1 PARKING PERMIT AGREEMENT
This Parking Agreement (the Agreement ) is dated the ____ day of _____________ 2022, by and between CITY OF FRESNO , a California municipal corporation, ( City), and METRO HOSPITALITY SERVICES, INC., a California corporation (Licensee). Licensee and City shall be referred to herein individually as a “Party” or collectively as the “Parties.”
RECITALS
A. T he City owns in fee all rights, t itle, and interest in and to the parking spaces in the parking facilities identified in the attached Exhibit “A” (collectively, Parking Facilities).
B. Licensee is the owner of the land located at 808 M Street (Land) and is in the process of constructing and equipping a hotel on the Land (the Hotel).
C. Licensee desires to obtai n up to 200 parking spaces ( Parking Spaces), as more fully defined in Section 5 herein, in the Parking Facil ites for use by Licensee ( or its designated valet parking service provider) for parking services (including valet services) to guests of the Hotel.
D. The Parties now desire to enter into this Agreement to memo rialize their respective rights and obligations related to Licensee’s use of the Parking Facilities.
AGREEMENT
NOW THEREFORE, for and in consideration of the mutual promises, covenants and agreements contained herein and for go od and valuable consideration, the City and Licensee do hereby agree as follows:
1. Recitals. Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein verbatim.
2. P urpose of Agreement. The purpose of this Agreement is to allow Licensee to use the Parking Spaces solely for the purpose(s) described in Section 5 hereof, and for no other purpose whatsoever, subject to the terms, conditions, and restrictions set forth in this Agreement.
3. E ffec tive Date of Agreement . This Agreement shall be effective as of the date first set forth above which shall be the date City signs this Agreement, which shall be after Licensee signs this Agreement (Effective Date).
4. T e rm . Notwithstanding Section 3 abo ve, the Initial Term of this Agreement shall commence on the date a Certificate of Occupancy for the Hotel i s issued (Commencement Date), and shall be for a period of five years from the Commencement Date, subject to earlier termination in accordance with this Agreement. At the request of either Party, the Parties will provide written confirmation of the Commencement Date. a. E xtension of Term. The Initial Term may be extended by mutual agreement of the Part ies, in writing, for up to two additional five-year periods, on the same terms and conditions as set forth in this Agreement. The Party seeking the extension shall provide written notice to the other P arty a minimum of 90 days prior to the expiration of the then current term.
2 5. T erms of Use.
a. Parking Spaces. For purposes of this Agreement, Licensee is granted the non - exclusive use of up to 200 non-reserved “as-is” parking spaces for daily parking for hotel guests; parking may be designated at City’s discretion anywhere in the Parking Facilities.
b. H ours of Use. Parking will be available to Licensee 24 hours a day every day .
Special procedures as designated by City or its designee may be required for access after normal business hours.
c. N oncompliance Penalty. Use of the Parking Facilities for unauthorized purposes may result in the issuance of parking citations or imposition of other penalties issued by the City of Fresno.
d. P arking Pass Procedures.
i. Entry to Parking Facility . Unless otherewise determined by the City through its City Manage r, entry and parking in the Parking Facilit ies shall be pursuant to parking tickets or passes (Parking Pass) issued to Licensee ( or its guests or designated valet parking service provider ) by City or City’s designated parking facilities operator (collectively referred to hereinafter as the City).
ii. P arking Pass Validation. Licensee or its designated valet parking service provider (collectively referred to herein after as Licensee) shall validate all Parking Passes with (1) a customized stamp specifying validation by t he “Courtyard by Marriott, Fresno Downtown” and (2) a date and time stamp. iii. E x iting from Parking Facilit es. U pon exit from the Parking Facilit ies, Licensee or its guests shall leave validated Parking Passes at a designated parking booth within the facility.
iv. C hanges to Procedure . The City reserves the right to change , add to, or modify the Parking Pass and Procedures set forth herein in its sole and absolute discretion. All changes shall be in writing and provided to Licensee a minimum of 14 days’ prior to becoming effective. Licensee shall remain responsible for all compliance set forth in this Agre ement, including Section 5.e. below.
e. Co mpliance . Parking Passes shall be used only by Licensee or its guests and may not be transferred to any third party. Licensee shall handle Parking Passes and cause its designated valet parking service provider, if applicable, to use the Parking Spaces for parking of vehicles in accordance with all applicable laws, ordinances, rules, and regulations applicable to the Parking Facilit ies, enacted or promulgated by any public or governmental authority or agency having jurisdiction over the Parking Facility, as may be amended from time to time. Any failure to comply with the requirements of this Section 5.e. shall be a material breach of this Agreement.
f. P
arking Facil ity Closure. City reserves the right to temporarily close the Parking Facilittes, or any portion thereof , for any reason, including to perform necessary repairs, maintenance or improvements. City shall post notice of such closure in the Parking Facilities as a courtesy to Licensee. City may conduct emergency 3 closures within its discretion , as it deems necessary for the operation of its facilities. In the event of any closure by City , City shall work with Licensee to provide alternative Parking Spaces for the duration of the closure. g. Relocation. The City may relocate Licensee’ s Parking within a facility to a different, re asonably equivalent location within another Park ing Fa cility or to a new or different, reasonably equivalent parking facility (which may include facilities and access and is within a reasonable distance to continue to serve the Hotel for valet parking) altogether by providing seven days’ written notice of such change to Licensee.
h. S ecurity . City shall not be responsible for the security of vehicles of the Licensee or its guests. Licensee shall be solely responsible for any and all damages occasioned from Licensee’s use of the Parking Facilities under this Agreement.
6. I mprovements . Licensee shall make no alterations, additions or improvements in or to the Parking Facilities.
7. T ermination.
a. Material Breach. Any material breach of this Agreement, which shall include substantial failure by a P arty to observe, fulfill, or perform any obligation, term or condition of this Agreement, shall be cause for termination as set forth herein.
Upon notice by a non- breaching Party to a P arty which has materially breached this Agree ment, the breaching Party shall have 90 calendar day s to cure the breach from the date of the notice. If the breaching Party does not cure within the 90 calendar days provided, the non-breaching Party may terminate the Agreement, effective immediately, upon written notice to the breaching Party. b. Cit
y’s Right to Termina te. Notwithstanding the foregoing, the City may terminate this Agreement at any time after the Commencement Date and for any reason, by giving 60 days’ prior written notice to the Licensee of such termination . This Agreement is a lso subject to termination by the City as may be otherwise set forth in this Agreement.
8. I nvoicing and Payment .
a. Invoicing. City shall provide monthly invoic es to Licensee as follows. City (City (or its parking facility operator) shall collect and tally all validated Parking Passes and provide Licensee a monthly invoice and associated documentation by email (to Licensee’s email of record) within five business days of the end of each month.
b. Da ily Rate Per Parkin g Pass. Licensee shall pay City for the use of the P arking Spaces in accordance with the then- current maximum “Short Term Daily Rate” set forth in the Master Fee Schedule ( Daily Rate) and any applicable as sociated fees set forth therein. Per the Master Fee Schedule, t he Daily Rate as of the Effective Da te is $9. The Daily Rate shall be subject to change based upon changes to the Master Fee Schedule.
c. P ayment . Licensee shall pay all invoices in full within 30 calendar days of receipt. All payments shall be made to the City of Fresno Parking Division, 2600 Fresno Street, Room 4019, Fresno California 93721. Failure to timel y pay invoices shall be a material breach of this Agreement.
4 d. Partial Payment . R eceipt of a payment of less than the amount due shall be deemed to be nothing more tha n a partial payment and shall be considered a material breach o f this Agreement. Under no circumstances shall City’s acceptance of a partial payment constitute accord and satisfaction, nor will City ’s acceptance of a partial payment forfeit City’s right t o collect the balance due on the account. City may accept any partial payment check wit h any conditional or restrictive endorsement or memorandum without prejudice to City’s right to recover the balance remaining due or to pursue any other remedy availabl e under this Agreement.
e. Lat e Payment . Licensee hereby acknowledges that any late payment to City will cause City to incur costs not contemplated by this Agreement, the exact amount of which is diff icult to ascertain. Such costs may include, but are not limited to, processing and accounting charges and late charges w hich may be imposed upon City by terms of any mortgage or trust deed or financing arrangement covering the Parking Facilit ies. Late payments are subject to a Late Payment Penalty as provide in the City’s Master Fee Sche dule and shall be considered a material breach of this Agreem ent. Any payments of any kind returned for insufficient funds will be subject to an additional handling charge of $25.00 and thereafter, City may require Licensee to pay all future payments of the Daily Rate or other sums due by money order or cashier’s check only.
9. A
ssignment .
a. Assignment by Licensee. Licensee shall not assign, subcontract , or otherwise transfer its rights or obligations under this Agreement . Any assignment, subletting, occupation, or use without the consent of City shall be void and, at the option of City, shall terminate this Agreement immediately without benefit to Licensee or its assignee of the termination notice provided for in Section 7. i. I nvoluntary Assignment. No interest of Licensee in this Agree ment shall be assignable by involuntary assignment through operation of law . Each of the following acts shall be considered an involuntary assignment: ( i) if Licensee is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or institutes proceedings under the Bankruptcy Act in which Licensee is the bankrupt; or ( ii) if a writ o f attachment or execution is levied on this Agreement; or (iii) if in any proceeding or action to which Licensee is a party, a receiver is appointed with authority to take possession of the Parking Spaces. An involuntary assignment shall constitute a defa ult by Licensee and City shall have the right to elect to terminate this Agreement immediately without benefit to Licensee or its assignee of the termination notice provided for in Section 7, in which case this Agreement shall not be treated as an asset of Licensee. b. A ssignment by City . C ity may assign this Agreement, and/or sell the Parking Facilities, in whole or in part , to any other Party, without providing Licensee with prior written notice ; City’s election to sell the Parking F acilities, in part, shall include the right to assign this Agreement to the purchase as part of such transaction. Licensee agrees to attorn to any assignee/purchaser.
10. W aiv er. The waiver by either Party of a breach of any provision of this Agreement s hall not constitute a continuing waiver or a waiver of any subsequent breach of either the 5 same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writ ing and signed by all Parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
11. Property Tax . Any interest in real property which exists as a result of possession, exclusive use, or a right to possession or exclusive use of any real property (land and/or improvements located therein or thereon) which is owned by City is a taxable possessory interest unless the possessor of interest in such property is exempt from taxation. With re gard to any possessory interest to be acquired by Licensee under this Agreement, Licensee , by its signature hereunto affixed, agrees to pay any property taxes levied upon such interest, or thereby warrants, stipulates, confirms, acknowledges, and agrees th at, prior to its executing this Agreement, Licensee either took a copy of this Agreement to the office of the Fresno County tax assessors or by some other appropriate means independent of City or any employee, agent, or representative of City determined th at Licensee will not be taxed on its possessory interest hereunder.
12. No
tices . Any notices required or permitted to be given under the terms of this Agreement must be in writing and be: (a) personally delivered; (b) mailed by depositing such notice in the United States mail, first class postage prepaid; or (c) sent by reputable overnight delivery service, addressed as follows or to such other place as each Party hereto may designate by subsequent written notice to the other Party:
To L
ice nsee:
Metro Hospitality Services, Inc.
Attention: Tehal Thandi
4692 East Lincoln Avenue
Fowler California 93625
Phone: 559-834-400
Mobile: 559 280-1313
Fax: 559 834-5119
To City:
City of Fresno
Planning and Development Department
Parking Manager
2600 Fresno Street Room 4019
Fresno, CA 93721-3623
Phone: 559-621-7275
Fax: 559-457-1265
13. Governing Laws and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California.
14. C
ondemnation. If the Parking Spaces or any portion thereof are taken under the power of eminent domain, or sold to a public authority under the threat of the exercise of said power (all of which is herein referred to as Condemnation), this Agreement shall 6 terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first. All awards for the taking any payment made under the threat of the exercise of condemnation shall be payable to the City, and Licensee shall not claim any portion of such award by virtue of any interests created by this Agreement or otherwise.
15. Severability. If a ny term, provision, covenant, or restriction in this Agreement is determined to be invalid, void, unenforceable, or otherwise inconsistent with applicable law, the remainder of the terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect and will in no way be affected, impaired, or invalidated. It is hereby stipulated and declared to be the intention of C ity and the Licensee that they would have executed the remaining terms, provisions, covenants, and restrictions set forth in this Agree ment without including any of such terms, provisions, covenants, or restrictions that may be hereafter declared invalid, void, or unenforceable.
16. C
umulative Remedies . No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
17. H eadings . The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add t o the interpretation or meaning of the provisions of this Agreement.
18. In terpretation . Should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall be resolved by construing the terms of this Agreement in accordance with their generally accepted meaning.
19. E xtent of Agreement. Each P arty acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents t he entire and integrated agreement between the Parties with respect to the subject matter hereof and supersedes all pr ior negotiations, representations or agreements, either written or oral.
This Agreement may be modified only by written instrument duly a uthorized and executed by both City and Licensee.
20. B inding . Once this Agreement is signed by all P arties, it shall be binding upon, and shall inure to the benefit of, all P arties, and each Party’s respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives.
21. C ompliance w ith Law. Licensee shall at all times comply with all applicable laws of the United States, the State of California and C ity, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
22. A
ttorney’s Fees. If either P arty is required to commence any proceeding or legal action to enforce or interpret any term , covenant or condition of this Agreemen t, the prevailing Party in such proceeding or action shall be entitled to recover from the other P arty its reasonable attorney’s fees and legal expenses.
23. N o Third Party Beneficiaries . The rights, interests, duties, and obligations defined within this Agreement are intended for the specific P arties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it 7 is not intended that any rights or interests in this Agreement benefit or flow t o the interest of any third parties.
24. T he City Manager, or designee, is hereby authorized and directed to execute and implement this Agreement. The previous sentence is not intended to delegate any authority to the City Manager to administer the Agreement , any delegation of authority must be expressly included in the Agreement.
IN WITNESS WHEREOF, the P arties have execut ed this Agreement at Fresno, California, the day and year first above written.
CITY:
CITY OF FRESNO,
a California municipal corporation
By:
Georgeanne White
City Manager
Date:________________________
LICENSEE:
METRO HOSPITALITY SERVICES, INC.,
a California corporation
By:____________________________
Tehal Thandi, Its President
Date: __________________________
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City Attorney
By:
Tracy N. Parvanian Date
Supervising Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
REVIEWED & RECOMMENDED FOR APPROVAL:
By:
Melissa Almaguer
Parking Manager,
Planning & Development Department
Exhibit A: Parking Facilities Map