Colton City Council
February 6, 2024

improvements. The Indefinite Term La nd Lease Agreement authorizes the City to access the BNSF property and construct the necessary improvements. The lease will be no cost to the City but the City will be responsible for maintaining the access road. Currently, the City is responsible for maintaining the dirt access road.

FISCAL IMPACTS

There is no fiscal impact for the execution of lease agreement with BNSF.

ALTERNATIVES

1. City Council may provide alternate direction to staff.

ATTACHMENT

1. Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23

2. Exhibit B - Plan for Dog Park Access Road
11 Packet Pg. 677

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 1 -

INDEFINITE TERM LEASE
LAND

THIS INDEFINITE TERM LEASE FOR LAND ("Lease") is made and entered into to be effective as of the ______ day of ________________, 2024 (“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Lessor") and CITY OF COLTON, a California municipal corporation ("Lessee"). Lessor and Lessee are sometimes individually referred to herein as a “party” and collectively as the “parties.”

RECITALS

A. Lessor is in the railroad transportation business and owns or controls a system of rail tracks ("Lessor's Track(s)") and various real properties associated therewith, including certain Premises as described below, which Lessee desires to lease from Lessor.

B. Lessor has agreed to lease to Lessee the Premises, subject to the terms, conditions and limitations provided herein.

AGREEMENTS

NOW THEREFORE, in consideration of the mutual covenants set forth herein, Lessor and Lessee hereby agree as follows:

Section 1. Premises and Term.

A. Lessor leases to Lessee and Lessee leases from Lessor, subject to the covenants, agreements, terms, provisions and conditions of this Lease, that certain parcel of real property, situated in the City of Colton, County of San Bernardino, State of California, along Line Segment 7602, Mile Post 4.10 and constituting the shaded area shown upon Print No. 85463, dated July 29, 2022, a copy of which is attached hereto as Exhibit "A" and made a part hereof ("Premises").

B. Lessee leases the Premises from Lessor b eginning, 2023 ("Commencement Date"), and shall continue in effect until terminated by either party as provided in this Section 1(B). This Lease may be terminated by either party, at any time, without cause, or for convenience, by serving upon the other party written notice of termination at leas t thirty (30) days in advance. Upon the expiration of the time specified in such notice, this Lease and all rights of Lessee shall absolutely cease.

C. If applicable, u pon termination, either (i) Lessor may retai n from prepaid rent, as an additional charge for use of the Premises, a sum equal to three (3) months Base Rent (as defined below), and any unearned portion of the annual Base Rent, in excess of such retainage, paid in advance shall be refunded to Lessee or (ii) if Lessor has not been paid sufficient Base Rent to satisfy the above retainage, then Lessee shall pay Lessor a sufficient sum so that, together with sums already held by Lessor, Lessor shall hold a sum equal to three (3) months Base Rent which Lessor shall retain as an additional charge for use of the Premises, and such additional sum shall be paid by Lessee within thirty (30) days of termination of the Lease.

D. Each consecutive twelve-month period this Lease is in effect, beginning with the Effe ctive Date of this Lease, is herein called a "Lease Year."

E. Lessee acknowledges that it is assuming all risks associated with Lessor's right to terminate this Lease at any time as provided above, and (i) Lessor gives no assurance that Lessor will delay termination of this Lease for any length of time whatsoever, (ii) Lessee may expend money and effort during the term of this Lease which may not ultimately be of any benefit to Lessee if Lessor terminates this Lease, but nonetheless, Lessor

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 2 -

shall have the right to terminate the Lease if Lessor determines in its sole and absolute discretion that Lessor desires to terminate, and (iii) in no event shall Lessor be deemed to have any legal obligations to continue to lease the Premises for any length of time.

Section 2. Use and Compliance.

A. Lessee may use the Premises for the sole and exclusive purpose of roadway access and for no other purpose without the prior written consent of Lessor. Lessee shall respond to Lessor's reasonable inquiries regarding the use or condition of the Premises.

B. Lessee shall comply with all Laws applicable to Lessee, the Premises, this Lease and Lessee’s activities and obligations hereunder, and shall have the sole responsibility for costs, fees, or expenses associated with such compliance. As used herein, the term “Laws” shall mean any and all statutes, laws, ordinances, codes, rules or regulations or any order, decision, injunction, judgment, award or decree of any public body or authority having jurisdiction over Lessee, the Premises, this Lease, and/or Lessee’s obligations under this Lease, and shall include all Environmental Laws (as defined in Section 4(A)).

C. If any governmental license or permit is required or desirable for the proper and lawful conduct of Lessee's business or other activity in or on the Premises, or if the failure to secure such a license or permit might in any way affect Lessor, then Lessee, at Lessee's expense, shall procure and thereafter maintain such license or permit and submit the same to inspection by Lessor. Lessee, at Lessee's expense, shall at all times comply with the requirements of each such license or permit.

Section 3. Rent.

A. Lessee shall pay as rental for the Premises, in advance, an amount equal to Zero Dollars ($0.00) annually during the term of the Lease, ("Base Rent"). If applicable, Base Rent shall increase 3% annually during the te rm of the Lease. Lessor reserves the right to change rental rates as conditions warrant. Billing or acceptance by Lessor of any rental shall not imply a definite term or otherwise restrict either party from canceling this Lease as provided herein. Either party hereto may assign any receivables due it under this Lease; provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this Lease. All rent and other monetary payments under this Lease from Lessee to Lessor shall be delivered solely to the following address:

BNSF Railway Company
PO Box 676160
Dallas TX 75267-6160

Lessor shall have the right to designate at any time and from time to time a different address for delivery of such payments by written notice to Lessee pursuant to the notice provisions of Section 36 below. No rent or other payment sent to any other address shall be deemed received by Lessor unless and until Lessor has actually posted such payment as received on the account of Lessee, and Lessee shall be subject to all default provisions hereunder, late fees and other consequences as a result thereof in the same manner as if Lessee had failed or delayed in making any payment.

B. If applicable, Lessee acknowledges that Lessor u tilizes the rental collection system involving direct deposit of monies received through a financial institution selected by Lessor, which precludes Lessor's ability to exercise rejection of a rental payment before Lessee's check is cashed. Lessee agrees that as a condition of Lessor granting this Lease Lessee hereby waives any rights it may have under law to force continuation of this Lease due to Lessor having accepted and cashed Lessee's rental remittance. Lessor shall have the option of rejecting Lessee's payment by refunding to Lessee the rental amount paid by Lessee, adjusted as set forth in this Lease, and enforcing the termination provisions of this Lease.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 3 -

C. Lessee shall pay the Base Rent and all additional amounts due pursuant to Section 9 as a nd when the same become due and payable, without demand, set -off, or deduction. If applicable, Lessee's obligation to pay Base Rent and all amounts due under this Lease is an independent covenant and no act or circumstance, regardless of whether such act or circumstance constitutes a breach under this Lease by Lessor, shall release Lessee of its obligation to pay Base Rent and all amounts due as required by this Lease.

D. If applicable, if any Base Rent or any payment under Section 9 or any other payment due by Lessee hereunder is not paid within five (5) days after the date the same is due, Lessor may assess Lessee a late fee ("Late Fee") in an amount equal to 5% of the amount which was not paid when due to compensate Lessor for Lessor's administrative b urden in connection with such late payment. In addition to said Late Fee, Lessee shall pay interest on the unpaid sum from the due date thereof to the date of payment by Lessee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one -half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less.

Section 4. Environmental.

A. Lessee shall strictly comply with all federal, state and local environmental laws and regulations in its occupation and use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Clean Air Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, and CERCLA (collectively referred to as the “Environmental Laws”). Lessee shall not maintain any treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws, on the Premises. Lessee shall not re lease or suffer the release of oil or hazardous substances, as defined by Environmental Laws, on or about the Premises.

B. Lessee shall give Lessor immediate notice to Lessor’s Resource Operations Center at (800) 832- 5452 of any release of hazardous substances on or from the Premises and to Lessor's Manager Environmental Leases at (785) 435 -2386 for any violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Lessee's u se of the Premises. Lessee shall use its best efforts to promptly respond to any release on or from the Premises. Lessee also shall give Lessor's Manager Environmental Leases immediate notice of all measures undertaken on behalf of Lessee to investigate, remediate, respond to or otherwise cure such release or violation and shall provide to Lessor's Manager Environmental Leases copies of all reports and/or data regarding any investigations or remediations of the Premises.

C. In the event that Lessor has notice from Lessee or otherwise of a release or violation of Environmental Laws on the Premises which occurred or may occur during the term of this Lease, Lessor may require Lessee, at Lessee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Lessor's right-of-way.

D. Lessee shall promptly report to Lessor in writing any conditions or activities upon the Premises which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Lessee's reporting to Lessor shall not relieve Lessee of any obligation whatsoever imposed on it by this Lease.

Lessee shall promptly respond to Lessor’s request for information regarding said conditions or activities.

E. Hazardous Materials are not permitted on the Premises except as otherwise described herein.

Lessee expects to use on the Premises the following Hazardous Materials: None______________, and to store on the Premises the following Hazardous Materials (as defined in Section 4(F) below): _____None__________;

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 4 -

provided, however, that Lessee may only use and store the listed Hazardous Materials in such amounts as are necessary and customary in Lessee's industry for the permitted uses hereunder ("Permitted Substances"). All such Permitted Substances shall be placed, used, and stored in strict accordance with all Environmental Laws.

Use or storage on the Premises of any Hazardous Materials not disclosed in this Section 4(E) is a breach of this Lease.

F. For purposes of this Section 4, “Hazardous Materials” means all materials, chemicals, compounds, or substances (including without limitation asbestos, petroleum products, and lead -based paint) identified as hazardous or toxic under Environmental Laws.

G. Lessor may, at its option prior to termination of this Lease, require Lessee to conduct an environmental audit of the Premises through an environmental consulting engineer acceptable to Lessor, at Lessee's sole cost and expense, to determine if any noncompliance or environmental damage to the Premises has occurred during Lessee's occupancy thereof. The audit shall be conducted to Lessor's satisfaction and a copy of the audit report shall promptly be provided to Lessor for its review. Lessee shall pay all expenses for any remedial action that may be required as a result of said audit to correct any noncompliance or environmental damage, and all necessary work shall be performed by Lessee prior to termination of this Lease.

Section 5. Access to Adjacent Property by Lessee.

If access to and from the Premises can be accomplished only through use of Lessor's property adjacent to the Premises, such use is granted for ingress and egress only and on a non-exclusive basis, subject to such restrictions and conditions as Lessor may impose by notice to Lessee. Lessor shall have the right to designate the location or route to be used. Lessee understands and agrees that all of the terms and obligations under this Lease applicable to Lessee shall also be applica ble to Lessee with respect to Lessee's use of any property adjacent to the Premises which Lessee may use just as though the property has been specifically described as part of the Premises, including, without limitation, the indemnity provisions of Section 13. Notwithstanding anything to the contrary herein, this Section 5 shall not grant Lessee any right to cross any of Lessor's Tracks.

Any such crossing rights may only be granted by a separate written agreement between Lessor and Lessee.

Section 6. Access to Premises by Lessor.

A. Lessor and its contractors, agents and other designated third parties may at all reasonable times and at any time in case of emergency, in such manner as to not unreasonably interfere with Lessee's use of the Premises as allowed hereunder, (i) enter the Premises for inspection of the Premises or to protect the Lessor’s interest in the Premises or to protect from damage any property adjoining the Premises, (ii) enter the Premises to construct, maintain, and operate trackage, fences, pipelines, communication facilities, fiber optic lines, wireless towers, telephone, power or other transmission lines, or appurtenances or facilities of like character, upon, over, across, or beneath the Premises, without payment of any sum for any damage, including damage to growing crops, (iii) take all required materials and equipment onto the Premises, and perform all required work therein, for the purpose of making alterations, repairs, or additions to the Premises as Lessor may elect if Lessee defaults in its obligation to do so, (iv) enter the Premises to show the Premises to holders of encumbrances on the interest of Lessor in the Premises, or to prospective purchasers or mortgagees of the Premises, and all such entries and activities shall be without any rebate of rent to Lessee for any loss of occupancy of the Premises, or damage, injury or inconvenience thereby caused.

B. For purposes stated in this Section 6, Lessor will at all times have keys with which to unlock all of the doors and gates on the Premises, and Lessee will not change or alter any lock thereon without Lessor's permission.

C. In an emergency, Lessor will be entitled to use any and all means that Lessor may deem proper to open doors, gates, and other entrances to obtain entry to the Premises. Any entry to the Premises by Lessor

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 5 -

as described in this Section 6 shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or any eviction of Lessee from the Premises, and any damages caused on account thereof will be paid by Lessee.

Section 7. Warranties.

LESSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LESSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. This Lease is made subject to all outstanding rights or interests of others. If the Premises are subsequently found to be subject to prior claim, this Lease shall terminate immediately on notice to that effect from Lessor. Lessee accepts this Lease subject to that possibility and its effect on Lessee’s rights and ownership of the Lessee Improvements. In case of eviction of Lessee by anyone other than Lessor, or anyone owning or claiming title to or any interest in the Premises, Lessor shall not be liable to Lessee for damage of any kind (including any loss of ownership right to Lessee's Improvements) or to refund any rent paid hereunder, except to return the unearned portion of any rent paid in advance.

Section 8. Premises Condition; Lessee Improvements.

A. Lessee represents that the Premises, the title thereto, any subsurface conditions thereof, and the present uses thereof have been examined by the Lessee. Lessee accepts the same in the condition in which they now are, without representation or warranty, expresse d or implied, in fact or by law, by the Lessor, and without recourse to the Lessor as to the title thereto, the nature, condition or usability thereof, or the uses to which the Premises may be put. By taking possession or commencing use of the Premises, L essee (i) acknowledges that it is relying on its own inspections of the Premises and not on any representations from Lessor regarding the Premises; (ii) establishes conclusively that the Premises are at such time in satisfactory condition and in conformity with this Lease and all zoning or other governmental requirements in all respects; and (iii) accepts the Premises in its condition as of the Commencement Date on an “AS IS,” "WHERE IS, " and "WITH ALL FAULTS" basis, subject to all faults and infirmities, whether now or hereafter existing. Nothing contained in this Section 8 affects the commencement of the term of the Lease or the obligation of Lessee to pay rent as provided above. Lessee represents and warrants to Lessor as follows: (i) Lessee does not i ntend to, and will not, use the Premises for any purpose other than as set forth in Section 2; (ii) Lessee has previously disclosed in writing to Lessor all special requirements (but Lessor shall have no responsibility relative to any such special requirement), if any, which Lessee may have in connection with this intended use; and (iii) Lessee has undertaken and has reasonably and diligently completed all appropriate investigations regarding the suitability of the Premises for Lessee’s intended use. Lesse e shall comply with any covenants, conditions or restrictions now or hereafter affecting the Premises, and acknowledges that Lessor may place any covenants, conditions or restrictions of record affecting the Premises prior to or during the term of the Leas e. In such event, this Lease will be subject and subordinate to all of the same without further action by either party, including, without limitation, the execution of any further instruments. Lessee acknowledges that Lessor has given material concessions for the acknowledgements and provisions contained in this Section 8, and that Lessor is relying on these acknowledgments and agreements and would not have entered into this Lease without such acknowledgements and agreements by Lessee.

B. If improvements are necessary for Lessee's use of the Premises, Lessee, at Lessee's sole cost and expense, shall, on or after the Commencement Date, construct and install such improvements to the Premises which are necessary for Lessee's use of the Premises and are a cceptable to Lessor in Lessor's sole discretion ("Lessee Improvements"). The construction and installation of any Lessee Improvements shall be subject to Lessor's prior written approval of plans and specifications for such Lessee Improvements to be prepared by Lessee and submitted to Lessor for approval as set forth below, such approval to be in Lessor's sole and absolute discretion. Within forty -five (45) days after the Commencement Date, Lessee shall submit detailed plans and spec ifications, and the ide ntity of Lessee's proposed general contractor for the Lessee Improvements for Lessor's review and approval. Lessor shall either approve or disapprove the plans and

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 6 -

specifications and general contractor (in its sole and absolute discretion) by written noti ce delivered to Lessee within sixty (60) days after receipt of the same from Lessee. In the event of any disapproval, Lessor shall specify the reasons for such non-approval. If Lessor fails to deliver notice to Lessee of Lessor's approval or disapproval of the plans, specifications, and proposed general contractor within the time period discussed above, Lessee's plans, specifications and proposed contractor shall be deemed disapproved. If Lessor specifies objections to the plans and specifications or gen eral contractor as herein provided and Lessor and Lessee are unable to resolve the objections by mutual agreement within a period of thirty (30) days from the date of delivery of written notice thereof, Lessee, as its sole remedy, to be exercised not later than ten (10) days after the expiration of said thirty (30) days period, may terminate this Lease by written notice to Lessor. Upon approval of the plans and specifications by Lessor, Lessor and Lessee shall sign the same, and they shall be deemed a part hereof. All Lessee Improvements shall be constructed and installed in accordance with the terms and conditions of Exhibit "B" attached to the Lease and all applicable terms and conditions of the Lease regarding alterations and improvements. Lessee shall not construct any other alteration or improvement to the Premises without Lessor's prior written consent. The Lessee Improvements constructed pursuant to the above provisions shall be owned by Lessee during the term of the Lease and removed from the Premises or surrendered to the Lessor pursuant to Section 20 below upon termination of this Lease.

C. If applicable, Lessee agrees to reimburse Lessor for all costs and expenses incurred by Lessor in connection with Lessee's use of the Premises, including bu t not limited to the furnishing of Lessor's flaggers and any vehicle rental costs incurred. Lessee shall bear the cost of flagger services and other safety measures provided by Lessor, when deemed necessary by Lessor's representative. Flagging costs shall include, but not be limited to the following: pay for at least an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining agreements and rate changes authorized by appropriate Federa l authorities may increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will be used to calculate the flagging costs. To arrange flagger services, contact BNSF’s Scheduling Agent at [email protected] or (816) 556-3624 at least fifteen (15) days in advance of entry and BEFORE YOU DIG, CALL (800) 533-2891 (option 7).

Section 9. Taxes and Utilities.

A. In addition to Base Rent, Lessee shall pay all taxes, utilities, and other charges of every kind and character, whether foreseen or unforeseen, ordinary or extraordinary, which are attributable to the term of this Lease and may become due or levied against the Premises, against Lessee, against the business conducted on the Premises or against the Lessee Improvements placed thereon during the term hereof, even though such taxes, utilities or other charges may not become due and payable until after termination of this Lease provided; however, that Lessee shall only be responsible for the payment of property taxes levied against the Premises to the extent such taxes are separately assessed by the applicable taxing authority as a result of this Lease. Lessee agrees that Lessor shall not be required to furnish to Lessee any utility or other services. If this Lease is a transfer of an existing lease, Lessee must make arrangements with the present lessee for payment of any delinquent and current taxes, utilities, and other charges prior to taking possession. If such arrangements are not made, Lessee agrees to pay all such taxes, utilities, and other charges. If Lessor should make any such payments, Lessee shall promptly upon demand reimburse Lessor for all such sums.

B. Should the Premises be subject to special assessment for public improvements in the amount of Five Hundred Dollars ($500.00) or less during any Lease Year, Lessee shall promptly reimburse Lessor the amount in full. Should the assessment exceed Five Hundred Dollars ($500.00) during any Lease Year then such excess shall be paid by Lessor, but the Base Rent herein shall be increased by an amount equal to twelve percent (12%) of such excess payable for each Lease Year such amounts are payable.

Section 10. Track Clearance.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 7 -

A. Lessee shall not place, permit to be placed, or allow to remain, any permanent or temporary material, structure, pole, or other obstruction within (i) 8½ feet laterally from the centerline of any of Lessor's Tracks on or about the Premises (nine and one-half (9-1/2) feet on either side of the centerline of any of Lessor's Tracks which are curved) or (ii) 24 feet vertically from the top of the rail of any of Lessor's Tracks on or about the Premises (“Minimal Clearances”); provid ed that if any law, statute, regulation, ordinance, order, covenant or restriction ("Legal Requirement") requires greater clearances than those provided for in this Section 10, then Lessee shall strictly comply with such Legal Requirement. However, vertical or lateral clearances which are less than the Minimal Clearances but are in compliance with Legal Requirements will not be a violation of this Section 10, so long as Lessee strictly complies with the terms of any such Legal Requirement and posts a sign on the Premises clearly noting the existence of such reduced clearance. Any such sign shall be painted with black and white reflective paint.

B. Lessor's operation over any Lessor's Track on or about the Premises with knowledge of an unauthorized reduced clearance will not be a waiver of the covenants of Lessee contained in this Section 10 or of Lessor's right to recover for and be indemnified and defended against such damages to property, and injury to or death of persons, that may result therefrom.

C. Lessee shall not place or allow to be placed any freight car within 250 feet of either side of any at - grade crossings on Lessor's Tracks.

Section 11. Repairs; Maintenance.

A. Lessee shall, at its sole expense, take good care of the Premises (includi ng all Lessee Improvements) and shall not do or suffer any waste with respect thereto and Lessee shall promptly make all necessary or desirable Repairs to the Premises. The term "Repairs" means all reasonable repair and maintenance necessary to keep the P remises (including all Lessee Improvements) in good condition and includes, without limitation, replacements, restoration and renewals when necessary. Lessee shall keep and maintain any paved areas, sidewalks, curbs, landscaping, and lawn areas in a clean and orderly condition, and free of accumulation of dirt and rubbish.

B. Lessor shall not have any liability or obligation to furnish or pay for any services or facilities of whatsoever nature or to make any Repairs or alterations of whatsoever nature in or to the Premises, including but not limited to structural repairs, or to maintain the Premises in any manner. Lessee acknowledges that Lessor shall have no responsibility for management of the Premises.

Section 12. Safety; Dangerous and Hazardous Conditions.

A. It is understood by Lessee that the Premises may be in dangerous proximity to railroad tracks, including Lessor's Tracks, and that persons and property, whether real or personal, on the Premises will be in danger of injury, death or destruc tion incident to the operation of the railroad, including, without limitation, the risk of derailment, fire, or inadequate clearance (including sight clearance or vision obstruction problems at grade crossings on or adjacent to the Premises), and Lessee ac cepts this Lease subject to such dangers, and acknowledges that its indemnification obligations hereunder extend to and include all such risks.

B. Prior to entering the Premises, Lessee shall and shall cause its contractor(s) to comply with all of Lessor’s applicable safety rules and regulations. Lessee must ensure that each of its employees, contractors, agents or invitees entering upon the Premises completes the safety orientation program at the website "www.BNSFcontractor.com" (the " Safety Orientation ") within one (1) year prior to entering upon the Premises. Additionally, Lessee must ensure that each and every employee of Lessee, its contractors, agents and invitees possess a card certifying completion of the Safety Orientation prior to entering upon the Premises. Lessee must renew the Safety Orientation annually.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 8 -

Section 13. Indemnity.

A. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE SHALL RELEASE, INDEMNIFY,

DEFEND AND HOLD HARMLESS LESSOR AND LESSOR'S AFFILIATED COMPANIES, PARTNERS,

SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND

ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAG ES, LOSSES, LIENS, CAUSES OF

ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT

COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND

GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLE CTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):

(i) THIS LEASE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS;

(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE;

(iii) LESSEE'S OCCUPATION AND USE OF THE PREMISES;

(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN PART, BY LESSEE; OR

(v) ANY ACT OR OMISSION OF LESSEE OR LESSEE'S OFFICERS, AGENTS, INVITEES,

EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY

OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,

EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LESSEE'S

OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT

PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.

B. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 13(A), LESSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS,

REGARDLESS OF WHETH ER SUCH CLAIMS ARE BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN “OWNER”, “OPERATOR”, “ARRANGER”, OR “TRANSPORTER”

WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LESSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LESSEE FURTHER

AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LEASE SHALL NOT IN ANY

WAY SUBJECT LESSOR TO CLAIMS THAT LESSOR IS OTHER THAN A COMMON CARRIER FOR

PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LESSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.

C. TO THE FULLEST EXTENT PERMITTED BY LAW, LESSEE FURTHER AGREES,

REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO

INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY

LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS’ LIABILITY ACT (“FELA”) WHENEVER EMPLOYEES OF LESSEE OR ANY OF ITS

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Packet Pg. 685
Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 9 -

AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA

CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS

OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE

LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEA LTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.

D. Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Lease for which Lessee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Lessee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigato rs' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments.

Section 14. Equal Protection.

It is agreed that the provisions of Sections 10 and 12, are for the equal protection of other railroad companies, including, without limitation, the National Railroad Passenger Corporation (Amtrak), permitted to use Lessor's property.

Section 15. Assignment and Sublease.

A. Lessee shall not (i) assign or otherwise transfer this Lease or any interest herein, or (ii) sublet the Premises or any part thereof, without, in each instance, obtaining the prior written consent of Lessor, which consent may be withheld in Lessor's sole and absolute discretion. For purposes of this Section 15, in the event that there are aggregate transfers or other changes in the ownership interests of Lessee resulting in a change of more than 20% of the ownership interests as held on the date hereof, a transfer shall be deemed to have occurred hereunder. Any person or legal representative of Lessee, to whom Lessee's interest under this Lease passes by operation of law, or otherwise, will be bound by the provisions of this Lease.

B. Any assignment, lease, sublease or transfer made pursuant to Section 15(A) may be made only if, and shall not be effective until, the assignee cures all outstanding defaults of Lessee hereunder and executes, acknowledges and delivers to Lessor an agreement, in form and substance satisfactory to Lessor, whereby the assignee assumes the obligations and performance of this Lease and agrees to be personally bound by and upon all of the covenants, agreements, terms, provisions and conditions hereof on the part of Lessee to be performed or observed. Lessee covenants that, notwithstanding any assignment or transfer, whether or not in violation of the provisions of this Lease, and notwithstanding the acceptance of rent by Lessor from an assignee or transferee or any other party, L essee will remain fully and primarily liable along with the assignee for the payment of the rent due and to become due under this Lease and for the performance of all of the covenants, agreements, terms, provisions, and conditions of this Lease on the part of Lessee to be performed or observed.

Section 16. Liens.

Lessee shall promptly pay, discharge and release of record any and all liens, charges and orders arising out of any construction, alterations or repairs, suffered or permitted to be done by Le ssee on the Premises.

Lessor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by law to prevent the attachment of any such liens to the Premises; provided, however, that failure of Lessor to take any such action shall not relieve Lessee of any obligation or liability under this Section 16 or any other Section of this Lease.

Section 17. Insurance.

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Packet Pg. 686
Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 10 -

Lessee shall, at its sole cost and expense, procure and maintain during the life of this Lease the following insurance coverage:

A. All risks property insurance covering all of Railroad’s property including property in the care, custody, or control of Lessee. Coverage shall include the following:
 Issued on a replacement cost basis.
 Shall provide that in respect of the interest of Railroad the insurance shall not be invalidated by any action or inaction of Lessee or any other person and shall insure the respective interests of Railroad as they appear, regardless of any breach or violation of any warranty, declaration or condition contained in such policies by Lessee or any other person.
 Include a standard loss payable endorsement naming Railroad as the loss payee as its interests may appear.
 Include a waiver of subrogation in favor of Railroad.

B. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $1,000,000 each occurrence and an aggregate limit of at least $ 2,000,000 but in no event less than the amount otherwise carried by Lessee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limited to, the following:
 Bodily Injury and Property Damage
 Personal Injury and Advertising Injury
 Fire legal liability
 Products and completed operations

This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance:
 The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property.  Waiver of subrogation in favor of and acceptable to Railroad.  Additional insured endorsement in favor of and acceptable to Railroad and Jones Lang LaSalle Brokerage, Inc.
 Separation of insureds.
 The policy shall be primary and non-contributing with respect to any insurance carried by Railroad.

It is agreed that the workers’ compensation and employers’ liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railroad employees.

No other endorsements limiting coverage may be included on the policy.

C. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following:
 Bodily injury and property damage
 Any and all vehicles owned, used or hired
This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
 Waiver of subrogation in favor of and acceptable to Railroad.  Additional insured endorsement in favor or and acceptable to Railroad.  Separation of insureds.

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Packet Pg. 687
Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 11 -

 The policy shall be primary and non-contributing with respect to any insurance carried by Railroad.

D. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
 Lessee’s statutory liability under the worker’s compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway.
 Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee.

This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
 Waiver of subrogation in favor of and acceptable to Railroad.

E. If construction is to be performed on the Premises by Lessee, Lessee or Lessee’s contractor shall procure Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following:
 Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)  Endorsed to include the Limited Seepage and Pollution Endorsement.  Endorsed to include Evacuation Expense Coverage Endorsement.  Endorsed to remove any exclusion for punitive damages.  No other endorsements restricting coverage may be added.  The original policy must be provided to the Railroad prior to performing any work or services under this Lease.

In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $_______-.

 I elect to participate in Licensor's Blanket Policy;

 I elect not to participate in Licensor's Blanket Policy.

Other Requirements:

All policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists.

Lessee agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.

In addition, its insurers, through the terms of the policy or through policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Lessee further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under Lessee's care, custody, or control.

Lessee is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self -insured retention or other financial responsibility for claims shall be covered directly by Lessee in lieu of insurance. Any and all Railroad liabilities that would other wise, in accordance with the provisions of this Lease, be covered by Lessee‘s insurance will be covered as if Lessee elected not to include a deductible, self-insured retention or other financial responsibility for claims.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 12 -

Prior to accessing the Premises, Lessee shall furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments.. The policy(ies) shall contain a provision that obl igates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished.

Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current Best’s Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the Premises is located.

Lessee represents that this Lease has been thoroughly reviewed by Lessee’s insurance agent(s)/broker(s), who have been instructed by Lessee to procure the insur ance coverage required by this Lease. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.

Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry.

If any portion of the operation is to be contracted by Lessee, Lessee shall require that the contractor shall provide and maintain i nsurance coverages as set forth herein, naming Railroad as an additional insured, and shall require that the contractor shall release, defend and indemnify Railroad to the same extent and under the same terms and conditions as Lessee is required to release, defend and indemnify Railroad herein.

Failure to provide evidence as required by this Section 17 shall entitle, but not require, Railroad to terminate this Lease immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Lessee's obligations hereunder.

The fact that insurance (including, without limitation, self -insurance) is obtained by Lessee shall not be deemed to release or diminish the liability of Lessee including, without limitation, liability under the indemnity provisions of this Lease. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage.

For purpos es of this Section 17, Railroad shall mean "Burlington Northern Santa Fe, LLC" , “BNSF Railway Company” and the subsidiaries, successors, assigns and affiliates of each.

Section 18. Water Rights and Use of Wells.

This Lease does not grant, convey or transfer any right to the use of water under any water right owned or claimed by the Lessor which may be appurtenant to the Premises. All right, title, and interest in and to such water is expressly reserved unto Lessor, and the right to use same or any part thereof may be obtained only by the prior written consent of the Lessor. Lessee shall not use, install or permit to be installed or used any wells on the Premises without the prior written consent of Lessor.

Section 19. Default.

A. An "Event of Default" by Lessee shall have occurred hereunder if any of the following shall occur:

(i) if Lessee violates any safety provision contained in this Lease;

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 13 -

(ii) if Lessee fails to pay rent or any other monetary payment hereunder when due or fails to perform any other obligations under this Lease and such failure continues thirty (30) days after written notice from Lessor to Lessee of Lessee's failure to make such payment or perform such obligations;

(iii) if a decree or order of a court having jurisdiction over the Premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Lessee or over all or a substantial part of the property of Lessee shall be entered; or if Lessee becomes insolvent or makes a transfer in fraud of creditors; or an interim receiver, trustee or other custodian of Lessee or of all or a substantial part of the property of Lessee shall be appointed or a warrant of attachment, execution, or similar process against any substantial part of the property of Lessee shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within thirty (30) days after entry, appointment or issuance;

(iv) if the Premises is abandoned or vacated by Lessee.

B. If an Event of Default occurs as provided above, Lessor may, at its option, (i) terminate this Lease by serving five (5) days notice in writing upon Lessee, in which event Lessee shall immediately surrender possession of the Premises to Lessor, without pre judice to any claim for arrears of rent or breach of covenant ; or (ii) proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by Lessee of the applicable provisions of this Lease or to recover damages for a breach thereof .

The foregoing rights and remedies given to Lessor are and shall be deemed to be cumulative and the exercise of any of them shall not be deemed to be an election excluding the exercise by Lessor at any time of a different or inconsistent remedy. If, on account of breach or default by Lessee of any of Lessee's obligations hereunder, it shall become necessary for the Lessor to employ an attorney to enforce or defend any of Lessor's rights or remedies hereunder, then, in any such event, any reasonable amount incurred by Lessor for attorneys' fees shall be paid by Lessee. Any waiver by Lessor of any default or defaults of this Lease or any delay of Lessor in enforcing any remedy set forth herein shall not constitute a waiver of the right t o pursue any remedy at a later date or terminate this Lease for any subsequent default or defaults, nor shall any such waiver in any way affect Lessor's ability to enforce any Section of this Lease. The remedies set forth in this Section 19 shall be in addition to, and not in limitation of, any other remedies that Lessor may have at law or in equity.

Section 20. Termination.

Upon the termination of Lessee's tenancy under this Lease in any manner herein provided, Lessee shall relinquish possession of the Premises and shall remove any Lessee Improvements, and restore the Premises to substantially the state and environmental condition in which it was prior to Lessee's use ("Restoration Obligations"). If Lessee shall fail within thirty (30) days after the date of such termination of its tenancy to complete the Restoration Obligations, then Lessor may, at its election (i) either remove the Lessee Improvements or otherwise restore the Premises, and in such event Lessee shall, within thirty (30) days after re ceipt of bill therefor, reimburse Lessor for cost incurred, (ii) upon written notice to Lessee may take and hold any Lessee Improvements and personal property as its sole property, without payment or obligation to Lessee therefor, or (iii) specifically enf orce Lessee's obligation to restore and/or pursue any remedy at law or in equity against Lessee for failure to so restore. , in the event Lessor has consented to Lessee Improvements remaining on the Premises following termination, Lessee shall, upon request by Lessor, provide a Bill of Sale in a form acceptable to Lessor conveying such Lessee Improvements to Lessor.

Section 21. Survival of Obligations.

Notwithstanding any expiration or other termination of this Lease, all of Lessee's indemnification obligations and any other obligations that have accrued but have not been satisfied under this Lease prior to the termination date shall survive such termination.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 14 -

Section 22. Holding Over.

If Lessee fails to surrender the Premises to Lessor upon the termination of this Lease, and Lessor does not consent in writing to Lessee's holding over, then such holding over will be deemed a month-to-month tenancy.

Lessee's holdover will be subject to all provisions of this Lease.

Section 23. Multiple Party Lessee.

In the event that Lessee consists of two or more parties, all the covenants and agreements of Lessee herein contained shall be the joint and several covenants and agreements of such parties.

Section 24. Damage or Destruction.

If at any time d uring the term of this Lease, the Premises are damaged or destroyed by fire or other casualty, then Lessor may terminate this Lease or repair and reconstruct the Premises to substantially the same condition in which the Premises existed immediately prior to the damage or destruction.

Section 25. Eminent Domain.

If any part of the Premises is taken by eminent domain, Lessor may either terminate this Lease or continue the Lease in effect. If Lessor elects to continue the Lease, rent will be reduced in proportion to the area of the Premises taken by eminent domain, and Lessor shall repair any d amage to the Premises resulting from the taking. All sums awarded or agreed upon between Lessor and the condemning authority for the taking of the interest of Lessor or Lessee, whether as damages or as compensation, will be the property of Lessor; without prejudice, however, to claims of Lessee against the condemning authority for moving costs and the unamortized cost of leasehold improvements paid for by Lessee taken by the condemning authority. If this Lease is terminated under this Section 25, rent will be payable up to the date that possession is taken by the condemning authority, and Lessor shall refund to Lessee any prepaid unaccrued rent less any sum then owing by Lessee to Lessor.

Section 26. Representations.

Neither Lessor nor Lessor's agent s have made any representations or promises with respect to the Premises except as herein expressly set forth.

Section 27. Signs.

No signs are to be placed on the Premises without the prior written approval of Lessor of the size, design, and content thereof.

Section 28. Consents and Approvals.

Whenever in this Lease Lessor's consent or approval is required, such consent or approval shall be in Lessor's sole and absolute discretion. If Lessor delays or refuses such consent or approval, such cons ent or approval shall be deemed denied, and Lessee in no event will be entitled to make, nor will Lessee make, any claim, and Lessee hereby waives any claim, for money damages (nor will Lessee claim any money damages by way of set-off counterclaim or defense) based upon any claim or assertion by Lessee that Lessor unreasonably withheld or unreasonably delayed its consent or approval.

Section 29. Captions.

The captions are inserted only as a matter of convenience and for reference, and in no way define, limit or describe the scope of this Lease nor the intent of any provision thereof.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 15 -

Section 30. Public Record.

It is understood and agreed that this Lease shall not be placed of public record.

Section 31. Governing Law.

All questions concerning the interpretation or application of provisions of this Lease shall be decided according to the laws of the State of California.

Section 32. No Waiver.

One or more waivers of any covenant, term, or condition of this Lease by Lessor shall not be construed as a waiver of a subsequent breach of the same covenant, term, or condition. The consent or approval by Lessor to or of any act by Lessee requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.

Section 33. Binding Effect.

All provisions contained in this Lease shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Lessor and Lessee to t he same extent as if each such successor and assign was named a party to this Lease.

Section 34. Force Majeure.

Except as may be elsewhere specifically provided in this Lease, if either party is delayed or hindered in, or prevented from the performance required under this Lease (except for payment of monetary obligations) by reason of earthquakes, landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God or other reason of the like nature not the fault of the party delayed in performance of its obligation, such party is excused from such performance for the period of delay. The period for the performance of any such act will then be extended for the period of such delay.

Section 35. Entire Agreement/Modification.

This Lease is the full and complete agreement between Lessor and Lessee with respect to all matters relating to lease of the Premises and supersedes any and all other agreements between the parties hereto relating to lease of the Premises. If th is Lease is a reissue of an existing agreement held by Lessee, it shall supersede and cancel the previous lease or leases, without prejudice to any liability accrued prior to cancellation.

This Lease may be modified only by a written agreement signed by Lessor and Lessee.

Section 36. Notices.

Any notice or documents required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given or shall be deemed to have been served and given if (i) delivered in person to the address hereinafter set forth for the party to whom the notice is given, (ii) placed in the United States mail, certified - return receipt requested, addressed to such party at the address hereinafter set forth, or (iii) deposited into the custody of any reputable overnight carrier for next day delivery, addressed to such party at the address hereinafter set forth. Any notice mailed as above shall be effective upon its deposit into the custody of the U. S.

Postal Service or such reputable overnight carrier, as applicable; all other notices shall be effective upon receipt.

All rent and other payments due to Lessor hereunder shall also be made as provided in Section 3(A) above, and delivery of such rental and other payments shall only be effective upon actual receipt by Lessor. From time to time either party may designate another address or telecopy number within the 48 contiguous states of the

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 16 -

United States of America for all purposes of this Lease by giving the other party not less than fifteen (15) days' advance written notice of such change of address in accordance with the provisions hereof.

If to Lessee:

City of Colton
650 N LaCadena Dr
Colton, CA 92324
Attn: Victor Ortiz

If to Lessor:

BNSF Railway Company
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2828
Attn: Director Real Estate

With a copy to:

Jones Lang LaSalle Global Services - RR, Inc.
2650 Lou Menk Drive, MOB-2
Fort Worth, Texas 76131-2828
Attn: Director Leases

Section 37. Counterparts.

This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original but which together shall constitute one and the same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Agreement may also be exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be deemed to be an original signature for all purposes.

Section 38. Relationship.

Notwithstanding anything else herein to the contrary, neither party hereto shall be construed or held, by virtue of this Lease, to be the agent, partner, joint venturer, or associate of the other party hereto, it being expressly understood and agreed that the relationship between the parties hereto is and at all times during the term of this Lease, shall remain that of Lessor and Lessee.

Section 39. Severability.

If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the term of this Lease, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.

Section 40. Transferability; Release of Lessor.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 17 -

Lessor shall have the right to transfer and assign, in whole or in part, all of its rights and obligations under this Lease and in the Premises, and upon such transfer, Lessor shall be released from any further obligations hereunder, and Lessee agrees to look solely to the successor in interest of Lessor for the performance of such obligations.

Section 41. Tax Waiver.

Lessee waives all rights pursuant to all Laws to protest appraised values or receive notice of reappraisal regarding the Premises (including Lessor's personalty), irrespective of whether Lessor contests the same.

Section 42. Attorneys' Fees.

If any action at law or in equity is necessary to enforce or interpret the terms of this Lease, the prevailing party shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements in addition to any relief to which it may be entitled.

Executed by the parties to be effective as of the Effective Date above.

LESSOR

BNSF Railway Company

By:

Name:

Title:

LESSEE

City of Colton

By:

Name:

Title:

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

EXHIBIT "A"

PREMISES

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company) 1 EXHIBIT "B"

WORK LETTER AGREEMENT

THIS WORK LETTER AGREEMENT (the "Agreement") supplements that certain Indefinite Term Lease for Land ("Lease") dated ___________, _____ by and between BNSF Railway Company , a Delaware corporation ("Lessor") and ______________________, a(n) __________________ ("Lessee"). In the event of any conflict between the provisions of this Agreement and the provisions of the Lease, the provisions of this Agreement shall control. Unless the context otherwise requires, capitalized terms not defined herein shall have the meaning assigned to such terms in the Lease.

In the event Lessee uses one or more general contractors or subcontractors ("Contractor(s)") for any improvements, alterations, build out, finish out, or other similar work on the Premises ("Work"), Lessee agrees to and accepts the following:

1. Prior to performing any Work, Lessee shall obtain Lessor's approval of each Contractor and any Work to be performed by such Contractor shall be performed pursuant to a written contract between Lessee and the Contractor ("Work Contract") approved in advance by Lessor.

2. Prior to commencing any Work, Lessee shall submit for Lessor's review and approval Lessee's plans, specifications and/or drawings for such Work (collectively, "Plans") in accordance with the procedure set forth in the Lease.

3. All Work must be performed at Lessee's sole cost and expense and in accordance with the Plans which have previously been approved by Lessor.

4. Lessee shall cause its Contractors to meet all insurance and indemnification requirements required of Lessee under the Lease and shall obtain indemnification and insurance provisions from its Contractors in favor of Lessor and in the same form as set forth in the Lease.

5. Prior to the commencement of the Work, all required local building, fire, health and other departments must approve all Plans requiring approval by local building codes. In addition, the Work shall be performed, installed and/or constructed in accordance with all applicable federal, state and local laws, codes, ordinances, rules and regulations, including without limitation, the Americans With Disabilities Act of 1990, 42 U.S.C.A. 12101 et seq.

6. Lessee shall be responsible for obtaining all municipal and other governmental licenses or permits for the Work with copies furnished to Lessor prior to commencement of any construction.

7. Lessee shall furnish Lessor, for Lessor's approval, a copy of its schedule of the Work. Les see shall perform the Work in accordance with the schedule approved by Lessor, and any changes in such schedule must be approved by Lessor in writing in advance.

8. Notwithstanding the status of the completion of the Work, Lessee's obligation for payment of Base Rent and other amounts due under the Lease shall commence on the Commencement Date provided in the Lease. Notwithstanding anything herein to the contrary, Lessor may, in Lessor's sole discretion, permit Lessee and Lessee's Contractors to enter the Premises prior to the Commencement Date in order to commence Work; provided, however, that Lessee agrees that such early entry or occupation of the Premises shall be governed by all of the terms and conditions of the Lease and this Agreement (including t he insurance and indemnity requirements therein), as such terms and conditions are more specifically set forth in the Lease and this Agreement.

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Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

BNSF - Indefinite Term Lease – Land Form 205; Rev. 07/01/14 - 2 -

9. During construction, Lessor reserves the right to inspect the Work at any time upon reasonable notice to Lessee.

10. Lessee's Contractors shall keep the Premises reasonably clean at all times during the performance of the Work.

11. All Work must be performed in a good and workmanlike manner, free from defects in materials and workmanship.

12. If any materialman's, mechanic's, laborer's or any other liens for any work claimed to have been undertaken for Lessee or at Lessee's request is filed against the Premises, Lessee shall indemnify, defend and hold harmless Lessor from any such liens filed during the term of the Lease and shall, at Lessee's own expense, cause all such liens to be removed within ten (10) days after written notice from Lessor to Lessee of the filing thereof.

13. Lessee must obtain Lessor's reasonable approval that the Work has been c ompleted in substantial accordance with the approved plans and specifications. Lessor shall receive copies of all Certificates of Occupancy and as-built drawings (electrical, mechanical, fire and architectural) prior to approving the Work.

14 All guarantees and warranties provided by Lessee's Contractors shall be issued to Lessee and, for Work which is or will at the termination of this Lease be Lessor's property, also to Lessor.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date first set forth above.

LESSOR:

BNSF Railway Company

By:

Name:

Title:

LESSEE:

By:

Name:

Title:

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Packet Pg. 697
Attachment: Exhibit A - Indefinite Term Lease_Colton CA_ BNSF_12.8.23 (4354 : Land Lease Agreement - BNSF Railway Company)

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Packet Pg. 698
Attachment: Exhibit B - Plan for Dog Park Access Road (4354 : Land Lease Agreement - BNSF Railway Company)

ITEM NO. 12

STAFF REPORT

DATE: FEBRUARY 6, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: APPROVE NOTICE OF COMPLETION (NOC) FOR THE FIRE STATION 212 RESTROOM/SHOWER ROOM REMODEL PROJECT
WITH PERFORMANCE CONSTRUCTION & PAINTING.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

It is recommended that the City Council authorize the execution and recordation of a Notice of Completion (NOC) for the Fire Station 212 Restroom/Shower Room Remodel Project with Performance Construction & Painting.

BACKGROUND

On February 07, 2023, the City Council awarded a construction contract in the amount of $71,195.00 to Performance Con struction & Painting for the remodel of the existing lavatory bathroom and shower room combination to ADA compliance at Fire Station 212. The scope of work include d demolition, relocation of plumbing system, installation of partition wall, door, window, tile and electrical lighting, and painting.

ISSUES/ANALYSIS

Performance Construction & Painting completed the restroom/shower room remodel at Fire Station 212 located at 1511 North Rancho Avenue. The project remodeled an existing lavatory bathroom and sh ower room combination to ADA compliance to be shared among rotating fire department staff. The project was completed on December 05, 2023, per contract documents and specifications and to the satisfaction of the Project Manager. No Change Orders were experienced on the project.

12 Packet Pg. 699
Staff Report to the Mayor and City Council
Notice of Completion - Fire Station 212
February 6, 2024

FISCAL IMPACTS

The total amount for the Fire Station 212 Restroom/Shower Room Remodel Project with Corona Coatings was $71,195.00. There is no additional fiscal impact to file the Notice of Completion.

ALTERNATIVES

Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A - Notice of Completion
12 Packet Pg. 700

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO

Name: City of Colton

Street 650 N. La Cadena Drive
Address

City & Colton, California
State California
Zip 92324

APN: 0160-202-13-0000 SPACE ABOVE THIS LINE FOR RECORDER’S USE

Notice of Completion
NOTICE IS HEREBY GIVEN THAT:

1. The City of Colton is the owner of the interest or estate stated below in the property hereinafter described.

2. The full name of the undersigned is Victor Ortiz P.E., M.A

3. The full address of the undersigned is 160 S. 10th Street, Colton, CA 92324-2897

4. The nature of the title of the undersigned is City of Colton City Engineer (E.G. owner in fee OR vender under contract of purchase OR lessee OR OTHER APPROP RIATE DESIGNATION).

5. The full names and full addresses of all persons, if any, who holds title with the undersigned as joint tenants or as tenants in common are:

Names Addresses

N/A N/A

6. The names of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work of improvement herein referred to are (OR IF NO TRANSFER WAS MADE, INSERT THE WORD “none”):

Names Addresses

N/A N/A

7. A work of improvements on the property hereinafter described was completed on December 05, 2023

8. The name of the original contractor, if any, for the work of improvement was Performance Construction & Painting.

The kind of work done or material furnished was restroom and shower room remodel at Fire Station 212

9. The property on which the work of improvement was completed is in the City of Colton, County of San Bernardino, State of California, and is described as follows: Fire Station 212 Restroom/Shower Room Remodel Project
The street address of the said property is 1511 North Rancho Ave., Colton, CA 92324-2897

Dated: ___________________________ _____________________________________________________ Victor Ortiz, P.E., M.A Assistant PW Director/City Engineer

VERIFICATION
I, the undersigned say:

I am the person who signed the foregoing notice. I have read the above notice and know its contents, and the facts stated
therein are true of my own knowledge.

I declare under penalty of perjury that the foregoing is true and correct.

Executed at Colton, California, this _____________ day of ______________________________

_____________________
(SIGNATURE)

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Attachment: Exhibit A - Notice of Completion (4335 : Notice of Completion - Fire Station 212)

ITEM NO. 13

STAFF REPORT

DATE: FEBRUARY 6, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: BRIAN DICKINSON, PUBLIC WORKS DIRECTOR
SUBJECT: APPROVE THE EXECUTION AND RECORDATION OF THE

NOTICE OF COMPLETION FOR THE HSIP FUNDED GUARDRAIL
REPAIR PROJECT (HSIPSL-5065/032).

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

Approve the execution and recordation of the Notice of Completion (Exhibit A) for the HSIP Funded Guardrail Repair Project (HSIPSL-5065/032) completed by Danny C. Hubbs Construction, Inc.

BACKGROUND

The Highway Safety Improvement Program (HSIP) is one of the federal -aid programs that provide grant funding for safety of streets and highways. The purpose of the HSIP program is to achieve a significant reduction in traffic accidents, fatalities and serious injuries on all public roads, including non-State-owned public roads and roads on tribal land.

The original grant amount awarded for the Guardrail Repl acement Project was $110,200. On May 13, 2023, the City received additional funding in the amount of $62,733.00 for the project.

The funding for this project does not require local match. The scope of work include d replacement of damaged guardrail at three locations.

ISSUES/ANALYSIS

On July 18, 2023, the City Council authorized the award of construction contract to Danny C.

Hubbs Construction, Inc. for the Guardrail Repair Project (HSIPSL -5065/032) in the amount of $144,985. The notice to proceed was i ssued on November 8, 2023. The project was completed 13 Packet Pg. 702
Staff Report to the Mayor and City Council
Notice of Completion - Guardrail Project
February 6, 2024

on November 30, 2023 per project plans and specifications. The project replaced damaged guardrail on the following locations:

1. Mt. Vernon Avenue north and south of the bridge over Santa Ana River

2. So. La Cadena Drive between Maryknoll Ave. and I-215 Freeway southbound on-ramp

3. Barton Road at La Cadena Intersection

Attached as Exhibit B are photos of the completed project on the three locations.

FISCAL IMPACTS

The final project contract amount is $144,985, and there were no change orders for this project.

Expenditures for this project are 100% reimbursable through Caltrans. There is no additional fiscal impact resulting from filing the Notice of Completion.

ALTERNATIVES

1. Provide alternative direction to staff.

ATTACHMENT

1. Exhibit A - Notice of Completion

2. Exhibit B - Project Photo
13 Packet Pg. 703

RECORDING REQUESTED BY

AND WHEN RECORDED MAIL TO

Name: City of Colton

Street 650 N. La Cadena Drive
Address

City & Colton, California
State California
Zip 92324

APN: Various locations SPACE ABOVE THIS LINE FOR RECORDER’S USE

Notice of Completion
NOTICE IS HEREBY GIVEN THAT:

1. The City of Colton is the owner of the interest or estate stated below in the property hereinafter described.

2. The full name of the undersigned is Victor Ortiz P.E., M.A

3. The full address of the undersigned is City of Colton, 160 S. 10th Street, Colton, CA 92324-2897

4. The nature of the title of the undersigned is City of Colton Assistant PW Director/City Engineer (E.G. owner in fee OR vender under contract of purchase OR lessee OR OTHER APPROPRIATE DESIGNATION).

5. The full names and full addresses of all persons, if any, who holds title with the undersigned as joint tenants or as tenants in common are:

Names Addresses

N/A N/A

6. The names of the predecessors in interest of the undersigned, if the property was transferred subsequent to the commencement of the work of improvement herein referred to are (OR IF NO TRANSFER WAS MADE, INSERT THE WORD “none”):

Names Addresses

N/A N/A

7. A work of improvements on the property hereinafter described was completed on November 30, 2023.

8. The name of the original contractor, if any, for the work of improvement was Danny C. Hubbs Construction, Inc.

The kind of work done or material furnished was Remove and replace damaged guardrail on three locations.

9. The property on which the work of improvement was completed is in the City of Colton, County of San Bernardino, State of California, and is described as follows: Barton Rd., Mt. Vernon Ave., and La Cadena Dr..

9. The street address of the said property is Mt. Vernon Ave. north and south of the bridge over Santa Ana River, South La Cadena Drive between Maryknoll Ave. and I-215 Freeway southbound on-ramp, and Barton Road at La Cadena Intersection.

Dated: ___________________________ _________________________________________________ Victor Ortiz, P.E., M.A Assistant PW Director/City Engineer

VERIFICATION
I, the undersigned say:

I am the person who signed the foregoing notice. I have read the above notice and know its contents, and the facts stated therein are true of my own knowledge.

I declare under penalty of perjury that the foregoing is true and correct.

Executed at Colton, California, this ________ day of ______________________________

_______________________________
(SIGNATURE)

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Packet Pg. 704
Attachment: Exhibit A - Notice of Completion (4356 : Notice of Completion - Guardrail Project) Mt. Vernon Ave. North of Santa Ana River Bridge

Mt. Vernon Ave. South of Santa Ana River Bridge

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Attachment: Exhibit B - Project Photo (4356 : Notice of Completion - Guardrail Project) La Cadena Drive near I-215

Barton Road at La Cadena Drive

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Attachment: Exhibit B - Project Photo (4356 : Notice of Completion - Guardrail Project)

ITEM NO. 14

STAFF REPORT

DATE: FEBRUARY 6, 2024
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: BILL SMITH, CITY MANAGER
PREPARED BY: STEPHANIE VARGAS, DEPUTY CITY CLERK
SUBJECT: WAIVE FULL READING, READ BY TITLE ONLY AND APPROVE

SECOND READING OF AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF COLTON CALIFORNIA AMENDING COLTON
MUNICIPAL CODE CHAPTER 8.16 FOR THE PURPOSE OF

CLARIFYING THE APPLICATION OF THE CHAPTER TO VACANT
PROPERTIES, ORDINANCE NO. O-01-24.

RECOMMENDED ACTION

Staff recommends that the City Council take the following action:

It is recommended to that the City Council Waive Full Reading, and Approve Second Reading of an Ordinance to Amend Chapter 8.16 of the Colton Municipal Code (“CMC”) to Clarify that its Provisions Apply to Vacant, Undeveloped Properties as Well as to Vacant Buildings.

ATTACHMENT

1. Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties 14 Packet Pg. 707
23152.06300\41791487.1
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ORDINANCE NO. O-01-24

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF COLTON CALIFORNIA AMENDING COLTON
MUNICIPAL CODE CHAPTER 8.16 FOR THE PURPOSE

OF CLARIFYING THE APPLICATION OF THE CHAPTER

TO VACANT PROPERTIES
WHEREAS, the City Council of the City of Colton ( “City Council ”) has adopted an ordinance setting regulations pertaining to the registration and maintenance of vacant and abandoned commercial and industrial purposes (codified as CMC Chapter 8.16), for the purpose of avoiding blight and negative community conditions associated with vacant properties; and WHEREAS, the City Council’s power to legislate, by implication, includes the power to amend existing legislation (Blotter v. Farrell (1954) 42 Cal.2d 804, 811); and WHEREAS, the City Council , by way of this Ordinance, desires to amend certain portions of Chapter 8.16 to clarify that vacant property sites (in addition to vacant buildings developed on property sites) can, in designated circumstances, require compliance with the registration and other monitoring requirements established by that Chapter; and WHEREAS, all legal prerequisites to the adoption of this ordinance have occurred.

NOW, THEREFORE, the City Council of the City of Colton, Californ ia, does ordain as follows:

SECTION 1 . Incorporation of Recitals . The City Council hereby finds that all of the foregoing recitals and the staff report presented herewith are true and correct and are hereby incorporated and adopted as findings of the City Council as if fully set forth herein.

SECTION 2. Amendment of Chapter 8.16. Chapter 8.16 of the CMC is hereby amended to read as follows (additions shown in underline, deletions shown in strikethrough). “Chapter 8.16 - REGISTRATION AND MAINTENANCE OF VACANT AND

ABANDONED COMMERCIAL AND INDUSTRIAL PROPERTY
…

8.16.020 – Definitions.

In construing the provisions of this chapter, the following definitions shall apply:
…
“Property” means any real property interest or estate which may be granted or devised by deed. The word “property” inclu des tracts, lots, easements, or parcels of land and any and all

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24) 23152.06300\41791487.1

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improvements, buildings, or structures thereon. any unimproved or improved real property or portion thereof, situated in the city and includes the buildings or structures located on the property regardless of condition.

…

“Vacant property” means any property, as herein defined, which has remained unoccupied and has not had any progress on construction, alteration, improvements, rehabilitation, or repair for a period of more than thirty (30) days.

…

8.16.030 – Property Owner Responsibilities.

A. No person, firm, partnership, corporation or other entity shall allow a commercial or industrial building designed for human use or occupancy or property, as that term is defined in Section 8.16.020, to stand vacant for more than forty -five days, unless the owner establishes by substantial evidence to the reasonable satisfaction of the chief building official that one of the following applies:

1. The building is the subject of an active buildi ng permit for repair or rehabilitation and the owner is progressing diligently to complete the repair or rehabilitation , or the property is the subject of other active entitlements and the owner is progressing diligently to obtain said entitlements and commence activity thereunder;

2. The building or property meets all applicable codes, is actively maintained in accordance with all city ordinances, is actively being offered for sale, lease, or rent, and, as applied to a vacant building specifically, is ready for occupancy., and is actively being offered for sale, lease, or rent;

3. The building or property does not contribute to and is not likely to contribute to blight because the owner is actively maintaining and monitoring the building or property so that it does not contribute to blight. Active maintenance and monitoring shall include:

a. Maintenance of landscaping and plant materials in good condition,

b. Maintenance of the exterior of the building, including, but not limited to, paint and finishes, in good condition,

c. Regular removal of all exterior trash, debris and graffiti,

d. Maintenance of the building or property in continuing compliance with all applicable codes and regulations,

e. Prevention of criminal activity on the premisesproperty, including but not limited to, use and sale of controlled substances, prostitution and criminal street gang activity,

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24) 23152.06300\41791487.1

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f. Windows screened with opaque material that is compatible with the building that prevents interior space of the building f rom being visible from public rights of way or public property,

g. Securing the property in a manner so as not to be accessible to unauthorized persons, including, but not limited to, the replacement of broken windows and the closing and locking of windows, doors (walk -through, sliding and garage), gates and any other opening that may allow access to the interior of the property.

B. The owner of any boarded building, whether boarded by voluntary action of the owner or as a result of enforcement activity by the city, shall cause the boarded building to be rehabilitated for occupancy within ninety days after the building is boarded and shall comply with the provisions of subsection A. of this section.

C. It is declared a public nuisance for any person, partnership, association, corporation, fiduciary, or other legal entity that owns, leases, occupies, controls or manages any building or property subject to this chapter to cause, permit, or maintain such building or property in violation of subsections A. or B. of this section.

D. Upon the expiration of fifty -five days after a premises becomes a vacant building or property as defined herein, the owner of a vacant commercial or industrial building or property shall cause said building or property to be registered as a vacant building or property pursuant to the provisions of section 8.16.050 of this chapter and shall pay the registration fee required per section 8.16.060 of this chapter. Further, the owner of said vacant building or property shall comply with the provisions of sections 8.16.070, 8.16.080, and 8.16.090 of this chapter relating to local property management requirements and monitoring.

8.16.040 – Bonding and fencing requirements for vacant commercial or industrial buildings or properties.

A. Whenever a vacant commercial or industrial building or property remains vacant for a period of ninety days or more, in addition to the other requirements of this chapter the owner, beneficiary or trustee, as the case may be, shall post with the city a bond or similar security in an amount equal to three months estimated costs of blight prevention activities, as estimated by the chief building official.

B. Whenever a vacant commercial or industrial building or property remains vacant for a period of ninety days or more, in addition to the other requirements of this chapter, the owner, beneficiary or trustee, as the case may be, shall cause to be installed a minimum six -foot high chain link fence adjacent to the property boundaries, or other alternative fenci ng acceptable to the development services director that is adequate to protect the public safety and welfare, unless the director determines that the installation of such fencing will be detrimental to the public safety and welfare. Any fencing required under this section may additionally require screening if the director finds it necessary in order to protect the safety, streetscape and overall appearance of the site. The director may promulgate additional fencing standards for vacant properties consistent with this section.

8.16.050 – Registration requirements for vacant building or property.

Commented [1]: Question for staff – would you like to include vacant parcels in the bonding/fencing requirements or just leave it as actual buildings? I wrote in updates to this section 8.16.040 to include properties in addition to buildings, but you can cut those edits if you’d prefer.

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24) 23152.06300\41791487.1

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A. Within ten (10) calendar days of City’s identification of any vacant building or property, through its own inspection or upon notification by the owner or any other person that the building or property is vacant, the City shall notify the owner and the owner shall have ten (10) calendar days from notification to file a completed Vacant Property Registration Form, as provided by the City, with the Development Serv ices Department. The registration form shall include information that includes but is not limited to:

1. The address of the vacant building or property;

2. The assessor parcel number of the vacant property or the site on which the vacant building is located;

3. The name, address, and telephone number of the owner, and if a notice of default has been issued, the name, address, and phone number of the beneficiary or trustee on the deed of trust shall be included. In the case of a corporation or out of area beneficiary or trustee, the local property management company or agent responsible for the security, maintenance, and monitoring of the building or property shall be included.

4. The date the property or building became vacant.

B. Any change in the information provided pursuant to subsection A, including but not limited to a change in ownership, partnership, association, corporation, fiduciary, or other legal entity that has registered a building or property under this section, shall require the owner to file a written statement updating such information with the Development Services Department within ten (10) calendar days of the change.

AC. Each owner, or a beneficiary orand trustee who holds a deed of trust on a property located within the City, shall perform an inspection of the property in question prior to any party recording a notice of default or similar instrument with the San Bernardino County clerk - recorder’s office.
…

8.16.080 – Monitoring program procedures.

A. Authority. Th e chief building official shall be responsible for administering a program for identifying and monitoring the maintenance of all vacant buildings and properties in the city. The program shall be documented and regularly updated. The program shall be available for public review.

B. Purposes. The purposes of the monitoring program shall be:

1. To identify buildings and properties that become vacant;

2. To order vacant buildings and properties that are open and accessible to be secured against unlawf ul entry pursuant to City codes, including the building code, or other applicable law;

Commented [2]: This new subsection is intended to clarify the registration issue as applied to vacant property in addition to buildings; do you already have a Vacant Property Registration Form that can be provided to owners pursuant to this section? If not, we can help prepare one.

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24) 23152.06300\41791487.1

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3. To initiate proceedings against the owner of any vacant building or property found to be substandard as defined in this chapter or a nuisance under any other provision of this code;

4. To maintain surveillance over vacant buildings or properties so that timely enforcement proceedings are commenced in the event a building or property becomes substandard or a nuisance; and

5. To establish and enforce rules and r egulations for the implementation and compliance with the provisions of this Chapter.

C. Fee Imposed. There is imposed upon every owner of a vacant building or property monitored pursuant to this chapter, an annual vacant building or property monitoring fee in an initial amount as the city council may establish by resolution, provided that the fee shall not exceed the estimated reasonable cost of monitoring the vacant building or property. The fee shall be payable as to any building or property, residential or nonresidential, which:

1. Is boarded up by voluntary action of the owner or as the result of enforcement activities by the city; or

2. Is vacant for more than ninety days for any reason.

D. Fee Deferral. The vacant building or property monitoring fee may be deferred upon a showing by the owner that:

1. The owner has obtained a building permit and is progressing diligently to repair the premises for occupancy; and

2. The building or property meets all applicable codes and is actively bei ng offered for sale, lease, or rent; and

3. Imposition of the fee is paid prior to final inspection and/or close of escrow of a pending sale.

E. Procedure. The vacant building or property monitoring fee shall be billed to the owner of the property and mailed to the owner's address as set forth on the last equalized assessment roll of the San Bernardino County assessor. Any owner billed may apply for a waiver on the grounds set forth in subsection D. of this section by submitting a written statement of the grounds for the waiver, and the owner's daytime telephone number, to the chief building official within thirty days after the billing is mailed to the owner. The owner shall provide substantial evidence in support of the owner's statement of the grounds for the waiver. The chief building official shall review the written statement and all related evidence and may contact the owner to discuss the application for waiver. The chief building official shall prepare a written decision which shall be mailed to the owner and shall set forth the reasons for the decision.

F. Any owner aggrieved by the decision of the chief building official relating to an application for waiver may appeal the chief building official's decision to the city manager by filing with the city clerk a written notice of appeal within ten days of the decision. The city Commented [3]: Same note here – would the City like to also impose monitoring fees against empty parcels? Right now, it’s written to just apply to empty buildings.

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24) 23152.06300\41791487.1

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manager shall set a time and place for a hearing of such appeal, and notice of such hearing shall be mailed, postage prepaid, to the owner at his or her last known address at least ten days prior to the date set for the hearing. The decision and order of the city manager on such appeal shall be final and conclusive.

G. If the fee is not paid within sixty days after billing, or within sixty days after the decision of the chief building official or the city manager, the city manager may thereupon order that the fee be specially assessed against the property involved. If the city manager orders that the fee be specially assessed against the property, it shall confirm the asses sment and thereafter said assessment may be collected at the same time and in the same manner as ordinary real property taxes are collected and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary real property taxes. All laws applicable to the levy, collection, and enforcement of real property taxes are applicable to the special assessment.

H. The city manager may also cause a notice of lien to be recorded. The notice shall, at a minimum, identify the record owner or possessor of the property, set forth the last known address of the record owner or possessor, a description of the real property subject to the lien, and the amount of the fee.

…”

SECTION 3. Compliance with California Environmental Quality Act . Based on the entire record before the City Council, and all written and oral evidence presented to the City Council, the City Council hereby finds that this ordinance is exempt from review under the California Environmental Quality Act (“CEQA”), pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Article 3, because it has no potential for resulting in physical change to the environment, directly or indirectly.

SECTION 4. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.

SECTION 5. Effective Date. This ordinance shall become effective thirty (30) days after its adoption.

SECTION 6. Publication. The City Clerk shall certify the passage of this Ordinance and shall cause the same to be entered in the book of original ordinances of said City; shall make a minute passage and adoption thereof in the records of the meeting at which time the same is passed and adopted; and shall, within fifteen (15) days after the pas sage and adoption thereof, cause the same to be published as required by law, in a local newspaper of general circulation and which is hereby designated for that purpose.

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24) 23152.06300\41791487.1

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PASSED, APPROVED AND ADOPTED this day of , 20 .

Frank Navarro, Mayor

ATTEST:

Stephanie M. Vargas, Deputy City Clerk

APPROVED AS TO FORM:

Best Best & Krieger LLP
City Attorney

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Attachment: Colton_ Ord. No. O-01-24 Amending Chapter 8.16 Relating to Vacant Properties (4373 : Second Reading of Ordinance No. O-01-24)