Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
ATTACHMENT 1-1
RIGHT OF ENTRY AGREEMENT
This Right of Entry Agreement (“Agreement”) is made and entered into as of this ___ day of ________________, 2023 by and between THE CITY OF BURBANK, a municipal corporation and charter city (“City”), and PACIFIC COAST SIGHTSEEING TOURS & CHARTERS, INC., a FLORIDA corporation (operating scheduled service under the ‘MEGABUS’ brand with its principal office for the transaction of business at 2001 S Manchester Avenue, Anaheim, CA 92802 (“Licensee”) on the following terms and conditions. The parties are individually referred to herein as a “Party,” and collectively as the “Parties.”
RECITALS
A. Licensee is a private entity licensed and regulated by the California Public Utilities Commission (“CPUC”) pursuant to CPUC Decisions 13-09-10 and 14-06-014 that operates a Passenger Stage Corporation (PSC) service (PSC-30650), as part of a new national network of point-to-point, intercity services operating in California (TCP/ PSC 29151). Burbank is part of the service between Anaheim and Sacramento, with interim stops located in Downtown Burbank and Bakersfield, Fresno, San Francisco, Oakland, San Jose (depending on route).
B. The stop at the Downtown Burbank Metrolink Station, located at 201 North Front Street, in Burbank, California, was active from August 15, 2013 through April 30, 2020 at the Downtown Burbank Metrolink Station.
C. Licensee’s service operated without incident over that nearly seven-year period.
D. The Parties now desire to enter into this Agreement to establish the terms under which Licensee may re-enter and use the Downtown Burbank Metrolink Station for its business purposes.
AGREEMENT
1. Entry of the Premises. City hereby grants Licensee a nonexclusive right to enter the real property located at 201 North Front Street and to park in one bus bay designated on Exhibit A, attached and incorporated herein (the “Premises”). City reserves the right to designate an alternate bus bay, i.e., to change the Premises, as needed to accommodate ongoing transit operations at the Downtown Burbank Metrolink Station. The City may exercise this right in its sole and absolute discretion.
2. Term of License; Right to Terminate. The term of this Agreement shall commence on August 1, 2023 (“Term Commencement Date”) and shall end on July 31, 2024 (the “Term”). Either Party may terminate this Agreement at any time upon 30 days’ written notice to the other Party. Provided Licensee is in full compliance with all of the terms and provisions of this Agreement, and subject to the City’s sole discretion, the term may be extended by written agreement of both Parties for up to four additional one-year terms. The Community Development Director or its designee may administratively approve and execute the first and subsequent extensions, if exercised.
3. License Fee. During the Term, Licensee shall pay a license fee of $5,400.00 per month (the “License Fee”), payable in advance on the first day of each month of the term Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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hereof, to the City, without deduction or offset except as otherwise provided herein in lawful money of the United States of America at the Community Development Department office, P.O.
Box 6459, Burbank, California 91510-6459, or to such other person or at such other place as the City’s Community Development Director may from time to time designate in writing. The purpose of the License Fee is to recover Licensee’s proportionate share of both existing and increased facility maintenance and security costs at the Downtown Burbank Metrolink Station.
In the event the term is extended pursuant to Section 2 above, at the commencement of each new Term, the Community Development Director may, in its sole discretion, increase the License Fee by an amount equal to the annual increase in the Consumer Price Index (CPI), for Los Angeles-Riverside-Orange County (CUURA421SA0) maintained by the United States Department of Labor's Bureau of Labor Statistics (BLS). The City reviews agreements for renewal roughly six (6) months in advance. The data used for any adjustments will be the most current BLS information available at the time of renewal notice.
Should the facility maintenance and security costs attributable to Licensee exceed the amount of the fee stated above, including adjustments for CPI, the parties agree to meet and confer in good faith to renegotiate the amount of the License Fee.
4. Acceptance and Suitability of the Premises. Licensee acknowledges that neither City nor any agent of the City has made any representation or warranty with respect to the Premises or the suitability or fitness thereof for the conduct of Licensee’s use. Use of the Premises by Licensee for any purpose shall conclusively establish that the Premises were then in satisfactory condition and in conformity with the Agreement in all respects.
5. Use.
(a) Licensee may use the Premises solely for the non -exclusive purpose of embarking and disembarking of passengers of the bus transportation service operated by Licensee as described in Exhibit B attached and incorporated herein, and for no other use. Use of other public right -of-way locations within the City for this purpose shall be prohibited without the prior written approval of the Community Development Director. (b) Licensee may not service or repair disabled vehicles on the Premises. Any vehicle which has become disabled for any reason shall be promptly removed from the Premises and taken to an appropriate service or storage facility. Disabled vehicles shall not be parked or stored on the Premises or on City right-of-way.
(c) In connection with its use of the Premises, Licensee shall comply with all applicable laws, regulations and ordinances concerning such use. Licensee shall not be obligated to construct any improvements to the Premises nor to incur any capital costs.
Licensee agrees not to commit or suffer to be committed any waste or nuisance in, or about the Premises. Licensee shall comply in all material respects with all governmental laws, ordinances and regulations which pertain to or apply to the use of the Premises, now or subsequently imposed, concerning the use or operation of the Premises. (d) Interruption of services or amenities shall not be deemed an eviction or disturbance of Licensee’s use and possession of the Premises, render City liable to Licensee for damages, or relieve Licensee from performance of Licensee’s obligations under this Agreement. (e) Possessory Interest Taxes. Licensee recognizes and understands that this Agreement may create a possessory interest subject to property taxation levied on such Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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interest. Licensee agrees to pay promptly, prior to delinquency, all such taxes, if any, directly to the tax collector.
(f) Hours of Operation. Licensee may enter the Premises 24 hours per day, Monday through Sunday.
(g) Signage and Wayfinding. Licensee shall provide adequate signage, in a size and format acceptable to the City, to properly direct patrons to the correct bus bay and waiting area assigned to Licensee. This shall include, at a minimum, a properly-sized “flag- mount” bus stop sign to be located at the point of boarding and alighting for Licensee service.
6. Insurance and Indemnity.
(a) Liens and Claims. Licensee shall not permit to be recorded against the Premises any mechanics’, materialmen’s, contractors’ or subcontractors’ liens or any claim for damage arising from the Licensee’s entry on or investigation of the Premises pursuant to this Agreement. If any such lien shall be recorded, Licensee shall cause the same to be removed by payment, bonding, or other means reasonably acceptable to City. (b) Insurance. Licensee and its designated vendors shall keep and maintain in full force and effect, from the Term Commencement Date:
(i) Commercial General Liability Insurance: Commercial General Liability Insurance with limits of not less than Five Million Dollars ($5,000,000) combined single limit for bodily injury and property damage, which insurance shall have a separate endorsement naming “The City of Burbank, its officers, agents, representatives, and employees” as an additional insured, to cover the indemnification provisions under Section 6(c), of this Agreement.
Such policy shall be in form, and issued by companies, reasonably acceptable to City. Prior to use of the Premises , Licensee shall furnish a certificate evidencing such insurance which shall state that the coverage shall not be canceled or materially changed without 15 days advance notice to City. A renewal certificate shall be furnished at least 15 days prior to expiration of any policy. Licensee shall further maintain worker’s compensation insurance as required by law. Upon request of City, Licensee shall provide to City proof of payment in a manner acceptable to City in its reasonable discretion. If Licensee fails to maintain any required policy of insurance, the Community Development Director of the City may obtain said policy and Licensee shall immediately pay to the City any costs and expenses incurred by the City in acquiring such policy. (ii) Workers’ Compensation Coverage. Workers’ compensation coverage as required by law, including employer’s lia bility coverage, with a limit of not less than $1,000,000, and waiver by Licensee’s insurer of any right of subrogation against City by reason of any payment under such coverage. Upon request of City, Licensee shall provide to City proof of payment in a manner acceptable to City in its reasonable discretion. If Licensee fails to maintain any required policy of insurance, the Community Development Director of the City may obtain said policy and Licensee shall immediately pay to the City any costs and expense s incurred by the City in acquiring such policy.
(iii) Automobile Liability Insurance. Licensee will maintain in an amount not less than $5,000,000 combined single limit per accident for bodily injury and property damage covering owned, non -owned and hired veh icles and business auto liability policy, to include garage keeper’s legal liability, with a limit of not less than $1 ,000,000 for each Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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accident. “The City of Burbank , its officers, agents, representatives, and employees” must be covered as an additional insured under the business auto liability policy of any valet parking operator.
(c) Indemnity. Except for City’s sole, gross negligence or willful misconduct, Licensee shall indemnify, protect, defend and hold harmless the Premises, City and City’s representatives, council members, board members, employees and agents, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Licensee, or resulting from Licensee's failure to comply with any term of this Agreement, even if damages are caused by criminal activity of third parties. If any action or proceeding is brought against City by reason of any of the foregoing matters, Licensee shall upon notice defend the same at Licensee’s expense by counsel reasonably satisfactory to City and City shall cooperate with Licensee in such defense. City need not have first paid any such claim in order to be defended or indemnified. (d) Exemption of City from Liability. City shall not be liable for injury or damage to the person or goods, wares, vehicles or other property of Licensee, Licensee’s employees, vendors, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from any cause or condition or design of, or any defect in the Premises, whether the said injury or damage results from conditions arising upon the Premises, or from other sources or places, or where caused by third parties (including criminal acts). City shall not be liable for any damages arising from any act or neglect of any other licensee or invitee of City. Notwithstanding City’s negligence or breach of this Agreement, City shall under no circumstances be liable for injury to Licensee’s business or for any loss of income or profit therefrom.
7. Waiver of Subrogation. City and Licensee each hereby release and waive any and all rights of recovery against the other on account of losses insured against under any fire and extended coverage insurance policy in force at the time of such loss or damage, and there shall be no subrogated claim by one party's insurance carrier against the other party arising out of any such loss, but only to the extent that such waiver will not invalidate such insurance.
Licensee and City shall attempt to obtain an endorsement from its insurance carrier.
8. Assignment.
(a) Licensee shall not voluntarily assign, transfer, or otherwise transfer or encumber all or any part of Licensee's interest in this Agreement or in the Premises, or sublicense said Premises or any part thereof, without the prior written consent of the City, which consent may be exercised in City’s sole and absolute discretion. Any attempted assignment, transfer, sublicense, encumbering or renting without such consent (where such consent is required) shall be void and constitute a default of this Agreement. In the event a receiver, trustee or conservator is appointed to take possession of the assets of Licensee, or the possession of the Premises, or a general assignment is made by Licensee for the benefit of creditors, or any action is taken by or against Licensee under any insolvency law or bankruptcy act, the City, at its option, may forthwith terminate this Agreement. (b) Any consent by the City to the assignment or other transfer of rights hereunder by the Licensee shall not release the Licensee from any obligations under this Agreement, and the City's consent, unless expressly provided therein, shall not include consent to any subsequent assignment or transfer by Licensee or the Licensee's heirs, successors or Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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assigns. Any sublease authorized above shall not relieve Licensee of its obligations under this Agreement, including but not limited to requirements to indemnify and insure City.
9. Environmental Matters.
(a) Compliance with Environmental Laws. Licensee covenants that the Premises shall be kept free of Hazardous Materials, and neither Licensee, nor any occupant of the Premises, shall use, transport, store, dispose of or in any manner deal with Hazardous Materials on the Premises, except in compliance with all applicable federal, state and local laws, ordinances, rules and regulations. Licensee shall comply and ensure compliance by all occupants of the Premises, with all applicable federal, state and local laws, ordinances, rules and regulations, and shall keep the Premises free and clear of any liens imposed pursuant to such laws, ordinances, rules or regulations as a direct result of any action or inaction on the part of Licensee. In the event that Licensee receives any notice or advice from any governmental agency or any source whatsoever with respect to Hazardous Materials on, from or accepting the Premises, Licensee shall immediately notify City. Licensee shall conduct and complete all investigations, studies, sampling and testing, and all remedial actions necessary to clean up and remove all Hazardous Materials from the Premises placed there as a direct result of any action or inaction on the part of Licensee in accordance with all applicable federal, state and local laws, ordinances, rules and regulations. The term "Hazardous Materials", as used in this Agreement, shall include, without limitation, petroleum a nd petroleum products and derivatives, asbestos, radon, polychlorinated biphenyls ("PCBs"), urea formaldehyde foam insulation, explosives, radioactive materials, laboratory waste and medical waste (including, without limitation, contaminated clothing, body fluids, contaminated medical instruments and equipment, catheters, used bandages, gauze, needles and other sharps), and any chemicals, materials or substances designed or regulated as hazardous or as toxic substances, materials or waste under any environmental law. Anything contained herein to the contrary notwithstanding, Licensee shall have no liability under this Section for contamination shown to have been present prior to the date hereof.
(b) Notices. Licensee shall immediately notify City in writing of:
(i) Any enforcement, clean-up, removal or other governmental or regulatory action instituted, completed or threatened pursuant to any Hazardous Materials laws;
(ii) Any claim made or threatened by any person against Licensee or the Premises relating to damage, contribution, cost, recovery, compensation, loss or injury resulting from or claimed to result from any Hazardous Materials actually handled by Licensee;
(iii) Any reports made to any environmental agency arising out of or in connection with any Hazardous Materials actually handled by Licensee on the Premises; and
(iv) Any reports made to any environmental agency arising out of or in connection with any Hazardous Materials actually handled by Licensee in, on or removed from the Premises, including any complaints, notices, warnings, reports or asserted violations in connection therewith. Licensee shall also supply to City as promptly as possible, and in any event within five (5) business days after Licensee first received or sends the same, copies of all claims, reports, complaints, notices, warnings, or asserted violations relating in any way to Hazardous Materials actually handled by Licensee on the Premises, or Licensee' use thereof.
Licensee shall promptly deliver to City copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the Premises by Licensee.
Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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(v) Any adverse action or suspension by any licensing or regulatory body.
(vi) The obligations and liabilities of Licensee under this Article shall survive the expiration or earlier termination of this Agreement. Failure to provide notice may be grounds for default or breach.
10. Default.
(a) Licensee’s failure to observe or perform any of the covenants, conditions or provisions of this Agreement to be observed or performed by Licensee, where such failure shall continue for a period of ten (10) days after written notice hereof from City to Licensee shall constitute a default by Licensee; provided, however, that if the nature of Licensee’s default is such that more than ten (10) days are reasonably required for its cure, then Licensee shall not be deemed to be in default if Licensee commenced such cure within said ten (10) day period and thereafter diligently prosecutes such cure to completion or failure to comply with any other term or condition within 10 days following written notice from City specifying the noncompliance. (b) Remedies. In the event of a default or breach, City may, with or without further notice or demand, and without limiting City in the exercise of any right or remedy which City may have by reason of such breach:
(i) Terminate Licensee’s right to use or possession of the Premises by any lawful means, in which case this Agreement shall terminate and Licensee shall immediately surrender its rights to City. In such event, City shall be entitled to recover from Licensee any amount necessary to compensate City for all the detriment proximately caused by the Licensee’s failure to perform its obligations under this Agreement or which in the ordinary course of events would be likely to result therefrom, including but not limited to the costs to repair, restore or clean the Premises, and reasonable attorneys’ fees. Efforts by City to mitigate damages caused by Licensee’s breach of this Agreement shall not waive City’s right to recover damages hereunder.
(ii) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Agreement and/or the termination of Licensee’s right to possession shall not relieve Licensee from liability under any indemnity provisions of this Agreement as to matters occurring or accruing during the Term hereof or by reason of Licensee’s occupancy of the Premises.
(c) City may make any payment or perform any obligation which Licensee has failed to perform, in which case City shall be entitled to recover from Licensee upon demand all amounts so expended, plus interest from the date of the expenditure at the rate of 10 percent per annum. Any such payment or performance by City shall not waive Licensee's default.
11. Notices. Notices between the Parties relating to this Agreement shall be in writing, effective when delivered, or if mailed, effective on the third business day following mailing, postage prepaid, to the address for the Party stated in this Agreement or to such other address as either Party may specify by written notice to the other. Notices are requested to the following addresses:
Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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To Licensee: Pacific Coast Sightseeing, Tours and Charters, Inc Address 2001 S. Manchester Ave., Anaheim, CA 92802
Attn: Waring Lester, Reginal Vice President / West
Email: [email protected]
Phone: 551-294-5681
With an email copy to:
Mike Waters, Service Delivery Director
Email: [email protected]
To City: City of Burbank Community Development Dept.
P.O. Box 6459
Burbank, California 91510-6459
Attn: Patrick Prescott, Community Development Director
Email: [email protected]
Phone: (818) 238-5176
12. Miscellaneous.
(a) Complete Agreement; No Implied Covenants. This Agreement constitutes the entire agreement of the Parties and supersedes all prior written and oral agreements and representations and there are no implied covenants or other agreements between the Parties except as expressly set forth in this Agreement. Neither City nor Licensee is relying on any representations other than those expressly set forth herein. (b) Space Licensed As Is. The Premises are licensed AS IS in the condition now existing with no alterations or other work to be performed by City. (c) Time of Essence. Time is of the essence of this Agreement. (d) Counterparts. This Agreement may be executed in counterparts and each such duplicate counterpart shall constitute an original, any one of which may be used for any purpose without the production of its duplicate counterpart. Moreover, each counterpart shall be deemed for all purposes to be an original, and all such counterparts together shall constitute one and the same instrument, binding on all Parties hereto. Transmission by facsimile, electronic mail, and/or other validated instantaneous electronic transmission to one Party of a true copy of a counterpart duly executed by the other Party shall constitute valid delivery of such counterpart, and shall be valid, binding and effective for all purposes.
Notwithstanding the foregoing, the authority under this Section to execute this Agreement with an electronic signature shall be limited to a physical (“wet ink”) signature placed on a counterpart to this Agreement by a Party, and transmitted electronically as described in this Section to the other Party.
(e) Captions. The titles to the sections of this Agreement are descriptive only and are not intended to change or influence the meaning of any section or to be part of this Agreement.
(f) Nonwaiver. Failure by City to promptly enforce any regulation, remedy or right of any kind under this Agreement shall not constitute a waiver of the same and such right or remedy may be asserted at any time after City becomes entitled to the benefit thereof notwithstanding delay in enforcement.
Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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(g) No Discrimination. Licensee herein covenants by and for itself, its successors, and assigns, and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the conditions that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, disability, medical condition, genetic information, sex, sexual orientation, marital status, national origin or ancestry, in the use, occupancy, or enjoyment of the Premises. (h) Waiver of claims. Licensee hereby irrevocably waives on behalf of itself, its successors and assigns and all persons claiming through it, any claim which Licensee may assert against the City for inverse condemnation, relocation payment, loss of business good will or, compensation for fixtures and equipment, and/or any other costs, expenses, or claims not specifically listed herein incurred by Licensee in connect ion with any termination, either by operation of law or otherwise, of this Agreement. Licensee specifically acknowledges that this Agreement may be pleaded as a defense and a bar to any such claim. Licensee further specifically acknowledges that in making this waiver, Licensee has consulted with its attorney and that this waiver is made freely and with knowledge of the character and extent of the rights thus waived.
(i) This Agreement shall be governed by and construed pursuant to the laws of the State of California.
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first written above.
”CITY”
THE CITY OF BURBANK, a municipal
corporation and charter city
Date: __________________________ By: __________________________________ Patrick Prescott
Community Development Director
Attest:
_______________________________________
Kimberley Clark, City Clerk
Approved as to Form
By: ____________________________________
Lisa Kurihara, Senior Assistant City Attorney
Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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”LICENSEE”
Pacific Coast Sightseeing, Tours and Charters, Inc,
a Florida corporation
By: __________________________________
Waring Lester, Reginal Vice President / West
Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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EXHIBIT “A”
PREMISES
Map not drawn to
Bay Occupancy Legend
As of June 2023
1 Megabus
2 Layover
3 Metro 155/Layover
4 Metro 164/Metro 165/Layover
5 Metro 164/Metro 165/Layover
6 Metro 164/Metro 165/Layover
7 Metro 154/Metro 155/Layover
8 Metro 96/Layover
9 Metro 294/Layover
⑨
⑧
⑦
⑥
⑤
④
③
②
①
Attachment 1 - Right of Entry Agreement with the Pacific Coast Sightseeing, Tours and Charters, Inc
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EXHIBIT B
SERVICE DESCRIPTION
This agreement permits Licensee to operate a 24-hour, daily bus stop for boardings and alightings at the Downtown Burbank Metrolink Station for a limited -stop, intercity bus service operating between Los Angeles, CA Union Station and San Francisco, CA. This service will operate for no more than six northbound and six southbound trips each day, and buses will stop for the boarding and alighting of passengers only. Licensee may operate occasional “extra sections” of any scheduled trip to and from this stop location when extra buses are required to accommodate additional passengers, so long these “extra sections” do not cause more than one bus to be located on the Premises. Licensee agrees to provide this stop at the location depicted in Exhibit A to this agreement. Licensee agrees that this service will be operated for fare-paying members of the general public.
Megabus is an intercity bus service of Coach USA/Coach Canada operating in the eastern, southern, midwestern, western, and Pacific United States and in the Canadian provinces of Ontario and Quebec. It is the North American service equivalent to the European Megabus.
Some tickets, if purchased well in advance, are priced as low as $1, with occasional free promotions, in addition to an online bookin g fee of $2.50 per transaction. Megabus follows the yield management model, typically used by airlines, where the lowest fares are offered to those who book early. Only one or two seats are sold for $0 or $1 per schedule, so the less popular schedules tend to be less expensive. Bus stops may be in public streets, bus stations, outside railroad stations or transportation centers in major cities, or on college campuses or at shopping centers in other cities.
Upon purchase of a ticket, passengers are given a reservation number to be shown to the bus operator upon boarding. In the United States, tickets are not available from the bus operator. In Canada, owing to franchise regulations, tickets are sold at stops but may be more expensive than those purchased online.
https://us.megabus.com/