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07-1236Council File # fj — a- (y Green Sheet # 3047610 RESOLUTION �� CITY OF �AINT PAUL, MINNESOTA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Presented by WHEREAS, Iancer Hospitality is a contract partner of the City of Saint Paul, the business relationslup defined by two legal ageements related to the provision of Amusement Pazk, Food Service, Catering and Cafe services at Como Pazk Zoo and Conseroatory (Como Campus) an operating unit of Saint Paul Pazks and Recreation; and WIiEREAS, the agreements leveraged over $5 million of inveshnent by Iancer in the completion of prioriry improvement projects desired as part of the ongoing implementalion of the Como Framework Plan, and provide annual support of over $500,000 towazds Como Campus operating budgets in annual fees and commissions, and WHEREAS, in canying out the referenced improvement projecu, private inveshnents by Lancer exceeding $200,000 above that which was anticipated at the rime of the ageements were executed was required in order to aclueve a program desired by the Division of Pazks and Recreation and Lancer, and WHEREAS, the Division of Pazks and Recrearion and Lancer have idenrified a need for additional private investment of over $550,000 to initiate two pending projects requued to support existing services at Como, and WHEREAS, the Division of Pazks and Recrearion and Lancer will benefit from amended agreements that reflect the full amount of private inveshnent, extend the term to allow for recovery of private investment, provide addirional revenue opportunities benefiting Como Campus budgets and update language to reflect current issues and operarional practices, NOW, THEREFORE, BE IT RESOLVED, that City officials and representatives aze authorized to enter imo amended ageements with Lancer Hospitality for the provision of Amusement Pazk Food Service, Catering, Cafe, and related services at Como Pazk Zoo and Conseroatory. Benanav Bosffom Requested by Department of: ✓ Thune Adopted by Council: Date Adoption Certified by Council Secretary By: —�� i Approve�o Date � By: ! �'.�/��J�1��' / . - Form By: I.Kd:ii1 � v / �� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � 6?- I �-3lv PR — P��dRecceaUOn Conqct Pereon 8 Phone: Mike Hahm 467-8296 Must Be On 26-DEC-07 Doc. Type: RESOLUTION W/$ TRANSAC E-DoeumeM Required: N Document Contact: Confact Phone: 'I&DEC-07 � Assign Number For Routing Ortler Total # of Signature Pages _(qip All Locations for Signature) Green Sheet NO: 3047690 0 ks and Recrea4oa i ta and Recreation De nt DireMor z 3 ' Attorne 4 or's O�ce MIa or/A�nt 5 omN Ci Councii 6 ' Clerk Cti Clerk 7 arks and Recreation Mike Hahm Approve Councit Resolution authoritittg City oH"icials to entes amended agreements with Lancer Hospitality for the provision of Amusement Pazk, Food Service, Catering, Cafe and related services at Como Park Zoo and Conseroatory. Planning Commission CIB Committee Civil Service Commission 1. Has this personlfirm ever worked under a rAntract for this department? Yes No 2_ Has this persorJ6rm ever been a city employee? Yes No 3. Ooes fhis person/firtn possess a skill not normally possessed by any current ciry employee? Yes No Explain all yes answers on separate sheet and attach to green sheet Initiating Probiem, Issues, Opporfunity 4Who, What, When, Where, Why): Como Park Zoo and Conseroatory hosts more than 1.7 million visitors each yeaz. Lancer is the City's contracted partner to provide the referencad services. In canying out the initiai agreements, more private investment than what was anricipated was required to achieve the objectives of the City and Lancer. Addifionally, improvements to support existing services require over $550,000 of additional investment, which Lancer is willing to make. For Lancer to make additional private investments, an opportunity to recover the investment is needed. AtivanYages If Approved: The referenced services will be available at Como Park Zoo and Conservatory. Needed improvements to the Visitor Center Kitchen and Concession Support area will be made using private funds. Como operating budgets will have additional revenue opporiunities. Obsolefe language will be updated and clatified. DisadvanWges if Approved: None Disativantages If Not Approved: The required impeovements will not be funded by Lancer and likely not iniriated as no other funding sources is available. Operations wili continue to be lunited by substandard conditions. Obsolete language will remain. New revenue opportuniries will be lost or delayed. Trensaction: $3fl Funaing souree: Lancer Hospitality Activity Number: 38033137 & 38033136 Financial lnformation: $SOQ000 + Apnually, Agreements provide Ciry's Como Campus a variery of annual fees and commission (Exp�ain) �ayments that support annual operating budgets. cosuRevenue Budyeted: y O, December 19, 2007 8:05 AM Page 1 CITY OF SAINT PAUL Mayor Christopher B. Coleman December 18, 2007 To: From: Subject: City Council President Lantry and City Council Mexnbers Bob Bierscheid, CPRP �� Directar of Parks and Recreation DIVISION OF PARKS AND RECREATION 300 City Hall Ann� Telephone: 651-266-6400 25 Wes-t Fourth Stree[ Facsimile: 651-292-7405 Saint Paul, Minnesop 55162 www.cisipaul.[cm.us/depts/parks `�/ � �� D Amended Lancer Hospitaliry Agreements A Council Resolurion is being routed for placement on the 12l26/07 agenda. The Resolution authorizes City officials to execnte amended agreements with Lancer Hospitality for services at Como Park Zoo and Conservatory. The Ciry Attorney's Office is worldng with Lancer to flnalize some langjia$e details in the contract documents. I anticipate the proposed amended agreements will be in final format Thursday, at which point the Council packets will be updated. Attached is a suuimary of the modifications within the contacts. Should you have any questions, please contact 1Vlike Hahm, Como Campus Manager, 651-48?- 8296. !�' �`. C�P&i �-, �, �� CAPRA Accrzdibfion AA-ADA-EEO Employer �a.��.E� � l}y � vat�onal Gold�Medal Award Amended Lancer Agreement Summary of Material Changes p-7�(� Amusement Park • Extends term by 5 operating seasons throu�h 202� season, two years of whick are subject to the private inveslment of $300,000 in a commissary (service} buildin� which must be completed within the next 9 months. o Shared cost for a new perimeter fence (up to $100,000} along a portion of The service drive. • Re-locating the voluntary donarion station from the interface of the Zoo Grounds/Como Town to the interface of tke Re� onal Park /Como Town. e Increases City commission on Amusement Ride revenues from 0% to 1.5% on sales $1,500,000.01+. • Inserts new clause providing City I2% commission on net vending mac:une receipts on Zoo grounds. o Eliminates "limited axclusivit�' and establishes "exclusive provider" of Lancer for the provision of public catering services. Exceptions remain only for limited City and Como Zoo and Conservatory Society sponsared events. Cafe/Caterin¢ • Extends term by 4 operating seasons through 2025 season, two years of which are subject to the private invesiment of $250,000 in a kitchen expansion project which mksY be completed within the next two yeazs. • Reflects intended allocation of space within the Visitor Center building and on Campus related to the provision of services. • Reflects commitment of both parties to offer healthy and nuti menu alternatives. • Allows City to acquire and assign Liquor License to Lancer (similar to Midway Stadium and Como Lakeside Pavilion) for facility. • Clarifies language related to commissions on discounted sales. • Eliminates "limited exclusivity" and establishes "exclusive provider" of Lancer for the provision of pubiic cafering services. Exceptions remain only for limited City and Como Zoo and Conservatory Society sponsored evenfs. Undates to both • Clarifies lann age requiring Lancer to comply with future City beverage provider a�reements. a Clarifies language related to tke approval process for future improvements. • Indicates infent of both parties to pursue alternatives that are outside of the contract if necessary to avoid terminating the agreements in the event of extended public closure due to pandemic or simi2ar pnblic heaith crisis. • Transitions ail investment in facilities to current language. Example "wiil build" now reads "kas builP'. • Reflects futl previous investment in both projects by Lancer, amounts exceeding $200,000 from what had been previously anticipated. � �—/ 2�3 (v ��'`� ga�nf �� . G1PR�1 : paul Parks a�a Recreation Commission .� C�lt� � � • 300GryHaI3MnCS,25W.4CSaett,SaitltPaW,MN55i02-(653)2666M10 t��' /i. ;:, � �4n� •'iV'�n...� f. RESOLUTION 07-20 WHEREAS, the Saint Paul Parks and Recreation Commission is an appointed body established to advise fhe Mayor and City Council on long-range and city-wide matters related to Parks and Recreation; and WHEREAS, Lancer Hospitality is a partner of the City and has two separate ageements related to the provision of Amusement Park, Food Service, Catering and Cafe services at Como Park Zoo and Conservatory; and WE3EREA5, Inveshnent by Lancer exceeding $200,000 above that which was anricipated at the time the agreements were entered was required in order to achieve the program desired by the City and Lancer, and additional investments by Lancer exceeding $550,000 are pending for needed facilities and improvements, and WHEREAS; Both the Ciry and Lancer will benefit from an amended ageement that reflects the fizll private investment and updates language to reflect current issues and operational practices, and WHEREAS; Lancer has been a valued pariner as indicated by the agreements providing over $500,000 in annual revenue payments by Lancer towazd Como operating budgets in the form of fees and commissions and also leveraging over $200,000 of related revenues, now, therefore BE IT KESOLVED, that the Saint Paul Parks and Recreation Commission supports enacting contract amendments with Lancer Hospitality. Adopted by tbe Sainf PauI Parks and Recreation Commission on December 12, 2007: Approved; Yeas � Nays � Absent: / Resolution 07-20 Attested to by: Staff to the ark and Recreation Commission g.\div\wp\parkscommission�resolutions�2007\07201ancer D�-�a� This AMENDED AND RESTATED FOOD AND BEVERAGE SERVICES AGREEMENT ("Amended Agreement") is entered into as of this day of , 2007, by and between The City of Saint Paul, through its Division of Parks and Recreation ("City"), and Zooper Food, LLC, a Minnesota entity ("Operator"). WHEREAS, the City and Operator entered into a Food and Beverages Services Agreement dated , 2004 ("Previous AgreemenP'), by which the City granted to Operator the sole and exclusive right to redevelop and operate the VC Cafe and to provide catering services and to provide catering services at the Visitor Center Cafe, the Visitor Center and the Marjorie McNeely Conservatory; and WIIEREAS, Operator has completed the improvements to the property, with additional inveshnents in the expansion of the kitchen planned; and WHEREAS, the parties hereto wish to amend and replace the Previous Agreement in its entirety with the terms set forth in this Amended Agreement; and WHEREAS, upon execurion of this Amended Agreement, the Previous Agreement shall be null and void. NOW THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS. The following words and phrases, when used in this Amended Agreement, shall have the meanings given to them in this Section: 1.1 "Amended AgreemenY' shall mean this Food and Beverage Services Agreement, as the same may be amended from time to time as provided herein. 1.2 "Alcoholic Beverage Services" shall mean the sale and service of alcoholic beverages at any catering event held at the VC. 13 "Catering Commissions" shall mean the commissions due to City by Operator herein based on the Net Receipts of food and beverages, alcoholic and non- alcoholic, sold during catering events held at the VC Cafe, MMC or VC provided by Operator as more specifically described in Section 8.2 herein. 1.4 "City" shall mean the City of Saint Paul. 1.5 "Como Park" shall mean the Como Regional Park owned by City located on 378 acres of land and 72 acres of water in Saint Paul, Minnesota. 0 7 %�3Co 1.6 "Como Park Zoo and Conservatory Campus" shall mean the Como Zoo, the amusement park adjacent to Como Zoo and the Marjorie McNeely Conservatory, including the triangle of land in front of the Marjorie McNeely Conservatory, which is bounded by Aida, Estabrook and Eason. 1.7 "Como Zoo" or "Zoo" shall mean the entire zoo, owned and operated by the City located within Como Park. 1.8 "Conservatory" ar"MMC" shall mean the Marjorie McNeely Conservatory located in Como Pazk that is owned and operated by the City, including without limitation the Children's Gallery, Fern Room, Bonsai Room and the secondary lobby. 1.9 "Event of Default" shall mean any acts referenced in Sections 14.1 or 14.2 herein that constitute a default under this Amended Agreement. 1.10 "Fees" shall mean the Food Commissions and Catering Commissions paid by Operator to the City under this Amended Agreement. 1.11 "Final Plans" shall mean the plans of the build-out of the VC Cafe approved by Operator and City. 1.12 "Food and Beverage Services" shall mean the sale of food and non-alcoholic beverages at the VC Cafe. 1.13 "Food Commissions" shall mean the commissions due to City by Operator herein based on the Net Receipts of food and non-alcoholic beverages sold at the VC Cafe as more specifically described in Section 8.1 herein. "Food Commissions" shall not include any revenue or Net Receipts of food and beverages sold at catered events held at the VC Cafe, MMC or VC. 1.14 "General Manager" shall mean the individual(s) hired by Operator to provide on-site general management of all aspects of the Operator's operarions at the Campus. 1.15 "License" shall mean the license gzanted by City herein to Operator as more specifically outlined in Section 2.1 herein. 1.16 "Net Receipts" shall mean gross revenue actually received by Operatar minus applicable taxes. 1.17 "Operator" shall mean Zooper Food, LLC, a Minnesota entity. 1.18 "Personal Property Items" shall mean any and all items located within the VC Cafe and VC furnished by the Operator that is not real property or permanently 2 ��-�a�� affixed thereto including, without limitarion, any and all futniture, equipment, inventory, carts, kiosks, tables, chairs, benches, vending machines, and signage. 1.19 "Term" shall have the meaning ascribed to it in Section 2.3 herein. 1.20 "VC" or "VERC" shall mean the visitor center building located within the Como Park Zoo & Conservatory. 1.21 "VC Cafe" shall mean the 2,500 square foot area within the VC designated for a cafe for the purpose of serving as the VC's main food service building. 1.22 "VC Cafe Kitchen" shall mean the kitchen located within the VC Cafe. 1.23 "VC Closure" shall mean the closure of any material part or the whole VC by the City ar any third party for any reason during the Term of this Amended Agreement. 1.24 "Zooper Foods Building" shall mean the existing food service building on the Zoo grounds. 2. GRANT OF LICENSE; SERVICES; TERM. 2.1 License. City hereby grants to Operator an exclusive license during the term of this Amended Agreement to operate the VC Cafe and provide the Services at the VC Cafe, VC and MMC in consideration for initial investment by Operator in building out the VC Cafe ("Operator Investment"), the additional planned investment of expanding the VC Cafe Kitchen and the Fees paid to the City hereunder. So long as this License remains in full farce and effect, City shall not authorize or permit any other person or entity, and shall not on its own behalf, unless as otherwise specified herein in Section 2.4 below, provide the Services at the VC and MMC. 2.2 Services. During the Term, City hereby grants to Operator the sole and exclusive right to:(i) provide Food and Beverage Services at the VC Cafe; (ii) provide exclusive food and beverage catering and related services for events in and at the VC Cafe and MMC, (iii) provide exclusive food and beverage catering and related services for events in ueas of and at the VC, other than the VC Cafe except as set forth in 2.4 below; (iv) provide Alcoholic Beverage Services with respect to catering at the VC and MMC, subject to and to the extent pernritted by local and federal law, rules, and regulations and except as set forth in 2.4 below; (v) provide catering for all private rentals that are held in a tent within the boundaries of the Como Park Zoo and Conservatory Campus; (vi) secure 10 dates each season for the East Picnic Pavilion in advance of the general publ3c for the Term of this Amended Agreement, which shall be no more than two weekend 3 a7�1�3� days per month (Friday, Saturday or Sunday) for the months of May through September; and (vii) select and purchase such food, beverage, and catering brands and items from suppliers on terms acceptable to Operator including, cooperative sponsor agreements and promotional benefit programs (collectively refened to as "Services"). Operator hereby agrees to provide the Services in accordance with the provisions of this Amended Agreement. 23 Term. The term of this Amended Agreement shall commence on the date of this Amended Agreement and continue through January 31, 2026, unless sooner terminated an accordance with the terms of this Amended Agreement. 2.4 Limited Exceptions to Onerator's Exclusivity. The following shall be exceptions to the exclusive nature of the catering offered to Operator hereunder: 2.41 Operator aclrnowledges that during the Term of the Amended Agreement that there will be 5 occasions per year for special events sponsored by and food and beverages paid for by either the City or the Como Zoo &Conservatory Society ("Society") which may be catered by entities other than Operator. 2.4.2 With respect to the exclusivity of catering in the VC Cafe, the City will have 3 times per year during the entire term of the Amended Agreement to use the entire first floor of the facility including the VC Cafe and use a caterer other than Operator. 2.43 Staff or volunteer training, recognition ceremonies and meetings or events for campus or Society staff, board members or volunteers of the Society, or City sponsored education pro�ams such as birthday parties and overnights are exceptions to the exclusive right of Operator to cater events in the VC and MMC. 2.4.4 In addition, Operator acknowledges the existence of a sponsorship agreement by and among City, Coca-Cola USA and Midwest Coca-Cola Bottling Company with respect to the sale of Coca-Cola beverages at the Amusement Pazk and Zoo ("Coca-Cola Agreement"), a copy of which has been provided to Operator. Operator agrees to cooperate with City in implementing the Coca-Cola Agreement provided that the City allows Operator to have input in negotiating the costs and quality of products provided under the Coca-Cola Agreement. Operator agrees to cooperate in a similar manner with subsequent agreements Following the expiration of the referenced agreement. During any of the events listed above the Operator may haue an employee present to insure the security of the kitchen. The City will pay the cost of one Lancer employee for any of the events listed in 2.4 above. 0 D��l�-3(0 3. SPACE USE/EXPANSION OF VC CAFE. 3.1 S�ace Availabilitv. During the Term of trus Amended Agreement, City shall provide Operator: (i) the VC Cafe space, which Operator built out pursuant to the terms of the Previous Agreement, to operate and render the 5ervices set forth herein, (ii) azeas within the VC, designated by City and Qperator, and (iii) azeas designated by the City to provide catering services within the VC from time to time. At all time before, during and after the Term of this Amended Agreement, City shall retain ownership of all space provided and licensed to Operator herein. Upon termination of this Amended Agreement, the VC Cafe build-out constructed by Operator pursuant to the terms of the Previous Agreement and the expansion pursuant to this Amended Agreement shall remain the property of City except any and all Personal Property Items located in the VC Cafe shall remain the property of Operator. Operator shall also retain ownership of any Personal Property Items it owns and places in any area of the VC . Upon termination of this Amended Agreement for any reason, Operator shall be given a reasonable amount of time to remove its Personal Property items. 3.2 Kitchen Ex�ansion. As a condition of this Amended Agreement, Operator agrees to finance and initiate an expansion of the VC Cafe Kitchen. If the expansion project is not completed within a 24 month period following the execution of this Amended Agreement, the term of this Amended Agreement as established in Section 2.3 herein will be reduced to end on January 31, 2024. The City shall have unconditional and sole approval of the space allotted to the project, the siZing and location of any equipment supporting the expansion elements, and the exterior finishes for the project. At the time of negotiating this Amended A�eement, the VC Cafe Kitchen expansion is expected to be approximately 700 sq/ft in size and cost approximately $250,000. Construction will be facilitated in a manner that is not disruptive to Como Park Zoo and Conservatory Campus operations as directed by the City. Upon termination of this Amended Agreement for any reason except default of the Operator not including Operator's banlffuptcy or insolvency, City shall, ar shall require the third-party operating the VC Cafe after Operator, to pay Operator an amount equal to the book value, based on a 30-year straight-line depreciation, of the VC Cafe Kitchen expansion on the date of such termination. 3.3 Use of Education Portable Building and Trailer. As a result of space allocation determinations within various buildings located on the Como Pazk Zoo and Conservatory Campus, the Operator and the City have made the following accommodations and commihnents. 3.3.1 The City has designated space in the basement of the VC previously allocated for the City's education program for use by D 7'��-3la the Operator to support the VC Cafe and catering operations in the VC. 33.2 The City has granted Operator's use of the portable building space formerly used for education programs for occupancy by Operator's sales and administrative staff. The City is responsible for maintaining access to utilities and data lines while the Operator has access to the space. The Operator is responsible for maintaining all other operating systems and perfomring any and all maintenance required as well as for costs associated with its use. When pperator vacates the building, the City wiil resume functional use of the building and/or the underlying grounds. 333 To replace the space granted for use by Operator as described in Section 33.1, Operator has shall provide City 480 sq/ft of space suitable for office occupancy at the time it initiates new construction for its office operations currentiy located in the former education portable building as described in Section 3.3.2. Should the space not be provided upon the completion and functional occupancy of the VC Cafe Kitchen expansion project set forth in Section 3.2 herein, the City will reclaim the use of the space referenced in Section 33.1 3.3.4 The Operator has granted the City use of its former operations trailer for the use of its education programs that were displaced. The Operator will be responsible for delivering use of the trailer in a working condition suitable for occupancy and use for a summer seasonal program upon the execution of this Amended Agreement. The City and Operator will mutually inspect and determine such suitability. Following the inspection and delivery, the City will be then be responsible for maintaining all other operaring systems and performing any and ail maintenance required as well as for costs associated with its use during the time that the City occupies it. The obligation to furnish this space will be discontinued at such a time when Operator both vacates the portable building as set forth in Section 33.2 and furnishes the 480 sq/ft as described in Section 3.3. Should the trailer require to be re-located to accommodate projects initiated by the Operator prior to delivery, Operator shall be responsible for facilitating and/or paying for a move provided that the City identify a suitable location of close proximity. Suitability of location is the exclusive determination of the City. 4. OPERATION OF VC CAFE BY OPERATOR. 4.1 General Oversi¢ht and Mana eg ment. The License granted herein by City gives d��1�3l� Operator the full and exclusive right to operate, manage, and supervise any and all acrivities and Services provided in the VC Cafe provided that such oversight and mauagement complies with the terms of this Amended Ageement. 4.2 Periods of Operation. The VC Cafe shall be open to the public on the days and during the hours the VC is open to the pubiic as determined by the City. City shall provide Operator with written notice of the VC's period of operation. If weather or other circumstances require Operator to shorten hours it may be done with the City's consent. Both parties understand and agree that catering events scheduled by the CiTy and provided by the Operator may occur from time to time before or after the standazd hours of operation of the VC. 43 Menus and Pricine. It is agreed and understood that Operator wili develop, and change seasonally, a set of inenus and pricing for food, beverages, and catering services offered in the VC Cafe. Upon request by the City, Operator shall fonvazd City a copy of all items offered and their prices. Food prices, offerings, and prices shall be comparable to those offered by other food service providers at similar facilities in the Minneapolis and St. Paul azea. Operator will work with the City in good faith to provide some menu offerings that specifically promote health and nutrition. 4.4 Sales of Alcoholic Bevera�es. Operator will serve and sell alcoholic beverages under the terms of this Amended Agreement only in conjunction with events catered by the Operator at the VC and for which it has received advance permission, subject to and in compliance with local and/or state licensing requirements. It is agreed and understood that in the event the sale of alcoholic beverages is permitted at the VC Cafe during the Terxn of this Amended Agreement, Operator shall have the exclusive right to hold any and all licenses and pernuts required for such sale. 4.5 ualit . All food and beverage items offered far sale by Operator shall be of superior quality. Operator shail not offer for sale any food or beverage items which are spoiled, of poor quality or otherwise unfit for consumption. All food and beverages sold by Operator shall conform to applicable federai, state and county food and health laws, ordinances and regulations in all respects. City shall have the right, at its own expense, to inspect Operator's food service facilities at the VC Cafe and to arder improvement in the quality of sanitation or products. Such right is separate and distinct from any health inspections performed by the environmental health inspectors from the Office of DSI pursuant to their duties to inspect licensed food establishments. The quality of the food and beverages served and sold by Operator at the VC Cafe shall be comparabie to those sold in similar facilities in the Minneapolis and St. Paul area. Operator will provide Ciry, immediately upon Operator's receipt, copies of any citations, or notices to appeaz from the health department or any other governmental agency as it relates to 7 �7-ia�� Operator's Services at the VC, as well as copies of any Operator field inspection reports in response thereto. 4.6 Caterine. 4.6.1 Menus and Pricing. It is agreed and understood that Operator will develop, and change seasonally, a set of inenus and pricing for catering services offered at the VC. Food prices and quality for catered events shall be comparable to those offered by caterers providing food and beverage to similar events in the Minneapolis and St. Paul area. 4.6.2 Booking and Event Planning/Coordination. The Operator will field ail calls for rental functions and catering in the VC. If Operator has a prospective customer for a catered event at the VC, other than the VC Cafe, Operator will book the event tlu the City. The City has sole responsibility for scheduling and booking all events held in the VC or MMC other than the Cafe. Operator shall be responsible for the scheduling and booking of all catered events held at the VC Cafe. 4.63 Coordination of Other Rentals. The City shall be responsible for the handiing of all aspects of rentals in the MMC including, without limitation, party equipment, flowers, entertainment, and valet parking. The Operator shall be responsible for handling accommodations for rentals in the VC for which they are the exclusive caterer. The Operatar shail be solely responsible for the collection of all amounts billed in this regard including, without limitarion, rental fees, audio/visual fees, security, parking, florist and/or any other charges. 4.6.4 Catering Set-Up and Clean Up. Except as provided in this Section 4.6, Operator shail be responsible for all catering set-ups and clean-up far all Operator catered events held at the VC. Set-ups and clean-up include, but are not necessarily limited to, all required linen, decor, portable audio visual, trash removal to dumpster, and cleaning required during the event to maintain necessary level of cieanliness and safety throughout the event. Aowever, the City sha11 be responsible for table and chair setup and removal for each event, and for the after event floor cleaning in the area the eventis held. 4.7 Promotional and Markerin¢ Activities. Operator and City agree to cooperate in planning and funding of promotion and marketing activities as it relates to the rental of the VC. Advertising will be coordinated with the City and to the extent pracrical, cooperative advertising programs will be developed by Operator and the City. 4.8 Brochures & Survevs. Subject to the City's written approval, Operator shall I��-��-31� develop and provide brochures and marketing materials for Services offered by Operator at the VERC. In addition, Operator shall make available to VC visitors customer surveys for the Services and catering operations. Completed surveys will be provided to the City for review of customer satisfaction issues. 4.9 Public Use. Operator shall not interfere with the public use of the VC and shall use its best efforts not to aliow any boisterous or disorderly persons to loiter about the VC Cafe. 4.10 Maintenance of Como Park' s Reputation. Operator recognizes that Como Park possesses a special, unique and extraordinary character and that Operator has been chosen to receive the License and provide the Services at the VC to fiirther Como Park's reputation. Operator agrees that it will use its best efforts to ensure that its employees, agents and representatives do not take any action that will hann, bring into disrepute, or adversely affect the integrity, image or reputation of the City or Como Park. 4.11 Licenses and Permits. It is Operator's responsibility to lmow what licenses or permits are required to conduct its business, and provide the Services required hereunder at the VC, and to obtain all such license and permits priar to commencing operation under this Amended Agreement. Upon request, the Division of Parks and Recrearion shall execute such documents and insh and take such actions as may be reasonably required to assist Operator in obtaining such licenses and permits. Operator shall be allowed to use the City's liquor license for the V C as is permitted by resolution by the St. Paul City Council. It is expressly understood that this liquor license will only be used for private events catered by Operator and will not be used in the general concession operation. Operator shall upon being invoiced by the City, reimburse the City far the cost of said license annually. Failure to obtain the necessary licenses and/or permits or suspension or revocation of the licenses during the term of the Amended Agreement shall be considered an Event of Default. 5. DUTIES OF CITY. 5.1 Securitv Services. City shall provide, without additional charge, normal security services in all areas of the VC to the same extent and at the same level provided elsewhere on the Zoo grounds. Operator may, in its discretion, hire addirional security services for the VC Cafe. Any additional security which is reqaired by law or by the City as a condition of licenses or permits shall be provided and paid for by the Operator. 5.2 Utilities. The City wili arrange for all utilities including heat, air conditioning, elech and gas for the VC and VC Cafe. The City will aiso provide water, steam and air conditioning to Operator for Operator's normal operations at the VC G] D��/a3� for no addirional cost to Operator other than the Fees paid under Paragraph 9 herein. Operator will install its own telephone voice and data systems at its own cost and expense and will pay all the applicable monthly service and toll costs thereof. City will provide cabling reasonably necessary for this voice/data system as needed between the VC Cafe to the connection site within the VC. 53 Janitorial and Cleaning. City shall keep the VC clean and neat at all times by providing, at its cost and expense: (i) janitoriai services (and all related cleaning supplies) for the restrooms located in the VC; (ii) daily pick up of trash and litter , in the VC , and its removal; and (iii) the cleaning of all ground and patio surfaces of the VC. City fiuther agrees to maintain ail such areas, on an ongoing basis, consistent with City's standards for facilities owned by the City samilar to the VC. Operator is responsibie for keeping the Cafe clean and removing the trash and recycling to the dumpsters. 5.4 Removal of Trash from Dum sn ters. City, at its own expense, shall be responsible for the removal of all trash from the VC, including trash generated by Operator's operations at the VC Cafe. City shall establish a contract to remove such trash on a regular basis. City and Operator shall be jointly responsible for keeping the azea azound its dumpster(s) clean and odot free. 6. OPERATOR PERSONNEL. 6.1 Emoloyment. Operator shall hire, train, employ, supervise discipline and terminate all personnel as shall be necessary far the effacient performance of its obligations under this Amended Agreement. All personnel so hired by Operator shali be employees of Operator and not of City. Operator agrees that appropriate pre-employment security checks and screening will be carried out for a11 employees to the extent permitYed by law. Operator agrees that it will not laiowingly employ anyone who cannot and does not provide the appropriate documentation indicating a legal right to work in the United States. Operator shall not knowingly employ or permit to work on the premises in the processing, handling, preparing and serving of food or beverages any person who is infected with any disease or illness in a communicable form or who is a carrier of any such disease or illness insofaz as such restrictions are legally perxnissible. All persons engaged in the processing, handling, preparing and serving of food and beverages shall wear appropriate attire, shall be clean and sanitary in their personal habits, shall take suitable precautions to prevent hair or other such matter from coming in contact with food, and shall exercise other health and safety measures as appropriate under the highest standards applicable to food service providers, or as otherwise required by state or federal regularions. b.2 Mana¢er. Operator shall operate the VC Cafe and conduct the Services herein under the supervision of an on-site manager. There will be a General Manager for all Campus Operations. Operator shall provide a summary of the General 10 a�- ja3� Manager's qualifications and contact information to the City upon written request, 63 Trauvn� and Sunervision. Operator shall train and closely supervise all of its employees so that they are aware of and perform in accordance with the high standards of cleanliness, courtesy and service required by City and Operator. This training includes, but is not limited to training required by any local, state or federal governmental agency covering Operator's operations at the VC. Operator shall train all of its employees involved in the sale and service of alcoholic beverages and in aicohol awazeness, which includes training based on any applicable law of the State of Mimiesota. This training may include, without limitation, policies and procedures developed by Operator dealing with alcohol management and a nationaliy-recognized program such as "Techniques for Effective Alcohol Management" ("TEAM") or "Techniques forIntervention Procedures by Servers of l�lcohol" ("T.I.P.S."). 6.4 Securitv. Operator shall adhere to all of City's security policies. Operator and its employees, whether full-rime, part-time or on-call, shall be subject to City's security and security clearance procedures. 6.5 Uniforms; Identification Taes. In connection with the operation of the VC Cafe and perforxnance of the Services hereunder, Operator's non-management employees shall be neatly attired in clean, commercially-attractive, uniforms as required by Operator. Operator will provide all of its employees at the VC Cafe with name tags. Operator's empioyees shall be required to weaz their name tags at a11 times when on duty at the VC Cafe. 6.6 Waee and Hour Laws. Operator shall comply with all federal and state equal opportunity, wage and hour and tas laws covering employees. 6.7 Nondiscrimination. The Operator agrees that during the term of this Amended Agreement, that (1) no person, on the ground of race, sex, color; creed, religion, sexual ar affectional orientation, age, disability, familial status, marital status, status with respect to pubiic assistance, or national origin or ancestry shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in the use of the VC Cafe, (2) that in connection with the construction of any improvements and the furnishing of services therein, no discrimination shall be practiced in the selection of employees and contractors, by contractors in the selection and retention of first-tier subcontractors, and by first- tier subcontractors in the selecrion and retention of second-tier subcontractors, (3) that such discrimination shall not be practiced against the public in their access to and use of the facilities and services provided for as public accommodations (such as eating and recreation) operated hereunder, (4) that the Operator shall at all times be in compliance with all federal, state or locallaws or regulations relating to non-discrimination; and (5) that Operator wili take appropriate action to ensure 11 ��-ia�� applicants that are employed by Operator are treated during employment without regazd to their gender, race, color, religon, national origin, age, sexual orientation, marital status, or disability. Such action shall include, without limitation, the following: employment, promotion, transfer, recruitment, layoff, ternunarion, wage, salary, compensation, trauung, and apprenticeship. Operator agrees to post in conspicuous places available to employees and applicants for employment notices setting forth the provision of this nondiscrimination clause. 7. REPAIR AND MAINTENANCE. 7.1 Phvsical Stzucture. During the Term of the Amended Agreement, the City shall be responsible for the maintenance and repair of the physical structure of the VC and all physical structures located within the VC including the roof, windows and doors, exterior walls, heating, aar conditioning and ventilation. 7.2 Personal Property. Operator will provide for maintenance and repair of the Personal Property Items owned by Operator used in the VC Cafe. Operator will advise City in writing of any problems or issues relating to the Personal Property that affect Operator's ability to perform the Services hereunder. 73 Unsafe Conditions. City and Operator shall each immediately notify the other Qf any unsafe condition within the VC. Operator shall cooperate fully with City in the investigation of any accidental in}ury or death occurring at the VC including a prompt report thereof to City. 7.4 Key Core Installation. Operator must install a key core in its space that is compatible with the City key cores, and provide designated City staff with keys to the Operator's space. 7.5 Right of Entrv. At all times during the Term of this Amended Agreement, the City shall have the right, by itself, its agents and employees, to enter into and upon the VC Cafe premises during reasonable business hours or, in the event of an emergency, at any time £or any legitimate purpose. 7.6 Future Construcrion. Services related to this Amended Agreement may require ongoing investment in infrastructure by Operator. Operator investments which result in permanent buildings or shuctures become part of the real property of the location shall belong to the City following termination of this Amended Agreement. Specific written authorization by the City is required prior to Operator iniriating improvements to the Real Property. At the time that a project is proposed for consideration, the application of any provisions similar to Section 3.2 for Operator recovery of value following the termination of tlus Amended Agreement shall be addressed and documented as part of that process. Absent any specific documentation otherwise, no compensation to the Operator shall be due by the City for proj ects where docuxnentation does not exist. In the event that 12 a� ��-�� Operator proposes to undertake significant new private investment in the premises with the consent of the City, such inveshnent will not result in automaric extension of the term of this Agreement, and instead parties must negotiate an Amendment to this Amended Agreement. In any such negoriations, the City will consider the feasibility of extension of the term based upon the amount of investment, the benefit to the City and the existing length of the term of the Agreement. In the event that Operator proposes to undertake significant new private inveshnent in the premises with the consent of the City, such invesUnent will not result in automaric extension of the terxn of this Agreement, and instead parties must negotiate an Amendment to this Amended Agreement. In any such negoriations, the City will consider the feasibility of extension of the term based upon the amount of invesrinent, the benefit to the City and the existing length of the term of the Agreement. 8. FEES TO CITY; ACCOUNTING. 8.1 Food Revenue Commission. In consideration of the License granted herein, Operatar shall pay the following commissions to City in each year during the Term based on the Net Receipts of Food and Beverage Services provided by Operator in the VC Cafe and within the VC ("Food Commissions"): For commission on food sales in the VERC Cafe from $ 0- $700,000 Years Summer Off-Season 2004-09 11% 6% 2010-14 12 8% 2015-23 13% 10% Suminer months are considered to be May 1 st - August 31 st and off-season months are September lst - Apri130th. In any year that net receipts exceed $700,000, the commissions on food sales in excess of $400,000 for the suimner months shall inerease to 16°to and the commissions on food sales in excess of $300,000 in the off-season months shall increase to 13%. The food sales levels ($700.00Q 400.000, $300.000) for each successive contract year shall be adjusted proportionately up or down by the Consumer Price Index (Series ID CLTiJRA211 SAO for Minneapolis-St. Paul, All Items, Base Period 1982-84 far the previous calendar year. 13 Ex. Yeaz 1-5: �7 /�3� January lst- April 30th - net receipts =$200,000 (percentage is 6% or $12,000) May 1" - August 31 net receipts =$ 450,000 (percentage is 11% or $49,500) September 1 - December 31" - net receipts =$200,000 (percentage is 6% on first $50,000 and 13% on remaining $150,000 or $3,000 +$19,500 =$22,500) May l - August 31" (additional5 % to be paid on $50,000 =$2,500) Net Receipts shall be determined far every yeaz during the Term of this Amended Agreement individually and shall not cumulate to any previous determinations of prior years. Food Commissions due to City from Operator shall be made montk�ly upon Operator's determination of Net Receipts for the month provided that such calculation shall occur within 20 business days following the end of each calendar month. A statement of Net Receipts shall be provided to City with each payment. Total net receipts shall be reconciled at the end of the year, and any payments necessazy to make up the deficiency in fees paid to the City pursuant to the formula listed above shall be payable within tlurty calendar days of the end of the year. Net receipts shall included any coupon or otherwise discounted sales excluding Operator employee sales under Section 8.3. 8.2 Catering Commission. In consideration for the License granted herein, Operator shall pay City ten percent (10%) of Net Receipts for Food and Beverage Services provided during catering events by Operator for events held at the V C, except for City or Society sponsored events for which the City or Society has received a discounted price. Net Receipts sha11 be determined for every year during the Term of this Amended Agreement individually and shall not cumulate to any previous determinations of prior years. Catering Commissions due to City from Operator shall be made monthly upon Operator's determination of Net Receipts for the month provided that such calculation shall occur within 20 business days following the end of each calendar month. A statement of Net Receipts shall be provided to City with each payment. 83 Staff Discounts. City understands and agrees that Operator may grant its employees staff discounts on select Services and products offered by Operator at the Amusement Park and Zoo. City further understands and agees that sales of Services and products by Operator to its employees at a staff discount shall not be included in the calculation of Net Receipts for determining the Ride Commissions, Food Commissions or catering commissions due to the City under Sections 9.1 and 9.2, respectively. 8.4 Record Keepine. Operator shall use such point-of-sale equipment as it reasonably deems necessary to properly and accurately recard all Net Receipts. City shall have the right, at any time, to review and to inspect such equipment. 14 a 7-�a-�� 8.5 Annual Audit. City shall have the right, at its own expense, to audit the books and records of Operator covering Operator's operation of the VC Cafe and Services at the VC, at Qperator's corporate or accounting offices. Operator agrees to reasonably cooperate with such audit. If, as a result of the audit, City does not agree with any determination of Net Receipts by Operator, City must promptly (but not later than 30 calendar days after the completion of such audit) glve written' notice to Operator of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If City and Qperator reconcile their differences, the calculation of Net Receipts or Fees will be adjusted accordingly and will thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If City and Operator are unable to reconcile their differences in writing within 20 calendar days after written notice of exceptions is delivered to Operator ("Reconcitiation Period"), the items in dispute will be submitted to independent auditors, mutually acceptable to City and Operator, for final determination, and wiil become binding final and conclusive upon all of the parties hereto and enfarceable in a court of law. The independent auditors may consider only the items in dispute and will be instructed to act within 20 calendar days (or such longer period as City and Operator may.agree) to resolve all items in dispute. If City and Operator fail to select the independent auditors within seven calendar days after the expiration of the Reconciliation Period, City and Operator will each select an independent auditor who in turn shall select a third independent auditor to conduct the final determination and such determination will become binding, final and conclusive upon all parties hereto and enforceable in a court of law. 9. INSURANCE AND INDEMNIFICATION. 9.1 Indemnificarion bv Operator. The Operator agrees to indemnify, defend, save and hold harmless the City of Saint Paul and any agents, officers and employees thereof from all claims, demands, actions or causes of action of whatsoever nature or character, arising out of or by reason of the use of the VC Cafe by the Operator, or the use or condition of the VC Cafe as a result of the operations or business activities of the Operator or from the provision of the Food and Beverage Services by the Operator under this Amended Agreement unless such claim, demand, action ar cause of action arises out of the willful misconduct or gross negligence of the City. 9.2 Insurance Requirements of Oneratar. The Operator shall acquire and keep in effect during the term of this Amended Agreement the following insurance policy coverage: 9.2.1 FIRE AND ALL RISK INSCJRANCE on the Personal Property items 15 a� /�3� owned by Operator at the VC Cafe and within the VC with lunits of not less than replacement cost coverage shall be purchased by the Operator. Said insurance shall name the City of Saint Paul as an additional insured. 9.2.2 COMMERCIAL GENERAL OR PUBLIC LIABILITY INSURANCE including blanket contractual liability coverage, personal injury liability coverage and broad form property damage liability endorsement with a combined single limit of not less than $1,20Q000 per occurrence, $2,000,000 aggregate, shall be purchased by the Operator. Such insurance shail: (a) name the City of Saint Paul as additional insured; (b) be primary with respect to Operator's insurance or self-insurance; (c) include an"all services, products or completed operations " endorsement; (d) be written on an "Occurrence" Form policy basis; and (e) not contain an"aggregate" policy limit unless specifically approved in writing by the City. 9.2.3 WORKERS' COMPENSATION INSURANCE with not less than statutory minimum limits; and EMPLOYERS' LIABILITY INSURANCE for all of Operatar's employees at the VC with minimum limits of at least $500,000 peraccident, $500,000 per employee and $500,000 per disease, with an all states endorsement. 9.2.4 LIQUOR LIABILITY INSURANCE -$1,000,000 aggregate. Coverage shall include Bodily Injury, Property Damage and Loss of Means or Support. 9.3 The Operator shall supply to the City current insurance certificates far policies required in Section 9.2. The said certificates shall certify whether or not the agent has errors and omissions insurance coverage. The limits cited under each insurance requirement above establish minimums; and it is the sole responsibility of the Operator to purchase and maintain additional insurance that may be necessary in relation to this lease. City may request increases in the limits to reflect the increased municipal exposure due to changes to Minn. Stat. Chapter 466 during the Term of the Amended Agreement. Nothing in this contract shall constitute a waiver by the City of any statutory limits or exceptions on liability. Operator shall place the insurance with responsible insurance companies authorized and licensed to do business in the State of Minnesota and approved by City. The policies required in paragraph (7) shall be endorsed to indicate that the insurer cannot cancel ar change the insurance without first giving the City 30 days' written notice. 10. REPRESENTATIONS AND WARRANTIES OF CIT`Y. City hereby represents, warrants and covenants to Operator that: 10.1 Title. City holds good and marketable title to the VC free and clear of all liens, 16 ��-��-�� restrictions, encumbrances, pledges, claims and rights whatsoever. City has the full legal right, power and authority required by law to execute and delivez this Amended Agreement and to assign, transfer and deliver an area within the VC far the operation ofthe VC Cafe. 10.2 Effect of A�eement. The execution and delivery of this Amended Agreement by City shall not cause City to breach or be in default under any material agreement to which City is a party or may be bound thereby. City is not in default under any agreements or understandings pertaining to its right to use or occupy the VC. 10.3 Liti ag tion. As of the date hereof, City has not received any notice(s), whether oral or written, of any default(s) under any lease, financing or other agreement pertaining to the VERC or its redevelopment, use or occupancy thereo£ There are no claims, actions, suits, proceedings, arbitrations, investigations ar hearings or notice of hearings pending, or to City's l�owledge, threatened nar is City in default under any order, license, regulation or demand of any federal, state, local or foreign court or governmental, administrative or self regulatory body or agency or any unsatisfied judgment against City that may adversely affect the ability of City to perform its obligations hereunder or which otherwise relates to this Amended Agreement. There is not in existence at present any order, judgment, or decree of any court or other tribunal or any agency enjoining or requiring City to take any action of any kind or which may adversely affect this Amended Agreement. 10.4 Environtnental Matters. City represents and warrants that: (i) City is, and at all times has been, in full compliance with, and has not been and is not in violation of or liable under, any local, state, or federal environmental, health and safety requirements; (ii) neither City nor any of its predecessors or third party operators, has received any written or aral notice, report or other information regarding any actual or alleged violation of any environmental, health and safety requirements, or any liabilities or potential liabilities (whether accrued, absolute, conringent, unliquidated or otherwise), that relate to the VC, including any investigatory, remedial or corrective obligations; (iii) there are no pending or threatened claims, encuxnbrances, ar other restrictions of any nature arising under ar pursuant to any environmental, health and safety requirements, with respect to or affecting the VC; (iv) no underground storage tanks, asbestos-containing material in any fonii or condition, landfills, surface impoundments, or disposal areas exist on the VC property; (v) City has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handied, or released any substance, including without limitation any hazardous material, on the VC property in a manner that has given or would give rise to any environmental, health and safety liabilities, including any liability for response costs, conective acrion costs, personal injury, property damage, or attorney fees, pursuant to CERCLA or any other environmental, health and safety requirement; and (vi) City is unaware of any test results, reports, 17 d`7�/a-3� studies, analyses, tests, or monitoring possessed or iniriated by City pertaining to hazardous materials or hazardous activities in, on, or under the VC, or concerning compliance by, or liabilities of, City, or any other person for whose conduct City is ar may be held responsible, with or under local, state and federal environmental, health and safety requirements. Operator agrees to comply with all ordinances, laws, rules and regulations enacted by any governmental body or agency relating to the control, abatement or emission of air and water contaminants and the disposal of refuse, solid wastes or liquid wastes as they apply to the VC Cafe and Operator's Services during the term of this Amended Agreement. Operator shall bear ali costs and expenses arising from compliance with said ordinances, laws, rules, or regulations and shall indemnify, defend, save and hold hannless the City from all liability, including without limitation, fines, forfeitures and penalties arising from the failure by Operator to comply with such ardinances, laws, rules or regulations unless such liability is a result of the willful misconduct or gross negligence of the City. 10.5 Taxes. All taaces related to the VC of any nature required by law to be paid on or before the execution of this Amended Agreement ("Taxes") have been paid in full and all tas returns have been timely and accurately filed or properly accrued for if not required to be paid prior to the execution of this Amended Agreement. No claim of Taxes due is being contested by City, no request by City is pending for extensions o£ time for payment of Taaces, and no notice of additional assessment has been received by City ar is threatened. There are no tax liens upon the VC, and the City has not granted or been requested to grant waavers of any statutes of limitations applicable to any claim for Tases. During and after the term of this Amended Agreement, in the event taxes of any kind are assessed against the Operator as a result of its use of the VC Cafe or as a result of its Services or operations therein, City agrees to credit the Food Commissions and Catering Commissions due herein by Operator, or if already paid, return a portion of the Food Commissions and/or Catering Commissions paid herein, by an amount equal to such tax assessment, including any and all penalties and interest incurred by Operator in conjunction with the assessment, providing that Operator is in compliance with the terms of the Amended Agreement. 10.6 Government Apvrovals. City has obtained all approvals, authorizations, consents and required to be obtained by City for the use of any portion of the VC and for the execution and delivery of this Amended Agreement. Operator shall be responsible for obtaining all necessary license, permits, or consents for the conshuction of the build out, operation of the VC Cafe and provision of catering services carried out under this Amended Agreement. 10.7 Noninterference. City shall not interfere or obstruct Operator's access to the VC Cafe under control of Operator, except as expressiy provided in this Amended Agreement. � d ��/� 3� 10.8 Authorization and Enforceabilitv. This Amended Agreement has been duly and validly authorized, executed and delivered by City and constitutes a legal, valid and binding obligation of City enforceable against City in accordance with its terms, except to the extent that such enforcement may be limited by bankruptcy, insolvency or other similar laws presently or hereinafter in effect affecting the enforcement of creditor's rights generally. No agreement restricts City in the execution and performance of this Amended Agreement. Each of the representations, warranties and covenants contained herein is independent of every other, and shall not in any way limit, restrict, modify, or be deemed or construed in any way to limit, restrict ar modify any other warranty or representation. 11. REPRESENTATIONS AND WARRANTIES OF OPERATOR Operator hereby represents, warrants and covenants to City that: 11.1 Orsanization and Good Standing of Onerator. Operator is a corporation duly organized, validly existing and in good standing under the laws of Minnesota. Operator has full power and authority to make the representations, warranties and representations made under this Amended Agreement, to execute and deliver this Amended Agreement, and to perform its obligations under this Amended Agreement. 11.2 Effect of Aereement. The execution and delivery of this Amended Agreement by Operator shall not cause Operator to breach or be in default under any material agreement to which Operator is a party ar may be bound thereby. To the best of Operator's actual knowledge Operator is not in default under any agreements or understandings pertaining to its right to use or occupy the VC, ar provide the Services required hereunder. ll 3 Authorization and Enforceabilitv. This Amended Agreement has been duly and validly authorized, executed and delivered by Operator and constitutes a legal, valid and binding obligation of Operator enforceabie against Operatar in accordance with its terms, except to the extent that such enforcement may be limited by bankruptcy, insolvency or other similaz laws presently or hereinafter in effect affecting the enforcement of creditor's rights generally. No agreement restricts Operator in the execution and performance of this Amended Agreement. No consents or approvals are necessary under any agreement to which Operatar may be a pariy or may be bound thereby in connection with the execution and delivery of this Amended Agreement by Operator. Each of the representations, warranties and covenants contained herein is independent of every other, and shall not in any way limit, restrict, modify, ar be deemed or construed in any way to limit, restrict or modify any other warranty or representation. 19 6�-�a3� 12. CASUALTY LOSS OF VC. 12.1 Destruction of the Whole or Material Portion. If fire or other casualty shall render the whole or any material portion of the VERC inoperative for a period of 60 days or more, then Operator shall have the option of either: (i) ternunating this Amended Agreement without penalty, or (ii) requiring the City to repair and restore the VC and VC Cafe to as near its condition prior to the fire or other casualty as is reasonably possible and request that the City do so by providing written notice within 30 days from the date of such damage or destruction; and this Amended Agreement shall remain in full force and effect. Operator's duties under this Amended Agreement shall be suspended, ar modified as appropriate until the City has completed the repairs and restoration of the VC and VC Cafe and this Amended Agreement shall be extended for a period equal to the period of such suspension. 12.2 Partial Destruction. In the event that twenty percent (20°l0) or less of the value of the VC is damaged or destroyed by fire or other casualty and neither the whole nor any material portion of the VC Cafe or the VC is inoperative, then the City shall repair and restore the VC and/or VC Cafe to as near their condition prior to the fire or other casualty as is reasonably possible with all due diligence and speed. Operator's duties under this Amended Agreement shall be suspended until the City has completed the repairs and restaration of the VC and/or VC Cafe and this Amended Agreement shall be extended far a period equal to the period of such suspension. 12.3 VC Closure. In the event any material portion of or the entire VC is closed by City or any third party for any reason ("VC Ciosure") for a period of 30 days or more, Operator may: 1) reduce the level of Services as may be appropriate in connection with such V C Closure; 2) terminate the Amended Agreement without penalty to the Operator and pursue any other legal or equitable remedies available to Operator. Notwithstanding the above, in the event that the Zoo is ordered closed for greater than 30 days in response to a regionai public health crisis such as "avian influenza", Operator and City shall cooperate in finding solutions to maintain and renegotiate their contractual relationship under this Amended Agreement. 12.4 Notwithstanding the foregoing, if the fire or other casualty or closure is determined to be caused primarily by the activities of the Operator it shall be the solely the City's determination whether to terminate the Amended Agreement and whether to repair or restore the VC Cafe. 13. LIENS. The Operator shall use its best efforts to avoid the filing or establishment of any 20 d7%a3� mechanids liens or other liens against the VC property for labor, materials or services fiunished in connection with the expansion of the VC Cafe Kitchen by the Operator; provided that if a lien is filed with the City, Operator shall notify the City o f its existence and shall have 6 0 days from the date notice is provided to the City to, in good faith, contest any such claun or lien filed or established and in such event may permit the items contested to remain undischarged and unsatisfied during the period of such contest If, in the opinion of the City, the nonpayment of any such items subjects the VC to any loss or forfeituze, the City may require the Operator to deposit in escrow with the City a sum of money, a bond, or an irrevocable letter of credit acceptable to the City equal to the amount of the lien. Following the 60-day period granted to Operator above, the City may use the escrow account to prompfly pay all such unpaid items. 14. DEFAULT AND REMEDIES. 14.1 Default bv Ooerator. An "Event of Default" by Operator shall be deemed to have occurred upon the occurrence of any one or more of the following: 14.1.1 Failure to Pay. In the event that Operator fails to make any payment to City as required in this Amended Agreement, and such failure continues for a period of 30 days after receipt of written notice of such nonpayment. 14.1.2 Failure to Retain Insurance. In the event Operator fails Yo retain proper insurance as required herein, and such failure continues for a period of 15 days after receipt of written notice of such failure. 14.1.3 Failure to Obtain or Revocation of License. In the event that Operator fails to obtain or any permit or license necessary to carry on the Services under this Amended Agreement or such permit or licenses are suspended or revoked, and such failure continues for a period of fifteen days after receipt of written notice of such failure. 141.4 Other Breaches. In the event that Operator breaches any obligation under this Amended Agreement, other than those referred to 3n clauses (a) or (b) of this Section, and such breach continues for a period of 60 days after receipt of written notice of such breach. 14.1.5 Bankniptcy. In the event Operator files a voluntary petition in bankniptcy, insolvency or a petition far rearganization in any state or Federal court or a receiver is appointed for all or any substantial portion of Operator's property or an order or decree of baiilffuptcy, insolvency or reorganization issued, City may terminate this Amended Agreement. 141.6 Involuntary Judgment. An order, judgment or decree shall be 21 ��-i�� entered by any governmental body of competent jurisdiction appointing, without the application or consent of Operator, a custodian, receiver, trustee, liquidator, sequeslrator or similar officer for Operator or for a11 or any substanrial part of its property, or any substantial part of the property of Operator shall be sequestered, any such order, judgment or decree of appointment or sequestration shall remain in force undismissed, undischazged, unstayed and unvacated for a period of 60 days after its date of entry. 14.2 Default by Citv. An "Event of Default" by City shall be deemed to have occurred upon the occurrence of any one or more of the following: 14.2.1 In the event City fails to retain proper insurance, or to self insure, as provided herein, and such failure continues for a period of 30 days after receipt of written notice of such failure. 14.2.2 Breach. In the event that City breaches any obligation under this Amended Agreement and such breach continues for a period of 60 days after receipt of written notice of such breach; however, breach by the City of its obligation referred to in 5ection 14.2.1 of this Section and Sections 2.1 or 31 shall constitute an event of default under this Amended Agreement immediately without written notace ar after the expiration of any cure period explicitly specified in those Sections. 14.3 Remedies 14.3.1 Termination. The party claiming the occurrence of an Event of Default under this Amended Agreement as defined in Sections 14.1 or 14.2 above may, in its sole discretion, elect to terminate this Amended Agreement by providing notice of such termination to the other party. This Amended Agreement shall be deemed to be terminated immediately upon receipt of such notice, or on such other date as may be set forth in the notice. Termination by the party is without prejudice to its right to recover damages, if legally recoverable on account of such breach. 143.2 Cumulative Remedies. No remedy herein conferred up on or reserved to City or Operator within this Amended Agreement is intended to be exclusive of any 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 Amended Agreement or existing at law or in equity or by statute. 14.4 Waiver. No delay or omission to exercise any right or power occurring upon 22 67 /a-3 (o breach, default or termination shall impair any such right or power or shall be construed to be a waiver thereof. Any such right may be exercised from rime to time and as often as may be deemed expedient. In the event any covenant, agreement, or representation contained in this Amended Agreement is breached by either party and thereafter waived by the other party, such waiver shall be limited to the particulaz breach so waived and shall not be deemed to waive any other concurrent, previous, or subsequent breach or default hereunder. 15. MISCELLANEOUS. 15.1 Force Majeure. Neither party sha11 be considered in default in performance of any non-monetary obligation under this Amended Agreement to the extent that performance of such obligation is prevented or delayed by any cause beyond its reasonable control, including, without limitation, acts of God; acts or omissions of governmental authorities or the other party; strikes; lockouts ar other industrial disturbances; acts of public enemies; wars; blockades; riots; disturbances; epidemics, floods; hurricanes; tornadoes; and any other similaz acts, events, ar omissions. 15.2 No PartnershiU. Neither Operator nar City is, nor shall either hold itself out to be, an employee, agent, subsidiary, affiliate or partner of the other party for any purpose, including reporting to any governmental authority, and neither party shall have the authority to bind the other party to any obligation. All employees of Operatar or City shall remain employees of Operator or City, respectively, and under no circumstances shall any person employed by either Operator or City be deemed to be an employee of the other party. 153 Assi ent. Neither Operator nor the City shail not have the right to assign, transfer or convey this Amended Agreement, without the prior written consent of the other party hereto. Notwithstanding this provision, the City hereby understands and agrees that Operator may assign this Amended Agreement to a third party that buys all of the membership interests of Operator or substantially all of the assets of Operator for the purpose of continuing Operator's business. 15.4 Attorney's Fees. If City or Operator commences or engages in any action by or against the other paz arising out of or in connection with this Amended Agreement, each party shall be responsible for payment of its own attorneys' fees and other costs incurred in connection with the action, prepararion for such action, any appeals relating thereto and enforcing any judgments rendered in connection therewith. 15.5 Good Faith. Both parties shall cooperate in the implementation of the provisions of this Amended Agreement in a spirit of good faith and fair dealing so as not to 23 D��/�3� defeat the rights of the parties as set forth herein. Both parties any consent or approval requued hereunder shall be given reasonable and timely basis unless otherwise stated to the Amended Agreement. fiuther agree that >r withheld on a contrary in this 15.6 Notices. Ail notices, requests, demands and other communications that aze required to be given under this Amended Agreement shall be in writing and shall be deemed to haue been duly delivered: (i) on the date of delivery if personaily delivered; (ii) on the date of transmission with confirmed receipt by telephone if delivered by facsimile; or (iii)on the date on which return receipt is signed or delivery is refused if dispatched by registered or certified first class mail, Federal Express or similar service, postage prepaid, retum receipt requested, to the party to whom the same is to be given at the following address, and to such additional parties as may be requested in writing: If to City, to: If to Operator, to TAE CITY OF SAINT PAUL Como Park Zoo and Conservatory Estabrook Drive Saint Paul, MN 55103 Attn: Como Campus Manager Phone : (651) 487-8237 Fax:(651)487-8255 Zooper Food LLC 1255 Trapp Road Eagan, MN 55121 Phone: (651) 290-9864 Fas:(651)290-9442 Attn: Glenn Baron, President 16.7 Governin� Law. This Amended Agreement shall be governed by, construed and enforced in accordance with the internal laws of the State of Minnesota, without regard to choice of law provisions and venue shall be in the district court of Ramsey County. 16.8 No Waiver. The making or failure to make any payments, take any action, or waive any rights shall not be deemed an amendment of this Amended Agreement, nar consent to such action or to any future ac6on or £ailu e to act, unless the party required to so consent or act expressly agrees in writing. 16.9 Entire Agreement. This Amended Agreement constihxtes the entire Agreement of the parties and supersedes all prior ar contemporaneous 24 D� agreements, whether oral or written, between the parties. This Agreement may not be amended or modified except in a writing signed by all of the parties hereto. ° 16.10 Severabilitv. If any paragraph, subparagraph, sentence, clause, phrase, or portion of this Amended Agreement is, for any reason, held invalid or unconsritutional by any court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Amended Agreement, provided that the substantial economic benefits of this Amended Agreement and the intent of the parties is not frustrated thereby. 16.11 Cantions. The captions in this Amended Agreement are for convenience only and in no way define, limit or otherwise describe the scope or intent of this Amended Agreement, or any provision hereof, or in any way affect the interpretation of this Amended Agreement. 16.12 Further Acts. Each party agrees to perform any further acts and to execute, acknowledge and deliver any documents, which may be reasonably necessary to carry out the provisions of this Amended Agreement. 16.13 Aprorovals. Consents and approvals required in this Amended Agreement to be obtained from City or Operator shall be in writing and shall not be unreasonably withheld or delayed. 16.14 Amendments. Notwithstanding anything herein contained to the contrary, this Amended Agreement may be terminated, and the provisions of this Amended Agreement may be, in writing, amended by mutual consent of the parties. [SIGNATLJRE PAGE FOLLOWS] 25 D�?-1�3� IN WITNESS 4VHEREOF, the undersigned have executed this Amended and Restated Food and Beverages Service Agreement as of the day and year first above written. CITY: By:_ Mayor � ''S3�e7�T�Seil � Director of Finance Director of Parks and Recreation Glen Baron, President Approved as to form; Assistant City Attorney Signature page to Amended and Restated Food and Beverages Services Agreement dated , 2007 26 �?� ia�� This AMENDED AND RESTATED COMO AMUSEMENT PARK MANAGEMENT AGREEMENT ("Amended Agreement") is entered into as of this _day of , 2007, by and between The City of Saint Paul, a municipal corporation through its Parks and Recreation division ("City"), and Como Amusement LLC, a Minnesota corporauon ("Operator"). WHEREAS, City and Operator entered into a Como Amusement Park Management Agreement dated , 2004 ("Previous Agreement"), by which City granted to Operator the sole and exclusive right to redevelop and operate the Amusement Park, to operate the food services, and vending machines at the Amusement Park and Zoo, and to provide limited catering services to City and other groups and organizations throughout the Amusement Park and Zoo; and WHEREAS, Operator has completed the improvements to the property required under the Previous Agreement, investing $4,353,000, with additional inveshnents in a commissary planned (collectively the "Investments"); and WHEREAS, the parties hereto wish to amend and replace the Previous Agreement in its entirety with the terms set forth in this Amended Agreement; and WHEREAS, upon execution of this Amended Agreement, the Previous Agreement shall be null and void. NOW THEREFORE, in consideration of the mutual agreeanents contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties agree as follows: 1. DEFINITIONS. The following words and phrases, when used in this Amended Agreement, shall have the meanings given to them in this Section: 1.1 " Amended Agreement" shall mean tlus Como Amusement Park Management Agreement, as the same may be amended from time to time as provided herein. 1.2 "Aicoholic Beverage Services" shall mean the sale and service of alcoholic beverages at any catering event held at the Amusement Park or Zoo. 1.3 " Amusement Park" or "Como Town" shall mean the area of Como Park which is approximately 164,000 square feet and adjacent to the Como Zoo and Conservatory, redeveloped for the use of amusement rides as part of the original agreement. 6�7 /�3� 1.4 "Amusement Park Property" shall mean the real property City is maldng available under this Agreement to Operator that constitutes the area of Como Park which is approximately 164,000 squaze feet and adjacent to the Como Zoo and Conservatory. 1.5 "Annual Payment" shall mean the annual base payment, before Commissions, due to City by Operator in consideration of the operation and management rights ganted herein as more specifically set forth in Section 8.1 herein. 1.6 "Beverage AgreemenY' shall mean the existing and any renewal sponsorship agreement, by and among City, Coca-Cola USA. and Midwest Coca-Cola Bottling Company, or a similar agreement with the same or other agents, witl� respect to the sale of beverages at the Amusement Park and Zoo. 1.7 "Catering Commissions" shall mean the commissions due to City by Operator herein based on the Net Receipts of food and beverages, alcoholic and non- alcoholic, sold during catering events held at the Amusement Park and Zoo provided by Operator as more specifically described in Section 8.4 herein. 1.8 "City" shall mean the City of Saint Paul. 1.9 "Commissary Building" shall mean the building which Operator will construct for use as a warehouse and maintenance facility with a purpose to primarily support food concessions 1.10 "Commission" shall mean the Food Commissions, Ride Commissions, and Catering Commissions paid by Operator to the City under this Amended Agreement. 1.11 "Como Park" shall mean the Como Regional Park owned by City located on 378 acres of land and 72 acres of water in Saint Paul, Minnesota. 1.12 "Conservatory" shall mean the Marjorie McNeely Conservatory located in Como Park that is owned and operated by the City. 1.13 "Event of DefaulY' shall mean any acts referenced in Sections 14.1 or 14.2 herein that constitute a default under this Amended Agreement. 1.14 "Final Plans" shall mean the plans of the build out of the Amusement Park as approved by the Operator and City. 1.15 "Food and Beverage Services" shall mean the sale of food and non-alcoholic beverages at the Amusement Park and Zoo. 2 D� /�3� 1.16 "Food Commissions" shall mean the commissions due to City by Operator herein based on the Net Receipts of food and non-alcoholic beverages sold at the Amusement Park and Zoo as more specifically described in Section 8.3 herein. "Food Commissions" shall not include any revenue or Net Receipts of food and beverages sold at catered events held at the Amusement Pazk and Zoo. 1.17 "General Manager" shall mean the individual(s) hired by Operator to provide on-site general management of the operations of the Amusement Park and Services at the Zoo. 1.18 "Intellectual Property" shall mean the name of the Amusement Park "ComoTown", advertising materials (print, radio, television or otherwise), and promotional materials and programs developed by Operator for the Amusement Park including without limitation, any and all trade names, trademazks, service marks, copyrights and patents for the same. 1.19 "Main Food Bnilding" shall mean the structure constructed by Operator within the Amusement Park far the purpose of serving as the Amusement Park's and Zoo's main food service building. 1.20 "Maintenance Program" shall mean the program Operator institutes for the regular maintenance of the mechanical rides and play structures within the Amusement Park as more specifically defined in Section 7.2 herein. 1.21 "Net Receipts" shall mean gross revenue received by Operator minus applica6le taxes. 1.22 "Operator" shall mean Como Amusement, LLC, a Minnesota entity. 1.23 "Personal Property Items" shall mean any and all items located within the Amusement Park and Zoo furnished by the Operator that is not reai properiy or perxnanently affixed thereto including, without limitation, any and ali furniture, equipment, inventory, carts, kiosks, roller coasters, mechanical rides, tables, chairs, benches, vending machines, and signage. 1.24 "Ride Commissions" shall mean the commissions due to City by Operator herein based on the Net Receipts of rides sold at the Amusement Park as more specifically described in Section 8.2 herein. 1.25 "Term" shall haue the meaning ascribed to it in Section 23 herein. 1.26 "Zoo" or "Como Zoo" shall mean the entire zoo, owned and operated by the City located within Como Park, but not the Visitor Center within the Como Zoo. 47�/�' � 1.27 "Zoo Closure" shall mean the closure of any material part or the whole Zoo by the City or any third party for any reason during the Term of this Amended Agreement. 2. SERVICES; TERM. 2.1 Exclusivitv. City hereby grants to Operator an exclusive right throughout the Term of this Amended Agreement to operate and manage the Amusement Park and provide the Services at the Amusement Park and Zoo ("License") in consideration for the Invesrinents made by the Operator and the Annual Payment and Commissions paid to the City hereunder. So long as this Amended Agreement remains in full force and effect, City shall not authorize or permit any other person or entity, and shall not on its own behalf, unless as otherwise specified herein in Section 2.4 below, operate an Amusement Park on or adjacent to the Zoo and/or Conservatory grounds. 2.2 Services. During the Term; City hereby grants to Operator the sole and exclusive right to: (i) provide Food and Beverage Services in the Amusement Park and Zoo; (ii) provide catering, including Food and Beverage Services, and related services for all events in and at the Amusement Park during the term of this Amended Agreement, and exclusive catering at the picnic shelter at the Zoo so long as the picnic shelter is in operation; (iii) provide cate2ing, including Food and Beverage Services, and related services for all events in and at the Zoo grounds for the term of the Amended Agreement, subject to the following exceptions: (a) the City ar the Zoo and Conservatory Society shall be entitled to sponsor eight (8} events per year on the Zoo grounds; (b) product sampling as defining in 2.4. (iv) provide portable carts and kiosks and vending machines at the Amusement Park and Zoo; (v) provide Alcoholic Beverage Services with respect to catering at the Amusement Park and Zoo, subject to and to the extent permitted by local and federal law, rules, and regulations. In the event that the sale of alcohoi is permitted at the Amusement Park and Zoo during the term of the Amended Agreement, Operator shall have the exclusive right to hold any and all licenses and permits required far such sale; 6 �-ia 3� (vi) provide mobile, coin-operated rides throughout the Amusement Park and an exclusive right to provide mobile, coin-operate rides throughout the Zoo if rides aze ailowed in the Zoo; (vii) sell merchandise and/or appazel witivn the Amusement Pazk, but only to the extent that such merchandise is restricted to images of the patrons at the Amusement Pazk on various items, or otherwise not in conflict with items sold by the Como Zoo and Conservatory Society; (viii) provide games of skill and conduct activities for a chazge within the Amusement Pazk including, without limitation, sand art, spin art, face painting, rock climbing, temporary tattoos and puppet shows, and in the Zoo, to the extent such activities aze permitted on Zoo grounds during the Term of this Amended Agzeement; and (ix) select and purchase such food, beverage, catering, and merchandise brands and items from suppliers on terms acceptable to Operatar including, without limitation, entering into exclusive product and pouring service agreements, cooperative sponsor agreements and promotional benefit programs (collectively referred to as "Services"). Any exclusive product and pouring service agreements, cooperative agreements and promotional benefit programs must be approved in advance by the City, which approval shall not be unreasonabiy withheld. Operator hereby agrees to provide the Services in accordance with the provisions of this Amended Agreement. 2.3 Term. The term of this Amended Agreement shall commence on the date of this Agreement and continue to January 31, 2026, unless sooner terminated in accardance with the terms of this Amended Agreement ("Term"). 2.4 Limited Exceptions to Onerator's Exclusivity. Notwithstanding any provision in this Amended Agreement, during the Term of this Amended Agreement, City shall have the right to authorize product sampling at the Zoo of foods, beverages and other commodities, pxovided that the saxnples to be distributed are substantially less than a full-size product, the sampling is permitted during limited hows, the samples are offered only in specific areas of the Zoo, the sample products are not comperitive to or substantially similar to the products offered by Operator in the Zoo or Amusement Park, and such product sampling provides mutual benefit to Operator and City. In addition, Operator aclrnowledges the existence of a sponsorship agreement by and among City, Coca-Cola USA and Midwest Coca-Cota Bottling Company with respect to the sale of Coca-Cola g beverages at the Amusement Pazk and Zoo ("Coca-Cola Agreement"), a copy of which has been provided to Operator. Operator agrees to cooperate with City in implementing the Coca-Cola Agreement provided that the City allows Operator to �7�/�-3� have input in negotiating the costs and quality of products provided under the Coca-Cola Agreement. Operator agrees to cooperate in a similar manner with subsequent Beverage Agreements following the expiration of the referenced Coca-Cola Agreement. 3. OPERATION OF AMUSEMENT PARK; RELATED STRUCTURES. 3.1 Snace Availabilitv. During the Term of this Amended Agreement, City shall provide Operator the following space within Como Park to operate the Amusement Pazk and render the Services set forth herein: (i) the current amusement park area which constitutes approximately 164,000 square feet and is adjacent to the Como Zoo ("Amusement Park Property"), and (ii) areas within the Zoo, designated by City and Operator from time to rime, for food service carts, food service mobile stands, vending machines and kiosks. At all times before, during and after the Term of this Amended Agreement, City shall retain ownership of all space provided for use by Operator herein as well as itnprovements made. Operator shall retain ownership of any Personal Property Items it owns and places in the Amusement Park or Zoo and/or Conservatory. As part of the construction of the Amusement Pazk, Operator constructed a public restroom building as well as a gift shop that became part of the real property of the Amusement Park ("New Buildings") and shall remain the property of the City following termination of this Amended Agreement. Upon termination of this Amended Agreement far any reason except default of the Operator not including Operator's banl�uptcy or insolvency, City shall, or shail require the third-party operating the Amusement Park after Operator, to pay Operatar an amount equal to the book value, based on a 30-yeaz straight-line depreciation, of the New Buildings on the date of such termination. Upon termination of this Amended Agreement for any reason, Operator shall be given a reasonable amount of time to remove its Personal Property Items. 3.2 Construction of Food Buildine. As proposed with the original build out of the Amusement Park, Operator may also construct, at its own expense, a food building in the Amusement Park at the location and in accordance with specifications set forth in the Final Plans ("Main Food Building"). City and Operatar agree that the Main Food Building shall become part of the real property of the Amusement Park and be the property of City following termination o£ this Amended Agreement. However, upon termination of this Amended Agreement for any reason except default of the Operator not inciuding Operator's baula uptcy ar insolvency, City shall, or shall require the third-party operating the Amusement Park after Operator, to pay Operator an amount equal to the book value, based on a 30-year straight-line depreciation, of the Main Food Building on the date of such termination. 0 � �-ia 3� 33 Commissarv Construction. As a condition of this Amended Agreement, Operator agrees to finance and 'uutiate construction of a commissary building to primarily support storage and maintenance related to food seroices provided by Opezator herein ("Commissary Building"). If the Commissary Building is not substantially completed within the 9-month period following the execution of this Amended Agreement, the term of this Amended Agreement as established in Section 2.4 will be reduced to end on January 31, 2024. The City shall haue unconditional and sole approval of the space allotted to the Commissary Building, the sizing and location of any equipment supporting the expansion elements, and the exterior finishes far the Commissary Building. At the time of negotiating this Amended Agreement, the Commissary Building is expected to be approximately 1,600 sq/ft in size and cost approximately $300,000. Construction will be facilitated in a manner that is not disruptive to Como Campus operations as directed by the City. City and Operator agree that the Commissary Building shall become part of the real property of the Amusement Park and shall be the property of City following termination of this Amended Agreement. However, upon termination of this Amended Agreement for any reason except default of the Operator not including Operator's bai�kniptcy or insolvency, City shall, or shall require the third-party operating the Amusement Park after Operator, to pay Operator an amount equal to the book value, based on a 30-year straight-line depreciation, of the Commissary Building on the date of such terminarion. 3.4 Conshuction of Commissarv Fence. As part of the Commissary Building, Operator agrees to participate in the financing of a fence to be designed by and constructed as directed by the City, at a date following the completion of the Commissary Building. Operator will be resporisible for 50% of the costs of the fence, up to a total contribution of $50,000. The City shall invoice the Operator and payment shall be made to the City within thirty days from receipt of the invoice provided the City may not invoice Operator for the payment of the fence until construction of the fence has been completed. 3.5 Current Fence. A fence enclosing the Amusement park and Zoo as set forth in the Final Plans was constructed at a height of eight (8) feet, with Operator paying for 44% lineal feet of the fence, and the City paying for 56% lineal feet of the fence. Operator has constructed and shall maintain a fence or similar barrier separating the Amusement Park and Zoo. The fence currently in place separating the Amusement Pazk and Zoo shall continue to have the ability to, when needed, fully and completely separate and secure the Zoo grounds from the Amusement Pazk. 3.6 Donation Booths. City and Operator agree that as of the effective date of this Amended Agreement that the location of the City's donation booth at Como Town will be at the interface beriveen the Regional Park and Como Town. ��/�3� (i) In recognition of Operator's concern that the location of the donation booth will negatively impact revenues at Como Town, the parties hereto agree that, in each year during the Term of this Amended Agreement, if the amount of donations at that location is over the 2006 baseline donation amount for that booth, and that the total amount of donations for all donations booths is greater than the 2006 baseline donation amount of all booths, then the smaller of the differences in the rivo increases shall be used each year for mazketing, advertising or promotional activiries that jointly benefit the parties. (ii) The donation station at Como Town will close 45-60 minutes prior to the closing time for the Zoo. (iii) In consideration for the foregoing, all gates between the two properties will be open during Zoo operating hours to afford the greatest traffic flow opportunities. 3.7 Sale of Personal Propertv Items Upon Exniration or Termination. The Personal Property Items shall be and remain the property of Operator, and Operator agrees to remove the Personal Property Items upon the expiration or termination of this Amended Agreement by either party. Upon expiration ar termination of this Amended Agreement by either party, City shall have the option to purchase the Personal Property Items from Operator. City may exercise this option by providing Operator with at least 90 days prior written notice in the case of the expiration of this Amended Agreement, or written notice within seven days of a termination of this Amended Agreement, stating that City desires to purchase the Personal Property Items from Operator. City will have the option to purchase the Personal Property Items for cash, at its fair market value as determined by a mutually agreed upon appraiser. In the event City and Operator cannot agree on an appraiser within ten days of the exercise of the option to purchase, each shall choose its own appraiser, and those two appraisers shall choose a third appraiser which will provide the appraisal hereunder. In the event City does not exercise this option, Operator may choose to remove the Personal Property Items from the Amusement Park and Zoo or sell the Personal Property Items to a successor operator. 3.8 Future Conshuction. Operation of the Amusement Pazk will require ongoing inveshnent in infrastructure by Operator. Operator investments which result in permanent buildings or structures (collectively, "F�ture Buildings") are thereby not the Personal Property of the Operator and shall become part of the real property of the Amusement Park and Properiy of the City following terminarion of this Amended Agreement. Specific written authorization by the City is required priar to Operator initiating improvements to the real property. At the time that a project is proposed for consideration, the application of any provisions similar to 3.1, 3.2 and 33 far Operator's recovery of book value for ��'f�3� such Future Buildings following the termination of this Amended Agreement shall be addressed and documented as part of that process. Absent any specific documentation otherwise, no compensation to the Operator shall be due by the City for Future Buildings where docuxnentation does not exist. In the event that Operatar proposes to undertake significant new private investment in the premises with the consent of the Ciry, such invesknent will not result in automaric extension of the term of this Agreement, and instead parties must negotiate an Amendment to this Amended Agreement. In any such negotiafions, the City will consider the feasibility of extension of the term based upon the amount of investment, the benefit to the City and the existing length of the term of the Agreement. 4. OPERATION OF AMUSEMENT PARK BY OPERATOR 41 General Oversi�ht and Mana e� ment. The rights granted herein by City gives Operator the full and exclusive right to operate, manage and supervise any and all activities and Services provided in the Amusement Park provided that such oversight and management complies with the terms of this Amended Agreement, and are in compliance with city, state and federal laws and city policies and procedures. 4.2 Periods of Operation. The Amusement Park shall be open to the public on the days and during the hours determined by Operator from rime to fime provided that Operator shall use its best efforts to maacimize the benefit of the Amusement Park space. Notwithstanding the foregoing, the Amusement Park shall be open daily to the public at a minimum during the public hours of the Zoo, weather permitting. Operator shall provide City with written notice of the Amusement Park's period of operation. City understands and agrees that catering events scheduled by Operator and certain small stage events may occur from rime to time before ar after the standard hours of operation of the Amusement Park. Operator shall provide the Services at the Zoo during the hours of operation of the Zoo. 43 Menus and Pricine. It is agreed and understood that Operator will develop, and change seasonally, a set of inenus and pricing for food, beverages, and catering services offered in the Amusement Park and Zoo. Upon request by the City, Operator shalI forward City a copy of all items offered and their prices. Food prices, offerings, and prices shall be comparable to those offered by other food service providers at similar facilities and parks in the Minneapolis and St. Paul azea. 4.4 Sates of Alcoholic Beveraees. Operator wiIl serve and sell alcoholic beverages under the terms of this Amended Agreement only in conjunction with events it is G] 07�/� 3� catering and for which it has received advance permission, subject to and in compliance with local and/or state licensing requirements. 4.5 uali . All food and beverage items offered for sale by Operator shall be of superior quality. Operator shall not offer for sale any food or beverage items which aze spoiled, of poar quality or otherwise unfit for consumption. All food and beverages sold by Operator shall conform to applicable federal, state and county food and health laws, ordinances and regulations in all respects. City shall have the right, at its own expense, to inspect Operator's food service facilities at the Amusement Pu and Zoo and to order improvement in the quality of cani tarion ar products. The quality of the food and beverages served and sold by Operator at the Amusement Park and Zoo shall be compazable to those sold in similar facilities in the Minneapolis and St. Paul area. Operator will provide City, upon request, copies of any reports, citations, or notices to appear from the health deparhnent or any other governmental agency as it relates to Operator's Services at the Amusement Park and/or Zoo, as well as copies of any Operator field inspection reports in response thereto. 4.6 Caterin�. Operator shall be responsible far the scheduling and booking of all catered and other entertainment evants held at the Amusement Park. Operator shall be responsible for the handling of all rentals and all other accommodations for all catered events for outside groups and organizations inciuding, without limitation, tents, party equipment, flowers, entertainxnent, and valet parking. Operator shall be solely responsible for the collection of all amounts billed in this regard including, withouY limitarion, rental fees, audio/visual fees, secririty, parking, florist and/or any other charges. Operator shall also be responsible far the scheduling and booking of all catered events held at the picnic shelter of the Zoo. City shall be responsible for booking all events at the Zoo. 4.7 Small StaQe Events. Operator shall be solely responsible for scheduling, booking, and approving events to be held in the small covered stage built by Operator within the Amusement Park provided thaf such events shall be limited to those events which are consistent with the family nature of the Amusement Park, poriray the Como Zoo and Conservatory plant and animal collections in a respectful manner and shall comply with all applicable local, state and federal regulations. Such events may be regularly scheduled or one-time events. Operator shall promote the events in its soIe discretion 10 �7-I�-3C� 4.8 Promotional and Marketine Activities. Except as set forth in Section 3.6(i} herein, Operator, at its own expense, shall be responsible for naming the Amusement Pazk and creating its brand through advertising, print, radio, television or otherwise, and promotional activities ("Intellectual Property"). City shall obtain Operator's approval, approval ofwhich shall not be unreasonabiy withheld, on any advertising developed by the City referencing ar promoting the Amusement Park. Operator agrees not to bring into disrepute or adversely affect the integrity, image or reputation of the City or Como Park in any advertising or promotional materiais produced by Operator. In consideration for the significant financial investment by Operator in creating the Intellectual Property, it is agreed and understood that Operator shall remain the sole owner of the Intellectual Property created herein. 4.9 Public Use. Operator shall not interfere with the public use of the Amusement Park and Zoo and shall use its best efforts not to allow any boisterous or disorderly persons to loiter about the Amusement Park. 4.10 Maintenance of Como Park's Re utation. Operator recognizes that Como Park possesses a special, unique and extraordinary character and that Operator has been chosen to receive the rigkts granted herein and provide the Services at the Amusement Park and Zoo to further Como Park's reputation. Operator agrees that it will use its best e£forts to ensure that its employees, agents and representatives do not take any action that will harm, bring into disrepute, or adversely affect the integrity, image or reputation of City or Como Park. 411 Recvclin� & Energ,y Conservation. Operator will participate in City's conservation progams including but not limited to recycling, water and energy 11 67- l�3 �o conservation provided participation in such programs does not substantially increase the cost of Operator doing business at the Amusement Park and Zoo. 4.12 Licenses and Pemuts. It is Operator's responsibility to know what licenses or pemuts aze required to conduct its business, and provide the Services required hereunder at the Amusemenf Pazk and Zoo, and to obtain all such licenses and permits prior to commencing operation under this Amended Agreement. Upon request, City shall execute such documents and instruments and take such actions as may be reasonably required to assist Operator in obtaining such licenses and permits. 5. DUTIES OF CITY. 5.1 Securit�Services. City shall provide, without additional chazge, normal security services in all azeas of the Amusement Park to the same extent and at the same level provided elsewhere on the Zoo grounds. Operator may, in its discretion, hire additional security services for the Amusement Park. 5.2 Utilities. Operator will arrange for a11 utilities inciuding heat, air conditioning, electricity and gas for the Amusement Park. City will provide water to Operator for Operator's normal operations at the Amusement Park and Zoo for no additional cost to Operator other than the Annual Payment paid herein, except that this shall not include provision of water for any water ride or feature at the Amusement Park which would increase the water usage beyond the current level. Operator will install its own telephone voice and data systems at its own cost and expense and will pay all the applicable monthly service and toll costs thereof. City wiIl provide cabling reasonabiy necessary for this voice/data system as needed between the Operator's location within the Amusement Park to the connecrion site. 53 Janitorial and Cleanin�. City shall keep the Amusement Park clean and neat at all times by providing, at its cost and expense: (i) janitorial services (and all related cleaning supplies) for the restrooms located in the Amusement Pazk; (ii) daily pick up of trash and litter in the Amusement Park and in the Zoo, and its removal except the Operator shall be responsible far the clean-up of litter within fifteen (15) feet of carts, kiosks and eating azeas maintained by Operator;(iii) daily pick up of trash from the trash barrels in the Amusement Park and Zoo; and (iv) the 12 ��-��3C� cleaning of all ground and patio surfaces of the Amusement Pazk and of the Zoo, except within fifteen (15) feet of carts, kiosks and eating areas maintained by Operator. City fiu•ther agrees to maintain all such areas, on an ongoing basis, consistent with City's standazds for the Zoo. 5.4 Removal of Trash from Dumpsters. City, at its own expense, shall be responsible for the removal of all trash from the Amusement Pazk and Zoo, including trash generated by Operator's operations at the Zoo. City shall establish a contract to remove such trash on a regular basis and supply a deodorizing system for their trash collection vendor. City and Operator shall be jointly responsible for keeping the area around its dumpster(s) clean and odor free. 5.5 Groundskeenin¢. City shall be responsible, at its own cost, for any and all groundskeeping and landscaping maintenance required at the Amusement Pazk including, without limitation, maintenance of lawn, watering of bushes and plants, removal of brush and leaves, and snow removal. 5.6 Free Admission. If the City determines it must charge admission fees in order to operate the Zoo and Conservatory, the Operator will be able to decide whether the Amusement Park area should be separately accessible without an admission fee. Operatar agrees it will not charge an admission fee to the Amusement Park at any time without the prior written consent of the City. 6. OPERATOR PERSONNEL. 6.1 Emplovment. Operator shall hire, train, employ, supervise discipline and terminate all personnel as shall be necessary for the efficient performance of its 13 �7�/�3� obligations under this Amended Agreement. All personnel so hired by Operator shall be employees of Operator and not of City. Operator agrees that appropriate pre-employment security checks and screening will be carried out for all employees to the extent permitted by law. Operator sha11 perform BCA background checks on all employees employed in the Amusement Park; however, nothing herein shall be construed as Operator conveying any guaranty on the accuracy of the background check result or analysis or that no person who has been convicted of a crime listed in Minn. Statute Section 299C.61 is employed in the Amusement Park. Operator agrees that it will not knowingly employ anyone who cannot and does not provide the appropriate documentation indicating a legal right to work in the United States. Operator shall not knowingly employ or permit to work on the premises in the processing, handling, preparing and serving of food or beverages any person who is infected with any disease or illness in a communicable form or who is a carrier of any such disease or illness insofar as such restricrions are legally permissible. All persons engaged in the processing, handling, preparing and serving of food and beverages shall wear appropriate attire, shall be clean and sanitary in their personal habits, shall take suitable precautions to prevent hair or other such matter from coming in contact with food, and shall exercise other health and safety measures as appropriate under the highest standards applicable to food service providers, or as otherwise required by state or federal regulations. 6.2 Mana¢er. Operator shall operate the Amusement Park and conduct the Services herein under the supervision of an on-site general manager ("General Manager"). Operator shall provide a stumnary of the General Manager's qualifications and contact information to the City upon written request. 6.3 Training and Supervision. Operator shall train and closely supervise all of its employees so that they are aware of and perform in accordance with the high standazds of cleanliness, courtesy and service required by City and Operator. This training includes, but is not limited to training required by any local, state or federal governmental agency covering Operator's operarions at the Amusement Park and Zoo. Operatar shall train all of its employees involved in the sale and service of alcoholic beverages and in alcohol awareness, which includes training based on any applicable law of the State of Minnesota. This training may include, without limitation, policies and procedures developed by Operator dealing with alcohol management and a nationally-recognized program such as "Techniques 14 a�-�a�� for Effective Alcohol ManagemenY' ("TEAM") or "Techniques for Intervention Procedures by Servers of Alcohol" ("TIPS"). 6.4 Securi . Operator shall adhere to all of City's security policies. Operator and its employees, whether full-time, part-time or on-call, shall be subject to City's security and security clearance procedures. 6.5 Uniforms; Identification Taes. In connection with the operation of the Amusement Park and performance of the Services hereunder, Operator's non- management employees shall be neatly attired in clean, commercially-attractive, uniforms as required by Operator. Operator will provide all of its employees at the Amusement Park and Zoo with name tags. Operator's employees shall be required to weaz their name tags at all times when on duty at the Amusement Park and Zoo. 6.6 Waee and Hour Laws. Operator shall comply with all federal and state equal opportunity, wage and hour and taY laws covering employees. 6.7 Nondiscrimination. Operator wili not discriminate in the terms and conditions of employment because of gender, race, color, religion, national origin, age, sexual or affectional orientation, marital status, creed, familial status, status with respect to public assistance, anceshy or disability. Operator will take appropriate action to ensure applicants that are employed by Operator are treated during employment without regard to their gender, race, color, religion, national origin, age, sexual or affectional orientation, marital status, creed, familial status, status with respect to public assistance, anceshy or disability. Such action shall include, without limitarion, the following: employment, promotion, transfer, recnutment, layoff, 15 D��%�3� temunation, wage, salary, compensation, training, and apprenticeship. Operator agrees to post in conspicuous places available to employees and applicants for employment norices setting forth the provision of this nondiscriininarion clause. 7. REPAIR AND MAINTENANCE. 7.1 Phvsical Shucture. During the Term of the Amended Agreement, Operator shall be responsible for the maintenance and repair of the physical structures located within the Amusement Park built by Operator and the Main Food Building including the roof, windows and doors, exterior walls, heating, air conditioning and ventilation. At all times during the term of this Amended Agreement, the City shall have the right, by itself, its agents and employees, to enter the Amusement Park azea and the Main Food Building during reasonable business hours or, in the event of an emergency, at any time for any legitimate purpose. 7.2 Personal Propertv. Operator will provide for maintenance and repair of the Personal Property Items owned by Operator used in the Amusement Park and by Operator in the Zoo. Operator shall establish a prevenrive maintenance program for the mechanical rides and play structures within the Amusement Park and shall repair and replace such rides and structures on an ongoing basis, at Operator's cost and expense, when items become worn, lost or in need of repair ("Maintenance Program"). The Maintenance Program shall include a written daily sign-off to verify that maintenance and inspections have been completed. Operator shall maintain complete and accurate records of maintenance performed on all such items. Copies of these records shall be made available to City upon request. Operator will advise City in writing of any problems or issues relating to the Personal Property that affect Operator's ability to perform the Services hereunder. In conjunction with the Maintenance Program, Operator shall, as it deems necessary, set up a reserve fund to maintain an inventory of spare parts for the mechanicai rides. 73 Unsafe Conditions. City and Operator shall each immediately notify the other of any unsafe condition within the Amusement Park. Operator shall cooperate fully with City in the investigation of any accidental injury or death occurring at the Amusement Park including a prompt report thereof to City. 16 D7�/a- 3Cv 8. PAYMENT TO CITY; ACCOUNTING. 8.1 Annual Pavment. As consideration for the operation and management of the Amusement Park and provision of Catering Services, Operator shall be entitled to any profits over and above the payment of the annual payment and designated commissions due to the City, as set forth herein. Operator agrees to pay City an annual payment, during the term of this Amended Agreement, in accordance with the following table ("Annual Payment"): Year 2004: $120,000.00 Years 2005-10: $140,000.00 Years 2011-23: $170,000.00 The amount shall be paid to City in four installments: (i) 25% on or prior to May 1 of each yeaz, (ii) 25°/a on or prior to July 1 of each year, (iii) 25°l0 on or prior to September 1 of each year, and(iv) 25% on or prior to November 1 of each year. 8.2 Ride Revenue Commission. Operator shall pay the following commissions to City in each year during the Term based on revenue received by Operator after taxes ("Net Receipts") from rides in the Amusement Pazk ("Ride Commissions"): Annual Net Receipts % of Commission $ 0 - $ 199,999.99 0% $ 200,000.00 - $ 1,000,000.00 2.5% 17 �7-/�31 $ 1,000,000.01 - $1,500,000.00 3.0% $ 1,500, 000.01 + 1.5% Examples: In Year 1 if Operator's Net Receipts received from rides in the Amusement Park are $1,000,000; City shall receive 20,000 in Ride Commissions for Year 1 [$1,000,000 - $200,000 = $800,000. $800,000 x .025% _ $20,000]. In Year 2, if Operator's Net Receipts received from rides in the Amusement Park are $1,500,000, City shall receive $35,000 in Ride Commissions for Year 2 [$1,000,000 - $200,000 =$800,000. $800.000 x .025 = $20,000. $ 500,000 x .030 _ $15,000. $20,000 + $15,000 = $35,000]. Net Receipts shall be determined for every year during the Term of this Amended Agreement individually and shall not cumulate to any previous determinations of prior years. Ride Commissions due to Caty from Operator shall be made upon Operator's determination of Net Receipts for the yeaz provided that such calculation shall occur within 45 business days following the end of each calendar year. A statement of Net Receipts shall be provided with each payment. 83 Food Revenue Commission. In consideration of the rights granted herein, Operator shall pay the following commissions to City in each year during the Term based on the Net Receipts of Food and Beverage Services provide by Operator in the Amusement Park and Zoo ("Food Commissions"): Month Net Receipt is Earned % of Commission May - August September - April 20% 15% Example: In Year 1 if Operator's Net Receipts received from food/beverages in the Amusement Park/Zoo are $2,000,000 of which $1,500,000 was earned during May-August and $500,000 was earned during September -April, City shali receive $375,000 in Food Commissions far Year 1. Net Receipts shall be determined for every year during the Teen of this Amended Agreement individually and shall not cumulate to any previous determinations of prior years. Food Commissions due to City from Operator shall be made monthly 18 D�-%�-3�O upon Operator's determination of Net Receipts for the month provided that such calculation shall occur within 20 business days following the end of each calendar month. A statement of Net Receipts shall be provided to City with each payment. 8.4 Caterin� Commission. In consideration for the rights granted herein, Operator shall pay City twelve percent (12%) on Net Receipts from all rental revenue received by Operator from rental of the picnic shelter in the Zoo, and of the revenue for Food and Beverage Services provided during catering events by Operator for events held at the Zoo and Amusement Park, except for rentals held in the small outdoor group picnic space for which the Operator shall pay eight percent (8%). 8.5 Vending Machine Commission. In consideration of the right to place food and beverage vending machines on the Zoo grounds, Op"erator shall pay twelve percent (12%) on Net Receipts from such Vending Machines. Vending Machines in the Amusement Paxk are exempt from Commission. Vending Machines in the Amusement Park are limited to a total of 8, similar in style and offerings to those existing at the time this Amended Agreement is executed. 8.6 Staff Discounts. City understands and agrees that Operator may grant its employees staff discounts on select Services and products offered by Operator at the Amusement Park and Zoo. City further understands and agrees that sales of Services and products by Operatar to its employees at a staff discount shall not be included in the calculation of Net Receipts for determining the Ride Commissions, Food Commissions or catering cominissions due to the City under Sections 8.2, 8.3, and 8.4, respectively. 19 lr7%a�C 8.7 Record Keeoine. Operator shall use such point-of-sale equipment as it reasonably deems necessary to properly and accurately record all Net Receipts. City shall have the right, at any time, to review and to inspect such equipment. 8.8 Annual Audit. City shall have the annual right, at its own expense, to audit the books and records of Operator for the then current year covering Operator's operation of the Amusement Park and Services at the Zoo, at Operator's corporate or accounting offices. Operator agrees to reasonably cooperate with such audit. If City does not agree as a result of the audit with any determination of Net Receipts or Commissions due to the City by Operator herein, City must promptly (but not later than 30 calendar days after the completion of such audit) give written notice to Operator of any exceptions thereto (in reasonable detail describing the nature of the disagreement asserted). If City and Operator reconcile their differences, the calculation of Net Receipts or Commissions will be adjusted accordingly and will thereupon become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. If City and Operator are unable to reconcile their differences in writing within 20 calendar days after written notice of exceptions is delivered to Operator (" Reconciliation Period"), the items in dispute wiil be submitted to independent auditors, mutually acceptable to City and Operator, for final determination, and will become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The independent auditors may consider only the items in dispute and will be instructed to act within 20 calendar days (or such longer period as City and Operator may agree) to resolve all items in dispute. If City and Operator fail to select the independent auditors within seven calendar days after the expiration of the Reconciliation Period, City and Operator will each select an independent auditor they shail select a third independent auditor to conduct the fmal determination and such determination will become binding, fmal and conclusive upon all parties hereto and enfarceable in a court of law. 9. INSURANCE AND INDEMNIFICATION. 9.1 Indemnification bv erator. The Operator agrees to indemnify, defend, save and hold harmless the City of Sa3nt Paul and any agents, officers and employees thereof from all claims, demands, actions or causes of acrion of whatsoever nature or character, arising out of or by reason of the use of the Amusement Park property by the Operator, or the use or condition of the Amusement Park property 20 6�-/�-3� as a result of the operarions or business activities of the Operator or from the provision of the Food and Beverage Services by the Operator under this Amended Agreement unless such claim, demand, action or cause of action arises out of the willful misconduct or gross negligence of the City. 9.2 Insurance Requirements of Onerator. The Operator shall acquire and keep in effect during the term of this Amended Agreement the following insurance policy coverage: 9.2.1 COMMERCIAL GENERAL OK PUBLIC LIABILITY INSURANCE including blanket contractnal liability coverage, personal injury liability coverage and broad form property damage liability endorsement with a combined single limit of not less than $1,200,000 per occurrence, $2,000,000 aggregate, shall be purchased by the Operator. Such insurance shall: (a) name the City of Saint Paul as additional insured; (b) be primary with respect to Operator's insurance ar self-insurance; (c) include an"all services, products or completed operations" endarsement ,(d)not exclude explosion, collapse and underground property damage; (e) be written on an"Occurrence" Form policy basis; and ( fl not contain an"aggregate" policy limit unless specifically approved in writing by the City. 9.2.2 WORKERS' COMPENSATION INSiJRANCE with nat less than statutory minimum limits; and EMPLOYERS' LIABITJTY INSiIRANCE for all of Operator's employees at the Amusement Park with minimum limits of at least $500,000 per accident, $500,000 per employee and $500,000 per disease, with an all states endorsement. The Operator shall supply to the City current insurance certificates for policies required in this Section 9. The said certificates shall certify whether or not the agent has enors and omissions insurance coverage. 21 d7 /�3� The lunits cited under each insurance requirement above establish minimums; and it is the sole responsibility of the Operator to purchase and maintain additional insurance that may be necessary in relarion to this Amended Agreement. During the term of this Agreement the City may request increased insurance limits as necessary to reflect the increased municipal exposure due to changes to Minn. Stat. Chapter 466. Nothing in this contract shall constitute a waiver by the City of any statutory limits or exceptions on liability. Operator shall place the insurance with responsible insurance companies authorized and licensed to do business in the State of Minnesota and approved by City, and shall deliver copies of the policies to City on the date of Operator's execution of this Amended Agreement. The policies required in Section 9 shall be endorsed to indicate that the insurer cannot cancel or change the insurance without first giving the City 30 days' written notice. 10. REPRESENTATIONS AND WARRANTIES OF CITY. City hereby represents, warrants and covenants to Operator that: 10.1 Title. City holds good and marketable title to the amusement pazk area free and clear of all liens, restrictions, encumbrances, pledges, claims and rights whatsoever. City has the fulllegal right, power and authority required by law to execute and deliver this Amended Agreement and to deliver and make available the amusement park area far the build out of the Amusement Park. 10.2 Effect of Amended Aereement. The execution and delivery of this Amended Agreement by City shall not cause City to breach or be in default under any material agreement to which City is a party or may be bound thereby. City is not in default under any agreements or understandings pertaining to its right to use or occupy the Amusement Park. 103 Liti�ation. As of the date hereof, City has not received any notice(s), whether oral or written, of any default(s) under any lease, financing or other agreement pertaining to the Amusement Park or its redevelopment, use or occupancy thereof. There are no claims, actions, suits, proceedings, arbitrations, investigations or 22 ��-i�� hearings or notice of hearings pending, or to City's lrnowledge, threatened nor is City in default under any order, license, regulation or demand of any federal, state, local ar foreign court or governmental, administrative or self reg�latory body or agency or any unsatisfied judgment against City that may adversely affect the ability of City to perform its obligations hereunder or which othenuise relates to this Amended Agreement. There is not in existence at present any order, judgment, or decree of any court or other tribunal or any agency enjoining or requiring City to take any action of any kind or which may adversely affect this Amended Agreement. 10.4 Environmental Matters. City represents and warrants that: (I) City is, and at all times has been, in full compliance with, and has not been and is not in violation of or liable under, any local, state, or federal environmental, health and safety requirements; (ii) neither City nor any of its predecessars or third party operators, has received any written or oral notice, report or other information regarding any actual or alleged violation of any environmental, health and safety requirements, or any liabilities or potential liabilities (whether accrued, absolute, contingent, liquidated or otherwise), that relate to the Amusement Park Property, including any investigatory, remedial or corrective obligations; (iii) there are no pending or threatened claims,encumbrances, or other restrictions of any nature arising under or pursuant to any environmental, health and safety requirements, with respect to or affecting the Amusement Park Property; (iv) no underground storage tanks, asbestos-containing material in any form or condition, landfills, surface impoundments, or disposal azeas exist on the Amusement Park Property; (v) City has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any substance, including without limitation any hazardous material, on the Amusement Pazk Property in a manner that has given 23 �7 %�3C� or would give rise to any environmental, health and safety liabilities, including any liability for response costs, corrective action costs, personal injury, property damage, or attorney fees, pursuant to CERCLA or any other environmental, health and safety requirement; and (vi) City is unaware of any test results, reports, studies, analyses, tests, or monitoring possessed or initiated by City pertaining to hazardous materials or hazazdous activiries in, on, or under the Amusement Park Properiy, or concerning compliance by, or liabilities of, City, or any other person for whose conduct City is or may be held responsible, with or under locai, state and federal environmental, health and safety requirements. Operator agrees to comply with all ordinances, laws, rules and regulations enacted by any govemmental body or agency relating to the control, abatement or emission of air and water contaminants and the disposal of refuse, solid wastes or liquid wastes as they apply to the Amusement Park and Operatar's Services during the term of this Amended Agreement. Operator shall bear all costs and expenses arising from compliance with said ordinances, laws, rules, or regulations and shall indexnnify, defend, save and hold harmless the City from all liability, including without limitation, fines, farfeitures and penalties arising from the failure by Operator to comply with such ordinances, laws, rules ar regulations unless such liability is a result of the willful misconduct or gross negligence of the City. The City has the right to perform cleanup and charge the Operatar for such costs should the Operator fail to comply with or commence its clean-up obligations within 30 days of receiving notice from the City of the obligation. 10.5 Taaces. All tases related to the Amusement Park Property of any nature required by law to be paid on or before the execution of this Amended Agreement ("Tases") have been paid in full and all tax returns have been timely and accurately filed or properly accrued for if not required to be paid prior to the execution of this Amended Agreement. No claim of Taaces due is being contested by City, no request by City is pending for extensions of time for payment of Tases, and no notice of additional assessment has been received by City or is threatened. There are no tas liens upon the Amusement Park Property, and the City has not granted or been requested to grant waivers of any statutes of limitations applicable to any claim far Taxes. During and after the term of this Amended Agreement, in the event taxes of any kind are assessed against the Operator as a result of its use of the Amusement Park Property or as a result of its Services ar operations therein, City agrees to credit the Annual Payments and/or 24 D� %�3� Commissions due herein by Operator, or if already paid, return a portion of the Annual Payments and/or Commissions paid herein, by an amount equal to such ta�c assessment, including any and all penaities and interest incurred by Operator in conjunction with the assessment. 10.6 Government Approvals. City has obtained all approvals, authorizations and consents required to be obtained by City for the use of any portion of the Amusement Park and Zoo and for the execution and delivery of this . Operator shall be responsible for obtaining all necessary license, permits, or consents for the conshuction of the build out, operation of the Amusement Park and provision of catering services carried out under this Amended Agreement. 10.7 Noninterference. City shall not interfere or obshuct Operator' s access to the Amusement Park and Zoo under control of Operator, except as expressly provided in this Amended Agreement. 10.8 Authorization and Enforceabilitv. This Amended Agreement has been duly and validly authorized, executed and delivered by City and constitutes a legal, valid and binding obiigation of City enforceable against City in accordance with its terms, except to the extent that such enforcement may be limited by bankruptcy, insolvency or other similar laws presently or hereinafter in effect affecting the enforcement of creditor's rights generally. No agreement restricts City in the execution and performance of this Amended Agreement. Each of the representations, warranties and covenants contained herein is independent of every other, and shall not in any way limit, restrict, modify, or be deemed or construed in any way to limit, restrict ar modify any other warranty or 25 67�I�3� representation. 11. REPRESENTATIONS AND WARRANTIES OF OPERATOR Operator hereby represents, warrants and covenants to City that: 111 Or�anization and Good Standin� of Operator. Operator is a corporation duly organized, validly existing and in good standing under the laws of Minnesota. Operator has full power and authority to make the representations, warranties and agreements made under this Amended Agreement, to execute and deliver this Amended Agreement, and to perform its obligations under this Amended Agreement. 11.2 Effect of Amended Agreement. The execution and delivery of this Amended Agreement by Operator shall not cause Operator to breach or be in default under any material agreement to which Operator is a party or may be bound thereby. To the best of Operator's actual lrnowledge Operator is not in default under any agreements or understandings pertaiving to its right to use or occupy the Amusement Park, or provide the Services required hereunder. 113 Authorization and Enforceabilitv. This Amended Agreement has been duly and validly authorized, executed and delivered by Operator and constitutes a. legal, valid and binding obligation of Operator enforceable against Operator in accordance with its terms, except to the extent that such enforcement may be limited by baiilcniptcy, insolvency or other similar laws presently or hereinafter in effect affecting the enfarcement of creditor's rights generally. No agreement restricts Operator in the execution and performance of this Amended Agreement. No consents ar approvals are necessary under any agreement to which Operator may be a party or may be bound thereby in connection with the execution and delivery of this Amended Agreement by Operator. Each of the representations, warranties and covenants contained herein is independent of every other, and shall not in any way limit, restrict, modify, or be deemed ar conshued in any way to limit, restrict or modify any other warranty or representation. 26 6"7-%�3� 12. CASUALTY LOSS OF AMUSEMENT PARK; ZOO CLOSURE. 12.1 Deshuction of the Whole or Material Portion. If fire or other casualty shall render the whole or any material portion of the Amusement Park inoperative for a period of 60 days or more, then Operator shall have the option of either: (i) termanating this Amended Agreement without penalty, or (ii) repairing and restoring the Amusement Park to as near its condition prior to the fire or other casualty as is reasonably possible and notify City that it will be doing so by providing written notice within 30 days from the date of such damage ar deshuction, and this Amended Agreement shall remain in full force and effect. Operator's duties under this Amended Agreement shall be suspended, or modified as appropriate, until Operator has completed the repairs and restoration of the Amusement Park and this Amended Agreement shall be extended for a period equai to the period of such suspension. 12.2 Partial Destruction. In the event that twenty percent (20%) or less of the value of the Amusement Park is damaged or destroyed by fire or other casualty and neither the whole nor any material portion of the Amusement Park is inoperative, then Operator shall repair and restore the Amusement Park to as neaz their condition prior to the fire or other casualty as is reasonably possible with all due diligence and speed. Operator's duties under this Amended Agreement. shall be suspended until Operator has completed the repairs and restoration of the Amusement Park and this Amended Agreement shall be extended for a period equal to the period of such suspension. 12.3 Zoo Closure. In the event any material portion of or the entire Zoo is closed by City or any third party for any reason ("Zoo Closure") for a period of 30 days or 27 �7-j�3� more, Operator may take any one or more of the foilowing actions in its sole discretion: (i) reduce the level of service as may be appropriate in connection with such Zoo Closure, (ii) reduce the Annual Payment by 525,000.00 for each 30-day period of the Zoo Closure, or (iii) terminate the Amended Agreement, collect the amounts set forth herein upon termination of this Amended Agreement and pursue any other legal or equitable remedies available to Operator. 13. LIENS. The Operator shall use its best efforts to avoid the filing or establishment of any mechanic's liens or other liens against the Amusement Park property for labor, materials or services fumished in connection with any additions, modifications, improvements, repairs, renewals or replacements made to the Amusement Park by the Operator; provided that if a lien is filed with the City, Operator shall notify the City of its existence and shall have 60 days from the date notice is provided to the City to, in good faith, con-test any such claim or lien filed or established and in such event may permit the items contested to remain undischarged and unsatisfied during the period of such contest. If, in the opinion of the City, the nonpayment of any such items subjects the Amusement Park to any loss or farfeiture, the City may require the Operator to deposit in eserow with the City a sum of money, a bond, ar an nrevocable letter of credit acceptable to the City equal to the amount of the lien. Following the 60-day period granted to Operator above, the City may use the escrow account to promptly pay all such unpaid items. 14. DEFAULT AND REMEDIES. 14.1 Default bv Operator. An "Event of Default" by Operator shall be deemed to have occurred upon the occurrence of any one or more of the following: (i) Failure to Pay. In the event that Operator fails to make any payment to City as required in this Amended Agreement, and such failure continues for a period of 30 days after receipt of written notice of such nonpayment. (ii) Failure to Retain Insurance. In the event Operator fails to retain proper insurance as required herein, and such failure continues for a period of 30 days after receipt of written notice of such failure. (iia) Other Breaches. In the event that Operator breaches any obligation 28 �7-/a3� under this Amended Agreement, other than those referred to in ciauses (a) or (b) of this Section, and such breach continues for a period of 60 days after receipt of written notice of such breach. (iv) Batilauptcy. In the event Operator files a voluntary petition in banla�uptcy, insolvency or a petition for reorganization in any state or Federal court or a receiver is appointed for all or any substantial portion of Operator's property or an order or decree of bankruptcy, insoivency or reorganization issued, City may termanate this Amended Agreement. (v) Involuntary Judgment. An order, judgment or decree shall be entered by any governmental body of competent jurisdiction appointing, without the application or consent of Operator, a custodian, receiver, tnxstee, liquidator, sequestration or similar officer for Operator or for all or any substantial part of its property, or any substantial part of the property of Operator shall be sequestered, any such order, judgment or decree of appointment or sequestration shall remain in force undismissed, undischazged, unstayed and unvacated far a period of 60 days after its date of entry. 14.2 Default bv Citv. An "Event of Default" by City shall be deemed to have occurred upon the occurrence of any one or more of the following: (i) In the event City fails to retain proper insurance, or to self insure, as provided herein, and such failure continues for a period of 30 days after receipt of written notice of such failure. � ��%� 3Ca (ii) Breach. In the event that City breaches any obligation under ttus Amended Agreement and such breach continues for a period of 60 days after receipt of written notice of such breach; however, breach by the City of its obligation referred to in clause (a) of this Section and Sections 2 or 3 shall constitute an event of default under this Amended Agreement immediately without written norice or after the expirarion of any cure period explicitly specified in those Sections. 14.3 Remedies (i) Ternunation. The party claiming the occurrence of an Event of Default under this Amended Agreement as defined Sections 14.1 and 142 above may, in its sole discretion, elect to terminate this Amended Agreement by providing norice of such termination to the other party. This Amended Agreement shall be deemed to be terminated immediately upon receipt of such notice, or on such other date as may be set forth in the notice. Termination by the party is without prejudice to its right to recover damages, if legally recoverable on account of such breach. (ii) Cumulative Remedies. No remedy herein conferred upon or reserved to City or Operator within this Amended Agreement is intended to be exclusive of any available remedy ar remedies, but each and every such remedy shall be cumulative and shall be in addirion to evezy other remedy given under this Amended Agreement ar existing at law or in equity or by statute. (iii) Waiver. No delay or omission to exercise any right or power occurring upon breach, default or termination shall impair any such right or power or shall be construed to be a waiver thereof. Any such right may be exercised from time to time and as often as may be deemed expedient. In the event any covenant, agreement, ar representarion contained in this Amended Agreement is 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 concurrent, previous, or subsequent breach or default hereunder. 3Q 6�-ia�� 15. MISCELLANEOUS. 15.1 Force Majeure. Neither party shall be considered in default in performance of any non-monetary obligation under this Amended Agreement to the extent that performance of such obligation is prevented or delayed by any cause beyond its reasonable control, including, without limitarion, acts of God; acts ar omissions of governmental authorities or the other party; strikes; lockouts or other industrial dislurbances; acts of public enemies; wars; blockades; riots; disturbances; epidemics; floods; hurricanes; tornadoes; and any other similar acts, events, or omissions. 15.2 No Partnershin. Neither Operator nor City is, nor shall either hold itself out to be, an employee, agent, subsidiary, affiliate or partner of the other party for any purpose, including reporting to any governmental authority, and neither party shall have the authority to bind the other party to any obligation. All employees of Operator or City shall remain employees of Operator or City, respectively, and under no circumstances shall any person employed by either Operator or City be deemed to be an employee of the other party. 153 Assiaunent. Neither Operator nar City shall have the right to assign, transfer or convey this Amended Agreement, without the prior written consent of City. Notwithstanding this provision, the City hereby understands and agrees that Operatar may, within thirty days of execution of this Amended Agreement via an assignment and assumption agreement, assi� all of its rights and obligations under this Amended Agreement to Zooper Food, LLC only as such provisions relate to the provision of Food and Beverage Services and catering services at the Amusement Park and Zoo. 31 �7 15.4 Attorne, s Fees. If City or Operator commences or engages in any action by or against the other party arising out of or in connecrion with this Amended Agreement, each party shall be responsible for payment of its own attorneys' fees and other costs incurred in connection with the action, prepazation for such action, any appeals relaring thereto and enforcing any judgments rendered in connecrion therewith. 15S Good Faith. Both parties shall cooperate in the implementation of the provisions of this Amended Agreement in a spirit of good faith and fair dealing so as not to defeat the rights of the parties as set forth herein. Both parties further agree that any consent or approval required hereunder shall be given or withheld on a reasonable and timely basis unless otherwise stated to the contrary in this Amended Agreement. 15.6 Notices. All notices; requests, demands and other communications that are required to be given under this Amended Agreement sha11 be in writing and shall be deemed to have been duly delivered: (i) on the date of delivery if personally delivered; (ii) on the date of transmission with confirmed receipt by telephone if delivered by facsimile; or (iii)on the date on which return receipt is signed ar delivery is refizsed if dispatched by registered or certified first class mail, Federal Express or similar service, postage prepaid, return receipt requested, to the party to whom the same is to be given at the following address, and to such additional parties as may be requested in writing: If to City: Como Park Zoo & Conservatory 1225 Estabrook Drive St. Paul, "Minnesota 55103 Attention: Como Campus Manager Telephone: (651)487-8296 Fax:(651)487-8255 If to Operator: Como Amusement, LLC 1255 Trapp Road Eagan, MN 55116 32 �� %�3(p Attention: Glenn Baron, President Telephone: (651) 290-9864 Faac: (651) 290-9442 15.7 Governin� Law. This Amended Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Minnesota, without regard to choice of law provisions and venue shall be in the district court of Ramsey County, Minnesota. 15.8 No Waiver. The making or failure to make any payments, take any action, or waive any rights shall not be deemed an amendment of this Amended Agreement, nor consent to such acrion ar to any future action ar failure to act, unless the party required to so consent or act expressly agrees in writing. 15.9 Entire Amended Agreement. This Amended Agreement constitutes the entire Agreement of the parties and supersedes all prior or contemporaneous agreements, whether oral or written, between the parties including, without limitation the Previous Agreement. This Amended Agreement may not be amended or modified except in a writing signed by all of the parties hereto. 15.10 Severabilitv. If any paragraph, subparagraph, sentence, clause, phrase, or portion of this is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Amended Agreement, provided that the substantial economic benefits of this Amended Agreement and the intent of the parties is not fiustrated thereby. 33 ��-�a3 c� 1511 Cantions. The captions in this Amended Agreement are for convenience only and in no way define, limit or othenvise describe the scope or intent of this Amended Agreement, or any provision hereof, or in any way affect the interpretation of this Amended Agreement. 15.12 Further Acts. Each party agrees to perform any further acts and to execute, acknowledge and deliver any documents, which may be reasonably necessary to carry out the provisions of this Amended Agreement. 15.13 Ap r ovals Consents and approvais required in tlus Amended Agreement to be obtained from City or Operator shall be in writing and shall not be unreasonably withheld or delayed. 1514 Amendments. Notwithstanding anything herein contained to the contrary, this Amended Agreement may be terminated, and the provisions of this Amended Agreement may be, in writing, amended by mutual consent of the parties. [SIGNATURE PAGE FOLLOWS] 34 ��-f �34� IN WITNESS WI3EREOF, the undersigned have executed this Amended and Restated Como Amusement Park Management Agreement as of the day and year first above written. CITY: Mayor OPERATOR: By: Glenn Baron, President Director of Finance Director of Parks and Recreation Approved as to form: Assistant City Attorney Signature page to Amended and Restated Como Amusement Park Management Agreement dated , 2007 35