HomeMy WebLinkAboutGreyhound Lines - 2001 AgreementSUBLEASE
THIS SUBLEASE, for reference purposes only dated June 1, 2001, is entered into by and
between THE CITY OF 6ILROY, a municipal corporation ( "Sublessor') and GREYHOUND
LINES INC,. a Delaware corporation ("Subtenant").
Sublease Provisions.
1.1 Subordination; Default Under Lease. This Sublease is entered into as a sublease
under that certain Agreement for Lease of Real Property dated August 1 1996, as amended by
Lease Amendment dated January 15, 1998 (as amended, the "Lease ") by and between Santa Clara
County Transit District, a public agency (now known as the Valley Transportation Authority or
the VTA), as lessor ( "Lessor"); and Sublessor, as lessee. A copy of the Lease is attached hereto
as Exhibit A. This Sublease is subject and subordinate in all respects to the Lease, to the matters
to which the Lease is subject and subordinate, to all of Lessor's rights under the Lease, and to
any amendments to the Lease or supplemental agreements thereunder made between Sublessor
and Lessor. Subtenant covenants and agrees to refrain from doing or causing to be done, or
permitting any thing or act to be done, which would constitute a default under the Lease or might
cause the Lease or the rights of Sublessor as lessee under the Lease to be terminated or
surrendered, or which would or might make Sublessor liable for any damages, claims or penalty.
Notwithstanding anything in this Sublease to the contrary, Subtenant agrees that Sublessor shall
have no liability of any nature whatsoever to Subtenant as a consequence of Lessor's failure or
delay in performing Lessor's obligations under the Lease. Subtenant's obligations hereunder
(including without limitation the obligation of Subtenant to pay all Rentals (defined in
Paragraph 4.3 below)) shall not be impaired nor shall the performance thereof be excused because
of any failure or delay on Lessor's part in performing its obligations under the Lease unless.
(i) such failure or delay results from Sublessor's being in default under the Lease and Sublessor's
default thereunder is not due to a default of Subtenant hereunder, or (ii) such failure or delay
results from Sublessor's willful misconduct. Under no circumstances shall. Subtenant have the
right to require performance by Sublessor of Lessor's obligations. In the event of the termination
of Sublessor's interest as lessee under the Lease for any reason,. then this Sublease shall terminate
concurrently therewith without any liability of Sublessor to Subtenant.
1.2 Provisions Constituting Sublease. All of the terms and conditions
contained in Lease Paragraph 8, the first two sentences of Lease. Paragraph 10(a), the first
sentence of Lease Paragraph 10(c), and Lease Paragraphs 11(a), 11(b) (except for the last
sentence of the second paragraph of Paragraph 11(b)), 14(a), 15 and 16 are incorporated herein,
as terms and conditions of this 'Sublease (with each reference therein to District and City to be
deemed to refer to Sublessor and Subtenant, respectively, except that (i) the reference to City in
the last sentence. Lease Paragraph 8 shall remain a reference to Sublessor and not to Subtenant,
(ii) the reference to District in the first sentence of Lease Paragraph 10(c), and in Lease
Paragraphs 1.1(a) and 14(a) shall remain a reference to Lessor and not to Sublessor, (iii) the
reference to District in Lease Paragraph 11(b) shall be a reference to both Lessor and Sublessor,
and (iv) each reference to "Lease" to be deemed to refer to this Sublease) and along with all of
the paragraphs set out in this Sublease, shall be the complete terms and conditions of this
Sublease.
1.3 Lessor's Consent. Subtenant acknowledges that as to certain matters set
forth in this Sublease, Sublessor has rights of approval or disapproval. In addition, Subtenant
acknowledges that as to certain matters set forth in the Lease, Lessor has rights of approval or
disapproval. If any matter requiring Sublessor's approval is submitted to Sublessor by Subtenant
for Sublessor's approval, Sublessor shall respond to Subtenant in a timely fashion. If Sublessor
approves such matter and such matter further requires Lessor's approval, Sublessor shall
promptly submit the same to Lessor. In no event shall Sublessor's disapproval be deemed
unreasonable if Lessor has disapproved of such matter nor shall Sublessor have any liability to
Subtenant by reason thereof.
2. PREMISES. Sublessor hereby leases to Subtenant and Subtenant hereby leases
from Sublessor the portion of the "premises" described in Paragraph 1 of the Lease as the Depot
building commonly known as 7250 Monterey Road, Gilroy, California (the 'Premises'), upon all
of the conditions and agreements set forth in this Sublease. Subtenant acknowledges and agrees
that the Premises does not include any parking spaces. Subtenant further acknowledges and
agrees that Lessor shall have the right, but not the obligation, at any time during the Term to
redesign the parking areas in the vicinity of the Premises, to eliminate or replace all or any portion
of the exiting parking spaces with other improvements, and/or redesign pedestrian and vehicular
access and circulation in, to and around the Premises. Subtenant acknowledges and agrees that
such activities by Lessor may impact Subtenant's operations at the Premises, and neither Lessor
nor Sublessor shall have any liability in connection with such activities.
3. SUBLEASE TERM. Subject to Paragraph 23 below, the term of this Sublease
( "Term") shall be for five (5) years, commencing on June 1, 2001 (the "Commencement Date ")
and ending on May 31, 2006 ( "Expiration Date "), subject to any renewal option granted herein
and earlier termination as provided in this Sublease. "Lease Termination" shall mean the
expiration or sooner termination of this Sublease.
3.1 Early Entry. If Subtenant is permitted to occupy the Premises prior to the
Commencement Date for a fixturing period or any other purpose permitted by Sublessor, such
early entry shall be at Subtenant's sole risk and subject to all the terms and provisions hereof,
except for the payment of Base Rent and Real Property Taxes which shall commence on the
Commencement Date, subject to Paragraph 3.2. Sublessor shall have the right to impose such
additional conditions on Subtenant's early entry as Sublessor shall reasonably deem appropriate.
3.2 Delivery of Possession. If Sublessor is unable to deliver possession of the
Premises to Subtenant on the Commencement Date for any reason, Sublessor shall not be subject
to liability therefor, nor shall such failure affect the validity of this Sublease or the obligations of
Subtenant or extend the Commencement Date or the Expiration Date; provided that Base Rent
shall be abated beginning on the Commencement Date for a period.equal to the period of delay,
unless delay in delivering possession of the Premises is caused or contributed to by Subtenant or
Subtenant's agents, officers, employees, contractors, servants or invitees (collectively
"Subtenant's Agents "). Notwithstanding the foregoing, if Sublessor has not delivered possession
of the Premises within sixty (60) days after the Commencement Date, Subtenant may, at
Subtenant's option, terminate this Sublease by delivering to Sublessor written notice of
,termination, which notice shall be delivered prior to the date that Sublessor delivers possession of
the Premises to Subtenant.
3.3. Occupan cy. Subtenant shall take possession of the Premises, physically
occupy the Premises and open the Premises for business no later than thirty (30) days after the
Commencement Date; provided, however, that the date of Subtenant's physical occupancy shall in
no event extend the Commencement Date, the Lease Termination date or the date the.payment of
Rentals hereunder commences.
3.4 Acceptance. By taking possession of the Premises, Subtenant shall be
deemed to have accepted the Premises as being in good and sanitary order, condition and repair,
and in the condition required by the Sublease, subject to all applicable Laws. Sublessor shall have
no obligation to construct any improvements within the Premises for the 'benefit of Subtenant.
Neither Sublessor nor Sublessor's agents or employees makes any representation or warranty as
to the suitability of the Premises for the conduct of Subtenant's business, the condition of the
Premises, or the use or occupancy which may be made thereof and Subtenant has independently
investigated and is satisfied that the Premises is and will be suitable for Subtenant's intended use.
Subtenant is leasing the Premises "AS IS ", without representation or warranty of any kind,
express or implied.
3.5 Extended Tenn. Sublessor hereby grants to Subtenant three (3) options to
extend the Term (collectively, "Option(s) ") and each individually an "Option') each for a
consecutive period of five (5) years immediately following the expiration of the initial Term
(collectively, the `Extended Terms" and each individually an "Extended Term'), upon the
following terms and conditions:
(a) Subtenant shall give Sublessor written notice of its exercise of an
Option to extend the Term not later than one hundred eighty (180) days before the date the Term
would end but for said exercise.
(b) Subtenant shall not have the right to exercise the Option if (i)
Subtenant has been in default under this Sublease more than three (3) times during the Term of
this Sublease, or (ii) at the time of exercise Subtenant is in default under this Sublease. The
period of exercise for the Option shall not be extended for any period for which Subtenant is
unable to exercise the Option because of Subtenant's default.
(c) All terms and conditions of this Sublease shall apply during an
Extended Term, except that Base Rent shall be determined - as provided below in
Paragraph 4.1(b),. and there shall be no extension of this Sublease beyond the three (3) Extended
Terms granted pursuant to this Paragraph 3.5.
(d) * Upon the exercise of an Option, Subtenant may not withdraw such
exercise and, subject to Paragraph 4.1(b), such notice of exercise shall operate to automatically
extend the Term; provided, however, if as of the date the Extended Term is to commence
Subtenant has defaulted more than three (3) times under this Sublease or Subtenant is in default
on the date the Extended Term is to begin, then at Sublessor's option the Sublease shall not be
extended pursuant to the provisions of this Paragraph 3.5, but shall terminate on the date the
Term would end but for such extension.
4. , RENT.
4.1 Base Rent.
(a) Base Rent and Payment. During each month of the Term,
Subtenant shall pay to Sublessor as Base Rent the amount set forth below, subject to the
provisions of Paragraph 3.2 above:
Time Period
Months 1 through 60
First Extended Term
Second Extended Term
Third Extended Term
Amount
$ 650.00
To be negotiated
To be negotiated
To be negotiated
Base Rent shall be paid in advance on the first day of each calendar month throughout the Term
without offset, deduction, prior notice or demand, except that a full month's Base Rent shall be
paid upon the execution of this Sublease by Subtenant. Base Rent shall be prorated 'based on a
thirty (30) day month for any partial calendar month of the Term.
(b) Base Rent During Extended Term s). The parties shall have thirty
(30) days after Sublessor receives Subtenant's notice of exercise of the Option to extend the Term
pursuant to Paragraph 3.5 in which to agree on the Base Rent payable during that Extended Term. If
the parties agree on the Base Rent for that Extended Term during that period, they shall immediately
execute an amendment to this Sublease setting forth the Base Rent for that Extended Term.
If the parties are unable to agree on the Base Rent for that Extended Tenn during that period,
the Option notice shall be of no effect and this Sublease shall expire at the end of the then- current
Term. Neither party to this Sublease shall have the right to have a court or other third party set the
Base Rent.
4.2 Late Chartres. If Base Rent is not paid within fifteen (15) days . after the
due date, Subtenant shall pay a late charge of ten percent (10% o) of the amount overdue. The
parties agree that this late charge represents a fair and reasonable estimate of the costs that
Sublessor will incur by reason of the late payment by Subtenant. In no event shall this provision
for a late charge be deemed to grant to Subtenant a grace period or extension of time within
which to pay any installment of Base Rent or prevent Sublessor from exercising any right or
remedy available to Sublessor upon Subtenant's failure to pay such amounts when due, including,
without limitation the right to terminate this Sublease. Any installment of Base Rent not received
by Sublessor by the thirtieth (30th) day after its due date shall bear interest at the Stipulated Rate
(as that term is defined in Paragraph 20 below) commencing on the thirty -first (3 l st) day after the
due date for such installment and continuing until such installment is paid in full.
4.3 Additional Rent. In addition to the Base Rent due pursuant to this
Sublease, Subtenant shall pay to Sublessor the sums required to be paid by Sublessor to Lessor or
costs otherwise incurred by Sublessor pursuant to Lease Paragraphs 7, 9, 10(a) and 10(b) for the
period commencing on the Commencement Date and continu ing through the expiration_ of the
Sublease 'Term. All amounts which Subtenant is required to pay under this 'Sublease, and all
damages, costs and expenses which Sublessor may incur by reason of any default by Subtenant
under this Sublease shall be deemed to be additional rent hereunder ( "Additional Rent"). Upon
nonpayment of Additional Rent, Sublessor shall have all of the rights and remedies with respect
thereto as Sublessor has for the non - payment of Base Rent. "Rentals" as used in this Sublease
shall mean Base Rent and all Additional Rent. All Rentals shall be paid in lawful money of the
United States to Sublessor at the address specified in this Sublease for purposes of notice, or to
such other persons or at such other places as may be designated in writing by Sublessor from time
to time. All Rentals shall be paid without deduction or offset and, except as otherwise expressly
provided in this Sublease, without prior notice or demand.
5. [Retained For Numbering Purposes Only]
6. TAXES.
6.1 Real Property Taxes. Subtenant shall. pay, before the same become
delinquent, all Real Property Taxes imposed against the Premises. As used in this Sublease, the
term `meal Property Taxes" means any form of assessment, license, fee, rent tax, levy, possessory
interest or other tax (other than net income, estate, successor or inheritance taxes), now or
hereafter imposed by any authority having the direct or indirect power to tax or by any city,
county, state or federal government or any improvement or other district or division thereof,
whether or not now customary or within . the contemplation of the parties, ordinary or
extraordinary, general or special, or resulting from increased rate or valuation, together with any
taxes levied or assessed in lieu of, in substitution for, or in addition to existing taxes and
assessments against the Premises. In accordance with California Revenue and Taxation code
Section 107.6(a), Sublessor advises Subtenant that by entering into this Sublease, a possessory
interest subject to property taxes may be created. Subtenant shall be subject to the-payment of
property taxes levied on such interest.
6.2 Tax on Leasehold. or .Personalty: Subtenant shall be responsible for and
shall pay before delinquency all municipal, county or state taxes, levies and fees of every kind and
nature including, but not limited to, general or special assessments assessed during the Term
against any leasehold interest or trade fixtures or personal property of any kind, owned or leased
by or placed in, upon or about the Premises by Subtenant. Subtenant agrees to pay before
delinquency the amount of all taxes levied upon or measured by the rent payable hereunder,
whether as a so- called sales tax, transaction privilege tax, excise tax, or otherwise. If such taxes,
levies or fees are assessed, levied, or imposed upon Sublessor or any, portion of the Premises,
Sublessor shall give Subtenant a statement of the amount applicable to the Premises. If a separate
assessment of the improvements is not available from the appropriate governmental authority,
Sublessor's good faith allocation shall be binding on Subtenant. In such event, Subtenant shall
pay Sublessor on demand for such taxes, levies and fees applicable to the Premises.
7. CONDUCT OF BUSINESS BY SUBTENANT.
7.1 Uses of the Premises. Subtenant shall use the Premises only for the
operation of a Greyhound bus depot providing transportation to the public and for uses incidental
and related to the operation of a bus depot (such as taxi service, food service and bike lockers), in
a manner that is consistent with and which does not interfere with the use by Lessor of the
surrounding property for the Gilroy Caltrain Station and a Park - and -Ride lot, subject further to
this Section 7.1 below. Notwithstanding the foregoing, in no event shall Subtenant use any
portion of the Premises for the purpose of maintaining or repairing any buses, vehicles or other
equipment utilized by Subtenant in connection with its business at the Premises, nor shall any
portion of the Premises be used for the purpose of refueling any buses, vehicles or other
equipment. Subtenant's business shall be established and conducted throughout the term hereof in
a first -class manner. Subtenant acknowledges and agrees that the Premises shall be available and
may be used at all times for transit services provided by .Lessor, other commercial bus services,
local taxis and other transportation services providers, and that the Premises shall service patrons
utilizing such other services, including Caltrain patrons. In its use of the Premises, Subtenant shall
provide to the public and its patrons information provided to Subtenant by Lessor concerning
Lessor's transit services, including Caltrain. Subtenant acknowledges and agrees that the
Premises is to be a resource for all public transportation services in Gilroy, and as such Subtenant
shall (i) provide information and ticket sales for Caltrain. services, VTA bus services, local taxis,
commercial bus services and other transportation services, (ii) open the Premises for business and
commence and continue services at the Premises during at least the following hours: (1) on
Mondays through Fridays, inclusive, from 5:00 a.m. until 7:45 p.m., (iii) assure that the Building
and all its facilities are available for the use of VTA and commercial bus services, local taxis and
Caltrain patrons during the hours the business is open or is required to be open for business. In.
addition, Subtenant shall allow Lessor to install a lock on one of the restrooms located in the
Premises, keys for which may be provided to VTA bus drivers and other VTA personnel; and
thereafter Subtenant shall at all times (twenty four (24) hours per day, seven (7) days per week)
provide unobstructed_ access for VTA bus drivers and other VTA personnel to such restroorn
within the Premises. Subtenant shall not use the Premises for, or carry on, or permit to be carried
on, any offensive, noisy or dangerous trade, business, manufacture or occupation, nor permit any
auction sale to be held or conducted on or about the Premises. Subtenant shall not use or permit
the use of the Premises in arty manner, that will tend to create a nuisance or tend to injure the
reputation of the Premises or constitute waste. Subtenant shall not do or suffer anything to be
done within the Premises which will cause structural injury to the Premises; nor place any harmful
liquids in the drainage systems; nor dump or store waste materials or refuse or allow such to
remain outside the Premises proper, except in the enclosed trash areas provided, if any. Subtenant
shall not use or permit the use of the Premises or any pain thereof for any purpose which will
increase the existing rate of insurance upon the Premises, or cause a cancellation of any insurance
policy covering the Premises or any part thereof. If any ,act on the part of Subtenant or. use of the
Premises by Subtenant shall cause, directly or indirectly, any increase of Sublessor's insurance
expense, said additional expense shall be paid by Subtenant to Sublessor, as Additional Rent,
upon demand. No such payment by Subtenant shall limit Sublessor in the exercise of any .other
right; or remedies, or constitute a waiver of Sublessor's right to require Subtenant to discontinue
such act or use.
Subtenant shall not place or permit to be placed any sign in the parking or other
exterior areas of the Premises or on the exterior of the Building without the prior written consent
of - Sublessor. Subtenant, upon written notice by Sublessor, shall immediately remove any of
Subtenant's signs that Subtenant has placed or permitted to be placed on the Premises without the
prior written consent of Sublessor. If Subtenant fails to so remove such sign within five (5) days
after Sublessor's written notice, Sublessor may remove such sign and Subtenant shall pay
Sublessor, as an Additional Rent upon demand, the cost of such removal.
7.2 Compliance with Law. Subtenant at its expense shall comply promptly
with all applicable Laws regulating the use by Subtenant of the Premises which, subject to
Articles 8, 10 and 12, shall include required structural alterations. Subtenant shall comply with all
applicable Federal, State and local requirements policies relating to non - discrimination and
affirmative action. Subtenant shall be required to procure all permits and licenses (including
without limitation any required municipal license) required in connection with the occupation and
use of the Premises and the conduct of Subtenant's business therein. Subtenant at. its expense
shall take all steps required to cause the Premises to be kept, maintained, used and occupied in
compliance with the Americans With Disabilities Act of 1990, as the same may be amended from
time to time. Subtenant and Subtenant's Agents shall not use, store or dispose, or allow the use,
storage or disposal of any Hazardous Materials on any portion of the Premises. Subtenant shall
indemnify, defend, and hold Sublessor and Sublessor's officers, directors, councihnembers,
employees and agents harmless from and against any and all claims, losses, damages, liabilities, or
expenses (including without limitation attorneys' fees) arising in connection with the breach of the
obligations described in the previous sentence. As used in this paragraph, 'Hazardous Materials
means any chemical, substance or material which has been or is hereafter determined by any
federal, state or local governmental authority to be capable of posing risk of injury to health or
safety, including without limitation, petroleum, asbestos, polychlorinated biphenyls, radioactive
materials, radon gas and those substances, materials and wastes regulated under the Toxic
Substances Control Act, the Comprehensive Environmental Response; Compensation and
Liability Act, and the Resource Conservation and Recovery Act. Subtenant's obligation to
defend, hold harmless and indemnify pursuant to this Paragraph shall survive Lease Termination..
8. MAINTENANCE, REPAIRS, AND ALTERATIONS.
8.1 Lessor's and Sublessor's Obligations. Sublessor shall not be responsible to
Subtenant for furnishing any service, maintenance or repairs to the Premises which are the
obligation of Lessor, it being understood that such obligations are solely those of the Lessor
pursuant to the Lease. The failure of Lessor to fulfill its obligations. under the Lease or the
exercise by Lessor of any rights specified in the Lease shall not (i) entitle Subtenant to any
allowance, reduction or adjustment of Rentals, (ii) make Sublessor liable to Subtenant, (iii) excuse
or impair the obligation of Subtenant to perform or observe any of the terms or conditions of this
Sublease or (iv) entitle Subtenant to any claim of constructive eviction. If Lessor shall be in
material default under the Lease in any of its obligations to Sublessor with respect to the
Premises, Subtenant shall be entitled to participate with Sublessor in the. enforcement of
Sublessor's rights against Lessor (and in any recovery or relief obtained), but Sublessor shall have
no obligation to bring any action or proceeding or to take any steps to enforce Sublessor's rights
against Lessor. Arty steps, actions, or proceedings so instituted by Sublessor shall be at the
expense of Subtenant. Subtenant shall, by written notice to Sublessor, specify any such alleged
default by Lessor and Sublessor may, but shall not be obligated to, .after such notice elect to
(i) take action for the enforcement of Sublessor's rights against Lessor with respect to such
default or (ii) cure any such default to the extent permitted pursuant to the provisions of the
Lease. If Sublessor does not elect to do either of the foregoing, Subtenant shall have the right to
take enforcement action against Lessor in its own name and, for that purpose and only to such
extent, all of the rights of Sublessor to enforce the obligations of Lessor under the Lease are
hereby conferred upon and are conditionally assigned to Subtenant and Subtenant hereby is
subrogated to such- rights (including the benefit of any recovery or relief). Notwithstanding the
provisions of the immediately preceding sentence, in no event shall Subtenant be entitled to take
such action in its own name if (i) such action would constitute a default under the Lease or
(ii) there is .a disagreement between Sublessor and Subtenant as to whether or not Lessor has so
defaulted. Subtenant shall indemnify and hold Sublessor harmless from and against all loss, cost,
liability, claims, damages and expenses (including without limitation reasonable attorneys' fees),
penalties and fines incurred in connection with or arising from the taking of any such action by
Subtenant.
The provisions of this Paragraph 8.1 notwithstanding, Sublessor agrees, subject to
the provisions of Article 10, to (i) keep in good order, condition and repair the Building's roof
and foundation, downspouts and gutters, except for reasonable wear and tear which does not
result in leakage, (ii) repair and maintain the heating, ventilating and air conditioning ( "HVAC. ")
system of the Premises, and (iii) perform any "Major Repair" to the Premises and the Building
systems (i.e., the electrical, plumbing and lighting systems), except in all cases for any damage
caused by the negligence or willful. misconduct or breach of this Sublease by Subtenant or
Subtenant's Agents. For purposes of this Sublease, the term 'Major Repair" shall mean a repair, .
the cost of which exceeds the amount of one month's Base Rent. The cost and expense incurred
by Sublessor in maintaining and repairing the Building's roof and foundation and HVAC system .
and in performing any Major Repair shall be paid for by Sublessor, except to the extent that any
costs are incurred as a result of the acts or negligence of Subtenant or Subtenant's Agents,. in
which event Subtenant shall reimburse Sublessor for such costs and expenses upon written
demand for payment by Sublessor. Subtenant shall give prompt written notice to Sublessor of any
known maintenance work required to be made by Sublessor pursuant to this Paragraph 8.1. In no
event shall Sublessor have any repair or maintenance responsibility except as expressly. set forth in
this Paragraph 8. I above.
8.2 Subtenant's Maintenance Obligations. Except as expressly provided in the
second paragraph of Paragraph 8.1 above, Subtenant shall, at its sole cost, perform all routine.
maintenance with respect to the entire Premises and every part thereof, including without
limitation, fixtures, windows, skylights, window frames, plate glass, ceilings, floors and floor
coverings; doors and related hardware, interior walls and partitions, exterior walls, and the
electrical, plumbing and lighting systems, and shall maintain the Premises in a clean and sanitary
condition. If Subtenant fails to, perform maintenance work required of Subtenant hereunder
within ten (10) days after notice from Sublessor specifying the need for such maintenance work,
Sublessor may, in addition to all other rights and remedies available hereunder or by law and
without waiving any alternative remedies, enter into the Premises and perform such maintenance
work. If Sublessor performs such maintenance work, Subtenant shall reimburse Sublessor upon
demand and as Additional Rent, for the cost of such maintenance work. Sublessor shall have no
liability to Subtenant for any damage, inconvenience or interference with the use of the Premises
by • Subtenant as a result of Sublessor performing any such maintenance. Subtenant shall
reimburse Sublessor, on demand and as Additional Rent, for the cost of damage to the Premises
caused by Subtenant or Subtenant's Agents. Subtenant expressly waives the benefits of any
statute now or hereafter in effect (including without limitation the provisions of subsection l of
Section. I932, Section 1941 and Section 1942 of the California Civil Code and any similar law,
statute or ordinance now or.hereafter in effect) which would otherwise afford Subtenant the right
to make repairs at Sublessor's expense (or to deduct the cost of such repairs from Rentals due
hereunder) or to terminate this Sublease because of Sublessor's failure to keep the Premises in
good and sanitary order.
Subtenant's obligations, under this Paragraph shall include, without limitation,
graffiti removal and repainting and keeping all areas of the Premises and.the areas within twenty
(20) feet of the Building free of trash and debris. Without limiting the foregoing, Tenant shall
maintain all in and around the Premises in healthy and good condition. All work required by this
Paragraph 8.2 shall be done at Subtenant's sole cost
If Subtenant fails to perform its obligations under this Paragraph 8.2,
notwithstanding any other provision hereof and without waiving any other right or remedy
Sublessor may.have, Sublessor may, at its option, after ten (10) days' written notice to Subtenant,
enter upon the Premises and put the same in good order, condition and repair and at Sublessor's
further option, continue such maintenance obligation for the remainder of the Term, and the cost
thereof shall become due and payable as Additional Rent by Subtenant to Sublessor upon demand.
8.3 Improvements by Subtenant. Subtenant shall not, without prior written
consent of Sublessor, which approval may be withheld in Sublessor's sole discretion, and the
consent of Lessor, make any alterations, improvements, or additions (collectively, "Alterations "),
to the Premises or to fixtures installed therein, or mark, paint, drill or in any way deface any
portion of the Premises. Subtenant acknowledges and agrees that the Building is an historic
structure. As such, the Building is a unique and fragile building, and Subtenant is subject to any
additional restrictions which Lessor or Sublessor may deem to be necessary or desirable to
preserve the historic features of the Building. Before commencing any Alterations, Subtenant
shall submit p p 's approval. At least
twenty five (2) days prior to undertaking lconstruct on of any Alterations,. Subtenant shall give
written notice to Sublessor setting forth the date work is to commence. Sublessor shall have the
right at all reasonable times to post and keep posted on the Premises such notices of- -
nonresponsibility as Sublessor may deem necessary for the protection of Sublessor and the
Premises from mechanic's and materiahnan's liens and stop notices. All Alterations shall be
installed at Subtenant's sole expense, in compliance with all applicable Laws, permit, requirements
and any covenants, conditions or restrictions of record, by a licensed, contractor, shall be done in a
good and workmanlike manner conforming in quality and design with the Premises existing as of
the date. the Premises are delivered to Subtenant, and shall not diminish the value of the Premises.
All Alterations made by Subtenant shall be and become the property of Sublessor upon
installation and shall not be deemed Subtenant's personal property; provided, however, that
Sublessor may, at its option, require that Subtenant, at Subtenant's expense, remove any or all
Alterations installed by Subtenant and return the Premises to their condition as of the
Commencement, normal wear and tear excepted. Notwithstanding any other provision. of this
Sublease, Subtenant shall be solely responsible for the maintenance and repair of any Alterations
made by Subtenant to the Premises.
8.4 Condition Upon Surrender. On Lease Termination; Subtenant shall
remove its personal property and trade fixtures from the Premises, surrender the Premises to
Sublessor in good condition, damage by fire or the elements (except to the extent not covered by
Net Insurance Proceeds and caused by Subtenant or Subtenant's Agents) and ordinary wear and
tear excepted, with all originally painted interior walls washed, or repainted if marked or damaged
and other interior walls cleaned and repaired or replaced, all carpets cleaned and in good
condition, and all floors cleaned and waxed. Unless otherwise required by Sublessor; Subtenant
shall remove any and all alterations, additions, signs or improvements made by Subtenant and
perform any necessary repair caused by such removal. All improvements; trade fixtures, fixtures
located in the Premises at the time the Premises are. actually delivered to Subtenant shall. at all
times be the Property of Sublessor and shall be surrendered to Sublessor on Lease Termination as
required by this Paragraph 8.4, including, without limitation, all such improvements, fixtures,
trade fixtures, furniture, and furnishings.
9. INSURANCE AND INDEMNITY.
9.1 Subtenant to Maintain. Subtenant shall at all times during the Term, at
Subtenant's cost and expense, maintain in effect all of the insurance required to be maintained by
Sublessor under Paragraph 11 of the Lease. The liability policy required under the first paragraph
of Paragraph 1.1(b) of the Lease shall include comprehensive general liability and property damage
insurance in the minimum amounts of One Million Dollars. {$1,000,000) per occurrence, combined.
single limit for both bodily injury and property damage which includes blanket contractual liability,
broad form property damage, personal injury, completed operations, liquor liability, products
liability, and fire damage legal and 'Two Million Dollars ($2,000,000) aggregate. The minimum
limits specified above are the minimum amounts required by Sublessor, and may be reasonably
revised by Sublessor from time to time to satisfy the requirements of the Lease. or to meet
changed circumstances, including without limitation changes in the purchasing power of the
dollar, changes consistent with the standards required by other lessors in the county in which the
Premises is located, and changes required by the Lease. All liability insurance required to be
maintained by Subtenant (including the policies described in the first and last paragraphs of Lease
Paragraph 11(b)) shall specifically insure Subtenant's performance of the indemnity, defense and
hold harmless agreements contained in Paragraph 9.5, although Subtenant's ,obligations pursuant
to Paragraph 9.5 shall not be limited to the amount of any insurance required of or carried by
Subtenant under this Paragraph 9.1 and Subtenant is responsible for insuring that the amount of
liability insurance carried by Subtenant is sufficient for Subtenant's purposes. The casualty policy
required to be maintained.by the Subtenant pursuant to Paragraph 11(b) of the Lease shall provide
protection on an "All Risk" basis, which shall include, without limitation, insurance against
sprinkler damage, vandalism, malicious mischief and damage to plate glass.
9.2 Insurance of Personalty and Plate Glass. Subtenant shall at all times during
the Term, at its cost and expense, maintain in effect policies of insurance covering its trade
fixtures, personal property and equipment .located on the Premises, and all Alterations to
the Premises by Subtenant, in an amount not less than their full replacement value, providing
protection on an "All Risk" basis, which shall include, without limitation, insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such insurance, so long as
this Sublease remains in effect, shall be used to repair or replace the fixtures, personal property,
equipment and Alterations so insured. Upon Lease Termination, any proceeds of insurance
covering Alterations which would become the property of Sublessor upon Lease Termination
shall be paid over to Sublessor to the extent not used to repair or rebuild such damaged
Alterations.
9.3 Sublessor. Approval. All insurance required to be carried by Subtenant
hereunder shall be in companies, on forms and with loss payable clauses satisfactory to Sublessor
and copies of policies of such insurance, certified by the insurer to be a true and correct copy of
the insurance policies, evidencing such insurance shall be delivered to Sublessor by Subtenant
prior to Subtenant's entry on the Premises; a new certified policy shall be delivered to Sublessor
at least thirty (30) days before expiration of the old policy. No such policy shall be cancelable
except after thirty (30) days' written notice to Sublessor and Lessor. All liability policies to be
carried by Subtenant under this Sublease shall name Sublessor . and Sublessor's agents and
designated lenders as additional insureds (in addition to those parties required to be named as
additional insureds under the Lease) and shall comply with the requirements of Paragraph I I (b) of
the Lease. The fire and extended coverage casualty insurance required to be maintained by
Subtenant under Paragraph I I (b) of the Lease shall name Sublessor as the loss patyee. If any
portion of the proceeds of the casualty insurance policy is received by Subtenant, Subtenant shall
immediately deliver such proceeds to Sublessor. All insurance shall be the primary insurance as
respects Sublessor and Lessor and shall contain a cross liability endorsement. Such policies shall
provide coverage on an occurrence basis and not on a claims made basis: In no event shall the
grits of such policies be considered as limiting the liability of Subtenant under this Sublease.
9.4 Self- Insurance. Subtenant represents to Sublessor and Sublessor
acknowledges that Subtenant self-insures in the ordinary course of its business. Subtenant further
represents to Sublessor that Subtenant has, and at all times during the Term will maintain, the
financial capability to respond to and pay claims within the retention and deductible amounts set
forth below. Subtenant's obligation to maintain such financial capability is referred to herein as
the 'Financial Capability Condition ". Prior to the Commencement Date, and from time to time
upon request of Sublessor,. Subtenant shall deliver to Sublessor such financial statements or other
evidence reasonably satisfactory to Sublessor that Subtenant - satisfies the Financial Capability
Condition.
Notwithstanding any other provision contained herein to the contrary, but subject to the
Subtenant's satisfaction of the Financial Ability Condition, the insurance obligations of Subtenant
may be satisfied by endorsements to existing excess/umbrella blanket policies written by
companies of recognized standing showing a self- insurance retention of not more than One
Million Five Hundred Thousand Dollars ($1,500,000) per occurrence for automobile liability and
general liability insurance coverage; worker' compensation insurance coverage is subject to a One
Million Dollar ($1,000,000) deductible per occurrence with a deductible of One Hundred
Thousand Dollars ($100,000) per occurrence for property damage insurance coverage, to the
extent required under this Sublease.
If at any time Subtenant fails to satisfy the Financial Ability Condition, Sublessor's
agreement to permit Subtenant to self - insure shall terminate_ and Subtenant shall promptly obtain
and maintain the insurance coverage required by this Sublease.
9.5 Waiver of Liability. Sublessor and Subtenant each hereby waives any and
all rights of recovery against the other or against the officers, partners, councilmembers,
employees and agents of such other party for loss of or damage to such waiving party or its
property or the property of others under its control, arising from any cause to the extent insured
against under any insurance policy carried by such waiving party and to the extent such waiver is
permitted under such insurance policy and does not prejudice coverage under such policy.
Subtenant shall obtain and furnish evidence to Sublessor of the waiver by Subtenant's insurance
carriers of any right of subrogation against Sublessor.
9.6 Subtenant to Hold Sublessor Harmless. Subtenant hereby agrees to
defend, indemnify. and hold harmless Sublessor and Sublessor's employees and agents from and
against any and all claims, damage, loss, liability or expense, including without limitation
attorneys' fees and legal costs, due to any cause including without limitation, bodily injury and
property damage, which arises out of or is in any way attributable to the use or occupancy of the
Premises or any part thereof by Subtenant or Subtenant's Agents, the acts or omissions of
Subtenant or Subtenant's Agents or Subtenant's breach of this Sublease, except to the extent
caused by the willful misconduct or sole negligence of Sublessor. This provision shall survive the
expiration or sooner- termination of this Sublease.
9.7 Sublessor's Disclaimer. Sublessor shall not be liable for injury or damage
which may be sustained by the person, goods, wares, merchandise or property of Subtenant, its
employees, invitees or customers or any other person in or about the Premises caused by or
resulting from fire, steam; electricity, gas, water or rain which may leak or flow from or into any
part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same, or -from
any other: cause, whether such damage or injury results from conditions arising upon the Premises
or from other sources.
10. REPAIRS AND RESTORATION.
10.1 Insubstantial Insured Daman. Subject to the provisions of Paragraphs 10.3 and
1.0.7, if at any time during the Term the Premises are damaged and such damage is not
"Substantial" as that term is defined in Paragraph 10.6, and insurance proceeds net of costs of
recovery actually received by Sublessor ("Net Insurance Procee(s") are available and received by
Sublessor to cover the cost of restoration, then Sublessor shall promptly repair such damage at
Sublessor's expense and this Sublease shall continue in full force and effect.
10.2 Substantial or Uninsured Damage. Subject to the provisions of Paragraph
10.3 and 10. 7, if at any time during the Term the Premises are damaged and (a) if such damage is
"Substantial" as defined in Paragraph 10.6, or (b) if such damage was caused by a casualty for
which no insurance proceeds are available or the Net Insurance Proceeds are insufficient to meet
the cost of restoration, then Sublessor may at its option either (i) promptly repair such damage at
Sublessor's expense, in which event this Sublease shall continue in full force and effect, or (ii)
cancel and terminate this Sublease, by giving Subtenant written notice of its election to do so
within sixty (60) days after the date of occurrence of such damage.
10.3 Damage Near End of Term. If the Premises are damaged during the last
nine (9) months of the Term, and the estimated cost of repair exceeds ten percent (10%) of the
Base Rent then remaining to be paid by Subtenant for the balance of the Term, Sublessor may at
its option cancel and terminate this Sublease upon written notice to Subtenant. If Sublessor does
not elect to so terminate this Sublease, the repair of such damage shall be governed by Paragraph
10.1 or Paragraph 10.2, as the case may be.
1.0.4 Notice, Rent Abatement. Refixturing. Subtenant shall notify Sublessor in
writing immediately upon the occurrence of any damage or destruction to all or any portion of the
Premises. If the Premises is damaged and Sublessor repairs or restores them pursuant to the
provisions of this Article, Subtenant shall continue the operation of its business in the Premises to
the extent reasonably practicable from the standpoint of prudent business management, and the
Base Rent payable hereunder for the period during which such damage, repair or restoration
continues shall be abated in proportion to the degree to which Subtenant's use of the Premises is
impaired, as reasonably determined by Sublessor. There shall be no abatement of other Rentals
payable hereunder and Subtenant shall have no claim against Sublessor for any damage suffered
by Subtenant by reason of any such damage, destruction, repair or restoration. Upon completion
of such repair or restoration Subtenant shall promptly refixture the Premises to the condition prior
to the casualty and shall reopen for business if closed by the casualty. In no event shall any
damage, destruction, restoration or repair of any portion of the Premises result in an extension of
the expiration date of the Sublease.
10.5 Subtenant's Option to Cancel. If Sublessor is obligated to repair or restore
the Premises under the provisions .. of this Article and does not commence such repair or
restoration within sixty (60) days after such obligation accrues, Subtenant may at its option cancel
and terminate this Sublease by giving Sublessor written notice of its election to do so at any time
prior to the commencement of such repair or restoration, which termination shall be effective on
the date such notice is received by Sublessor.
10.6 "Substantial" Defined. For the purpose of this article, "Substantial"
damage to the Premises shall mean damage to the Premises, the estimated cost of repairs of which
exceeds one -tenth (1 /10) of the then estimated replacement cost of the same. The determination
in good faith by Sublessor of the estimated cost of repair of any damage and /or of the estimated
replacement costs shall be conclusive for the purpose of this Article. In no event shall Sublessor
be obligated to repair or restore any Alterations made by Subtenant or equipment, trade fixtures,
inventory, fixtures or personal property in or about the Premises. Subtenant waives the
-provisions of California Civil Code Sections 1932 and 1933(4) and any similar law now or
hereafter in effect.
10.7 Lease Termination. Notwithstanding this Article 10 above, if the Lease
terminates as a result of any damage or destruction of the Premises for any reason, including
without limitation by operation of law or due to the election or agreement of Lessor and/or
Sublessor, this Sublease shall terminate concurrently therewith without any liability of Sublessor
to Subtenant.
11. ASSIGNMENT AND SUBLETTING.
11.1 Sublessor's Consent Required. Subtenant shall not, either voluntarily,
involuntarily or by operation of law (i) assign, sell or otherwise transfer all or any part of the
Subtenant's interest in this Sublease or in the Premises, or (ii) permit any part of the Premises to
be sublet, occupied or used by anyone other than Subtenant or (iii) permit any person to succeed
to any interest in this Sublease or the Premises, (all of the foregoing being collectively referred to
as a "Transfer"), without Sublessor's prior written consent in each. instance, which consent shall
not be unreasonably withheld. Consent by Sublessor to one or more Transfers shall not operate
to exhaust Sublessor's rights under this Article to receive consent to subsequent Transfers. The
voluntary or other surrender of this Sublease by ' Subtenant or a mutual cancellation hereof shall
not work a merger and Sublessor shall have the option of terminating all or any existing
subtenancies or Transfers or shall operate as an assignment to Sublessor of all or any such
subtenancies or Transfers. If Subtenant is a corporation which, under the then current guidelines
published by the Commissioner of Corporations of the State of California, is not deemed a public
corporation, any dissolution, merger, consolidation or reorganization of Subtenant, the transfer, .
assignment or hypothecation of any stock or interest in such corporation in the aggregate in
excess of twenty-five percent (25 %), or the >sale (cumulatively) of fifty percent (50 %) or more of
the value of Subtenant's assets shall be deemed a Transfer. If Subtenant is a partnership, limited
liability company or other non - corporate entity, a withdrawal, or substitution of any partner(s),
members or owners owning twenty -five percent (25 %) or more of the entity (cumulatively), any-
assignment(s) of twenty -five percent (25 %) or more (cumulatively) of any interest in'the capital or
profits of the entity, the sale (cumulatively) of fifty. percent (50 %) or more of the value of
Subtenant's assets, or the dissolution of the entity shall be deemed a Transfer. Subtenant agrees to
reimburse Sublessor for Sublessor's reasonable costs and attorney's fees incurred in conjunction
with the processing and documentation of any requested Transfer, whether or not consent is
granted. In no event shall Subtenant hypothecate, mortgage, pledge or encumber Subtenant's
interest in this Sublease or in the Premises or otherwise use the Sublease as a security device in
any manner, nor shall Subtenant transfer any right appurtenant to this Sublease or the Premises
separate from a permitted Transfer, without the consent of Sublessor, which consent Sublessor
may withhold in its sole discretion. Subtenant expressly agrees that the provisions of this Article
are not unreasonable standards or conditions for purposes of Section 1951.4(b)(2) of the
California Civil Code, as amended from time to time, under the federal Bankruptcy Code, or for
any other purpose.
The foregoing notwithstanding, Subtenant shall have the right to grant licenses to
and enter into contractual agreements for the provision of services with agents, ground
transportation operators, charter operators, package deliverers, food services, telegraphic,
monetary or other transmittal operators, vending operators and other businesses related to
Subtenant's operations ( "Operational Agreements "), without the prior consent of Sublessor, but
subject to the written notice to Sublessor as described in Paragraph 11.2.
11.2 Notice to Sublessor. If Subtenant desires at any time to effect a Transfer,
it shall first notify Sublessor of its desire to do so and shall submit in writing to Sublessor (a) the
name of the proposed Transferee; (b) the nature of the proposed Transferee's business to be
carried on in the Premises; (c) the terms and provisions of the proposed Transfer;, (d) such
reasonable financial information, including financial statements, and information regarding the
Transferee's experience as Sublessor may request concerning the proposed Transferee; and (e)
such other information as Sublessor may reasonably request to evaluate the Transfer and
Transferee.
If Subtenant desires at any time to effect an Operational Agreement, it shall notify
Sublessor in writing of the name of the agent or operator, the name(s) of the individuals who are
authorized by such agent or operator will be in the Premises (as the same may change from time
to time), the general terms of the Operational Agreement and the duration thereof.
11.3 Bonus Rent. If for any proposed Transfer, Subtenant receives rent or any
other consideration, either initially or over the term of the Transfer in excess of the Rentals called
for hereunder, or, in case of the sublease of a portion of the Premises, in excess of such Rentals
fairly allocable to such portion, Subtenant shall pay to Sublessor as Additional Rent hereunder one
hundred percent (100 %) of the excess of each such payment of rent or other consideration
received by Subtenant promptly after its receipt. It is the intent of the parties hereto that this
Sublease shall confer upon Subtenant only the right to use and occupy the Premises, and to
exercise such other rights as are conferred upon Subtenant by this Sublease. The parties agree
that this Sublease is not intended to have a bonus value, nor to serve as a vehicle whereby
Subtenant may profit by future assignment or sublease of this Sublease or the right to use or
OCCUPY the Premises as a result of any favorable terms contained herein or any future changes in
the market for leased space. It is the intent of the parties that any such bonus value that may
attach to the Sublease shall be and remain the exclusive property of Sublessor.
11.4 Collection_ of Rentals. Subtenant irrevocably assigns to Sublessor, as
security for Subtenant's obligations under this all rent and. other consideration payable
by a Transferee and not otherwise payable to Sublessor by reason of any Transfer. Sublessor, as
assignee of Subtenant, or a receiver for Subtenant appointed on Sublessor's application, may
collect such rent and other consideration and apply it toward Subtenant's: obligations under. this
Sublease; provided, however, that until the occurrence of any default by Subtenant, Subtenant
shall have the right to collect such rent and other consideration.
11.5 Subtenant Not Released. No Transfer, even with the cons_ ent of Sublessor,
shall relieve Subtenant of its obligation to pay the Rentals and perform all of the other obligations
to be performed by Subtenant hereunder. The acceptance of Rentals by Sublessor from any other
person shall not be deemed to be a waiver by Sublessor of any provision of this Sublease or to be
a consent to any Transfer.
12. ENUNENT DOMAIN.
12.1 Automatic Termination. If the entire Premises, or so much of either as to
make the Premises not reasonably adequate for the conduct of Subtenant's business in Sublessor's
reasonable judgment notwithstanding restoration by Sublessor as hereinafter provided, shall be
taken under the power of eminent domain, this Sublease shall automatically terminate as of the
date on which the condemning, authority takes possession.
122 Rent Abatement. Upon any taking of any portion of the Building under the
power of eminent domain which does not result in a termination of this Sublease, the Base Rent
payable hereunder shall be reduced, effective as of the date on which the condemning authority
takes possession, in the same proportion which the Rentable Area of the portion of the Building
taken bears to the Rentable Area of the entire Building prior to the taking. Sublessor shall have
no obligation to restore any portion_ of the Premises not taken. If Subtenant desires any such
restoration, Subtenant shall perform such work at Subtenant's sole cost, subject to Paragraph 8.3
above.
. 12.3 Condemnation Award. Any award for any taking of all or any part of the
Premises under the power of eminent domain shall be the property of Sublessor, whether such
award shall be made as compensation for diminution in value of the leasehold or for taking of the
fee, except that Subtenant shall be entitled to seek from the condemning authority an award for
loss of or damage to Subtenant's trade fixtures and removal of personal property. Without
limiting the foregoing, mi no event shall Subtenant be entitled to recover for any value for the
remainder of the Sublease Term.
12.4 Sale Under-Threat of Condemnation. A sale by Sublessor to any authority
having the power of eminent domain, either under threat of condemnation or while condemnation
proceedings are pending, shall be deemed a taking under the power of eminent domain for all
purposes under this Article. Subtenant waives the provisions of California Code of Civil
Procedure Section 1265.130 allowing either party to petition the Superior Court to terminate this
Sublease in the event of a taking.
13. UTILITY SERVICES. Subtenant shall arrange for, and shall timely pay directly
to the appropriate utility or service supplier all charges for, water, gas, heat, light, power, sewer,
electricity, refuse and waste disposal, telephone, janitorial service, or any other service or utility
metered, supplied or provided to the Premises during the Term of this Sublease. Sublessor shall
not be liable in damages or otherwise for any failure or interruption of-any utility or service being
furnished to the Premises and no such failure or interruption shall entitle Subtenant to terminate
this Sublease or shall otherwise affect Subtenant's obligations under this Sublease. Sublessor
shall be entitled to cooperate voluntarily and Subtenant agrees to cooperate, with the efforts of
governmental authorities or utility suppliers in reducing energy or other resource consumption.
14. DEFAULTS. REMEDIES.
14.1 Defaults: The occurrence of any one or more of the following events shall
constitute a default hereunder by Subtenant:
14.1.1 The abandonment of the Premises by Subtenant. Abandonment is
defined to include,. but is not limited to, any absence by Subtenant from the Premises for five (5)
consecutive days or Ionger.
14.1.2 The failure by Subtenant to make any payment of Base Rent or
other Rentals as and when due.
14.1.3 The failure by Subtenant to timely observe or perform any of the
express or implied covenants or provisions of 'this Sublease to be observed or performed by
Subtenant, other than as specified in Paragraphs 14.1.1 or 14.1.2 above.
14.1.4 (a) The making by Subtenant of any general assignment for the
benefit of of Subtenant's ' assets otcated at the Premises or of Subtenant's inter st in this.
substantially all a
Sublease, where possession is not restored to Subtenant within thirty (30) days, 'or (c) the
attachment,. execution or other judicial seizure of substantially all of Subtenant's assets located at .
the Premises or of Subtenant's interest in this Sublease, where seizure is not discharged within
thirty (30) days.
14.2 Remedies. Upon a default, Sublessor shall have the following remedies, in
addition to all other rights and remedies provided by law or otherwise provided in this Sublease,
to which Sublessor may resort cumulatively or in the alternative:
14.2.1 Sublessor may continue this Sublease in full force and effect, and
this Sublease shall continue in fall force. and effect as long as Sublessor dos not terminate this
Sublease, and Sublessor shall have the right to collect Rentals when due. No act by Sublessor
other than giving written notice to Subtenant shall terminate this Sublease. Acts of maintenance,
efforts to relet the Premises or the appointment of a receiver on Sublessor's initiative to protect
Sublessor's interest under this Sublease shall not constitute a termination of Subtenant's right to
possession.
14.2.2 Sublessor may terminate this Sublease and Subtenant's right to
possession of the Premises at any time if (i) such default is in the payment of Rentals and it is not
cured within three (3) days after written notice from Sublessor, or, (ii) with respect to the defaults
referred to in Paragraphs 14.:1.:1, or-14.1.3 such default is not cured within thirty (30) Aays after -
written notice from Sublessor; provided, however, that if the nature of Subtenant's default is such
that more than thirty (30) days are reasonably required for its cure, if Subtenant does not
commence to cure the default within the thirty (30) day period or dos not diligently and in good
faith prosecute the cure to completion within a reasonable time -thereafter, or (iii) with respect to
the default specified in Paragraph 14.14, such default is not cured within the respective time
specified in that paragraph. The parties agree that any notice given by Sublessor to Subtenant
pursuant to this Paragraph 14.2.2 shall be sufficient notice for purposes of California Code of
Civil Procedure Section 1161 and Sublessor shall not be required to give any additional notice in
order to be entitled to commence an unlawful detainer proceeding. On termination, Sublessor has
the right to remove all Subtenant's personal property, signs and trade fixtures and store same at
Subtenant's cost and to recover from Subtenant as damages:
14.2.2.1 The worth at the time of award of unpaid Rentals
and other sums due and payable which had been earned at the time of termination; plus
14.2.2.2 The worth at the time of award of the amount by
which the unpaid Rentals and other sums due and payable which would have been payable after
termination until the time of award exceeds the amount of such Rental loss that Subtenant proves
could have been reasonably avoided; plus
14.2.2.3 The worth at the time of award of the amount by
which the unpaid Rentals and other sums due and payable for the, balance of the Term after the
time of award exceeds the amount of such Rental loss that Subtenant proves could be reasonably
avoided; plus
14.2.2.4 Any other amount necessary to compensate
Sublessor for all the detriment proximately caused by Subtenant's failure to perform Subtenant's .
obligations under this Sublease, or which, in the ordinary course of things, would be likely to
result therefrom; including, without limitation, any costs or expenses incurred by Sublessor: (a) in
retaking possession of the Premises; (b) in maintaining, repairing, preserving, restoring, replacing, .
cleaning, altering or rehabilitating the Premises or any portion thereof, including such acts for
reletting to a new tenant or tenants; (c) for leasing commissions; or (d) for any other costs
necessary or appropriate to relet the Premises; plus
14.2.2.5 Such other amounts in addition to or in lieu of the
foregoing as may be permitted from time -to -time by the laws of the State of California.
The `worth at the time of award" of the amounts referred to in Paragraphs 142.2.1 and
14,212 is computed by allowing interest at the Stipulated Rate. The `worth at the time of
award" of the amount referred to in Paragraph 14.2.2.3 is computed by discounting such amount
at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one
percent (1 %o).
14.2.3 No delay or omission of Sublessor to exercise any right or remedy
shall be construed as a waiver of any such right or remedy or of any default by Subtenant
hereunder.,
14.3 Default by Sublessor. Sublessor shall not be deemed to be in default in the
performance of any obligation required to be performed by it hereunder unless and until it has
failed to perform such obligation within thirty (30) days after written notice by Subtenant to
Sublessor specifying wherein Sublessor has failed to perform such obligation; provided, however,
that if the nature of Sublessor's obligation is such that more than thirty (30) days are required for
its performance then Sublessor shall not be deemed to be . in default if it shall commence such
performance within such thirty -day period and thereafter diligently prosecute the same to
completion. Notwithstanding any other provision of this Sublease, in no event shall Sublessor be
liable to Subtenant for consequential damages, or loss of or interference with Subtenant's
business, including without limitation lost profits.
14.4 Expenses of Prevailing.Partv. If either party incurs any expense, including
reasonable attorneys'. fees, in connection with any action or proceeding instituted by either party
arising out of this Sublease, the party prevailing in such action or proceeding shall be entitled to
recover its reasonable expenses including attorneys' fees from the other party.
15. PARKING. Sublessor shall have the right to close all or any portion of the
parking areas at reasonable times to prevent z. dedication thereof, or the accrual of rights in any
person or the public therein. The parking areas shall not be used by Subtenant or Subtenant's
Agents for any purpose other than the parking of motor vehicles and the ingress and egress of
pedestrians and motor vehicles without Sublessor's prior written consent, which consent may be
withheld in Sublessor's sole discretion.
16. SIGNS. Subtenant shall not, without Sublessor's prior written consent (which .
consent may be withheld in Sublessor's sole discretion), install or affix to any portion of . the
Premises any exterior or interior window, door or other signs, lettering, placards or the like
(collectively "Signs'). If Sublessor consents to the erection of any Signs, such Sig_ ns shall comply
with any sign criteria imposed by Sublessor and all Laws.
17. SUBTENANT STATEMENTS.
17.1 Estoppel Certificate. Subtenant shall at any time and from time to time
upon not less than seven (7) days' prior written notice from Sublessor execute, acknowledge and
deliver to Sublessor a. statement in writing (a) certifying that this Sublease 'is unmodified and in
full force and effect (or, if modified, stating the nature of such modification and certifying that this
Sublease, as so modified, is in full force and effect) and the dates to which the Base Rent and
other charges are paid in advance,, if any, (b) acknowledging that there are not, to Subtenant's
knowledge, any uncured defaults on the part of Sublessor hereunder, or specifying such defaults if
any are claimed and (c) certifying and acknowledging such, other facts as may be reasonably
requested by Sublessor. Any such statement may be relied upon by any prospective purchaser or
encumbrancer of the Premises or of all or any portion of the real property of which the Premises
are a part. Subtenant's failure to deliver such statement within such time shall, in addition to
constituting a default under this Sublease, be conclusive upon Subtenant (i) that this Sublease is
in full force and effect, without modification except as may be represented by Sublessor, (ii) that
there are no uncured defaults in- Sublessor's performance, and (iii) that not more than one month's
Base Rent has been paid in advance.
18. RIGHT OF ENTRY. Lessor, Sublessor and, their agents and employees shall have
free access to the Premises during all reasonable hours, with prior reasonable notice (subject to
this Paragraph below) for the purpose of examining the same to ascertain if they are in good
repair, making repairs or installations which Lessor or Sublessor may be required or permitted to
make hereunder, performing Lessor's or Sublessor's obligations under the Lease or this Sublease,
protecting the Premises, posting. notices of nonresponsibility, and exhibiting the same to
prospective purchasers, lenders or tenants. Notwithstanding the foregoing, Lessor and Sublessor
and.their agents and employees shall be entitled to enter into and upon the Premises in the event
of an emergency without prior notice to Subtenant.
19. TRANSFER OF SUBLESSOR'S INTEREST. Upon any transfer or transfers of
Sublessor's interest in the Premises, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Sublessor accruing from and after the date of such
transfer, provided that the transferee is liable for any and all obligations and liabilities on the part
of Sublessor accruing from and after the date of such transfer. Subtenant shall attorn to any
transferee of Sublessor's interest in the Premises.
20. INTEREST. Any amount due from Subtenant to Sublessor hereunder which is not
paid when due (except for Base Rent, which shall be governed by Paragraph 4.2) shall bear
interest at the Stipulated Rate from the due date until paid. As used in the Sublease the term
"Stipulated Rate" is an annual rate equal to the greater of. ten percent (10 %); or five percent
(5 %) plus the rate established by the Federal Reserve Bank of San Francisco, as of the twenty-
fifth (25th) day of the month immediately proceeding the due date, on advances to member banks
under Sections 13 and 13 (a) of the Federal Reserve Act, as now in effect or hereafter from time to
time amended; not to exceed the maximum rate allowable by law. Payment of such interest shall
not excuse or cure any default by Subtenant under this Sublease.
21. MISCELLANEOUS.
21.1 Time of Essence. Time is of the essence with respect to the performance
of every provision of this Sublease (except delivery of possession of the Premises to Subtenant).
21.2 Captions. The article and paragraph captions contained in this Sublease are
for convenience only and shall not be considered in 'the construction or interpretation of any
provision hereof.
21.3 Entire Agreement. and Amendments. This Sublease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Sublease,
and no other agreement or understanding pertaining to any such -matter -shall be effective for any
purpose. No provision of this Sublease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
21.4 Notice. Any notice required or desired to be given under this Sublease shall
be in writing and all notices shall be given by personal delivery, mailing, or by reputable overnight
courier. All notices personally given to Subtenant may be delivered to any person apparently in
charge at the Premises, or any corporate officer or agent of Subtenant. All notices given by mail
-shall be served by first -class mail (registered or certified, return receipt requested), postage
prepaid, addressed to the addresses set forth below.
To Sublessor: City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attn: City Administrator
To Subtenant -, Greyhound Lines Inc.
(by mail) P.O. Box 660362
Dallas TX,.75266 -0362
Attn: Real Estate Department
OR
To Subtenant: Greyhound Lines Inc.
(by delivery) 350 North Saint Paul
Real Estate Division
Tenth Floor
Dallas TX, 75201
With a Copy to: Greyhound Lines Inc.
P.O. Box 660362
Dallas TX, 75266 -0362
Attn: Legal Department
Either party may change its address for purposes of notice by giving notice of such change of
address to the other parry in accordance with the provisions of this paragraph. Any notice given
pursuant. to this paragraph shall be deemed served when delivered by personal service, with
delivery evidenced by a signed receipt, on the business day following delivery to 'a reputable
overnight courier, or as of seventy -two (72) hours after the deposit thereof in the United States
mail. Subtenant shall send to Sublessor a copy of all notices and other communications it receives
from Lessor immediately upon receipt.
21.5 Holdover. This Sublease shall terminate without further notice at the
expiration of the Term. Any holding over after Lease Termination with the consent of Sublessor
shall be construed to be a tenancy from month to month, at one hundred twenty -five percent
(125 %) of the Base Rent for the month'immediately preceding Lease Termination in addition to
all other Rentals payable hereunder, and shall otherwise be on the terms and conditions herein
specified insofar as applicable. If. Subtenant remains in possession of the Premises after Lease
Termination without Sublessor's consent, Subtenant shall indemnify, defend and hold Sublessor
and Sublessor's employees and agents harmless from and against any claim, loss, damage, expense
or liability resulting from Subtenant's failure to surrender the .Premises, including without
limitation, any claims made by any succeeding tenant based upon delay in the availability of the
Premises and any claims made by Lessor due to failure to surrender the Premises in accordance
with the Lease.
21.6 Brokers. Subtenant warrants and represents that it has had no dealings
with any real estate broker or agent in connection with the negotiation of this Sublease.
Subtenant agrees to defend, indemnify and hold Sublessor and Sublessor's employees and agents
harmless from and against any and all liabilities or expenses, including attorney's fees and costs,
arising out of or in connection with claims made by any other broker or individual for
commissions or fees resulting from Subtenant's execution of this Sublease.
217 Acceptance. Delivery of this Sublease, duly executed by Subtenant,
constitutes an offer to lease the Premises, and under no circumstances shall such delivery be
deemed to create an option or reservation to lease the Premises for the benefit of Subtenant. This
Sublease shall only become effective and binding, upon full execution hereof by Sublessor and
delivery of a signed copy to Subtenant, subject to Paragraph 23 below.
21.8 Waiver. The waiver by Sublessor of any breach of any term, condition or
covenant of this Sublease shall not be deemed to be a waiver of such provision or any subsequent
breach of the same or any other term, condition or covenant of this Sublease. The subsequent
acceptance of Rentals hereunder by Sublessor shall not be deemed to be a waiver of any preceding
breach at the time of acceptance of such payment. No covenant, term or condition of this
Sublease shall be deemed to have been waived by Sublessor unless such waiver is in writing
signed by Sublessor.
21.9 Separability. If one or more of the provisions contained herein, except for
the payment of Rentals, is for any reason held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this Sublease,
but this Sublease shall be construed as if such invalid, illegal or unenforceable provision had not
been contained herein.
21.10 Liens. Subtenant shall pay for all labor and services performed for, and all
materials used by or furnished to Subtenant or Subtenant's Agents and keep the Premises free
from any liens arising out of work performed, materials furnished, or obligations incurred by
Subtenant or Subtenant's Agents with respect to the Premises. Subtenant shall indemnify, hold
harmless and defend Sublessor and Sublessor's employees and agents from and against any liens,
demands, claims, judgments or ' encumbrances (including all attorneys' fees) arising out of any
work or services performed for or materials used by or furnished to Subtenant or Subtenant's
Agents with respect to the Premises. Subtenant shall do all things necessary to prevent the filing
of any mechanic's or other liens against the Premises or any part thereof by reason of work, labor,
services or 'materials supplied or claimed to have been supplied to Subtenant, or- anyone holding
the Premises, or any part thereof, through or under Subtenant. If any such lien shall at any time
be filed against the Premises, Subtenant shall either cause the same to be discharged of record
within ten (10) days after the date of filing of the same, or, if Subtenant in Subtenant's discretion
and in good faith determines that such lien should be contested, Subtenant shall furnish such
security as may be necessary or required under the Lease or as otherwise determined by Sublessor
to (a) prevent any foreclosure proceedings against the Premises during the pendency of such
contest, and (b) cause a mutually satisfactory title company to remove such lien as a matter
affecting title to the Premises. If Subtenant shall fail to discharge such lien within such period or
fail to furnish such security, then, in addition to any other right or remedy of Sublessor resulting
from Subtenant's said default, Sublessor may, but shall not be obligated to, discharge the ,same
either by paying the amount claimed to be due or by procuring the discharge of such lien, by giving
security or in such. other manner as is, or may be, prescribed by law. Subtenant shall repay to
Sublessor on demand all sums disbursed or deposited by Sublessor pursuant to the foregoing
provisions of this Paragraph 2 1. 10 including Sublessor's costs, expenses and reasonable
attorneys' fees incurred by Sublessor in connection therewith, with interest thereon at the
Stipulated Rate. Nothing contained herein shall imply any consent or agreement on the part of
Sublessor to subject Sublessor's estate to liability under any mechanics' or other lien law..
Subtenant shall give Sublessor _ adequate opportunity and Sublessor shall have the right to post
such notices of nonresponsibility as are provided for in the mechanics' lien laws of California.
21.11 Subordination. This Sublease is subject and subordinate to ground and
underlying leases,' mortgages, deeds of trust and other monetary liens (collectively
`Encumbrances ") which may now affect the Premises, to any covenants, conditions or restrictions
of record, and to all renewals, modifications, consolidations, replacements and extensions thereof,
provided, however, if the holder or holders of any such Encumbrance {"Holder") shall require that
this Sublease be prior and superior thereto, within seven (7) days after written request of
Sublessor to Subtenant, Subtenant shall execute, have acknowledged and deliver any and all
documents or instruments, in the form presented to Subtenant, which Sublessor or Holder deems
necessary or desirable for such purposes. Sublessor shall have the right to cause this Sublease to
be and become and remain subject and subordinate to any and all Encumbrances which are now or
may hereafter be executed covering the Premises or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or to. be made
thereunder and without regard to the time or character of such advances, together with interest
thereon and subject to all the terms and provisions thereof, provided only, that in the event of
termination of any such lease or upon the foreclosure of any such mortgage or deed of trust,
Holder agrees to recognize Subtenant's rights under this Sublease as long as Subtenant is not then
in default and continues to pay the Rentals and observe and perform all the provisions of this
Sublease to be observed and performed by Subtenant. Within ten (10) days after Sublessor's
written request, Subtenant shall execute . any and all documents required by Sublessor or the
Holder to make this Sublease subordinate to any. lien of the Encumbrance. If Subtenant fails to do
so, then in addition to such failure constituting a default by Subtenant, it shall be deemed that this
Sublease is so subordinated to such Encumbrance. Notwithstanding anything to the contrary set
forth in this paragraph, Subtenant hereby attorns and agrees to attorn to any entity purchasing or
otherwise acquiring the Premises at any sale or other proceeding or pursuant to the exercise of
any other rights, powers or remedies under such Encumbrance.
21.12 Sublessor's Right to Perform Subtenant's Covenants. If Subtenant fails to
make any payment or perform any other act on its part to be made or performed under this
Sublease, Sublessor, may, but shall not be obligated to and without waiving or releasing Subtenant
from any obligation. of Subtenant under this Sublease, make such. payment, or perform such other.
act to the extent Sublessor may deem desirable, and `in connection therewith, pay expenses and
employ counsel. All sums so paid by Sublessor and all penalties, interest and costs in connection
therewith shall be due and payable by Subtenant immediately on demand, together with interest at
the Stipulated Rate from the date of payment by Sublessor to the date of payment by Subtenant to
• Sublessor, plus collection costs and attorneys' fees. Notwithstanding the foregoing, Sublessor has
all of the rights against Subtenant that Lessor has against Sublessor under the Lease.
21.13 Subtenant's Remedy. If, because of a default by Sublessor under this
Sublease, Subtenant recovers a money judgment against Sublessor, such judgment shall be
satisfied only out of the .proceeds of sale received upon execution of such judgment and levied
thereon against the right, title and interest of Sublessor in the Premises and out of rent or other
income from the Premises receivable by Sublessor, and neither Sublessor, its partners nor its
agents shall be personally liable for any deficiency. Neither Sublessor's partners nor agents, nor
any other person or entity other than Sublessor, nor any of their respective assets, shall be liable
for Sublessor's breach of this Sublease.
21.14 Mortgagee Protection. If Sublessor defaults under this Sublease,
Subtenant will notify; by registered or certified mail, any beneficiary of a deed of trust, mortgagee
of a mortgage or holder of any other monetary lien covering the Premises (`Beneficiary"), and
offer such Beneficiary a reasonable opportunity to cure the default, including time to obtain
possession of the Premises by power of sale or a judicial foreclosure, if such should prove
necessary to effect a cure. If any Beneficiary shall require any modification to this Sublease in
connection with existing or future financing, Subtenant shall enter into an amendment to this
Sublease so required by such. Beneficiary as long as the same does not materially alter Subtenant's
rights and. obligations hereunder.
21.15 Exhibits. All exhibits, amendments, riders and addenda attached hereto are
hereby incorporated herein and made a part hereof.
21.16 Conditions. All agreements of Subtenant contained in this Sublease,
whether expressed as conditions or covenants, shall be construed to be both conditions and
covenants, conferring upon Sublessor, in the event of a breach thereof, the right to terminate this
Sublease.
21.17 No Partnership or Joint Venture.. Nothing in this Sublease shall be
construed as creating a partnership or joint venture between Sublessor, Subtenant, or any other
party, or cause Sublessor to be responsible for the debts or obligations of Subtenant or any other
party.
21.18 Construction. This Sublease shall not be construed either for or against
Subtenant or Sublessor, but shall be construed in accordance with the general tenor of the
language. This Sublease, shall be construed in accordance with the laws of the State of California.
The words "Sublessor" and "Subtenant" as used herein shall include the plural as well as the
singular. Words in the neuter gender include the masculine and feminine and words in the
masculine or feminine gender include the neuter.
21.19 Joint and Several Liability. If Subtenant consists of more than one (1)
person or entity, the obligations of each Subtenant under this Sublease shall be joint and several.
21.20 Binding Effect. Subject to the provisions of Paragraph 19 and Article 11,
all of the provisions hereof shall bind and inure to the benefit of the parties, hereto and their
respective heirs, legal representatives, successors and permitted assigns.
21.21 Counterparts. This Sublease may be executed in counterparts, each of
which shall be deemed an original for all purposes and together shall constitute one instrument.
21.22 [Retained for Numbering Purposes Only]
21.23 Authority. The undersigned parties hereby warrant that they have proper
authority and are empowered to execute this Sublease on behalf of the Sublessor and Subtenant,
respectively. If Subtenant is a corporation, partnership or other entity, each individual executing
this Sublease on behalf of said entity represents and warrants that he is duly authorized to execute
and deliver this Sublease on behalf of said entity, and that this Sublease is binding upon said entity
in accordance with its terms. If Subtenant is a corporation, Subtenant shall-upon execution of.this
Sublease, deliver to Sublessor a certified copy of the resolution of the Board of Directors of said
corporation authorizing or ratifying the execution of this Sublease. In the event S. ubtenant should
fail to deliver such resolution to Sublessor upon execution of this Sublease, Sublessor shall not be
deemed to have waived its right to require delivery of such resolution, and at any time during the
Sublease Term Sublessor may request Subtenant to deliver the same, and Subtenant agrees it shall
thereafter promptly deliver such resolution to Sublessor. If Subtenant is a corporation, Subtenant
warrants that: (a) Subtenant is a valid and existing corporation; (b) Subtenant is qualified to do
business in California; (c) all fees and all franchise and corporate taxes are. paid to date, and will
be paid when due; and (d) all required forms and reports will be filed when due.
21.24 Withholding of Sublessor's Consent. Notwithstanding any other provision
of this Sublease, where Subtenant . is required to obtain the consent (whether written or oral) of
Sublessor' to do any act, or to refrain from the performance of any act, Subtenant agrees that if
Subtenant'is in default with respect to any term, condition, covenant or provision of this Sublease,
then Sublessor shall be deemed to have acted reasonably in withholding its consent if said consent
is, in fact, withheld.
21.25 Sublessor as Party Defendant. If, by reason of any act or omission by
Subtenant or Subtenant's agents, Sublessor is made a party defendant concerning this Sublease or
the Premises, Subtenant shall indemnify Sublessor against all liability incurred (or threatened
against) Sublessor as a party defendant, including all damages, costs, attorneys' fees and amounts
paid in settlement.
21.26 Sublessor_Not a Trustee. Sublessor shall not be deemed to be a trustee of
any funds paid to Sublessor by Subtenant (or held by Sublessor for Subtenant) pursuant to this
Sublease. Sublessor shall not be required to keep any such funds separate from Sublessor's
general funds. Any funds held by Sublessor pursuant to this Sublease shall not bear interest.
22. Conflict of Interest. Subtenant represents and warrants that to the best of
its knowledge, no City employee or office of any public agency interested in this Sublease or the
Premises nor has any pecuniary interest in Subtenant or Subtenant's business, and that neither.
Subtenant nor any person associated with Subtenant has any interest that would constitute a
conflict of interest in any manner or degree as it relates to this Sublease:
23. Condition Precedent to Sublease. The submission of this Sublease for
examination does not constitute an option or offer to sublease the Premises. This Sublease shall
have no binding effect on the parties unless executed by Sublessor and Subtenant, and consented
to and signed by Lessor, and a fully executed copy is delivered to Sublessor..
THIS SUBLEASE is effective as of the date the last signatory necessary to - execute the
Sublease shall have executed this Sublease.
SUBTENANT:
Dated: 30 204,E By�
J.
Title: E
Dated: 6—t-0
Dated: & —L/—o I
Dated: � - Ll -of
CITY
INC.,
ive Vice
A
Y, a municipal corporation
By:
Approv o form
By 1
Attorney
Title:
ATTES
City Clerk
APPROVED AS TO FORM:
(ftTY ATTORNEY
CONSENT
Santa Clara Valley Transportation Authority (formerly known as the Santa
Clara County Transit. District), lessor under the Lease attached to this Sublease as
Exhibit A, hereby consents to the subletting of the Premises described herein on
the terms and conditions described in this Suble ase. This consent shall apply only
to this Sublease and shall not be deemed to be any other sublease or any further
subletting.
LESSOR:
SANTA CLARA VALLEY
TRANSPORTATION AUTHORITY
(FORMERLY, ME SANTA CLARA
COUNTY T IT DISTRICT), a public
agency 4
By: -w .
Its:
RECOMMENDED FOR APPROVAL:
Title:
EXHIBIT A
AGREEMENT FOR LEASE OF REAL PROPERTY
This agreement ( "Agreement") is made and entered into on the 1st day of August,
1996, by and between the SANTA CLARA COUNTY TRANSIT DISTRICT,. a public
agency (hereinafter referred to as "DISTRICT'), and the CITY OF GILROY, a municipal.
corporation (hereinafter referred to as "CITY').
A. DISTRICT-awns certain real property located in Gilroy, California, _
previously owned by the Southern Pacific Transportation Company and other parties, and
presently used for the Gilroy Caltrain Station and ,,a Park- and -Ride lot;
B. Situated on the aforementioned property is a building known as the Gilroy
Train Depot, hereinafter referred to as "the Depot building," and 14 parking spaces
adjoining such building;
C. CITY wishes to lease the Depot building and adjoining parking spaces, on
the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as
follows:
1. PREMISES.
DISTRICT leases to CITY, and CITY hires from DISTRICT, the Depot building .
and the fourteen (14) adjoining parking spaces, located on that certain real property in the
City of Gilroy,, and more particularly described as Parcels A and B on Exhibit "A"
attached hereto and incorporated herein by this reference, which building and parking
spaces are hereinafter referred to as "the premises."
CITY shall rehabilitate the Depot building and use the Depot building and other
portions of the premises for historical and/or transportation- related purposes only,
including bus or taxi. service, food service and bike lockers, in a manner that is consistent
with and which does not interfere with the use of DISTRICT of the surrounding. property
for the Gilroy Caltrain Station and a Park- and -Ride lot. Any use of the premises by
CITY other than as set forth above shall be subject to the prior written approval of
DISTRICT. DISTRICT's failure to approve or disapprove any such other use within
thirty (30) days of a written request for approval thereof by CITY, shall constitute
DISTRICT's approval of such other use.
Page 1 of 12
In its use of the premises, CITY shall provide to the public and its patrons, at no
cost to CITY, information concerning DISTRICT's transit services, including Caltrain.
3. TERM.
a. The term of this lease shall commence on August 1, 1.996, subject to
satisfaction of the condition described in this Paragraph 3 below, and shall expire on May
31, 2026,. unless sooner terminated pursuant to the terms of this Agreement, The parties
acknowledge that CITY has applied for and has received approval of two grants, one
being an Intermodal. Surface Transportation Enhancement Act grant in the amount of One
Hundred Three ThousandMallars ($103,000), and the other being a Transit Capital
Improvement grant in the amount of Forty Two Thousand Dollars ($42,000), that CITY
desires to utilize for the purpose of making alterations and improvements to the premises
for CITY's use during the term. To date, however, funding of such grants has not
occurred. The parties agree that commencement of the term of this lease .shall be
contingent upon receipt by CITY of the full amount of the two grants on or before
December 31, 1996. If CITY has not obtained full funding of such grants on or before
December 3.1, 1996, the lease term shall not commence and this Agreement shall
terminate.
b. If CITY does not commence construction of alterations and improvements
to the premises for CITY's use within three (3) years after the date this Agreement is
executed by CITY and DISTRICT, DISTRICT shall have the right to give CITY not Iess
than sixty (60) days prior notice of intent to terminate the lease.. If CITY fails to
commence construction of alterations and improvements to the premises prior to the
expiration of such sixty (6 0) day period, the lease term and this Agreement shall
terminate, effective at the expiration of such sixty (60) day period. If. CITY commences
construction of alterations and improvements to the premises within this sixty (60) day
period, the notice of termination shall be void and the lease and this Agreement shall not
terminate pursuant to this Paragraph 3 (b).
C. * If during the term of this lease the Depot building is unleased, unoccupied
and generating no revenues for a continuous uninterrupted period of three (3) years or
more, DISTRICT shall have the right to give CITY not less than sixty (60) days prior
notice of intent to terminate the lease. If, at the end of such sixty (60) day period, the
Depot building is still unleased, unoccupied and generating no revenues, the lease term
and this Agreement shall terminate at the expiration of such sixty (60) day period,
provided that DISTRICT pays to CITY an amount equal to the total Project Costs
incurred by CITY to the date of termination, less that portion of rents generated and paid
to CITY for the premises to the date of termination and not paid over to DISTRICT as
Percentage Rent (the "Termination Payment'), as estimated by CITY. The estimated
Termination Payment shall be paid to CITY within fifteen (15) days after CITY advises
DISTRICT in writing of the estimated amount of the Termination Payment, which notice
shall set forth the total rents received, the total Project Costs incurred and the total
Percentage Rent paid to DISTRICT, projected to the date of termination. Within thirty
Page 2 of 12
(30) days after termination pursuant to this Paragraph 3 (c), CITY shall notify DISTRICT
of the actual Termination Payment due. Any overpayment by DISTRICT shall be
delivered by CITY to DISTRICT with such notice. Any underpayment by DISTRICT
shall be paid to CITY within fifteen (15) days after the notice setting forth the actual
Termination Payment is delivered to DISTRICT. If, within the sixty (60) day period
referred to in this Paragraph 3 (c) the Depot building is leased or occupied or generating
revenues, or if DISTRICT fails to pay CITY the estimated. Termination Payment as
required by this Paragraph 3 (c), DISTRICT's termination notice given pursuant to this
Paragraph 3 (c) shall be void and the lease term and this Agreement shall not terminate as
a result of such notice.
':
a. Throughout the entire term of this Agreement, CITY shall pay to
DISTRICT the sum of One Dollar ($1.00) per month as minimum monthly rent for the
premises, payable in advance on the first (Ist) day of each and every month of the term
("Minimum Monthly Rent')., In addition to the Minimum Monthly Rent, commencing
on the Percentage Rent Commencement Date (defined below), CITY shall pay to
DISTRICT, as Percentage Rent, fifty percent (50 %) of Net Revenues (defined below),
subject to year. -end adjustment as described below. Percentage Rent shall be paid two (2)
months in arrears on the first (Ist) day of each calendar month commencing on the
Percentage Rent Commencement Date, to provide sufficient time for CITY to calculate
the Percentage Rent due. For example, Percentage Rent attributable to Net Revenues
received in January of a calendar year shall be paid on March 1 of such calendar year:
b. Within ninety (90) days after the end of each calendar year following the
calendar year in which the Percentage Rent Commencement Date occurs, CITY shall
furnish to DISTRICT a statement in writing showing the total rents received from the
premises by CITY for the prior calendar year during the period following the Percentage
Rent Commencement Date and the total Project Costs (defined below) incurred during
that period. If Percentage Rent paid by CITY for such.period exceeds fifty percent (50 %)
of the Net Revenues received by CITY during such period, the amount of such excess
shall be reimbursed to CITY within thirty (30) days after delivery of such annual
statement to DISTRICT. If Percentage Rent paid by CITY for such period is less than
fifty percent (50 %) of the Net Revenues received by CITY during such period, the
amount of such underpayment shall be paid to DISTRICT and shall accompany the _
annual statement.
C. As used in this Agreement, "Percentage Rent Commencement Date" shall mean
the first day of the second calendar month; following the date upon which CITY has
collected rent from the premises which in the aggregate over the term as of that date
exceeds the aggregate of all Project Costs (defined below) incurred over the term as of
such date. As used in this Agreement, "Project Costs" means all expenditures made by
CITY for the renovation, alteration, improvement, maintenance, repair, protection,
Page 3 of 12
management and operation of the premises; provided, however, that Project Costs shall
not include the grant funds described in Paragraph 3 (a) above, or CITY overhead or
administrative costs (other than time and benefit charges for CITY personnel performing
work at the premises, which charges shall be included in "Project Costs "), or possessory
interest taxes, or amounts paid by a subtenant for maintenance or utilities to the extent
such amounts for maintenance or utilities are not included in the computation of rents
paid to CITY. As used in this Agreement, "Net Revenues" shall mean all rents generated
and paid to CITY for the premises, less Project Costs.
d. Rental checks shall be made payable to the Santa Clara County Transit
District and shall be maileAW the Santa Clara County Transit District, Fiscal Resources,
3331 North First Street, Building C, San Jose, CA 95134 -1906.
e. CITY acknowledges that the late payment of rent may cause DISTRICT to
incur costs not contemplated by this lease. A minimum ten percent (10 %) delinquency
charge shall be assessed for any payment of rent not received by DISTRICT within ten.
(10) days after the date due.
f. A fifteen dollar ($15.00) processing fee shall be assessed for any rent.
checks returned due to insufficient funds.
5. UTILITIES:
CITY, at its sole cost and expense, shall provide and promptly pay for all utilities
supplied to the premises for its use.
CITY accepts the premises "as'is," and shall be solely responsible for all
maintenance, repairs and improvements. Until such time as City performs alterations to
or constructs improvements in the premises, CITY shall keep the premises in as good
order and condition as received by CITY from DISTRICT, reasonable wear and tear
excepted. Following completion of any alterations or improvements to the premises by
CITY, CITY shall keep the premises in as good order and condition as existed upon
completion of such alterations and improvements, reasonable wear and tear excepted.
CITY shall submit plans and obtain the prior approval of DISTRICT before constructing
any improvements or effectuating repairs to the premises, which approval shall not be
unreasonably withheld. DISTRICT's failure to notify CITY in writing of approval or
disapproval of submitted plans within thirty (30) days after submittal shall constitute
DISTRICT's approval of such plans. Ali,iinprovements to the Depot building other than
trade fixtures installed in the building ,shall be surrendered with the premises on lease
termination.
In constructing improvements or effectuating repairs to the premises (including,
but not limited to, installing, if necessary, sewer, water, gas or electrical connections),
Page 4 of 12
CITY shall not excavate the soil on, under or around the premises to a depth of more than
eighteen inches (18 ') without the prior written approval of DISTRICT. DISTRICT may
withhold approval for deeper soil excavation in its sole discretion; however, CITY shall
have the right to terminate this Agreement by giving DISTRICT not less than thirty (30)
days written notice if CITY determines, in its sole discretion, that the withholding of
consent by DISTRICT for deeper soil excavation will unduly interfere with CITY's
proposed improvement or alteration or use of the premises.
CITY shall indemnify, reimburse, hold harmless and defend DISTRICT from all
claims, loss, or liability for labor and materials supplied or furnished to CITY in
connection with any construe ton, repair, alteration, or other work performed on the -
premises. CITY shall provide DISTRICT with not less than twenty (20) days' written
notice prior to commencement of any work which could give rise to a mechanic's lien or
stop notice. DISTRICT shall have the right to enter onto the premises for the purpose of
posting notices of non - responsibility. In the event a lien or stop notice is placed upon the
premises, CITY shall, within thirty (30) days, either:
a. Record a valid release of lien; or
b. Obtain and record a surety bond in accordance with California Civil Code
§3143.
Should CITY fail, neglect, or refuse to abide by subparagraphs (a) or (b), above,
DISTRICT shall have the right to pay any amount required to release any such liens or
notices, or to defend any action brought thereon, and to pay any judgment entered therein,
and CITY shall be liable to DISTRICT for all costs, damages, reasonable attorneys' fees,
and any amounts expended in defending any proceedings or in the payment of any of said
liens or notices or any judgment obtained therefor.
7. SHARING OF • _ OF MAINTENANCT AND REPAIR OF
PARK-ANQ--ME LOT.
In addition to the other obligations set forth herein, if CITY, its officers, agents,
employees, subtenants, or invitees, use the Park- and -Ride Lot shown as the "Phase I Park
and Ride Lot" area on Exhibits "A" and "B" attached hereto, in connection with CITY'S
..use and operation of the premises (which they shall have the right to do), CITY shall pay
to DISTRICT a portion of the maintenance and repair costs for the Park- and -Ride lot.
The amount of such costs to be paid by CITY to DISTRICT shall be determined on a
reasonable and equitable basis determined by the amount of such CITY use of the lot in
proportion to the total use of the lot. Additionally, CITY shall be fully responsible for
and shall pay to repair any and all damage to the Park - and -Ride lot or Gilroy Caltrain
Station, or any portion thereof, including, but not limited to, the access described below, .
caused by CITY, its officers, agents, employees, subtenants, or invitees.
Page 5 of 12
8. COMPLIANCE WITH LAWS.
Except as provided in.Paragraph 14 below, CITY, in its use of the premises, and
at its sole cost and expense, shall comply with and obey, and take any and all actions
necessary to insure compliance with and to obtain approvals or clearances under, all
applicable laws, regulations, rules and orders relating to CITY's use of the premises,
whether local, state or federal, including, without limitation, those relating to building.
code compliance, zoning, the Americans With Disabilities Act, health, safety, noise,
hazardous waste disposal/remediat on and water and air quality, and environmental
quality (e.g. EIR, EIS, etc.), and shall furnish satisfactory evidence of such compliance
upon request of DISTRICT . For any required environmental review, CITY shall be-the
lead agency.
ZV
If CITY, its officers, employees, subtenants, or invitees, use more parking spaces
for the operation of the premises than the fourteen (14) spaces leased to CITY pursuant to
this Agreement, then upon request of DISTRICT, CITY shall, at its sole cost and
expense, provide additional parking spaces for use by patrons of the Gilroy Caltram
Station and Park- and -Ride lot, either through.improvement of presently undeveloped
DISTRICT property adjoining the lot or through the development by CITY of nearby
property for such purpose. The number of such spaces shall equal the number of spaces in
excess of fourteen (14) used by CITY, its officers, employees, subtenants, or invitees in
the operation of the premises, as may be reasonably determined by DISTRICT after
consultation with CITY.
10. C�1 CESS.
a. PHASE I AREA. Access to and from the premises shall. be by that certain
access road from Old Gilroy Street, more particularly described as the "Access Road"
within the "Phase I Park and Ride Lot" area on Exhibits "A" an&B" attached hereto. It
is understood, however, that DISTRICT reserves for itself, its agents, employees,
invitees, patrons and other tenants, the concurrent right- to use such access road. If
DISTRICT, in its reasonable discretion, determines at any time that the access road
requires improvement to accommodate CITY's_use, or if CITY requests that the access be
improved and DISTRICT, in its reasonable discretion, agrees to such request, CITY shall
so improve the access road at its sole cost and expense. DISTRICT and CITY shall share
the cost of maintenance. for the access road on a reasonable and equitable basis,
determined by the amount and intensity of use of such improvements by the respective
parties. All maintenance for the access road, and each portion thereof, shall be performed
by DISTRICT, which shall thereafter bill CITY for its share of such costs as set forth
above. CITY and DISTRICT shall not park or stack vehicles on the access road.
—b. PHASE II_ AREA DISTRICT shall, if requested by CITY, grant to CITY
additional access to the premises through the presently unimproved parcel adjoining the
Page 6 of 12
paved Park- and -Ride lot, more particularly designated as the "Phase II Park and Ride
Lot" area on Exhibit "B" attached hereto. CITY shall be solely responsible for all costs
and expenses incurred to improve said parcel to accommodate access by CITY, and shall
be solely responsible for maintenance of such improvements, until DISTRICT or its
agents, employees, invitees, patrons or other tenants begin to utilize such improvements,
whereupon the cost of maintaining such improvements shall be shared by CITY and
DISTRICT on a reasonable and equitable basis, determined by the amount and intensity
of use of such improvements by the respective parties.
C. EXISTING FACILITIES. CITY shall not remove or alter without the
consent of DISTRICT, and sl I permit DISTRICT access to the premises to maintain
and use, the existing sign and light standard on the west side of the Depot Building, the
existing sign on the north side of the Depot. Building, and the CTC box on the southeast
comer of Parcel B shown on Exhibit "A" attached hereto. DISTRICT shall maintain such
existing facilities in good and safe condition, and shall indemnify, hold harmless,
reimburse and defend CITY from all liability, damages, loss, costs and obligations,
including court costs and reasonable attorneys.' fees, occasioned.by injury to or death of
any person or persons, or for loss of or damage to any property, caused by any act or
negligent omission of DISTRICT, its agents, employees, or invitees, arising out of, or in
connection with, the accessing, maintenance or use of such facilities by DISTRICT.
I►1i ut►1__ _ M ►13 _I _ J._c_
a. CITY shall indemnify, hold harmless, reimburse and defend DISTRICT,
the Peninsula Corridor Joint. Powers Board, and the National Railroad Passenger .
Corporation {"Amtrak') from all liability, damages, loss, costs and obligations, including
court costs and reasonable attorneys' fees, occasioned by injury to or death of any person
or persons, or for loss of or damage to any property, caused by any act or n_ egligent
omission of CITY, its officers, agents, employees, subtenants, or invitees, arising out of,
or in connection with, the use of or improvement to or. construction on the premises, or
arising out of, or in connection with, the access rights granted herein.
b. CITY, at its sole cost and expense, shall obtain and maintain
comprehensive automobile.-and general liability insurance covering bodily injury,
personal injury and property damage. Limits shall be in an amount of not less than one
million dollars ($1,000,000.00) per.occurrence, and two million dollars ($2,000,000.00)
aggregate, if applicable. Such insuran= coverage shall name DISTRICT as an additional
insured. Said coverage shall apply as primary insurance and any other insurance
maintained by DISTRICT shall be excess only. Said coverage shall not be canceled or
materially changed prior to thirty (30) days' advance written notice to DISTRICT.
DISTRICT, in its reasonable discretion, may, from time to time, require an increase in the
above specified insurance limits during the term of this Agreement.
CITY, at its sole cost and expense, shall further procure and maintain, during the
term of this Agreement, fire and extended coverage casualty insurance for the premises,
Page 7 of 12
in an amount not less than the full insurable value of the premises. All proceeds of such
insurance shall be used solely for the repair, restoration and reconstruction of the
premises.
CITY, at its sole cost and expense, shall further procure and maintain during the
tern of this Agreement, worker's compensation insurance covering all persons employed
on the premises.
CITY, at its sole cost and expense, shall further procure and maintain during the
term of this Agreement, or require its contractors or subtenants to provide, with.respect to
the operations it or any ofd contractors or subtenants perform above the railroad tracks
adjoining the premises, or within fifty (50) feet horizontally of the railroad tracks,
Railroad's Protective Liability Insurance with either the AASHO policy form or the
ISO/RIMA form with pollution coverage for-job site fuels and lubricants. The named
insured shall be the Santa Clara County Transit District, the Peninsula Corridor Joint
Powers Board, and the National Railroad Passenger Corporation ("Amtrak") and shall
cover all other railroads operating on the right -of -way. The policy "shall have limits of
liability of not less than $5,000,000.00 per occurrence, combined single limit, for
Coverages A and B, for losses arising out of injury to or death of all persons, and for
physical loss or damage to or destruction of property, including the loss of use thereof. If
approved by the.District, a Commercial General Form deleting the exclusion for work
performed adjoining or within fifty (50) feet of any railroad track may be substituted for
the Railroad Protective coverage specified above.
c. Prior to commencement of this lease, CITY shall provide a certificate of
insurance certifying that the required insurance coverage has been obtained. The
insurance form and insurance carrier shall be subject to approval by DISTRICT, which
approval shall not be unreasonably withheld.
CITY shall not assign, sell or otherwise transfer this lease, or any portion thereof,
but may sublease the premises, or a portion thereof, with the prior written consent of
DISTRICT, which approval shall not be unreasonably withheld.
MINE
In the event of an acquisition of all or any part of the premises, CITY shall receive
compensation for the taking and damaging of CITY's improvements. The remaining .
award balance and interest thereon, as well as the award for the land value and interest
thereon, shall belong to DISTRICT. Under no circumstances shall CITY be entitled to
any "bonus value ". for the remaining unexpired term.
Page 8 of 12
14. HAZARDOUS MATERIALS.
a. CITY acknowledges receipt of three reports prepared at the request of
DISTRICT. The first report, entitled "Soil' Testing.Report for Caltrain Gilroy Extension,
Gilroy, California" and marked as a draft, prepared by Dennis Laduzinsky and David
Hoexter of Kaldveer Associates, dated May 2, 1990, indicates that the Depot building has
asbestos. The second report entitled "Soil Investigation in the Vicinity of the Former
Aboveground Diesel Tank, Gilroy, California' , prepared by Terry Gyrion and Gary
Messerotes of Emcon Associates, dated November 24, 1993, indicates that there is a soil
contamination to the south of the "Phase I Park and Ride Lot" area. A third report,
entitled "Phase II Soil and-Eiroundwater Investigation Gilroy Spur Track, Gilroy, -
California ", prepared by Paul Serrano and Mark Filippini of Harding Lawson Associates,
dated August 18, 1992, indicates that the adjoining train storage yard and parts of the
"Phase I Park and Ride Lot" area have underground water contamination.
b. Notwithstanding any other provision of the Agreement, CITY shall have
no obligation or liability with respect to any hazardous materials now or hereafter
affecting the premises, the access road or areas, or any other property referenced in this
Agreement, exeeptto the extent (i) such hazardous materials contamination is caused by
CITY or CITY's agents, employees'subtenants, or invitees or (ii) hazardous materials
disposal/remediation is required by law as a condition to CITY's renovation or continued
use of the premises during the term of this Agreement. If any hazardous materials are
encountered on or in the vicinity of the premises by CITY during the term, and CITY
would be required to remediate or remove such hazarous materials as a condition to
CITY's renovation or continued use of the premises, but CITY does not want to incur the
financial obligation of remediating or removing such hazardous materials, CITY may, in
lieu of remediating or removing the hazardous materials, terminate this Agreement by
giving DISTRICT not less than thirty (30) days prior notice of termination. If CITY
terminates this Agreement pursuant to the prior sentence, CITY shall not be required to
remove or remediate such hazardous materials, except to the extent hazardous materials
contamination was caused by CITY or CITY's agents, employees subtenants, or invitees.
Without limiting the foregoing, CITY shall have no obligation or liability with respect to
any underground water contamination originating from off the premises and not caused
by CITY, its agents, employees, subtenants, or invitees.
15. RELOCATION ASSISTANCE PROGRAM
It is agreed by and between the parties hereto that no relocation payment or
assistance shall be sought or provided as a consequence of this Agreement.
16. POSSESSORY INTEREST TAX
CITY recognizes and understands in accepting this Agreement that CITY's
interest therein may be subject to possible imposition of a possessory interest tax and that
Page 9 of 12
such tax shall not reduce any sum due DISTRICT under this agreement and shall be the
sole responsibility of CITY.
17. BREACH AND REMEDIES
As a precondition to pursuing any remedy for a breach by CITY, DISTRICT shall
give written notice specifying the alleged act of the breach and the applicable agreement
Provision, with a demand that CITY cure the breach within three (3) days in instances of
failure to pay rent or any other sum, and within thirty (30) days for any other breach
(provided, however, that if the nature of the default is such that more than thirty (30) days
are reasonably required fors cure, then CITY shall be required to commence the cure -
within the thirty (30) day period and diligently and in good faith prosecute the cure to
completion within a reasonable time thereafter), or quit the premises. Upon lapse of the
aforesaid periods without cure by CITY, DISTRICT shall have all remedies available at
law and in equity, including the right to terminate this lease.
ff�. ®• 5-i
Any holding over of the premises after the expiration of the term shall be
considered a month -to -month tenancy_ , and shall be on the same terms, covenants and
conditions as set forth herein.
• • h
DISTRICT, upon reasonable notice, shall have the right to periodically inspect the
premises to determine whether CITY is in compliance with its obligations under this
Agreement.
r � _M
The failure of either party to insist upon strict performance of any of the terms,
covenants or conditions of this lease shall not be deemed a waiver of any right or remedy
that such party may have, and shall not be deemed a waiver of its right to require strict
performance of all terms, covenants and conditions of this Agreement thereafter, nor a
waiver of any remedy for the subsequent breach of any term, covenant or condition of
this Agreement.
Page 10 of 12
21. NOTICES.
All notices required to be given hereunder, or which either party may wish to
give, shall be in writing and shall be served either by personal delivery or by certified or
registered mail, postage prepaid, addressed as follows:
To DISTRICT:
Santa Clara County Transit District
Real Estate Division
3331 North First Street, Bldg. B
San Jose, CA 95134 -1906
To CITY:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attn: City Adminstrator
or to such other place as either party may designate by written notice.
In the event that there are prior or contemporaneous lease, rental, license, permit
or other agreements,. whether oral or written, by and between DISTRICT and CITY
relative to the premises, such agreements are hereby revoked and extinguished by this
Agreement.
23. SEVERABILITY.
If any of the provisions of this Agreement are for any reason held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had not been contained herein.
Page 11 of 12
24. BINDING.EFFECT.
Subject to the provisions of Paragraph 12, all of the provisions hereof shall apply
to, bind and inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and subtenants.
IN WITNESS WHEREOF, DISTRICT and CITY have entered into this
Agreement as of August 1, 1996.
DIST
Peter M. Cipolla
General Manager
RECOMMENDED FOR APPROVAL:
Villemaire
ate Real Estate Agent
APPROVED AS TO FORM:
6UM-P. Al'tt*1K,
Kevin D. Allmand
Legal Counsel
a/gitryrev.
CITY
Jay Baksa
City Administrator
A
Susanne S.
City Clerk
APPROVED AS TO FORM:
q�� C,
Linda A. Callon
City Attorney
Page 12 of 12
Nita
J.VIlematre 3 -96
a owp!�A
e Greyhound dai ' 1
' VENDOR INFORMATION SHEET
(MUST BE FILLED OUT COMPLETELY)
COMPANY NAME:_ ITV O -F' Cli- r._oy
REMITTANCE ADDRESS: '%351 1C Scram c�
(MAILING)
CITY`
STATE: CJ ZIP CODE:
(Nine Numeric Digits)
PHONE NUMBER:( 913S ) J yWa - 0 4 D-O
FAX NUMBER: ( Y08 ) '9 Y& - Q q
SS#./ FEDERAL TIN #: 9 Lj &0 0 TAXPAYER NAME:.&&- C'�1 O-t= - G; i 1_(o``
(Nine Numeric Digits) As Reported -to the IRS
Greyhound's standard payment terms. are NET 45 DAYS
1. Contact Melly-
LAST NAME FIRST NAME'
2 Corporation /Individual Proprietorship /Partnership (CIRCLE ONE)
2a. If individual or individual proprietorship, include owners name and SS# above.
8. Manufacturer / Distributor /Services (CIRCLE ONE)
4. Product or Services Offered: G O u eu V\W e.x,-k 52ry l "
5. Minority Firm: (Circle One) Not Applicable African American Native American . Asian America
Woman Hispanic/Latin Other
VENDOR l�
Completed By: Ca-yywejr,, Me ra-mo C�TPa 31 d
PRINT NAME SIGNATURE DATE
GREYHOUND ES, I�C. ) -
ReGuested By: 2081 LOCATION: PHONE #:
PRINT NAME PRINT
Fax Completed Forms to: GREYHOUND LINES, INC. FAX (214) 849 - (oq
Rev 06197
Form W -9 (Rev. 17 -") Page 2
'Specific instructions
Nawn. - If o are an individual. you must
gertentuy enter the. name shown an your social
security card. However. if you have changed your
last name, for Instance. due to marriage, without
informing the Social Security Administration of the
name change. enter your first name, the last name
shown on your social security card, and your new
lad name.
If the account is in joint names. Ist first and
than circle the name of the person or entity whose
number you enter In Part 1 of the forth.
Sole Propdetor. — You must enter your
lndlviduial name as shown on your social searky
card. You may enter your business, trade, or
,doing, business, ae name on the business name
line.
OfherEnNes. — Enter.the business name as.
shown on required Federal tax documents. This
name should match the name shown on the
charter or other %gal document creating the entity.
You may enter any business, trade, or'doi ng
business as' name on the business name fine.
Pa rt 1— Taxpayer Identification
Number (TIN)
You must enter your TIN It the appropriate boor. if
you are a resided alien andyondo not have and
are not eligible to get an SSN. your TIN Is your
IRS hkAjual bxpayer kterVication number
(MN). Enter it in. the soclel security number box.
if you do not hake an MN. ace HowTo (het a TIN
below.
If you are a sob proprletor and you have an
EIN. you may enter ei0>'er your SSN or EIN.
However, using your ON may result In
unnecessarynoBees tootle requester.
Note: Sea the chart on Uric page for Mintier
derfifcat hn of name and TIN com 6 halkw&
How To Get a TIN. = if you do not have a TIN.
apply for arm mmedlately. To apply for an SSN,
get Forth SS-8 from your local Social Security
AdmWstration office. Get Form W =7 to apply for
an ITIN or Form SSrf to apply for an EIN. You
can got Forms W-7 and SS4 from the IRS by
coMing 1' -800- TAX -FORM (1.8W4IM- 676).
If you do not have a TIN, write'Appled For' in
the space for the TIN, sign and date the feon, and
give If to the requester. For interest and dividend
payments, and certain payments made with
respect to rea* tradable Instruments, you will
generally have 60 days to get a TIN and give it to
the requester. Other payments are subject to
Crackup wkhtwking.
Note: Wddng Appied Formeans that you have
already appfed for a TIN OR that you intend to
apply Jbr one soon.
StF FEDS172F.2.
Part 11= For Payees Exempt From
Backup Withholding
IndlyldUds; (Including sole proprietors) are .Mt
exorript from backup withholding. Corporations are
exempt from baciaip withholding for certain
payments. such as interest and dividends. For
more information on exempt payees. see the
separate Instructions for the Requester of
Form W-9.
If you are exempt from backup withholding.:you
should still complete this form to avoid possible
erroneous backup wkhhoiding. Enter your coned
TiN in Part 1, write'Exempe In' Part 11, and's(gn
and date the form.
If you are a nonresident alien or aforeign entity
not subject to backup withholding; give the
requester a completed Form W=3. Certificate of
Foreign Status.
Part III — Certification
For a jolt accourft, only the person whose TIN Is
shown in Part l should sign Wien required).
1. Irtterest, Dlvldend, and Barter Exchange
Accounts opened Before 1934 and Broker
Accounts Considered ActW* During ISM You
must give your correct TIN. but you do net have to
sign the certification.
2. Interest. Dividend. Broker, and Barter
Excl ange Accounts Opener! After 1983 and
Broker Accounts Considered Inactive During
19MYou must sign the cadfiration or backup
wkhtiolding will apply. if you are subject to backup
withholding and you are merely providing your
correct TIN to the requester. you mud cross out
Rem ,2 In the certification berore signing the form.
3. Real Estate Transactions. You must sign
the cetifirat cri. You May cross out kern 2 of the
CCftrfcation.
4. Other Payments. You must give your txarrect
TIN, but you do not have to sign the certification
unless you have been notified that you have
previously given an Ineorect TIN.'titfiec
payments! include payments made In the course
of the requester's trade or business for rents,
royalties, goods (other than bills for merchandise),
medical and health care services (Irxiuding
payments to corporations), payrtnents to a
nonempipyee for swA- -w Mckiding attorney and
accounting fees), and payments to certain fishing
boat crew members.
6. Mortgage Interest Paid by You,
Acquisition or Abandonment of Secured
Property. Cancellation of Debt, or IRA
Contributions. You must grave your correct TIN,
but you do mart have to sign the certification.
PrivacyAct Notice
Section 6109 of the internal' Revenue Code
requires you to give your corect TIN to persons
who must Rte information returns with the IRS to
report (rdeirest, dividends, and certain other
income paid to you. mortgage Interest you paid,
the acquisition or abandonment of secured
property, cancellation of debt: or cautions you
made to an IRA. The IRS uses the numbers for
ideritIftation purposes and to help vergy the
accuracy of your tax return. The IRS may also
provide this information to the Department of
Justice for civil and criminal litigation and to cities,
states, and the Distrid of Columbia to carry out
their tax laws.
You must provide your TIN whether or not you
are required to file a tax return: Payers must
generally withhold M % of taxable Interest,
dividend, and certain other payments to a payee
who does net given TIN to a payer. Certain.
penalties may also apply.
What Name and Number To
Give the Requester
For tlds VP* of aeoeuifE
ore name end am Ce
1. 6idhldual
The krdJiAirsl
2. Tweermore
71»ac0uloweraflM
h4widwh Qolet
aoeowRor Noornbined
Cmunq
finies, th but indf ldusn
on One acaowal
a Cuslodme a000wd Cr
710 X6000
a mina' grins M Ga
b Minces Am
4, a TM Lauri
The pmnmr bu.me�
rsvoaable savings
tut ( mmw is
dso piadee)
s S-talled"
Tiw acww wmer•
amarntthat is not
a Mgt or valld bud
an" SUN MW
K. sot. p1epdeIM51
The a* w
Feroftvpeara"nu - --
OMemooand2Ytof
a. saga popMasfifp
the owiws
7. A valid bust esI - or
Legal crimp
pension trust
IL corporab
7beempmation
9. Assadada k dub.
TM organ6;atlon
mli lip^ chwha6lw6
or other
tar-eswnpt
argardmellon
10. PartumMie
TM OednershiP
11. A broker or regisbred
nominee,
71,A tiioker ornomines
12 Acaaattwlhthe
The pobieenely
DepaAnwdd
Agria -Akm In"name
d a public mthly (such
as a stsiv arbeal
disbict, as pr" 24t
nsos(ws spiiradh+rd
from parnents
'tint nM and dude ttie name of hie person v*=e niirtrbsr ym
lu nWL randy one person on a Joint aomwd has an SSK the
persoe's number riiust be haekhed.
r Circle the rnhWa name rid Iumish me iiiiiio s SSN.
r YOU . "Met show your kkwidual name. but you may Mao ender
Your business or'doi vWei roes ae mania. You may use silver
your SSN or BN Qf you hew one}
4 Lid to t and cards IM flare of lie legal bust estate, or
pennon Bust (Do not fw hh Cur TIN of the personal
WeserbMwe ortnrstes unless the legal entity ibelf iii not
designated in the siowuint gee.)
Note: 9ao name is chded when more their one mania
Is Hefei the rxrribec w!r be cork itoc? b be OW of ie
AM name Usted
F. W -9 Request for Taxpayer Give form to the
I°vDsesi "b°rIM) Identification Number and Certification requester. DoNOT
oepe.e"Ontei'h -T.s -Y send to the IRS.
1 gan—W Mnw sen ee .
trarlle (tf irioird account or you ailanged y&x rmme. see Spedft lnstrllctforu on Pa- 9e 2•)-
_._
CITY OF GILROY
0issinsss rpme; if ddrersnt from above. (See Spectltc tnstriutlons on Page 2.)
0
1C 6'llsclt aPlanprWe box P-tn-hip ® other®_GQVEN = - -1:1 dduo a❑paEl .
°' Address ( number, street, and apl. or suite no.) Requesisrs name and address
(oplbrial) -
735.1 ROSANNA STREET
0. City, stale. and ZIP code
Enter your TIN In the appropriate box. For
individuals. this Is your social security number
(SSN). However, If you are a resident alien OR a
sole proprietor, see the lnstudons on page 2.
For other entities, It Is-your employer
identl ication number (Elul. If you do not have a
number, see How To Get a TIN on page 2.
Note: 9 M account is in more Man one name,
sod trio chart on page 2lbrg&&iskes on whose
so-dal security number
OR
Emptoya Identification numtw
IC For Payees Exempt From Backup
Withholding (See (he Uxtri cdons
on page 2.)
Under pen5tties of tick jury, I ow" that
1. The number shown on this form Is my cared taxpayer Identification number (or I am waiting fora number to be Issued to me). and
Z: tam. notaubjed 10 backup wM twlding; becal (a) I am exempt from backup mVO- oldklg, or (b) I have not been ratified by the Intwnal Revenue Service
(IRS) Out f am subject to backup withholding as a result of a failure to report all It *a st or dividends. or (c) the IRS has notified me dint I am no longer
subject to backup N KWAding.
Cerefieatim ku&udions. —You must cross out kern 2 above if you have been notified by the IRS that.you are aurentty subject to backup wkhhokfirtg.
because you have failed to report all Interest and dividends on your tax return. For real estate transactions, kem 2 does not apply. For mortgage interest paid.
toquisldon or abar4orxmed of secured, propedy canoe6atlon of dent, cgnt xAlons to an individuad retirement arrangement(1RA), and generally. payments
a- awthan interest and dividends. you are not required to sign the CMlficatlon, but you must provide yoke owed TiN. (Seethe trnhvctions on page 2.)
Here
purpose of Form. — A person who is required to
file an I formation return with the IRS must get
your correct taxpayer Identification number (TIN)
to report, for example, Income paid to you. root
estate tfansactioris, mortgage Interest st You paid.
acquisition cr abandonrnerd of secured property,
ranceUatiort of debt, or contributions you made to
an IRA.
Use Form W-9 to give your coned 71-N to the
tom+ requesting it (the requester) and. when
applicable. to:
1. Certify the TIN you are giving 4 corned (or
you are waiting for a ntanber to be issued).
2. Certify you are not subject to backup
withholding,. or
3. Claim exemption from backup withholding if
you are an exempt payee.
Noter If& requestergives you a porn- other than a
W -9 to request yourTIN, you must use the
regyestOeS than if K is sabstantlaffy $War to this
Form W -9.
What is Backup Withholding? — Persons
making certain payments to you must withhold
and pay to the IRS 31 % of such payments under
certain conditions. This 1s called 'backup
A twirling' Payments that :maybe subject to
back* wNt oldrtg include i tersst. dividends.
broker and barter eta hangs tra nsadlora, rents,
my r p" Pay. and min payments
from fishing ticat operators, -teal estate
transactions are not subject to backup
withholding.
If you on tiro requester yourcoirect TIN, make
the proper certification, and report ad your
tatmbls interest and dividends on your tax return,
Payments you receive will not be subject to
backup withhokling • .Payments you receive wnll be
subject to backup wlthlwiding H:
1. You do riot furnish your TIN to the requester,
or
2. The IRS tells the requester that, you famished
an incorrect TIN, or
3. The IRS tells you that you are subject to
backup withholding bemuse you did not report all
your interest and dividends on your tax rem (for
reportable interest and dividends only), or
4. You do not certify to the requester that you
are not subject to backup withholding under 3
above (for reportable interest and dividend .
accounts opened after 1983 only), or
6. You do not certify your TIN when required.
See the Part III instnictiors an page 2 for details.
8]/0
Certain payees and pgmw td are exempt from
backup wkittoldIng. See ft Part.11 Ustitrcfiora
and the separate Instructions forthe Requester
of Form W-B.
Penalties
Fallure To Furnish TiN.— If you fall to furnish
your cored TIN to a requester, you are "ad to
a penally of SW for each such failure unless your
failure is due to reasonable cause and not to willful
C"nn'1 Penalty for False Information With
Respect to Wlthhokling. — If you makes false
statement with no reasonable basis that results in
no backup withholding. you are subject to a $500
penalty.
Criminal Penalty for Falsifying Information. —
Wilffulty falsifAV certfications. or affirmations
may subject you to cflmirral penalties Including
fines and/or imprisonment.
Misuse of TiN&— if ft requester discloses or
uses TINS in violation of Federal law, the
requester may be subject to civil and criminal
penalties.
I form W4 (Ray. .12 -96)
SrF FE0813V.1
C�ttp of Ofirop
7351 Rosanna Street
Gilroy, California
95020-6197
June 22, 2001
Ms. Dorothy Revels
Greyhound Lines Services
350 North St. Paul
Dallas, TX 75201
Telephone (408) 846-0400
Fax (408) 846-0500
Dear Ms. Revels:
Enclosed please find one original sublease for the Gilroy Train Depot. Additionally, there is an
invoice for two (2) month's rent on the facility. Thank you for your excellent customer service:
during the processing of the agreement, I look forward to working with you over the life of this
lease.
Sincerely,
Michael Dom
Administrative Services Director
Enclosures,
MD.dg
GREYHOUND
November 29, 2005
Ms. Phaedra Hernandez
Purchasing Coordinator
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020 -6197
Dear Ms. Hernandez,
P. O. Box 660362, Dallas, Enclosed please find two (2) signed original copies of the Amendment to the
TX 75266 -0362 Sublease for Greyhound's Premises at 7250 Monterey Road. Once the agreements
telephone 214.849.8533 have been fully executed please return one (1) original copy to me for our records.
fax 214.849.6966
If you have any questions or concerns, do not hesitate to contact me.
Sincerely,
Doro evels
Senior Manager, Real Estate
Enclosures
October 26, 2005
Citv of Offrop
7351 Rosanna Street
Gilroy, California
95020 -6197
Greyhound Lines, Inc
Attn: Real Estate Department, Dorothy Reveler
Post Office Box 660362
Dallas, TX 75266 -0362
FILE Corr
Q
Re: First Amendment to utilize the First Five (5) Year Term Option
Dear Ms. Reveler,
Telephone (408) 846 -0400
Facsimile (408) 846 -0500
http://www.ci.gilroy.ca.us
Enclosed are two Amendment originals for the Sublease between the City of Gilroy and
Greyhound Lines, Inc for a portion of the Train Depot located at 7250 Monterey Road, Gilroy,
California, 95020.
Please sign both originals and return to my attention. Once the City Administrator signs both, one
original will be mailed back to you.
If you have any questions, please feel free to call me at (408) 846 -0232.
Sincerely,
Phaedra Hernandez
Purchasing Coordinator
Enclosure (2)
CITY OF GILROY
7351 ROSANNA STREET
GILROY. CALIFORNIA 95020-6197
vww.ci.gilroy.ca.us
ADMINISTRATIVE SERVICES DEPARTMENT
FINANCE DIVISION
PHAEDRA HERNANDEZ
PURCHASING COORDINATOR
TELEPHONE(408)846 -0232
FACSIMILE (408) 846.0500
Email: phernandez @ci.gilroy.ca.us
QF Gil, .
a,`: Cftp I Offrop
Rosanna Street
Gilroy,
I�
95020-6197
rED M•r`F�'���.
Telephone (408) 846-0400
Facsimile (408) 846 -0500
hftp://www.ci.gilroy.ca.us
AMENDMENT TO THE SUBLEASE BETWEEN
CITY OF GILROY AND GREYHOUND. LINES, INC DATED JUNE 1, 2001
AMENDMENT NO.1
This Amendment shall become effective when it has been signed by the City Administrator and Greyhound
Lines, Inc. All copies forwarded to Greyhound Lines Inc., for signature shall be returned to the City of Gilroy
properly filled out. Upon acceptanceby the City, Greyhound Lines Inc's copy will be returned.
This Amendment is the first of three options which extend the five (5) year term of the Sublease between
the City of Gilroy and Greyhound Lines, Inc., dated June 1, 2001. The commencement date is June 1,
2006 to May 31, 2011, as stated in section 3.5 Extended Term of the original sublease dated June 1, 2001.
The Monthly Rent will remain at $650 for this first five (5) year term. The second and third extended
term base rents will be negotiated as stated in Section 4 of the original Sublease dated June 1, 2001.
All requirements of the'original Agreement Documents shall apply to the above work except as specifically
modified by this Amendment. The contract time shall not extend unless expressly provided for in this
Amendment.
Greyhound Lines, Inc hereby agrees to make the above changes subject to the terms of this Amendment as
subtenant who leases the portion of the Depot Building, commonly known as 7250 Monterey Road, Gilroy,
California.
Subtenant: Greyhound Lines, Inc
Date
ACCEPTED:
-Sublessor, City Administrator Date
or certifi turn receipt requested), postage
shall be served first -class mail (registered
- ,prepaid, addressed to addresses set forth below.
io Sublessor: oy
�3 51 Ro na Street
Gilroy, Califor 95020
'r Attn: Ci
To Subtenant: Greyhound Lines Inc.
(by mail) P.O. Box 660362
Dallas TX, 75266 -0362
Attn: Real Estate Department,' Der
To ubtenant: Greyhound Lines Inc.
(by elivery) 350 North Saint Paul
Real Estate Division
Tenth Floor
Dallas TX, 75201
With a Copy to:
Greyhound Lines
O. Box 66036
Dallas TX, 7 6E
At Legal Department
change its addr \he oses of notice by giving notice of such change of
Either party may g rovisions of this paragraph• Any notice given
address to the other party in ac the p
ant to this paragraph all served when delivered following ydeliv o a TePutab e
pursu he business day delivery evidenced by a ed overni ht courier, or of sevenurs after the dd other communi ations it eceives
g mail. Subtenant shall end to Suby o all notices an
from Lessor mm tely upon receipt.
5 Holdover. This Sublease shau rminace with °ut further notice at the
holding over after Lease T 'nation with the consent of Sublessor
expiration of a Term. Any g one hundred twenty -five percent
shall be co strued to be a tenancy from month to month,
receding a Termination in addition to
(125 %) the Base Rent for the month immediately p
h Rentals payable hereunder, and shall otherwise be on thn erms Premises c° t after Lease
all of possession
spec' insofar as applicable. If Subtenant remains in po de d and hold Sublessor
'fe ation without Sublessor's consent, Subtenant shall indemnifyCl 1 , damage, expense
an Sublessor's employees and agents harmless from and against any hiding without
or liability resulting from Subtenant's failure to surrender on delay in the av ability of the
limitation, any
claims made by any succeeding tenant based up Y
ender the Pre
emises and any claims made by Lessor due to failure to surrmises actor ante
in
Pr
with the Lease.