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HomeMy WebLinkAbout6.B.(2) Amendment to Parking Garage Management Agreement(~. ~. ~z) PARKING GARAGE MANAGEMENT SERVICES AGREEMENT (Amended 3/20/09) LEIGHTON GARAGE MAIN STREET GARAGE WAYNE STREET GARAGE THIS PARKING GARAGE MANAGEMENT SERVICES AGREEMENT (the or this "Agreement) is entered into on the day of , 2009, by and between THE CITY OF SOUTH BEND REDEVELOPMENT COMMISSION, organized under and operating pw•suant to the laws of the State of Indiana (the "Commission"), and AMPCO SYSTEM PARKING, a California corporation, authorized to do business in the State of Indiana (the "Operator-'). 1) Location: This Agreement pertains to each of the parking garages (collectively, the "Garages") leased and/or operated by the Commission, all in the City of South Bend, Indiana, and located at: 117-131 South Michigan Street (the "Leighton Garage'') 126 North Main Street (the "Main Street Garage'') 121 East Wayne Sheet (the "Wayne Sheet Garage"') 2) Term: The tens of this Agreement shall be three (3) years, commencing on February 1, 2009, and ending on January 31, 2012. In order to permit the Commission to comply with Section 103 and 141 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated pursuant thereto, the parties agree that the Commission shall have an absolute right to terminate this Agreement for any reason and without cause or penalty. However, this Agreement may also be tern~inated by either party, with or without cause, upon thirty (30) days written notice of cancellation. The Operator covenants that it will not take any action or fail to take any action that would result in the loss of the exclusion from gross income for federal tax purposes of interest on bonds issued and outstanding for the parking garages described herein. The Operator further covenants and otherwise agrees to enter into any amendment of this Agreement or otherwise terminate this Agreement in order to prevent the loss of the exclusion fi-om gross income for federal tax purposes of interest on the aforementioned bonds. 3) Use: The Garages shall be used exclusively for the parking of licensed motor vehicles and related purposes. The Operator shall: a) Manage and operate the parking services at the Garages; b) Furnish the personnel for the operation of the Garages, including evening attendants; c) Collect parking receipts and make deposits as hereinafter provided; d) Account for parking receipts and operating expenditures as hereinafter provided; and e) Consult with the Commission on parking matters. 4) Budget: Within fifteen (15) days of the execution of this Agreement, and by June ls' of each contract year, Operator shall prepare and submit to the Commission a proposed Budget for the operation and maintenance of the Garages for the next year. The Commission shall advise the Operator of its approval or disapproval of the proposed Budget as soon as reasonably possible. Thereafter, the Operator shall manage the Garages pursuant to the agreed Budget. 5) Deposit of Revenues: The Operator shall deposit on a daily basis all revenues collected from the operation of the Garages into a bank account designated by the Commission, and shall provide, on a weekly basis, to the Commission an account, acceptable to the Commission, of the daily revenues so deposited. 6) Monthly Accounting/Reimbursement of Operation Expenses: a) The Operator shall keep a complete account of all revenues and expenses arising from the operation of the Garages including parking revenues, receipts, operating expenses, copies of daily sales reports, deposit slips and disbursements, and shall furnish the Commission, on or before the 15`x' day of each month, with a statement of such revenues and expenses for the preceding month, including receipts for expenses incurred. b) Within fourteen (14) days of the receipt of such monthly statement, the Commission shall reimburse Operator the full amount of all expenses incurred by the Operator in the preceding month for the operation of the Garages, including but not limited to expenses incurred for wages, payroll taxes, fringe benefits, workers' compensation, fidelity bonding, elevator maintenance, snow removal, garage utilities, one telephone business line, data processing, supplies, uniforms, tickets, incidental equipment and improvements, and parking equipment maintenance. c) The Commission reserves the right to deduct from such monthly reimbursement any expenses disputed by the Commission in good faith until any such dispute is resolved between the Operator and the Commission. 7) Management Fee: a) For services rendered by the Operator pursuant to this Agreement, the Commission agrees to pay a monthly management fee in accordance with the following schedule: 2 Leighton Garage -Fixed Monthly Base Fee of Two Hundred Fifty Dollars ($250.00) per month plus Incentive Fee of seven percent (7%) of gross monthly revenue in excess of Twenty Eight Thousand Five Hundred Dollars ($28,500.00). Main Street Garage -Fixed Monthly Base Fee of Two Hundred Fifty Dollars ($250.00) per month plus Incentive Fee of seven percent (7%) of gross monthly revenue in excess of Thirteen Thousand Dollars ($13,000.00). Wayne Street Garage -Fixed Monthly Base Fee of Two Hundred Fifty Dollars ($250.00) per month plus Incentive Fee of seven percent (7%) of gross monthly revenue in excess of Thirteen Thousand Dollars ($13,000.00). b) The Incentive Fee shall be calculated at seven percent (7%) of the portion of the total gross monthly revenue from the operation of each of the Garages that exceeds the monthly amounts set forth above. The Monthly Management Fee shall be paid to the Operator in arrears for services rendered the previous month, concurrently with the monthly payment by the Commission for reimbursement of operating expenses. c) The Operator shall provide, as part of its management fee, off-site supervision, overhead allocation, at regional offices, and travel expenses. The Operator shall not be reimbursed by the Commission for these services. 8) Audit: The Operator agrees to keep all records relating to its management and operation of the Garages for not less than three (3) years following the ternlination of this Agreement. The Commission and or the State Board of Accounts may review or audit such records at any reasonable time and place. 9) Parking Operation: Parking rates, hours and methods of operation, fi•ee parking, and any discounts or allowances shall be deternlined and directed in writing by the Commission, or its designee, to the Operator. The Operator will make the Garages available to the Commission for Special Event use. 10) Retail Area: The Garages contain an area designated for retail use, which areas include room for several business establishments. The Operator will have no rights or responsibilities under this Agreement relative to the retail areas. It is the intent of this Agreement that the Commission will contract separately concerning the retail areas. 11) Aesthetic Control: The Commission reserves the right to maintain aesthetic control over the interior and exterior of the Garages. Any signage, changes or improvements affecting such areas must be approved in advance by the Commission or its designee. 3 12) Utilities: The Commission shall provide the Garages with all applicable utility services, and shall reimburse the Operator for any such services, paid directly by the Operator, pursuant to Section 6, above. 13) Taxes and Assessments: The Operator shall not be responsible for the payment of any taxes and assessments levied upon or assessed with respect to the real and personal property contained in or upon the Garages. 14) Liability Insurance and Indemnification: During the teen of this Agreement, the Operator shall insure, indemnify and hold the Commission, the City of South Bend, Indiana, and their agents and employees, harniless against any and all liability and loss whatsoever arising from any damage, injury, claim or demand caused by the acts, misconduct, errors, omissions or negligence of the Operator and its agents or employees during the scope and course of their employment pertaining to the Garages. Accordingly, the Operator shall provide and pay for comprehensive general liability insurance, property damage insurance and garage keeper's legal liability insurance to a combined single limit of One Million Dollars ($1.000.000.00) and statutory coverage foi• works" compensation insurance. The Operator shall have the right to be self-insured for such coverage and limits as are permitted or approved by the State of Indiana for the Operator from time to time. The Commission and the City of South Bend, Indiana, shall be named as additional insured under any and all insurance policies provided for above. 15) Independent Contractor: The Commission and the Operator agree that they are not to be deemed as partners or joint venturers, and that the services to be rendered by the Operator are as an independent contractor. All personnel for the operation of the Garages shall be employees of the Operator and not of the Commission or the City of South Bend. 16) 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: To the Commission: Department of Redevelopment 1200 S. County-City Building South Bend, Indiana 46601 and City Controller City of South Bend, Indiana 1400 County-City Building South Bend, Indiana 46601 4 With a copy to: City Attorney City of South Bend, Indiana 1400 County-City Building South Bend, Indiana 46601 To the Operator: Ampco System Parking 1459 Hamilton Avenue Cleveland, OH 44114 Attention: Regional Manager 17) Intermediaries: The Commission and the Operator each represent and warrant that they have not obligated the other to compensate any agent, attorney or broker to be 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 of any of the provisions of this Agreement. 19) Non-discrimination: The Operator agrees not to discriminate against any employee or applicant for employment to be employed in the performance of this Agreement with respect to his or her hire, tenure, tens, conditions or privileges of employment or any other matter directly or indirectly related to employment, because of his or her race, color, religion, sex, handicap, national origin or ancestry. 20) Entire Agreement: This Agreement contains the entire Agreement and understanding between the Commission and the Operator and may be amended and changed only by a written amendment executed after the date of this Agreement, by the Commission and the Operator, specifically referencing this Agreement. 21) Governing Law: This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Indiana. 22) Survivability: To the extent permitted by law, all ternls and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the Commission and the Operator and each of their respective successors in interest. 23) Not a Lease: The Commission and the Operator acknowledge that this Agreement does not constitute a lease of the Garages. Operator has no responsibility for property taxes or capital equipment and improvements for the Garages and no possessory interest in the Garages. (Signature Page(s) Follow) 5 IN WITNESS WHEREOF, the duly authorized representatives of the Commission and the Operator have executed this Agreement as of the date first written above. COMMISSION: SOUTH BEND REDEVELOPMENT COMMISSION President ATTEST: Secretary OPERATOR: AMPCO SYSTEM PARKING Brian G. Bush, Regional Vice President ATTEST: James K. Alexander, Assistant Secretary and Senior Vice President 6