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HomeMy WebLinkAboutRepublic Parking-5/18/2015MANAGEMENT AGREEMENT THIS AGREEMENT, to be effective as of July 20th , 2015, between the City of Waterloo, Iowa, hereinafter called "Owner" and Republic Parking System, Inc., a Tennessee Corporation, with principal offices at Suite 2000 Republic Centre, Chattanooga, Tennessee 37450 hereinafter called "Manager". RECITALS WHEREAS, The City of Waterloo owns garages and surface lots. WHEREAS, The City of Waterloo and Republic Parking System, Inc. desire to enter into a written arrangement under which Republic Parking System, Inc. will provide the City of Waterloo with certain garage and surface lot services, as identified in Exhibit A, attached hereto and incorporated by reference herein, in accordance with the terms of this Agreement. NOW THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: - AGREEMENT: 1. During the Term (as defined below), Manager hereby contracts with Owner under the terms, conditions, and provisions hereinafter set out for Manager to provide the Services listed in Exhibit A at the prices set forth in Exhibit A, which will hereinafter be referred to as the "Parking Facilities". 2. The term of this Agreement shall commence on July 201h, 2015 and shall continue until and including July 20th, 2020. At the expiration of this term it shall automatically renew and continue on a year-to-year basis from said date. 3. The Parking Facilities are to be operated by Manager as commercial parking facilities, and shall be used for no other purpose without prior written approval of Owner. 4. Manager agrees to set aside the necessary parking space to protect any commitments made to the tenants of, or in connection with, the operation of the Parking Facilities, and Manager agrees to honor any allocations of parking space that Owner deems necessary. Manager agrees to operate the Parking Facilities in a manner consistent with satisfying, as efficiently as possible, the parking demands generated by the City of Waterloo, Iowa. 1 5. This Agreement shall not be assigned nor subcontracted by Manager in whole or in part without the written consent of the Owner, such consent not to be unreasonably withheld. 6. Payment: (a) Owner will pay Manager for services performed in accordance with Exhibit A pursuant to the procedures set forth herein. (b) Owner will pay Manager for all reimbursable "Operating Expenses" incurred by Manager or Manager's employees, agents, subcontractors or other personnel. These expenses shall include all ordinary direct expenses of Manager incurred while operating the Parking Facilities other than those of a capital cost nature as set forth below: (1) Wages of all personnel assigned to the Parking Facilities, including reasonable fringe benefits such as workers' compensation insurance at the mandatory rate for parking attendants, unemployment insurance, social security, hospital and sickness insurance and pension costs; a) Manager on a bi-monthly basis, will submit payroll information, including payroll, payroll taxes, workers compensation insurance, and medical insurance to the Owner on the 5th and 20th of each month. Owner agrees to reimburse said cost within 10 days of receipt, but generally agreed the dates of reimbursement will be due on the 15th, and 30th of each month. (2) Business taxes, other than franchise taxes on income or profits; (3) Licenses and permits necessary to operate the Parking Facilities; (4) Employee recruitment ads and hiring costs for employees assigned to the Parking Facilities; (5) Insurance to the extent required of Manager in this Agreement; (6) Sundry items such as uniforms, tickets and janitorial supplies for employees assigned to the Parking Facilities; (7) Except as set forth on Schedule A, reasonable data processing expense related solely to processing financial revenue expense data for the Parking Facilities; 2 (8) Normal maintenance and repairs to the Parking Facilities including snow removal, repainting of stall markings, replacement or repair of signs and revenue control equipment; (9) Legal or audit charges directly attributable to the operation of the Parking Facilities other than those performed by the staff of Owner or Manager except to the extent covered in (11) below, if approved in advance by the Owner; (10) Payment of the "deductible" amount of insurance claims in excess of policy limit of the policies provided by Manager as set forth in Section 14 of this agreement; (11) Salaries, wages, reasonable travel costs and accommodations of temporary on-call, personnel used to staff events, conduct maintenance operations, training or other services from Republic Parking System locations. In the event the cost is to exceed $1000.00, manager will receive approval from owner. (12) Management fee; (c) Certain costs are specifically excluded from the definition of Operating Expenses for the purpose of this Agreement and shall be borne by the respective parties. The expenses of the Manager are those set forth in Schedule "A" attached hereto and made a part hereof. The expenses of the Owner are those shown in Schedule "B" attached hereto and made a part thereof. (d) For each month commencing with the date of this contract, a minimum monthly fee of three thousand three hundred thirty three dollars and thirty-three cents ($3,333.33). (e) For the purchase of any goods or services expected to be in excess of $1,000, Manager agrees to seeks out owners approval prior to purchase. (f) Owner agrees to remit to Manager on a monthly basis the Operating Expenses associated with managing the Parking Facilities within ten days after receipt of Manager's report. In the event Owner fails to reimburse Manager within said ten (10) day period, and the Owner does not remedy such failure within five (5) days of receipt of written notice from Manager, then Manager shall have the right to terminate this Agreement with immediate effect and to take whatever action necessary to collect amount due Manager. 3 7. Manager covenants that it will collect or cause to be collected all of the gross receipts from the operation and use of the Parking Facilities. All receipts shall be deposited by Manager in a bank account designated by the Owner. The Owner will provide the Manager with deposit slips and reorder forms. The Manager will be responsible for making deposits in a timely manner to ensure there is not any loss of funds due to theft. 8. Manager agrees to operate the Parking Facilities in an efficient manner and to operate same on all days and at all hours customary in the trade commensurate with parking demand in the area, and such operation shall be continuous, as herein provided, unless the Owner shall otherwise agree in writing. 9. Manager agrees that it will keep complete and accurate records of all receipts and disbursements pertaining to the operation of the Parking Facilities, and on or before the twentieth (20th) day of each month (beginning with second month of term of this Agreement and continuing through and including the twentieth (20th) day of the month following the termination thereof) shall, at the time of the payment to Owner, render to the Owner a complete and accurate accounting of all receipts and disbursements for the preceding month. All of Manager's books and records relating to the Parking Facilities shall be kept at the local office of Manager, and shall be available for inspection, audit and copying at all reasonable times by Owner or its duly authorized representatives. Vouchers, receipts or other records shall support disbursements for Operating Expenses. 10. As used herein, "Confidential Information" means any and all technical data or information, financial or business data or information (including, without limitation, revenues, expenses, taxes, and contracts), work product, partner relationships, patents, trade secrets, technical process, formulae related to products and services, pricing and any device, technique or compilation of information used in Owner's business obtained by Manager while Manager is performing its obligations under this Agreement, regardless of whether any such data or information is marked or identified as "Confidential". 4 Manager will: (1) treat as confidential, and preserve the confidentiality of, all Confidential Information; (2) use the Confidential Information solely for the purposes of this Agreement; (3) not copy such Confidential Information unless specifically authorized by Owner in writing to do so; and (4) limit dissemination of the Confidential Information to those Manager agents to whom disclosure is necessary for the purposes of this Agreement, provided such Manager agents have agreed to maintain the confidentiality thereof in a written agreement no less restrictive than this Agreement. Nothing in this Agreement may be construed as granting any right or license under any copyrights, inventions or patents now or hereafter owned or controlled by Owner. The obligations of this provision will continue for a period of three (3) years from the date of termination or expiration of this Agreement. 11. In performing its responsibilities pursuant to this Agreement, it is understood and agreed that Manager is at all times acting as an independent contractor and that Manager is not a partner, joint -venture, or employee of Owner. It is expressly agreed that Manager will not for any purpose be deemed to be an agent, ostensible or apparent agent, or servant of Owner, and Manager agrees to take any and all such action as may be reasonably requested by Owner to inform the public, patrons of the Parking Facilities, and others utilizing the services of Manager of such fact. Manager acknowledges and agrees that neither it nor its employees or agents have any right, power or authority to incur, and will not incur, any financial obligation, legal obligation or liability, or other obligation on behalf of or binding upon Owner. Nothing herein shall vitiate that right of Manager to receive reimbursement from Owner for the Operating Expenses set forth in Section 6(b) of this Agreement, but Owner shall have no obligation to any third party, directly or otherwise, to pay for Operating Expenses. 12. Owner agrees to maintain the sidewalks and curb cuts adjacent to the Parking Facilities in accordance with applicable municipal statutes. Owner shall also be responsible for all repairs of a structural nature to the Parking Facilities, including, but not limited to: electrical, plumbing, pavement repair, painting, repairs to the Parking Facilities and maintenance of general signs utilized to regulate traffic flow, speed, direction, pedestrians crossing cautionary or other general signage used to notify customers regarding the operation of parking and parking related equipment functionality, . Manager agrees to use reasonable diligence in the care and protection of the Parking Facilities during the term of this Agreement and to surrender said premises at the termination of this Agreement in as good condition as received, ordinary wear and tear and other casualty excepted. 5 Any structural, mechanical, electrical or other installations or any alterations to the Parking Facilities required by statutes or regulations pertaining to air quality, environmental protection, provisions for persons with disabilities or other similar governmental requirements shall be the sole responsibility of Owner. 13. In the event Manager shall fail to fully and faithfully deposit all the receipts from the operation of the Parking Facilities, or shall intentionally fail to disburse same only in the manner provided for herein or otherwise violate the terms of this Agreement, or in the event Manager shall become bankrupt or insolvent, or suffer the appointment of a receiver, or make an assignment for creditors, Owner shall have the right to forthwith terminate this Agreement immediately, regain immediate possession of the Parking Facilities, and hold Manager liable for any damages resulting to Owner. 14. Manager agrees to help keep the Parking Facilities at all times in clean, presentable and sanitary condition and not to permit anything thereon which would vitiate any insurance carried by the Owner on the Parking Facilities or the adjoining premises. Manager further agrees to comply with all governmental laws, ordinances and regulations pertaining to the conduct of Manager's business thereon. 15. Manager agrees to carry liability insurance in such amounts as shown below, to pay all the premiums thereon when due and to cause such insurance to name the Owner as additional insured thereunder: Commercial General Liability $1,000,000 combined single limit each occurrence for bodily injury and and property damage. Workers' Compensation Policy Limits: Coverage A - Statutory Coverage B - $ 100,000 Owner acknowledges that all insurance coverage except Workers Compensation is subject to a deductible amount not to exceed $10,000.00 and that the payment of the deductible amount(s) will be considered as a direct operating expense of the Parking Facilities. Any losses not covered by the above insurance shall constitute expenses of Owner provided that such loss did not arise in whole or in part by the negligence or willful misconduct of Manager, its agents or employees. Certificates evidencing all insurance coverage listed above shall be furnished by Manager to Owner and such certificates shall contain an endorsement requiring the insurance carrier to provide at least thirty (30) days' written notice in the event of 6 cancellation or material change. Premiums with respect to such policies required to be carried by Manager shall be paid by Manager and shall constitute Operating Expenses. Such policies shall be subject to the approval of Owner for adequacy and form and protection. Owner shall be responsible for maintaining all risk property insurance for the Parking Facilities and equipment contained therein naming both Owner and Manager as insured. In the event of work performed by third parties within the Parking Facilities, either on behalf of Owner or Manager, such third parties will provide insurance coverage in the forms and amounts shown above naming both Owner and Manager as additional insureds. 16. Manager shall defend, indemnify and hold Owner harmless from and against any and all actions, costs, claims, losses, expenses and/or damages, sustained by Owner attributable to the negligence or willful misconduct of Manager or any of its agents, servants, or employees from any cause, including, without limitation by specification, property damage and/or injury or death to any person or persons. To the extent permitted by applicable law, Owner shall defend, indemnify and hold Manager harmless from and against any and all actions, costs, claims, losses, expenses and/or damages sustained by Manager attributable to the recklessness, carelessness or negligence of Owner or any of its servants or employees from any cause, including without limitation by specification, property damage and/or injury or death to any person or persons. It is agreed that any actions, costs, claims, losses, expenses, and/or damages resulting from design or structural faults or defects shall not be the responsibility of Manager. 17. Owner expressly acknowledges that Manager's obligations in connection with the management, operation and promotion of the Parking Facilities and employment of persons in connection therewith, do not include the retention of service, supervision, or furnishing of personnel in connection with the personal safety and security of employees, tenants, customers, or other persons within and about the Parking Facilities. Manager does not have knowledge or expertise as a guard or security service and does not employ personnel for that purpose, nor do Manager's employees undertake the obligation to guard or protect customers against the intentional acts of third parties. Owner shall determine, at its discretion, whether and to what extent any precautionary warnings, security devices, or security services may be required to protect patrons in and about the Parking Facilities. 18. The Owner of the Parking Facilities does hereby waive all rights of recovery, if any, against Manager for damage to, or destruction of, the Parking Facilities in the event 7 such damage or destruction is caused by fire or other casualty which is covered by Owner's fire and extended coverage insurance policy so long as such waiver does not vitiate coverage by such policy. 19. Either party shall have the right to terminate this Agreement in the event the other party has failed to perform any of the terms and conditions specified herein, if said failure has been called to the attention of the responsible party in writing via certified mail and that party has not corrected said failure within 30 days of receipt of written notice. In the event of such termination, Manager agrees to vacate the Parking Facilities by midnight on the thirtieth day after delivery of said notice and any monies owed Manager for unamortized capital expenses or shuttle lease term requirements shall be paid by Owner to Manager. Notwithstanding the above, Owner may immediately suspend this Agreement if Owner reasonably determines that Manager's services pose a threat to the safety of patrons or any individual using the Manager's services. If less than all services covered by this Agreement threaten individual safety, Owner at its sole discretion may suspend or terminate those services only or suspend or terminate the Agreement in its entirety. 20. Owner shall have the right to enter and inspect the Parking Facilities at all times. 21. Manager shall manage, operate, and promote the use of the Parking Facilities in accordance with all laws and governmental regulations. 22. It is understood and agreed that this Agreement shall be binding upon and inure to the benefits of the heirs, personal representatives, successors and assigns of the parties. The previous sentence notwithstanding, no assignment of or subcontracting under this Agreement or the rights and obligations of Manager shall be valid without the prior written consent of Owner, and any attempt to assign or subcontract without such prior written consent shall be void. 23. Owner and Manager agree that during the term of this Agreement all personnel employed by Manager to operate the Parking Facilities shall be solely the employees of Manager and shall have no contractual relationship with Owner. Manager shall be responsible for payment of income taxes, unemployment taxes and payroll taxes, if any, for all such employees. Manager shall have full responsibility for hiring, firing and managing its employees and or agents. However, should Owner request the removal of any employee for any reason, including, without limitation, tardiness or unapproved absences, discourteousness to patrons, failure to perform his or her duties in a reasonable fashion, or any other such reason, Manager shall remove such employee as soon as possible, but in any event no more than two (2) working days of Owner's 8 request, and replace such employee with another employee. Notwithstanding all provisions of this Agreement, it is mutually understood between the parties hereto that this Agreement shall not in any way be construed to be a lease, but is merely a recitation of contract provisions. 24. If any section of this Agreement is found unlawful or illegal or becomes so, the remainder of the contracted terms shall remain in full force and effect. 25. The terms of this Agreement shall be modified only by a written addendum signed by both Owner and Manager. 26. If it shall become impossible on account of Force Majeure for Manager or Owner to fulfill its obligations under the Agreement, such party shall be excused from the performance of said obligation for the period that said performance is impossible. However, either party shall have the right to terminate this Agreement immediately upon the occurrence of a Force Majeure which prevents the other party from performing for three (3) or more consecutive days. The term "Force Majeure" as used in this paragraph shall include: 1) fire, earthquake, flood, tornado, acts of God, strike or other labor disturbance beyond the reasonable control of Manager, riot or civil commotion, failure of power, restrictive government laws or regulation, court order, insurrections, war or any other matter or situation of a like nature (including hostility, with or without formal declaration of war. 2) Any law, regulation or order of any government authority prohibiting the performance of the obligations set forth in this Agreement. 27. Owner has the right to shut down any or ail of the Parking Facilities for repair at their sole discretion. In this case all fees and contractual obligations remain fully intact. 28. Manager affirms that it is an equal opportunity employer and will comply with all laws, regulations and ordinances prohibiting employment discrimination in the performance of this Agreement. 29. Notice to both Owner and Manager shall be sent by overnight courier service; signature required for delivery, or certified mail, return receipt requested, to the following addresses: If to Owner: With Copy To: 9 If to Manager: With Copy To: Brian Kern Vice President Republic Parking System, Inc. Dana Klein District Manager Republic Parking System, Inc. Denver, Colorado 80203 Denver, CO 80203 29. This Agreement shall be construed and governed according to the laws of the State of Iowa, without giving effect to its conflict of laws provision. Any suit, action, or proceeding with respect to this Agreement, or any judgment entered by any court in respect thereof shall be brought in the Courts of the -State of Iowa, County of Black Hawk or in the United States courts located in the state of Iowa and the parties hereby submit to the non-exclusive jurisdiction of such courts for the purpose of any such suit, action, or proceeding. IN WITNESS WHEREOF, Owner has caused this instrument to be executed in its corporate name by its duly authorized officer and Manager has hereunto set his hand the day and date first above written. ATTEST: CITY OF WATERLOO, IOWA District Manager 10 i°0 REPUBLIC PARKING SYSTEM, INC. BY: 2,u -cot Brian D. Kern Vice President SCHEDULE"A" EXPENSES OF MANAGER Salaries, travel and accommodation expenses of all Headquarters executive personnel of Manager. General and administrative expenses of Manager not allocable directly to operations at the Parking Facilities. 3. Personal property taxes on Manager's property. 11 SCHEDULE"B" EXPENSES OF OWNER 1. Real and personal property taxes of Owner's property. All claims, expenses and/or damages arising from, or caused by structural or design deficiencies or by improper work or supervision during construction including, without limitation, settlement, collapse or inadequacy of structure or equipment, and all repairs related thereto. 3. Debt service with respect to land, building and equipment. 4. Costs of legal and auditing fees of Owner. 5. Salaries and wages of all employees of Owner. 6. Costs incurred by Owner in the supervision of obligations of Manager. 7. Costs of maintaining elevators, sprinkler and ventilation systems. 8. Utilities expense of the Parking Facilities. Capital expenditures, improvements, alterations, additions and all new equipment, including all architectural and engineering fees in connection therewith. 10. Cost of payroll and equipment of RPS personnel 11. Cost of premiums for fire and extended coverage insurance. 12