HomeMy WebLinkAbout2002 CON McDonald Transit - Bus Contract ExtensionmcD011ALD TRAIISIT ASSOCIATES, Inc.
4040 FOSSIL CREEK BOULEVARD, SUITE 200 • FORT WORTH, TEXAS 76137
(817) 232-9551 • (817) 232-9560 FAX
March 7, 2002
Mr. Tom McCabe
City Manager
City of National City
1234 National City Blvd.
National City, CA 91950
Dear Mr. McCabe,
The current agreements between the City of National City and McDonald Transit Associates, Inc.
and our subsidiary Bayshore Transit Management, Inc. include five year terms (July 1, 1997
through June 30, 2002).
The term (2. TERM - page 1 of the Contract to Operate Transit Service Agreement) includes the
provision for extension by giving written notice to extend.
The term (2. DURATION - page 1 of the Maintenance & Operating Agreement) includes the
provision for extension by giving written notice to extend.
The purpose of this letter is to present the ELECTION TO EXTEND as called for in the
agreements.
We are very proud that National City Transit is one of the safest, most efficient (riders per mile)
systems in the United States. Thank you for providing the policy guidance which has made this
possible.
The employees of Bayshore Transit Management, Inc., Freddy Rios, John Wilson and I are each
proud to be a part of your winning team.
Sincerely
obert`fi. Babbitt
President
City of National City
Office of the City Attorney
1243 National City Boulevard, National City, CA 91950
George H. Eiser, Ill ■ City Attorney
(619) 336-4220 FAX (619) 336-4327 TDD (619) 336-1615
TO: Mayor and City Council
FROM: City Attorney
SUBJECT: Proposed Contracts for Transit System
DATE: June 13, 1997
The City, through a number of contract amendments and extensions, has contracted with
McDonald Transit Associates, Inc. to provide its transit services since 1979. The current
contract extension is set to expire on June 30, 1997, although the City has an option to
renew on the same terms and conditions as the existing contract for an additional two (2)
years. It is proposed that a new contract, entitled "Contract to Establish and Operate
Transit Service" be entered into. The following is a summary of the main features of the
proposed contract.
• The contract is between the City, McDonald Transit Associates, Inc. ("McDT")
and Bayshore Transit Management, Inc. ("BTM"). McDT is a Texas corporation;
BTM is a California corporation, which serves as the employer of National City -
based transit employees, excluding the Resident Manager, who is employed by
McDT.
• The scope of services is to operate and manage a motor bus transit system, acting
through a Resident Manager.
• The term is for five (5) years, with McDT and BTM having the option to extend
at each one (1) year anniversary, effectively establishing a continuous five (5) year
term. The City may terminate the contract for the following reasons:
- If TDA funding is eliminated or reduced.
- For convenience upon one (1) year's notice.
• Costs of operating the transit system, and compensation paid to McDT for
operating the transit system, are controlled through a City -approved budget. Costs
of operating the system are funded by the City solely from Transportation
Development Act (TDA) funding.
Recycled Paper
Proposed Contract for Transit System
June 13, 1997
Page Two
• Fare revenue shall be paid to the City.
• McDT and BTM will furnish an annual audit of its operations.
• McDT shall furnish fidelity and surety bonds for its employees.
• BTM shall indemnify and provide insurance coverage for liability to the City
arising from the performance of the contract by McDT or BTM.
• McDT and BTM agree not to acquire any interest in conflict with its performance
of services for National City.
In previous years, McDonald Transit occupied a temporary "facility" at the Public
Works Yard on Hoover Avenue. Recently, a new facility was acquired at 522 West 8th
Street. It is proposed that the respective rights and responsibilities of the City, McDonald
Transit, and Bayshore Transit in the use of the facility be memorialized in a "Mainte-
nance and Operating Agreement." The following is a summary of the main features of
this agreement.
• The premises are the real property and improvements at 522 West 8th Street.
• The term is the same as with the "Contract to Establish and Operate Transit
Service." If that contract terminates, the "Maintenance and Operating Agreement"
terminates automatically.
• McDT shall pay the City, as consideration for the use of the facility, $84,000
annually, subject to a minimum upward only adjustment of 5 % per year, or the
adjustment caused by application of the Consumer Price Index, whichever is
greater. Consideration is payable solely from TDA funds.
• McDT and BTM are responsible for maintenance and repair.
• The City shall insure the real property; McDT and BTM shall insure all personal
property.
• The City may terminate the agreement upon ninety (90) days' notice if the
property is needed for a public or municipal purpose other than for bus storage and
maintenance, or for convenience upon one (1) year's notice, or for default.
Proposed Contract for Transit System
June 13, 1997
Page Three
• No signs may be placed on the premises without City Council approval.
• If any possessory interest tax is assessed by the County, it shall be paid by McDT
and BTM.
• BTM shall indemnify the City and provide insurance coverage for liability to the
City arising from use of the premises by McDT or BTM. The City is also
indemnified from liability arising from the presence of hazardous materials on the
premises if caused by McDT or BTM's operations.
f",3
GEORGE H. EISER, III
City Attorney
GHE/gmo
RESOLUTION NO. 97-82
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF NATIONAL CITY
AUTHORIZING THE MAYOR TO EXECUTE
A "CONTRACT TO ESTABLISH AND OPERATE
TRANSIT SERVICE" AND A "MAINTENANCE
AND OPERATING AGREEMENT" WITH
MCDONALD TRANSIT ASSOCIATES, INC.
AND BAYSHORE TRANSIT MANAGEMENT, INC.
WHEREAS, the City currently contracts with McDonald Transit Associates, Inc.
to provide transit service with the City; and
WHEREAS, McDonald Transit, Associates, Inc., through Bayshore Transit
Management, Inc., has provided excellent service to the City during the term of said contract;
and
WHEREAS, said contract is set to expire on June 30, 1997, and the City,
Mcdonald Transit Associates, Inc. and Bayshore Transit Management, Inc., desire to extend the
Term by entering into a new "Contract to Establish and Operate Transit Service;" and
WHEREAS, the City has recently completed construction of its new Transit
Facility at 522 West 8th Street, which will be utilized by Mcdonald Transit Associate, Inc. and
Bayshore Transit Management, Inc. in operating the City's transit system; and
WHEREAS, the City, McDonald Transit Associates, Inc., and Bayshore Transit
Management, Inc. desire to memorialize their respective rights and responsibilities with respect
to the utilization of the Transit Facility by entering into a "Maintenance and Operating
Agreement."
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
National City that the Mayor is hereby authorized to execute a "Contract to Establish and
Operate Transit Service" and a "Maintenance and Operating Agreement" with McDonald Transit
Associates, Inc. and Bayshore Transit Management, Inc. Said documents are on file in the
office of the City Clerk.
Continued on Page Two
Resolution No. 97-82
June 17, 1997
Page Two
PASSED and ADOPTED this 17th day of June, 1997.
George H. Waters, Mayor
ATTEST:
I
ael R. Dalla, City Clerk
APPROVED AS TO FORM:
gm: ar
George H. Eiser, III
City Attorney
Passed and adopted by the Council of the City of National City, California, on June 17, 1997, by
the following vote, to -wit:
Ayes: Council Members Beauchamp, Inzunza, Morrison, Zarate, Waters.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY: GEORGE H. WATERS
Mayor of the City of National City, California
MICHAEL R. DALLA
City Clerk of the City of National City, California
By:
Deputy
I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of
RESOLUTION NO. 97-82 of the City of National City, California, passed and adopted by the
Council of said City on June 17, 1997.
---.;-4°f%1-1C Clerk of the C of National City, California
By:
Deputy
CONTRACT TO OPERATE TRANSIT SERVICE
THIS CONTRACT AND AGREEMENT made and entered into on this the 17th day of
June A.D. 1997, by and between the CITY OF NATIONAL CITY, a municipal corporation
located in San Diego County, California, hereinafter called "City," acting by and through its duly
authorized Mayor, MCDONALD TRANSIT ASSOCIATES, INC., a Texas corporation, hereinafter
called "McDT" acting by and through its duly authorized President, and BAYSHORE TRANSIT
MANAGEMENT, INC., a California corporation, hereinafter called "BTM," acting by and through its
duly authorized President.
WITNESSETH:
WHEREAS, City desires to provide public bus transportation service in the City of National
City; and
WHEREAS, City had determined that it requires the services of a professional transit
management company to operate and manage such service; and
WHEREAS, City is authorized to enter into a contract for the operation and management of said
transportation system; and
WHEREAS, McDT is desirous of providing such operational management services by acting as
an independent contractor, together with BTM.
NOW, THEREFORE, in consideration of the foregoing recitals and covenants and agreements
of each of the parties herein set forth; the parties hereto do agree as follows:
1. SCOPE OF SERVICES:
City does hereby engage McDT to operate and manage a motor bus transit system to be
conducted in and about the City of National City, California, as an independent contractor, on the terms
and conditions hereinafter set forth.
The routes, hours of operation and frequency of service shall continue as presently operated. It
is understood and agreed that City may, from time -to -time, vary the level of service or other factors
relating to routes hours of operations, etc., in an effort to prescribe maximum transit service to its
citizens.
2. TERM:
The term of this contract and agreement shall be for a period of five (5) years from the date first
above written. If, not later than one (1) year after the date first above written, and on each successive
anniversary of the making of this Agreement McDt and BTM are not then in default of this Agreement,
McDT and BTM may extend this Agreement for a five (5) year term, by giving written notification to
CITY of McDT and BTM's election to extend.
City shall have a right of immediate cancellation of this agreement if funding to City from the
Local Transit Fund of the State of California is eliminated or reduced so that the undertakings in this
agreement cannot be met, or any changes in State or Federal law or regulations which limits the ability
of City to operate transit services as herein described. City may without penalty terminate the
Agreement, or any extension thereof, at its convenience upon one (1) year's notice to McDT and BTM.
3. MAINTENANCE OF CALIFORNIA CORPORATION:
McDT covenants and agrees that it will maintain, at its sole cost and expense, the California
corporation, Bayshore Transit Management, Inc., called "BTM," which corporation shall serve as
employer of National City based transit employees, excluding the Resident Manager.
Any contractual obligations or liability entered into or assumed by BTM and approved by City,
in connection with the operation of the transit system, shall be binding upon BTM only for the term of
this agreement, as same may be extended, and thereafter BTM and McDT shall have no further
obligation.
4. RESIDENT MANAGER:
McDT agrees to furnish a qualified, diligent, expert and efficient executive, who will be assigned
to, and perform the functions of, the position of Resident Manager, who will serve as operating officer
and be responsible for day-to-day operation of all departments of the system in an efficient and effective
manner.
The selection and appointment of the Resident Manager, and any such subsequent appointees,
shall be the responsibility of McDT but shall not be made without first obtaining the advice and consent
of the City Manager of City. In the event of the disability of any person acting in the position of
Resident Manager for a period in excess of three (3) months, McDT covenants and agrees to secure a
qualified individual to fill said position for as long as such disability may continue, or to replace such
individual, if necessary, all subject to the advice and consent of the City Manager.
Resident Manager will establish offices in the City of National City for the purpose of conducting
business on a day-to-day basis. Such offices will be sufficiently staffed and equipped to efficiently carry
out the management and administration of transit services as may be from time -to -time prescribed by the
City or otherwise provided herein.
McDT further covenants and agrees to furnish expert management services and/or consultation
in all areas of the public bus transportation industry, including but not limited to the following:
A. Overall management and policy direction.
B. Management continuity.
C. Management personnel development and training.
(And recruitment as necessary)
D. Monitoring and evaluation of all operations, systems and procedures.
Examples of such areas of responsibility are:
(1) Operations and research.
(2) Finance and accounting.
(3) Safety, accident prevention and insurance.
(4) Schedules, transfers, transportation and routing, including coordination
of same with adjoining municipalities and transit systems.
(5) Maintenance and purchasing equipment.
(6) Preparation and processing of Local Transit Fund claims as directed by
the City Manager.
(7) Coordination with Metropolitan Transit Development Board, San Diego
Transit Corporation, Comprehensive Planning Organization or other
regional or sub -regional transit organizations as may be from time -to -
time required by City.
(8) Establishment of linkages and coordination with other transit operations,
firms or corporations in order to provide efficient transfer of ridership
to connecting systems.
5. CITY REVIEW:
All services to be rendered hereunder by McDT and BTM shall be subject to reasonable review
by City. McDT shall make recommendations, or City may request information or recommendations, as
to any areas of operation which are deemed appropriate and proper, and the decision of City shall be
binding and final in regards thereto.
6. BUDGET AND EXPENDITURE AUTHORITY:
Subject to an annual budgeting process whereby maximum expenditure limitations are fixed, City
agrees to fund solely from Transportation Development Act (TDA) funding, all costs of operating the
transit system within City's area of jurisdiction through the establishment of a BTM imprest fund
reimbursed by City upon presentation of proper expense documentation. City further agrees to furnish
BTM all offices, office furniture, equipment, materials, supplies, revenue vehicles, supervisory vehicles
and bus maintenance and storage facilities and equipment as may be required by BTM in the performance
of this agreement, either in kind, or through reimbursing BTM for the cost of providing same. McDT
and BTM will purchase goods and services within the National City, California area for operation of the
transit system, to the extent feasible and economical and to the best interest of City.
Said annual budget shall be prepared using a format and schedule of accounts as may be
prescribed by the City Manager. The City shall prescribe such levels of service pursuant to Section 1
herein and approve the annual operational budget. Such approval shall become authorization for McDT
and BTM to proceed and furnish such transit services as required.
Total budgetary authorization as approved by the City may not be exceeded by McDT or BTM.
City may notify said annual budget upon request of McDT in the event City desires to expand or change
the level of service or recognizes unforseen or unusual costs not anticipated in the approved budget.
McDT covenants and agrees to prepare, submit and recommend a proposed annual budget for the
operation of the bus transportation system for the same fiscal year under which City operates, subject to
change during the year with the consent of City. Such proposed budget shall be prepared and submitted
in accordance with a schedule of presentation and submission approved by the City Manager or his duly
authorized representatives.
Annual operating budget shall, upon approval by City, be attached to and incorporated into the
terms and conditions of this agreement by reference and as if fully set forth herein.
7. ACCOUNTING AND AUDITING:
McDT and BTM further covenant and agree that they will comply with all accounting procedures
established by City and the uniform chart of accounts for transit operators prescribed by the Controller
of the State of California.
All books and records of BTM will be subject to inspection and audit, upon reasonable notice and
at reasonable times, by City or its representatives. McDT and BTM will give periodic reports to City
showing financial and statistical data on operation of the transit system in such format and at such times
as shall be designated by City.
McDT and BTM will furnish an audit of its annual operations in a form prescribed by City on
or about September 1 of each year prepared by a qualified certified public accountant.
8. FIDELITY AND SURETY BONDS:
McDT at its sole cost and expense shall furnish to City all necessary fidelity and surety bonds
to protect, save whole and harmless, and indemnify City from and against dishonesty, fraud or theft
occasioned by any officer or employee of McDT, including the BTM Resident Manager. Coverage of
each such employee shall be in an amount of not less than One Million Dollars ($1,000,000).
BTM transit employees, excluding the Resident Manager, will be covered by a blanket fidelity
bond, the premium of which shall be considered as an operating expense, reimbursed by City.
9. INDEMNITY AND INSURANCE:
BTM agrees to indemnify, defend, and hold harmless City, and its officers, employees and
volunteers, against and from any and all liability, loss, damages to property, injuries to, or death of any
person or persons, and all claims, demands, suites, actions, proceedings, costs of attorneys' fees, of any
kind or nature, including workers' compensation claims, of or by anyone whomsoever, in any way
resulting from or arising out of McDT or BTM's performance of this Agreement.
BTM shall take out and maintain, throughout the period of this Agreement, at its sole cost and
expense, subject to the provisions of Section 6 herein, the following insurance policies:
Comprehensive general liability insurance with minimum limits of One Million Dollars
($1,000,000) combined single limit per occurrence, covering all bodily injury, and property damage
arising out of this Agreement.
Automobile insurance covering all bodily injury and property liability incurred during the
performance of this Agreement, with a minimum coverage of $10,000,000 combined single limit per
accident. Such automobile insurance shall include non -owned vehicles.
The aforesaid policies shall name City and its officers, agents, employees, and volunteers as
additional insureds, and shall constitute primary insurance as to City and its officers, agents, employees,
and volunteers so that any other policies held by McDT, BTM or City shall not contribute to any loss
under said insurance. Said policy shall provide for thirty (30) days' prior written notice to City of
cancellation or material change. Prior to commencement of this Agreement, BTM shall furnish to City
a certificate of insurance with original endorsements affecting coverage required by this clause.
The certificates and endorsements for the insurance policies are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be
received and approved by City before this Agreement is effective.
BTM shall procure and maintain during the term of this Agreement Workers' Compensation
Insurance in accordance with the laws of the State of California.
If the required insurance coverage is provided on a "claims made" rather than "occurrence" form,
BTM shall maintain such insurance coverage for three (3) years after expiration of the term (and any
extensions) of this Agreement.
Any aggregate insurance limits must apply solely to this Agreement.
If BTM does not keep an insurance policy in full force and effect at all times during the term of
this Agreement, City may elect to treat the failure to maintain the requisite insurance as a breach of the
Agreement and terminate this Agreement forthwith.
Insurance provisions of this Agreement may be reviewed by City from time to time, and the
required coverages increased as deemed necessary by City.
10. FARE REVENUE:
All fares and other revenues received by BTM in connection with operation of transportation
service within the City's area of jurisdiction shall be the property of City, and shall be deposited by BTM
into an account designated by City in compliance with all accounting procedures of City.
11. COMPENSATION:
City shall compensate McDT for the services performed by McDT and BTM hereunder a sum
per month to be mutually agreed by the parties as evidenced by a budget approved by City pursuant. to
Section 6 herein.
12. EQUAL OPPORTUNITY:
McDT and BTM covenant and agree that in connection with the performance of this contract and
agreement, they will not discriminate against any individual with respect to compensation, terms or
privileges of employment by reason of such individual's race, color, religion, sex or national origin,
under the same terms and conditions as the affirmative action employment policies of City used by City
in its employment practices.
13. CONFLICT OF INTEREST:
McDT and BTM covenant and agree that they presently have no interest, and will not acquire
any interest, direct or indirect, which conflicts with its efficient, diligent and faithful performance of the
terms of this contract and agreement.
14. LIAISON WITH CITY:
McDT and BTM and their officers, agents, employees and assignees, covenant and agree to
maintain close contact and cooperate with the staff of the City through a City staff member specifically
designated for such purpose and to furnish to said staff member regular reports on the operations of the
bus transportation system.
15. ASSIGNMENT AND TRANSFER:
This contract and agreement shall not be assigned or transferred by McDT or BTM without the
prior written consent of City.
16. NOTICES AND COMMUNICATION:
All notices hereunder and communications with respect to this contract shall be effective upon
the mailing thereof by registered or certified mail, return receipt requested, postage prepaid, and
addressed as follows:
A. If to McDT: McDonald Transit Associates, Inc.
4040 Fossil Creek Blvd
Suite 200
Fort Worth, TX 76137
B. If to BTM:
C. If to City:
General Manager
Bayshore Transit Management, Inc.
522 West 8th Street
National City, Ca 91950
City Manager
City of National City
1243 National City Blvd
National City, CA 91950
or to such other address as any party shall designate by written notice.
17. PERFORMANCE:
McDT and BTM shall not be liable to City for any failure, delay or interruption of service from
any cause, nor for failure or delay in performance of any obligations under this agreement due to strikes,
lock -outs, acts of God, governmental restrictions availability of fuel and supplies, enemy action, civil
commotion, unavoidable casualty or similar acts beyond the control of the Resident Manager.
IN WITNESS WHEREOF, the parties hereto have executed this contract and agreement on the
17th day of June , A.D., 1997, as of the date and year aforesaid.
ATTEST:
CITY OF NATIONAL CITY, CALIFORNIA
By:
-/4
e.WatersJMa
yor
'
City Clerk Georg
APPROVED AS TO FORM AND LEGALITY:
George H. Eiser, III, City Attorney
McDONALD TRANSIT ASSOCIATES, INC.
Bv:
Louis L. e P ident
BAYSHORE TRA► . " ' ANAGEM_ , INC.
By:
fAmcdmiald.cc
ouis L. eil, Presi
MAINTENANCE AND OPERATING AGREEMENT
This Maintenance and Operating Agreement is made and entered into this
17th day of June , 1997, by and between the City of National City,
California, hereinafter designated as "CITY," MC DONALD TRANSIT ASSOCIATES,
INC., a Texas corporation, hereinafter designated as "McDT," and BAYSHORE
TRANSIT MANAGEMENT, INC., a California Corporation, hereafter designated as
"BTM."
RECITALS:
A. CITY and McDT have previously entered into a contract entitled
"Contract to Establish and Operate Transit Service" wherein McDT has agreed to
establish, operate and manage a public bus transportation service within the City of
National City. In furtherance of providing this service, McDT has established a
California corporation, known as Bayshore Transit Management, Inc. ("BTM"), which
serves as the employer of National City based transit employees, including the Transit
Manager.
B. Said contract provides that McDT will establish offices in the City
of National City for the purpose of conducting business on a day to day basis. Said
contract further provides that CITY will furnish, through use of Transportation
Development Act (TDA) funds, McDT all offices, office furniture, equipment, materials,
supplies and bus maintenance and storage facilities and equipment.
C. CITY has recently acquired real property and improvements
commonly known as 522 West 8th Street, National City to be used for bus maintenance
and storage facilities, and McDT and BTM are desirous of utilizing said real property and
improvements for the purpose of establishing and maintaining such facilities.
NOW, THEREFORE, in consideration of the mutual benefit to be derived
therefrom, the parties hereto agree as follows:
1. PREMISES. The real property and improvements which are the
subject of this Agreement are situated in the City of National City, County of San Diego,
State of California, are commonly known as 522 West 8th Street, National City, and are
described in Exhibit "A" and depicted by cross -hatching on Exhibit "B" which are
attached hereto and incorporated herein by reference. Said real property and improve-
ments are sometimes referred to herein as "the premises."
2. DURATION. This Agreement shall be for a period of five (5) years
from the date first above written. If, not later than one (1) year after the date first above
written, and on each successive anniversary of the making of this Agreement, McDT or
BTM are not then in default of this Agreement, McDT and BTM may extend this
Agreement for a five (5) year term, by giving written notification to CITY of McDT and
BTM's election to extend. Notwithstanding the above, should the contract between
CITY, McDT and BTM entitled "Contract to Establish and Operate Transit Service"
1
terminate, then this Agreement shall thereupon automatically terminate without notice to
any party.
3. CONSIDERATION. As consideration for this Agreement, McDT
shall pay to CITY the sum of Eighty -Four Thousand and No/100 Dollars ($84,000.00)
per year, with the first payment being due within fifteen (15) days of the date of this
Agreement, and subsequent annual payments due on each anniversary thereof. The
consideration provided for in this Agreement shall be subject to an upward only
adjustment in the minimum amount of Five Percent (5%) per year, or the adjustment
caused by application of the Consumer Price Index, whichever is greater, at the
commencement of the second year of the term of this Agreement and each year
thereafter, including extended terms and/or option periods, if any. The Consumer Price
Index adjustment shall be based on the Consumer Price Index For All Urban Consumers,
published by the United States Department of Labor, Bureau of Labor Statistics for Los
Angeles -Anaheim -Riverside, California. Said consideration shall be payable solely from
Transportation Development Act (TDA) funds, subject to the availability of such funds.
4. USE. The above -described premises are to be used by McDT and
BTM for the purpose of maintaining a bus maintenance and service facilities and
administrative offices, and to be used exclusively and for no other purpose than to
maintain bus maintenance and storage facilities and administrative offices. Neither McDT
nor BTM shall use the premises or permit anything to be done in or about the premises
which will in any way conflict with any law, statute, ordinance or other governmental
rule or regulation now in force or which may hereafter be enacted.
5. IMPROVEMENTS. CITY, McDT and BTM recognize that it is
necessary to modify the existing buildings and other improvements on the premises in
order to permit use of the premises as bus maintenance and storage facilities, and to bring
the premises into compliance with the Americans with Disabilities Act. During the term
of this Agreement, any permanent improvements to the premises shall require the prior
written approval of CITY.
6. MAINTENANCE AND REPAIR. McDT and BTM shall be
responsible for the repair, upkeep and maintenance of the premises including any
improvements. McDT and BTM shall be responsible for all maintenance, including
janitorial and repair, and the costs of all utilities on the premises, and for the costs of any
permits that may be required. McDT and BTM shall to the satisfaction of CITY keep
the premises in as good order, condition and repair as reasonable use and wear thereof
will permit.
7. PROPERTY INSURANCE. CITY shall keep the improvements
located on the premises and considered part of the real property insured against loss or
damage by fire. McDT and BTM shall keep all personal property (as defined in Section
663 of the California Civil Code) located on the property insured against loss or damage
by fire.
8. INSPECTION. CITY, by and through its proper officers, reserves
and shall always have the right to enter the premises for the purpose of viewing and
ascertaining the conditions of the same and the operation and maintenance thereof.
9. TERMINATION.
a. Public or Municipal Purpose. Notwithstanding the provisions
of Section 2, CITY may without penalty terminate this Agreement, or any extension
thereof, upon ninety (90) days' written notice if in the judgment of CITY's City Council
the premises are needed for a public or municipal purpose other than bus storage and
maintenance facilities.
b. Convenience of City. Notwithstanding the provisions of
Section 2, CITY may without penalty terminate this Agreement, or any extension thereof,
at any time upon one year's notice to McDT and BTM.
10. REMOVAL OF IMPROVEMENTS. At the termination or
expiration of this Agreement or any renewal thereof, McDT and BTM shall, at CITY's
option and within thirty (30) days of written request by CITY, remove any and all
personal property and fixtures not owned by CITY, and placed on the premises during
the term hereof or any renewal hereof, and McDT and BTM agree that all expense
connected with such removal, including costs for repair of damage to the premises caused
by such removal, shall be borne by McDT and BTM. CITY shall have the right to sell,
destroy, remove, or otherwise dispose of any such personal property or fixtures left on
the premises longer than thirty (30) days after termination of this Agreement at McDT
and BTM's expense. For purposes of this Agreement, "personal property" and "fixtures"
shall have the meanings set forth in California Civil Code Sections 663 and 660,
respectively.
11. NON-DISCRIMINATION. McDT and BTM agree that there shall
be no discrimination against or segregation of any person or group of persons, because
of race, color, creed, national origin, sex, sexual orientation, ancestry, marital status,
physical handicap, or medical condition, in the use, occupancy, or enjoyment of the
premises, nor shall McDT or BTM, or any person claiming under or through them,
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of users in the premises.
12. WAIVER. The failure or omission of CITY to terminate this
Agreement for any violations of any of its terms, conditions, or covenants shall in no way
be deemed to be a consent by CITY to such violation and shall in no way bar, stop or
prevent CITY from terminating this Agreement thereafter, either for such or for any
subsequent violation of any such term, condition or covenant.
13. SIGNS. McDT and BTM agree that no sign, advertisement, or
notices shall be inscribed, painted or affixed on or to any part or portion of the outside
of the premises except to be of such type and color, size and style, and in such place as
may be approved by CITY's City Council.
14. TAXES. McDT and BTM recognize and understands that this
Agreement may create a possessory interest subject to property taxation and that McDT
and BTM may be subject to the payment of property taxes levied on such interest.
McDT and BTM further agree to pay any and all property taxes, if any, assessed during
the term of this Agreement pursuant to Sections 107 and 107.1 of the Revenue and
Taxation Code against McDT's possessory interest in the premises..
15. ASSIGNMENT. Neither this Agreement nor any interest therein
shall be assigned by McDT or BTM without the prior written approval of CITY.
3
16. LIABILITY INSURANCE. BTM shall take out and maintain,
throughout the period of this Agreement, at its sole cost and expense, subject to the
provisions of Section 6 of the aforementioned "Contract to Establish and Operate Transit
Service," the following insurance policies:
Comprehensive general liability insurance with minimum limits of One
Million Dollars ($1,000,000) combined single limit per occurrence, covering all bodily
injury, and property damage arising out of this Agreement.
Automobile insurance covering all bodily injury and property liability
incurred during the performance of this Agreement, with a minimum coverage of
$10,000,000 combined single limit per accident. Such automobile insurance shall include
non -owned vehicles.
The aforesaid policies shall name CITY and its officers, agents, employees,
and volunteers as additional insureds, and shall constitute primary insurance as to CITY
and its officers, agents, employees, and volunteers so that any other policies held by
BTM or CITY shall not contribute to any loss under said insurance. Said policy shall
provide for thirty (30) days' prior written notice to CITY of cancellation or material
change. Prior to commencement of this Agreement, BTM shall furnish to CITY a
certificate of insurance with original endorsements affecting coverage required by this
clause.
The certificates and endorsements for the insurance policies are to be signed
by a person authorized by that insurer to bind coverage on its behalf. The certificates and
endorsements are to be received and approved by CITY before this Agreement is
effective.
BTM shall procure and maintain during the term of this Agreement
Workers' Compensation Insurance in accordance with the laws of the State of California.
If the required insurance coverage is provided on a "claims made" rather
than "occurrence" form, BTM shall maintain such insurance coverage for three (3) years
after expiration of the term (and any extensions) of this Agreement.
Any aggregate insurance limits must apply solely to this Agreement.
If BTM does not keep an insurance policy in full force and effect at all
times during the term of this Agreement, CITY may elect to treat the failure to maintain
the requisite insurance as a breach of the Agreement and terminate this Agreement
immediately.
Insurance provisions of this Agreement may be reviewed by CITY from
time to time, and the required coverages increased as deemed necessary by CITY.
17. INDEMNITY AND HOLD HARMLESS. BTM shall indemnify
and hold harmless CITY and its officers, agents, employees and volunteers against and
from any and all claims arising from McDT or BTM's use of the premises for the
conduct of its business or from any other activity, work, or other thing done, permitted,
or suffered by McDT or BTM in/or about the premises; and shall further indemnify and
hold harmless CITY and its officers, agents, employees and volunteers against and from
any and all claims arising from any breach or default in the performance of any obligation
on McDT or BTM's part to be performed under the terms of this Agreement or arising
from any act or negligence of McDT or BTM or any officer, agent, employee, guest, or
4
invitee of McDT or BTM and from all and against all costs, attorney's fees, expenses,
and liabilities incurred in or about any such claim, or any action, or proceeding brought
thereon; and in case any action or proceeding be brought against CITY by reason of any
such claim, BTM, upon notice from CITY, shall defend the same at BTM's expense by
counsel reasonably satisfactory to. CITY. BTM shall not be required to indemnify and
hold CITY harmless for any negligent acts or omissions of CITY or its officers, agents,
employees or volunteers.
CITY and its officers, agents, employees and volunteers, except for claims
caused by any acts or omissions of CITY or its officers, agents, employees or volunteers,
shall not be liable for any damage to personal property of McDT or BTM or their
officers, agents, employees or volunteers, nor for loss or damage to any property by theft
or otherwise, nor for any injury to or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, or rain, which may leak from
any part of the premises or from the pipes, appliances, or plumbing works thereon, or
from the roof, street, or subsurface or from any other place resulting from dampness or
other cause whatsoever, unless caused by or due from the negligence or intentional act
of CITY, or its officers, agents, employees or volunteers. CITY and its officers, agents,
employees and volunteers shall not be liable for loss of business, nor for any defect in
the premises or in the building. BTM shall give prompt notice to CITY in case of fire
or accidents on the premises, or of defects therein.
18. INDEMNITY; WORKERS' COMPENSATION. BTM shall
comply with all of the provisions of the Workers' Compensation Insurance and Safety
Acts of the State of California, the applicable provisions of Division 4 and 5 of the
California Government Code and all amendments thereto; and all similar state or Federal
acts or laws applicable; and shall indemnify, defend and hold harmless CITY and its
officers, employees and volunteers from and against all claims, demands, payments, suits,
actions, proceedings and judgments of every nature and description, including attorney's
fees and costs presented, brought or recovered against CITY or its officers, employees,
or volunteers, for or on account of any liability under any of said acts which may be
incurred by reason of any work to be performed by McDT or BTM under this
Agreement.
19. INDEMNITY; ENVIRONMENTAL CONDITIONS. BTM, its
successors and assigns, shall indemnify, defend, and hold harmless CITY and its officers,
agents, employees and volunteers from and against any and all liabilities, losses, claims,
demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable
consequential damages), response, remedial, or inspection costs, and any expenses
(including, without limit, attorney and consultant fees, laboratory costs, and litigation
costs) of whatever kind or nature, known or unknown, contingent or otherwise, which
are incurred by or asserted against CITY at any time and arise from or relate directly to
(i) any Hazardous Materials or Other Conditions from, in, on, under, or affecting or
otherwise resulting from McDT or BTM's operations or activities on the premises; (ii)
migration of Hazardous Materials or Other Conditions onto any other property from
McDT or BTM's operations; (iii) disposal of Hazardous Materials and Other Conditions
on the premises by McDT or BTM; (iv) the removal, treatment, remediation, or disposal
5
of Hazardous Materials or Other Conditions on or from the premises by McDT or BTM;
and, (v) any personal injuries or property damages, real or personal, any violations of
law or of orders, regulations, requirements, or demands of governmental authorities, and
any lawsuit brought or threatened, settlement reached, or governmental order arising out
of or in any way related to Hazardous Materials or Other Conditions on, in, from, under,
or affecting or otherwise resulting from McDT or BTM's operations or activities on the
premises.
The agreement to indemnify, defend, and hold harmless set forth above is
in addition to, and in no way shall be construed to limit or replace, any other obligations
or liabilities which any party may have to or against the other parties at common law or
otherwise, and shall not apply to negligent acts or omissions of CITY, its officers, agents,
employees or volunteers.
For purposes of this Agreement, "Hazardous Materials" shall mean any
substance, product, waste, or other material of any nature whatsoever which (i) is or
becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq.
("CERCLA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et
seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.
("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq.; the Clean
Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act,
Health and Safety Code Section 25100 et seq.; the California Hazardous Substance
Account Act, Health and Safety Code Section 25249.5 et seq.; California Health and
Safety Code Section 25280 et seq.; (Underground Storage or Hazardous Substances); the
California Hazardous Waste Management Act, Health and Safety Code Section 25170.1
et seq.; California Health and Safety Code Section 2550 et seq. (Hazardous Materials
Release Response Plans and Inventory); or the California Porter -Cologne Water Quality
Control Act, Water Code Section 13000 et seq.; all as amended, or any other federal,
state, or local statute, law, ordinance, resolution, code, rule, regulations, order or decree
regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time
hereafter in effect, (ii) any substance, product, waste or other material of any nature
whatsoever which may give rise to liability under any of the above statutes or under any
statutory or common law theory based on negligence, trespass, intentional tort, nuisance
or strict liability or under any reported decisions of a state or federal court, (iii)
petroleum or crude oil other than petroleum and petroleum products, or (iv) asbestos.
"Other Conditions" shall mean and include, without limit, methane and other gases,
nonhazardous wastes or materials, and any soils conditions, physical conditions, or other
subsurface conditions which arise out of or in any way are related to current or previous
uses or activities on the premises.
20. INCREASED RISK. Neither McDT nor BTM will do or permit
anything to be done in or upon the premises, or bring in anything or keep anything
therein, which shall increase the rate of insurance on the premises above the standard rate
on said premises.
6
21. LEGAL FEES. If any party brings a suit or action against another
party arising from any breach of any of the covenants or agreements or any inaccuracies
in any of the representations and warranties on the part of the other party arising out of
this Agreement, then in that event, the prevailing party in such action or dispute, whether
by final judgment or out -of -court settlement, shall be entitled to have and recover of and
from the other party all costs and expenses of suit, including actual attorneys' fees.
22. MEDIATION/ARBITRATION. If a dispute arises out of or relates
to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to
settle the dispute by mediation in San Diego, California, in accordance with the
Commercial Mediation Rules of the American Arbitration Association the ("AAA")
before resorting to arbitration. The costs of mediation shall be borne equally by the
parties. Any controversy or claim arising out of, or relating to, this Agreement, or
breach thereof, which is not resolved by mediation shall be settled by arbitration in San
Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then
existing. Any award rendered shall be final and conclusive upon the parties, and a
judgment thereon may be entered in any court having jurisdiction over the subject matter
of the controversy. The expenses of the arbitration shall be borne equally by the parties
to the arbitration, provided that each party shall pay for and bear the costs of its own
experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses
or any part thereof against a specified party as part of the arbitration award.
23. TERMINATION FOR DEFAULT. All the terms, conditions, and
covenants of this Agreement are considered material and in the event McDT or BTM
breaches or defaults in the performance of any such terms, conditions, or covenants
which are to be kept, done, or performed by it, the CITY may give McDT and BTM
fifteen (15) days' written notice setting forth such breach of default; and if McDT or
BTM fail, neglect or refuse for a period of more than fifteen (15) days thereafter to
remedy, make good, or perform such breach or default, then CITY, without further
notice, may cancel this Agreement.
24. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered; or sent by
overnight mail (Federal Express or the like); or sent by registered or certified mail,
postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or
telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall
be deemed received upon the earlier of (i) if personally delivered, the date of delivery to
the address of the person to receive such notice, (ii) if sent by overnight mail, the
business day following its deposit in such overnight mail facility, (iii) if mailed by
registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside
the State of California) after the date of deposit in a post office, mailbox, mail chute, or
other like facility regularly maintained by the United States Postal Service, (iv) if given
by telegraph or cable, when delivered to the telegraph company with charges prepaid, or
(v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request,
demand, direction or other communication delivered or sent as specified above shall be
directed to the following persons:
7
To CITY: Tom G. McCabe
City Manager
City of National City
1243 National City Boulevard
National City, CA 91950
To McDT:
/.dyes 2 ,
harry Heil
President
To BTM:
�d ¢o J McDonald Transit Associates, Inc.
r�ss/r C��,��,
�4�TE ,2DD �' P.O. Box 1477
Fort Worth, TX 7149I
76137
A.J. Rios, Jr.
General Manager
Bayshore Transit Management, Inc.
522 West 8th Street
National City, CA 91950
Notice of change of address shall be given by written notice in the manner
specified in this Section. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed to constitute
receipt of the notice, demand, request or communication sent. Any notice, request,
demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax
must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified
in this Section.
25. MISCELLANEOUS PROVISIONS.
a. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute but one and the same instrument.
b. Captions. Any captions to, or headings of, the sections or
subsections of this Agreement are solely for the convenience of the parties hereto, are not
a part of this Agreement, and shall not be used for the interpretation or determination of
the validity of this Agreement or any provision hereof.
c. No Obligations to Third Parties. Except as otherwise expressly
provided herein, the execution and delivery of this Agreement shall not be deemed to
confer any rights upon, or obligate any of the parties hereto, to any person or entity other
than the parties hereto.
d. Amendment to this Agreement. The terms of this Agreement may not
be modified or amended except by an instrument in writing executed by each of the
parties hereto.
e. Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
f. Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement
between the parties as to the subject matter hereof. No subsequent agreement,
representation, or promise made by either party hereto, or by or to an employee, officer,
8
agent or representative of any party hereto shall be of any effect unless it is in writing
and executed by the party to be bound thereby.
g. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties hereto.
h. Construction. The parties acknowledge and agree that (i) each party
is of equal bargaining strength, (ii) each party has actively participated in the drafting,
preparation and negotiation of this Agreement, (iii) each such party has consulted with
or has had the opportunity to consult with its own, independent counsel and such other
professional advisors as such party has deemed appropriate, relative to any and all matters
contemplated under this Agreement, (iv) each party and such party's counsel and advisors
have reviewed this Agreement, (v) each party has agreed to enter into this Agreement
following such review and the rendering of such advice, and (vi) any rule or construction
to the effect that ambiguities are to be resolved against the drafting party shall not apply
in the interpretation of this Agreement, or any portions hereof, or any amendments
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date and year first above written.
CITY OF NATIONAL CITY MC DONALD TRA�TS1ASSOCIATES, INC.
GeorgeWaters, Mayor oui i , resident
APPROVED AS TO FORM: BAYSHORE ANAGEMENT, INC.
By:
v ✓
By:.
George 1I. Eiser, III Louis L. ell, resident
City Attorney
f:\mcdonald.bus
9
Parcel 2 of Parcel Map No. 2066, in the City of National
City, County of San Diego, State of California, said Map
on file in the Office of the County Recorder of San Diego
County, being a Division of Blocks 137, 182, 183 and 184,
Map 348, filedin the Office of County Recorder of San
Diego County, together with closed portions of Ninth and
Tenth Streets and Wilson Avenue, closed to public use,
all in National City.
Exhibit "A"
trc al/I �tXIIc' L2JY—i-VAb.3S AWI13a411:04 151.464'.V7/ •
!' {"LFj4:I._.I7
I .nyVol
fir.
1` Ir„1
- 1 I 1(�I ( f A *Wall' t � 4•_—la""
i t)11144 t
• _. Jr
rsiK-
•. _ iv; 004,
...rater rawas, i.0 �41..
s 7 1w
gyugswirr
.,p�rrryy y {�jyr�� p /�.rr�. , .
dr
d fe • f/,�i�•� • Cif A=`
�M:gill/litie� 'i w 2 .4
ft arrw.aw►
I a. AMI
,,aiikorreurIV'ii jer ►i►•►
�I IN.MIJN'JYWMA%M11W eriYw
•J5'
/y►Ar.fir/
JAM ~MM iLwow fa' Mrr fw►I rk• p►
oir
it 4 sr1 Mitiw►AW ViMAWl
:•�� 240-••01:4._01 yyrryy��.re1
;:re ••...r
f w
arw.wrR1 pm*,r:wni
move es e.a..41 44.4�iwe
99n? • 4/ri11�V 7-7%i'1fr -/
I l_I iof I ��v1 b
X ki 01t, f: f 1
1 _ LU _1.y�n �l. _1_ 1
JC61lI • XI(fr f►,lr,► i
_ 14.
e ,.„ Ls 1 1 't t ..-ii-—,„,lsi -Uri
-- a
�� r ar'a vy aefn 4l� I I I, l 1 .' j!
/�(Jr�a 7 rr1 I 11 E
�_� f�__.�� 1,4M10•W II.�I. '
O. I. I I M/Y I YY
1 -1....,1.. ♦ fP IL ,7S?I i�7Fa; r� ,y
wYrrpnlr,,I1P w',44. • ' r• gd f a
gyp. f.a74)iilJ 1kI✓N A' f .a• '' i*� 1 ::: 9d
-AY IYrM(Mif/U ISP..^tt►. —_o• I Yt� y tf 1
1 `•If„/► /hP.f r;•wrJp' _-- '^arbOar.+ ' �r:w,y:r .t _-:•s `
N ►W .rlilt ltrow• At: I, -,.. r_ F .A._ w
ryOII•irt1.14W" I u
_ . ,••
i' ; TC7
•