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90-331 � � � Sv�35T1��1`c � R I G I N A L � Council File # b"� � 3 � . Green Sheet ,� . RESOLUTION C1TY OF SAINT PAUL, MIN OTA Presented By �.�v Referred To ' Committee: Date WHEREAS, on ecember 7, 1988 the City of Saint Paul "City" entered into an agreement wi h Our Fair Carousel Incorporated "OFC" to guarantee up to $1 ,300,000 i loans to OFC to purchase the State Fair Carousel , and WHEREAS, on ecember 28, 1989 the City extended the loan and guarantee until Februa y 28, 1990, and WHEREAS, on ecember 28, 1989, the Housing and Redevelopment Authority of the City of aint Paul °HRA" adopted HRA Resolution 89-12/28-1 authorizing staff to ent r into negotiations on funding and operating agreements with Minnesota La dmarks, Our Fair Carousel Incorporated "OFC", and BCE Development o assure that the Carousel is adequately funded, managed and maintained i Town Square Park, and WHEREAS, suc agreement negotiations have succeeded to provide such assurance, e cept for the language to be provided by the major donor outlining th naming of the Carousel , signage to accompany the Carousel and to address h s desire to review the design for the Carousel area and possible fut re Carousel sites. Such language will be incorporated into the Carousel Operating Agreement, and WHEREAS, OFC Minnesota Landmarks, and BCE Development seek $350,000 funding comm tment from the HRA Development Fund, which has guaranteed repayment in ten years, to fund the acquisition of the Carousel so that it can be opera ed in Town Square Park, and WHEREAS, the HRA Board may approve the funding commitment on Thursday, March 1, 199 , �nd WHEREAS, if he funding is approved, OFC will turn title to the Carousel over to the ity of Saint Paul , and WHEREAS, the City will need an operator for the Carousel , and WHEREAS, OFC with the assistance of Minnesota Landmarks and cooperation of BCE Developm nt Corporation, has the capability to operate the Carousel . �I � '� � � � � �(��j -,��/ ; ORIGINAL NOW, THEREFO E BE IT RESOLVED THAT the proper City officials shall be authorized t enter into an Operating Agreement with OFC, Minnesota Landmarks, a d BCE Development Corporation and that staff shall prepare and execute all uch documents necessary to complete this task. Subject to the Carousel Fun ing Agreement being approved at the HRA meeting today, March l , 1990. �E�i—�ltRi+lf �f S�tdff��H��F ti�e��i+tq—sY�-1�—e�rt�n e}�re—�e,�rr-�tra�r��—�o-—— F'rrst—�a�ttfrfd t�i-cma��ssbcfiarti�rt�m,t��T�°�e�a�r-,—P4a�°e�-8,—1-9�99---------- RESOLVED, �hat the proper City officers are hereby authorized to execute a loan extension agreement to March 8, 1990 and other elated documents on behalf of the City of Saint Paul . RESOLVED F RTHER, That the City' s guaranty of the loan taken by O r Fair Carousel from First Bank National Association shall rema n in full force and effect until such bank has been paid n full, notwithstanding the language of any other reso ution to the contrary. Navs Absent Requested by Department of: smo osw . on acca ee e man une B . z son � Adopted by Council Date MAR i 1990 Form Appr by City ttor ey ` ,/�. Adoption Ce tified by Council Secretary By: j �'V BY' Approv by Mayor for Submission to Approved by Mayor: Date �� w �� Counci 7 � -��4��/ /� gy; ��'✓'''`� ��!/ By' P1161 ISNED ''��'`!;� 1 � 1990 � � �' 33 ��t ( .. � - .� . . ._ � ._ . . ... . . . :��: : . .. . . : . ,: : .. . . :_ =� �� . . . . -- :. � . . � =-� .. : . ... . � . . . � . � . � . :. . :�:: , . .. . . ; . . , . :., �::. i , SOLVED that the proper Citq officers are hereby authorized to execute a lo n extension agreement to March 8, 1990 and other related documents on behalf of the City of Saint Paul. SOLVED FIIRTHER that the City's guaranty of the loan taken by 0 r Fair Carousel from First Bank National Association shall rema' n in full force and effect until such bank has been paid in ull, notwithstanding the language of any other resolution o the contrary. I �� I ' I , I ORIGIN A� Council File #� ��.3�1 Green Sheet # �� RESOLUTION CITY OF SAINT PAUL, MINNESOTA . Presented By , Referred To ' Comm' tee: Date WHEREAS, On De ember 28, 1989, the Housing and Rede lopment Authority of the City of Saint Paul "HRA" adopted HRA Resolution 8 12/28-1 authorizing staff to enter into neg tiations on funding and operatin agreements with Minnesota Landmarks, Ou Fair Carousel Incorporated "OFC' , and BCE Development to assure that the carousel is adequately funded, mana d and maintained in Town Square Park, and WHEREAS, such greement negotiations ha succeeded to provide such assurance, and WHEREAS, OFC, innesota Landmarks, nd BCE Development seek $350,000 funding commitment fro the HRA Developme Fund, which has guaranteed repayment in ten years, to fund the acquisition o the carousel so that it can be operated in Town Square Pa k, and WHEREAS, the H A Board may prove the funding commitment on Tuesday, February 27, 1990, and i WHEREAS, if th funding s approved, OFC will turn title to the carousel over to the City of Sa�nt Paul and WHEREAS, the City w' 1 need an operator for the carousel , and WHEREAS, OFC wit the assis�ance of Minnesota Landmarks and cooperation of BCE Development Co �bration, has the capability to operate the carousel . NOW, THEREFO BE IT RESOLVED THAT the proper City officials shall be authorized to enter in o n Operating Agreement with OFC, Minnesota Landmarks, and BCE Developme Co poration and that staff shall prepare and execute all such document nece sary to complete this task. Subject to the Carousel Funding Agreeme t bein approved at the HRA meeting today, February 27, 1990. . i Y as Nava Absent Requested by Department of: zmo o vs z COMMUNITY VICES P KS & RECREATION: cca ee et man ane z son � �,; y: �`'�- L- Adopted by Council: Date Form App oved by City A orney Adoption Certified b Council Secretary By: � By' Appr ed by Mayor for Submission to Cou il Approved by Mayor: Date ' Sy: Sy: ��.e�,h�/ ry �l�-�3,�1 DEPARTMENT/OFFlCEJCOUNqL DATE INITIATED COMMUNIT`� SERVICES 2-26-90 GREEN SHEET NO. 2 Q 9 5 C�VTACT PERSON 3 PHONE INITIAL/DATE INITIAUDATE �DEPARTMENT DIRECTOR �CRY COUNGL Vi C W1 tt enstei n 292 7409 NuMBER FOR ❑cm nrroRNFr �CITI CIERK MUST BE ON COUNqI AQENDA BY(DAT� ROUTING �BUDOET DIRECTOR �FIN.d M4T.SERVICES DIR. 'z—'L 7—9 0 �� MAYOR(OR ASSISTANn � TOTAL A�OF SICNATURE PAGES 4 (CLIP ALL LOCATIONS FOR SIGNATURE7 ACTION RE�UESTED: Signatures of City of�ficials as indicated on signature pages. RECOMMENDATIONS:Approvs(A)w Reject( COUNCIL COMMITTEE/RESEARCH REPORT OPTIONAL _PLANNINf3 COMMISSION —CIV L SERVICE COMMISSION ��YST PHONE NO. _CIB COMMITTEE _ A STAFF _ COMMENT3: _DISTRICT COURT _ SUPPOHTS WHICH COUNCIL OBJECTIVE7 INITIATIN(i PROBIEM,ISSUE,OPPORTUNITY(Who,What,When,Where,Why): The City will become he owners of "State Fair Carousel" and will need a group to manage and operate the carou el . Our Fair Carousel has been the driving force behind "saving" the carousel and they have the ability to manage and operate the carousel with the assistance of Minneso a Landmarks Inc. and the cooperation and participation of BCE Development Corporati n. ADVANTAGES IF APPROVED: The carousel will be ocated in Town Square Park, the site will be prepared to receive the carousel and the arousel will be operated for the enjoyment of the public. DISADVANTAGES IF APPROVED: Town Square Park will be altered due to the carousel using the space at the east end of the park. DISADVANTAC�E$IF NOT APPROVED: The carousel will not have a location at which to operate. TOTAL AMOUNT OF TRANSACTION � N�A COST/REYENUE BUDOETED(CIRCLE ON� YES NO N/A �NOir�o souR��e 325 - S eci al Servi ces �cTIVIT�Y NUMBER 23111 FlNANCIAL INFORMATION:(EXPWI� Funds generated by th carousel will be used to pay for operations, a two month operating reserve, restoration f the carousel horses, payback of the HRA financial contribution, and a restoration f nd f ��331 , '6``��t�°A.,� CITY OF SAINT PAUL =Rr '"`'•. '` ' Z�� DEPARTMENT OF COMMUNITY SERVICES �� = a: %+ i�11111'ililll r" r� 111lI:1111 �a - '° ^= DIVISION OF PARKS AND RECREATION 4�' '"'� � 300 Clty Hall Annex, 25 West Fourth Street 1AME5 SCHEIBEL St Paul, Minnesota 55102 MAYOR I 612-292-7400 � I February 2�, 1990 � William Wi son, President Saint Paul City Council Room 719 C'ty Hall Saint Paul, Minnesota 55101 Dear Counc' 1 President Wilson: The e closed packet regarding the funding and operating agreements pertaining to the State Fair Carousel is forwarded for your i formation and review. Conta'ned in your packet are the following: 1. A rep rt to the Housing and Redevelopment Authority of the C'ty of Saint Paul from Theresa Sterns dated Febru ry 27 , 1990 which outlines the contents of the Carou el Funding and Operating Agreements. 2 . A cop of the Carousel Funding Agreement. 3 . A cop of the Personal Guaranty letter, to be signed by the p oject' s major donor, guaranteeing the $350, 000 H.R.A loan. 4 . A cop of the Carousel Operating Agreement. The H R.A. is to meet on Tuesday, February 27 , 1990 to approve/di approve the funding agreement. I am sking that at the Tuesday, February 27, 1990 City Council me ting the council approve the Operating Agreement under susp nsion of rules. i � ag�5 ��,��3/ � William Wils n February 26, 1990 page 2 I beli ve that it is necessary to have both agreements approved at basically the same time because of the manner in which they re dependent and inter-related to each other. Sincerely, � i'� ; r `� � _ __ti,. "-_,�,s_.. — Robert P. P' ram Superintend nt of Parks and Recreation cc: Mayor ames Scheibel Roy Ga za Warren Hansen Theres Sterns Vic Wi tgenstein � �� i ; I ,� I . � . ��-�� 1.Y t. ,NOUSINA AMD R EYELOPMENT AUTNORtTY OF TNE CITY OF SAIMT PAUL, MINNESOTA � - - - . . � REPORT TO THE C�MMI�IOMEiis DATE February 27, 1990 REBAROIMA UTHORIZATION TO APPROVE FUNDING TO PURCHASE THE STATE FAIR CAROUSEL AND EXECUTE FUNDING �AND OPERATING AGREEMENTS WITH OUR FAIR CAROUSEL, MINNESOTA LANDMARKS, AND BCE DEVELOPMENT. � Background On December 7, 1988 the City of Saint Paul "City" entered into an agreement with Our Fair Carousel, Incorporated "OFC" to guarantee up- �to $1, 300, 000 in oans to purchase the State Fair Carousel and thereby prevent it fro being sold at a New York auction house. At that time OFC had until Janu ry 1, 1990 to raise the fund necessary to pay off the loan. The Cit took a 50� ownership interest in the Carousel and has been monitorin OFC operations and funds. By late Decemb r 1989, OFC had raised all but about $350,000 necessary to repay the bank loan� and approached the City looking for further participation. Minnesota Landmarks emerged as an interested party to assist OFC in undraising which gave the City confidence to proceed. On December 28, 1989 the City extended the guaranty until February 28, 1990 and autho ized staff to enter into negotiations on funding and operating agre ments with Minnesota Landmarks, OFC, and BCE Development which would as ure that the carousel is adequately funded, managed, and maintained in own Square Park. While those agreements remain to be formally execu ed, negotiations have produced the following roles and responsibiliti s for the parties. THE CITY • Provide t rough the HRA, $350, 000 to purchase the carousel • Ownership of the Carousel • Approve a ual operating permit. Includes annual review of budget, operating and fundraisinq plans. . • Approve T wn Square Park construction and installation plans. • Fund rest ration of Town Square Park over and above $250, 000 commitmen of OFC • Retain th ee positions on OFC's Board MINNESOTA LAND�RRS • Managemen assistance to OFC to include business planning, budget preparati n assistance, fundraising assistance, and volunteer coordinat on - • Retain tw positions on OFC's Board , ��3/ OFC. Inc. . • Provide hrough donations, approximately $900, 000 for _acquisition and inst llation of the carousel • Install he carousel in Town Square Park • Fundrais ng for carousel restoration, operating reserve and repaymen of HRA funds. • Operatio of carousel and gift kiosk, ten year term with eleventh year rev ew • Restorat on of carousel � Fund Tow Square Park restoration up to $250, 000 to escalate with the cons ruction cost index BCE Develo me t • Fund con truction costs associated with preparing the carousel site in Town quare Park • Fund To Square park restoration should they wish carousel removed or struc ural or safety problems require its removal. Analysis Staff believe that issues regarding the funding, management and maintenance o the carousel have been adequately addressed. The remaining pot ntial liability to the City lies in the cost to restore Town Square P rk (less up to $250, 000 available from OFC) should the City determine the carousel operation is not feasible. Public intere t in the carousel lies in its historical significance to the citizens f Saint Paul, its artistic beauty and its potential ability to serve as a attraction to retail and other entertainment activity in downtown. Re ested act on OFC, Inc. , Mi nesota Landmarks and BCE Development request that the HRA participate i the carousel project by providing $350,000 ( Ox payable in ten years) to fund the acquisition of the carousel so that it can be operated in T wn Square Park. Staff seek authority to approve funding in the amount of $350, 000 to purchase the arousel and execute funding and operating agreements with the City, OFC Minnesota Landmarks and BCE Development. Staff recomme ds approval of the attached resolution. Teresa Sterns �� -�3�I ' HRA Resolution 90-2/27- WHEREAS, on D cember 28, 1989, the Housing and Redevelopment Authority of the City of S int Paul "HRA" adopted HRA Resolution 89-12/28-1 authorizing s aff to enter into negotiations on funding and operating agreements wi h Minnesota Landmarks, Our Fair Carousel incorporated "OFC" , and BC Development to assure that the carousel is adequately funded, manag d and maintained in Town Square Park, and WHEREAS, such agreement negotiations have succeeded to provide such assurance, an WHEREAS, OFC, Minnesota Landmarks, and BCE Development seek $350, 000 funding commi ment from the HRA Development Fund, which has guaranteed repayment in en years, to fund the acquisition of the carousel so that it can be ope ated in Town Square Park, and WHEREAS, the RA funding commitment is an eligible and appropriate use of such funds, NOW THEREFORE BE IT RESOLVED THAT 1. Staff sh 11 be authorized to prepare and execute such documents as necessar for this transaction. 2 . The 1990 budget is amended as follows: Current Changes Amended FINANCING P : Budaet Budget 138 HRA evelopment Fund 138-76600-9830 Use of Unr served Fund Balance S,� 0 �350. 000 5350. 000 Change to Fina cing Plan $ 0 $350, 000 $350, 000 SPENDING PLAN; 138 HRA D velopment Fund P6-138-76 00-0545-69455 Funding for Carou el project S 0 $350. 000 $350, 000 Change to Spen ing Plan $ 0 $350, 000 $350, 000 .. � . . . 9�- �� i . . CAROUS L INSTALLATION, PERMIT AND OPERATIONS AGREEMENT THIS C ROUSEL AGREEMENT (hereinafter referred to as this "Agreement") made as of the day of February, 1990, by and among the C ty of Saint Paul, a Minnesota municipal corporation (hereinafte referred to as the "City") , BCED Minnesota, Inc. , a Minnesota bu iness corporation (hereinafter referred to as "BCED") , and Our F ir Carousel Incorporated, a Minnesota non-profit corporation (hereinafter referred to as "OFC") , and Minnesota Landmarks ncorporated, a Minnesota non-profit corporation (hereinafte referred to as "Minnesota Landmark") . WHEREA , the parties together with the Housing and Redevelopme t Authority of the City of Saint Paul, Minnesota (hereinafte referred to as the "HRA") entered into a Carousel Funding Agr ement dated February _, 1990, which Agreement sets out the terms a d conditions of the financial arrangements for the acquisition installation, restoration and operation of the Minnesota S ate Fair Carousel (the "Carousel") in the Loft Area of the Seventh Place Public Parcel (the "Town Square Park") ; and WHEREA , the City, OFC, Minnesota Landmark and BCED now wish to agree u on the terms and conditions of the arrangements for installatio and operation of the Carousel in Town Square Park. NOW T REFORE, in consideration of the foregoing and the agreements, covenants and conditions herein contained, the parties hereto agre as follows: I. Pe it. Pursuant to the provisions of Chapter 170, Saint Paul Legisl tive Code, upon completion of the conditions of Article III hereof nd upon submission of the Operating Plan provided for in Section .B hereof acceptable to the City, the City shall grant to OFC a p rmit to install and operate the Carousel in the Loft Area of To n Square Park (the "Loft" or "Town Square Park") together wi h a ticket booth and a concessions sales kiosk (as more specificall identified in the drawing attached hereto as Exhibit A) . The te of this Permit shall commence November 1, 1990, for the term f one year renewable for ten successive years in accordance ith Section VII.B hereof unless earlier terminated for cause in ccordance with this Agreement. The Permit shall be further con itioned upon the timely installation of the Carousel and Kiosk i accordance with this Agreement and their operation in � 1 i -------- --_� �_._.._.__,.._�__,.�.�.�..,..�,,.��...n,�.,� . � �'�'��3/ - . . accordance ith rules and regulations made by the Director, Department o Community Services from time to time. II. S 'te Pre aration. BCED agrees to prepare the site to install the Carousel and Kiosk in Town Square Park in accordance with plans, pecifications, construction timetable and construction contract (h reinafter referred to as the "Plans") to be prepared by BCED and o be approved by the City and OFC. The Construction Contract sha 1 be acceptable in form to the City and shall include City standar conditions respecting insurance and indemnification, rules and r gulations and guarantee of work. BCED shall prepare and submit or City consideration and approval detailed drawings and specific tions of the architectural, structural, electrical and mechanical equirements of the Carousel and Kiosk operating in the Loft settin . After City and OFC approval of these drawings, specificati ns, construction timetables and construction contract, BCED shall c use preparation of the final Plans to be commenced and completed w thin 15 days. Approval by the City and BCED of the Plans shall constitute consent of each to installation, including utility hoo -up of the Carousel and Kiosk as is required under the Limited War anty Deed, Operating Agreement and Maintenance and Assessment greement Seventh Place Public Parcel between the City and BCED (h�reafter referred to respectively as the "Deed" , the "Operating 1�greement" , the "Maintenance and Assessment Agreement" , or collecti�Yely as the "Building Agreements") . Upon approval of the Plans CED shall enter into a Construction Contract for preparing t e Loft site for the Carousel and Kiosk. III. onditions Precedent to Installation. Prior to grant of the perm't and installation of the Carousel and Kiosk in Town Square Park the following conditions shall be met: A. B ED shall obtain from a qualified sound consultant a ceptable to the City a sound analysis that the sound a d vibration which will be caused by the operation of t e Carousel in Town Square Park indicating noise levels w thin permissible range and the opinion of a structural e gineering consultant acceptable to the City that the s und and vibration will not cause structural damage to t e Town Square Park building. This study shall include e fects of harmonic vibration caused by the carousel on t e areas of Town Square Park building. B. B ED shall have submitted and the City and OFC shall have a proved the Plans, Construction Contract, the general c ntractor, and the form and amount of the security for � 2 � I _____�_.��,�_�..a.=..�.,�..�,ti,,.�.�_t�a:__: .: ._,-.....-�,.r,.-.- ��-,,� . ..��.,,,,�...,,,,�., _.,_ :.:u,:�� r....��,.��,..,,._._ ..w--,�. . _. _. x ... ._ ., r ,_ , - . . . : �-.fv 3�I th general contractors performance of the Carousel and Ki sk Site Preparation Contract. C. BC�D shall have completed in locations and in a manner acbeptable to the City construction of restrooms, of a shlower and changing facility, and of storage and maintenance areas to replace those to be removed from or r dered unusable in the Loft area by the installation o the Carousel and Kiosk. The existing restroom, shower a changing facility will remain in operation until c pletion of the new facilities except for a short p riod of time requested by the contractor and approved b the City. D. A ontractors public liability insurance policy in amount o $1, 000, 00o personal injury or death, $500, 000 p operty damage, $500,000 single occurrence coverage s all have been submitted by the general contractor n ming the City, OFC and BCED as additional insureds. Unless foregoing conditions are met the City shall be under no obligati n to issue the permit for installation and operation of the Caro sel. IV. BQED Obligations. A. B ED agrees at its cost to provide the following: 1 Electrical and mechanical drawings in sufficient detail to permit the City to evaluate the impact of the installation of the Carousel and Kiosk on the � functioning of the Loft. 2J A sound and vibration analysis and structural � engineering opinion regarding the operational impact ', of the Carousel on persons within the Loft and upon the Town Square Park structure. 3 Replacement restrooms and a shower and changing facility and storage and maintenance areas within BCED's improvements at locations adequate to serve the Loft area. ! 3 . . �� -�� 4 . I Construction of the site in the Loft Area in accordance with the approved Plans and to assist ' OFC with the installation of the Carousel in the ; Loft Site. 5. A construction calendar for the Town Square Park ! renovation to accommodate the Carousel that is '� agreeable to the City. 6. Security for the Carousel and Kiosk chargeable to the Town Square Mall Operating Budget as that term is defined in the Maintenance and Assessment Agreement. B. BC D further agrees -- l. To pay the cost of construction of the Loft Area. 2 . To pay the cost of removal and transportation to a relocation site of trees, shrubs and plants which must be removed from the Town Square Park because of the Carousel installation. 3 To pay the cost of restoring the Loft to its , condition prior to installation of the Carousel and Kiosk upon removal of the Carousel and Kiosk if the Carousel is removed at BCED's request, if it is removed by agreement of the City, OFC and BCED, or, if the City determines that the Carousel must be , removed because its operation constitutes a threat to the structural integrity of Town Square Building. � If the Carousel is removed in other circumstances, BCED shall not be responsible for restoration of the Loft. C. B ED shall hold the City harmless from and against all 1 ens, claims, damages and expenses which may be made, i posed upon, incurred by or asserted against the City a ising out of the construction activities pertaining to t e alteration of Town Square Park to accommodate the i stallation of the Carousel. V. OF obli ations. OFC agrees: ! 4 ', � � .-.. . _—--.._.�.--�-.—..�� -..�.ma..+n.ns�wa.��x�mrm�se.we.a.tnx.vm.-a-�w>m�wnaamv�nmawre.-rt�ara�ncasaw_�vms...ror.v..a�tx.tF.xow�wwm�i!erV/fnsT.�vta-'.9.2v r.+L.as.p�.qi.4!'^!4at , . I / G� ' / „� � r �,� ., A. To place the Carousel in the site within Town Square Park co structed by BCED. Such placement shall include tr nsport of the Carousel to Town Square Building and the - de ivery of the Carousel parts and machinery to the Loft in tallation site, and the installation and hook up of th Carousel. B. W' h the assistance of Minnesota Landmarks and BCED to p epare an operating plan for the Carousel and Kiosk (the " perating Plan") . An approved Operating Plan shall be a ondition precedent to the issuance of the permit under A ticle I hereof in accordance with Section VIII.B and A�ticle VIII hereof. The Operating Plan should include bult is not limited to the following: 1.'� Days and hours of operation. 2 .i Staffing levels. 3 � User fees for individual rides, group rates, special i event and/or hourly rental rates. 41 General categories of Carousel related items to be � sold at the Kiosk Gift Shop. 5 Reporting structure (chain of command) outlining responsibility of staff, supervision and OFC representatives. 6� Salary schedule for all employees. � 7� Criteria for special promotions. 8� Any substantial modification (i.e. , operating times, fees, ) shall be approved by the City and BCED prior to implementation. OFC agrees to remove specific merchandise items from sale in the Kiosk at the request of the City. C. To operate the Carousel and Kiosk in accordance with the rules and regulations made by the Director, Department of Community Services of the City, in accordance with the proposed Operating Plan, and in accordance with the approved annual Operating Budget as provided for in Section 4 .03 of the Carousel Funding Agreement. 5 I I �, , - , . . � ��31 D. Toj operate the Carousel during the time of special pr�motions or events in Town Square Park sponsored by the Cit�y. At the direction of the Superintendent of Parks and Re�reation, OFC shall provide Carousel operation at times th Carousel is not normally in operation without charge to the City for three special promotions or events other th n fund raisers annually. Additional such events will be paid for at OFC's customary rates. The City shall pr vide 30 days advance notice for special event op rations.The Superintendent of Parks and Recreation Di ision or his or her designees shall be responsible for ma ntaining a master events schedule for use of Town S are Park and of Carousel special events and normal op rating times. E. To pay all costs of operation and maintenance of the Ca ousel and Kiosk. Commencing with the Operating Budget su mitted November l, 1991, the costs of operation shall in lude an amount representing lost income from rental of the Town Square Park to be paid to the City for the pu pose of reducing the amount assessed against be efitted property owners for operation and maintenance of Town Square Park. This rental offset shall be the am unt necessary when added to the rents received from re tal of Town Square Park in the preceding year to ag regate the sum of $47, 000 which sum is wherein re erred to as the "base rental receipts. " The base re tal receipts shall be increased annually by a sum e al to the rate of the Consumer Price Index. To the ex ent Town Square Park rental receipts exceed the sum of $47, 000 as adjusted annually by the amount of the CPI in rease, then no rental offset need be provided for in th Operating Budget for the succeeding operating period. Th cost of electricity shall be separately metered and paid by OFC to Northern States Power Company. Increased costs of heating, ventilating and air conditioning (HVAC) a utility charges chargeable to the City as Owner Galleria under Article, Sections II C and D of the Town S are Building Operating Agreement attributable to the o eration of the Carousel, if any, may be pro rated b tween OFC and the City in accordance with their r spective consumption of these services as part of the a nual operations budget preparation and approval. OFC s all pay for extraordinary janitorial and for special 6 i - � . �I��,��/ se urity service provided to the Carousel space or by re son of its operation. F. Tol provide and maintain in force comprehensive general li�ability insurance against claims for bodily injury, de th and property damage occurring by reason of the Ca ousel and Kiosk operation in Town Square Park in mi imum amounts of $500,000 property damage and $1, 000, 000 for bodily injury, death and property damage r sulting from any one occurrence. The City, BCED and Mi nesota Landmarks shall be named as additional insureds o the general liability policy and OFC shall deliver a c y of the policy to each of them upon request. G. O C shall hold the City harmless from and against all 1 'ens, claims, damages and expenses which may be imposed u on incurred by or asserted against the City arising out o the ownership of the Loft area, the Carousel or the u e and operation of the Carousel and Kiosk. H. O C shall participate in paying the cost of restoring the T n Square Park in accordance with the provisions of S ction of the Carousel Funding Agreement. VI. Minnesota Landmarks responsibilities. Minnesota Landmarks s all be responsible for the following: A. T assist OFC in the areas of fund raising for carousel r storation and the endowment fund provided for in the C rousel Funding Agreement. B. T assist OFC in the preparation of their operating plan. C. T assist OFC in the preparation of their operating b dget. VII. it Res onsibilities. The City shall be responsible for the fol owing: A. R view of the electrical and mechanical drawings, c nstruction plans, sound and vibration analysis and s ructural opinion. The City shall communicate any o jection it may have to any of these documents in a t'mely manner so as not to delay the installation of the C rousel and Kiosk; provided, however, that the City r serves to itself the final approval of the permit and 7 I � � , I I'� - a3.� i th�se documents or the final rejection of the same if in it� sole determination, the installation and operation wo�ld pose a threat to the structural integrity of the To�an Square Park Building. B. Gr�nt or renewal of the permit described in Article I he�-eof. The City shall issue the initial permit upon sa�isfactory compliance by BCED and OFC with the co$�ditions of Article III hereof. The City agrees that (1� if there is no default in this Agreement, the Ca ousel Funding Agreement or in the Agreement dated De�ember 7, 1988, as amended, between the City and OFC, onjthe part of OFC, at time of termination of the initial or� successive permit, that (2) if, following published no�tice of intent to renew each permit, no significant pu�lic objection to its renewal is forthcoming, and (3) ifi OFC has submitted an updated Operating Plan in ac ordance with Section V. B hereof and a Operating Bu get for the ensuing year in accordance with Section 4. 3 of the Carousel Funding Agreement, and a Fund Raising Plan in accordance with Section 3 . 05 of the Ca ousel Funding Agreement each in form and content ac eptable to the City, then it will renew the permit to op rate the Carousel and Kiosk in Town Square Park. T ese renewals may be made for ten successive one year t rms. C. F'x the hours and conditions for operation of the C rousel and Kiosk. These shall be part of the rules and r gulations made by the Director, Department of Community S rvices in connection with the grant of permit under A ticle I above and approval of the Operating Plan under S ction V.B above. The City shall maintain a Carousel m ster events schedule in accordance with Article V.D. h reof. D. T e City agrees that if the City and/or BCED determine t remove the carousel from Town Square Park, except as p ovided in Article 6 of the Carousel Funding Agreement t e City may not sell or otherwise dispose of the c rousel without the expressed written consent of OFC. I the City determines that it no longer wishes the c rousel to be operated at any other park or other 1 cation in the City of Saint Paul, the City shall return t'tle of the carousel over to OFC upon payment of $1. 00 i the event that OFC is not in default of the terms of �' 8 � � � � � �� '��/ t is Agreement nor of the Carousel Funding Agreement and O C has demonstrated the capability of removing the C�rousel without cost to the City. VIII. Operating Plan. The Operating Plan described in Section V.B. shall be submitted to the City within 60 days from the date of thi Agreement. An updated Operating Plan will be prepared annually an submitted no later than November 1, 1991, and each November ls thereafter during the term of this Agreement. No Operating P an shall be effective until approved by the City as part of the grant or renewal of a park use Permit in accordance with Sectio VII.B hereof. � IX. R' ht of First Refusal • O erations. In the event the City determines o relocate the Carousel from Town Square Park to another loc tion, or in the event the City determines to continue operation o the Carousel in Town Square Park after the expiration of the tent permit term, provided for in Article I, herein (the "Initial Pe it Terms") then the City shall not enter into a permit and operati ns agreement for the Carousel in such new location or in Town Squ re Park after expiration of the Initial Permit Terms provided fo in this Agreement unless and until: (i) T e City has tendered a Permit and Operations Agreement t OFC, which tender shall be made not less than 90 days i advance of any relocation of the Carousel or of the t rmination of the Initial Permit Terms; and (ii) O C has failed or refused to accept the tender and e ecuted the tendered Permit and Operations Agreement w thin 90 days of its tender. OFC sh 11 have 90 days from the date of receipt by OFC of the Permit and perations Agreement from the City in which to accept the Agreeme t. OFC's right to accept the Agreement shall expire on the 90th day following receipt of the Agreement, and unless OFC on or befor that date signs the tendered Permit and Operations Agreement a d delivers the signed Agreement to the City. In the event OFC fails or refuses to accept its right of first refusal, th City may contract with another operator on the same terms as co tained in the Permit and Operations Agreement tendered OFC, or it may operate the Carousel with its own forces. Any proposed ch nge in terms from those in the Permit and Operations Agreement t ndered OFC must first be offered to OFC. OFC's failure or refusal o accept its right of first refusal shall not operate I 9 I . . . ' �� to preclude �FC from submitting an operating proposal at any time the City see s a contract operator other than the time in which of the right of ; first refusal tender. X. Caro sel Restoration Decisions• Fundin . In the event OFC is no longer the operator of the Carousel, OFC shall nonetheless retain the uthority to participate in all decisions regarding restoration, painting, or repair (beyond routine maintenance) , and the City agr es that no such activity shall be undertaken without the approval of the OFC Board of Directors. OFC agrees that it shall not reasonably withhold its approval, and that this requirement or OFC Board approval shall remain in effect unless OFC ceases t function as a Minnesota corporation or there is a material cha ge in the corporate purposes, in which event this requirement or OFC approval shall no longer be in effect. The substance of this section shall be incorporated into every Carousel operating ag eement entered into by the City and into an agreement between the City and OFC in the event the City operates the Carousel. These agreements will contain a requirement for equitable pr vision from Surplus Funds of money to provide for Carousel res oration. XI. R moval and Restoration. Upon termination of this Agreement, t e Carousel and Kiosk shall be removed from Town Square Park and the City shall proceed to restore the Loft area to its condition as of the date of this Agreement. Unless the removal is undertaken b OFC, or a purchaser of the Carousel at OFC or the purchaser's xpense, the expense of removal as well as the cost of restoration f the Loft shall be paid for from the Park Restoration Fund, and to the extent that said Fund is not sufficient to pay said costs, ny deficiency paid by the City shall be reimbursed by BCED within 0 days of receipt of a statement detailing the items of such cos and expense. BCED may undertake the removal and restoration action itself provided that the plans and specificatio s for such work are approved by the City and the timetable is acceptable to the City. XII. CED Assessment. BCED agrees for itself and its successor in interest to the Commercial Parcel as that term is defined in t e Deed that if BCED's obligation under this Agreement, including th cost of providing security or of restoring the Loft area after moval of the Carousel are not performed, that said costs if in urred by the City shall be incorporated into the Galleria Mal Operating Budget and assessed in accordance with the Maintenance and Assessment Agreement against that part of the Commercial P rcel owned by BCED on the date of this Agreement. 10 ��'I I . � � � � �� -�/ XIII. IFDefault; Termination. This Agreement and the permit hereby grant�ed may be terminated by reason of (1) breach of this Agreement orlthe Carousel Funding Agreement which continues after thirty (30)�ays written notice, (2) the removal of the Carousel from Town S are Park or (3) the written agreement of the parties. In the eventlof breach of this giving rise to termination, the City shall give #�otice to OFC, Minnesota Landmarks and BCED of the matter constlituting the default, the action necessary to correct the default, �the action proposed by the City should the default not be timely cu ed. Notice shall be provided to: OF�C c/o: Peter Boehm I Our Fair Carousel, Inc. ! PO Box 17276 ' Saint Paul, Mn. 55117 Robert Angleson. � BCED 444 Cedar Street 1500 Meritor Tower St. Paul, MN. 55101 David Lanagran Minnesota Landmarks, Inc. Landmark Center 75 West Fifth Street Saint Paul, MN. 55102 XIV. ivision of Receipts. All revenue derived from the operation of the carousel and kiosk shall be allocated as provided in Carousel unding Agreement. XIV. Binding Effect. The covenants, agreements and undertakings of the parties shall be binding on themselves and their respec ive successors and assigns. IN WITN SS WHEREOF, the parties have executed this Agreement as of the da and year first above written. I ! 11 i - � � � � �'v��l � APPROVED AS '�'O FORM: CITY OF SAINT PAUL Assistant Ci y Attorney By Its Mayor By Its Director, Department of Community Services By Director, Department of Finance and Management Services , 12 il' I � � . ' - . � �� 31 STATE OF MIN ESOTA ) ) SS. COUNTY OF SEY ) The for going instrument was acknowledged before me this day of , 1990, by Jim Scheibel, Mayor of the City of Saint Paul, a municipal corporation of the State of Minnesota, o behalf of said City of Saint Paul. Notary Public STATE OF MIN ESOTA ) ) SS. COUNTY OF SEY ) The for going instrument was acknowledged before me this day of , 1990, by Roy Garza, Director of the Departm nt of Community Services of the City of Saint Paul, Minnesota, municipal corporation of the State of Minnesota, on behalf of s id City of Saint Paul. , Notary Public I �� STATE OF MII�NESOTA ) ) SS. COUNTY OF RA�MSEY ) The fo egoing instrument was acknowledged before me this day of , 1990, by Ed Warn, Acting Director of the Departm nt of Finance and Management Services of the City of Saint Paul, Minnesota, a municipal corporation of the State of Minnesota, n behalf of said City of Saint Paul. Notary Public i 13 I _ . . �� -� .� � , BCED, MINNESOTA, INC. il I BY i Its � By Its STATE OF MIN ESOTA ) ) ss. COUNTY OF SEY ) I On thisi day of , 1990, before me, a notary publijc, within and for said County, appeared and , to me personally known, who, being each by me duly s orn, did say that they are respectively the and of BCED Minnesota, Inc. , the corporation named in th foregoing instrument, and that the instrument was signed in be alf of said and acknowledged said instrument to be the free act and deed of said corporation. �� ' Notary Public �� 14 I, __ _- ___ � ' �� '�/ ' OUR FAIR CAROUSEL INCORPORATED I�I ,, BY Its II i BY ' Its STATE OF MI NESOTA ) ) ss. COUNTY OF SEY ) On thi� day of , 1990, before me, a notary publi , within and for said County, appeared and ' , to me personally known, who, being by me duly sworn, did ay that he is respectively the and of Our Fair Carousel, Incorporated, the corporation named in the foregoing instrument, and that the instrument as signed in behalf of said corporation by authority of its and said and acknowledged said instrument to be the free ac and deed of said corporation. Notary Public 15 I� _� � �v -�.�� ; MINNESOTA LANDMARKS, INC. By Its i BY ', Its STATE OF MI NESOTA ) ) ss. COUNTY OF SEY ) On thi day of , 1990, before me, a notary public, wit in and for said County, appeared and , to me personally known, who, being each by me uly sworn, did say that they are the and of Minnesota Landmarks, Inc. , the corporation named in the foregoing instrument, that the instrument was signed i behalf of said corporation by authority of its and said and acknowledged said instru ent to be the free act and deed of said corporation. i Notary Public � 16 I .._.�.-..t.�r.,,,.,�..y...,_.._�..��....,�...r.�,.�,....�._...�.�9____a . ---------- - q o-�� - 2 23 90 CAROII3EL FUNDING AGREEMENT THIS AROUSEL FUNDING AGREEMENT is made and entered into as of the 28 h day of February, 1990 by and among the CITY OF ST. PAUL, MINN SOTA, a home rule charter city and municipal corporation of the tate of Minnesota (the "City", the HOUSING AND REDEVELOP NT AUTHORITY OF THE CITY OF SAINT PAUL, MINNESOTA, a public bod corporate and politic (the "HRA") , OUR FAIR CAROUSEL INCORPORAT D, a Minnesota non-profit corporation ("OFC") , MINNESOTA LANDMARKS, INC. , a Minnesota non-profit corporation ("Minnesota Landmarks" and BCED MINNESOTA, INC. , a Minnesota for-profit corporatio ("BCED") . WHERE S: A. FC has acquired a Carousel formerly operated in connection with the Minnesota State Fair (the "Carousel") , and for that purpo e has borrowed from First Bank National Association the moneys nec ssary to acquire title to said Carousel; and B. he City of Saint Paul, Minnesota (the "City") has guaranteed repayment of the loan to OFC from First Bank National Associatio ; and C. he HRA is willing to provide the sum of $350, 000 to be applied t the acquisition, restoration and installation of the Carousel, nd the Carousel will be installed and operated in the Seventh Pl ce Public Parcel (the "Seventh Place Park") as described in that c rtain Operating Agreement Seventh Place Public Parcel dated Febr ary 28, 1990; and D. innesota Landmarks is willinq to provide manaqement consulting assistance to OFC, and to use its best efforts to assist OFC to sol 'cit donations in the amount of $350,000 to be used for restoratio of the Carousel and to return moneys to the HRA; and E. FC is willing to operate the Carousel pursuant to that certain Ca ousel Installation, Permit and Operations Agreement of even date herewith (the "Operating Agreement") and will solicit funds for Carousel restoration and operations (1) in an amount sufficien to return $350,000 to the HRA on or before March 1, 2000, and (2) in an additional amount sufficient to restore the Carousel, for which purposes OFC will utilize its "adopt a pony" fund rais ng program and such other and additional fund-raising technique as it shall deem appropriate; and s 592 �d �� ' F. CED will arrange for and finance the construction of improvemen s in the Seventh Place Park to make it suitable for the installati n and operation of the Carousel; and G. he City, HRA, OFC, Minnesota Landmarks and BCED, now wish to gree on the terms and conditions of the financial arrangemen s for acquisition, installation, restoration and operation f the Carousel; NOW, HEREFORE, the City, HRA, OFC, Minnesota Landmarks and BCED for g od and valuable consideration received by each of them, the recei t and sufficiency of which are hereby mutually acknowledg d, hereby agree as follows: ARTICLE 1. PurAOSe: Definitions. Secti n 1.01 �pose. The purpose of this Carousel Funding Agreement (hereafter, this "Agreement") is to provide for the financial erms and conditions for the acquisition, installation, restoratio and operation of the Carousel in the Seventh Place Park. Th s Agreement expresses the entire understanding of the parties w th respect to the matters provided for herein, and therefore supersedes and replaces any prior agreements, oral or written, ith respect to the same subject matter. It is hereby acknowledg d by the parties that certain of them have also entered into the O erating Agreement which provides for hours of operation of the C rousel, staffing for operation of the Carousel, and similar ma ters. To the extent of any inconsistency between this Agreement nd the Operating Agreement, the terms of this Agreement shall be c ntrolling as to financial matters, and the terms of the Operating greement shall be controlling as to all other matters. Secti n 1.02 Definitions. Terms capitalized but not otherwise defined in this Agreement shall have the meanings assigned o such terms in this Section 1.02, and if not defined this Secti n 1.02, shall have the meanings assigned to such terms in the Op ratinq Aqreement, or in other applicable agreements relating t Seventh Place Park or the Carousel. The followinq terms shall have the followinq meaninqs: Carou That certain carousel formerly operated at the Minne ota State Fair and previously acquired by OFC and to be insta led in Seventh Place Park pursuant to this Agreement. BCED: BCED, Minnesota, Inc. , a Minnesota corporation. Cftv: The City of Saint Paul, Minnesota, a home role charter city nd municipal corporation of the State of Minnesota. 592 2 �� -.3�/ Endo ent Account: The account by that name created by Artic e 4 hereof. Gua a o : Guara t : That certain Personal Guaranty dated February 28, 1990 xecuted by the Guarantor in favor of the HRA. HRA: The Housing and Redevelopment Authority of the City of Saint Paul, Minnesota, a public body corporate and politic, or an successor to its powers and functions. HRA S baccount: The subaccount by that name in the Endowment Accou t. 'nne ta La ks: Minnesota Landmarks, Inc. , a Minnesota non-p ofit corporation. --- OFC: Our Fair Carousel, Incorporated, a Minnesota non-profit corpo ation. . O era in Account: The account by that name created by Artic e 4 hereof. O e a in A reeme t: That certain Carousel Installation, Permi and Operations Agreement dated February 28, 1990 betwe n the City and OFC. O era in E e es: The expenditures incurred in connection with the operation of the Carousel and any ancillary facil ties, including without limitation, expenses required to b paid pursuant to Section V.E. of the Operating Agree ent, wages or salaries paid to employees of OFC, amounts paid o independent contractors retained by oFC to perfona dutie related to the Carousel, the costs of insurance premi s for the Carousel, the costs of acquisition of inven ory and other expenses associated with the retail sale of gi ts, memorabilia and other items related to the Carousel, and a 1 other expenditures arising from the operation of the Carou el and ancillary facilities which, under generally accep ed accountinq principles, are current expense items. With he consent of the City, the "Operatinq Expenses" for a calen ar year may include an amount to be disbursed to OFC for its c rporate purposes. e c : The account by that name created by Ar icle 4 hereof. s� 3 �� -,3�/ _ — -Park estoratio Re 'rement: $250, 000, which amount shall be in reased or decreased as of March 1 of each year beginning March l, 1991 according to changes in the Engineering Cost Index most recently published in the Enaineerina News Record (or, f such index is no longer published, then according to an i dependently determined index of ccntraction costs dete ined by BCED and the City to be appropriate) . Pa estorat'on Sub cco t: The subaccount by that name in the E dowment Account. Re a' and a 'nte ance ccou t: The account by that name creat d by Article 4 hereof. Re ai and aintenance e 'tures: Expenses necessary or desir ble for annual maintenance and repair of the Carousel. Re ai d a' t nance Re irement: The amount stated in each annua budget required by Article IV hereof to be necessary for epair and Maintenance Expenditures during the year cover d by said budget. Restr'cted Funds: Moneys donated for the sole purpose of resto ing the Carousel, as further defined in Section 3.01 hereo . e to t'o Ac un : The account by that name created by Artic e 4 hereof. Resto ation E end'tures: The expenditures required to resto e the Carousel and each and all of the Carousel horses, exclu ing expenses which are either current expense items under generally accepted accounting principles, or are budge ed Repair and Maintenance Expenditures. esto at' R 're ent: The amount estimated by OFC, with concu rence of the City, to be necessary to restore the Carou el, as stated in each of the budgets provided for in Secti n 3.04. ev n : All revenues of the Carousel, from whatever source deriv d, includinq donated funds, revenues arisinq from the opera ion of the Carousel and any ancillary facility (incl ding the sale of qifts, memorabilia and other items relat d to the Carousel) , proceeds of any insurance claim payme ts, and other amounts paid to the City or OFC in conne tion with the Carousel. 592 4 9��J Seven h Place a k: The Seventh Place public parcel legally descr bed and provided for in that certain Operating Agreement -- Se enth Place public parcel dated , 19 ARTICLE 2 . First Bank Loan: Title. Secti n 2 .01 First Bank Loan. (a) FC has previously borrawed from First Bank National ssociation the sum of $1, 165,000, which loan has been uaranteed by the City. The proceeds of the loan have een used to acquire the Carousel. As of the date of his Aqreement, the Carousel is 50 percent owned by OFC, nd 50 percent owned by the City. Also as of the date f this Agreement, interest accrued through January 3 , 990 on the loan has been paid, and the principal balance f the loan has been paid down to $1,025,000. (b) s of the date of this Agreement, OFC has raised the sum f S , S of which s cash on hand, and $ of which has een committed to OFC as donations for the Carousel, but as not yet been received. OFC has applied a portion of he funds previously raised to interest payments due on he loan from First Bank National Association. (c) he loan from First Bank National Association presently ears interest at a fixed rate of interest per annum of .25$, and may be paid in its entirety at any time. (d) pon execution of this Agreement, OFC will notify those onors who have pledged moneys to OFC, but who have not et actually provided said moneys, that arrangements have een made for the installation, restoration and operation f the Carousel. OFC will, as expeditiously as possible, ollect the donations pledqed to it. At such time as OFC as cash on hand equal to or exceedinq $ , the will make available the sum of $350,000. The moneys hen held by OFC, plus the necessary additional amount rom the $350,000 provided by the HRA, shall thereupon e paid to First Bank National Association as payment in ull of the principal of and accrued interest on the loan ade by First Bank National Association to OFC, and the alance of all funds provided by the HRA or held by OFC hall be deposited in the Restoration Account. Secti n 2.02 Transfer of Title. Concurrently with payment of the loa from First Bank National Association, OFC shall execute such inst ents as shall, in the opinion of the City Attorney, be 592 5 9� '� .�/ necessary o vest full legal title to the Carousel in the name of � the City. Secti 2 . 03 Use of Remaininq Funds. The balance of any moneys held by OFC upon payment in full of the loan from First Bank National A sociation, and all future moneys received by OFC as donations de for the Carousel shall be deposited as provided in Article 3. ARTICLE 3 . Additional Funds; Deoosits of Funds• Fund Raisinq. Sectio 3 . 01 Restricted Funds. It is agreed that moneys donated fo the express purpose of restoring the Carousel (i.e. moneys don ted on the express condition that such moneys be used for Restora ion Expenditures) shall be deemed "restricted funds". "Restricte funds" shall be deposited in the Restoration Account and used solely for Restoration Expenditures until the completion of restoration of the Carousel. Sectio 3.02 Initial Balances. The balance of any moneys held by OFC and the unused balance of the $350,000 provided by the HRA, at th time of payment of the loan from First Bank National Associatio , shall be immediately deposited in the Restoration Account. All future donations of Restricted Funds shall be deposited 'n the Restoration Account, and all other moneys shall be deposite upon receipt in the Endowment Account or Restoration Account, as detenained by the City and OFC. Sectio 3 .03 �nitial Fundinq of Operatinq Account and O erat'n R e e ccount. On the first day of the month preceding commencemen of operation of the Carousel, there shall be transferred to the Operating Account, the Operating Reserve Account and the R pair and Maintenance Account, in that order, from unrestricte funds in the Restoration Account and funds in the Endowment A count, in that order, an amount sufficient to initially fund each uch Account. The amounts deposited in the Operating Account an the Operatinq Reserve Account shall each be equal to the maximum amount of 2 months' Operating Expenses according to the initial bud et. The amount deposited in the Repair and Maintenance Account sh 11 be equal to the first 2 months' Repair and Maintenance Expenditures, according to the initial budget. This section sha 1 not be construed to require transfers of Restricted Funds from he Restoration Account. Sectio 3.04 �iti_�1 Restoration Account Balances. Within 60 days of the date of execution of this Agreement, OFC shall submit to t e City a budqet fs�r restoration of the Carousel and its installatio in Seventh Place Park. Such budget shall state the amount o� a ticipated Restoration Expenditures, broken down by line 592 6 �� item, and e projected times when Restoration Expenditures shall � be made. n the first day of the month preceding commencement of operation of the Carousel, and on the same day that OFC submits to the City e ch proposed annual budget for each calendar year, OFC shall subm't to the City a budget showinq the amount required to complete r storation of the Carousel. The amount stated in each such budqe shall be the "Restoration Requirement" while such budget rem ins in effect. To the extent the amount remaining in the Restor tion Account (after the transfer of funds required by Section 3 . 3) is less than the Restoration Requirement, OFC may request th t the City transfer moneys from the Endowment Account to the Re toration Account but the City shall be nnder no obligation o 3nake such a transfer. If a deficiency remains after any such tr nsfer, OFC (with the assistance of Minnesota Landmarks) will solic t funds to complete restoration of the Carousel as further pr vided in Section 3.05. OFC shall not be required to prepare or submit a restoration budget after completion of restoratio of the Carousel, unless OFC detenaines to undertake further wo k on the Carousel to enhance its value as a historic artifact. Sectio 3 .05 Fund Raisina; Minnesota Landmarks Commitment. (a) O C hereby commits to exercise its best efforts to raise neys for the purpose of restorinq the Carousel in the a ount of the Restoration Requirement. OFC shall utilize t e "adopt a pony" proqram for this purpose, but may use s ch other and additional fund-raising techniques as it s all deem appropriate. Moneys raised through the "adopt a pony" program, and other moneys donated to OFC s ecifically for restoration purposes, shall be c nsidered Restricted Funds available exclusively for p yment of Restoration Expenditures and accordingly shall b deposited in the Restoration Account. Upon completion o restoration of the Carousel, any balance of such m neys shall be transferred to the Endowment Account. (b) M'nnesota Landmarks hereby commits to exercise its best e forts to assist OFC in raisinq funds for the Carousel. (c) O C, with the assistance of Minnesota Landmarks, shall e deavor to raise $350,000 in donated funds within 3 y ars, and 50$ of that amount (i.e. , $175, 000) within the f'rst year. These amounts are in addition to the amounts t be raised by OFC pursuant to subsection (a) , above. (d) F r the purposes of this Section, Minnesota Landmarks and O C shall periodically submit to the City a written plan d scribinq the amounts of funds projected to be raised s� � �'� �3/ r the Carousel, the purposes to which such funds shall - applied, and the actions to be taken by OFC and innesota Landmarks (in conjunction with others, as propriate) to raise such funds. Each written fund aising plan shall be submitted to the City (i) within sixty days after the date of execution of this Agreement, d (ii) no later than 30 days preceding the date on ich OFC is required to submit to the City each annual dget for operation of the Carousel pursuant to Section 4.03 hereof. (e) 11 moneys raised by Minnesota Landmarks and OFC pursuant o this Section for the Carousel shall be deposited in - he Restoration Account, if Restricted Funds, and all ther moneys raised by OFC or Minnesota Landmarks for the arousel shall be deposited: (i) if received prior to commencement of operation of the Carousel, in the Restoration Account or the Endowment Account, as determined by OFC and the City; and ii) if received after commencement of operation of the Carousel, in the Operating Reserve Account and Operatinq Account, in that order, until such Accounts have been funded to the level required by Section 4 of this Aqreement, and thereafter (other than Restricted Funds required to be deposited in the Restoration Account) in the Endowment Account. (f) n addition to fund raising, Minnesota Landmarks shall ssist OFC by: i) providing management consulting assistance; ii) providinq assistance to OFC in the preparation of the budgets required by this Aqreement; and ( ii) providing assistance in soliciting and managinq volunteers to staff and operate the Carousel and ancillary facilities. Secti n 3.06. Su�plus Donations. In the event OFC and Minnesota ndmarks raise more money from donations than is needed to (i) pro ide for all expenses of acquisition, installation and restoratio of the Carousel, plus (ii) fund the Operating Account, Operatinq eserve Account and Repair and Replacement Account as provided i Section 3.03, plus (iii) tund the Endowment Account as provided i Section 4.08(b) , then all such surplus funds shall be 592 8 � `��/ returned to OFC if OFC is then a Minnesota non-profit corporation - and an or anization qualified under Section 501(c) (3) of the Internal Re enue Code; and otherwise such surplus donations shall be treated s surplus revenues under Section 4 . 02 hereof. ARTICLE 4. Accounts: Financial Administration. Sectio 4.01 General. All Accounts created by this Agreement, and all books and records relating to the Accounts, shall be s ject to supervision and audit by the City's Department of Finance nd M�anagement Services. The Department of Finance and Manaqement Services will annually audit the Revenues, and the- disburseme s from all Accounts. OFC shall have the authority to disburse neys from the Operating Account and Repair and Maintenance Account, as further provided in this Article 4. Disburseme s shall not be made from any other Account except by action of t e City's Department of Finance and Management Services with the ap roval of the City's Department of Parks and Recreation. All the Ac ounts shall be administered by the City in accordance with the st ndards and practices customarily employed by the City, and in any event in accordance with the standards and practices customaril applicable to municipal funds. Secti n 4.02 Receict and Deposit of Revenues. All Revenues shall upon receipt be deposited in the Operatinq Reserve Account. Monthly, o on such other periodic basis as may be mutually ageeable t the City and OFC, the following amounts shall be transferre from (or retained in) the Operating Reserve Account: (a) o the Operating Account, an amount equal to the next onths' Operating Expenses (accordinq to the budget then in effect) ; (b) or retention in the Operating Reserve Account, an amount qual to 2 months� maximwn Operating Expenses (according o the budget for the current year) ; provided that if ransfers are made less frequently than every 2 months, e retained amount shall be as aqreed to by OFC and the ity; (c) o the Repair and Maintenance Account an amount equal to e next months' budqeted Repair and Maintenance xpenditures, plus, if available, an amount equal to any eqative difference between the Repair and Maintenance equirement and the amount then on deposit in the Repair nd Maintenance Account; 592 9 9� - 3.�� (d) o _ the City, until the City has been fully reimbursed or: i) any moneys provided by the City to install the Carousel in Seventh Place Park, over and above the moneys provided by BCED for that purpose pursuant to Section 5.02 hereof; and ii) any moneys provided by the City to pay Operating Expenses because Revenues were not sufficient for that purpose; (e) o the Restoration Account, in an amount, if available, qual to the difference between the Restoration equirement and the amount then on deposit thereon; rovided that, for this purpose, moneys pledged to pay estoration Expenditures shall be considered held in the estoration Account even through not actually received; (f) o the Endowment Account, until the amount held therein s equal to the amounts required by Section 4 .08 (b) ereof; and (g) o the accounts or payees as provided in ection 4. 10 hereof. Secti n 4 .03 Operatina Budaet; Payment of Operatinq Expenses. On the first day of the month preceding commencement of operation f the Carousel, and not less than 60 days prior to the first day f each calendar year thereafter, OFC shall prepare and submit to he City a proposed annual budqet for the Carousel. The budget sha 1 contain at least the following information: (a) he projected Revenues to be derived from the operation f the Carousel and any ancillary facilities durinq the pplicable calendar year; (b) he amount of Operating Expenses expected to be incurred n connection with the operation of the Carousel and any ncillary facilities during each month of the applicable alendar year; (c) he amount of Repair and Maintenance Expenditures to be ade during each month of the applicable calendar year; (d) he Restoration Requirement (the amount required to omplete restoration of the Carousel, after taking ccount prior Restoration Expenditures) , the amount then eld in the Restoration Account, the amounts expected to 592 10 �'� ��l � e deposited therein during the applicable calendar year rom donations, and the Restoration Expenditures rojected to be made during the applicable calendar year; nd (e) he balances to be held in each Account at the beginning nd end of the applicable calendar year. The propos d budqet shall be submitted to the City for review and approval. No later than 30 days prior to the first day of each calendar y ar (but in any event no later than 30 days after submission f the proposed budqet) the City shall make such changes in the prop sed budget as it shall deem advisable and shall provide to OFC the final budget for the ensuing calendar year. Secti n 4.04 Operatinq Account. The Operating Account shall be held in a bank or financial institution mutually acceptable to OFC and th City. The Operating Account may be combined with the Repair and Maintenance Account, at the option of the City. OFC shall pay, when due, all Operating Expenses from the Operating Account. OFC shall not disburse from the Operating Account, without th prior written consent of the City, in any month, an amount gre ter than the sum of (a) the amount of Operating Expenses projected n the budget for that month plus (b) any additional amount tra sferred to the Operating Account pursuant to Section 4. 09. In the event that the amount available in the Operating Account is not sufficient to pay the current months' Operating Expenses w en due, OFC shall notify the City's Department of Parks and Recrea ion of that fact in writing, and shall request that an amount equ 1 to the projected deficiency be transferred from the Operating eserve Account to the Operating Account. Secti n 4.05 Operating Reserve Account. The Operating Reserve A count shall be maintained in a bank or financial institutio , or in investments, as directed by the City. Not less � than one lf of the amount held at any time in the Operating Reserve Ac ount shall be held in demand deposits or other similar liquid inv stments so as to be available at any time. The balance of moneys eld in the Operatinq Reserve Account shall be invested in demand eposits, money market accounts or in investments which mature in 0 days or less. The balance of funds retained in the Operating eserve Account after the transfers described in Section 4.02 shall be equal to not less than 2 months maximum Operating Expenses f r the current calendar year accordinq to the current budget. U on notification to the City from OFC of a deficiency in the Operat nq Account, the City shall transfer from the Operating Reserve Ac ount to the Operating Account an amount equal to the deficiency 592 11 �'d '�c�J Secti n 4 .06 Reoair and Maintenance Account. (a) he Repair and Maintenance Account shall be held in a ank or financial institution, or in investments, as irected by the City. The Repair and Maintenance Account ay be combined with the Operating Account, at the option f the City. The amounts in the Repair and Maintenance ccount shall be invested in such a manner as to become vailable at such times and in such amounts as may be ecessary to pay Repair and Maintenance Expenditures. isbursements from this Account shall be made by OFC to ay budgeted Repair and Maintenance Expenditures, when - ue. (b) oneys in the Repair and Maintenance Account shall be isbursed to pay Repair and Maintenance Expenditures ccordinq to the current year budget, provided that dditional amounts may be disbursed to the extent ecessary to make emergency repairs to keep the Carousel perating. OFC shall not make any disbursement from the epair and Maintenance Account in an amount in excess of he cumulative Repair and Maintenance Expenditures udgeted for the current year through the date of the isbursement, except for the purpose of emergency epairs. Secti n 4.07 Restoration Account. (a) he Restoration Account shall be held in a bank or financial institution, or in investments, as directed by he City. The amounts in the Restoration Account shall e invested in such a manner as to become available at such times and in such amounts as may be necessary to pay estoration Expenditures. Disbursements from this ccount shall be made only with the approval of the City. (b) Prior to commencement of operation of the Carousel, amounts in the Restoration Account shall be disbursed to repair and restore the Carousel, to install the Carousel and aucillary facilities in Seventh Place Park, to pay other expenses to be incurred prior to commencement of operation of the Carousel, and otherwise to pay Restoration Expenditures, all according to the pre- operation budqet prepared by OFC. After commencement of operations of the Carousel, moneys in the Restoration Account shall be disbursed to pay Restoration Expenditures accordinq to the budget prepared by OFC and approved by the City. 592 12 ��-�.�i (c) ounts in the Restoration Account shall be disbursed to ay when due Restoration Expenditures upon submission by FC to the City of invoices, statements of account or ther evidence satisfactory to the City of the purpose nd amount of the Restoration Expenditure. The City hall not be obligated to approve any disbursement from he Restoration Account in an amount in excess of the umulative Restoration Expenditures stated in the annual estoration budget approved by the City. (d) ounts in the Restoration Account which are Restricted unds shall not be disbursed from the Restoration Account xcept (i) to pay the costs of restoration of the arousel, or (ii) to return such moneys to the donors hereof, in whole or part, if the City determines that estoration shall not be completed or (iii) to transfer uch moneys to the Endowment Account upon completion of estoration of the Carousel, or (iv) to transfer such oneys to OFC as provided in section 3 . 06 hereof. estricted Funds in the Restoration Account shall be isbursed for Restoration Expenditures before other oneys then held in such Account are used for that urpose. If at any time the amount held in the estoration Account exceeds the Restoration Requirement, he excess shall be transferred to the Endowment Account, xcept as provided in Section 3 . 06. Secti n 4.08 Endowment Account. (a) he Endowment Account shall be held in a bank or inancial institution, or in investments, as directed by he City. Amounts may be disbursed from the Endowment ccount only upon the direction of the City, and for a urpose authorized by the City. The Endowment Account hall have two subaccounts: the HRA Subaccount and the ark Restoration Subaccount. The City shall maintain ooks and records which show the amounts held from time o time in each subaccount, separately, but the moneys eld in each subaccount may be commingled for purposes f investments. (b) onations shall be deposited in the Endowment Account, nd moneys shall be transferred from the Operating eserve Account to the Endowment Account, until the qgreqate amount on deposit therein is equal to the sum f (i) the amount necessary, with future earnings hereon, to permit transfer to the HRA of $350,000 on arch 1, 2000, plus (fi) the Park Restoration Requirement (as adjusted from time to time) . Amounts deposited in s9i 13 � -�� , e Endowment Account shall be deposited (1) _ first, in _ e HRA Subaccount, until the amount therein, with future arnings thereon, will equal $350, 000 on March 1, 2000, (ii) second, in the HRA Subaccount to the extent required o repay the Guarantor for the purchase price of any ecurity deposited in the HRA Subaccount, and interest n such purchase price, as provided in subsection (e) elow, and (iii) third, in the Park Restoration ubaccount, until the amount on deposit therein equals he Park Restoration Requirement. (c) n the event OFC deposits with the City a United States reasury security or other instrument, such security hall be deposited in the HRA Subaccount. In such event, he HRA shall release the Guarantor from liability on ccount of the Guaranty to the extent of the value of uch security on March 1, 2000. On March l, 2000, or on ny earlier or later date mutually agreed to by OFC, the , the Guarantor, and the City, the moneys then held 'n the HRA Subaccount (including the security described bove, or the proceeds thereof) , shall be transferred rom the HRA Subaccount to the HRA. The City and HRA hall have the absolute right to transfer all moneys then eld in the HRA Subaccount (including said security or he proceeds thereof) from the HRA Subaccount to the HRA arlier than March 1, 2000 if the HRA at that time agrees hat such transfer satisfies the requirement under this greement for a transfer of $350,000 on March 1, 2000 nd simultaneously releases the Guarantor from any urther liability on account of the Guaranty; except that his sentence shall not apply to a transfer from the HRA ubaccount arising from a default by OFC or a removal of he Carousel from Seventh Place Park. (d) t is the intent of the parties that no less than 350,000 shall be available for transfer to the HRA on arch l, 2000. Accordingly, the parties intend that mounts should be deposited in the HRA Subaccount from ime to time such that the total of such amounts, plus ccumulated earnings thereon, shall equal or exceed 350,000 on March 1, 2000. Therefore, amounts shall be eposited in the HRA Subaccount in the Endowment Account rom the following sources: i) moneys (except Restricted Funds required to be deposited in the Restoration Account) raised by Minnesota Landmarks and OFC pursuant to Section 3.05 in excess of the amounts required for the Restoration Requirement and to fund the Operatinq 592 14 �d -3�/ � Account, Operating Reserve Account and Repair and Maintenance Account prior to commencement of operation of the Carousel; ii) moneys raised by OFC pursuant to Section 3 . 06 or otherwise on deposit in the Restoration Account in excess of the Restoration Requirement or remaining after completion of restoration of the Carousel; ( ii) Revenues derived from operation of the Carousel deposited in the Endowment Account pursuant to Section 4.02 (d) ; and - iv) any Treasury security or other instrument provided by the Guarantor (or by OFC from funds provided by the Guarantor) specifically for the purpose of funding the HRA Subaccount. n the event the amount held in the HRA Subaccount on arch 1, 2000 in less than $350,000, the City shall onetheless transfer to the HRA the full amount then held 'n the I�iRA Subaccount. The HRA shall then be entitled o seek recovery of the unpaid balance of the $350, 000 rom the Guarantor, and for that purpose to enforce the uaranty. (e) n the event there is deposited in the HRA Subaccount a reasury security or other instrument provided by or on ehalf of the Guarantor, the Guarantor shall be repaid he purchase price thereof, plus interest thereon at the 'nterest rate per annum or yield to maturity borne by uch security. The sole and exclusive source of epayment shall be moneys deposited in the HRA Subaccount ursuant to this Agreement, and neither the City nor the shall have any liability to the Guarantor for payment from any other source. The City and HRA shall have no iability to the Guarantor except to transfer moneys from he FiRA Subaccount in excess of amounts therein which, ith earnings thereon, will equal $350,000 on March 1, 2000. Amounts paid to the Guarantor shall be applied first to accrued interest and then to reduce the principal balance (the purchase price less amounts previously paid on account thereof) ; provided that under no circumstances shall the City transfer the security itself or any proceeds thereof to the Guarantor. (f) Moneys shall be deposited in the Park Restoration Subaccount until the amount held therein is equal to the Park Restoration Requirement, as such Requirement may be S92 15 ��/ djusted from time to time. Moneys held in the Park estoration Subaccount shall be applied to payment of the osts and expenses of restoration of the Seventh Place ark after removal therefrom of the Carousel (after akinq account of moneys available for that purpose from ther sources) ; provided that moneys in the Park estoration Subaccount may, at the sole discretion of the ity, be used at any time for any purpose of this qreement or the Operating Agreement. (g) n the event OFC exercises its right of first refusal nder Article 6 prior to March 1, 2000, any money or - ecurities then held for the credit of the HRA Subaccount hall be immediately transferred to the HRA in an amount qual to the future value of $350,000 (i.e. all cash plus ny securities future valued at the interest rate or ield to maturity stated therein) , and any balance of oneys in the HRA Subaccount shall be disbursed to the uarantor in full satisfaction of any liability to the uarantor created by this Agreement. In the event the mount transferred to the HRA is less than the future alue of $350, 000 on March 1, 2000, the HRA shall be ntitled to recover the deficiency from the Guarantor on arch 1, 2000 and for that purpose to enforce the uaranty. All other amounts, whether held in the Park estoration Subaccount or in any other Account, shall ecome the absolute property of the City, to be used to efray the expenses of restoration of Seventh Place Park, r for any other municipal purpose. Secti n 4.09 Deficiencies in Accounts. (a) eficiencies in the Operating Account (a negative ifference between the amount of Operating Expenses then ue, and the amount available in the Operating Account) hall be cured from transfers from the following ccounts, in the following order: (1) The Operating Reserve Account; (2) The Endowment Account (except any security held in the HRA Subaccount and deposited therein by or on behalf of the Guarantor) ; (3) The Restoration Account (except Restricted Funds) ; and (4) The Repair and Maintenance Account. 592 16 ��-�� , T e City shall be under no obligation to fund d ficiencies in the Operating Account other than from a ounts available in other Accounts, in the order listed ove. (b) eficiencies in the Restoration Account, may, at the ption of the City, be cured by a transfer from the ndowment Account. The City shall be under no obligation o approve such a transfer. Secti n 4. 10. Surnlus Revenues. Any moneys remaining in the Operating eserve Account after the transfers provided for in - Section 4. 0 , shall be disbursed from the Operating Reserve Account first, to eimburse OFC for any rental amounts then being paid by OFC to th City pursuant to Section V.E. of the Operating Agreement, and second, as follows: (a) ifty percent (50$) to the City; and (b) ifty percent (50$) to OFC. Secti n 4 . 11. Park Restoration Extienses. In the event, for any reason the Carousel is removed from Seventh Place Park, the amount re ired to restore Seventh Place Park to a condition suitable f r use as a public park shall be paid by: (a) CED, if the Carousel is removed at the request of BCED nd as otherwise provided in Section 3 .3 of the Operating greement; and otherwise; (b) rom amounts available in the Park Restoration ubaccount, -�nd the balance, if any, from amounts vailable from other sources. ARTICLE 5. BCED Commitment. Secti n 5.01 Seventh Place Park Improvements. BCED hereby aqrees to contract for or make the physical and structural improvemen s to Seventh Place Park necessary to accommodate the installati n of the Carousel in Seventh Place Park. Such improvemen s shall be of a nature mutually agreed to by BCED, OFC and the Ci y and shall be adequate for the purpose of operation of the Carous 1 and any necessary or desirable ancillary facilities such as a icket booth and a space for the retail sale of gifts, memorabili and other items related to the Carousel. The exact nature of the improvements, and schedule for completion of the improvemen s, shall be as provided for in the Operating Agreement. S92 17 �o- 3.� � Secti n 5.02 Source of Funds. BCED hereby commits to expend an amount s fficient for the purpose of making the improvements in Seventh P1 ce Park for the purposes of the Carousel. A portion of said sum s all be provided through the application of the sum of $168, 000, ich represents amounts which have been held in reserve to make ca ital improvements in Seventh Place Park. The balance of funds s all be provided by BCED from its own funds. Secti n 5.03 Contracts. All contracts for the improvements in Seventh Place Park shall be entered into between BCED and a contractor r contractors selected by BCED with the approval of the City. The form of such contracts shall be submitted to the City for approv 1 prior to their execution by BCED. Secti n 5.04 Restoration of Park. In the event the Carousel is removed from Seventh Place Park, BCED will cooperate with the City to pla and complete restoration of Seventh Place Park to such condition s the City and BCED shall agree to be desirable. BCED shall bear the costs thereof to the extent and as required by this Agreement nd the Operating Agreement. ARTICLE 6. Riaht of First Refusal ; Disposition. Secti n 6.01 Purpose. The other parties hereto acknowledge that the ity shall have the right, at any time, and at its discretion except only as provided in the Operating Agreement, to direct tha the Carousel cease operation in Seventh Place Park. The City a d HRA acknowledge, however, that donations have been made for t e Carousel on the condition that it be made available and operat d for the public benefit, and that the Carousel should not be ret rned to private ownership to be used or sold for private profit-mak ng purposes if that result can be avoided. Secti n 6.02 Riaht of First Refusal. If at any time the Carousel i no longer being operated in the Seventh Place Park, and unless the City determines that the Carousel shall be removed from the Sevent Place Park and installed in another public place in the City, the ity shall not sell, transfer, convey or dispose of the Carousel u til and unless: i) The City has provided written notice to OFC that he City will dispose of the Carousel, which notice will e provided not less than 90 days in advance of any dispo ition action to be taken by the City; and ii) OFC has failed or refused to purchase the Carou el from the City within 90 days following the givin of such notice. � svt 18 ��/ Upon such a notice from the City, OFC shall have the right of first refusal to purchase the Carousel for a price of $1.00 plus the costs of re oval of the Carousel from its then location, plus the amount, if ny, required to be paid by OFC to restore Seventh Place Park. It s all further be a condition to OFC's right to purchase the Carousel that (a) O C shall have available to it moneys sufficient to pay t e costs of removal of the Carousel from its current 1 cation and provides evidence reasonably satisfactory the City of the availability of those moneys; and (b) if the Carousel ceases operation and is to be removed rom Seventh Place Park other than at the request of ED, OFC agrees in writing to reimburse the City for up o $250,000 of the costs of restoring Seventh Place Park. Secti n 6.03 Time Limits. OFC shall have 90 days from the date of r ceipt by OFC of the written notice from the City described bove in which to exercise its right to purchase the Carousel. 0 C's right to purchase the Carousel shall expire on the 90th day f llowing the date of receipt by OFC of such written notice, un ess OFC on or before that date pays the purchase price of the Car usel to the City, and satisfies the conditions stated in clauses (a) and (b) above; provided that OFC shall only be required t pay the amount required by clause (b) above at the times and 'n the amounts provided for in the writing referred to therein, a d execution of such writing by OFC and the City shall be deemed 'payment" of the relevant amount for the purposes of Section 6. 4. If OFC fails or refuses to satisfy the foregoing conditions OFC shall have no further rights, title or interest in or to the Carousel, and it shall be the absolute right and privilege f the City to dispose of the Carousel in any manner it deems appr priate. Secti n 6.04 Transfer of Title. Upon payment of the purchase p ice by OFC, the City shall execute and deliver such instrument as OFC shall direct to effectuate transfer of all right, tit e, and interest in and to the Carousel to OFC. Nothinq in the Agr ement, however, shall be construed to require the City to allow OF to install or operate the Carousel in or on any public property wi hin the City following purchase of the Carousel by OFC. OFC shall ave a reasonable time following purchase to remove the Carousel f om Seventh Place Park, at OFC's sole expense. Secti n 6.05 Proceeds of Disposition. In the event OFC fails or r fuses to exercise its right of first refusal, and the City sells or otherwise disposes of the Carousel, the proceeds of such sale r disposition shall be applied, in order, to: 592 19 - �'0-3�� (a) imburse to the City its costs and expenses incurred in e process of disposition or sale of the Carousel; and (b) ay the expenses of restoration of Seventh Place Park ( ut only the portion thereof for which the City or OFC ay be liable) after taking account of amounts available 'n the Park Restoration Subaccount; (c) eimburse the City for any theretofore unreimbursed ounts of the kind described in Section 4 .02 (d) ; (d) ransfer to the HRA the difference between $350, 000 and he amount available in the HRA Subaccount, or, in the lternative, to pay to the Guarantor the difference etween the amounts previously paid from the HRA ubaccount, and the full amount owed to the Guarantor; (e) eturn to the donors thereof, pro rata as nearly as ossible, moneys donated to OFC, Minnesota Landmarks or he City for the purposes of acquisition, installation nd restoration of the Carousel. ARTICLE 7. Representations and Warranties. Secti n 7.01 Each of the parties hereto hereby represents to each of the other parties hereto that it has duly authorized the execut on and delivery of this Agreement by proper corporate or public ction, that execution and delivery of this Agreement is authorized by law, that execution and delivery of this Agreement and consu ation of the transactions contemplated hereby, does not and will ot violate the terms of its charter, by-laws or organizing law or of any indenture, aqreement, contract, statute, regulation ruling, decision or order applicable to such party, or by whic such party or its properties are bound. Secti n 7.02 Each of the parties hereto hereby represents to each of the other parties that it is under no legal disability or restric ion which would prevent or inhibit the ability of such party to f lly perform its obligations under this Aqreement. ARTICLE 8. General. Secti n 8.01 This Aqreement shall be construed in accordance with the 1 ws of the State of Minnesota. Secti n 8.02 This Aqreement may be executed in several counterpa s, each of which shall be considered an oriqinal document. 592 20 �'� -,3�/ Sectio 8.03 This Agreement shall not be amended or modified except by a writing executed by each of the parties hereto, except that OFC's consent to or execution of an amendment to or modificatio of this Agreement shall not be required if the Operating A reement has expired or has been terminated; provided that OFC's consent to and execution of an amendment to or modificatio of Article 6 hereof shall be required for so long as OFC continu s to exist as a non-profit corporation under the laws of the Stat of Minnesota. Sectio 8.04 At all times during the term of this Agreement: (a) t e Mayor of the City shall have the right to appoint t ree persons to serve as members of the Board of D'rectors of OFC, and OFC agrees that at least one of s ch City-appointed directors shall be a member of the e ecutive committee (or similar committee) of the Board o Directors of OFC; and (b) innesota Landmarks shall have the right to appoint two p rsons to serve as members of the Board of Directors of O C. Secti 8.05 If any provision of the Agreement shall be found or d termined to be unenforceable or aqainst public policy by a court of competent jurisdiction, such provision shall be severed fr m the remainder of this Agreement, and all other provisions f this Agreement shall continue to be in full force and effect. Secti n 8.06 For the purposes of this Agreement, all matters requiring onsent, approval or supervision of operational matters relating t the Carousel shall be the responsibility of the City's Department of Parks and Recreation. All matters requiring the consent, a roval or supervision of financial matters relatinq the Carousel, i cludinq without limitation disbursement and investment of moneys, hall be the responsibility of the City's Department of Finance an Manaqement Services (with the consent of, or at the direction f, the City�s Department of Parks and Recreation, if required b this Aqreement) . Secti n 8.07 Al1 notices and other writings required by this Agreement hall be delivered by United States mail, postaqe prepaid, o hand-delivered, to the notice address listed below for each party The notice addresses listed below may be chanqed by any party y a notice delivered to the other parties hereto. 592 � 21 Qo��i � (a) o the City's Department of Parks and Recreation City of St. Paul Department of Parks and Recreation City Hall Annex - 2nd Floor 25 West Fourth Street St. Paul, Minnesota 55102 Attention: Director (b) o the City's Department of Finance and Management ervices: - City of St. Paul Department of Finance and Management Services 219 City Hall 15 West Kellogg Boulevard St. Paul, Minnesota 55102 Attention: City Treasurer c) To OFC: d) To Minnesota Landmarks: e) To BCED: s9t 22 � � � l�- %' f ✓.� f) to the Guarantor: g) To the HRA: Housing and Redevelopment Authority of the City of St. Paul, Minnesota c/o Department of Planninq and Economic Development City Hall Annex - 13th Floor 25 West Fourth Street St. Paul, Minnesota 55102 Attention: Deputy Director - Downtown and River Front Development Secti n 8.08 The term of this Agreement shall be concurrent with the erm of the Operating Agreement, as the tena of the Operating greement may be amended, reviewed or modified from time to time; ovided that this Agreement shall continue in effect (a) with respe t to the obligation to pay $350,000 to the HRA on March l, 2000, ntil such amount is fully paid, (b) with respect to Article 6, for so lonq as OFC remains a non-profit corporation under the aws of the State of Minnesota, and (c) with respect to the Accou ts created hereby, for so long as the Carousel is operated b OFC or by a person other than the City or HRA. 592 23 G1� '�;�� _ _ CITY _OF SAINT PAUL, MINNESOTA By Its Mayor By Its Director of Finance and Management Services By - Its Director of Community Services HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF SAINT PAUL, MINNESOTA By Its Acting Executive Director Approved a to fona for the HRA an the City Assistant ity Attorney S92 24 - �� - �3�1 ` OUR FAIR CAROUSEL, INCORPORATED By Its President s� 25 �a��i MINNESOTA LANDMARKS, INC. By Its 592 . 26 90 -.�� BCED, MINNESOTA, INC. By Its 592 27 , �'0-3� �, � � PERSONAL GUARANTY � In order to induce the Housing and Redevelopment Authority of the City of Saint Paul, Minnesota (the "HRA") to advance Thre Hundred Fifty Thousand Dollars ($350, 000) for the purpose of a quiring and restoring a carousel (the "Carousel") to be installed in the Loft Area of the Seventh Place Public Parcel (the "Park") , the undersigned (the "Guarantor") hereby unconditiona ly guarantees payment to the HRA of an amount up to $350, 000 as rovided herein. Our Fai Carousel, Inc. ("OFC") , the HRA, the City of St. Paul, Minnes ta (the "City") , BCED Minnesota, Inc. ("BCED") and Minnesota La dmarks, Inc. ("Minnesota Landmarks") have entered into that ce tain Carousel Funding Agreement dated as of February 28, 1990 (th "Funding Agreement") providing for certain financial ma ters relating to the Carousel, and the City, BCED, OFC and Minn sota Landmarks have entered into that certain Carousel Ins allation, Permit and Operations Agreement dated as February 28, 1990 (the "Operating Agreement") providing for certain oper tional and permit matters relating to the Carousel. The undersig ed (the "Guarantor") hereby represents that he has reviewed and approved the terms of the Funding Agreement and the Operating Ag eement. Terms c pitalized but not otherwise defined herein shall have the mea ings assigned to such terms in the Funding Agreement and the Oper ting Agreement. The Gua antor hereby guarantees payment to the HRA on March 1, 200 of the sum of $350, 000; provided that the Guarantor shall be rel ased from liability hereunder: (a to the extent of moneys held in the HRA Subaccount on Marc 1, 2000; (b to the extent a Treasury security or other instrum nt is deposited in the HRA Subaccount as provided in Section 4 .08 (c) of the Funding Agreement, but only to the extent f the value thereof on March 1, 2000; (c to the extent moneys are transferred to the HRA from th HRA Subaccount upon exercise by OFC of its right of first r fusal pursuant to Article 6 of the Funding Agreeme t; and 591 , �� 33/ � (d to the extent the City transfers amounts in the HRA Sub ccount to the HRA as provided in Section 4 . 08 (c) of � the Fun ing Agreement. The Guaranto agrees that if OFC exercises its right of first refusal unde Article 6 of the Funding Agreement, the HRA may require the uarantor to provide and pledge collateral to secure the obligati ns of the Guarantor hereunder; which collateral, and the form of ledge thereof, must be reasonably satisfactory to the HRA and its counsel. N notice of any renewal, compromise or extension of any obliqat'on of any of the parties thereto under the Operating Agreement o Fundinq Agreement (collectively, the "Obligations") or of any m dification in the terms of the same need to be given to the unde signed, who hereby consent to each of such acts. The undersigned hereby expressly waives presentment, demand, notice of nonpayme t, protest and notice of protest on the Obligations and also ac eptance of this Personal Guaranty. T e HRA is expressly authorized to forward or deliver any or all ollateral and security which may at any time be placed with it pursuant to the Operating Agreement or Funding Agreement o by the undersigned, or by any other person, directly to any pers n for collection and remittance or for credit, or to collect the same in any other manner and to renew, extend, com- promise, ex hange, release, surrender, or modify the terms of any or all of s ch collateral and security with or without considerati n and without notice to any of the undersigned and without in ny manner affecting the absolute liability of any of the undersi ned hereunder. The liability of the undersigned hereunder s all not be affected or impaired by any failure, neglect or mission on the part of the HRA or City to realize upon any ot er collateral or security for the Obligations, nor by the taking y the HRA or City of any other guaranty or guaranties to secure t e Obligations, nor by the taking by the HRA or City of collater 1 or security of any kind for the Obliqations, nor by any act or ailure to act whatsoever (except payment) which but for this pr vision might or could in law or in equity act to release or educe the undersigned�s liabilities hereunder. T e undersigned acknowledqes that this Personal Guaranty is in effect and binding as to him without reference to whether it s signed by any other person or persons and agrees that posses ion of this instrument of quaranty by the HRA shall be conclusi e evidence of due delivery hereof by him, and further agrees that as to him it shall continue in full force and effect notwithstan inq the death or release of any other guarantors. So long as ny portion of the $350,000 to be paid to the HRA is 591 2 � �1t�-�/ . , owed to the RA, the undersigned shall not, without the HRA' s „ consent, col ect from OFC or any other party to the Funding Agreement or Operating Agreement the claim, if any (by subrogation r otherwise) , acquired through payment by the undersigned f all or any portion of the $350, 000 required to be paid to the RA. The undersigned hereby agrees that neither the City nor the FiRA shall be or become liable to the undersigned for any amount u der any circumstances except failure to apply moneys in accordanc with the Funding Agreement. Th liability of the undersigned shall not be affected _ or impaired y the existence from time to time of any indebtedness from OFC to the City or the HRA in addition to the $350,000 re ired to be paid to the HRA. So long as all or any portion of the $350,000 required to be paid t the HRA is outstanding, the undersigned agrees to provide to t e HRA and cause OFC to provide to the HRA such financial in ormation or statements concerning the undersigned or the OFC, inc uding but not limited to financial statements, as , the HRA may easonable request. Th's guaranty shall be construed according to the laws of the State of Minnesota in which state it shall be performed by the undersig ed. Da ed this 28th day of February, 1990. as Guarantor 591 3 �o -�.�i . STATE OF MIN ESOTA ) . ) ss COUNTY OF ) Th foregoing instrument was acknowledged before me this da of , 1990, by Notary Public 591 4 Council File � �v�� a�� Green Sheet � �� a� '�7-$� RESOLUTION CITY OF SAINT PAUL, MINNESOTA Presented By . Referred To Committee: Date WHEREAS, On December 28, 1989, the Housing and Redevelopment Authority of the City of Sai t Paul "HRA" adopted HRA Resolution 89-12/28-1 authorizing staff to enter into egotiations on funding and operating agreements with Minnesota Landmarks, ur Fair Carousel Incorporated "OFC", and BCE Development to assure that the c rousel is adequately funded, managed and maintained in Town Square Park, and WHEREAS, s ch agreement negotiations have succeeded to provide such assurance, � and WHEREAS, 0 C, Minnesota Landmarks, and BCE Development seek �350,000 funding commitment from the HRA Development Fund, which has guaranteed repayment in ten years, to und the acquisition of the carousel so that it can be operated in Town Squar Park, and WHEREAS, t e HRA Board may approve the funding commitment on Tuesday, February 27, 1990, nd WHEREAS, i the funding is approved, OFC will turn title to the carousel over to the City o Saint Paul , and WHEREAS, t e City will need an operator for the carousel , and WHEREAS, C with the assistance of Minnesota Landmarks and cooperation of BCE Developmen Corporation, has the capability to operate the carousel . NOW, THER FORE BE IT RESOLVED THAT the proper City officials shall be authorized to enter into an Operating Agreement with OFC, Minnesota Landmarks, and BCE Developme t Corporation and that staff shall prepare and execute all such documents necessary to complete this task. Subject to the Carousel Funding Agreement being approved at the HRA meeting today, February 27, 1990. . Yeas Navs Absent Requested by Department of: OMMUNITY VICES P KS & RECREATION: e u � y: Adopted by Coun il: Date �'a� App oved by City A orney Adoption Certit ed by Council Secretary gY: � BY' Appr ed by Mayor for Submission to Approvod by Ma r: Date � Cou il . sy, gy; �� 3� < DiPARTMENT/�FICE/COUNpI DAT.51NIT1ATE� _ ., . ; COMMUNITY SERVICES 2-26-90 GREEN SHEET NO. - - I�NTACT PERSON a PHONE �pEpARTMENT DIRECTOR INITIALI DATE ❑��Npl INITIAUDATE Vi C Wi tt enstei n 2 2-7409 - �� ❑cm�rroaw�r . �CITY CLERK MUBT BE ON COUNdI AC�ENDA BY(DA ROUTMKi �BUDOET DIRECTOR �FlN.6 MOT.SERVICES OIR. 2-27-90 ❑wu►roA coR�ssisr�rm ❑ TOTAL N OF SiGNATURE PAO S 4 (CIIP ALL LOCATION8 FOR SIGNATURE� ACTION REOUESTED: � Signatures of City fficials as indicated on signature pages. aEOa��,w►noNS:�.w« � oou�coM �PO�rr o�o�u. ANALYST PHONE NO. _PLANNINO COAAMISSION _GVIL SERVICE COMMIS810N _CI8 OOAAMfI'TEE - OOMAAE!(TS: A sr„� _o�sTwcr couRr — su�rs ww�c►+oou�oe,� wmnnnca�noe�.�. M�.wn.�.wn.n.wn.r..wMk The City will beco e the owners of "State Fair Carousel" and will need a group to manage and operate the ca ousel . Our Fair Carousel has been the driving force behind "saving" the carousel and t ey have the ability to manage and operate the carousel with the assistance of Minn sota Landmarks Inc. and the cooperation and participation of BCE Development Corpor tion. ADVMITA(3E8 IF APPROVED: The carousel will e located in Town Square Park, the site will be prepared to receive the carousel and t e carousel will be operated for the enjoyment of the public. as�v�rrr�s��ovEO: Town Square Park w 11 be altered due to the carousel using the space at the east end of the park. orenovMrr�s�r+or�cvEC: The carousel will ot have a locatian at which to operate. e � ,� TOTAL AMOUNT OF : N/A co�r�suoc�o�anc�wrq �s No N/A �Res onsible - Res onsible �� 3 5 - S e ' �cn�irr Nu�n 23111 FlNANGAt.MIFORMI►T10N:(DfPWN) Funds generated b the carousel will be used to pay for operations, a two month operating reserve, restoration of the carousel horses, payback of the HRA financial contribution, and a restoration f n f �r�-3�l M NOTE: COMPL E DIRECTIONS ARE INCLUDED IN THE GREEN SHEET INSTRUCTIONAL ' MANUAL VAILABLE IN THE PURCHASING OFFICE(PHONE NO.298-4225). ROUTING ORDER: Below are preferred routings for the flve most frequent types of documeMS: CONTRACTS assumes authorized COUNCIL RESOLUTION (Amend, Bd�tts./ budget exists) Accept.Grants) 1. Outside Age 1. Department Director 2. Initiating meM 2. Budqet Director 3. City Attom�y 3. City Attomey 4. Mayor 4. MayodAssistant 5. Flnance d�Mg S1res.Director 5. Gty Council B. Flnance Ming 6. Chief AccountaM, Fln�M�mmt Svcs. ADMINISTRATIVE RDER (Budget - COUNCIL RE30LUTION (all others) Revision) and ORDINANCE 1. Activity Mana r 1. InkfaUng Department Director 2. DepartmeM ntant 2. Gty Attomey 3. DepartmeM rector 3. MayoNAs�taM 4. Budget Di 4. qty Coundl 5. Gty qerk 6. Chief Axou .Fln�M�r�t S1ros. ADMINISTRATIVE RDERS (all others) 1. Initiating Dep RmeM 2. City Attomey 3. MayodAasi 4. dry Gerk TOTAL NUMBER F SIGNATURE PA(3ES Indicate the M of on which signatures are required and paperclip each of these ACTION RE�UE Describe what the project/request aeeks to aa�mplish in either chronologi- ca!order or order importance,whichever is most eppropriate for the issue. Do not wrft complete sentences. Begin each Rem in your list with e verb. RECOMMENDATI NS Complete if the i e fn questbn has been presented before eny body, pubifc or private. SUPPORTS WHI COUNqL OBJECTIVE? Indicate whlch ncil objective(s)Y�P�'�`�re4��PP�bY�� the key word(s) OUSIN(i,RECREATION.NEK3HBORHOOD3.ECONOMIC DEVELOPMENT, BUDOET,S SEPARATION).(3EE OOMPLETE UST IN INSTRUG?IONAL MANUAL.) COUNCIL COM CH REPORT-OPTIONAL AS RE(�UESTED BY OOUNqL INITIATING PR LEM, ISSUE.OPPORILNITY Explain the sltu or oo�ior�s thet croeted a need/or your project or reqt�t. ADVANTA(3ES 1 APPRONED �ndk�ts whscner is sinply an annud a,dpsc proceduro►eyulrod b�r�aw� chartsr or thsn�re apee�flc w in wWch ths Cky of 3sint Paul and its cidzens benef�trom tl�is pr�/aclion. DISADVANTA(i IF APPROVED What nsgative or mejor changss to existfng or past pro�s rrd�ht �Prol�� P�uw if it is passed(e.�..tratiic delays, noiss. tax incroassa or )?To Whom?When?For how bnp? DISADVANTAG S IF NOT APPF�VED ., Whet wlll be the np�ve oo�rosqusncss�tl�s promissd action�not epprared?Inabi to delirer asrvk�s?C?o�tlnwd hiph trafllc,nofse, eccident rate? of rovenus? FlNANCIAL IMP GT Although you m taflor the inMrrt�artion you provide here to the iasue you are addrseaing, n general y�ou must answar two queatfons: How much la ft going to cost? is goir�to pey? CAROU EL INSTALLATION, PERMIT AND OPERATIONS AGREEMENT THIS AROUSEL AGREEMENT (hereinafter referred to as this "Agreement' ) made as of the day of February, 1990, by and among the ity of Saint Paul, a Minnesota municipal corporation (hereinaft r referred to as the "City") , BCED Minnesota, Inc. , a � Minnesota usiness corporation (hereinafter referred to as "BCED") , and Our air Carousel Incorporated, a Minnesota non-profit corporatio (hereinafter referred to as "OFC") , and Minnesota Landmarks Incorporated, a Minnesota non-profit corporation (hereinaft r referred to as "Minnesota Landmark") . WHERE S, the parties together with the Housing and Redevelopm nt Authority of the City of Saint Paul, Minnesota (hereinaft r referred to as the "HRA") entered into a Carousel Funding Ag eement dated February _, 1990, which Agreement sets out the terms and conditions of the financial arrangements for the acquisiti n, installation, restoration and operation of the Minnesota State Fair Carousel (the "Carousel") in the Loft Area of the Seven h Place Public Parcel (the "Town Square Park") ; and WHER AS, the City, OFC, Minnesota Landmark and BCED now wish to agree pon the terms and conditions of the arrangements for installat on and operation of the Carousel in Town Square Park. NOW HEREFORE, in consideration of the foregoing and the agreement , covenants and conditions herein contained, the parties hereto ag ee as follows: I. ermit. Pursuant to the provisions of Chapter 170, Saint Paul Legi lative Code, upon completion of the conditions of Article III hereo and upon submission of the Operating Plan provided for in Sectio V.B hereof acceptable to the City, the City shall grant to OFC a permit to install and operate the Carousel in the Loft Area of Town Square Park (the "Loft" or "Town Square Park") together ith a ticket booth and a concessions sales kiosk (as more specific lly identified in the drawing attached hereto as Exhibit A) . The term of this Permit shall commence November 1, 1990, for the term of one year renewable for ten successive years in accordan e with Section VII.B hereof unless earlier terminated for cause i accordance with this Agreement. The Penait shall be further onditioned upon the timely installation of the Carousel and Kios in accordance with this Agreement and their operation in 1 accordance with rules and regulations made by the Director, Department f Community Services from time to time. II. ite Pre aration. BCED agrees to prepare the site to install th Carousel and Kiosk in Town Square Park in accordance with plans, specifications, construction timetable and construction contract ( ereinafter referred to as the "Plans") to be prepared by BCED an to be approved by the City and OFC. The Construction Contract s all be acceptable in form to the City and shall include City stand rd conditions respecting insurance and indemnification, rules and egulations and guarantee of work. BCED shall prepare and submit for City consideration and approval detailed drawings and specif'cations of the architectural, structural, electrical and mechanical requirements of the Carousel and Kiosk operating in the Loft setti g. After City and OFC approval of these drawings, specificat ons, construction timetables and construction contract, BCED shall cause preparation of the final Plans to be commenced and completed ithin 15 days. Approval by the City and BCED of the Plans sha 1 constitute consent of each to installation, including • utility ho k-up of the Carousel and Kiosk as is required under the Limited W rranty Deed, Operating Agreement and Maintenance and Assessment Agreement Seventh Place Public Parcel between the City and BCED hereafter referred to respectively as the "Deed", the "Operating Agreement", the "Maintenance and Assessment Agreement" , or collec ively as the "Building Agreements") . Upon approval of the Plans BCED shall enter into a Construction Contract for preparing the Loft site for the Carousel and Kiosk. III. Conditions Precedent to Installation. Prior to grant of the pe it and installation of the Carousel and Kiosk in Town Square Pa k, the following conditions shall be met: A. BCED shall obtain from a qualified sound consultant acceptable to the City a sound analysis that the sound and vibration which will be caused by the operation of the Carousel in Town Square Park indicating noise levels within permissible range and the opinion of a structural engineering consultant acceptable to the City that the sound and vibration will not cause structural damage to the Town Square Park building. This study shall include effects of harmonic vibration caused by the carousel on the areas of Town Square Park building. B. BCED shall have submitted and the City and OFC shall have approved the Plans, Construction Contract, the general contractor, and the form and amount of the security for 2 R:.--•--.--,...,.�..�-:�.,,,s.,.,.._._...._,. , �_ . -. _...��;...-.�� - - .�,��._...__ __. .-- ,�__ .._ ,....,_..�;. .,. ,.,...,.......-,.. .. __ . . :.. _ _. _ :. _ . -n.�,.s...- . . .. . _ _ . . . . . . . e general contractors performance of the Carousel and iosk Site Preparation Contract. C. CED shall have completed in locations and in a manner cceptable to the City construction of restrooms, of a hower and changing facility, and of storage and aintenance areas to replace those to be removed from or endered unusable in the Loft area by the installation f the Carousel and Kiosk. The existing restroom, shower nd changing facility will remain in operation until ompletion of the new facilities except for a short eriod of time requested by the contractor and approved y the City. D. contractors public liability insurance policy in amount f $1, 000,000 personal injury or death, $500,000 roperty damage, $500,000 single occurrence coverage hall have been submitted by the general contractor aming the City, OFC and BCED as additional insureds. Unles foregoing conditions are met the City shall be under no obliga ion to issue the permit for installation and operation of the Car usel. IV. CED Obli ations. A. BCED agrees at its cost to provide the following: 1. Electrical and mechanical drawings in sufficient detail to permit the City to evaluate the impact of the installation of the Carousel and Kiosk on the functioning of the Loft. 2. A sound and vibration analysis and structural engineering opinion regarding the operational impact of the Carousel on persons within the Loft and upon the Town Square Park structure. 3 . Replacement restrooms and a shower and changing facility and storage and maintenance areas within BCED's improvements at locations adequate to serve the Loft area. 3 4. Construction of the site in the Loft Area in accordance with the approved Plans and to assist OFC with the installation of the Carousel in the Loft Site. A construction calendar for the Town Square Park renovation to accommodate the Carousel that is agreeable to the City. . Security for the Carousel and Kiosk chargeable to the Town Square Mall Operating Budget as that term is defined in the Maintenance and Assessment Agreement. B. B ED further agrees -- . To pay the cost of construction of the Loft Area. . To pay the cost of removal and transportation to a relocation site of trees, shrubs and plants which must be removed from the Town Square Park because of the Carousel installation. 3. To pay the cost of restoring the Loft to its condition prior to installation of the Carousel and Kiosk upon removal of the Carousel and Kiosk if the Carousel is removed at BCED's request, if it is removed by agreement of the City, OFC and BCED, or, if the City determines that the Carousel must be removed because its operation constitutes a threat to the structural integrity of Town Square Building. If the Carousel is removed in other circumstances, BCED shall not be responsible for restoration of the Loft. C. BCED shall hold the City harmless from and against all liens, claims, damages and expenses which may be made, imposed upon, incurred by or asserted against the City arising out of the construction activities pertaining to the alteration of Town Square Park to accommodate the installation of the Carousel. V. OFC obligations. OFC agrees: 4 A. T place the Carousel in the site within Town Square Park c nstructed by BCED. Such placement shall include t ansport of the Carousel to Town Square Building and the livery of the Carousel parts and machinery to the Loft ' stallation site, and the installation and hook up of he Carousel. B. ith the assistance of Minnesota Landmarks and BCED to repare an operating plan for the Carousel and Kiosk (the ' Operating Plan") . An approved Operating Plan shall be condition precedent to the issuance of the permit under rticle I hereof in accordance with Section VIII.B and rticle VIII hereof. The Operating Plan should include ut is not limited to the following: . Days and hours of operation. . Staffing levels. . User fees for individual rides, group rates, special event and/or hourly rental rates. 4. General categories of Carousel related items to be sold at the Kiosk Gift Shop. 5. Reporting structure (chain of command) outlining responsibility of staff, supervision and OFC representatives. 6. Salary schedule for all employees. 7. Criteria for special promotions. 8. Any substantial modification (i.e. , operating times, fees, ) shall be approved by the City and BCED prior to implementation. OFC agrees to remove specific merchandise items from sale in the Kiosk at the request of the City. C. To operate the Carousel and Kiosk in accordance with the rules and regulations made by the Director, Department of Community Services of the City�, in accordance with the proposed Operating Plan, and in accordance with the approved annual Operating Budget as provided for in Section 4.03 of the Carousel Funding Agreement. 5 D. T operate the Carousel during the time of special p omotions or events in Town Square Park sponsored by the ity. At the direction of the Superintendent of Parks and ecreation, OFC shall provide Carousel operation at times he Carousel is not normally in operation without charge o the City for three special promotions or events other han fund raisers annually. Additional such events will e paid for at OFC's customary rates. The City shall rovide 30 days advance notice for special event perations.The Superintendent of Parks and Recreation ivision or his or her designees shall be responsible for aintaining a master events schedule for use of Town quare Park and of Carousel special events and nonaal perating times. E. o pay all costs of operation and maintenance of the arousel and Kiosk. Commencing with the Operating Budget ubmitted November 1, 1991, the costs of operation shall 'nclude an amount representing lost income from rental f the Town Square Park to be paid to the City for the urpose of reducing the amount assessed against enefitted property owners for operation and maintenance of Town Square Park. This rental offset shall be the amount necessary when added to the rents received from rental of Town Square Park in the preceding year to aggregate the sum of $47, 000 which sum is wherein referred to as the "base rental receipts. " The base rental receipts shall be increased annually by a sum equal to the rate of the Consumer Price Index. To the extent Town Square Park rental receipts exceed the sum of $47,000 as adjusted annually by the amount of the CPI increase, then no rental offset need be provided for in the Operating Budget for the succeeding operating period. The cost of electricity shall be separately metered and paid by OFC to Northern States Power Company. Increased costs of heating, ventilating and air conditioning (HVAC) and utility charges chargeable to the City as Owner Galleria under Article, Sections II C and D of the Town Square Building Operating Agreement attributable to the operation of the Carousel, if any, may be pro rated between OFC and the City in accordance with their respective consumption of these services as part of the annual operations budget preparation and approval. OFC shall pay for extraordinary janitorial and for special 6 s curity service provided to the Carousel space or by eason of its operation. F. o provide and maintain in force comprehensive general iability insurance against claims for bodily injury, eath and property damage occurring by reason of the arousel and Kiosk operation in Town Square Park in inimum amounts of $500,000 property damage and 1,000,000 for bodily injury, death and property damage esulting from any one occurrence. The City, BCED and innesota Landmarks shall be named as additional insureds n the general liability policy and OFC shall deliver a opy of the policy to each of them upon request. G. FC shall hold the City harmless from and against all iens, claims, damages and expenses which may be imposed pon incurred by or asserted against the City arising out f the ownership of the Loft area, the Carousel or the se and operation of the Carousel and Kiosk. H. FC shall participate in paying the cost of restoring the own Square Park in accordance with the provisions of Section of the Carousel Funding Agreement. VI. Minnesota Landmarks responsibilities. Minnesota Landmarks shall be responsible for the following: A. To assist OFC in the areas of fund raising for carousel restoration and the endowment fund provided for in the Carousel Funding Agreement. B. To assist OFC in the preparation of their operating plan. C. To assist OFC in the preparation of their operating budget. VII. Citv Responsibilities. The City shall be responsible for the f llowing: A. Review of the electrical and mechanical drawings, construction plans, sound and vibration analysis and structural opinion. The City shall communicate any objection it may have to any of these documents in a timely manner so as not to delay the installation of the Carousel and Kiosk; provided, however, that the City reserves to itself the final approval of the permit and 7 t ese documents or the final rejection of the same if in i s sole determination, the installation and operation w uld pose a threat to the structural integrity of the T wn Square Park Building. B. rant or renewal of the permit described in Article I ereof. The City shall issue the initial permit upon atisfactory compliance by BCED and OFC with the onditions of Article III hereof. The City agrees that 1) if there is no default in this Agreement, the - arousel Funding Agreement or in the Agreement dated ecember 7, 1988, as amended, between the City and OFC, n the part of OFC, at time of termination of the initial r successive permit, that (2) if, following published otice of intent to renew each permit, no significant ublic objection to its renewal is forthcoming, and (3) f OFC has submitted an updated Operating Plan in ccordance with Section V. B hereof and a Operating udget for the ensuing year in accordance with Section .03 of the Carousel Funding Agreement, and a Fund aising Plan in accordance with Section 3.05 of the arousel Funding Agreement each in form and content cceptable to the City, then it will renew the permit to perate the Carousel and Kiosk in Town Square Park. hese renewals may be made for ten successive one year erms. C. ix the hours and conditions for operation of the arousel and Kiosk. These shall be part of the rules and egulations made by the Director, Department of Community Services in connection with the grant of permit under rticle I above and approval of the Operating Plan under Section V.B above. The City shall maintain a Carousel master events schedule in accordance with Article V.D. hereof. D. The City agrees that if the City and/or BCED determine to remove the carousel from Town Square Park, except as provided in Article 6 of the Carousel Funding Agreement the City may not sell or otherwise dispose of the carousel without the expressed written consent of OFC. If the City determines that it no longer wishes the carousel to be operated at any other park or other location in the City of Saint Paul, the City shall return title of the carousel over to OFC upon payment of $1.00 in the event that OFC is not in default of the terms of 8 his Agreement nor of the Carousel Funding Agreement and FC has demonstrated the capability of removing the arousel without cost to the City. VIII. Operating Plan. The Operating Plan described in Section V. . shall be submitted to the City within 60 days from the date of th s Agreement. An updated Operating Plan will be prepared annually nd submitted no later than November 1, 1991, and each November st thereafter during the term of this Agreement. No Operating Plan shall be effective until approved by the City as part of t e grant or renewal of a park use Permit in accordance with Sect' n VII.B hereof. IX. i ht of First Refusal• O e ations. In the event the City determine to relocate the Carousel from Town Square Park to another 1 cation, or in the event the City determines to continue operation f the Carousel in Town Square Park after the expiration of the te th permit term, provided for in Article I, herein (the "Initial rmit Tenas") then the City shall not enter into a permit and opera ions agreement for the Carousel in such new location or in Town S are Park after expiration of the Initial Permit Terms provided or in this Agreement unless and until: (i) The City has tendered a Permit and Operations Agreement to OFC, which tender shall be made not less than 90 days in advance of any relocation of the Carousel or of the termination of the Initial Permit Terms; and (ii) OFC has failed or refused to accept the tender and executed the tendered Permit and Operations Agreement within 90 days of its tender. OFC hall have 90 days from the date of receipt by OFC of the Permit an Operations Agreement from the City in which to accept the Agree ent. OFC's right to accept the Agreement shall expire on the 90 h day following receipt of the Agreement, and unless OFC on or bef re that date signs the tendered Permit and Operations Agreement and delivers the signed Agreement to the City. In e event OFC fails or refuses to accept its right of first refusal, he City may contract with another operator on the same terms as ontained in the Permit and Operations Agreement tendered OFC, or 't may operate the Carousel with its own forces. Any proposed hange in tenas from those in the Permit and Operations Agreement tendered OFC must first be offered to OFC. OFC's failure or refusa to accept its right of first refusal shall not operate 9 to preclude OFC from submitting an operating proposal at any time the City se ks a contract operator other than the time in which of the right f first refusal tender. X. Ca usel Restoration Decisions• Fundin . In the event OFC is no long r the operator of the Carousel, OFC shall nonetheless retain the authority to participate in all decisions regarding restoratio , painting, or repair (beyond routine maintenance) , and the City a rees that no such activity shall be undertaken without the approv 1 of the OFC Board of Direct6rs. OFC agrees that it shall not unreasonably withhold its approval, and that this requiremen for OFC Board approval shall remain in effect unless OFC ceases to function as a Minnesota corporation or there is a material c ange in the corporate purposes, in which event this requiremen for OFC approval shall no longer be in effect. The substance f this section shall be incorporated into every Carousel operating greement entered into by the City and into an agreement between th City and OFC in the event the City operates the Carousel. These agreements will contain a requirement for equitable rovision from Surplus Funds of money to provide for Carousel r storation. XI. Removal and Restoration. Upon termination of this Agreement, the Carousel and Kiosk shall be removed from Town Square Park and t e City shall proceed to restore the Loft area to its condition s of the date of this Agreement. Unless the removal is undertaken by OFC, or a purchaser of the Carousel at OFC or the purchaser' expense, the expense of removal as well as the cost of restoratio of the Loft shall be paid for from the Park Restoration Fund, and o the extent that said Fund is not sufficient to pay said costs any deficiency paid by the City shall be reimbursed by BCED withi 30 days of receipt of a statement detailing the items of such c st and expense. BCED may undertake the removal and restoratio action itself provided that the plans and specificat'ons for such work are approved by the City and the timetable 's acceptable to the City. XII. BCED Assessment. BCED agrees for itself and its successor in interest to the Commercial Parcel as that term is defined in the Deed that if BCED's obligation under this Agreement, including he cost of providing security or of restoring the Loft area afte removal of the Carousel are not performed, that said costs if 'ncurred by the City shall be incorporated into the Galleria M 11 Operating Budget and assessed in accordance with the Maintenanc and Assessment Agreement against that part of the Commercial Parcel owned by BCED on the date of this Agreement. 10 XIII. Default; Termination. This Agreement and the permit hereby gra ted may be terminated by reason of (1) breach of this Agreement r the Carousel Funding Agreement which continues after thirty (30 days written _notice, (2) the removal of the Carousel from Town quare Park or (3) the written agreement of the parties. In the eve t of breach of this giving rise to termination, the City shall giv notice to OFC, Minnesota Landmarks and BCED of the matter con tituting the default, the action necessar_y to correct the defaul , the action proposed by the City should the default not be timely ured. Notice shall be provided to: FC c/o: Peter Boehm Our Fair Carousel, Inc. PO Box 17276 Saint Paul, Mn. 55117 � Robert Angleson. BCED 444 Cedar Street 1500 Meritor Tower St. Paul, N�1. 55101 David Lanagran Minnesota Landmarks, Inc. Landmark Center 75 West Fifth Street Saint Paul, NIld. 55.102 XIV. Division of Receipts. All revenue derived from the operation of the carousel and kiosk shall be allocated as provided in Carous 1 Funding Agreement. XIV. Binding Effect. The covenants, agreements and undertaki gs of the parties shall be binding on themselves and their res ective successors and assigns. IN W TNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. il APPROVED AS TO FORM: CITY OF SAINT PAUL Assistant ity Attorney By Its Mayor By Its Director, Department of Community Services By Director, Department of Finance and Management Services 12 STATE OF MI NESOTA ) ) SS. COUNTY OF SEY ) The fo egoing instrument was acknowledged before me this day of , 1990, by Jim Scheibel, Mayor of the City o Saint Paul, a municipal corporation of the State of Minnesota, on behalf of said City of Saint Paul. Notary Public STATE OF M NNESOTA ) ) SS. COUNTY OF SEY ) The f regoing instrument was acknowledged before me this day of , 1990, by Roy Garza, Director of the Depart ent of Community Services of the City of Saint Paul, Minnesota, a municipal corporation of the State of Minnesota, on behalf of aid City of Saint Paul. Notary Public STATE OF M NNESOTA ) ) SS. COUNTY OF SEY ) , The f regoing instrument was acknowledged before me this day of , 1990, by Ed Warn, Acting Director of the Depart ent of Finance and Management Services of the City of Saint Paul Minnesota, a municipal corporation of the State of Minnesota, on behalf of said City of Saint Paul. Notary Public 13 , BCED, MINNESOTA, INC. By Its By Its STATE OF M NNESOTA ) ) ss. COUNTY OF SEY ) ' notarynpub ic, within and for said Count a' 1990, before me, a and Y� ppeared , to me personally known, who, being each by me duly sworn, did say that they are respectively the and of BCED Minnesota, Inc. , the corporation named in e foregoing instrument, and that the instrument was signed in ehalf of said and acknowledg d said instrument to be the free act and deed of said corporatio . Notary Public 14 . • � OUR FAIR CAROUSEL INCORPORATED By - Its By Its STATE OF M NNESOTA ) ) ss. COUNTY OF SEY ) On th s day of , 1990, before me, a notary pub ic, within and for said County, appeared and , to me personally known, who, being by me duly sworn, did say that he is respectively the and of Our Fair Carousel, Incorporated, the corporatio named in the foregoing instrument, and that the instrument �as signed in behalf of said corporation by authority of its and said and acknowledged said instrument to be the free a t and deed of said corporation. Notary Public 15 . � � , . . � , ; t s i I i � MINNESOTA LANDMARKS, INC. i � By Its � BY Its STATE OF M NNESOTA ) ) ss. COUNTY OF SEY ) On t is day of , 1990, before me, a notary public, wi hin and for said County, appeared and , to me personally known, who, being each by m duly sworn, did say that they are the and of Minnesota Landmarks, Inc. , the corporati named in the foregoing instrument, that the instrument was signed in behalf of said corporation by authority of its and said and acknowledged said inst ment to be the free act and deed of said corporation. Notary Public 16 ------�...._,. .—. r -. -.— �^-*+�-.. ...._._.. . .. . — -----