Loading...
HomeMy WebLinkAboutGreyhound Lines - Lease Agmt at 2223 G St.LEASE AGREEMENT Fresno, California (Location) This Lease (hereinafter referred to as "Lease") is entered into on ("Effective Date"), by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "City"), and Greyhound Lines, lnc. (hereinafter referred to as "Tenant"), for property located in Fresno, California. RECITALS WHEREAS, City owns the Fresno Area Express Transit Operations and Maintenance Facility which is located a|2223 "G" Street, Fresno, California (the "Property"); and WHEREAS, Tenant desires to lease paved, uncovered parking space from City, (the "Premises") for the short-term storage of up to five (5) Motor Coaches and five (5) light passenger vehicles; and WHEREAS, City and Tenant have agreed that City will lease, and the Tenant will rent, the Premises subject to the terms and conditions of this Lease. NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained, to be kept and performed by the respective parties, it is mutually agreed as follows: 1. LEASE OF PREMISES. City hereby leases to Tenant and Tenant hereby leases from City the Premises, as shown and described in the attached Exhibit "4", subject to the terms, covenants and conditions hereinafter set forth. 2. CONDITION OF THE PREMISES. Tenant accepts the Premises "as is", in its existing physical condition with all faults, without warranty by City or any duty or obligation on the part of City to maintain the Premises; provided, however, that City represents that the existing building systems and common areas of the Property are in good working order and the Property is free of Hazardous Substances. 3. TERM. This initial term of this Lease shall be two (2) years commencing on December 31, 2015 and ending on December 1, 2017 ("lnitial Term"). 4. EARLY TERMINATION. City and Tenant may terminate this Agreement at any time and without cause upon the delivery of 60 days written notification to the other Party. 5. EXTENSION. The lnitial Term may be extended in two year increments only by written instrument duly authorized and executed by both Tenant and City. 6. RENT. Rent for the initial term of this Lease will be a fixed $600.00 per month payable by Tenant, in advance, to City of Fresno Department of Transportation,2223 G Street, Fresno CA 93706, beginning on the first day of the month following the date Tenant occupies the Premises (the first such payment as may be pro-rated for any partial month as necessary) and on the first day of each month thereafter. Base Rent shall increase every two years during the lnitial Term and any extension terms as follows: the Base Rent shall be increased by the cumulative increase in the Consumer Price lndex ("CPl") for all urban consumers for the San Francisco Region (as published in the Engineering News Record, or published in a comparable index if the Engineering News Record is discontinued or otherwise not available) during the previous two (2) years but in no event shall any such single two year period increase exceed 2o/o of the immediately preceding fee. 7. LOCATION. The City agrees to provide storage space at the City-owned and operated Transit Facility a|2223 "G" Street, Fresno CA 93706 (the "City's Transit Operations and Maintenance Center"). 8. HOURS OF OPERATION. The City will provide storage and access to such storage 24 hours per day, 7 days per week. 9. STORAGE SPACE. For purposes of this Lease, Tenant is granted exclusive use of a 330 x 10 foot space designated in Exhibit "4". Tenant shall store motor coaches and light vehicles in a parallel parking configuration only. l0.ENTRANCE/EGRESS. City grants to Tenant and its employees, the non- exclusive right of entrance and egress to such premises via the paths identified in Exhibit "A". The City shall maintain adequate clearance around the designated storage space to allow Tenant vehicles to efficiently park and exit without hinderance. 11. MAINTENANCE AND SECURITY DURING TERM OF LEASE. Tenant covenants and agrees to keep the Premises clean and free from debris and trash during the term of the Lease. Tenant shall promptly remediate any fluid spills. Tenant shall not utilize the Premises for any use other than the use set forth in Section 12 of this Lease. City agrees to perform and/or provide the following, subject to the terms of this Section and subject to available funding to furnish adequate irrigation water for the upkeep and maintenance of any trees, shrubs and grass within the Premises: a) Maintain paved surfaces in good condition. b) Maintain exterior lighting; and c) Keep area free of general trash/debris. City shall provide security during the term of the Lease in accordance with the City's current agreement with its contracted security services company. Absent any negligence or willful misconduct by City, Tenant assumes all responsibility for its protection of Tenant, its employees, agents and invitees and propefi from acts of third parties. 12. USE OF PREMISES. The Premises shall be used for short-term of Tenant motor coaches and Tenant's employee vehicles between scheduled motor coach runs/during driver layovers. Long-term storage (more than 7 consecutive days) must be approved in advance by the City's Director of Transportation or designee. Repair/ Maintenance activity shall be limited minor repairs/ inspections/ service (Flat tire repairs, fluid checks, light bulb replacements, etc.) Use of Premises is considered incidental and must not interfere with the public transit operation and maintenance activities that occur on the Property. I3. INSURANCE. (a) Tenant and each of its consultants, contractors and subcontractors shall pay for and maintain in full force and effect all insurance as required in Exhibit B or based on similar occupancies that may be reasonably expected and authorized or required in writing by City's Risk Manager or his/her designee at any time and in his/her sole discretion. Tenant and its insurers will, with respect to any claims covered by such property and hazard insurance, waive any subrogation rights that it may have against City, its officials, officers, agents, employees or volunteers. Nothing herein is intended to require City to maintain property and hazard insurance covering the Premises or for whatever cause. (b) lf at any time during the life of the Lease or any extension, Tenant or any of its consultants, contractors or subcontractors fail to maintain any required insurance in full force and effect, all Tenant's activities under this Lease shall be discontinued immediately, until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Lease. No action taken by City pursuant to this section shall in any way relieve Tenant of its responsibilities under this Lease. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by City that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Tenant shall not be deemed to release or diminish the liability of Tenant, including, without limitation, liability under the indemnity provisions of this Lease. The duty to indemnify Indemnitees (as defined in this Lease) shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Tenant. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Tenant, or its representatives, consultants, contractors or subcontractors. (d) Upon request of City, Tenant shall promptly furnish City with proper evidenceof any insurance policy required under this Lease, including all endorsements, with said information confirmed by the underwriter to be true and correct. This requirement shall survive expiration or termination of this Lease, provided there is an associated claim during Tenant's occupancy of the Premises. (e) Tenant is also responsible for the compliance of Tenant's consultants, contractors and subcontractors with the insurance requirements in Subsections (a), (b), (c), and (d) of this section, except that any required certificates and applicable endorsements shall be on file with Tenant and City prior to the commencement of any work or services by the respective consultant, contractor or subcontractor. I4.IMPROVEMENTS. Tenant shall make no improvements to the Property or the Premises without the prior written consent of City, which consent will not be unreasonably withheld. l5.R|GHT OF ENTRY. City, or City's representatives, shall have the right to enter the Premises at any time during the Lease, to protect, inspect, exercise or investigate any rights of City herein reserved. However, City's activities, connected with the exercise of this right of entry, shall not interfere with the operations of Tenant or its use of the Premises. 16.LEGAL REQUIREMENTS. Tenant covenants and agrees, at Tenant's sole cost and expense, promptly to comply, and cause all of Tenant's representatives, to comply, with (i) all laws, statutes, ordinances, rules, regulations, requirements or orders of municipal, state, and federal authorities now in force or that may later be in force, including, without limitation, those laws which relate to the generation, use, storage, handling, treatment, transportation or disposal of Hazardous Substances or to health, safety, noise, environmental protection, air quality or water quality; (ii) with the conditions of any permit, occupancy certificate, license or other approval issued by public officers relating to Tenant's activities, or Tenant's use or occupancy of the Premises; and (iii) with any liens, encumbrances, easements, covenants, conditions, restrictions and servitudes (if any) of which Tenant has received notice, actual or constructive, which may be applicable to the Premises (collectively, "Legal Requirements") regardless of when they become effective, insofar as they relate to Tenant's activities or Tenant's use or occupancy of the Premises. The judgment of any court of competent jurisdiction, orthe admission of Tenant in any action or proceeding against Tenant, whether or not City is a party in such action or proceeding, that Tenant has violated any Legal Requirement relating to Tenant's activities and Tenant's use or occupancy of the Premises, shall be conclusive of that fact as between City and Tenant. Tenant shall furnish satisfactory evidence of such compliance upon request by City. 17. INDEMNIFICATION; RELEASE; SAFETY AND INSURANCE. (a) Tenant shall, to the maximum extent permitted by law, indemnifiT, protect, defend and hold harmless City, its officials, officers, representatives, agents, employees, volunteers, transferees, successors and assigns (each an "lndemnitee" and collectively, "lndemnitees") from and against all claims, losses (including, but not limited to, diminution in value), actions, demands, damages, costs, expenses (including, but not limited to, experts fees and reasonable attorneys' fees and costs) and liabilities of whatever kind or nature (collectively, "claims"), which arise from or are in any way connected with Tenant's activities on the Property, or the entry on, occupancy or use of, the Premises by Tenant or Tenant's representatives, or the performance of, or failure to perform, Tenant's duties under this Lease, including, but not limited to, Claims arising out of: (i) injury to or death of persons, including but not limited to employees of City or Tenant (and including, but not limited to, injury due to exposure to Potential Environmental Hazards in, on or about the Premises); (ii) injury to property or other interest of city, Tenant or any third party; (iii) violation of any applicable federal, state, or local laws, statutes, regulations, or ordinances, including all Legal Requirements relating to the environment and including any liability imposed by law or regulation without regard to fault. Notwithstanding the foregoing or anything herein to the contrary, Tenant shall have no obligation to defend or indemnify the lndemnitees for any claims, losses, liabilities or damages arising on account of the Indemnitees' or any third party's negligence or willful misconduct. (b) Tenant acknowledges that all Claims arising out of or in any way connected with releases or discharges oÍ aHazardous Substance, or the exacerbation of a Potential Environmental Hazard, occurring as a result of or in connection with Tenant's use or occupancy of the Premises, Tenant's activities or the activities of any of Tenant's representatives, and all costs, expenses and liabilities for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remediation and other response costs, including reasonable attorneys' fees and disbursements and any fines and penalties imposed for the violation of any Legal Requirements relating to the environment or human health, are expressly within the scope of the indemnity set forth above. (c) Tenant's use and occupancy of the Premises shall be at Tenant's sole risk and expense. Tenant accepts all risk relating to Tenant's occupancy and use of the Premises. City shall not be liable to Tenant for, and Tenant hereby waives and releases City and the other lndemnitees from, any and all liability, whether in contract, tort, strict liability or on any other basis, for any injury, damage, or loss resulting from or attributable to an occurrence on or about the Premises, unless such liability is on account of the City's or any third party's negligence orwillful misconduct. (d) Tenant shall, to the maximum extent permitted by law, indemnify, protect, defend and hold lndemnitees harmless against claims, losses, costs (including attorneys'fees and costs), liabilities and damages resulting from the failure of Tenant, or any of Tenant's consultants, contractors or subcontractors, to comply with the insurance requirements set forth in Exhibit B. (e) The provisions of this Section 17 shall survive the expiration or termination of this Lease. IS.SURRENDER OF POSSESSION. lt is mutually understood and agreed that upon expiration or earlier termination of the Lease, at tenant's sole cost and expense, Tenant shall remove all of Tenant's personal property and remove all debris and waste material resulting from Tenant's activities. Tenant will surrender the Premises to City in good condition, reasonable wear and tear excepted. Tenant shall remove any trade fixtures installed by Tenant and will repair any resulting damage caused thereby. Tenant shall bear the entire cost of such removal, repair and restoration, and City shall bear no liability for any costs caused or related to Tenant's removal of its property. ln the event Tenant fails to comply with the requirements of this section, City may elect to remove such fixtures and personal property and effect such removal, repair, or restoration as reasonably necessary and recover such costs and expenses therefore from Tenant. Tenant shall pay such reasonable costs and expenses within 30 days of receipt of an invoice therefor. Tenant's obligations under this section shall survive the expiration or termination of this Lease. I9.ASSIGNMENT. Tenant shall not assign this Lease, or any interest therein, or sublet the Premises, or any part thereof, or any right or privilege pertaining thereto; without City's prior written consent. 20.DEFAULT. lf either party materially defaults in the performance of any condition or covenant in this Lease, the other party may terminate this Lease, but only if the defaulting party fails to rectify said default within 10 business days after written notice thereof is served upon defaulting party by the other party. ln the event, however, that any default complained of hereunder is of such nature that the same cannot be rectified in 10 business days, then such default shall be deemed to be rectified if the defaulting party shall have commenced the compliance of the provisions hereof breached by it within such 10 business days period and shall with all diligence prosecute the work or perform the particular provisions until the same shall have been fully rectified or performed. 2l.CHO|CE OF LAW. Subject to any provisions hereof, this Lease shall bind the parties, their personal representatives, successors and assigns. This Lease shall be governed by the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Lease and rights and duties hereunder shall be Fresno County, California. 22. NOTICES. All notices, demands, consents or requests which may be or are required to be given by a party hereunder, shall be in writing. All notices, demands, consents or requests given shall be sent by United States registered or certified mail, postage prepaid, return receipt requested, addressed to the respective pafi at the address set forth on the signature page of this Lease or at such other place as the pafi may from time to time designate in a written notice to the other party. Notices, demands, consents or requests served in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 23.ATTORNEY'S FEES. lf either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Lease, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 24.THlRD PARTY BENEFICIARIES. The rights, interests, duties and obligations defined within this Lease are intended for the specific parties hereto as identified in the preamble of this Lease. lt is not intended that any rights or interests in this Lease benefit or flow to the interest of any third parties. 25. GENERAL PROVISIONS. (a) The section headings in this Lease are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Lease. (b) The provisions of this Lease are severable. The invalidity, or unenforceability of any one provision in this Lease shall not affect the other provisions. (c) The parties acknowledge that this Lease in its final form is the result of the combined efforts of the parties and that, should any provision of this Lease be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Lease in favor or against any party, but rather by construing the terms in accordance with their generally accepted meaning. (d) Each exhibit and attachment referenced in this Lease is, by the reference, incorporated into and made a part of this Lease. (e) No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. (f) Once this Lease is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferee, agents, servants, employees and representatives. (g) The waiver by a party of a breach by another of any provision of this Lease shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Lease. No provisions of this Lease may be waived unless in writing and signed by all parties to this Lease. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. (h) Each person signing this Agreement represents and warrants that he or she is duly authorized erga+ized and has legal capacity to execute and deliver this Agreement. 26.ENTIRETY-SUCCESSION. This Lease merges and supersedes all prior negotiations, representations, agreements, and constitutes the entire agreement concerning City's leasing of the Premises to Tenant and the consideration therefore. This Lease may be modified only by written instrument duly authorized and executed by both Tenant and City. lN WITNESS WHEREOF, the parties have caused this Lease to be executed by their authorized representatives in Fresno, California as of the date first above written. City: City of Fresno, a California mun icipal corporation Tenant: Greyhound Lines, lnc., a Delaware corporation ritle C-trC Tenant: Attention: Legal Dept., with a copy to Real Estate Dept. 350 North St. Paul Street Dallas, Texas 75201 Bruce Rudd, City Manager Attest: WONNE SPENCE, CMC City Clerk Bvb Approved as to form: DOUGLAS T. SLOAN City Attorney By Addresses: City of Fresno Attention: City Manager 2600 Fresno Street Fresno, CA 93721 Telephone: (559) 621-7700 Attachments: Exhibit A - Map/Legal Description of Property and the Premises Exhibit B - lnsurance Requirements EXHIBIT "A'' PREMISES Figure 41. - Site Entry and Exit Map \\\\ \\ ' t, t f -l ; r' "'råi '* t ¡ I a EXHIBIT "A'' PREMISES Figure A2. - Bus Storage Area Detail STORAGE AREA APPROXIIvIATELY 330, X IO, EXHIBIT .,B'' INSURANCE REQUIREMENTS Lease between City of Fresno ("Gity") and GREYHOUND ("Tenant") Fresno, California (Location) Minimum Scope of lnsurance Coverage shall be at least as broad as:1. The most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01, on an "occurrence" basis which shall include insurance for "bodily injury," "property damage" and "personal injury" with coverage for Premises and operations, products and completed operations, fire legal liability and contractual liability (subject to policy terms, conditions, and indemnity obligations under the Lease). 2. Property insurance with a Cause of Loss - Special or All Risk Form. Only required of Tenant and not of Tenant's consultants, contractors or s u bcontractors. 3. Workers' Compensation insurance as required by the California Labor Code and Employer's Liability lnsurance. Minimum Limits of lnsurance Tenant shall maintain limits of liability of not less than: 1. General Liability: $3,000,000 per occurrence for bodily injury and property damage $3,000,000 per occurrence for personal injury $3,000,000 aggregate for products and completed operations $3,000,000 general aggregate 2. Property: Limits of insurance in an amount equal to the full (100%) replacement cost (without deduction for depreciation) of Tenant's business property. 3. Wokers'Compensation lnsurance as required by the State of California, with Statutory Limits of no less than $1,000,000 per accident for bodily injury or disease (for lessees with employees) 4. Employer's Liability: $1,000,000 each accident for bodily injury $1,000,000 disease each employee $1,000,000 disease policy limit 5. Auto Liability: Tenant shall maintain a policy of Automobile Liability insurance on owned, non-owned and hired motor vehicles used in connection with operation at the Premises with a combined single limit for bodily injury and property damage of not less than Two Million Dollars ($2,ooo,ooo.0o) U m brel I a or Excess ln su ranc e ln the event Tenant purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). ln addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non- contributory basis for the benefit of the City, its officers, officials, employees, agents and volunteers. Deducti bles and Self-l nsured Retentions Tenant shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Tenant shall also be responsible for payment of any self-insured retentions. At no time shall City be responsible for the payment of any deductibles or self-insured retentions. Other I nsurance Provisions The General and Automobile Liabilitv insurance policv is to contain, or be endorsed to contain, the following provisions: 1. City, its officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of maintenance or use of the premises leased under the Lease Agreement. Tenant shall establish additional insured status for the City by use of both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional insured. Tenant's insurance coverage shall be primary any insurance or self- insurance maintained by the City shall be excess of the Tenant's and 2. 3. shall not contribute with it Tenant shall establish primary and noncontributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and noncontributory status as broad as that contained in ISO Form CG 20 01 04 13. The Workers' Compensation insurance policv is to be endorsed to contain a provision that the Tenant and its insurer shallwaive any right of subrogation against City, its officers, officials, employees, agents and volunteers. Tenant shallendeavor to notify City in the event that any policies of insurance required hereunder shall be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day (or 10 day in the event of cancellation for non-payment) written notice by certified mail, return receipt requested, has been given to City. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Tenant shall furnish City with a new certificate and applicable endorsements for such policy(ies). ln the event any policy is due to expire during the work to be performed for City, Tenant shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. Acceptability of lnsurers All policies of insurance required hereunder shall be placed with an insurance company(ies) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll' in Best's lnsurance Rating Guide. Other Requirements Tenant's owned or leased property or property in its care, custody and control, will be at the risk of Tenant only and CITY will not be liable for any damages thereto or theft thereof. Further, Tenant waives its right of recovery, and its insurers also waive their right of recovery, against CITY for loss of its owned or leased property or property in its care, custody and control. The phrased "owned or leased property or propefi it its care, custody and control" shall include, without limitation, documents, tools, equipment, fixtures, materials and parts. Verification of Coverage Tenant shall furnish City with all certificate(s) and applicable additional insured endorsements effecting coverage required hereunder. All certificates and additional insured endorsements are to be received and approved by the City's Risk Manager or his/her designee prior to City's execution of the Lease and before work commences. All non-lSO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. This requirement shall survive expiration or termination of this Lease Agreement.