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HomeMy WebLinkAboutOperation of Parking Ramp AGREEMENT BETWEEN THE CITY OF COLUMBIA HEIGHTS AND STADIUM VILLAGE PROPERTIES, LLC FOR THE OPERATION OF THE PARKING RAMP TTITS AGREEMENT, made as of the J ::;'I!- day of '*4~ , 2008, between the City of Columbia Heights, a Minnesota municipal corporation (sometimes hcreinafter refcrred to as thc "City"), and Stadium Village Properties, LLC, a Minnesota limited liability company (sometimes hereinaftcr referred to as the "Opcrator"). WITNESSETH THAT, in consideration of the mutual covenants hcrein contained, the parties hereto recite and agree as follows: RECITALS: Pursuant to a certain Management Agreement for Public Facilities and Lease of the Plaza Property by and between the Housing and Redevelopmcnt Authority in and for the City of Columbia Heights (the "Authority") and Terry Evenson, datcd July 20, 1982, as modified by that certain Agreement for Modification of Management Agreement for Parking Facilities dated February II, 1991 between the City and Zaidan Holdings, Inc. (as Terry Evenson's assignce) (hereinafter collectively referred to as the "Management Agreement/Lease"), as the Authority's interest therein has been assigned to the City, the City and Terry Evenson agreed that Terry Evenson, in exchange for the right to use during certain times the 369-stall parking ramp (the "Parking Ramp") owned by the City and located at 950 40th Avenue NE, in Columbia Heights, would be responsible for major repairs, replacements and maintenance, while the City would operate the Parking Ramp and perform routine maintenance thereof, all subject and pursuant to the specific terms and provisions of the Management Agreement/Lcase. Pursuant to the Management Agreement/Lcase, the Redeveloper is obligated to pay the costs incurred by the City (as the assignee of the Authority) for the operation and maintenance of the Parking Ramp. By means of this Agrcement, the City (as the assignee of the Authority) hereby contracts with the Operator for the performance of the City's obligations under the Management Agreement/Lease for the operation and maintenance of the Parking Ramp, as set forth hereinbelow. The holder of Terry Evenson's interest in the Management Agreement/Lease is referred to herein as the "Redeveloper." ARTICLE I. TERM 1.1) Tenn. The term of this Agreement shall commence on thc date of this Agrecment and shall hereafter coincide with the term (and rcnewal options) set forth in Article V of Part II of the Management Agreement/Lease, including thc renewal options sct forth therein. For said purposes, the City and the Operator agree as follows: (i) the "Commencement Datc" of Part II of the Management Agreement/Lcase was August 1, 1982, (ii) the initial twenty (20)-year term of the Management Agreement/Lease ended July 31, 2002, and (iii) Part II of the Management Agreement/Lease is now in the first ten (10)-year renewal option, which will continue until , July 31, 2012, and will then automatically renew through July 31, 2022, unless the Redeveloper delivers notice to the contrary pursuant to Scction 5.02 of Part II of the Management Agreement/Lease. Accordingly, the term of this Agreement shall continue until July 31, 2012, and shall automatically renew for an additional ten (10) years, through July 31, 2022, unless the Operator notifies the City of its intcntion not to renew this Agreement by delivery of written notice to the City at least ninety (90) days prior to July 31, 2012. Notwithstanding the foregoing, if thc Management Agreement/Lcase tcrminates, then this Agrcement shall simultaneously terminate unless otherwisc hereafter agreed by the City and the Operator. ARTICLE II. OPERATION 2.1) Operation in General. The Opcrator agrees to manage and operate the Parking Ramp in a professional, economical and businesslike manner, satisfactory at all times to the City. The Operator agrees to accomplish the following, unless otherwise dirccted by the City: (a) Provide such operational and maintcnance supplies as are reasonably necessary to operate the Parking Ramp. (b) Provide bookkeeping and accounting functions, as necessary. (c) Pay for all utilities, including gas, water and electricity. (d) Maintain all operating equipment. (c) Accomplish routine maintenancc and repair. The Operator shall not engage in any other business on the Parking Ramp premises other than to provide such services as may bc requircd to activate inoperative vehicles as requested by a customer ofthe Parking Ramp. The Operator shall report in writing to the City, within five (5) days after same is reported to the Operator, any damage or injury sustained to persons or propcrty, including the Parking Ramp itself. 2.2) Intentionally left blank 2. 2.3) Rates. Between the hours of 6:00 a.m. and 6:00 p.m. the Operator agrees to chargc and collect rates, if any, for parking motor vehicles, which fi'om time to time shall be established pursuant to the terms of the Management Agreement/Lease. Pursuant to the Management Agreement/Lease, it has been determined that there shall be no charge for parking at present until the Operator is notified otherwise by both the City and the Redeveloper. The Operator agrees that the City and the Redeveloper may change parking rates from time to time and that any new rates established shall become effective on the dates stipulated by the City. The Operator may recommend to the City changes in parking rates. Bicycles shall be allowed to be parked fi'ee in such racks as are provided by the City. 2.4) Maintenance Obligations of Operator. The Operator agrees to notify the City prior to making any repairs which are subject to the competitive bidding requirements of Minnesota Statutes, Section 471.345. Given that contracts for repairs will be entered into by the Operator, rather than the City, the parties do not acknowledge that said competitive bidding requirements will apply. Thc Operator agrees to maintain the Parking Ramp, the equipment provided by the City and all parts thereof, in good condition and repair and in as safe condition as its operation will reasonably permit; making all repairs thereto, which may be reasonably necessary for this purpose, including but not limited to the following: (a) Maintain all pavement markings, bumpcr guards and wheel blocks. (b) Supply electric light bulbs and replace wot'11 out bulbs and fuses. (c) Maintain and care for all plantings. (d) Maintain all parking equipment including all gates, barricades, ticket spitters, etc. ( e) Maintain the premises in a clean, presentable condition and not allow dirt, paper, or trash of any kind to accumulate upon the premises; and remove snow, ice and other obstructions from the property and from driveways and sidewalks on the Parking Ramp premises, all in accordance with reasonable standards. The snow and debris removed shall not be placed upon the public ways or any portion thereof. (f) Make minor necessary repairs to the structure, plumbing, lighting and heating systems. (g) Maintain and keep in good working order all directional and informational signs located within or on the exterior of the Parking Ramp. In the event that the Operator shall fail to comply with any of the aforementioned obligations, the City may, after live (5) days notice to comply, in addition to other remedies set forth herein, enter upon such premises and take all steps necessary to insure compliance with the above obligations; and all work, labor and materials shall be charged to and paid for by the Operator, plus a reasonable amount for the overhead of the City (which amount shall not exceed ten percent (10%) of the amount otherwise to be charged to the Operator). Notwithstanding the foregoing, with respect to any maintenance, repair or other obligations that have not been timely performed by the Operator and which are not an emergency (i.e. the failure to timely perform 3. does not result in the imminent threat of injury to persons or substantial damage to property), then the City shall not enter upon the premiscs or take steps necessary to ensure such compliance unless the failure has not been curcd by the Operator within thirty (30) days after notice from the City or such longcr period as is reasonably necessary to pcrform, providcd that the Operator commences performance within said thirty (30) day period and thereafter diligently continues to prosecute such cure. 2.5) Finance Procedure. (a) If and when there is a determination made pursuant to the Management Agreement/Lease to establish fees for parking, the Operator and the City agree to negotiate in good faith to reach agreement on the procedures for collecting, reporting, allocating and depositing receipts from parking fees. It is agreed that the fees received for parking shall belong to the City; provided, however, the City acknowledges that the Operator will incur additional costs and expenses for on-sitc personnel needed to operate the Parking Ramp if parking fces arc requircd, and that the Operator will also incur additional costs and expenses for administration, accounting and bookkeeping purposes in that event. The parties agrec that the Operator shall be allowed to retain from the parking receipts the amount needed to cover the Operator's additional expenses and overhead incurred as a result of the parking fee structure. (b) The Operator agrees to set up and maintain accurate records, books and accounts in the manner and form approved by the City; and that personnel authorized by the City shall have the right to audit and examine said records, books and accounts at any time upon not less than two (2) business days' notice during thc regular business hours. The accounts shall reflect, but not be limited to, daily volumc of parking and income (if any) and expense accounts; and the Operator shall prepare and submit monthly an annual profit and loss statement, as well as any incidental financial or operating statements, as deemed necessary by the City or as the normal course of operation shall dictate. All financial rccords shall be prepared and made available as provided by City and State laws. In thc event that audits or examinations disclose shortages, or thcfts or any type, the Operator shall reimburse the City for any revenue lost or any customer overcharges, as the City determines. Operator shall prcpare an annual budget and submit same to the City by April!, for the City's next fiscal year commencing January I. Notwithstanding any other terms or provisions of this Agreement, this Section 2.5(b) and Section 2.6 shall not apply if fees have not been established for parking and if the Redeveloper and the Operator are the same person or entity. 2.6) Annual Statement and Account. Subject to Section 2.5(b), above, the City may conduct an annual audit. 2.7) Alterations. The Opcrator shall make no alterations or additions to said premises and appurtenances without the prior consent of the City. It is expressly agreed that all appurtenances, presently or hereafter located in and upon said Parking Ramp, whether atlixed thereto, or not, are and shall be deemed to be part of the Parking Ramp, and, as such, shall remain the property of the City. 4. 2.8) Operating Expenses. All of the Operator's costs and expenses of operation and maintenance of the Parking Ramp, including but not limited to costs and expenses incurred to comply with Sections 2.1, 2.4, 2.5, 3.1, 5.1 and 6.2 of this Agreement, shall be deemed to be "Operating Expenses." It is understood that there shall be no rebate to the Operator or its officers or employees of any portion of any expenditures representing Operating Expenses, by any person, firm or corporation which has provided goods or services to the Operator, unless such rebate is approved in writing by the City or unless the Operator and the Redeveloper are one and the same person or entity. 2.9) City to Contract Limited. No employee or agent of the Operator shall contract with the Operator, directly or indirectly, either as an owner, employee, or agent, to perform or provide services outside of his or her duties or scope of employment, except with the prior written approval of the City. 2.10) Damage by Operator. The Operator shall repair any damage to the Parking Ramp or equipment therein, caused by the negligence of its employees. Such cost of repair shall not be a reimbursable Operating Expense. 2.11) Agreement Not a Tenancy. Nothing in this Agreement shall be construed as creating a tenancy between the City and the Operator; nor shall the Operator be deemed to have the right of occupancy to the premises or any part thereof pursuant to this Agreement. ARTICLE III. PERSONNEL 3.1) Selection. The Operator agrees to secure, furnish, train and pay for all personnel as are reasonably necessary to be employed in the proper operation of the Parking Ramp. Any and all employees of the Operator, or other persons while engaged in the performance of any work or services required by the Operator under this Agreement shall be considered employees ofthe Operator only, and not employees of the City or have any contractual relationship with the City; and any and all claims that mayor might arise under the Workers' Compensation Act of the State of Minnesota, or similar act on behalf of said employees or other persons while so engaged in any work or services provided to be rendered herein, shall be the sole obligation and responsibility of the Operator. 3.2) Non-Discrimination. The provisions o1'al! applicable federal, state and local laws and regulations pertaining to discrimination shall be considered a part of this Agreement as if more fully set forth herein. 3.3) Personnel Regulations. The Operator further agrees: (a) To use good faith efforts to furnish prompt, safe, efficient and courteous service adequate to meet all demands for its service at the Parking Ramp. (b) To furnish said service on a fair, equal, and non-discriminatory basis to all users thereof. 5. ( c) To usc commercially reasonable efforts to manage Parking Ramp attendants (if any) to insure that they shall discharge their duties in a safe, courteous, and efficient manner to maintain a high standard of safcty and service to the public. (d) If parking fees are charged, not to intentionally divert or cause to be diverted any business fj'om the facilities. (e) Unless otherwise expressly authorized by the automobile's owner, neither the Operator nor its employees shall enter or drive any automobile that does not belong to them which has been placed upon the prcmises for the purpose of selt~parking, except in the event of an emergency. ARTICLE IV. REPAIR AND REPLACEMENT OBLIGATIONS OF THE REDEVELOPER 4.1) The Operator shall not be responsible for or pay for the following: (a) Extraordinary repair and maintenance of the Parking Ramp and equipment. (b) Necessary major repairs to the structure, including the foundation, walls, parking decks, roof thereof and also including plumbing, elevators, lighting and heating systems, contained therein. (c) Repairs or restoration needed due to condemnation, or due to fIre or other casualty. (Insurance on the Parking Ramp shall be maintained by the City at its expense.) ARTICLE V. PAYMENTS OF OPERATOR 5.1) Management Fee and Administrative Cost and Expenses. Pursuant to the terms of the Management Agreement/Lease, the Redeveloper has agreed to pay as they become due any and all costs incurred by the City pursuant to this Agreement. Accordingly, the Operator shall look to the Redeveloper for payment of the management fee, administrative costs and expenses and other Operating Expenses, subject, howevcr, to the terms of Section 2.5(a), above. The Operator shall keep records of all such fees, costs and expenses and if the Operator and the Redeveloper are separate entities and are not under common control, then the Operator shall submit reports detailing thc amount and purpose of all such expenditures to the City on each March I, September I and December I during the term of this Agreement. ARTICLE VI. INDEMNITY, BONDS, INSURANCE 6.1) Indemnity. The Operator covenants and agrces to pay, subject to all provisions of this Agreement, all damages for injuries to real or personal property to the extent caused by the 6. negligence or willful misconduct of the Operator or any servant, agent, or employee of the Operator in connection with the operation of the Parking Ramp undcr this Agreement. The Operator covenants and agrees to defend, indemnify, save, and keep the City harmless against all liabilities, losses, costs (including court and stenographic costs and an amount in reimbursement of attorneys' fees), damages, expenses, causes of action, suits, claims, demands and judgments incurred by the City to the extent caused by the negligence or willful misconduct of the Operator or any servant, agent or employees of the Operator in connection with the operation or the Parking Ramp under this Agreement. In the event any claim arises for which indemnification by the Operator is required, the City shall tender the claim to the Operator immediately after the earlier of (i) service of process of any pleading asserting the claim, or (ii) receipt by the City of written notice of a claim. Upon receipt of such tender, the Operator shall pay such claim or the Operator may defend any such claim with counsel of the Operator's choice. The Operator shall have the sole authority to settle any claim in the Operator's sole discretion, provided that any such settlement shall not require the City to assume or admit liability or to pay money (unless such amount is paid by the Operator). The City shall not assume or admit any liability or obligation for any cost, expense, claim, liability or damage that may be deemed to be the obligation of the Operator. Nothing in this Agreement shall be deemed to restrict the Operator fi'om disputing, and if necessary, appealing, any claim for which indemnification by the Operator is required, at the Operator's cost and expense. 6.2) Insurance. The Operator shall procure and maintain continuously in effect, during the term of this Agreement, insurance of the kind and amount sufficient to cover any liability of the Operator under the Workers' Compensation Act of Minnesota. Such insurance required in this section shall be taken out and maintained in responsible insurance companies in the State of Minnesota. Operator shall furnish the City a policy evidencing such insurance or certificates of the respective insurers stating that such insurance is in force and effect. ARTICLE VII. TERMINATION 7.1) Surrender of Premises. Upon termination of this Agreement by lapse of time or otherwise, the Operator shall surrender and turn over possession of the Parking Ramp premises to the City in the same manner and condition as it received the premises, excepting reasonable wear and tear and damage by casualty. 7.2) Effect of Default. It is expressly agreed between the parties hereto that in the event the Parking Ramp is deserted, vacated, or abandoned, or if the Operator shall sell, assign, or pledge this Agreement (except as permitted hereby); or if default be made in the performance of any of the covenants and agreements to be performed by the Operator; or if the Operator shall fail to comply with any of the statutes, ordinances, rules, orders, regulations or requirements of the fecleral, state, or city government; or if the Operator shall file a petition in bankruptcy; or make an assignment for the benefit of creditors or take advantage of any insolvency act, the City may elect to terminate this Agreement and the term hereof; and in the event the City elects to terminate this Agreement because of a violation of this section, upon such termination, the Operator shall compensate the City for the loss in revenue, if any, suffered by reason of such termination. Any other terms or provisions in this Agreement to the contrary notwithstanding, 7. the City shall not exercise any rights or remedies in connection with any breach or default by the Operator hereunder until after the City has delivered to the Operator written notice of such breach or default and the same remains uncured for thirty (30) days thereafter, or beyond such longer period as is reasonably necessary to cure the default, provided that the Operator commences cure within said thirty (30) days and thereafter diligently prosecutes cure. 7.3) Optional Termination. The Opcrator may terminate this Agreement, without cause, upon thirty (30) days' prior written notice to the City. ARTICLE VIII. MISCELLANEOUS 8.1) Rights Cumulative. The rights and remedies hereby created are cumulative, and the use of one remedy shall not be taken to exclude or waive the right to use of another. 8.2) Notice. In any case where it is desirable for the City to serve upon the Operator any notice or demand, it shall be sufficient to send a written notice or demand, by certified mail, postage prepaid, addressed to: Stadium Village Properties, LLC c/o University Technology Centers, Inc. 1313 Fifth Street SE, Suite 100 Minneapolis, Minnesota 55414 Attn: Doug Walker In any case where it is desirable for the Operator to give or serve upon the City any notice or demand, it shall be sufficient to send a written notice or demand, by certified mail, postage prepaid addressed to: City of Columbia Heights 590 40th Avenue NE Columbia Heights, Mitmesota 55421 8.3) Compliance with Laws and Ordinances. The Operator agrees to operate said Parking Ramp in compliance with this Agreement and all laws and ordinances in effect or which may hereafter be adopted by and for the City of Columbia Heights, provided that laws and ordinances hereafter adopted are not inconsistent with the terms and provisions of this Agreement. 8.4) Rules and Regulations. The Operator agrees to abide by rules and regulations relating to the use of the Parking Ramp as are promulgated by the Redeveloper, pursuant to the Management Agreement/Lease, which rules and regulations may from time to time be changed. 8.5) Assignability bv Operator. The rights, obligations and duties under this Agreement of the Operator shall not be assigned or transferred in whole or in part without the prior written permission of the City, except that the rights, obligations and duties under this 8. Agreement of the Operator may be assigncd from time to time to the holder of the interest of Redeveloper under the Management Agreemcnt/Leasc (as said interest may be assigned from time to time), without the pcrmission ofthe City. 8.6) Assignability bv City. The rights, obligations and duties of the City under this Agreement at the City's option may be assigned or transferred in whole or in part by the City of Columbia Heights without the consent ofthe Opcrator. 8.7) Damagc or Destruction. If during the term of this Agreement, all or any part of the Parking Ramp shall be destroyed or damaged from any cause, then the obligations of the Operator shall bc suspendcd with rcspect to the unusable portiones) of the Parking Ramp until the samc have becn repaired and restored (which repair and restoration is not the obligation of the Operator). 8.8) Operation and Maintenancc After Termination. The Operator agrees that the City, at its option, may upon thc termination of this Agreemcnt extcnd this Agreement with the Operator on an negotiated basis, may solicit bids or negotiate with others for such services, or may operate the Parking Ramp with City personncl. The Operator agrces that by entering into this Agreemcnt it obtains no additional rights or privileges in the future regarding the operation of the Parking Ramp and agrees that the City has not waived or abrogated any power or discretion it has regarding the operation of the Parking Ramp upon termination of this Agreement. 8.9) Reasonableness Standard. Operator's performance obligations under this Agreement shall be bas cd upon a commercially reasonableness standard under the applicable circumstances. In addition, at any time that the Opcrator or the City is entitled to exercise discretion or judgment, such as in connection with any conscnt or approval, a reasonableness standard shall be decmed to apply, and neither party shall unreasonably withhold, condition or delay its consent or approval, nor exercise discretion in an arbitrary or unreasonable maimer. 8.10) Entire Agrcement. This Agreement is the entire agreement betwcen the City and the Operator regarding the subject matter hereof. This Agrcement shall not be modified or amended except in writing, signed by the City and the Operator. The City represents that the Agreement Between the City of Columbia Heights and Zaidan Holdings Inc. for the Opcration of the Parking Ramp dated June 30, 1988 expired and is of no force or effect. 9. IN WITNESS WHEREOF, the City and the Operator have caused this Agreement to be executed in their respective corporate names, as of the date first written above. .' CTTY~F. cor r:2DlA:' ~s "~ By: lts:~e~Lst STADIUM VILLAGE PROPERTIES, LLC By: STATE OF MINNESOTA) ) ss. COUNTY OF ANOKA ) The foregoing instrument was acknowledged before me this .)S#- day of I\-\..)~, 2008, by c,o.."'1 l. re.-~s csn and (.J.\c..\~ . >;;::Q.n.~+ , the Mayor and City Managcr of the City of Columbia Heights, a Minnesota municipal corporation. CIElM.A. _ N01AIl'iPll8tlC.M1_ MVCOMMISSION EXPlREII-1/31/2011 ~/ /!..~ Notarypublic STATE OF MINNESOTA) ) ss. COUNTY Of HENNEPIN) \ The foregoing instrument was acknowledged before mc this , 2008, by P,41/1 /.) JIi-$/)E72-. , the C/lcli" lUll illag.e Prope,i'tJ s, LLC, a Minnesota limited liability. day of A./Il-KR. 0 f 1177963.3 ANGENOLA WILLIAMS NOTARY PUBliC. MINNESO-m My CommissIon ExpIres Jan. 31.! 10.