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HomeMy WebLinkAboutItem 22 - State Mandate CompliancePublic Works Agency https://www.santa-ana.org/pw Item # 22 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report May 16, 2023 TOPIC: License Agreement with Greyhound Lines, Inc. AGENDA TITLE Approve License Agreement with Greyhound Lines, Inc. RECOMMENDED ACTION Authorize the City Manager to execute a site license agreement with Greyhound Lines, Inc. for the rental of one bus bay for a one-year period beginning June 1, 2023 and expiring May 31, 2024, with four, one-year optional renewals, at a monthly rate of $4,500, for a total amount of $54,000, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Santa Ana Regional Transportation Center (SARTC) is a regional transportation hub that connects Amtrak, Metrolink, Orange County Transportation Authority (OCTA), interstate bus services, and the future OC Streetcar. The facility is open to the public seven days a week from 5:00 a.m. to midnight and contains approximately 35,000 square feet of rental space, including ten bus bays. On August 16, 2016, the City Council approved a site license agreement with Greyhound Lines, Inc. to license two bus bays. The site lease agreement was for a three-year term with two one-year renewal options. Because of the decrease in ridership, Greyhound Lines, Inc. approached the City with interest in reducing the license agreement to one bus bay. Greyhound Lines, Inc. has been a tenant at SARTC for over 20 years and has paid the monthly rent consistently. Staff recommends entering into a site license agreement for a one-year period to allow Greyhound Lines, Inc. to continue providing bus passenger services to the community (Exhibit 1). FISCAL IMPACT Lease Income in the amount of $54,000 will be deposited into the SARTC Operations Rental — Greyhound Lines, Inc. revenue account (No. 06717002-53810) for future appropriations. Site License Agreement with Greyhound Lines, Inc. May 16, 2023 Page 2 License Ag eement Term (June 1, 2023 through May 31, 2024) Fiscal Accounting Fund Accounting Unit, Year Unit — Description Account Description Amount Account No. 2022-23 06717002- Regional PWA- SARTC June) 53810 Transportation Operations, Rental— $4,500 Center Greyhound 2023-24 06717002- Regional PWA- SARTC (July -May) 53810 Transportation Operations, Rental— $49,500 Center Greyhound Total- $54,000 EXHIBIT(S) 1. Site License Agreement with Greyhound Lines, Inc. Submitted By: Nabil Saba, P. E. - Executive Director, Public Works Agency Approved By: Kristine Ridge, City Manager EXHIBIT I LICENSE AGRE EMENT BY AND BETWEEN THE CITY OF SANTA ANA AND GREYHOUND LINES, INC. FOR USE OF THE SANTA ANA RE, GIONAL TRANSPORTATION CENTER F ACILITIES This LICENSE AGREEMENT O'Agreement") by and between the City of Santa Ana, a municipal corporation of the State of California ("City") and Greyhound Lines, Inc. ("Licensee"), a Delaware Corporation is dated as of May 16, 2023 C'Effective Date"). Licensee and City are sometimes individually referred to as "Party" and collectively as "Partie&" RE' CITALS A. Licensee provides interstate bus transportation services throughout the state of California. B. Licensee desires the use of and access to the Santa Ana Regional Transportation Center Facilities ("SARTC" or "Facilities"), located at 1000 East Santa Ana Boulevard in the City of Santa Ana, for a bus stop for the purpose of drop off and pick up of its Invitees (defined below) that utilize Licensee's bus services ("Transit Services"). City desires to allow Licensee the use of and access to the Facilities for a bus stop for the purpose of drop off and pick up of its Invitees and allowing its Invitees to utilize the Transit Services. AGREEMENTS NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: TERMS 1.1 Facilities Subject to License. City owns the real property commonly known as the Santa Ana Regional Transportation Center (SARTC). Subject to the terms and conditions of this Agreement, City hereby agrees to allow Licensee the non-exclusive use of and access to one (1) bus bay at the Facilities as a bus stop for the purpose of drop off and pick up of its Invitees (defined below). - THE BUS BAY SUBJECT TO THIS LICENSE IS BUS BAY #5 ("License Area"). See Exhibit A for description of License Area. The parties understand that the City may unilaterally reassign the License for Bus Bay #5 to another bus bay in the future upon written notice by the City and that all terms and conditions of this license will likewise apply to any replacement bus bays. 1.2 Term, Grant of License, Terms of License, Ter . City hereby grants to Licensee a non-exclusive license ("License"), during the term of this Agreement, for vehicular and pedestrian ingress to and egress from the Facilities and vehicular and pedestrian use of the Facilities for its regularly scheduled passenger service. Licensee shall offer patrons the ability to pay in cash or by credit card. THIS AGREEMENT IS INTENDED AND SHALL BE CONSTRUED ONLY AS A REVOCABLE LICENSE TO USE THE LICENSE AREA AND NOT AS A LEASE OR GRANT OF ANY POSSESSORY OR OTHER INTEREST. 1.3 Commencement Date of Agreeing . This Agreement shall commence on June 1, 2023 ("Commencement Date") for a one (1) year term with the option for the City to grant tip to four (4) one (1) year renewals, exercisable by a writing by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 1.10 of this Agreement. If, at the sole determination of the City, the Licensee has not fully complied with Section 1.5. any rights granted to the Licensee under this Agreement shall be automatically terminated as of that date without any further action by the City. 1.4 Restrictions on Use of Facilities. Licensee shall not use, and shall prohibit its Agents (defined as follows) or Invitees (defined as follows) from using the Facilities other than for the purposes specified herein. The term "Agents" shall mean Licensee's officers, directors, members, agents, employees, invitees, contractors, subcontractors, and any employees of such parties. The term "Invitees" shall mean Licensee's invitees, guests, customers or business visitors. The Invitees shall have access, during normal operating hours, to the Licensed Area by way of the common areas of SARTC. Notwithstanding the foregoing, the public and Licensee's Invitees shall not block any paths in ingress or egress or the permitted areas of any other licensee or tenant of SARTC. 1.5 City Approval of Licensee's Buses. Licensee shall provide the City with documentation listing for each and every bus providing services at the SARTC: (1) Registered owner; (2) VIN number; (3) License plate number; (4) USDOT number; (5) Proof of authorization from the Federal Motor Carrier Safety Administration ("FMCSA"); (6) Proof of insurance; and (7) An annual list of all licensed drivers who may operate the buses, provided that Licensee may utilize drivers not identified on the list in case of unavailability so long as all substitute drivers have all applicable licenses and qualifications and the names and qualifications of the substitute drivers are provided to the City within fourteen (14) days. In the event such information is the subject of a request under the California Public Records Act, City will refrain from disclosing personal contact or other information that may be private, but only to the extent permissible under the Act and its interpreting authorities. Additionally, Licensee shall ensure that use of the Bus Bays shall be by clearly marked buses identifying the Licensee's company name and USDOT number. Licensee agrees that it will provide the City with a list of buses that will use Bus Bay #4 as a precondition for use of the Bus Bays. Any additional buses must be approved by the City prior to beginning service. The use of any non -approved bus at the SARTC by Licensee or Licensee's failure to have the required authorizations from USDOT and FMCA, or any other applicable government or regulatory body, shall constitute a breach of this Agreement and will result in immediate termination thereof. 1.6 Compensation. As consideration for its use of the License Area and related Facilities, Licensee agrees to pay a monthly fee of $4,500 per month ("License Fee") for the term of this Agreement. Licensee shall commence the payment of the License Fee on the Commencement Date. Such payment shall be made payable to the City of Santa Ana, in advance for each month, and at the following address: payable to "The City of Santa Ana" and remitted to: City of Santa Ana M-13, 20 Civic Center Plaza, PO Box 1988, Santa Ana, CA 92702. A late charge of ten percent (10%) shall be Mplied to aLiy payment hereunder due but uDpaid after the 10of the month. The consideration for this License shall be subject to a CPI adjustment annually for the most current period (for All Urban Consumers) annually on the anniversary of the Commencement Date of this Agreement. 0 1.7 AS -IS Condition. City makes no representation or warranty of any kind as to the condition of the License Area or any other matter relating to Licensee's use of the License Area. Licensee hereby disclaims and waives any and all objections to the physical and other characteristics and conditions of the License Area. Licensee acknowledges and agrees that the use of the License Area will be on the basis of Licensee's own investigation of the condition of the License Area. The license to use the License Area shall be granted on an "AS -IS," "WITH ALL FAULTS" basis, without representation or warranty expressed or implied by City, or by operation of law. City expressly disclaims, which Licensee hereby acknowledges and accepts, any implied warranty of condition or fitness for a particular purpose or use. Licensee's use of the License Area shall be subject to the License Area being in a usable and safe condition at the time of Licensee's use and Licensee shall be responsible for determining whether the License Area is in such condition, In connection therewith, in the event that the License Area or access thereto is damaged or obstructed or the use by Licensee is otherwise impaired, prevented or limited, City shall have no obligation or duty to repair the damage or rectify the condition to make the License Area usable or safe. 1.8 No assignment of License. The permission, rights and privileges granted hereunder are nonexclusive and nontransferable. Licensee shall not, either voluntarily or by action of law, assign or transfer this License or any obligation, right, title or interest assumed by Licensee herein without the prior written consent of the City. If Licensee attempts an assignment or transfer of this License or any obligation, right, title or interest herein without City's prior written consent, City may at its option, terminate the License pursuant to Section 1. 10 below and shall thereupon be relieved frorn any and all obligations to Licensee or its assignee or transferee. Notwithstanding the foregoing, Licensee may grant permission to an affiliate or subsidiary to utilize the License Area upon the City's express prior written approval, which consent may be withheld in the City's sole and absolute discretion 1.9 Agtgemenl to Protect and Maintain Facilities. Licensee, on behalf of its Agents and Invitees, agrees to take all prudent action to protect the Facilities from any damage or injury caused by the exercise of this License. Licensee shall immediately notify City of any damage or injury to the Facilities caused by its use of the Facilities. No temporary or p ermanent signs or awning shall be erected or maintained upon or attached to the outside of the promises except such signs which have been approved in advance by City, 1.10 Ct's Right of Suspension, Termination. City reserves the right to immediately suspend all activities or terminate this Agreement upon Licensee's non-compliance with any of the terms or conditions of this Agreement. Such suspension or termination shall be effective immediately. City may temporarily suspend access to and use of all or any portion of the License Area for operational, maintenance, repair, security, emergency or other purposes at City's discretion. City will provide Licensee with as much notice as is reasonably possible prior to any such suspension, which notice will include: (a) the date when such suspension of access and use will commence; (b) the anticipated duration of such suspension of access and use; (c) the reason for such suspension of access and use; (d) that portion of the License Area subject to such suspension of access and use and (e) if feasible, provide Licensee an alternative location in proximity to the License Area in order to continue bus operations. During such periods of suspension, Licensee will be unable to access, use or operate on that portion of the License Area to which City has suspended access and use. If, during such periods, Licensee desire or need to continue to operate its bus service, it shall be solely responsible for the provision of the same without the use of that portion of the License Area over which access and use have been suspended. City shall not be liable for any cost or damage incurred by Licensee as a result of any suspension of access or use pursuant to this Section 1.10, including, without limitation, any consequential damages resulting therefrom. City shall use reasonable commercial efforts to provide alternate space in the License Area during the period of suspended access and use. 1.11 Compliance with Laws-, Regulatory Approvals. Licensee shall, at its sole expense, conduct and cause to be conducted all activities on the Facilities in compliance with all laws, regulations, codes, ordinances and orders of any governmental or other regulatory entity, and whether or not in the contemplation of the parties. 1.12 Indemnification. Licensee or its sublicensees (collectively and/or individually "Licensee") shall indemnify, defend, and hold harmless City, and its respective agents, representatives, employees, subsidiaries and affiliates ("Covered Parties") from and against any and all actions, suits, claims, demands, judgments, losses, expenses, or liabilities, injuries and damages to persons and property, including death, arising out of or related to Licensee's use of the License Area, the entry by any Licensee Party on the License Area or any portion of the Property or surrounding property, or Licensee's breach or default in the performance of any of its obligations under this Agreement; provided, however, that Licensee will not be obligated to indemnify the Covered Parties from any claims arising solely from the negligence or willful misconduct of a Covered Party. If any action or proceeding is brought against any Covered Party by reason of any such claim, Licensee, upon receipt of written notice from Covered Party, shall defend the same at Licensee's expense with legal counsel reasonably acceptable to Covered Party. Payment of any settlement or judgment by Covered Parties shall not be a condition precedent to recovery under any indemnification in this Agreement, and a finding of liability or an obligation to indemnity shall not be a condition precedent to the duty to defend. Licensee agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 1.12 from each and every sublicensee under this Agreement. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. The provisions of this Section 1.12 shall survive the termination or expiration of this Agreement. 1.13 Liabili1y Insurance. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Consultant, his agents, representatives, employees or sub - consultants. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an Gioccurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 3. Property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision. If the License maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the License. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the city. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the License including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the License's insurance (at least as broad as ISO Form CG 20 10 1185 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 3 8; and CG 20 37 if a later edition is used). Primary Coveragee For any claims related to this contract, the License's insurance coverage shall be primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the License's insurance and shall not contribute with it. Notice of Cancellation Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the city. Waiver of Subrogation License hereby grants to City a waiver of any right to subrogation which any insurer of said License may acquire against the City by virtue of the payment of any loss under such insurance. License agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. Self -Insured Retentions Self -insured. retentions must be declared to and approved by the City. The City may require the License to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A,M. Best's rating of no less than A:V11, unless otherwise acceptable to the City. Claims Made Policies (note — should be applicable only to professional liability, see below) If any of the required policies provide claims -made coverage: 1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be providedfor at leastfive (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the License must purchase "extended reporting" coverage for a minimum of five (5) years after completion of work. Verification of Coverage License shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the License's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Subcontractors License shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and License shall ensure that City is an additional insured on insurance required from subcontractors. Special Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 2. MISCELLANEOUS TERMS 2.1 Notices, Demands and Communications between the Parties. 2.1.1 Formal notices, demands and communications between Licensee and City shall be deemed sufficiently given if-. (i) dispatched by registered or certified mail via the United States Postal Service, postage prepaid, return receipt requested, as designated in this Section; or (ii) by messenger service for immediate personal delivery; or (iii) by electronic transmittal, including fax transmissions with telephonic verification receipt. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may &om time to time designate by written notice to the other Party. 2.1.2 All notices, demands and communications shall be sent, as follows: TO LICENSEE: Greyhound Lines, Inc. Attention: Real Estate P.O. Box 660362 Dallas, TX 72566-0362 TO CITY: Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-22) Santa Ana, California 92701 Attention: Executive Director of Public Works AND City Attorney's Office City of Santa Ana 20 Civic Center Plaza (M29) Santa Ana, California 92701 Fax: (714) 647-6515 2.1.3 Notices that are dispatched by registered or certified mail through the United States Postal Service shall be deemed to be received, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, five (5) calendar days after deposit with the United States Postal Service. Notices that are dispatched by messenger for immediate personal delivery services shall be deemed received upon the day dispatched. Notices dispatched by express delivery services shall be deemed received upon execution of 6 the delivery receipt by the Party receiving such notices. Notices dispatched through electronic transmittals shall be deemed received upon telephonic verification of such receipt. 2.2 Amendment. With the exception of a reassignment of the License Area as described in section 1. 1, this Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing signed by both Parties. 2.3 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. 2.4 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 2.5 Time is of the Essence. For each provision of this Agreement which states a specific amount of time within which the requirements thereof are to be satisfied, time shall be deemed of the essence. 2.6 Governing L . This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws principles. This Agreement shall be deemed to have been made in the County of Orange, California, regardless of the order of the signatures of the Parties affixed hereto. Any litigation or other legal proceedings which arise tinder or in connection with this Agreement shall be conducted in a federal or state court located within or for Orange County, California. The Parties consent to the personal jurisdiction and venue in federal or state court located within or for the County of Orange, California and hereby waive any defenses or objections thereto including defenses based on the doctrine of forum non conveniens. 2.7 Litigation Enenses. If either party to this Agreement commences an action against the other party to this Agreement arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing party. 2.8 Construction, References; CVtions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days, except as otherwise specified in this Agreement. All references to City include all officials, officers, employees, personnel, agents, volunteers, contractors and subcontractors of City, except as otherwise specified in this Agreement. All references to Licensee include their officials, officers, employees, personnel, agents, volunteers, contractors and subcontractors, except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, I imit, augment, or describe the scope, content, or intent of this Agreement. 2.9 Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Either Parties' consent or approval of any act by the other Party requiring its consent or approval shall not be deemed to waive or render unnecessary its consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 2.10 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different 7 times, of any other rights or remedies for the same default or any other default by the other Party. All warranties and promises to indemnify shall survive the termination, abandonment, or completion of this Agreement. 2.11 Legal. Counsel. Each Party acknowledges that: (1) it bag read this Agreement; (ii) it has had the opportunity to have this Agreement explained to it by legal counsel of its choice; (iii) it is aware of the content and legal effect of this Agreement; and (iv) it is not relying on any representations made by the other Party or any of the emptoyces, agents, representatives, or attorneys of the other Party, except as expressly set forth in this Agreement. 2.12 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder. 2.13 Binding Effect, The terms of this Agreement shall inurc to the benefit of, and shall be binding upon, each of the Parties and their respective successors and assigns. 2.14 Authorized ftresentatives. The person or persons executing this Agreement on behalf Licensee and City warrants and represents that he/she has the authority to execute this Agreement on behalf of that Party and that he/she has the authority to bind that Party to the performance of its obligations hereunder. 2.15 Entire Agreement. This Agreement constitutes the entire and integrated agreement of Licensee and City with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written negotiations, representations or agreements. [Signatures on thefollowing page] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: Daisy Gomez Clerk of the Council APPROVED AS TO FORM: Sonia R. Carvalho City Attorney 0 �� n;4 Jose Montoya Assistant City Attorney RECOMMENDED FOR APPROVAL: Nabit Saba Executive Director Public Works Agency CITY OF SANTA ANA Kristine Ridge City Manager GREYHOUND LINES, INC. 1�4 C a��- William C. Blankenship President & COO 9 EXHIBIT "A" 10 -Santa a, 7�'Tranis._ fop 5.s.nta�Akna R tonal *6 CiAler a, na oil kti-11h.. CIO e