either
such Act, or state laws and regulations similar to or promulgated pursuant to either such Act, (ii) any
material, waste or substance which is (A) petroleum, (B) asbestos, (C) flammable or explosive, or (D)
radioactive; and (iii) such other substances, materials and wastes which are or become regulated or
classified as hazardous or toxic under airy existing or future federal, state or local law.
Section 8, UTILITIES.
A. Lessee will arrange and pay for all utilities and services supplied to the Premises for
Lessee's use or to Lessee. Lessee will not pay for electricity to signs on Premises, except Lessee's signs.
B. All utilities and services for Lessee's use will be separately metered to Lessee. If not
separately metered, Lessee shall pay its proportionate share as reasonably determined by Lessor.
Section 9. LIENS.
Lessee shall not allow any liens to attach to the Premises for any services, labor or materials
furnished to the Premises or otherwise arising from Lessee's use of the Premises. Lessor shall have the
right to discharge any such liens at Lessee's expense.
Section 10. ALTERATIONS AND IMPROVEMENTS: CLEARANCES.
A. No alterations, improvements or installations may be made on the Premises without the
prior consent of Lessor. Such consent, if given, shall be subject to the needs and requirements of the
Lessor in the operation of its Railroad and to such other conditions as Lessor determines to impose. In all
events such consent shall be conditioned upon sG•ict conformance with all applicable governmental
requirements and Lessor's then-current clearance staodards.
B. All alterations, improvements or installations shall be at Lessee's sole cost and expense
C. Lessee shall comply with Lessa•'s then-current clearance standards, except (i) where to
do so would cause Lessee to violate an applicable governmental requirement, or (ii) for any improvement
or device in place prior to Lessee taking possession of the Premises if such improvement or device
complied with Lessor's clearance standards at the time of its installation.
D. Any actual or implied knowledge of Lessor of a violation of the clearance requirements
of this Lease or of any governmental requirements shall not relieve Lessee of the obligation to comply
with such requirements, nor shall any consent of Lessor be deemed to be a representation of such
compliance.
Section 11. AS-IS.
Lessee accepts the Premises in its present condition with all faults, whether patent or latent, and
without warranties or covenants, express or implied. Lessee acknowledges that Lessor shall have no duty
to maintain, repair or improve the Premises.
Section 12. RELEASE AND INDEMNITY.
A. As a material part of the consideration for this Lease, Lessee, to the extent it may
lawfully do so, waives and releases any and all claims against Lessor for, and agrees to indemnify, defend
and hold harmless Lessor, its affiliates, and its and their officers, agents and employees ("hndemnified
Pasties") fi'oro and against, any loss, damage (including, without limitation, punitive or consequential
damages), injury, liability, claim, demand, cost or expense (including, without limitation, attorneys' fees
and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without
limitation, Lessor, Lessee, or any employee of Lessor or Lessee) for personal injury or property damage
arising from or related to any use of the Premises by Lessee or any invitee or licensee of Lessee, any act
or omission of Lessee, its officers, agents, employees, licensees or invitees, or any breach of this Lease by
Lessee.
B. The foregoing release and indemnity shall apply regardless of any negligence,
misconduct or strict liability of any Indemnified Party, except that the indemnity, only, shall not apply to
any Loss determined by final order of a court of competent jm•isdiction to have been caused by the sole
active direct negligence of any Indemnified Party.
C. Where applicable to the Loss, the liability provisions of any contract between Lessor and
Lessee covering the carriage of shipments or trackage sewing the Premises shall govern the Loss and
shall supersede the provisions of this Section 12.
D. No provision of this Lease with respect to insurance shall limit the extent of the release
and indemnity provisions of this Section 12.
Section 13. TERMINATION.
A. Lessor may terminate this Lease for Lessee's default by giving Lessee notice of
termination, if Lessee (i) defaults under any obligation of Lessee under this Lease and, after written notice
is given by Lessor to Lessee specifying the default, Lessee fails either to immediately commence to cure
the default, or to complete the cure expeditiously but in all events within thirty (30) days after the default
notice is given, or (ii) Lessee abandons the Premises for a period of one hundred hveuty (120) consecutive
days.
B. Norivithstanding the terms of this Lease set forth in Article II, Lessor or Lessee may
terminate this Lease without cause upon thirty (30) day's written notice to the other pasty; provided,
however, that at Lessor's election, no such termination by Lessee shall be effective unless and until
Lessee has vacated and restored the Premises as required in Section 15A, at which time Lessor shall
refund to Lessee, on a pro rata basis, any unearned rental paid in advance. Notwithstanding anything to
the cm~tra~y in this Lease, if Lessee has not complied with the requirements of Section 15 A, this
Lease, together with alt terms cmrtained herein (including payment of rent) will remain in effect
until the requirements of Section 15A are met, unless Lessor, in its sole discretion, elects to
terminate this Lease.
Sectim~ 14. LESSOR'S REMEDIES
Lessor's remedies for Lessee's default are to (a) enter and take possession of the Premises,
without terminating this Lease, and relet the Premises on behalf of Lessee, collect and receive the rent
from reletting, and charge Lessee for the cost of reletting, and/or (b) terminate this Lease as provided in
Section 13 above and sue Lessee for damages, and/or (c) exercise such other remedies as Lessor may
have at law or in equity. Lessor may enter and take possession of the Premises by self-help, by changing
locks, if necessary, and may lock out Lessee, all without being liable for damages.
Section 15. VACATION OF PREMISES; REMOVAL OF LESSEE'S PROPERTY
A. Upon termination howsoever of this Lease, Lessee (i) shall have peaceably and quietly
vacated and surrendered possession of the Premises to Lessor, without Lessor giving any notice to quit or
demand for possession, and (ii) shall have removed from the Premises all structures, property and other
materials not belonging to Lessor, including all personal property and restored the surface to as good a
condition as the same was in before such struchires were erected, including, without limitation, the
removal of foundations, the filling in of excavations and pits, and the removal of debris and rubbish.
B. If Lessee has not completed such removal and restoration prior to termination of this
Lease, Lessor may, at its election, and at any time or times, (i) perform the work and Lessee shall
reimburse Lessor for the cost thereof within thirty (30) days after bill is rendered, (ii) take title to all or
any portion of such structures or property by giving notice of such election to Lessee, and/or (iii) treat
Lessee as a holdover tenant at will until such removal and restoration is completed.
Section 16. FH1;ER OPTICS.
Lessee shall telephone Lessor during normal business hours (7:00 a.m. to 9:00 p.m.,
Central Time, Monday through Fridays, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day
number for emergency calls) to determine if fiber optic cable is buried on the Premises. Lessor may
change the telephone number and hours of operation by giving Lessee notice of the change. If cable is
buried on the Premises, Lessee will telephone the telecommunications compaoy(ies), arrange for a cable
locator, and make arrangements for relocation or other protection of the cable. Norivithstanding
compliance by Lessee with this Section 16, the release and indemnity provisions of Section 12 above
shall apply fully to any damage or destruction of any telecommunications system.
Section 17. NOTICES.
Any notice, consent or approval to be given under this Lease shall be in writing, and
personally sewed, sent by facsimile to (402) 501-0340, by email or by reputable courier service, or sent
by certified mail, postage prepaid, return receipt requested, to Lessor at: Union Pacific Railroad
Company, Attn: General Manager -Real Estate, Real Estate Department, 1400 Douglas Street, Stop 1690,
Omaha, Nebraska 68179; and to Lessee at the above address, or such other address as a pasty may
designate in notice given to the other party. Mailed notices shall be deemed served five (5) days after
deposit in the U.S. Mail. Notices which are faxed, emailed, are personally served or sent by courier
service shall be deemed served upon receipt.
Section 18. ASSIGNMENT.
A. Lessee shall not sublease the Premises, in whole or in pact, a' assign, encumber or
transfer (by operation of law or otherwise) this Lease, without the prior consent of Lessor, which consent
may be denied at Lessor's sole and absolute discretion. Any purported transfer or assignment without
Lessor's consent shall be void and shall be a default by Lessee.
B. Subject to this Section 18, this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
Section 19. CONDEMNATION.
If, as reasonably determined by Lessor, the Premises cannot be used by Lessee because of
a condemnation or sale in lieu of condemnation, then this Lease shall automatically terminate. Lessor
shall be entitled to the entire award or proceeds for any total or partial condemnation or sale in lieu
thereof, including, without limitation, any award or proceeds for the value of the leasehold estate created
by this Lease. Notwithstanding the foregoing, Lessee shall have the right to pursue recovery from the
condemning authority of such compensation as may be separately awarded to Lessee for Lessee's
relocation expenses, the taking of Lessee's personal property and fixtures, and the interruption of or
damage to Lessee's business.
Section 20. ATTORNEY'S FEES.
If either pasty retains an attorney to enforce this Lease (including, without limitation, the
indemnity provisions of this Lease), the prevailing pasty is entitled to recover reasonable attorney's fees.
Section 21. RIGHTS AND OBLIGATIONS OF LESSOR.
If any of the rights and obligations of Lessor under this Lease are substantially and negatively
affected by any changes iu the laws applicable to this Lease, whether statutory, regulatory or under
federal or state judicial precedent, then Lessor may require Lessee to enter into an amendment to this
Lease to eliminate the negative effect on Lessor's rights and obligations to the extent reasonably possible.
Section 22. ENTIRE AGREEMENT.
This Lease is the entire agreement between the parties, as to the subject matter hereof, and
supersedes all other oral or written agreements between the parties pertaining to this transaction,
including, without limitation, Lease Audit No. and any other lease under which all or any
portion of the Premises was leased to Lessee. Norivithstandingthe prior sentence, Lessee shall retain auy
and all obligations and liabilities which may have accrued under any other such agreements prior to the
commencement of the teem of this Lease. This Lease may be amended only by a written instrument
signed by Lessor and Lessee,
Approved: Insurance Gronp
Created: 2110/06
Last Modlfled: 7/2/07
EXHIBIT C
Uniml Pacific Railroad
Couh•act Insuraace Requirements
Lease of Land
Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease (except as
otherwise provided in this Lease) the following insurance coverage:
A. C_ ommercial General Liability insurance. Commercial general liability (CGL) with a limit of
not less than $1,000,000 each occurrence and an aggregate limit of not less than $2,000,000. CGL
insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing
equivalent coverage). The policy must also contain the following endorsement, which must be stated on
the certificate of insurance: Contractual Liability Raih~oads ISO form CG 24 17 l0 O1 (or a substitute
Fonn providing equivalent coverage) showing "Premises" as the Designated Job Site.
B. Business Automobile Coverat=_e insurance. Business auto coverage written on ISO form CA 00
Ol 10 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not
less $2,000,000 for each accident, and coverage must include liability arising out of any auto (including
owned, hired, and non-owned autos).
The policy must contain the following endorsements, which must be stated on the certificate of insurance:
• Coverage For Certain Operations In Connection With Railroads ISO fam CA 20 70 10 O1 (or a
substitute form providing equivalent coverage) showing "Premises" as the Designated Job Site.
• Motor Carrier Act Endorsement -Hazardous materials clean up (MCS-90) if required by law.
C. Workers Comnensation and Employers Liability insurance. Coverage must include but not be
limited to:
Contractor's statutolry liability under the workers' compensation laws of the state(s) affected by this
Agreement.
Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit
$500,000 each employee.
If Lessee is self-insured, evidence of state approval and excess workers compensation coverage must be
provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers'
Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
In any and all Claims against Lessor by any employee of Lessee, Lessee's indemnification obligation
under this section shall not be limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable under any workers compensation acts, disability benefits acts or other
emalovee benefits acts.
D. Pollution Liability insurance. If permitted use as defined in this Lease includes any generation,
handling, enrichment, storage, manufacture, or production of hazardous materials pollution liability
insurance is required. Pollution liability coverage must be written on ISO fm•m Pollution Liability
Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability
coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000.
If hazardous materials are disposed of from the Premises, Lessee must furnish to Lessor evidence of
pollution legal liability insurance maintained by the disposal site operator for losses arising from the
insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and
an annual aggregate of $2,000,000.
>J. Umbrella or 1/xcess insurance. If Lessee utilizes umbrella or excess policies, these policies must
"follow form" and afford no less coverage than the primacy policy.
Other Requirements
F. All policy(ies) required above must include Lessor as "Additional Insured" using ISO Additional
Insured Endorsement CG 20 I1 (or a substitute form providing equivalent coverage), The coverage
provided to Lessor as additional insured shall, to the extent provided under ISO Additional Insured
Endorsement CG 20 11, provide coverage for Lessor's negligence whether sole or partial, active or
passive, and shall not be limited by Lessee's liability under the indemnity provisions of this Lease.
G. Lessee waives all rights against Lessor and its agents, officers, directors and employees for
recovery of damages to the extent these damages are covered by the workers compensation and
employers' liability or commercial umbrella or excess liability insurance obtained by Lessee required by
this agreement.
H. Punitive damages exclusion, if any, must be deleted (aud the deletion indicated on the certificate
of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that
may arise under this Lease, or (b) all punitive damages are prohibited by all states in which the Premises
are located.
I. Prior to execution of this Lease, Lessee shall furnish Lessor with a certificate(s) of insurance,
executed by a duly authorized representative of each insurer, showing compliance with the insurance
requirements in this Lease.
J. All insurance policies must be written by a reputable insurance company acceptable to Lessor or
with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business
in the state where the Premises are located.
K. The Fact that insurance is obtained by Lessee, a• by Lessor on behalf of Lessee, will not be
deemed to release or dimiuislr the liability of Lessee, including, without limitation, liability under the
indemnity provisions of this Lease. Damages recoverable by Lessor from Lessee or any third party will
not be limited by the amount of the required insurance coverage.
NOTE: BEFORE YOU BEGIN ANY WORK, SEE
AGREEMENT FOR FIBER OPTIC PROVISION.
EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY
SCHERTZ,TX
M.P. -Subdivision
Lease to SCHERTZ, CITY OF
SCALE: 1" = 200'
REAL ESTATE DEPARTMENT
OMAHA, NE Date: April 14, 201 I
Folder: 02572-73
'LEGEND"
Lease Area Shown ..................................................................... Dot Screen
(RR)R/W Outlined ....................................................................
TOP OF FILE -AGREEMENT SHEET
ROUTIAG: FOLDER 3 a- 3
- TO FOR EXECUTION
L TO OPERATION SUPPORT FOR DISTRiBU170N
(CHECK ATT'D -)
- TO OPERAT]ON SUPPORT FOR
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