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HomeMy WebLinkAbout1989-07-24 89-328 ORDERDate July 24, 1989 Item No. ' 89-328 Item/Subject: Execution of Operating Agreement for the Pickering Square Parking Garage Rerpomible Department Purchasing Commentary: On July 13, 1989 the Finance Committee approved a proposal submitted by National Garages, Inc. to operate the Pickering Square Parking Garage for a period of one Year. The City has the right to extend the term for up to five .one-year renewals. wals. A copy of the management contract is on file at the City Clerk's office. Managei rI CCmara ent2:1 I 9. / / -M C-f Clb V , a Cary Mcwger Aupciat>d Information: Budget Approval Fi' D;maer - Legal Approval: 6 _yj1Iw0 0� WIFE ChySawaor In��tr}}��duced Far �PaSmile ❑ First Reading Page _of_ ❑ Referral 89-328 Introduced by Councilor Tilley, July 24, 1909 CITY OF BANGOR (TITLE.) (@rbert AuthQryaing. the ._ City_ Manager_tn execute ..an, Operating Agreement with National Garages, Inc. for the Pickering Square Parking Garage. By tie City Couw.it of No City ofBaioer: ORDERED, THAT the City Manager is hereby authorized to execute an Operating Agreement with National Garages, Inc., a copy of said Agreement is on file with the City Cleru, for the management and operation of the Parking Garage. In City Council July, 24,1989 P/aass/eked City Clerk 89-328 Authorizing the City Manager to i%eaute an operating Agreement with National Garages, Inc. for he Pickering Siva e Parking Garage f- v CITY OF "HOUR PICKERING SQUARE OPERATING AGREEMENT THIS OPERATING AGREEMENT ("Agreement"), dated as of A g et 1, 1990, and effective from the time of execution and delivery hereof, is by and between the CITY OF BANGOR, (the "City"), and Rational Garages, Inc.,aduly organized end existing corporation under the laws of the State of Michigan (the "Company"). RECITALS WHEREAS, the City owns, controls and regulates off-street parking facilities ("parking facilities") owned or to be owned by the City; and WHEREAS, the City owns a parking facility located at Pickering Square, knowna s Pickering Square Parking Garage (the "Parking Facility"); and WHEREAS, the City has selected the Company to operate the Parking Facility for the benefit of the city. ROW THEREFORE, TME CITY OF BANGOR and THE COMPANY, intending t0 be legally bound hereby and in consideration of the mutual covenants hereinafter contained. DO HEREBY AGREE as follows: ARTICLE I DEFINITIONS 1.01 Definitions. Certain termsedefined in the heading and the recitals hereto. In addition to those definitions, as used in this Operating Agreement, unless the context or use clearly indicates another or different meaning or Intent, the following definitions shall apply: "Applicable Law"mans any law, regulation, requirement or order of any federal, state or local agency, courtor Other governmental body, applicable from time to time to the acquisition, design, construction, equipping, financing, ownership or operation of the Parking Facility Or the Performance of any obligations under any agreement entered into in connection herewith. "Code" means the Internal Revenue Code of 1954, asamended, or the Internal Revenue Code of 1906, as amended, and as applicable. "CPI"means the "Consumer Price Index - Seasonally Adjusted U.S. City Average for All Items for All Urban Consumers (1967=100)", published monthly in the "Monthly Labor Review" of the Bureau of Labor statistics ("BLS") of the United states Department of Labor 2"CPI-U"). If the CPI -U is discontinued, the "Consumer Price Index - Seasonally Adjusted U.S. City Average for All Items for Urban Wage Earners and Clerical Workers (1967=100)", published 1 Of 17 y 1, monthly in the "Monthly Labor Review' 9 (CPI -W), shall be used. If the CPI -W is discontinued, comparable statistics On the purchasing power of the consumer dollar published by the BLS shall be used. If the BLS shall no longer maintain statistics an the purchasing power of the consumer dollar, comparable statistics published by a responsible financial periodical or recognised authority selected by the City shall be used. If the base year "(1967=100)" or other base year used in computing the CPIrschanged, the figures used shall be changed accordingly, so that all increases in the CPS are taken into account notwithstanding any such change in a base year. "Fiscal Year" means the 12 -month period commencing on July 1 and ending on June 30 of the calendar year. "Gross Revenues" shall have the meaning set forth in section 7.01. "Insurance Requirements" means the applicable provisions of any casualty or liability insurance policy c ied by the City or the Company covering the Parking Facility; all requirements of the issuer of any such policy; and the applicable regulations and otherrequirements of the National Board of Fire underwriters, any applicable local board of fire underwriters, and any other body exercising a similar function. 1.02. Miscellaneous Definitions. Words of any gender shall be deemed and construed to include correlative words of each other gender. Unless the context shall otherwise indicate, words importing the singular number include the Plural number and vice versa, and words importing persona include any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organisation or government or any agency or political subdivision thereof. ARTICLE II REPRESENTATIONS 2.01. Representations by the City. The City makes the following affirmative representations as the basis for the undertakings on the Company's part herein contained: (a) The City is a political subdivision of the State of Maine and a body politic and corporate, duly organized and validly existing under the constitution and laws of the State of Maine, with full legal right, power and authority to enter into and perform its obligations Under this Agreement. (b) The City has duly authorized the execution and delivery of this Agreement and this Agreement has been duly executed and delivered by the City. 2.02. Representations by the Company The Company makes the fallowing affirmative representations as the basis for the undertakings on the City's part herein contained: 2 of 17 (i) The Company is a corporation duly formed under the laws of the State of Michigan, and is authorized to engage in business in the State of Maine; (if) the Company has the full legal capacity to operate and manage the Parking Facility and has all necessary right and lawful authority to enter into this Agreement for the full tern hereof; and (iii) the Company has been duly authorized by all proper and necessary action of each officer thereof whose action is required, to execute and deliver this Agreement. (b) This Agreement, when executed and delivered an behalf of the Company, will constitute the legal, valid and binding obligation of the Company enforceable in accordance with its terns, except as the same may be limited by applicable bankruptcy, insolvency, organization, moratorium or similar laws affecting creditors' rights, or, to the extent that certain remedies hereunder required or may require enforcement by a court of equity, such principles of equity as the court having jurisdiction may apply. (c) The execution, delivery and Performance by the Company of this Agrement will not violate any provision of Applicable Law, rule or regulation pertaining to the Company's ability to enter into this Agreement, or any judgement, order or decree binding upon it, the violation of which might have a materially adverse affect upon the Company, the Parking Facility or the operation thereof. (d) There are no actions, suits, or proceedings pending against the Company or, to the knowledge of the Company, threatened against the Company before or by any court, governmental body or agency or other tribunal or authority which would, it adversely determined, have a materially adverse effect on the authority o ability of the Company to perform its obligations under this Agreement, or which question the legality, validity or enforceability hereof or thereof. (e) Neither the execution and delivery of this Agreement nor the cogeneration of the transactionsc ontemplated hereby nor the o fulfillment of compliance withterms the and conditions of this Agreement, conflicts with or results in a breach of any of the terms, conditions or provisions of any partnership restriction or any agreement or instrument to which the Company is now a party or by which it is bound, or constitutes a default under the terms of any of the foregoing. ARTICLE III OPERATING RELATIONSHIP 3.01. Appointment of Company as Operation. The City hereby designates and employs the Company as the Operator of the Parking Facility which is described in Exhibit A. 3.02. Term. (a) The initial term of this Agreement shall commence at the sole discretion of the City, no longer than 30 daps upon receipt of the Notice to Commence, (the "Commencement Nate") and shall continue in effect until Jane 30, 1991. 3 of 17 �(b) The City shall have the right to extend the term for up to five one-year renewals, upon the delivery of notice thereof to the Company at least 30 days prior to the expiration of a then current term. (c) The City may terminate this Agreement at any time, with o without9eupon sixty (60) days prior notice. Upon the exercise ebythe City of its right to terminate this Agreement, the Company shall an or prior to the effective date of such termination pay to the City all moneys payable to the City as of said date under the provisions of this Agrement, and, on said termination date, the Company shall transfer possession of the Parking Facility, cash on hand and supplies on had or ordered to the City. Not later than thirty (30) days from such date of termination, the Company shall cause to be made an audit of all books, records and accounts of the Parking Facility to such date of termination and shall cause to be submitted to the City audited statement sand financial reports based upon such audit satisfactory to than and shall pay to the Operating fund describedr n Article VII, the full amount that may be owed by the Company to the City. The City agrees to pay promptly to the Company any amount that may be owed to it by the City. 3.03. Use The Parking Facility is to be operated by the Company as a public parking lot under the terms and conditions of this Agreement. 3.04. Basic Terms. Attached as Exhibit A are certain basic terms of this Agreement. In addition, the Company shall provide a report, at least quarterly, makings endations for the improvement of and the enhancementof Gross Revenues at the Parking Facility. Company is also required to prepare the operating Budget under section 7.04, and to make recommendations to the City, prior to the Commencement Date and regularly thereafter, as to marketing and promotion of the Parking Facility. ARTICLE IV MAINTENANCE OF THE PARKING FACILITY 4.01. Maintenance of the Parking Facility The Company shall maintain the Parking Facility in good condition and repair, subject to ordinary wear and tear and damage by casualty not required to be repaired hereunder, and shall replace all el smarts of the Parking Facility as are necessary to maintain full operating capacity and shall maintain the landscaping at the Parking Facility and abutting public rights -of -wap in an attractive condition. The company shall keep the pedestrian footways and vehicular ramps free of trash, debris, snow and ice. 4.02. Personnel (a) The Company shall hire, and supervise, as its own employees, all the personnel employed in the operation and maintenance of the Parking Facility.lncluding all supervisors, foramen, cashiers, attendants and other employees performing services in and about 4 of 17 the Parking Facility (the "Parking Employees") and the Company Shall, pursuant to this Agreement, determine the number, qualifications and functions of the Parking Employees. The Company shall require that the Parking employees, at all times while on duty at the Parking Facility, shall be attired to present a neat and clean appearance. The Company shall u reasonable care to employ and retain employees who are qualified, competent and trustworthy. If the City notifies the Company in writing that any person employed is, in the City's opinion, incompetent, disorderly, or otherwise unsatisfactory, such person shall he removed and not again employed in the execution of this contract without the written consent of the City Manager. (b) The Company shall provide equal employment opportunity for all individuals without regard to race, creed, color, sex, national origin or political affiliation which it is required to effect i order for the Company to comply with all Federal, state and municipal statutes and ordinances and any regulations thereunder applicable to the Parking Facility. 4.03. Handling of Money The Company shall supervise and control the handling of all money received in the operation of the Parking Facility and shall establish an adequate system of internal controls satisfactory to the City, covering the receipt and expenditure of money in the maintenance and operation of the Parking Facility, and shall prepare all operating and financial reports and statements, including reports and statements that may be necessary or appropriate under other provisions of this Agreement. All bills and invoices shall be paid on a timely basis, consistent with normal business practices. 4.04. Service Contracts The Company may not negotiate or enter into service contracts i connection with the operation of the Parking Facility without the written approval of the City. 4.05. Supplies and Equipment. The Company shall purchase entuch equipment, operating supplies and other materials and supplies as may be reasonable needed for the efficient maintenance and operation of the Parking Facility in a business like mapper. The Company acknowledges and agrees, upon written notice of the City, to make such purchases or rentals from vendors and suppliers as may be approved by the City. 4.06 Inspections. The City, through its officers, employees, consultants and other authorised representatives, shall have free and unobstructed access at all reasonable times and at reasonable intervals to the parking Facility for purposes of reasonable inspection. 4.07 Compliance with Applicable Requirements. The Company shall at all times comply with all Applicable Law and Insurance Requirements. 5 of 17 't LOS. Restrictions on Leases and Contracts. Subject to the Company's right to make available to the general public, on a "first come, first served" basis, daily, weekly or monthly parking privileges or licenses, the Company shall not lease as lesaor or sublease as sublessor any part of the Parking Facility or contract with a third party for the operation of the Parking Facility or any part thereof, without having obtained in each ease the consent in writing of the City. 4.09. No Encumbrance of Parking Facility or Receipts. The Company shall not sell, transfer assign, dispose of, mortgage, grant a security interest in, or encumber in any manner whatsoever, nor allow any lien to remain against the Parking Facility or the Gross Revenue. 4.10. Limitations on Alteration of Parking Facility. (a) No alteration, addition, demolition, removal or improvement to the Parking Facility shall he made until the plans therefor are approved in writing by the City, which approval shall not be unreasonable withheld or delayed. (b) Nothing set forth above shall Preclude the Company from making repairsoalterations of emergency nature, or in order to Protect from or prevent an immediate threat to safety or Property, provided that prompt notice is given to the City of the nature of such repairs and alterations. The Company shall supplement such notice to the extent reasonable requested by the City. 4.11. Surrender in Proper Condition. Upon the occurrence of any Event of Default and the exercise by the City of its remedies hereunder, or upon a termination of this Agreement, the Company, subject to Applicable Law, shall give the City possession of the Parking Facility in proper condition consistent with Section 4.01, leaving in place all supplies on hand or on order, including but not limited to tickets, light bulbs, ballasts, office supplies, spare parts, cleaning materials and equipment, etc. ARTICLE V PERMITTED USES AND RESTRICTIONS 5.01. No Discrimination. Noovant, agreement, lease, conveyance r other instrument shall beeffectedor executed by the Company, any of its successors or assigns, whereby the Parking Facility or o any portion thereof is restricted by the Company, or any successor in interest, upon the basis or race, color, religion, sex or national origin i theuse roccupancy thereof. The Company shall comply with all applicable state and local lava in effect from time to time which prohibit discrimination or segregation by reason of race, color, religion, sex or national origin in the use or occupancy of the Parking Facility. 6 of 17 X9.02. Permitted Uses. The only use permitted of the Parking Facility is the parking and storage of wheeled vehicles and office used for the management of the parking business conducted in the Parking Facility. Notwithstanding any other provisions of this Agreement, the Parking Facility shall be operated and maintained under this Agreement at all times as a public facilitying the general public and shall be available on a regular basisforthe general publics use. ARTICLE VI OPERATING NATTERS 6.01. Compliance with the Code. The Company covenants with the City that: (a) It will refrain from taking or omitting any act on under its control which could adversely affect the tax -exemption of the interest on the revenue obligations under the Code, and (b) It will operate the Parking Facility or cause the same to be operatedaa"Parking Facility" in accordance with Section 303(b)(4) of the Code and the regulations thereunder. The City will regularly advise the Company regarding these requirements. 6.02. Charges. The Company shall offer, make and keep the Parking Pacility available for use by the general public and shall charge and collect the rates, rents, fees and charges for the services rendered by and for the use of the parking spaces of the Parking Facility i conformity and only in accordance with the schedule therefor as prescribed by the City pursuant to this Agreement. ARTICLE VII FINANCIAL NATTERS 7.01. Definitions. The following terms used in this Article shall have the definitions set forth below: (a) "Gross Revenues" shallinclude all revenues received from the parking of vehicles the Parking Facility as well as income from vending machines, pay telephone commissions, and all other income of any kind, with the exception that tips or gratuities for any services rendered shall not be included in Gross Revenues. (b) 'Operating Expenses" shall include all ordinary direct expenses of operating the Parking Facility, including operating expenses defined as either City Expenses or Company Expenses in Article A. 7 of 17 1.02. Creation of Funds and Accounts. (a) The City shall establish the following funds with a bank or trust company for the deposit and use of Gross Revenues as described herein: (i) Operating Fund (ii) working Capital Fund The City shall timely advise the Company of the location and account number forach fund, or of any changes of same. Each fund shall be established in the name of, and for the benefit of the City and all moneys on deposit therein shall be held for the City's account. (b) The City shall establish at a bank or trust, a "Working Capital Account".. which shall ben set of the property of the City, but may be drawn n by theCompany. The City shall advance to the Company, a working capital, the a of 84,516.00 which shall be deposited in the Working Capital Account. 7.03. Use of Funds and Accounts. (a) Moneys shall be deposited into the Operating Fond, and may be withdrawn therefrom by the City in its sole discretion. (b) Moneys in the Operating Fund may be used or transferred upon submission by the Company to the City of monthly requisitions certified by an authorised officer of the Company in order to: (i) replenish the Working Capital Account, to the extent approved by the City; (ii) pay City expenses. .. (c) As needed, requisitions shall be submitted for proposed disbursements for capital repairs and improvements. Such requisitions shall be supported and documented to the reasonable satisfaction of the City. (d) Requisitions for disbursements from the Operating Fund which are consistent with the approved Operating Budget shall be processed in due course. Any Operating Expenses or capital expenses beyond the Operating Budget must be documented and supported to the reasonable satisfaction of the City, prior requisitions and Payments from the Working Capital Account shall be supported and substantiated, if requested by the City. Otherwise, such disbursements shall be subject only to an annual audit. (e) Amounts in the Working Capital Account may be used as needed to pay daily or regular Operating Expenses which are consistent with the Operating Budget and are approved by the City, including such City Expensess the City requires the Company to pay directly. The Company mayrequisition such amounts as are needed and are approved by the City from the Operating Fund in order to maintain the Working Capital Account at the level approved by the City. 8 of 17 f1,04. Operating Budget. (a) At least thirty (30) days prior to the Commencement Date, and, thereafter, not less than one hundred twenty (120) days prior to each applicable Fiscal Year, the Company shall prepare and cause to be delivered to the City for its review and considerations a written Draft Operating Budget in connection with the operation of the Parking Facility, which Draft Operating Budget shall containanestimate for each such Fiscal Year o amonthly basis of Gross Revenues, Operating Expenses (including estimated City Expenses) and capital expenditures. (b) Upon review of the Draft Operating Budget prepared by the Company and such other reviews and considerations as the City determines are reasonable and necessary, the City shall adopt an Operating Budget for the Parking Facility and shall, at least thirty (30) days prior to the start of the Fiscal Year, cause the Operating Budget to be delivered to the Company. le) The Company shall includeits monthly statements delivered pursuant to Section 9.01(c)uacomparison of actual operating figures with budget operation figures as set forth in the Operating Budget. 1.05. Deposit and Withdrawal of Moneys. All Gross Revenues of the Parking Facility will be collected and deposited daily, as much as practicable, in the Operating Fund. The Company shall file with the City a statement of the amount of each such daily deposit. All so= received from any source constituting Groes Revenues of the Parking Facility, including any other some received for the payment of any part of the cost of repairing, maintaining or operating the Parking Facility, shall be similarly deposited in the Operating Fund. 1.06. Working Capital. (a) The City shall provide or cause to be provided such amounts as it deems appropriate to the credit of the Working Capital Account. (b) From time to time money to pay the Operating Expenses or Capital Expenses of the Parking Facility may be transferred to the Working Capital Account in accordance with Section 1.03. 1.01. Payment of Operating Expenses; Renewal and Replacement Fund Expenditures (a) The Operating Expenses shall be paid out of the Operating Fund or the Working Capital Account, in conformity with the Operating Budget. (b) Expenditures of money for capital expenditures shall be made by the Company in conformity with the provisions of the Operating Budget, and only as approved by the City. (c) Operating Expenses incurred and expenditures of money in any Fiscal Year will not exceed the reasonable and necessary amount therefor and will in any event conform to the Operating Budget; FZFZYI provided that in the event of any emergency or other unexpected circumstances requiring immediate and urgent expenditures which are not within the purview of the Operating Budget or are in excess of the amounts therefor set forth in the Operating Budget but are immediately and urgently necessary for the continuance of the operation of the Parking Facility or for the preservation or protection of the Parking Facility or the health and safety of the general Public, the Company may make such im ediate and urgent expenditures notwithstanding that they may exceed the amount therefor or are not included in the Operating Budget. Thereafter, if such expense constitutes a City Expense, the Company shall be reimbursed therefor from Operating Fund. 7.08. Acquisition of Equipment and Supplies. All supplies for the operation of the Parking Facility shall be provided by the Company as a Company Expense. ARTICLE VIII INSURANCE 8.01. Insurance (a) The Company during the term of this Agreement shall take out and carried ied and maintained continuously the i cause to assurance respecting the Parking Facility as set forth on Exhibit A hereto. (b) In connection with any restoration or repair of the Parking Facility, the Company shall require each contractor to agree i writing to carry such workmen's compensation or employers' liabilitys may be required by Applicable Laws and such publicaliabilityand property damage insurance, including provisions (!o the extent available on commercially reasonable terms) to indemnify and save the City and the Company harmless. (C) Each insurance policy required herein (i) shall be by an insurer(s) which is financially responsible, qualified to do business in the State of Maine and of cognized standing, (ii) shall be in such form and with such provisions a are generally considered standard provisions for the type of assurance involved, (iii) shall waive subrogation against the Company, and (iv) shall prohibit cancellation or substantial modification by thesuer(s) without at least thirty (30) days prior written notice to the City. The Company shall furnish the City with copies of each such policy or appropriate certifications as to the insurance policies in force. 8.02. Indemnity. (a) Notwithstanding any policy or policies of insurance required of the Company, the Company shall indemnify and save harmless the City from and against any and all actions, claims or demands, suite at law or in equity or before administrative tribunals, due 10 of 17 to the negligence of the Company, its agents, a ante, business invitees, employees or contractors arising out of the use o occupancy of the Parking Facility by such persona. The Company shall defend any and all such actions, claims, demands or suits on behalf of the City at the Company's sole coat and expense (b) By way of clarification and not in limitation of the provisions of (a) above, the Company shall protect, indemnify and save harmless the City and its officers, employees and agents against and from any and all liabilities, suits, actions, claims, demands, damages, losses, expenses and costs of every kind and nature incurred by, or asserted or imposed against, the City and its officers, employees and agents, or any of than, by reason of accident, injury (including death)odamage to any person o property, however caused, resulting from any negligent act of commission Oomission of the Company, or any of its officers, employees, agents, assignees, contractors or subcontractors, including any negligent we,n-use, possession, occupation, condition, operation, service, n maintenance a management of, o on, in connection with, the Parking Facility, or any part thereof, during the term of this Agreement, and regardless of whether such liabilities, suits, actions, claims, demands, damages, losses, expenses and coats be against or be suffered or sustained by other persons, or legal entities to who the City or any of its respective officers, agents or employees may become liable therefor. The City shall not be liable for any damage o injury occurring during the term of this Agreement to the persona or property of the Companynany of its officers, agents, including operating personnel, contractors and employees, or any other person or entity who or which may be upon the Parking Facility, due to any act or negligence of any person or entity other than the city, its officers, agents, servants and employees. The Company may, and if so requested by the City shall, undertake to defend, at its mole coat and expense, any and all suites, actions or proceedings brought against the City o any of its officers, agents or employees in connection with any of the matters mentioned in this section, provided that the City shall give the Company timely notice of and shall forward to the Company,oinform the Company of, every demand, notice, someone or other process received with respect to any claim or legal proceeding within the purview hereof. (c) Except with regard to matters resulting from the act or omission of the City, the Company confirms that the City, its agents and employees shall not be liable to the Company for (f) any damage to property of the Company either entrusted to persons employed to provide services for or stored in or on the Parking Facility; or (ii) any injury or damageto persona, to property, or to the business of the Company, resulting from any latent or apparent defect or change of condition in the Parking Facility, crime, accident, natural disorder, equipment disorders or malfunctions, water, damage by other persons in the Facility, interference with the light or other Incorporeal hereditaments, operations in the construction of any publicor quasi -public work, or for any other cause not the result of the act or mission of the City. 11 of 17 ,a. 7a) Pursuant to the provisions of the preceding paragraphs of Section 8.02, the Company shall promptly pay any and all costa, expenses and judgements which may be incurred by, or rendered against, the City or any of its officers, employees or agents at any time or times during the term of this Agreement which undersaid Preceding paragraphs the Company is obligated to pay. To the extent that the City shall r e payments for any of such coats, expenses and Judgmenraaneaid by the Company under this Article, the City shall reimburse the Company. ARTICLE IT NOOKS, RECORDS AND STATEMENTS 9.01. Financial Statements of Company (a) The City may, at its own expense, cause the books and accounts for the Parking Facility and its operations to be audited annually. (b) The Company shall provide the City, within fifteen (15) days after the last day of each calendar month, the unaudited operating statement of the income and disbursements from or for the Parking Facility for such preceding month, including complete report (of the kind that is ordinarily or customarily collected and maintained) on parking activities at the Parking Facilities All outatanding and unpaid Operating Expenses must be separately listed and detailed. 9.02. Books and Records; Company to Provide Information. (a) The Company shall keep full and adequate books of account and other records, reasonably satisfactory to the City, reflecting the results of operation of the Parking Facility in aCeordance with generally accounting unting principles. The records maintained by the Company shall include, without limitation, all daily reports, tickets, vouchers, receipts, invoices, bills, agreements, checks, cancelled checks, check stubs and all other books, records, papers and documents relevant to the management and operation of the Parking Facility; and theords so maintained shall be held, and shall not be destroyed or disposed of. (b) Whenever requested by the City, the Company shall provide and ertify,rcause to be provided and certified by an Authorized Officer of the Company at the Company's expense, such information concerning the Parking Facility, the Company, its finances and business affairs as the City reasonably considers necessary to enable it to keep informed of financial and any othermatters pertaining to the Company or the Parking Facility, to enable Counsel to the City to render its opinions and otherwise advise 12 of 17 the City and to enable the City to make any reports required by Applicable Law. The inability of the Company to certify any information required shall not be a default hereunder unless the circumstances giving rise to such inability are a violation of some other provision of this Agreement. (c) The loss of or damage to books and records required to be maintained under this Section 9.02 due to unavoidable casualty shall not be a default or breach hereunder. ARTICLE E REIMBURSEMENT OF AND COMPENSATION FOR THE COMPANY 10.01. Definitions. For the purposes of this Agreement, and in particular this Article E the following definitions shall apply: (a) "City Expenses" shall be all capital expenses as may be necessary in the sole determination of the City; all capital improvements and replacements to the Parking Facility and related equipment; striping and restriping of parking space boundaries; all signs; and only the following operating costs: (i) all license and permit fees (ii) fire and extended caualty insurance (iii) taxes payable to the City (if applicable) (iv) snow removal (v) annual financial audita (vi) emergency expenses incurred under Section e.10(b) (vi) such other expensesaseunforeseen, unexpected or are caused by unusual operations and activities conducted at the Parking Facility, and in any event are approved by the City as satisfying such criteria. (b) "Company Expensed' shall include all operating costs not included as City Expenses, including by way of example only and not as a limitation, maintaining, cleaning, repairing and restocking all revenue control equipment; maintaining all books and records; bookkeeping, legal, accounting and home office expenses; personnel salaries, fringe benefits and employment related taxes; telephone;uniforms; trashr val; utilities; claims and expenses (including deductiblesunder applicable policies); and all premiums for liability, fidelity bonds and other insurance bonds required hereunder. Re -allocation of expense responsibilities between the "City" and the "Company" may be accomplished by an amendment letter signed by both the "City" and the "Company". 10.02. Company'a Pee. (a) For andaconsideration 1C of all the that Shall be performed by the Company pursuant to this Agreement in the operation, repair, maintenance andmnagement of the Parking Facility, including the assumption and payment of all Company Expenses, and as full compensation therefor, the City covenants and agrees to pay the Company in each fiscal year of the City, from the Commencement Date to the end of the term of this Agreement, a fee (herein called the "Company's Fee") equal to $7,890.00 payable in monthly increments of $657.50 each on the 13 of 17 15th day of each calendar month (after the Commencement Date) of the term, subject to proration for the first year and month and in the event of a termination or default. (b) During each renewal year of the term hereof, the company's Fee shall benreased by percentage equal to the percentage r increase in the CPI between the CPI in effect on the first day of the thirdcalendar month prior to the Commencement Date, and the - CPP in effect on the last annual anniversary of such date prior to the expiration of the than current term or renewal term. ARTICLE EI EVENTS OF DEFAULT AND REMEDIES 11.01. Events of Default. The following shall be 'Events of Default" under this Agreement, and the term "Event of Default" shall mean, whenever used in thin Agreement, any one or more of the following events: (a) Failure by the Company to pay to the city when required any payment required to be paid under this Agreement and such default is not rectified within five (5) business days after written notice thereof from the city to the Company: (b) Failure by the Company to perform, observe or comply with any other of the terms, covenants, conditions or provisions contained in this Agreement (other than as referred to in paragraph (a) of this Section), which failure shall continue for a period of fifteen (15) days after written notice thereof shall have been given to the Company by the City; provided, however, that if the Company shall proceed to make any curative action that, if begun and prosecuted with due diligence, cannot reasonably nably be completed within period of fifteen (15) days in the ordinary c of business, then such period shall be increased to such extent as shall besary to enable the company to complete such curative action through the exercise of due diligence; (e) If the Company shall file a voluntary petition seeking an "order for relief' within the meaning of the United States Bankruptcy Code, or if any such "order for relief" shall be entered with aspect to the Company, or if the Company shall be adjudicated a bankrupt or insolvent, or shall file any petition or other pleading seeking any reorganization, composition, readjustment, liquidation or similar relief for itself under any present or future law or regulation, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of the Company, or of substantially all of the assets of the Company, or shall make a general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due; or (d) If a petition or other pleading shall be filed against the company seeking order for relief' within the meaning of the United States Bankruptcy Code, reorganimation, composition, readjustment, liquidation or similar relief under any present or 14 or 17 future lawor regulation, and shall remain undismissed or unstayed for an aggregate period of sixty (60) days (whether or not consecutive). 11.02. Termination. If an Event of Defaultrma the City y terminate this Agreement by written notice thereof to the Company; and in that event this Agreement shall be of no further force and effect, the City shall have no further obligation to the Company hereunder, and the City shall be entitled totmmnediate possession of the Parking Facility, all sumo on deposit in the Working Capital Account and all supplies on hand or on order. 11.03. No Waiver of Rights. No failure or delay by the City in exercising any right, remedy, power or privilege hereunder, nor anFs ingle or partial exercise thereof, not the exercise of any otherright, remedy, power o privilege shall operate as a waiver hereof or thereof. No failure o delay by the City in exercising any right, remedy, power or privilege under or in respect of this Agreement shall affect the rights, remedies, powers or privileges of the City hereunder or shall operate as a waiver thereof. 11.04. Remedies Cumulative. All rights, remedies, powers and privileges herein given o granted to the City are emulative, non-exclusive and in addition to any and all rights, remedies, powers and privileges that the City may have or be given by reason of any law, statute, ordinance or otherwise at law or in equity. ARTICLE XII MISCELLANEOUS 12.01. Third Party Beneficiary. Nothing contained in this Agreement shall be construed to confer upon any other party the rights of a third party beneficiary, except as may be otherwise specifically provided for herein. 12.02. Representations. Any representation, warranty, covenant or agreement made herein shall be deemed to be material and to have been relied upon by the party to whom it is made. 12.03. City's Liability Limited. No recourse shall be had by the Company for any claims based on this Agreement against any officer, employee or agent of the City, all such liability, if any, being expressly waived by the Company by the acceptance of this Agreement. In the axof the rights, remedies, powers and privileges of the City and its officers, employees and agents under this Agreement, the City shall not be accountable to the Company for any action taken or omitted by it or its officers, employees and agents in good faith and believed by it or them to be authorised or within the discretion 15 of 17 or rights or powers conferred. The City and its officers, employees or agents shall be protected inits or their acting upon any paper o document believed by it or them to be genuine, and it or they may conclusively rely upon the advice of counsel and may (but need not) require further evidence of any fact or matter before taking any action. 12.04. Giving of Notice. Except as otherwise provided herein, all notices required to be given or authorised to be given pursuant to this Agreement shall be in writing and shall be delivered or sent by registered or certified mail, postage prepaid, or by commercialmessenger to: In the Case of the City: In the Case of the Company City Manager ATTN: Bradley Peabody, President Bangor City Hall National Garages, Inc. 73 Marlow Street 550 West Fort Street Bangor, Maine 04401 Detroit,Michigan With Copies to: With Copies to: Purchasing Agent Ralph Nichola, Sec/Treas. Bangor City Hall National Garages, Inc. 73 Harlow Street 550 West Port Street Bangor, Maine 04401 Detroit, Michigan The City and the Company, by notice given hereunder, may designate any further or different persons or addresses to which subsequent notices shall be sent. 12.05. Severability. If any clause, provision ors ection of this Agreement be held rinvalid valid by any court, invalidity validity of such clause, provision or section shall not affect sayof the remaining clauses, provisionsr sections hereof, and this Agreement shall be construed and enforcedif such illegal or invalid clause, provision or action had not been contained herein. If any agreement or obligation contained in this Agreement be held to be in violating of law, then such agreement or obligation shall be determined to be the agreement or obligation of the City or the Company, as the case may be, to the full extent permitted by law. 12.06. Maine Law. The laws of the State of Maine shall govern the construction of this Agreement. 12.07. Status of Company. The Company shall perform its duties and obligations hereunder for the City in the capacity of any independent contractor. The performance by the Company of any function, duty or responsibility as an agent of the City shall not in any Fanner affect the statue of the Company as an independent contractor under this Agreement. 12.08. No Partnership. Nothing contained in this Agreement is intended or shall be construed to create a partnership or joint venture between the City, including any c successors assigns of the City, and the Company, including any successors or assigns of the Company. 16 of 17 72.09. Approvals of the City. Any approvals required from the City shall be deemed given if provided by the City Manaqer or his designee. 12.10. Assignment. The City may at its sole discretion, sell, convey, lease, or otherwise transfer the Parking Facility to another public or private entity for the purposes of carrying out the responsibilities of the City under this Agreement. In such event, and upon thirty (30) days Prior written notice to the Company, said entity shall assume all rights and responsibilities of the City under the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, sealed and delivered as of the day and year first written above. (SEAL) Attes/t:e�(-n/ V (SEAL) Attest: ,r .rte Approved as to form and legal sufficiency this _S$N, day of Srp} 1990 RoVert E. Miller� City Solicitor CITY J/J/jj,,OF����BANGOR !! BY: "(d.1CI�CG�ii� Edward A. Barrett City Manager NATIONAL GARAGES, INC. BY: -Z- Bradley eeab dy President 17 of 17 EXHIBIT "A" BASIC MANAGEMENT AGREEMENT TERMS (SECTION 3.04) 1. Operation of the Facility. The Company must operate the Parking Facility in an effective and efficient manner with such resident attendants and other personnelset forth in Schedule 1 attached hereto during the hours r of operation as described in paragraph 9. The Company moat maintain such charges for parking in the Parking Facility as specified from time to time in writing by the City. 2. Other Duties. The Company must perform other reasonable duties andesponsibilitiea connection with the Parking Facility if the City so requests in wri. 3. Records. The Company must keep complete records of all receipts and disbursements pertaining to the operation of the Parking Facility. On or before the 15th day of each month of the term and continuing through and including the 15th day of the month following the termination thereof, the Company will provide to the City a complete accounting of all receipts and disbursement for the preceding month, and upon request of the City, provide a duplicate copy of all deposits to, and checks drawn upon, the Working Capital Account within seven (7) calendar days from the date of such request. 4. Care of the Facility. The Company must keep the Parking Facility at all times in clean, presentable and sanitary condition and may not permit anything thereon which would vitiate any insurance carried by the City on the Parking Facility. 5. Insurance and Bonds. The Company must carry public liability insurance in such minimum amounts a shown below, and to pay all the premiums thereon whendue, and touch insurance policies to name the City as an additional insured sred thereunder. Said insurance policies are to be with companies authorized to do business in the State of Maine acceptable to the City, and all policies shall be approved by the City. (a) With respect to all persona employed by the Company at the Parking Facility a Blanket Position Bond, in the amount of $25,000.00 for each employee with a deductible amount for each employee not in excess of $250.00. (b) Workers Compensation Insurance in statutory limits with respect to all Persona employed at the Parking Facility. (c) Public Liability and Property Damage insurance in n amount and of a type sufficient to protect against any claims, liabilities, losses or suits. Such insurance shall be in amounts not less than: (i) either (A) Bodily Injury: $1,000,000 for each person and $3,000,000 for each occurrence; and Property Damage: $5000,000 for each occurrence; or (B) $3,000,000 combined single on both Bodily Injury and Property Damage; and (ii) excess Liability: $2,000,000 for each occurrence. 1 of 4 (d) Garage Keepers Legal Liabilityinsurance in amount sufficient to protect against any claims liabilities, lossessuits. Such insurance shall cover the following exposuresv (i) Fire and explosion; (ii) Theft of an entire car; and (iii) Riot and civil commotion and malicious mischief and vandalism. The limits of such insurance shall be equal to the limits for the capacity of the Parking Facility with amaximum of $250.00 deductible with respect to riot and civil commotion and malicious mischief and vandalism. (e) Hold-up and Robbery insurance, including without limitation, safe burglary coverage, in the amount of $10,000 for each occurrence which shall include coverage in like amount for inside and outside messengers with a deductible amount not in excess of $100. Premiums with respect to such policies will be paid by the Company and shall constitute Company Expenses. Deductible amounts and any losses in excess of insurance coverage required by sub -paragraphs (a) to (e) above shall constitute Company Expanses. 6. Inspection of Facility and Records. The City shall have the right to enter, inspect and audit the Parking Facility at all times and to inspect and copy at allasnable times, all records and documents pertaining to the Parking Facility maintained by the Company, its agents or contractors. All checks, drafts, deposit slips or duplicates, bank statements, ledgers, invoices or vouchers related to the operation of the Parking Facility shall be maintained by the Company for three (3) years. All check -cut sheets and tickets shall be maintained for a period of three (3) years as well. The agreement to maintain these records shall survive the termination of the Agreement. y. Services. (a) The Company accepts the appointment to manage and maintain the Parking Facility in a first classas self -parking facility, dedicated primarily toeserving the public inzcordance with the terms and conditions in the Agreement. The City shall retain full control of all operating policies of the Parking Facility. The Company agrees to carry out, execute and perform the City's directivese they relate to all matters of policy pertaining tomanagement of the Parking Facility, including but not limited to tariffs, operating procedures, traffic controls, hours of operation, percentage of monthly parkers, terms and conditions of monthly and daily space rentals, location and priority of apace assignments (if applicable), uniforms and approval of personnel engaged in the operation of the Parking Facility, and customer and public relations generally. 2 of 4 (b) Without written consent of the City, the Company will not enter into any lease or make any rental concession any license agreement of any nature concerning the Parking Facility. (c) The Company shall promptly notify the City of any unusual conditions which may develop in the course of the operation of the Parking Facility, such as fire, flood, breakage, theft, casualty or damage of any kind. 8. Staff. The Company will employ at the Parking Facility, on the Company's payroll, honest, competent and courteous personnel adequate for, and capable of thorough operation of the Parking Facilityin ccordance with the terms and conditions hereof. During working hours all personnel except administrative and office personnel employed by the Company of the Parking Facility shall wear neat and clean uniforms. The Company shall furnish satisfactory proof to the city when required by them that the Company has complied with all requirements of any worker's compensation laws. 9. Hours of Operation. The Company will keep the Parking Facility open for business during those days and hours as are set forth o Schedule 1 attached hereto, 52 weeks per year, plus additional hours for"events" scheduled in the downtown arewhich requires the availability of parking at the Parking Facility. Such "events" are not expected to exceed 20 in any calendar year, and are likely to occur primarily on weekends and evenings. Schedule 1 may be changed by the City from time to time upon ten (30) days prior written notice to the Company. 10. Accounts. (a) All amounts received by the Company from the operation of the Parking Facility shall be deposited in the operating Fund. The Company Shall Pay all Company Expenses in connection with the Parking Facility, except for City Expenses, which, if incurred, shall be billed to the City unless the City permits for transfers from the operating Fund to the Working Capital Account. The Company shall keep 8ccordanee with generally cognised accounting in such books of ant ane records as will Properly reflect all income received and disbursements made in connection with the operation and maintenance of the Parking Facility. Such books and records shall be kept at the main office of the company and shall be open for inspection at all reasonable times by the City or the Company or their representatives. Disbursements for all Company Expenses must be supported by vouchers, receipts o other reasonable records. On or before the fifteenth day or each month the Company shall submit to the City a statement of account, duly certified bynofficer of the Company re showing the and expenses for the preceding month, including themanagement fee due to the Company for said period. 3 of 4 ...;„?a! (b) The Company will deposit daily in the Operating Fund, or in the event any day is not a backing day on the next succeeding banking day, all cash received by the Company i the operation of the Parking Facility. At no time shall the cash an hand in the Parking Facility exceed the s of Three Thousand Dollars (83,000.00). The Company shall arrange to make regular and night deposits, subject to counto the credit of such account. 4 of 4 ;wAy SCHEDULE 1 STAFFING & PERSONNEL Code: 1 = Manager 2 = Cashier/Attendant 3 . Janitorial 4 ='Combined Janitor & Security MON TUES WED THURS FRI SAT 7AH - 8AH — 1-Z / 1-2 / 1-2 / 1-2 / 1-2 / 4 SAS —I-2 / 1-2 / 1-2 / 1-2 -2 / 4 9Afl - ioAN 1-2 / 1-2 / —Y 1-2 / 1-2 / 9 ]OAM - 13AX 1-.2 / 1-2 / 1-2 / 1-2 / 1-2 / 4 I]AM - 12PN 1-2 /, 1-2 % 1-2 % 1-2 / 1-2 / 4 12PM - 1PN 1-2 / 1-2 / 1-2 / 1-2 / 1-2 / 4 IPM - 2PN 1-2 / 1-2 / 1-2 / 1-2 / 1-2 / 4 2PM - 3PM 11-2—/ 1-2 / 1-2 / 1-2 / _./ 1-2 / 4 3PM - 4PM 1-2 / 1-2 / 1-2 / 1-2 / 1-2 / 9 4PN - 5Pl1 1-2 / 1-Z / 1-2 / 1-2 / I-2 / 4 / 5PM - 6PM 2 / 2 / '/. % 2 / 2 / 4-- 6PM - 9PM 2 / Z / 2 / 2 / 2 / 4 ?PH - 8PN 4 -/ -4/ -4/- 4 / 4 / 4 ePM - 9PN 4 / 4 / 4 / 4 / 9 / 4 9PN - lOPM 9 / 4 / 4 / 4 / 4 / 9 lOPN - 11PM 4 / 4 / 4 / 4 / 4 / 4 SCHEDULE 2 HOURS OF OPERATION HON TUGS RED TNURS FRI SAT TAM- NAM x / * / x / * / k / BAM - SAN PAN - lOAM lOAH - 11AH 11AH - 12PM I2PM — TPNH%moi IPN - 2PM LPH - 3PM 3PM - 4PH 4PN - 5P11 5PN - 6PH 5PM - ]PM ]PM - BPM W-/ / OPM - 9PH x / z / 9PM - 1NPM IOPH - I1PH 11PM - ]AH HOLIDAYS (CLOSED - In Accordance with City.Observance): New Year's Day Labor Day Memorial Day Thanksgiving Day Independence Day Christmas Day -