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 -