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279117 wHITE - CITV CLERK COUIICII `�i ����� PINK - FINANCE GITY OF SAINT PAUL CANARV - DEPARTMENT � BLUE - MAYOR File � NO. City Attny/WAB Co ncil Resolution Presented By � � + Referred To Committee: Date Out of Committee By Date WHEREAS, the Department of Planning and Economic Development has determined that the best interests of the City would be served by allowing the Science Museum of Minnesota to operate City owned parking facilities located at Tenth and Wabasha Streets (Block 7A) and Cedar and Eighth Streets (City Walk) under negotiated terms and conditions; and WHEREAS, the Science Museum of Minnesota had indicated a willingness to operate said parking facilities . NOW THEREFORE, F3E IT RE50LVED, that the proper City officers are hereby authorized and directed to negotiate and execute on behalf of the City an Operating Agreement providing for the operating of the above parking facilities in such form and manner approved by the City. t COUNCILMEN Yeas Nays � Requested by Department of: F�etcher D a ment of annin & Ec omic Develo ent �eV1"e In Favor Masanz Nicosia scnetbei __�__ Against BY Tedesco �Milemrr AtiG � 9 }982 Form Approved by Cit� Adopted by C ouncil: Date ?�-� 7- 2, Certified • s by C unci , ret By Approve y : avo : e AUG � 9 �952 Approved by MayorYfor Submis ' to Coun il B ''� �" _ /�-- By � Y PUBLISHED AU G 2 8 1982 . DEPARTMEIIT: PEO , CONTACT: i �am earson ' RQUTING nr�a PlJ4NATI�N Sl�Ef PHONE: 6RE N SNEET � For Adminiatrative Orders, Re lutions, Ordinances and AQre�eats ���11� ROUTIN6 ORDER - ROL� BY ASSI6NE� Nl!MAERt DIRECTOR OF MANA6EMENT MAYOR , DEPARTMENT DIRECTOR DIRECTOR, FINANCE � M6T. SERVICES,���j.�� F� CITY ATTORNEY CITY CLERK BUDGET D I RECTOR A U� � 1 ��82 lV�AYORS C)�r� � . Submit attached Resolution to City C uncil for adoption. , . Authorization is requested to enter into an operating agreement with the Arts and Science Museum for operation of two (2) City parking ramps. Competitive bids were solicited for management and the Ar and Science Museum was the low bidder. Their staff currently operates. Municipal amp #1 for the City. . . It is anticipated that this facilit will pay off debt service. as well as generate additional money for the City. A?TACHMENTS �LIST ALL ATTACHMENTS): 1� Resolution 2, Operating Agreement ' 3. ¢aec nev.c�v necee on o o euppo � ; . . Ci.t1 AZtoacney: i. Counc.i�C ReeoLu.ti.on Requ�inedf X Y�S NO i. Reeo.[u.t.�ont f�ES NO - 2. Inaunance Reqwir�.edY yES NO 2. Ineunance Sugb.ic,i.entt YES NO 3. 1►tbWcance A�t.tackedY VES NO Pevisi+on alt:4/29/82 � � � ��911'7 OPERATTNG AGREEMENT THIS OPERATING AGREEMENT, dated as of , between the CITY OF SAINT PAUL, a municipal corporation, (called herein City) , and The Science Museum of Minnesota, a Min.��sota corporation, (called herein Operator) , WITNESSETH: That City agrees to pay and Operator agrees to accept ($1.00) and other valuable consideration as herein provided for managerial services to be provided by Operator for the operation of: Municipal Ramp #1 , That three level municipal parking facility located on that Block between Wabasha, St. Peter, Exchange and Tenth Streets in the City of Saint Paul commonly referred to as "Block 7A Ramp��. Municipal Ramp #2 That five level municipal parking facility and an additional three level of condominitun parking located on that Block between Cedar, Minnesota, Eighth and Ninth Streets in the City of Saint Paul commonly referred to as "City Walk". from August 9, 1982 through August 10, 1983, unless sooner terminated as herein provided, and upon the terms and conditions herein set forth; and that Operator and the City each in consideration of the representations, covenants and agree- ments of the other as set forth herein, mutually represent, covenant and agree as follows: ARTICLE I USE, OCCUPANCY AND RENTALS Section 1.01 Possession and Use (1) At the commencement of this agreement, Operator shall occupy and : use tYie parking ramp to perform managerial services as herein provided, subject to the right of the City, at all times, to enter thereon as owner, for any purpose not inconsistent with this Agreement. The ramps, at all times during the term of this Agreement, shall be used as public parking facilities, and for any other re- lated or incidental purpose approved by the City not burdensome to the use of the r a�nps as public parking f acilities. All income derived from any related or inci- der_tal purpose sha11 be considered part of the gross receipts from the operations of the ramps. (2) All rates and charges and hours of operation of the ramps shall be set by the City to meet the needs of the public using the ramps. The City at any time and without prior approval of the Operator may revise the rates and charges, and hours of operation, or any other matter or thing relating to the operation and maintenance of the ramps as public parking facilities; provided the City will use its best e£forts to allow the Operator adequate time to implement any such revision. (3) The Operator agrees that it will faithfully and promptly enforce all covenants and agreements under this Agreement, that it will not permit, without approval of the City, or its duly authorized agent, use of any of the parking spaces free of charge, that it will not designate specific parking spaces for individuals or groups unless so directed in writing by the City, and that it will cause to be posted, collected and revised, as herein provided, such rates and charges, and hours of operation f�r the use of the ramps set by the City. ART IC LE 2 PAYNIENT, OPERATION, MAINTENANCE, MODIFICATION, TAXES AND INSURANCE Section 2.01 Payment of Net Revenue. The Operator agrees to perform services, herein required, "at cost" and will not take any fee, wlless expressly stated in this Agreement. In this regard, the Operator agrees to pay to the City all Net Revenues (gross receipts minus direct operating costs) derived from each ramp commencing on the first day of the month next succeeding the commencement of this Agreement and monthly thereafter on or before the fourth day of each month (or the next business day thereafter if the fourth is a weekend or a holiday) for the balance of the term of this Agreement. Direct Operating Costs are defined as follows: (a) Total wage payments for all personnel, including operating manager, but exclusive of management who do not devote their full time to the operation of the parking ramp. The said wage payment shall include additional wage costs such as Workmen's Compensation and Unemployment Compensation insurance, social security, hospitalization insurance and any other fringe benefits necessary to maintain competent employees. (b) Total cost of operational supplies (tickets, forms, postage, billing services, and other office materials) . (c) Total cost of maintenance materials and services, including equipment service. (d) Total Cost of customer damage payments (e) Total cost of uniforms and laundry. (f) Total costs of signs and operating equipment. (g) Total cost of all utilities. (h) Total cost of all insurance and bonds, the amount and extent of coverage as described in the bid specifications, but not to include owners, land- lords and tenants insurance. (i) Total cost of such other equipment, material, supplies or services which may be agreed upon as necessary for the efficient operation and man agement of the parking ramp. Section 2. 02 Operation and Maintenance. (1) In addition, requirements set forth in Section 2.03 of this Agreement, the Operator shall furnish all reasonable goods and services necessary for the ongoing day-to-day operation and management of the ramps as follows: (a) Provide on-site operating manager. -2- � � ������ (b) Provide such other capable and trained personnel determined by the City as are necessary for a successful and economically prudent operation. (1) The City may require any reasonable changes in the number, qualifications and the salary structure and conduct of employees required for the operation of the ramps. (2) All employees are to be covered by a fidelity bond in an amount acceptable to the City, workers' compensation and unemployment com- pensation insurance, social security, hospi- talization insurance, and any other indirect benefit approved by the City. (c) Purchase and repair all materials and tools needed for the operation of the facilities subject to the limitation that all such purchases and repairs exceeding five hundred dollars ($500.00) shall be approved by the City. (d) Provide special signs and advertising promoting the ramps subject to the approval of the City. (e) Provide operating supplies, such as tickets, forms, postage, billing service, office supplies, as well as unif orms and laundry. (2) The City, at its option and expense, may retain a Management Consultant to review and analyze all financial statements and reports furnished tmder Section 4.02, to inspect the ramps, their operation and administration, and to make such recommendations as the Management Consultant feels would likely result in the production of the maximum amount of Net Revenues as practicable. The Operator, upon receipt thereof, shall change its practices or methods of operation as is required to comply with any mandate or charge given by the City. (3) Subject to other provisions of this Agreement, the Operator, during the term of this Agreement, shall keep the ramps and all parts thereof, including, but not limited to, signs, banners, graphics, entrances or elevator cars, in a safe operating condition and repair. The Operator shall keep and maintain all interior portions of the ramps (including, but not limited to, the removal of cars) and all exits and entrances for the ramps, in clean and safe condition, free of accumulation of dirt, rubbish, snow and ice. In making repairs of conditions herein provided, the Operator shall promptly notify the City of the need for any extraordinary repairs. No such repairs may be performed without the approval of the City. {4) The Operator, subject to the approval of the City, shall maintain a five hundred dollar ($500.00) revolving reserve account to cover unforeseen expenses, such as, but not limited to, emergency repairs, or equipment replace- ment. This account may be increased or decreased at the discretion of the City. -3- ' . �9 �1,�..�� Section 2.03 Additional Expenses. In addition to Section 2.01, the Operator shall pay the following additional expenses to the following persons. (1) To the appropriate pulalic or private person entitled to payment, those taxes (if any) , special sssessments or other charges required to be paid with respect to the ramps to the extent and in the manner provided in this Agreement; (2� To each insurer entitled to payment, any premium required to be paid in order for the Operator to carry and maintain all insurance required by the City under this Agreement; (3). To the City, all reasonable expenses incurred by the City, including legal fees, for services which are not otherwise required to be performed by the City under the terms of this Agreement; all other reasonable expenses, including legal fees, incurred by the City in order to enforce any obligation of the Operator under this Agreement and all other indemnity payments required under Section 4.03; (4) To the City, the amount of any advances of funds made by it under the provisions of Section 2. 12, with interest thereon from the date of each such advance at the rate of ten percent (10$) per anniun. (5) To the appropriate governmental official, all permit and licer.se fees required under any law or governmental regulation with respect to the maintenance or operation of all or any portion of the ramps. Section 2.04 Obliaations linconditional. All payments required of the Operator hereunder shall be paid without notice or demand and without setoff, counterclaim, abatement, deduction or defense, including, but not limited to abatements or reductions due to any future claims of the Operator against the City. The Operator will not suspend or discontinue any monthly income payments, and will perform and observe all of its other agreements in the Agreement and will not terminate this Agreement for any cause, including, b�t not limited to, any acts or circumstances that may constitute failure of con- si�eration, destruction, or damage to the ramp premises, the taking of the ramp cremises by condemnation or otherwise, the interference with such use by any rrivate person or corporation, the invalidity or unenforceability or lack of due authorization or other infirmity of this Agreement, or lack of authority, eviction by paramount title, commercial frustration of purpose, bankruptcy or insolvency of the City, or change in the tax or other laws or administrative rulings or actions of the IInited States of America or the State of Minnesota, or any political sub- division thereof, it being the intention of the parties hereto that the net income and other amounts payable by the Operator hereunder shall continue to be payable in all events unless the obligation to pay the same shall be terminated by the City. -4- � . ���1�.�' Section 2.05 Subordination. The City shall have the right to subject and subordinate this Agreement at all times to the lien of any mortgage or trust instrument affecting, or any other pledge or revenues derived by the City, from the ramps which may hereafter be made by the City. To further evidence such subordination, the Operator hereby agrees, upon demand of the City, to give such written instrument or document expressly subordinating this Agreement to such mortgage, that no such mortgage, trust instriunent or pledge shall impair the validity and continuance of this Agreement and the rights of the Operator thereunder as long as the Operator shall not be in default under the terms hereof. Section 2.06 Modifications. Subject to the provisions of Section 2.02, 2.03, Section 2.07 and Section 2.08, the City or the Operator, with the prior written consent of the City, may from time to time, at its own expense, make any additions, modifications or improvements to the ramps that it may deem desirable and that do not adversely affect the structural integrity of the ramps or that conflict with any easement running to the City or owner's air rights over the ramps; provided that if the Operator makes the modifications, no work thereon shall be commenced until plans and specifications, contracts, payment and performance bonds and builder's risk insurance therefor have first been approved by the City or its duly designated agent. All additions, other than pursuant to Section 2.11, shall become part of the ramps and the property of the City. Section 2.07 Liens. The Operator shall not permit mechanic 's liens or other liens to be filed or established or to remain against the ramps for labor, materials or services fur- nished in connection with any additions, modifications, improvements, repairs, renewals or replacements made by it to the ramps, provided that if the Operator shall first notify the City of its intention to contest any lien, it shall deposit in escrow a sLUn of money equal to the amount of the claim of the lien; in such event, the City may permit the items contested to remain undischarged and un- satisfied during the period of such contest and any items, the ramps or any part thereof will be subjective to loss or forfeiture, in which event, the City shall cause the escrow deposit to be used to promptly pay all such unpaid items and cause them to be satisfied and discharged or obtain a release of the lien as provided by Minnesota Statutes, Section 514. 10. Any sums remaining in the escrow deposit after satisfaction and discharge or release of the lien and after satisfaction of all other claims or liabilities against which the City has been indemnified shall be forthwith returned to the Operator. Notwithstanding anything herein to the contrary, the City shall not be obligated to discharge any lien under this Section unless the work performed or labor furnished in connection therewith has been under- taken by the City. Section 2.08 Removal of Ramp Equipment. No ramp equipment shall be removed except in accordance with the provisions of this section. -5- . , �`��11.�'7 (1) In any instance where the City determines that any item of ramp equipment has bec ane inadequate, obsolete, worn out, unsuitable, undesirable or unnecessary for the operation of the ramps, the City or the Operator, with the consent of the City, may remove and dispose of such item of ramp equipment, provided that such removal and substitution, if any, shall not materially impair the operating unit, capacity or structural integrity of the ramps nor conflict with any easements running to the City or any owner air rights over a ramp. (2) The Operator will pay all costs of removal and substitution authorized under this section and repair all damage to existing buildings or structures resulting therefrom, applying toward such payment any amount received in disposition of the replaced ramp equipment. All substituted ramp equipment shall be free of all liens and encumbrances, other than Permitted Encumbrances, and shall become a part of the ramp; and the Operator shall, at the request of the City, cause title to any ramp equipment substituted by the Operator or the City to be formally placed in the name of the City by bill of sale. The Operator will cooperate with the City and will pay all costs, including counsel's fees, incurred in establishing title to and a security interest in ramp equipment so substituted by the Operator and the City will cooperate with the Operator in securing a release of the removed property. Section 2.09 Taxes and Other Governmental and Utility Charges. In �ddition to Section 2.01 and during the term of this Agreement, the Operator will cause to be paid when due and payable all taxes (if any) and special assessments levied upon or with respect to the ramps, or any part thereof, all fees, charges and rentals for utility service or extension for the ramps, or any part thereof, all other charges lawfully made by any governmental body for public improvements that may be or become secured by a lien on the ramps, or any part thereof, and all other charges incurred in the operation, maintenance, use, occupancy, and upkeep of the ramps including, but not limited to, taxes or governmental charges on any property of the City brought in or upon the ramps, sales and other excise taxes and any taxes levied upon or with respect to rentals, income or profits from the ramps, or any part thereof, which, if not paid, would become a lien thereon. With respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, with interest, the Operator shall be obligated to pay only such installments and interest as are accrued during the term of the Agreement. The Operator may, at its own expense, in good faith, contest any such taxes, assessments and other charges (hereinafter referred to as "imposition") and, in the event of such contest, may permit the items so contested to remain unpaid during the period of the contest and any appeal therefrom, provided that the Operator shall first notify the City of its intention so to do and shall deposit in escrow with the City a sum of money equal to the amount of the contested imposition, together with all interest and penalties in connection therewith, and all charges that may or might be assessed against or be a charge on the ramps or part thereof in such legal proceedings; unless the City shall notify the Operator that, by nonpayment of any such imposition, the ramps will be materially endangered or the ramps or any part thereof will be subject to loss or forfeiture, in which event, such imposition shall be paid promptly. -6- � � � ���1�'7 Section 2. 10 Insur�nce. The Operator shall provide for the purchase and maintenance of such insuzance as will protect the City and against risk of loss or damage to the ramp vehicles parked in the ramps and any other property permanently located or exclus- ively used at the ramp premises and against claims which arise or result from the operation and maintenance of the ramps as a public parking facility. Such insurance shall include comprehensive liability for injury or death or property damage (including garage and passenger elevator and robbery and hold-up coverage) , property, damage and rental income or business interruption insurance, with scope of coverage and limits approved by the City and shall include the City and the Operator as co- insureds. The Proceeds of propertX insurance resulting from claims for loss or damage to the ramps shall be applied as provided in Section 3.01. All insurance shall be taken out and maintained in responsible insurance canpanies licensed to do business in Minnesota. Said companies shall be selected by the Operator with the approval of the City, and shall be filed with the City or its duly designated agent. U�on the anniversary date of such property insurance, the City may increase the coverage to the extent reasonably determined by the City to be necessary to insure the ramps at its full replacement value. Each policy shall contain a provision that the insurer shall not cancel it without giving written notice to the City and the Operator at least ten (.101 days before the cancellation becomes effective. Before the expiration of any policy, the Operator shall furnish the City evidence satisfactory to the City that the policy has been renewed or replaced by another policy which shall be filed and approved as hereinabove provided for the original policy or that there is not necessity therefore under the terms hereof. The Operator' s obligations to procure and maintain insurance hereunder shall be in addition to the terms of this Agreement. Where special or unusual hazards peculiar to the ramps are known or foreseeable, the Operator shall take such steps to insure itself and the City against such hazards and shall be independently responsible for any damages which result fran the occurrence of such hazard. During the term of this Agreement, the Operator will comply with all applicable state requirements of the policies of insurance required of the Operator under this Section. Section 2. 11 Installation and Removal of Equipment. The Operator may, from time to time, and with the approval of the City, install items of movable machinery and equipment in or upon the ramps. All such items shall remain the sole property of the Operator, in which the City shall have no interest, and may be modified or removed by the Operator at any time (except during the continuance of an Event of Default, in which event, the written approval of the City shall first be secured) if such items are not in the City's reasonable judgment needed for the continuance of the operation of the ramps, provided that the Operator shall repair and restore any and all damage to the ramps resulting from the installation, modification or removal of any such items. Section 2. 12 Advance. If the Operator shall fail to make any repairs, pay any liens, taxes, assessments or other charges, or pay any other sums required by this Agreement to be paid, the City may, but shall not be obligated to, take such action as may be necessary to cure such failure, including advancement of money; and the Operator shall be obliqated to repay all such advances on demand. -7- ARTICLE 3 DAMAGE, DESTRUCTION AND CONDEMNATION Section 3.01 Damage and Destruction. If, during the term of this Agreement, there is any damage to the ramps or injury sustained or alleged to have been sustained to person or property while on the ramp premises, the Operator shall give written notice therein to the City within seven (7) calendar days of occurence. Any and all proceeds of insur- ance resulting from such occurrence shall be paid and belong to the City. Unless this Agreement is terminated, the City (to the extent there are funds which the City determines are available therefor) , or the Operator, with the consent of the City, may proceed to repair, rebuild and restore the property damaged or otherwise lost to substantially the same condition as existed before such occurrence, or to any other condition, which, with such alterations and modifications (including the substitution and addition of other property) as may be desired by the City, will not materially impair the operating unity, productive capacity or value of the ra�s as a public parking facility. Before any work is undertaken by the Operator, it shall cause plans and specifications, payment and performance bonds, "builder' s risk" insurance and contracts therefore to be approved by the City or its duly designated agent. The City shall apply so much as may be necessary of the Net Proceeds or Inusrance Proceeds to payment of the costs of repair, rebuilding or restoration of the project, upon such terms and conditions as the City reasonably determines to be appropriate. Any surplus Net Proceeds or Insurance Proceeds after payment of the cost of restoration sahll be retained by the City. Section 3.02 Condemnation. If, during the term of this Agreement, condemnation proceedings are commenced against all or any part of the rampS,the Operator shall promptly qive written notice thereof to the City. All proceeds of the Condemnation Award shall be paid and belong to the City. Unless this Agreement is terminated, the City (to the extent there are funds which the City determines are available therefor) , or the Operator, with the consent of the City, may repair, rebuild and restore the ramps and all parts thereof to substantially the same condition as existed before the taking, or to any other condition which, with such changes, alterations and modifications (including the substitution and addition of other property) as may be desired by the City will not materially impair the operating unit, productiv�e capacity or value of the ramps and will be suitable for continued operations of the ramps, as public parking facilities. Before any work of restoration is under- taken by the Operator, it shall cause plans and specifications, payment and performance bonds, "builder's risk" insurance and contracts therefor to be approved by the City. The City may apply so much of the Condemnation Award as it deems desirable. Section 3.03 Right to Contest. Nothing in Article 3 shall be construed to prevent the City from contesting the adequacy of any proposed insurance payment or Condemnation Award. The Operator covenants that it will cooperate fully with the City in filing any proof of loss or in the handling and conduct of any pending or prospective insurance claim or con- demnation proceeding. -8- - ��9�:�:�� ,. Section 3.04 Rights in Additional Property. Any additional property therein acquired under Section 3.01 or 3.02 shall be available for use by the Operator and shall be and become a part of the ramps and be subject to Permitted Encumbrances only; and the Operator shall, at the request of the City, cause title to any such property to be formally placed in the name of the City by bill of sale or warranty deed, as the case may be. The Operator shall have no equity in the ramps or any rights or interests therein, except for those rights to occupy or use such property as governed entirely by the terms of this Agreement. ARTICLE 4 ARTS AND SCIENCE COUNCIL COVENANTS Section 4.01 Inspection and Access. The Operator agrees that the City and its duly authorized agents shall have the right at any and all times to examine and inspect the ramps and for that purpose to enter upoai the ramps and to copy any and all records of the Operator, and to otherwise have unlimited access to the ramps, with respect to all matters consistent with the ownership of the ramps. Section 4.02 Financial Statements, Audit, Certificate Of Compliance and Other Reports. Within 30 days after the close of each quarter of the Fiscal Year, the Operator will cause to be furnished to the City, quarterly financial statements and reports pertaining to the ramps in such form as is apptoved by the City or its duly designated agent, and accompanied by a certificate in a form approved by the City or its duly designated agent certifying that during the same quarter and continuing to the date of execution, to the best of the officer's knowledge, the Operator has fully complied with the terms and conditions of this Agreement,except s otherwise fully disclosed in the certificate. The Operator will, at the request of the City, permit, fr an time to time,an audit of the Operator's separate books and accounts for the ramps to be made by the City or an Independent Accountant retained by the City. Such audit may also list any defaults under the Operating Agreement by the operator that have come to the City's or Independent Accountant's attention after due investigation. The expenses incurred by performing said audit shall be paid from the gross receipts or whatever source the City deems appropriate. Section 4. 03 Indemnity by the Operator The Operator will protect, indemnify and save the City harmless from and against all liabilities, losses, damages, costs, expenses (including reasonable attorney's fees) , causes of action, suits, claims, demands and judgments of any nature arising from: (1) Any injury to or death of any person or damage to property in or upon the ramps and ramps' premises or growing out of or connected with the use, non-use, condition or occupancy of the ramps and ramps' premises or any part thereof including any and all acts or operations relating to the construction or installation of improvements, excluding that caused by any negligent act of the City or anyone acting in it� behalf, provided that the indemnity shall be effective only to the extent of any loss that may be sustained by the City in excess of the Net Proceeds -9- I - ��91�'� v, Section 3.04 Rights in Additional Property. Any additional property therein acquired under Section 3.01 or 3.02 shall be available for use by the Operator and shall be and become a part of the ramps and be subject to Permitted Encumbrances only; and the Operator shall, at the request of the City, cause title to any such property to be formally placed in the name of the City by bill of sale or warranty deed, as the case may be. The Operator shall have no equity in the ramps or any rights or interests therein, except for those rights to occupy or use such property as governed entirely by the terms of this Agreement. ARTICLE 4 ARTS AND SCIENCE COUNCIL COVENANTS Section 4.01 Inspection and Access. The Operator agrees that the City and its duly authorized agents shall have the right at any and all times to examine and inspect the ramps and for that purpose to enter upon the ramps and to copy any and all records of the Operator, and to otherwise have unlimited access to the ramps, with respect to all matters consistent with the ownership of the ramps. Section 4.02 Financial Statements, Audit, Certificate Of Compliance and Other Reports. Within 30 days after the close of each quarter of the Fiscal Year, the Operator will cause to be furnished to the City, quarterly financial statements and reports pertaining to the ramps in such form as is apptoved by the City or its duly designated agent, and accompanied by a certificate in a form approved by the City or its duly designated agent certifying that during the same quarter and continuing to the date of execution, to the best of the officer's knowledge, the Operator has fully complied with the terms and conditions of this Agreement,except s otherwise fully disclosed in the certificate. The Operator will, at the request of the City, permit, fr ar► time to time,an audit of the Qperator's separate books and accounts for the ramps to be made by the City or an Independent Accountant retained by the City. Such audit may also list any defaults under the Operating Agreement by the operator that have come to the City's or Independent Accountant's attention after due investigation. The expenses incurred by performing said audit shall be paid from the gross receipts or whatever source the City deems appropriate. Section 4. 03 Indemnity by the Operator The Operator will protect, indemnify and save the City harmless from and against all liabilities, losses, damages, costs, expenses (including reasonable attorney's fees) , causes of action, suits, claims, demands and judgments of any nature arising from: (1) Any injury to or death of any person or damage to property in or upon the ramps and ramps' premises or growing out of or connected with the use, non-use, condition or occupancy of the ramps and ramps' premises or any part thereof including any and all acts or operations relating to the construction or installation of improvements, excluding that caused by any negligent act of the City or anyone acting in it� behalf, provided that the indemnity shall be effective only to the extent of any loss that may be sustained by the City in excess of the Net Proceeds -9- _ � ������7 received by the City from any insurance carried with respect to the loss sustained. The foregoing indemnification obligations shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Operator, customers, suppliers, or affiliated organizations under any Worlanen' s Compensation Acts, Disability Benefit Acts, or other employee benefit acts; (2) Violation of any agreement or condition of this Agreement, except by the City; (3) Violation of any contract, agreement or restriction which has been or shall have been approved by the Operator or which shall have existed at the commencement of the term of this Agreement and to which the Operator is a party or by which it is bound; and (4) Violation of any law, ordinance or regulation affecting the ramps or a part thereof or the ownership, occupancy or use thereof. Section 4.04 Security Interest in Project Equipment. (1) The Operator shall cause to be executed, filed and recorded all instrtunents, including financing statements or continuation statements, necessar� to perfect or contin ue the perfection of the City's security interest in all Ramp Equipment. (2) Within ninety (90) days after the close of each Fiscal Year, the Operator will file with the City a certificate describing, as of the end of such Fiscal Year: (i) each item of Ramp Equipment not described in the Agreement or a previous similar certificate; (ii) any other item of Ramp Equipment which required during such fiscal year supplemental filings in order to continue per- fection of the security interest of the City in such item of Ramp Equipment; and (iii) all steps taken and instruments executed during the fiscal year to perfect or continue the perfection of the security interest of the City in and to such Ramp Equipment. (3) If so requested by the City within thirty (30) days after filing with it the certificate required in sub-section (2) , the Operator shall cause to be furnished to the City an opinion to the effect that all steps requisite to perfection, or continuance of perfection, of the security interest of the City in and to such Ramp Equipment have been duly taken. All such opinions shall specify the further refilings and renewals required in order to continue perfection of such security interest during the Agreement period. The Operator will execute all instruments, including financing statements and continuation statements, deemed necessary or advisable in the opinion of the City for perfection of and continuance of the perfection of such security interest. Section 4.05 Surrender of Ramp. Except as otherwise provided in this Agreement, at the expiration or earlier termination of this Agreement the Operator will surrender possession and use of the Ramps to the City peaceably and promptly upon receipt of notice of termination from the City and in as good condition as at the commencement of the term of this Agreement. In the event that the Operator shall hold the Ramps after the expiration or termination of this Agreement with the consent of the City, expressed or implied, such holding over shall, in the absence of written agreement on the subject, be deemed to have created a month-to-month tenancy terminable on thirty (30) days notice by the City and otherwise subject to all of the terms and provisions of this Agreement. -10- - - �`��11'� Section 4.06 Rules, Laws and Regulations. The Operator agrees to comply with all applicable governmental laws, regulations, requirements and rules and prohibitions of public or private nuisances with respect to the use, maintenance, operation of the ramps, and each item of equipment used or installed on the Ramps Premises, subject, however, to the right of the City to require the Operator to continue any such use or operation (consistant with the other provisions of this Agreement) during the continuance of any lawsuit or other legal proceeding in which the legality of such use or operation is in dispute and is defended by the City. In case any equipment or appliance shall be required to be changed or replaced or in case any additional or other equipment or appliance is required to be installed in order to comply with such laws, regulations, requirements and rules, the Operator shall promptly notify the City of such require- ment, and, if such requirement is not duly contested as provided above, the City may make such changes, additions and replacements at the City's expense. Section 4.07 Identificati ari of Project Equipment. The Operator will cause any item of Ramp Equipment (excluding fixtures) to be kept plainly, distinctly, permanently and conspicuously marked by a plate or stencil printed in contrasting color upon, to the extent reasonably practicable, each side of such item of Project Equipment in letters not less than one inch in height as follows: "Property of the City of Saint Paul" , with appropriate changes thereof and additions thereto as from time to time may be required in order to protect the title of the City and its rights under this Agreement. The Operator will not place any such item of Ramp Equipment in operation �til the required legend shall have been so marked on each side thereof and will replace promptly any suc h names and word or words which may be removed, defaced or destroyed. Except as above provided, the Operator will not allow the name of any person, association or corporation to be placed on the ramps equipment as a desig- nation that might be interpreted as a claim of ownership. ARTICLE 5 OPTIONS Section 5.01 Termination of Agreement. In addition to Article 6, this Agreement may be terminated by either party by providing the other party with thirty(30) days written notice of the desire to terminate same. Such termination is conditioned upon the occurance of one or more of the following events: (1) If the ramps shall have been damaged or destroyed to such extent that, in the reasonable judgment of the City, (i) the ramps cannot reasonably be restored within six (6) months to substantially its condition immediately preceding such damage or destruction, or (ii) cannot be used to carry on the normal operations of the City for six (6) months; (2) If, by reason of condemnation, title shall have been taken to all or substantially all of the ramps, or so much thereof that in the reasonable judgment of the City, the City will be prevented from carrying on its normal operations for six (6) months; or -11- � � ��3�,�.'� (3) If, as a result of any changes in the Constitution of the State of Minnesota or the Constitution of the United States of America, or of any legislative or administrative action, whether state or federal, or of any final decree, judgm�nt or order of any court or administrative body, whether state or federal, in the reasonable judgment of the City, the agreements contained in this Agreement shall have become impossible to perform in accordance with the intent and purposes of the parties as expressed herein, or unreasonable burdens or excessive liabilities shall have been imposed upon the City. Section 5.02 Surrender of Premises. Ck� the date set for termination, a closing shall be held at the principal office of the City or any other office mutually agreed upon; and the Operator shall execute and deliver to the City such releases as tl�e City reasonably determines i� necessary to terminate this Agreement, and the Operator shall thereafter no longer be entitled to occupation and use or have any other interest in the ramps. ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES Section 6.01 Events of Default. Any one or more of the following events is an Event of Default under this Agreement. (1) If the Operator shall fail to pay any Net Income or Additional Charges on or before the date that the payment is due; (2) If the Operator shall fail to observe any other covenant, condition or agreement on its part under this Agreement after thirty (30) days written notice by the City specifying such default and requesting that it be remedied, unless the City shall agree, in writing, to an extension of such time prior to its expiration; provided that in event an extension is granted, the Operator shall proceed with reasonable diligence to remedy the same. Section 6.02 Remedies. Whenever any Event of Default referred to in Section 6.01 shall have happened and be subsisting, the City may take any one or more of the following remedial steps after written notice mailed to the Operator at least ten (10) days prior thereto: (1) Re-enter and take possession and operation of the ramps without termination of this Agreement, cancel the Operating Agreement and use its best efforts to enter into an operating agreement with another person for the account of the Operator; (2) Terminate this Agreement, exclude the Operator from possession and use of the ramps, cancel the Operating Agreement and use its best efforts to enter into an operating agreement with another person for the account of tiie Operator; (3) Exclude the Operator from possession and use of the ramps, with or without terminating this Agreement, cancel the Operating Agreement and operate the ramps themselves; -12- .. �'��1�:"� (4) Terminate this Agreement, exclude the Operator from possession of the Ramps, cancel the Operating Agreement and upon ten (10) days written notice to Operator, sell all or any part of the Ramps at the best price obtainable (provided such sale is permitted by applicable law) , such sale to be on such terms and conditions as the City, in its sole discretion, deems appropriate and apply the proceeds for the account of the City; (5) Require the Operator to furnish copies of all books and records of the Operator pertaining to the Ramps; (6) Exercise any remedies available to it under the Minnesota Uniform Commercial Code; or (7) Take whatever action at law or in equity may appear necessary or appropriate to collect the Net Income and Additional Charges then due and there- after to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Operator under this Agreement. Section 6.03 Non-Exclusive Remedies. No remedy herein conferred upon or reserved to the City under this Agreement is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or cenmission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised fr�n time to time and as often as may be deemed expedient. Section 6.04 Attorneys' Fees and Expenses. In the event the Operator shall default under any of the provisions of this Agreement and the City should employ outside attorneys or incur other expenses for the collection of net income or charges or the enforcement of performance of any obligation or agreement on the part of the Operator or the protection of its security interest in the Ramps, the Operator will, on demand, pay to the City the reasonable fee of such attorneys and such other e�enses so incurred. Section 6.05 Effect of Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other bre ach here under. Section 6.06 Performance by Third Parties. The City may permit third parties to perform any and all acts or take such action as may be necessary on behalf of the Operator to prevent or correct any Event of Default. Such performance by third parties shall not, in any way, diminish or absolve the Operator of primary liability hereunder. -13- ART IC LE 7 GENERAL Section 7.01 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by first class mail, postage prepaid, with property address as indicated below unless otherwise provided by the respective parties: To Operator: Science Museum of Minnesota 30 East Tenth Street Saint Paul, Minnesota 55101 To City: City Clerk City Hall Saint Paul, Minnesota 55102 Section 7.02 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the City, Operator, and their respective successors and assigns. Section 7.03 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof, unless such holding makes it practicably impossible for the Ramps to be operated as a public parking facility. Section 7. 04 Amendments, Changes and Modifications. Except as otherwise herein provided, this Agreement may be amended, changed, modified, altered or terminated with the mutual c�sent of the parties. Section 7.05 Law Governing. This Agreement shall be construed in accordance with the laws of Minnesota; provided, however, that the parties shall be entitled to all rights conferred by any applicable federal statute, rule or regulation. Section 7.06 Required Approvals. All consents and approvals required in this Agreement to be obtained from the City or Operator shall be in writing and shall not be unreasonably withheld or delayed. -14- • - ��S s�.l�,�� . IN WITNESS WHEREOF, the City and the Science Museum of Minnesota have caused this Agreement to be executed in their respective corporate names and their respective corporate seals to be hereunto affixed and attested by their duly authorized officers, all as of the date first above written. CITY OF` SAINT PAUL By By Mayor Director, Department of Finance and Management Services Subscribed and sworn to before me this Subscribed and sworn to before me this day of , 19 day of , 19 By By City Clerk Director, Department of Planning and Economic Development Subscribed and sworn to before me this Subscribed and sworn to before me this day of , 19 day of , 19 APPROVED AS TO FORM By City Attorney SCIENCE MUSEUM OF MINNESOTA In the Presnce of: By President BY Secretary (Seal)