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HomeMy WebLinkAbout6A1G Pr (2-) a�s�U' IapR�o Department of a ;� e Community Investment I8f5 Memorandum Monday, March 11, 2013 TO: City of South Bend Redevelopment Commission FROM: Debrah Jennings, Community Investment SUBJECT: 225 Main St. and 121 St. Joseph St. In order to incorporate the management of all Redevelopment Commission owned parking facilities, staff has drafted a "Temporary Use and Management Agreement" between the City of South Bend Department of Redevelopment and Downtown South Bend, who is currently managing the parking garages. The agreement's initial term begins April 1, 2013 and terminates on March 31, 2015, with an automatic renewal term of one year on each anniversary date. Because, these lots are "For Sale" this agreement is temporary. Therefore, this agreement may be terminated with thirty (30) days written notice of cancellation to DTSB. Staff recommends approval. 227 W. JEFFERSON BLVD. SOUTH BEND, IN 46601 1 P: 574 - 235 -9371 1 FAX: 574 - 235 -9021 1 SOUTHBENDIN.GOV TEMPORARY USE AND MANAGEMENT AGREEMENT This Agreement (the "Agreement') is entered into on March 14, 2013 by and between the City of South Bend, Department of Redevelopment (the "Owner ") and Downtown South Bend, Inc. ( "DTSB "). 1. LOCATION This Agreement pertains to the use and management of the parking facilities located at 225 Main Street and 121 St. Joseph Street, City of South Bend, and State of Indiana (the "Premises "). 2. TERM The initial term of this Agreement shall be for a period of two (2) years commencing on April 1, 2013 and terminating on March 31, 2015. At the conclusion of the initial tern hereof, this Agreement shall be automatically renewed for a tern of one (1) year and likewise on succeeding anniversary dates unless either party hereto shall provide the other with written notice of its intent not to renew this Agreement a minimum of ninety (90) days prior to any such anniversary date. The parties agree that Owner shall have an absolute right to terminate this Agreement for any reason and without cause or penalty upon thirty (30) days written notice of cancellation to DTSB. 3. USE The Premises shall be used for the parking of licensed motor vehicles and related purposes. 4. MANAGEMENT DTSB shall perform the following services for Owner in compliance with all laws and ordinances applicable thereto : A. Manage and operate parking services at the Premises; B. Furnish personnel for the operation of the Premises; C. Collect parking receipts, if any, and make disbursements as hereinafter provided; D. Account for parking receipts, if any, and disbursements as hereinafter provided; E. DTSB shall be responsible for all operating expenses noted below in item 5. F. Consult with Owner on parking matters related to the Premises. 5. OPERATING EXPENSES Operating expenses shall include but will not be limited to: A. Wages of cashiers , attendants , clerical staff, audit staff, and supervisory employees; B. Payroll related expenses such as payroll taxes, accrued vacation, fringe benefits, social security taxes, recruitment and employment costs, medical insurance(s), pension costs; C. Workers' compensation insurance charged out at a rate developed and modified by DTSB as required by risk and reserve assessments of DTSB; D. Commercial general liability insurance and garage keeper's liability insurance to the extent required of DTSB in this Agreement which shall be charged at the rates developed and modified by DTSB as required by risk and reserve assessments of DTSB; E. Deductible amounts paid in settlement of liability claims in an amount not greater than one thousand dollars ($1,000) per occurrence, payment of claims in excess of policy limits, and any voluntary settlement of patron claims for vehicle damage or loss of contents if directed by Owner; F. Supplies; G. Janitorial, sweeping, and snow plow services, if applicable; H. Uniform and laundry charges; I. Telephone expenses; J. City and police permits, local business license(s), business or parking taxes, and other taxes related to the revenues or expenses at the Premises; K. Supervisory and accounting fees directly attributable to the Premises; L. Payroll processing, data processing, and accounts receivable processing expenses; M. Normal maintenance and repair of the parking facility including but not limited to equipment, signs, revenue and access control equipment, repainting of stalls, and other repairs as directed by Owner; N. Maintenance contracts related to the Premises such as elevators, security systems, and revenue control systems, as directed by Owner; O. Outside services such as legal and audit charges which are directly attributable to the Premises, if approved in advance by Owner; P. Cost of audits specific to the Premises performed on behalf of DTSB. 6. MANAGEMENT FEE 2 DTSB shall be entitled to a management fee as follows: Owner and DTSB acknowledge that DTSB is entitled to a monthly incentive fee equal to one half (50 %) of gross income generated by the operation. 7. ACCOUNTING A. DTSB shall keep complete accounts of parking revenues, receipts, expenses, copies of daily sales reports, deposit slips and reimbursements, and shall furnish Owner on or before the 30th day of each month a statement of such revenues and expenses for the preceding month. B. For services rendered, costs incurred and equipment furnished under this Agreement, DTSB, on or before the 20th day of each month during the term of this Agreement, will bill Owner 50% of gross revenue as compensation for management services rendered for the previous month. 8. RIGHT TO AUDIT DTSB agrees to keep, maintain, and make available, a complete set of books and records of all revenues received by DTSB in connection with the operation of the Premises. During the term of this Agreement, Owner shall have the right to inspect, copy, and audit, during normal business hours, all such records and supporting documentation at Owner's expense. Owner acknowledges that DTSB is required to store and maintain parking tickets used at the Premises for a period of three (3) calendar months. 9. RATES, SCHEDULES, AND STAFFING Parking rates, hours and methods of operation, discounts and allowances shall generally be determined by DTSB. 10. UTILITIES Owner shall provide the Premises with all applicable utility services, and shall pay directly to the utility for all such services. 11. TAXES AND ASSESSMENTS Owner will pay directly to the taxing authorities all taxes and assessments levied upon or assessed with respect to the real and personal property of, within, and adjacent to the Premises, other than business and parking taxes subject to reimbursement as described in paragraph S.J. 12. LIABILITY INSURANCE AND INDEMNIFICATION A. Except with regard to the provision of, or lack of the provision of, security or security services at the Premises, during the term of this Agreement, DTSB shall insure, indemnify and hold Owner harmless against any and all liability and loss whatsoever arising from any damage, injury, claim or demand but only to the extent caused by the negligence, misconduct, or other fault of DTSB, its agents, or employees in connect ion herewith. Accordingly, DTSB shall provide and pay for commercial general liability insurance and Garage Keeper's Legal Liability Insurance to a combined single limit of five million dollars ($5,000,000.00) and statutory coverage for workers' compensation insurance. DTSB shall have the right to be self - insured for such coverage and limits as are permitted or approved by the State of Indiana for DTSB from time to time. The indemnities provided herein shall survive the expiration or termination of this Agreement. DTSB shall provide to Owner a Certificate of Insurance, which shall name Owner as additional insured, but only to the extent same are indemnified by this paragraph 12.A. B. During the term of this Agreement, Owner shall insure, indemnify and hold DTSB harmless against any and all liability and loss whatsoever arising from the provision of, or failure to provide, security or security services at the Premises or the acts, misconduct, errors, omissions, or negligence of Owner, its agents, or employees in the scope and course of the employment pertaining to the Premises or design or structural condition of the Premises or use of tenancy of the Premises prior to commencement of this Agreement. 13. SECURITY DTSB agrees to exercise reasonable efforts to provide for the general security of automobiles in the Premises and shall exercise reasonable efforts to notify Owner of any dangerous situations in the Premises. DTSB shall not have any duty to provide a guard service or other security service in connect ion with the operation of the Premises and Owner agrees to indemnify and hold DTSB harmless for all claims and causes of action arising out of the provision of, or lack of the provision of, a guard service or other security service for the Premises. Owner further agrees to provide liability insurance to cover such claims and causes of action arising out of Owner's provision of, or lack of the provision of, a guard service or other security service for the Premises in the amount of not less than two million dollars ($2,000,000) per occurrence, and shall name DTSB as additional insured on such policies. Owner agrees to deliver to DTSB a certificate of insurance showing that such insurance is in effect. The failure to secure adequate insurance shall not serve to relieve Owner of this requirement. 14. INDEPENDENT CONTRACTOR Owner and DTSB agree that they are not to be deemed as partners or joint venturers, and that the services to be rendered by DTSB are as an independent contractor. All personnel for the operation of the Premises shall be employees of the DTSB and not of Owner. 15. NOTICE Notices, communications and changes of address pursuant to or related to this Agreement shall be deemed given if deposited with the United States Mail, registered or certified, with postage paid, addressed as follows: 4 To Owner: City of South Bend 1400S County -City Building South Bend, Indiana 46601 Attn: Debrah Jennings Facsimile No.: (574) 235 -9021 To DTSB: Downtown South Bend, Inc. South Bend, Indiana 46601 Facsimile No.: Attention: 16. SOLICITATION OF DTSB'S EMPLOYEES Owner agrees that during the term of this Agreement, and within one (1) year after the date of final termination hereof, that it will not hire or solicit for hire, either directly or indirectly, any person employed by DTSB at the Premises. 17. INTERMEDIARIES Owner and DTSB each represent and warrant that they have not obligated the other to compensate any agent, attorney, broker or finder or their intermediary in connection with the negotiation, preparation or execution of this Agreement. 18. DESCRIPTIVE HEADINGS The paragraph headings used herein are descriptive only and for the convenience of identifying the provisions hereof and are not determinative of the meaning or effect of any of the provisions of this Agreement. 19. ATTORNEY'S FEES In the event legal action is brought to enforce this Agreement or any of its provisions, the prevailing party shall be entitled to reasonable attorneys fees and costs. 20. ARBITRATION Any dispute between the parties shall be settled by mediation under the commercial arbitration rules established by the American Arbitration Association in South Bend, Indiana, upon the demand of either party. 21. WAIVER OF SUBROGATION Owner waives both for itself and on behalf of its respective insurers, all claims (and related rights of subrogation) against DTSB, its agents, employees and affiliates, which could be 5 coverable under a standard fire and extended coverage insurance policy. 22. ENTIRE AGREEMENT This Agreement contains the entire Agreement and understanding between Owner and DTSB and may be amended and changed only in writing executed by Owner and DTSB. 23. GOVERNING LAW This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Indiana. 24. SURVIVABILITY All terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by Owner and DTSB and their respective successors in interest. 25. NOT A LEASE Owner and DTSB acknowledge that this Agreement does not constitute a lease of the Premises; DTSB has no responsibility for property taxes or capital equipment and /or capital improvements at the Premises and has no possessory interest in the Premises. IN WITNESS WHEREOF, duly authorized representatives of Owner and DTSB have executed this Agreement. CITY OF SOUTH BEND, DEPARTMENT OF REDEVELOPMENT Printed Name and litle South Bend Redevelopment Commission ATTEST: rime ame an TT f e South Bend Redevelopment Commission DOWNTOWN SOUTH BEND, INC. rinle . ame and Title