05-511Council File # V .�� ��`
Green Sheet # � ��
RESOLUTION
CITY OF SAINT,PAUL, MINNESOTA
Presented By
Referred To
Committee: Date
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1 WHEREAS, the City and ZOOPER FOODS, LLC have entered into a Food and
2 Beverages Service Agreement granting ZOOPER FOODS, LLC the right to provide food and
3 beverage service at the Visitor Center Cafe and food and beverage services at catered events held
4 in the Visitor Center and the Mazjorie McNeely Conservatory; and
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6 WHEREAS, the financing for required Operator build-outs at the Cafe is through
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Western Bank; and
WHEREAS, Western Bank has required as security for payment and performance of
ZOOPER FOOD's obligations under the loan agreement that the City grant a leasehold mortgage
and security interest in the Food and Beverage Services Agreement and to assign to Western the
rights in the Food and Beverage Services Agreement; and
WF3EREAS, ZOOPER FOODS, LLC cannot proceed with the Food and Beverage
Services Agreement without the funding from Westem; now, therefore, be it
17 RESOLVED, that the appropriate City officials aze hereby authorized to enter into the
18 attached Consent and Disclaimer and Memorandum of Agreement for the purpose of allowing
19 ZOOPER FOODS, LLC to grant to Western Bank a leasehold mortgage and security interest in
20 its interest in the property and the Food and Beverage Services Agreement.
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° � Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
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DepartrnenUOffice/council: Date Initiated:
V � .�• �
PR -���d��, �Y-05 Green Sheet NO: 3026572
Cor�d Person & Phone• ���ent SeM To Person Initial/Date
Gi�er Palmer � 0 ada ana Recr ' —��
2 ��� 9 Assign 1 arks and Recreatioo De artment Director ���R�
Must Be on Council Agenda by (Date): Number Z Attom ,�
u � � For
ROUting 3 a or's f5ce Ma or/Assistant
` Order 4 �
5 i Clerk C5 Clerk
Total # of Signature Pages _(Clip NI Locations for Signature)
Action Requested:
Approval of resolution authorizing City to enter into attached agreements, Memorandum of Agreement and Consent and Disclaimer.
Recommendations: Approve (A) or Reject (R): Personal Service CoMracts Must Answer the Fnllowing Questions:
Planning Commission 1. Has this personffirm ever worked under a contract for this department?
CIB Committee Yes No
Civil Service Commission 2. Has this person/firm ever been a city employee?
Yes No
� ' 3. Does this perso�rm possess a skill not normally possessed by any
current city employee?
Yes No
Explain all yes answers on separete sheet and attach to green sheet
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
Cafe at Como Zoo Consent and Disclaimer is necessary for finaucing of build out of the cafe at Como Zoo Visitors Center and Marjorie
McNeely Conservatory:
AdvanWges IfApproved:
Ability for operator to process financing so the Operator, Zooper Food, LLC, can proceed with build out of tbe cafe under the teiuvs of
ffie Como Food and Beverage Service Agreement.
DisadvantapeslfApproved:
None
Disadvantages If Not Approved:
Operator cannot proceed with build out of the Cafe under the terms of the Como Food and Beverage Services Agreement.
Total Amount of CosURevenue Budgeted p (+
Trensaction: f1El�E�UE�
Fundinp Source: Activib Alumber: �� ���ep°�
Financial infortnation:
MAY � s 2005
(Explain)
MAY 2 7 2�IQ5 MAYOR'S OFFICE
.�
CONSENT AND DISCLAIMER
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THIS CONSENT AND DISCLAIMER (this "AsreemenP') is made as of April _, 2005,
by and among 1� CTTY oF Sn�T PAUL, a municipal corporation, through its Parks and
Recreation division ("Cit '), ZooPEx FoOD, LLC, a Minnesota limited liability company
("ZooDer"), and WESTERN BANK, a Minnesota state banking corporation ("Lender").
RECITALS
A. City is the fee owner and operator of the Como Regional Park, a park located on
378 acres of land and 72 acres of water in Saint Paul, Minnesota ("Como Park"), which is legally
described on Exhibit A attached hereto.
B. City owns and operates the Como Zoo ("Zoo") and the Mazjorie McNeely
Conservatory ("Conservatorv") located within the Property (as defined below).
C. City owns and operates the Visitor Education and Resource Center ]ocated within
the Zoo ("VC"), and the VC contains one cafe for the purpose of providing food and beverage
services to VC's visitors and guests ("VC Cafe") within the Property (as defined below).
D. City granted Zooper the right to operate and provide food and beverage services at
the VC Cafe and catering services to the City and other groups and organizations throughout the
VC, the Conservatory and within the VC Cafe pursuant to that certain Food and Beverage
Services Agreement between City and Zooper dated as of , 200_ (the " Services
Agreement which is evidenced by that certain Memorandum of Agreement dated
, , and filed for record , in the in the Office of the Registrar of
Tides of Ramsey County, Minnesota, as Document No.
E. The portions of Como Park that Zooper has the right to occupy and operate
pursuant to the Agreements is refened to as the "Property".
F. Pursuant to a certain Construction and Term Loan Agreement dated on or about
April _, 2005 ("Loan AQreement"), among I.ender, Zooper and Como Amusement, LLC, a
Minnesota limited liability company ("Como"; Zooper and Como are collectively refened to as
("Borrower"), L.ender has agreed to provide certain financial accommodations to Borrower to,
among other things, enable Zooper fulfill its obligations under the Services Agreement.
G. To secure payment and performance of Botrower's obligations under the Loan
Agreement, Borrower has granted, or will grant, to I.ender a leasehold mortgage and security
interest ("Lien") in Zooper's interest in the Property and of the Services Agreement and has
assigned, or will assib , to I.ender the Services Aa eement (the "Assi�nmenY').
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H. Lender and Borrower have required that (i) City consent to the Lien and the
Assignment; and (ii) City a�ee to grant I.ender certain rights to enable Lender to protect its
security under such Lien and Assignment.
AGREEMENT
IN CONSIDERATION of the foregoing and for other �ood and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consent. City hereby consents to the grant of the Lien and the Assignment.
2. Lender's Right to Cure Defaults. City agrees that Lender shall have the right,
but not the obligation, at any time prior to termination of the Services Agreement, to pay any
rent, fees, commissions or other obligations due under the Services Agreement and to do any
other act or thing required of Zooper or necessary or proper to prevent termination of the
Services Agreement. All payments made and things done by L.ender shall be as effective as if
made or done by Zooper.
3. Opuortunitv to Cure Defaults. Should any default or other event occur under
the Services Agreement which would permit City to ternrinate the Services Agreement, City shall
not terminate the Services Agreement unless and until I.ender shall have failed to remedy or cure
such default within the time period granted to I.ender in this paragraph. Lender shall have thirty
(30) days after receipt by I.ender of written notice from City setting forth the nature of the default
(such thirty-day period being refened to as the "Cure Period"); provided, however, that (a) if the
default is such that it is not reasonably capable of cure within the Cure Period, L.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 reasonabiy capable of being cured by L.ender without possession of the
Property, L.ender shall have a reasonable time after obtaining possession of the Property to cure
the default. L.ender 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 Zooper 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 bankruptcy, reorganization or insolvency proceeding. City hereby
acknowledges and agrees that L,ender shall not succeed to Zooper's position under the Services
Agreement or be deemed liable for performing all the terms, covenants and conditions of the
Services Agreement by virtue of exercising any of the foregoing rights or any of Lender's rights
under the Lien or the Assignment. City agrees not to contest or impede the exercise by Lender of
any right it has under or in connection with the Lien or the Assignment.
4. Termination of Agreement: Non-Assumntion 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 Agreement and at the option of Lender exercised by written notice to City,
L.ender may exercise its rights with respect to the Lien or pursuant to the Assignment. I.ender
does not hereby assume or agree to perform any of the obligations or duties of Zooper under the
Services Agreement.
5. Notices. City a�ees to mail by a recognized ovemight mail delivery service or
personally deliver to Lender a copy of any and all notices respecting a default, event of default or
any circumstances that may give rise to a default or event of default under the Services
Ab eement which City may from time to time give to or serve upon Zooper pursuant to the
provisions of the Services Agreement. Such copies shall be mailed or delivered to I.ender
simultaneously with the mailing or delivery to Zooper. I.ender's address for purposes of all
notices to be sent to L,ender pursuant to this Ab eement shall be:
Westem Bank
McCarrons Lake 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 pursuant to this Agreement shall be:
THE CTTY 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 I.ender. Notices shall be deemed given when
personally delivered to such addresses or twenty-four (24) hours after being placed with an
overnight delivery service and properly addressed.
6. Foreclosure. Foreclosure or other method of enforcing I.ender's Lien or
Assignment or a conveyance of Zooper's interest in the Services Agreement in lieu of Poreclosure
shall not require the consent or approval of City or constitute a default under the Services
Agreement and City shall recognize Lender as the operator under the Services Agreement in such
an event. City agrees to work cooperatively with Lender to find a new operator for the Property,
which will either assume or pay-off L.ender's loans to Bonower under the L,oan Agreement and
which shali be reasonably acceptable to both City and L.ender. If Lender becomes the operator
under the Services Agreement or any new agreement obtained pursuant to pazagraph 7 below,
Lender shall be personally liable for the obligations of Zooper under the Services Agreement or
under such new agreement only until such time, if ever, as Lender assigns such interest to a third
party. Any assignment of Zooper's rights under the Services Agreement pursuant to foreclosure
sale to any party other than Lender or by L.ender following L.ender's acquisition of Zooper's
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interest in the Services Agreement shall be subject to the consent of City, which consent City
agrees shall not be unreasonabiy withheld, conditioned or delayed.
7. New Agreement. If the Services Aa eement is terminated as a result of any
rejection of the Services Agreement in any bankruptcy, reorganization or insolvency proceeding,
City shall, upon written request by Lender given within thirty (30) days after such termination,
execute and deliver a new Services Agreement of the Property to Lender (or its approved
nominee or assignee, for which City aa ees it shall not unreasonably withhold, condition or delay
its approval) or a court-appointed receiver, for the remainder of the term of the original Services
A�eement with the same a�eements, covenants, conditions and options (except for any
requirements which have been fulfilled by Zooper prior to termination) as are contained in the
original Services Ab eement; rovided, however, that 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 shall at the time of execution by City of such new
Services Agreement cure any monetary defauits under the original Services Agreement and shall
promptly cure any other defaults of Zooper within thirty (30) days following the later to occur of
(a) the execution and delivery of a new Services 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 Zooper. City shall not agree to
a voluntary termination, cancellation, amendment, modification or sunender of the Services
Agreement without L,ender's prior written consent.
8. No Mereer. Except if the Services 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 Services Agreement shal] not merge but shaIl remain separate and
distinct in the event the same entity acquires both the fee and leasehold interests.
9. City's Estonnel Statement. City hereby certifies to Lender that, to the best of
City's knowledge, as of the date hereof, the following are true and correct:
(a) The Services 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 the Services Agreement commenced on _
, , and ends on ,
(c) There are no existing defaults under the Services Agreement by
Zooper 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 Services Agreement.
(d) All rents, commissions, fees and other sums due and payable to the
City under the Services Agreement have been paid in full.
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(e) Neither City nor Zooper has commenced any action or given
or received any notice for the purpose of terminating the
Services Ab eement.
10. Disclaimer of Interest in Trade Fixtures and Other Personal Propertv. City
acknowledges and agrees that it has no interest of any kind in or to Zooper'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
Lender may enter upon the Property for purposes of removing the Tenant Property.
11. Right to Exercise Ontions. L.ender shall have the riaht, but not the obligation, to
exercise any option, including, without limitation, any option to renew the Services 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 Zooper.
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 appeaz and shall
run with the land and remain in effect so long as any obligations are outstanding under the Loan
Agreement, and shal] be applicable to any extension or renewal of the Services Agreement
entered into between Zooper or any approved assignee or successor to Zooper and City or any
successor or assign of City.
13. Counternarts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall 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 shall govern 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 or for any period of
time, 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 unlawfui
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
equitable relief, against the other arising out of or in connection with this Aa eement, then the
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prevailing party shall be entitled to recover from the losing party reasonable attomey's fees and
costs.
18. Cautions. The captions aze 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. Time is of the Essence. Time is of the essence of the Agreement and each of its
provisions.
(The signature and acknowledgement pages follow.)
C�
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THE CITY OF SAINT PAUL,
a municipal corporation
Its: Mayor
Its: Office of Finance
Its: Director of Parks & Recreation
By:
Its: Director of Human Rights
APPROVED AS TO FORM:
Assistant City Attorney
STATE OF NIII�TNESOTA )
) ss.
COUNTY OF 1
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
(The signatures and acknowledgements continue.)
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STATE OF MINNESOTA )
) 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
STATE OF MIlVNESOTA )
) ss.
COUN'I'Y OF )
The foregoing instrument was acknowledged 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.
STATE OF N£INNESOTA )
) ss.
COUNTY OF 1
Notary Public
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
(The signatures and acknowledgements continue.)
F�
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ZOOPER FOOD, LLC,
a Minnesota limited liability company
By:
Its:
STATE OF MIlVNESOTA
COUNTY OF
)
) ss.
The foregoing instrument was acknowledged before me this
,the
_ day of April, 2005 by
of Zooper Food, LLC, a
Minnesota ]imited liability company, on behalf of the limited liability company.
Notary Public
(The signatures and acknowledgements continue.)
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WESTERN BANK,
a Minnesota state banking corporation
Its: Vice President
STATE OF MINNESOTA )
) 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, Ran�e 23, Ramsey County, Minnesota.
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MEMORANDUM OF AGREEMENT
THIS MEMORANDLTM OF AGREEMENT is entered into this of , 2005,
by and between ZOOPER FOOD, LLC, a Minnesota limited liability company ("O�erator") and
THE CITY OF SAINT PAUL, a municipal corporation, through its Parks and Recreation
division ("Cit ').
RECTTALS:
A. Operator and City have entered into a certain Food and Beverage Services
Agreement (the "A¢reement") dated as of , , whereby City granted Operator the
sole and exclusive right to improve and operate a portion of Como Regional Park, a park located
in Saint Paul, Minnesota ("Como Pazk"), 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 Ab eement.
IN CONSIDERATION of the sum of One and 00/100 Dollar ($1.00) and other good 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 improvement and
operation of a portion of the Premises by Operator.
2. The term of the Agreement ends on ,
3. This Memozandum of Agreement has been executed and delivered by the parties
for the purpose of recording and giving notice that a contractual relationship for the improvement
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 Agreement aze incorporated by reference into this
Memorandum of Agreement as if set forth fully herein at length.
(The signatures and acknowledgements follow.)
05 - 511
IN WTTNESS WHEREOF, each of the parties hereto has caused this Memorandum of
Agreement to be duly executed as of the day and yeaz first above written.
OPERATOR:
ZOOPER FOOD, LLC
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CITY:
THE CITY OF SAINT PAUL
By:
Its: Mayor
By:
Its: Office of Finance
Its: Director of Parks & Recreation
Its: Director of Human Rights
APPROVED AS TO FORM:
Assistant City Attorney
(The acknowledgments follow.)
2 2
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STATE OF NIINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
,the
_ day of April, 200� by
of Zooper Food, LLC, a
Minnesota limited liability company, on behalf of the limited liability company.
Notary Public
STATE OF MIIVNESOTA
COiJNTY 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.
STATE OF MINNESOTA
COUNTY OF
)
) ss.
Notary Public
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 behaif of the municipal corporation.
Notary Public
(The acknowledgements continue.)
3 3
�5-5/1
STAT'E OF MINNESOTA )
) ss.
COUNTY OF )
The fore�oing instrument was acknowledged before me this day of April, 2005 by _
, the Director of Parks and Recreation of The City of Saint Paul, a
municipal cotporation, on behalf of the municipal corporation.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this day of April, 2Q05 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
Legal Descri�tion
The SE'/a of Section 22, Township 29, Range 23, Ramsey County, Minnesota.