05-437Council File # � �� �
Resolution #
Green Sheet # �va�29
Presented By
Referred to
RESOLUTION
CITY OF SAINT PAUL, MINNESOTA � G�
Committee: Date
1 WHEREAS, the City and. Como Amusement, LLC have entered into a Management
2 Ageement granting Como the right to redevelop and operate the amusement ride area at Como
3 Zoo; and
4 WHEREAS, the financing for improvements to the amusement ride area is through
5 Western Bank; and
6 WHEREAS, Western Bank has required as security for payment and performance of
7 Como's obligations under the loan agreement that the City grant a leasehold mortgage and
8 security interest in the Management Agreement and to assign to Western the rights in the
9 Management Agreement; and
10 WHEREAS, Como Amusement LLC cannot proceed with the Management Agreement
11 without the funding from Westem; now, therefore, be it
12 RESOLVED, that the appropriate City officials are hereby authorized to enter into the
13 attached Consent and Disclaimer and Memorandum of Agreement for the purpose of allowing
14 Como Amusement LLC to grant to Western Ban a leasehold mortgage and security interest in its
15 interest in the property and the Management Agreement.
Requested by Division of Parks and
Recreation , ,q g � � J
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Form Approved by City
By:
for�
By:
Approved
Council
By: .�.�'ii �J!/�
By:
Adopted by Council: Date: //'�/� /6'��
7
Adoption Certified by Council Secretary
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� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
DepartrneM/officelcouncil: Date Initiated:
pR Paz]sandRac;reation 28-APR-05 Green Sheet NO: 3026294
Conqct Person & Phone• DeoertmeM Sent To Person Ieitial/Date
Ginge� Palmer � 0 ar n Rec eation G _ /
2 ASSign 1 aris and Rec eation De artment Director ���� ✓�'/
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Must Be on Council /�genda by (Date): Number 2 - A m
FO�
RoUting 3 a or's OtL Ma or/AssisYant �
Order a uncil
5 ' Clerk Cti Clerk
Total # of Signature Pages _(Clip All Loptions for Signature)
Action Requested•
Approval of resoluhon authorizing City to enter into attached agreements, Memorandum of Agreement and Consent and DiscIaimer.
Recommendations: Approve (A) or Reject (R): Personal Service Contrects Must Answer the Following Questions:
Planning Commission 1. Has this persoNfirm ever worked under a contract for this departrnent?
CIB Committee Yes No
Civil Service Commission 2. Has this person/firm ever been a city employee?
Yes No
3. Dces this personffirtn possess a skill not normally possessed by any
� wrrent city employee?
Yes No
F�cplain all yes answers on separate sheet and attaeh to green sheet
Initiating Problem, issues, Opportunity (Who, What, When, Where, Why):
Consenf and Disclaimer is necessary for finaucing of improv��rthe Axnusement Pazk at Como Zoo and Conservatory.
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AdvantaneslfApproved:
Ability for operator to process financing Ability for Operator to process financing so the Operator, Como Amnsement, LLC, can
proceed with improvements to the Amusement Pazk under the terms of the Como Amusement Pazk Management Agxeement.
DisadvantapeslfApprovetl:
None
DisadvanWges N Not Approved: �
Operator cannot proceed with improvements to the Amusement Pazk under the terms of the Como Amusement Pazk Management
Agreement.
Total Amount of 0 CosURevenue Budgeted: f�
Transaction: � �� � i
Funding Source: Activity Number: �
Financial Information: c � d_ 2�QJ
(Explain) . ���'R�'��'1 �PflPS� !lb64 n
A � � CITY ATTORIV�\l
,
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MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT is entered into this of April, 2005, by
and between COMO AMUSEMENT, LLC, a Minnesota limited liability company ("Operator")
and THE CITY OF SAINT PAiJL, a municipal corporation, through its Parks and Recreation
division ("Citv").
RECITALS:
A. Operator and City have entered into a certain Como Amusement Park
Management Agreement (the "Aereement") dated as of October 10, 2004, whereby City granted
Operator the sole and exclusive right to redevelop and operate a portion of Como Regional Pazk,
a pazk located in Saint Paul, Minnesota ("Como Park"), a portion of which is legally described
on Exhibit A attached hereto and made a part hereof (the "Premises").
B. The parties wish to give notice of the existence of the Agreement.
IN CONSIDERATION of the sum of One and 00/100 Dollar ($1.00) and other �ood and
valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
I. Operator and City have entered into the Agreement for the redevelopment and
operation of a portion of the Premises by Operator.
2. The term of the Agreement ends on October 10, 2019.
3. This Memorandum of Agreement has been executed and delivered by the parties
for the purpose of recording and giving notice that a contractual relationship for redevelopment
and operation of a portion of Como Pazk and has been created between the Operator and City in
accordance with the terms, covenants and conditions of the Agreement.
4. The terms and conditions of the Aa eement are incorporated by reference into this
Memorandum of Agreement as if set forth fully herein at length.
(The signatures and acknowledgements follow.)
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IN WITNESS WHEREOF, each of the parties hereto has caused this Memorandum of
Agreement to be duly executed as of the day and year first above written.
OPERATOR:
COMO AMUSEMENT, LLC
�
CITY:
THE CTI'Y OF SAINT PAUL
Its: Mayor
Its: Office of Finance
Its: Director of Parks & Recreation
By:
its: Director of Human Rights
APPROVED AS TO FORM:
Assistant City Attorney
(The acknowledgments follow.)
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STATE OF MINNESOTA
CK�Ii1►Yr'(�J�
)
) ss.
The foreaoing instrument was acknowledged before me this
,the
_ day of April, 2005 by
of Como Amusement,
LLC, a Minnesota limited liability company, on behalf of the limited liability company.
Notary Public
STATE OF MINNESOTA
COLTNTY OF
)
) ss.
The foregoing instrument was acknowledged before me this day of April, 2005 by _
, the Mayor of The City of Saint Paul, a municipal corporation, on behalf
of the municipal corporation.
Notary Public
STATE OF MIIVNESOTA )
) ss.
COUNTY OF 1
The foregoing instrument was acknowledged before me this day of April, 2005 by
, the Office of Finance of The City of Saint Paul, a municipal corporation,
on behalf of the municipal corporation.
Notary Public
(The acknowledgements continue.)
3 3
OS- �/3'7
STATE OF MINNESOTA )
) ss.
COUNrY OF )
The foregoing instrument was acknowledaed before me this day of April, 2005 by _
, the Director of Parks and Recreation of The City of Saint Paul, a
municipal corporation, on behalf of the municipal corporation.
Notary Public
STATE OF NII1�INESOTA )
) ss.
COUNTY OF _)
The foregoing instrument was acknowledged before me this day of April, 2005 by
, the Director of Human Rights of The City of Saint Paul, a municipal
corporation, on behalf of the municipal corporation.
Notary Public
This instrument was drafted by:
Fredrikson & Byron, P.A. (CLS)
200 South Sixth Street, Suite 4000
Minneapolis, Minnesota 55402
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EXHIBIT A
Leeal Description
The SE'/a of Section 22, Township 29, Range 23, Ramsey County, Minnesota.
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CONSENT AND DISCLAIMER
04�2�5
THIS CONSENT AND DISCLAIMER (this "Aereement") is made as of April _, 2005,
by and among T7� CTTY oF SaINT PAUL, a municipal corporation, throu�h its Parks and
Recreation division ("Citv"), CoMO AMUSEMErrr, LLC, a Minnesota limited liability company
("Como"), and WESTERN BANK, a Minnesota state banking corporation ("L.ender").
RECITALS
A. City is the fee owner and operator of the Como Regional Pazk, a park located on
378 acres of land and 72 acres of water in Saint Paul, Minnesota ("Como Park"), a portion of
which is legally described on Exhibit A attached hereto.
B. City owns and operates the Como Zoo ("Zoo") and the Marjorie McNeely
Conservatory ("Conservatord') located within the Property (as defined below).
C. City desires to redevelop the current amusement park azea of the Property (as
defined below) which is approximately 164,000 squaze feet and adjacent to the Como Zoo and
the Conservatory ("Amusement Park").
D. City granted Como the sole and exclusive right to redevelop and operate the
Amusement Park, to operate the food services and vending machines at the Amusement Puk and
Zoo, and to provide limited catering services to City and other groups and organizations
throughout the Amusement Park and Zoo, and to operate the Amusement Park, pursuant to that
certain Como Amusement Park Management Agreement evidenced between City and Como
dated as of October 10, 2004 (the "Mana�ement A�reemenP'), which is evidenced by that certain
Memorandum of Agreement dated , and filed for record ,
_, in the in the Office of the Reb strar of Titles of Ramsey County, Minnesota, as Document
No.
E. The portions of Como Park that Como has the right to occupy and operate
pursuant to the Management Agreement is referred to herein as the "PropertV".
F. Pursuant to a certain Construction and Term I.oan Agreement dated on or about
April _, 2005 ("Loan AereemenP'), among Lender, Como and Zooper Food, LLC, a Minnesota
limited liability company ("Zooper"; Como and Zooper are collectively referred to as
`Borrower"), I.ender has agreed to provide certain financial accommodations to Borrower to,
among other things, enable Como to fulfill its obligations under the Management Agreement.
G. To secure payment and performance of Borrower's obligations under the Loan
Agreement, Como has granted, or will grant, to Lender a leasehold mortgage and security interest
("Lien") in Como's interest in the Property and the Manaaement Agreement and has assigned, or
will assign, to I.ender the Management Agreement (the "Assi ng ment").
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H. Lender and Borrower have required that (i) City consent to the Lien and the
Assia ment; and (ii) City agree to grant Lender certain ri�hts to enable Lender to protect its
security and interests under such Lien and the Assignment.
AGREEMENT
IN CONSIDERATION of the foregoing and for other good and valuable consideration,
the receipt and sufficieney of which are hereby acknowledaed, the parties aaree as follows:
1. Consent. City hereby consents to the �rant of the Lien and the Assignment.
2. Lender's Right to Cure Defaults. City a�rees that L.ender shall have the right,
but not the obligation, at any time prior to termination of the Management Agreement, to pay any
rent, fees, commissions or other obligations due under the Management Agreement and to do any
other act or thing required of Como or necessary or proper to prevent termination of the
Management Agreement. All payments made and things done by Lender shall be as effective as
if made or done by Como. .
3. Opuortunitv to Cure Defaults. Should any default or other event occur under
the Management Agreement which would permit City to terminate the Management Agreement,
City shall not temunate the Management Agreement unless and until L,ender shall have failed to
remedy or cure such default within the time period granted to Lender in this paragraph. Lender
shall have thirty (30) days after receipt by L.ender of written notice from City setting forth the
nature of the default (such thirty-day period being referred to as the "Cure Period"); provided,
however, that (a) i£ the default is such that it is not reasonably capable of cure within the Cure
Period, I.ender shall have a reasonable time after expiration of the Cure Period within which to
remedy such default, and (b) if the default is not reasonably capable of being cured by Lender
without possession of the Property, Lender shall have a reasonable time after obtaining
possession of the Property to cure the default. Lender shall be permitted this additional time
period to gain possession and cure the default under clauses (a} or (b) above only so long as
(i) Lender has fully cured any default in the payment of any monetary obligation of Como within
the Cure Period and shall continue to pay currently such monetary obligations when the same are
due, and (ii) Lender shall, within the Cure Period, commence foreclosure or other appropriate
proceedings necessary to gain possession of the Property and be diligently prosecuting any such
proceedings, subject to possible delay resulting from any injunction or by reason of applicable
law or any action by any court having jurisdiction or any bankraptcy, reorganization or
insolvency proceeding. City hereby acknowledges and a�rees that Lender shall not succeed to
Como's position under the Management Agreement or be deemed liable for performing all the
terms, covenants and conditions of the Management Agreement by virtue of exercising any of the
foregoing rights or any of L,ender's rights under the Lien or the Assignment. City agrees not to
contest or impede the exercise by L.ender of any right it has under or in connection with the Lien
or the Assignment.
4. Termination of A2reement; Non-Assumption of Liabilities. Upon the
occurrence of a Default or an Event of Default (each as defined in the Loan Agreement) during
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the term of this Aa eement and at the option of Lender exercised by written notice to City,
I.ender may exercise its rights with respect to the Lien or pursuant to the Assib ment. Lender
does not hereby assume or agree to perform any of the obligations or duties of Como under the
Management Agreement.
5. Nofices. City agrees to maii by a recoa ized overnight maii delivery service or
personally deliver to Lender a copy of any and all notices respecting a defauit, event of default or
any circumstances that may give rise to a default or event of default under the Management
Aa eement which City may from time to time give to or serve upon Como pursuant to the
provisions of the Management Agreement. Such copies shall be mailed or delivered to L,ender
simultaneously with the mailing or delivery to Como. L.ender's address for purposes of all
notices to be senY to Lender pursuant to this Agreement shall be:
Western Bank
McCarrons I.ake Office
1740 Rice Street
Maplewood, MN 55113
Attention: Alan D. Emory, Vice President
or such other address which Lender may supply to City. City's address for purposes of all
notices to be sent to City parsuant to this Agreement shall be:
THE CITY OF SAINT PAUL
Como Park Zoo & Conservatory
1225 Estabrook Drive
St. Paul, Minnesota 55103
Attention: Liz Anderson
or such other address which City may supply to Lender. Notices shall be deemed given when
personally delivered to such addresses or twenty-four (24) hours after being placed with an
overnight detivery service and properly addressed.
6. Foreclosure. Foreclosure or other method of enforcing I.ender's Lien or
Assignment or a conveyance of Como's interest in the Mana�ement Agreement in lieu of
foreclosure shall not require the consent or approvaI of City or constitute a default under the
Management Agreement and City shall recognize Lender as the operator under the Management
Agreement in such an event. City agrees to work cooperatively with I.ender to find a new
operator for the Property, which will either assume or pay-off Lender's loans to Borrower under
the Loan Agreement and which shall be reasonably acceptable to both City and Lender. If
Lender becomes the operator under the Management Agreement or any new agreement obtained
pursuant to paragraph 7 below, Lender shall be personally liable for the obligations of Como
under the Management Agreement or under such new agreement only until such time, if ever, as
I.ender assigns such interest to a third party. Any assignment of Comds rights under the
Management Agreement pursuant to foreclosure sale to any party other than I.ender or by L.ender
following Lender's acquisition of Como's interest in the Management Agreement shall be
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subject to the consent of City, which consent City a�rees shall not be unreasonably withheld,
conditioned or delayed.
7. New A2reement. If the Management Aareement is terminated as a result of any
rejection oF the Management Agreement in any bankruptcy, reorganization or insolvency
proceeding, City shall, upon written request by L.ender given within thirty (30) days after such
ternunation, execute and deliver a new Management Agreement of the Property to L.ender (or its
approved nominee or assignee, for which City agrees it shall not unreasonably withhold,
condition or delay its approval} or a court-appointed receiver, for the remainder of the term of the
original Management A�reement with the same agreements, covenants, conditions and options
(except for any requirements which have been fulfilled by Como prior to termination) as aze
contained in the original Management Agreement; provided, however, that I.ender (or its
approved nominee or assignee, for which City agrees it shall not unreasonably withhold,
condition or delay its approval) or a court-appointed receiver shall at the time of execution by
City of such new Management Agreement cure any monetary defaults under the original
Management Agreement and shall promptly cure any other defaults of Como within thirty (30)
days following the later to occur of (a) the execution and delivery of a new Management
Agreement of the Property pursuant to this paragraph or (b) the date on which the operator under
such new agreement is able to occupy the Property following the eviction of, termination of or
vacating by Como. City shall not agree to a voluntary termination, cancellation, amendment,
modification or surrender of the Management Agreement without Lender's prior written consent.
8. No Mereer. Except if the Management Agreement is terminated in accordance
with its terms, the fee title to the Property, the leasehold estate and the rights to operate the
Property of the operator created by each Management Agreement shall not merge but shall
remain separate and distinct in the event the same entity acquires both the fee and leasehold
interests.
9. Citv's Estoanel Statement. City hereby certifies to I.ender that, to the best of
City's knowledge, as of the date hereof, the following are true and conect:
(a) The Management Agreement is presently in full force and effect and has
not been modified, amended or assigned with respect to the Property.
(b) The term of [he Management Agreement commenced on October 10,
2004, and ends on October 10, 2019.
(c) There are no existing defaults under the Management Agreement by
Como or City, and City knows of no event which, but for the passage of
Time or the giving of notice or both, would constiTute a defaulT or an evenT
of default under the Management Agreement.
(d) AlI rents, commissions, fees and other sums due and payable to tfie
City under the Management Agreement have been paid in full.
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(e) Neither City nor Como has commenced any action or given
or received any notice for the purpose of terminating the
Management Agreement.
10. Disclaimer of Interest in Trade Fixtures and Other Personal Prouertv. City
acknowled�es and agrees that it has no interest of any kind in or to Como's personal property,
including, without limitation, any trade fixtures on the Property (collectively, the "Tenant
Property"), and hereby disclaims any interest in or to the Tenant Property. City agrees that
I.ender may enter upon the Property for purposes of removin� the Tenant Property.
11. Riuht to Exercise Options. I.ender shall have the right, but not the obligation, to
exercise any option, including, without limitation, any option to renew the Management
Agreement pursuant to the terms thereof, in accordance with the terms of such Agreement, with
any exercise of such option deemed to be as effective as if done by Como.
12. Successors and AssiEns. City agrees that all of the provisions of this Agreement
shall be binding on its successors in interest as its interests in the Property may appear and shall
run with the land and remain in effect so long as any obligations are outstanding under the L.oan
Agreement, and shall be applicable to any extension or renewal of the Management Agreement
entered into between Como or any approved assignee or successor to Como and City or any
successor or assign of City.
13. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shali be deemed an original, all of which together shall constitute one
and the same instrument.
14. Choice of Law. The laws of the State of Minnesota shail govem the validity,
construction, performance and enforcement of this Agreement. Any and all disputes arising from
this Agreement shall be resolved wiThin the State of Minnesota, County of Ramsey or Hennepin,
unless otherwise mutually agreed to by the Parties.
15. No Waiver. Any failure of any party to enforce, at any time oz for any period of
rime, any of the provisions under this Agreement shall not be construed as a waiver of the right
of that -arty to enforce such provisions unless said waiver is in writing, and signed by an
authorized representative of the parties.
16. Severabilitv. If any provision of this Agreement shall be deemed to be unlawful
or unenforceable by a court of competent jurisdiction, such termination shall have no effect on
the validity and enforceability of the other terms and conditions of this Agreement, and the
challenged term shall be deemed deleted.
17. Attornev's Fees. If any party undertakes any action or arbitration, including
eqaitable relief, against the other arisin� out of or in connection with this Agreement, then the
prevailing party shall be entitied to recover from the losing pazty reasonable attorney's fees and
costs.
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18. Cantions. The captions are inserted into this Agreement for convenience only
and in no way define, limit or describe the scope of this Agreement nor the intent of any
provision thereof.
19.
provisions.
Time is of the Essence. Time is of the essence of the Aa eement and each of its
(The signature and acknowledgement pages follow.)
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THE CITY OF SAINT PAUL,
a municipal corporation
Tts: Mayor
By:
Its: Office of Finance
By:
Its: Director of Pazks & Recreation
By:
Its: Director of Human Rights
APPROVED AS TO FORM:
Assistant City Attorney
STATE OF NIINNESOTA )
) ss.
COT.JNTY OF )
The foregoing instrument was acknowledged before me this day of April, 2005 by
, the Mayor of The City of Saint Paul, a municipai corporation, on behaIf
of the municipal corporation.
Notary Public
(The signatures and acknowledgements continue.)
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STATE OF NiINNESOTA
COUNTY OF
)
) ss.
� -� 3'1
The foregoing instrument was acknowledged before me this day of April, 2005 by _
, the Office of Finance of The City of Saint Paul, a municipal corporation,
on behalf of the municipal corporation.
Notary Public
STATE OF MIIVNESOTA
COUNTY OF
)
) ss.
The foregoing instrument was acknowledged before me this day of April, 2005 by _
, the Director of Pazks and Recreation of The City of Saint Paul, a
municipal corporation, on behalf of the municipal corporation.
Notary Public
STATE OF NIIlVNESOTA
COUNTY OF
)
) ss.
The foregoing instrument was acknowledged before me this day of April, 2005 by _
, the Director of Human Rights of The City of Saint Paul, a municipai
corporation, on behalf of the municipal corporation.
Notary Public
(The signatures and acknowledgements continue.)
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COMO AMUSEMENT, LLC,
a Minnesota limited liability company
STATE OF MINNESOTA
��Iil��ll'Z�7�
)
) ss.
�--'�37
The foregoing instrument was acknowledged before me this day of April, 2005 by
, the of Como Amusement,
LLC, a Minnesota limited liability company, on behalf of the limited liability company.
Notary Public
(The signatures and acknowledgements continue.)
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WESTERN Bfu�tK,
a Minnesota state banking corporation
By:
Its: Vice President
STATE OF NIII�TNESOTA )
) ss.
COUNTY OF 1
�-���
The foregoing instrument was acknowledged before me this day of April, 2005 by
Alan D. Emory, the Vice President of Western Bank, a Minnesota state banking corporation, on
behalf of the corporation.
Notary Public
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Como Park Legal Description
The SE'/a of Section 22, Township 29, Range 23, Ramsey County, Minnesota.
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