Full Text
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN REGIONAL PUBLIC TRANSPORTATION (dba SMART) AND CITY OF MOSCOW, IDAHO THIS FIRST AMENDMENT TO THE INTERMODAL TRANSIT CENTER FACILITY LEASE AGREEMENT BETWEEN REGIONAL PUBLIC TRANSPORTATION (dba SMART) AND CITY OF MOSCOW, IDAHO (hereinafter "Amended Lease Agreement"), is entered into as of the \ 1Sl:' day of 11.V" 2016, by and between Regional Public Transportation, a corporation of the tate{)f Idaho (hereinafter "RPT"), 1006 Railroad Street, P 0 Box 3854, Moscow, Idaho, 83843, and the City of Moscow, Idaho, a municipal corporation of the State of Idaho (hereinafter "CITY"), 206 East Third Street, Moscow, Idaho, 83843. Agreement to Extend Agreement Termination Date. III. TERM AND RENEWAL TERM. This Amended Lease Agreement shall be in effect from October 1, 2015, for a term of five years, ending September 30, 2020. This Lease may be renewed for one additional five year term, upon written agreement by both parties. All other provisions of Intermodal Transit Center Facility Lease entered into as of the 4th day of September, 2012 (attached as Exhibit "1 "),shall remain in full force and effect unless modified by written agreement of both parties. RPT ATTEST: FIRST AMENDED ITC FACILITY LEASE RPT (DBA SMART), AND CITY CITY PAGE I OF l -Z..D I lo- 0 13 ---PAGE BREAK--- EXHIBIT INTERMODAL TRANSIT CENTER FACILITY LEASE REGIONAL PUBLIC TRANSPORTATION, INCORPORATED THIS INTERMODAL TRANSIT CENTER FACILITY LEASE REGIONAL PUBLIC TRANSPORT/\ Tl ON, INCORPORATED (RP'f) dba SMART (hereinafter "Facility Lease") is entered into as of the day of be>r2012 by and between Regional Public Transportaiion, a Corporation of the State ol Idaho C'RPT'') Uhd the City of Moscow, Idaho, a municipal corporation of the State ofldaho ("CITY"). I. BASIC PROVISIONS. The following basic provisions are a part of this Facility Lease: A. Lessee. Regional Public Transportation, Inc. (RPT) is the LESSEE. RPT's current mailing address is 1424 Main Street, Lewiston, Idaho, 83501. B. Lessor. City of Moscow is the LESSOR. CITY's current mailing address is P 0 Box 9203, Moscow, Idaho, 83843. C. Leased Premises, Common Space, and Exterior Common Space. The leased premises are a portion of the Moscow Intermodal Transit Center ("ITC Facility") located at I 006 Railroad Street, Moscow, Idaho and comprise approximately one thousand five hundred fifty two (l,552) square feet of space exclusively provided to RPT under the terms of this Facility Lease ("Premises") and shared use of approximately two thousand one hundred seventy seven 177) additional square feet to be used for public waiting areas, restrooms, hallways and building systems ("Common Space"), as well as exterior public transportation facilities which includes passenger boarding platforms, seven employee parking spaces, eight bus parking spaces and associated walking areas and vehicular access routes ("Exterior Common Space"), all as shown on the attached Exhibit incorporated herein. D. Permitted Use. The use of Premises by RPT permitted under this Facility Lease shall be limited to dedicated office and storage space and external parking space for the purposes of operating RPT's public transportation services, and Common Space to provide public waiting areas, restrooms, hallways and building systems associated with RPT's uses. E. Initial Term and Commencement Date. This Facility Lease shall commence upon December I, 2012 (the "Commencement Date") and shall end on September 30, 2015 ("Initial Term"). F. Rent. CITY shall provide Premises and associated Common Space with the payment of rent as specified herein. RPT shall pay CITY the amounts as detailed in Section IV of this Facility Lease. ITC FACILITY LEASE - I RPT(SMART)/City of Moscow lnterrnodal Transit Center Facility Lease EXHIBIT"!" Zotz..- IY5 ---PAGE BREAK--- II. GRANT OF PREMISES AND POSSESSION. A. Grant of Premises. CITY leases to RPT and RPT leases from CITY the Premises subject to the terms and conditions of this Facility Lease. B. Possession. CITY shall deliver possession of the Premises (including the rights, privileges, benefits, rights-of-way and easements now or in the future appurtenant to the Premises) to RPT on the Commencement Date. During the Initial Term, CITY covenants on behalf of itself and its respective successors and assigns to provide quiet and peaceable possession of the Premises to RPT, subject to the express provisions of this Facility Lease. III. INITIAL TERM AND RENEW AL TERM. This Facility Lease shall commence upon December 1, 2012 and shall terminate upon September 30, 2015. Six months prior to the termination of this Facility Lease, CITY shall notify RPT of the fo1thcoming termination of this Facility Lease and shall request written notice of RPT's intent to extend the term of this Facility Lease for an additional three year period from the date of termination of the Initial Term. Such extended term shall be referred to as the "Renewal Term" and all relevant provisions of the Initial Term shall be in force and effect for such Renewal Term. IV. PAYMENT OF OPERATING AND FACILITY COSTS. A Rent. RPT agrees to pay CITY, rent in the amount of one thousand two hundred and seventy five dollars ($1,275.00) per month. The rent amount shall be increased annually in the amount equal to the average of the preceding three years value for the month of March of the Consumer P1ice Index for All Urban Consumers (CPI-U): West Side B/C. This annual rate increase shall be effective upon October 1st of each year of the Initial Term for the following twelve (12) month period, to account for increased cost for janitorial, utility and building maintenance services and supplies incurred by CITY. If said Consumer Price Index is replaced by a new federal statistic, said new statistic shall be used in determining rental adjustments. This rent adjustment method shall continue through the Renewal Term. B. Date and Fo1m of Payments. Rent payments shall be paid and shall be due by the 201h day of each month. All payments shall be made payable to "City of Moscow", and mailed to the attention of "Finance Department, PO Box 9203, Moscow, Idaho, 83843" or such different address or person as CITY shall provide to RPT by written notice. V. OPERATION OF PREMISES. A. RPT's Use of Premises. The Premises shall be occupied and used by RPT only for the Permitted Use and for no other purpose. RPT shall not commit waste on or in the Premises, Common Space or Exterior Common Space, or disfigure or deface any part of the building, grounds, or any other part or portion of the Premises, including fixtures, carpeting, or wall coverings (painted surfaces of the Premises). RPT further covenants that it will repair and maintain the furnishings, fixtures and equipment exclusively occurring within the Premises (but ITC FACILITY LEASE - 2 RPT(SMART)/City ofMoscow lntermodal Transit Center facility Lease EXHIBIT ---PAGE BREAK--- not including components, systems, and equipment that serve the overall ITC Facility, such as portions of mechanical, electrical and plumbing systems that serve the ITC Facility outside the Premises) at RPT's effort and expense throughout the Initial Term. B. CITY's Obligations. l. CITY shall provide repair, maintenance, and replacement materials and services to ITC Facility, Common Space and Exterior Common Space. CITY is not obligated or authorized to perform such work on or within the Premises, except by separate written agreement with RPT describing scope and cost assignment (if agreed upon by both parties to this Facility Lease). 2. CITY shall provide telecommunications services to RPT including the provision of local telephone service, telephone devices, telephone support services, and internet services. RPT shall be responsible for long distance calling charges for which CITY shall bill RPT on a basis for actual long distance calling costs incurred by RPT. C. Utilities and Custodial Services. CITY shall be responsible for and shall pay all charges to provider, when due, for water, natural gas, electricity, sanitation collection and disposal, custodial or other service (excluding television services) if used upon or furnished to the Premises or Common Space or Exterior Common Space. Unless caused by the negligent or intentional acts or omissions of CITY or its representatives, CITY shall not be liable in damages or otherwise for any failure or interruption of any utility service being furnished to the Premises; or (ii) the heating, ventilating and air conditioning system. No such failure or interruption, whether resulting from a casualty or otherwise, shall entitle RPT to abate the payments RPT is required to make under this Facility Lease. D. Sign. No permanent signs atlixed to the Premises shall be installed, replaced or improved by RPT without CITY's prior written consent. All such installation, replacement, improvement or maintenance of signs shall be at RPT's sole expense. E. Modification to Premises by RPT. RPT shall neither make nor undertake any modification or improvement to the Premises unless CJTY has given its prior written consent, which consent may be withheld, delayed or conditioned as CITY may elect in CITY's discretion. Such modification of the Premises shall comply with all of the following requirements: l. RPT shall supply CJTY with a complete set of construction drawings for CITY's review and approval at least sixty (60) days prior to RPT's proposed commencement of any construction work; and 2. RPT may perform construction as provided by Section V or RPT shall retain a licensed· and bonded contractor, approved in writing by CITY, to perform any construction work (for alterations, repair of fire or casualty, or other construction). The contractor shall carry public liability and property damage insurance, standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, during the period of construction. F. Hazardous Material Use. RPT and CITY shall not cause or permit any Hazardous Material to be brought upon, kept, used, disposed, or discharged, in, on, from or about the ITC FACILITY LEASE· 3 RPT(SMART)/City of Moscow lntermodal Transit Center facility Lease EXHIBIT ---PAGE BREAK--- Premises, Common Space, or Exterior Common Space by their agents, employees, contractors, customers, clients, guests or invitees except for typical motor vehicle fluids for daily public transit vehicle operation and maintenance as incidental to RPT's permitted use of the Premises or CITY's maintenance, repair or other obligations for the Premises, and only in quantities that are less than the quantities that are required to be reported to governmental or other authorities under applicable law or regulations. RPT and CITY shall comply with all applicable laws and regulations regulating the use, reporting, storage, discharge and disposal of Hazardous Material. As used in this Facility Lease, the term "Hazardous Material" means any hazardous or toxic substance, material or waste that is or becomes regulated by any federal, state or local governmental authority or political subdivision. The term "Hazardous Material" includes, without limitation, any material or substance that is defined as a "hazardous substance" under applicable law; (ii) petroleum; (iii) asbestos; (iv) biphenyl designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1321); (vi) defined as a "baz.ardous waste" pursuant to Section 1004 of the Solid Waste Disposal Act (42 U.S.C. § 6903); (vii) defined as a "hazardous substance" pursuant to Section IOI of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601); (viii) defined as a "regulated substance" pursuant to Section 9001 of the Solid Waste Disposal Act (Regulation of Underground Storage Tanks), 42 U.S.C. § 6991; (ix) considered a "hazardous chemical substance and mixture" pursuant to Section 6 of the Toxic Substance Control Act (15 U.S.C. § 2605); or defined as a "pesticide" pursuant to Section 2 of the Federal Insecticide, Fungicide and Rodenticide Act (7 u.s.c. § 136). G. Covenant Against Liens. RPT shall not directly or indirectly create or cause to be created or to remain, and shall discharge, at RPT's sole expense, any mechanics' lien or similar lien against the Premises which RPT created or caused to be created by RPT's work on the Premises. RPT bas no authority or power to cause or permit any mechanics' lien or similar lien created by act ofRPT, operation of laws, or otherwise to attach to or be placed upon CITY's title or interest in the Premises. Any lien against RPT shall attach only to RPT's leasehold interest in the.Premises. RPT may contest, at RPT's sole expense, any lien, and the lien may remain, pending resolution of the challenge. RPT shall indemnify and hold CITY harmless from any and all loss, damage or expense occasioned by the lien challenge and shall provide such security as CITY may reasonably demand. If the lien is adjudged to be valid, the challenging party shall pay and discharge the lien. CITY will not directly or indirectly create or cause to be created or to remain, and will discharge, at CITY's sole expense, any mechanics' lien or similar lien against the Premises which CITY created or caused to be created by CITY's work on the Premises. H. CITY's Right of Entry. After providing written notice to RPT not less than twenty four (24) hours prior to an intended entry or with RPT's verbal consent, CITY and CITY's agents may enter the Premises to inspect the general condition and state of repair of the Premises. CITY's entry may be supervised by RPT. In the event of an emergency arising within the Premises that endangers property or persons, the notice requirement is waived by RPT. VI. CHANGES IN THE PARTIES. ITC l'ACJLITY LEASE -4 RPT(SMART)ICity ofMosoow !ntermodal Transit Center Facility Lease EXHIBIT ---PAGE BREAK--- A. Relationship of Parties. Nothing contained in this Facility Lease shall be construed as creating the relationship of principal or agent, partnership or joint venture. Neither the assignment of rent nor any other provision of this Facility Lease, nor any act of the parties, shall be deemed to create any relationship other than that of CITY and RPT. B. Successors and Assigns. This Facility Lease shall benefit and bind the successors and pennitted assigns of CITY and RPT. C. Prohibition on RPT Assignment. RPT may not assign all or a part of this Facility Lease unless RPT first obtains the written consent VII. LOSS AND DAMAGE TO PREMISES. A. RPT's Possession at Own Risk. RPT covenants and agrees that neither CITY nor its agents shall be liable in any way for personal injuries or property damages sustained by RPT, its employees, visitors, or by any occupant of the Premises, or by any other persons or organizations claiming through RPT, resulting from the condition, state of repair, or use of the Premises, Common Space or Exterior Common Space, or any part thereof, or of any equipment therein or appurtenances thereto, or resulting directly or indirectly from any act or negligence of RPT or of any other person or persons excepting the CITY or its agent. Neither CITY nor its agents shall be liable for damage to RPT's personal property or for any loss suffered by RPT caused in any manner whatsoever. 8. Insurance. CITY shall insure the ITC Facility, including the Premises, Common Space and Exterior Common Space through CITY'S policy with the Idaho Counties Risk Management Program (ICRMP) in the same or substantially similar fashion as CITY insures its other buildings. RPT shall have no obligation to obtain or pay for such insurance. C. RPT's Insurance. No insurance is provided by CITY for RPT's personal property or for RPT's permitted business operations. RPT shall insure and be solely responsible for any and all lines of insurance coverage for business operations, and for personal property, of every kind or nature, which is not pal1 of the Premises. RPT shall, at RPT's sole cost and expense, either obtain the insurance RPT and CITY deem advisable, or shall be deemed to be self-insured. RPT waives all rights on any insurance purchased by, or risk funding arrangements of, CITY. D. Waiver of Subrogation. To the extent permitted by their respective insurers, CITY and RPT (and each person claiming an interest in the Premises through CITY or RPT) release and waive their entire right of recovery against the other for direct, incidental or consequential or other loss or damage arising out of, or incident to, the perils covered by insurance carried by each party, whether d ue to the negligence of CITY or RPT. If necessary, all insurance policies may be endorsed to evidence this waiver. E. Effect of One Party's Actions on Other Party's Insurance. Neither party shall do or permit to be done anything that shall invalidate any insurance carried by the other party. ITC FACILITY LEASE- 5 RPT(SMART)/City of Moscow lntennodal Transit Center Facility Lease EXHIBIT ---PAGE BREAK--- F. Damage or Destruction of Premises. In the event of damage to or destruction of the improvements to the Premises by fire or other casualty, CITY shall either repair such damage or cause such damage to be repaired, in which event the Facility Lease shall continue in full force and effect, or, if agreeable to RPT terminate the Facility Lease upon written concurrence from RPT within ninety (90) days of the damage. In the event the damage is caused by the negligence or willful act or omission of the RPT, RPT shall be obligated to provide insurance proceeds to the extent such proceeds are available to repair, restore or rebuild and RPT shall deliver all insurance proceeds and/or assign any causes of action it may possess against any person or entity to CITY. IfRPT elects to proceed under subsection above, during the period of damage, distribution, repair, restoration or rebuilding, this Facility Lease shall remain in effect. VIII. DEFAULT BY RPT OR CITY. A. Default by RPT. RPT shall be in default under this Facility Lease if any of the following occur: RPT fails to pay when due any payment required to be paid by RPT under this Facility Lease; (ii) RPT fails to perform or observe any other covenant, agreement or condition which RPT is required to perform or observe and the failure shall not be cured within thirty (30) calendar days after delivery of written notice to RPT of the failure (or, if the cure cannot be effected within the thirty (30) day period, then within the additional period of time as may be required to cure the default provided RPT is diligently and continuously pursuing the cure to completion). B. Remedies of CITY. In the event of RPT's default as set forth in Section VIII.A., CITY shall have the remedies set forth in this Facility Lease by the giving of prior written notice to RPT at any time during the continuance of the event of default. CITY's remedies are cumulative and not alternative remedies. I. Legal and Equitable Remedies. CITY shall have all remedies available at law or in equity. 2. Termination of Lease. In the event of a RPT default, in addition to all other rights and remedies available to CITY in law and equity, CITY may change the locks and lock the doors to the Premises and exclude RPT from the Premises; (ii) enter the Premises and remove all persons and property therefrom without being liable for prosecution or any claim for damages for the removal; (iii) declare the Facility Lease terminated; (iv) commence litigation for the any amounts due CITY and to become due under the Facility Lease, and for any damages sustained by CITY; or hold the RPT liable for the reasonable cost of obtaining possession of the Premises. 3. Advance. In the event of RPT's default, CITY may remedy the default for the account and at the expense ofRPT. If CITY at any time, by reaspn of the default, is compelled to pay, or elects to pay, any money or do any act which will require the payment of any money, or is compelled to incur any expense, including reasonable attorneys' fees, in instituting or prosecuting any action or proceeding to enforce CITY's rights under this Facility Lease, the ITC FACIL!lY LEASE- 6 RP'T(SMART)/Cily of Moocow lntermodal Transit Center Facility Lease EXHIBIT"!" ---PAGE BREAK--- money paid by CITY, with interest from the date of payment, shall be additional rent and shall be due from RPT to CITY as rent. C. Default by CITY. CITY shall be in default under this Facility Lease if CITY fails to perf01m or observe any covenant, agreement or condition which CITY is required to perform or observe and the failure shall not be cured within sixty (60) calendar days after delivery of written notice to CITY by RPT of the failure (or, if the cure cannot be effected within the sixty (60) day period, then within the additional period of time as may be required to cure the default provided CITY is diligently and continuously pursuing the cure to completion). D. Remedies of RPT. In the event of CITY's default as set forth in Section VIII.C., RPT shall have all rights provided at law or in equity, except RPT expressly waives any right to the abatement or withholding of Operating or Facility Costs payable to CITY under this Facility Lease (because such costs represent reimbursement for actual costs incurred by CITY for services and material provided to RPT). RPT's obligation to pay Operating and Facility Costs is independent of all other rights, and RPT may not withhold payment of such costs from CITY or pay to other pmties or into any escrow or holding account because of the default or alleged default of CITY. IX. TERMINATION OF FACILITY LEASE. A. Events of Te1mination. This Facility Lease shall terminate upon the occurrence of one or more of the following events: by mutual written agreement of CITY and RPT; (ii) by CITY pursuant to the express provisions of this Facility Lease; (iii) upon expiration of the Initial Term or Renewal Term; (iv) by reason of Section VIl.F. relating to destruction of the Premises; or RPT may unilaterally terminate this Facility Lease by notifying CITY of early termination in writing not less than six months prior to the noticed early termination date. B. Surrender of Possession. In the event of early termination resulting from default by RPT, RPT will immediately surrender possession of the Premises to CITY. If possession is not immediately surrendered, CITY may, in compliance with the laws of the State of ldaho, re-enter and repossess the Premises and remove all persons or property. RPT shall restore the Premises to a broom clean and functional condition, with the exception of ordinary wear and tear; and (ii) alterations, improvements and additions which CITY approved in writing prior to installation and which CITY has not directed RPT in writing to remove. If RPT fails to properly restore the Premises, CITY, at RPT's expense, may restore the Premises in any reasonable manner that CITY may choose. In the event of termination for any other reason, RPT shall have no obligation to surrender Premises. X. CLAIMS AND DISPUTES. Rights and Remedies Cumulative. Except as expressly provided in this Facility Lease, each party's rights and remedies described in this Facility Lease are cumulative and not alternative remedies. ITC FACILITY LEASE - 7 RPT(SMAR1)/City of Moscow lntennodal Transit Center facility Lease EXHIBIT ---PAGE BREAK--- B. Nonwaiver of Remedies. A waiver of any condition stated in this Facility Lease shall not be implied by any neglect of a party to enforce any remedy available by reason of the failure to observe or perform the condition. A waiver by a party shall not affect any condition other than the one specified in the waiver and a waiver shall waive a specified condition only for the time and in the manner specifically stated in the waiver. The acceptance by CITY of payment previously due from RPT after termination of the Facility Lease or after termination of RPT's right of possession, shall not alter, diminish, affect or waive the Facility Lease termination, termination of possession, default or remedy. C. Indemnification and Insurance. CITY is considered a Governmental entity under the Idaho Tort Claims Act (Idaho Code 6-901 through 6-929). CITY's liability coverage is provided through Idaho Counties Risk Management Program (ICRMP). Limits of liability, CITY's indemnification hereunder, with respect to claims covered by the Idaho Tort Claims Act, are five hundred thousand dollars ($500,000) Combined Single Limits, which amount is CITY's limit of liability under the Idaho Tort Claims Act. Nothing in this Facility Lease shall be construed to expand the liability of CITY beyond the limit of liability under the Idaho Tort Claims Act for any claims covered by such Act. Indemnification between CITY and RPT: I . Unless otherwise determined by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905, CITY waives any and all claims and recourse against RPT, including the right of contribution for loss and damage to persons or property arising from, growing out of, or in any way connected with or incident to RPT's performance hereunder, except for liability arising out of the sole negligence of RPT or its officers, agents, or employees. RPT shall indemnify, hold harmless, and defend CITY against any and all claims, demands, damages, costs, expenses, or liability arising out of RPT's performance of this Facility Lease, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. If CITY is determined to be solely negligent by a final decision in a court of law and such sole negligence by CITY directly results in judgment(s), costs, and/or expenses to RPT, then CITY shall reimburse RPT for the portion of such judgment(s), costs and/or expenses attributed to CITY as a result of such determination of CITY's sole negligence. 2. Unless otherwise required by a condition of Federal Transit Administration Tiger II Grant No. ID-79-0001 Key No. 12905, RPT waives any and all claims and recourse against CITY, including the right of contribution for loss and damage to persons or property arising from, growing out ot: or in any way connected with or incident to CITY's perfo1mance hereunder, except for liability arising out of the sole negligence of CITY or its officers, agents, or employees. Further, subject to the limits of liability specified in Idaho Code§§ 6-901 through 6-929, known as the Idaho Tort Claims Act, CITY shall indemnify, hold harmless, and defend RPT against any and all claims, demands, damages, costs, expenses, or liability arising out of CITY's performance of this Facility Lease, except for liability arising out of the sole negligence of RPT or its officers, agents, or employees. ITC FACILITY LEASE· B RPT(SMART)ICity of Moscow Intermodal Transit Center Facility Lease EXHIBIT ---PAGE BREAK--- If RPT is determined to be solely negligent by a final decision in a court of law and such sole negligence by RPT directly results in judgment(s), costs, and/or expenses to CITY, then RPT shall reimburse CITY for the portion of such judgment(s), costs and/or expenses attributed to RPT as a result of such determination ofRPT's sole negligence. Insurance Requirements for RPT. RPT shall obtain or require subtenants or contractors to obtain insurance of the types and in the amounts described below: 1. Commercial General and Umbrella Liability Insurance. RPT (or subtenant and/or contractor) shall maintain Commercial General Liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000 each occurrence and in the aggregate. If such CGL insurance contains a general aggregate limit, it shall apply separately to the Premises and shall not be less than $1,000,000. CGL insurance shall be written on standard ISO occurrence form (or a substitute form providing equivalent coverage) and shall cover liability arising from Premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract including the tort liability of another assumed in a business contract. 2. Conunercial Auto Insurance. RPT (or subtenant and/or contractor) shall maintain a Commercial Auto policy with a Combined Single Limit of $1,000,000; Underinsured and Uninsured Motorists limit of $1,000,000; Comprehensive; Collision; and a Medical Payments limit of$10,000. Coverage shall include Non-Owned and Hired Car coverage. 3. Personal properly. RPT (or subtenant and/or contractor) shall purchase insurance to cover RPT's (or subtenant's or contractor's) personal prope1ty. In no event shall CITY be liable for any damage to or loss of personal property sustained by RPT (or subtenant and/or contractor), whether or not insured, even if such loss is caused by the negligence of RPT, its employees, officers or agents. 4. Workers' Compensation. Where required by law, RPT (or subtenant and/or contractor) shall maintain all statutorily required coverages including Employer's Liability. Notification. CITY and RPT shall notify the other party of any claim arising under, or otherwise related to, the provisions hereof. CITY and RPT shall cooperate with the other party in defense of such claims. RPT shall provide a Ce1tificate of Insurance for the Insurance Requirements of this Facility Lease, evidencing coverage pursuant to this Facility Lease. Notice of claim or incident shall be given to the representative for the party by the party receiving such claim or incident. Indemnification by Third Parties. Subtenants or contractors of RPT who occupy or perform services on the Premises shall be required to indemnify, defend and hold CITY and its governing board, employees, ITC FACILITY LEASE - 9 RPT(SMART)/City of Moscow lnlermodal Transit Center Facility Lease EXHIBIT ---PAGE BREAK--- agents, and assigns hannless from and against any and all claims, losses, damages, injuries, liabilities and all costs, including attorney's fees, court costs and expenses and liabilities incurred in or from any such claim, arising from any breach or default in the peiformance of any obligation on RPT's or subtenant's part to be pe1formed under the terms of this Facility Lease, or arising from any act, negligence or the failure to act of subtenant, contractor, or any agents, contractors, employees, invitees or guests thereof. Insurance by Third Parties. During the Initial Tenn (and any Renewal Term) of this Facility Lease, subtenants or contractors of RPT shall be required to carry the types and limits of insurance shown in this Facility Lease Section C. Indemnification and Insurance, and to provide CITY with a Certificate of Insurance showing compliance thereto. At any time, CITY reserves the right to amend insurance requirements or require a security bond, if circumstances warrant such action. Additionally and at its sole option, CITY may request certified copies of required policies and endorsements ofRPT's subtenants and/or contractors. Such copies shall be provided within ten ( 10) days of CITY's request. All insurers shall have a Best's rating of AV or better and be licensed and admitted in Idaho. RPT shall furnish CITY with a certificate of insurance executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth below. All policies required shall be written as primary policies and not contributing to nor in excess of any coverage CITY may choose to maintain. All certificates shall provide for thirty (30) days' written notice to CITY prior to cancellation or material change of any insurance referred to therein. Al I policies shall contain waiver of subrogation coverage or endorsements. Failure of CITY to demand such ce1tificate or other evidence of full compliance with these insurance requirements or failure of CITY to identify a deficiency from evidence that is provided shall not be construed as a waiver of RPT's obligation to maintain such insurance. Failure to maintain the required insurance may result in termination of this Facility Lease at CITY's option. By requiring insurance herein, CITY does not represent that coverage and limits will necessarily be adequate to protect RPT, and such coverage and limits shall not be deemed as a limitation on RPT's liability under the indemnities granted to CITY in this Facility Lease. RPT shall require any subtenants or contractors to comply with the insurance provisions of this Facility Lease. In the event RPT is not occupying space and is enforcing the subtenant's compliance with these insurance provisions, RPT shall not be responsible, as a requirement of this Facility Lease, to maintain the specific insurance required for subtenants and contractors of this Facility Lease. D. Hazardous Material Indemnification 1. By CITY. During and after the Initial Te1m of this Facility Lease, CITY shall indemnify and hold RPT harmless from any and all costs (including costs of remediation or cleanup and any proceedings related thereto), claims, judgments, damages, penalties, fines, liabilities or losses (including, without limitation, diminution in value of the Premises, damages for the loss or restriction on use of rentable or useable space or any amenity of the Premises, damages arising from any adverse impact on marketing of space, and sums paid in settlement of ITC FACILITY LEASE - 10 RPT(SMART)/City of Moscow lntermodal Transit Center Facility Lease EXHIBIT ---PAGE BREAK--- claims, attorneys' fees, consultant fees and expert fees) which arise during or after the Initial Term as a result ofCITY's breach of the obligations stated in Section V.F. regarding Hazardous . Material. This indemnification of RPT by CITY includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises. Without limiting the preceding, if the presence of any Hazardous Material on the Premises caused or permitted by CITY results in any contamination of the Premises, CITY shall take all actions at CITY's sole expense as are necessary to return the Premises to the condition existing prior to the introduction of any Hazardous Material to the Premises. 2. By RPT. During and after the Te1I of this Facility Lease, RPT shall indemnify and hold CITY harmless from any and all costs (including costs of remediation or cleanup and any proceedings related thereto), claims, judgments, damages, penalties, fines, liabilities or losses (including, without limitation, diminution in value of the Premises, damages for the loss or restriction on use of rentable or use able space or any amenity of the Premises, damages arising from any adverse impact on marketing of space, and sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees) which arise during or after the Term as a result of RPT's breach of the obligations stated in Section VF. regarding Hazardous Material. This indemnification of CITY by RPT includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in the soil or ground water on or under the Premises. Without limiting the preceding, if the presence of any Hazardous Material on the Premises caused or permitted by RPT results in any contamination of the Premises, RPT shall take all actions at RPT's sole expense as are necessary to return the Premises to the condition existing prior to the introduction of any Hazardous Material to the Premises. E. Dispute Resolution. If the parties disagree regarding the performance of this Facility Lease, then the parties agree to engage in direct discussions to settle the dispute. If the disagreement cannot be settled by direct discussions, thel,l the parties may agree to attempt to settle the disagreement in an amicable manner by mediation. Thereafter, any unresolved disagreement arising from or relating to this Facility Lease or a breach of this Facility Lease shall be resolved as provided by law. The provisions of this Section XF. shall not apply to disputes arising from RPT's default in the performance of any obligation to make Operating or Facility Cost payments as provided herein. F. Attorney Fees and Costs. If a party is in default under this Facility Lease, then the defaulting party shall pay to the other party reasonable attorney fees and costs incurred by the other party after default and referral to an attorney; and (ii) incurred by the prevailing party in any litigation (including any attorney fees on appeal). G. Jurisdiction and Venue. It is agreed that this Facility Lease shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. ITC FACILITY LEASE-11 RPT(SMART)/Cily ofMoscow lntennodal Transit Center Facility Lease EXHIBIT ---PAGE BREAK--- H. Interpretation. The law of the State of Idaho shall govern this Facility Lease. The courts in the State of Idaho shall have exclusive jurisdiction. The invalidity of any portion of this Facility Lease shall not affect the validity of any other portion of this Facility Lease. This Facility Lease constitutes the entire, completely integrated agreement regarding the lease of Premises from CITY to RPT and supersedes all prior memoranda, c01Tespondence, conversations and negotiations in regard to such Facility leasing. Whenever the consent of either party is required to an action under this Facility Lease, consent shall not be unreasonably withheld or delayed. XI. GENERAL PROVISIONS. A. Notices. All notices under this Facility Lease shall be in writing and shall be deemed to be delivered on the date of delivery if delivered in person or by fax, or on the date of receipt if delivered by U.S. Mail or express courier. Proof of delivery shall be by affidavit of personal delivery, machine generated confilmation of fax u·ansmission, or return receipt issued by U.S. Postal Service or express courier. Notices shall be addressed to the address set forth below: CITY: City of Moscow P OBox 9203 Moscow, Idaho 83843 RPT: Regional Public Transportation dba SMART PO Box 1102 Lewiston, ID 83501-1102 B. No Brokers. Each party hereto represents and warrants to the other party that the representing party has no arrangement with any realtor, broker or agent in c01µ1ection with the negotiations of this Facility Lease. Each party agrees to defend, indemnify and hold the other party harmless from any cost, expense or liability for any compensation, commission or charges claimed by any realtor, broker or agent arising out of the actions of the indemnifying party with respect to this Facility Lease. C. Non-recording. This Facility Lease shall not be recorded. A Memorandum of Lease executed by both parties hereto may be recorded. D. Time is of the Essence. Time is of the essence with respect to the obligations to be performed under this Facility Lease. ITC FACILITY LEASE- 12 RPT(SMART)/City of Moscow Intermodal Transit Center Facility Lease EXHIBIT"!" ---PAGE BREAK--- E. RPT and CITY understand that the Premises has been funded in whole or in part with funds from the Federal Transit Administration (FTA), U;S. Department of Transportation. As such, the following provisions apply: d'sc imi iation - In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 121 32, and Federal transit law at 49 U.S.C. § 5332, the RPT and CITY agree that they will not discriminate against any person in the United States from participating in, denied the benefits of or otherwise subject that person to discrimination under the use, benefit, pa1ticipation, enjoyment or treatment of the subject Premises, or an employee or applicant for employment, because of race, color, creed, national origin, sex, age, or disability. In addition, the RPT and CITY agree to comply with applicable Federal implementing regulations and other implementing requirements FT A may issue. Equal Employment Opoortuniw - The following equal employment opportunity requirements apply to the underlying contract: Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U .S.C. § 5332, the RPT and CITY agree to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 × Ø. (which implement Executive Order No. 1 1246, "Equal Employment Opportunity," as amended by Executive Order No. 1 13 75, "Amending Executive Order 1 1246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect the lease of the Premises during the course of this Facility Lease. RPT and CITY agree to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recmitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, RPT and CITY agree to comply with any implementing requirements FT A may issue. - In accordance with section 4 of the Age Discrimination in Employment Act of 1 967, as amended, 29 U .S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, RPT and CITY agree to refrain from discrimination against present and prospective employees for reason of ITC I' ACILITY LEASE - 13 RPT(SMAR1)/City of Moscow Intermodal Transit Center l'acillty Lease EXHIBIT ---PAGE BREAK--- age. In addition, RPT and CITY agree to comply with any implementing requirements FTA may issue. Disabilities - In accordance with section 1 02 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 1 21 1 2, RPT and CITY agree that they will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1 630, pertaining to employment of persons with disabilities. In addition, RPT and CITY agree to comply with any implementing requirements FT A may issue. RPT and CITY also agree to include these requirements in each sublease issued on the Premises. F. Non-use of Names and Trademarks. No party to this Facility Lease shall, without express written consent in each case, use any name, trade name, trademark, or other designation of any other party hereto (including contraction, abbreviation, or simulation) in advertising, publicity, promotional, or similar activities or context. XII. SIGNATURES RPT CITY Regional Public Transportation, Inc. dba SMART Transit / •Ji.-.Ȓ / >L Dated: ITC FACILITY LEASE - 14 RPT(SMART)/City o f Moscow lntennodal Transit Center Facility Lease City of Moscow, Idaho &(µ41- Bill Lambert, Mayor EXHIBIT 1i / I . · · · · · · · · · Ȑ l ȑ ;..1nr ---PAGE BREAK--- ACORD8 CERTIFICATE OF LIABILITY I NSURANCE I DA TE (MMIDDIYYYY) · 2 /8/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTI FICATE DOES NOT AFFI RMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF I NSURANCE DOES NOT CONSTITUTE A CONTRACT BElWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL I NSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject lo the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(sl. PRODUCER CBIZ Sattler Insurance Services 1504 8 th St Lewiston ID 83501 INSURED Regional Public Transportation , Inc . , DBA: S . M.A. R. T PO Box 3854 Moscow ID 83843 COVERAGES CERTIFICATE NUM BER:l6 -17 NAME:'C Leslie Vannoy , CIC , W8 o Extl· ( 2 0 8 ) 7 43-9426 CRM DMEss: 1 vannoy@cbiz sat tler . com INSURER(S) AFFORDING COVERAGE INSURERA :Grani te State Insurance INSURER S :National Union Fire Ins . INSURER C : INSURER D : INSURER E : INSURER F : I ro2 Nol: (208) 749_g433 NAIC Co . REVISION NUM BER: THIS IS TO CERTIFY THAT THE POLICIES OF INSU RANCE LISTED BELOW HAVE B EEN ISSUED TO THE INSURED NAMED ABOVE FOR TH E POLICY PER IOD INDICATED. NO'TWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO IM-l lCH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED H ER EIN IS SU BJECT TO ALL THE TERMS, EXCLUSIONS AN D CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID C LAIMS. INSl'l TYPE OF INSURANCE I? POLICY NUMBER r@ar&/, ,ABJ&i'ivWt1 LIMITS LTR x COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1 , 000 , 000 CLAIMS-MADE W OCCUR A PREMis'Es y,,i;;1e1 $ 100 , 000 02-LX-06 6415345-0 l / 30/2016 l / 3 0 / 20 1 7 I- MED EXP (Any one peroon) $ 5 , 00 0 PERSONAL & ADV INJ.JRY I- $ 1 , 0 00 , 000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2 , 0 00, 000 Pl POLICY D 6& D LOC PRODUCTS - COMPIOP AGG $ 2 , 0 00, 000 OTHER· Sexual or Physical Abuse $ 1 , 0 0 0 , 000 AUTOMOBILE LIABILITY lea ecclofll" ""\:iLE LIMIT $ 1 , 00 0 , 000 h B x ANY AUTO BODILY INJURY (Per person) $ I- ALL OVYNED i SCHEDULED AUTOS AUTOS 2g-CA-0401g3ee1-o l/30/2016 1/30/2017 BODIL y INJURY (Per accident) $ I- NON-OVINED 1Pe'l"aC-clden11AMA'-'t: $ HIRED AUTOS AUTOS - Medical $ 5 , 000 UMBRELLA LIAB H OCCUR EACH OCCURRENCE $ 4 000 000 - A x EXCESS LIAB CLAIMS-MADE AGGREGATE $ 4 000 000 OED I I RETENTION $ 02-UD-0166993 1 5 - 0 l/30/2016 1/30/2017 $ WORKERS COMPENSATION I >TUTE I I AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETORIPARTNER/EXEOJTIVE D E L EACH ACCIDENT $ OFFI CERIMEMBER EXCLUDED? N /A (Mandatory In NH) E L DISEASE - EA EMPLOYEE $ grs'2Fftl'[GH =OPERATIONS below E L DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space ls required) CERTIFICATE HOLDER CANCELLATIO N lhopkins@ci . moscow . id . us SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Moscow THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Laurie Hopkins , City Clerk ACCORDANCE WITH TltE POLICY PROVISIONS. PO Box 9203 Moscow , ID 8 3843 AUTHORIZED REPRESENTATIVE J Sattler, CPCU, CIC/ © 1 988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01 ) INS025 (201401 l The ACORD name and logo are registered marks of ACORD