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PARKING FACILITY MANAGEMENT AGREEMENT
This PARKING FACILITY MANAGEMENT AGREEMENT (this “Agreement”) is made and entered into as of this ________day of _______, 20__, by and between ________________, a _______________, hereinafter referred to as “Owner,” and _________________, a _____________and hereinafter referred to as “Operator.”
THAT, WHEREAS, Owner presently owns or controls a certain parcel of real estate upon which a building with a parking facility of approximately _____ parking spaces is being constructed, and has the authority to contract for the management of said parking facility;
WHEREAS, Operator is an experienced operator and manager of parking facilities; and
WHEREAS, Owner and Operator desire to enter into an agreement whereby Operator will manage all parking of motor vehicles at such facility upon the terms, covenants and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
. Owner hereby grants to Operator and Operator hereby accepts the exclusive right and obligation of administering, managing and operating the parking operations with respect to the parking facility located at _____________, ______________, __, hereinafter referred to as the “Premises.”
. The term of this Agreement shall be for three years commencing on the date that Owner informs Operator in writing that the Premises is (or will be available) for public parking (the “Commencement Date”) and expiring on the third anniversary of the Commencement Date (the “Initial Term”), continuing thereafter from year to year unless written notice of non-renewal is given by either party at least thirty (30) days prior to expiration of the Initial Term or then current extension term. In addition to any other termination rights granted herein, and notwithstanding any other provisions of this Agreement to the contrary, this Agreement may be terminated at any time, without cause or penalty, by either party giving at least 30 days’ prior written notice, with the effective date of termination to be on the last day of the first calendar month following the month in which said notice is received. Upon the occurrence of the Commencement Date, or at any time thereafter, upon request of either party hereto, the parties shall confirm in writing the actual Commencement Date. If the Commencement Date does not occur by March 1, 2003, then, regardless of the reason therefor, this Agreement shall have be of no further effect as of such date and neither party shall have any liability to other party by reason of the failure of the Commencement Date to occur by such date.
OPERATOR’S OBLIGATIONS AND SERVICES; OPERATING EXPENSES»
. Operator hereby covenants and agrees that it will:
1 Operate and direct the operation of the Premises as a parking facility in a clean and orderly manner consistent with parking facilities of comparable retail and office properties within Century City, and render the usual and customary services incidental thereto, in a professional, businesslike and efficient manner, with the intent of producing maximum revenues and avoiding excessive Operating Expenses (as defined below) and other expenses, but with discretion as to the specifics thereof as the Operator deems advisable, subject only to the limitations contained in this Agreement, and provide supervision and inspection adequate to properly manage the Premises. Operator shall make a thorough study of the Premises and submit its recommended plan of operation and a proposed annual budget to the Owner within 30 days after request therefor by Owner. Owner reserves the right to establish the hours of operation and parking rates for the Premises. Owner retains the right to reserve parking spaces selected by Owner for use by designated tenants, provided that Operator may continue to make any such spaces available for general public use until such time as the tenant for whom any such space is reserved commences use of or payment therefor. Operator shall not implement any changes to the operating procedures without the prior written consent of Owner.
2 Routinely maintain the parking equipment provided by Operator (if any) in good operating condition and repair, and purchase, on behalf of Owner, equipment and supplies necessary for the operation of the Premises.
3 Provide a schedule of employees in a form acceptable to Owner to be employed “on-site” in the direct management of the Premises subject to this Agreement and Owner’s prior approval. The schedule shall include the number of employees and their title and salary range and shall also indicate which employees are bonded or are covered under the Operator’s comprehensive crime insurance policy. Operator shall identify in the same manner those additional employees whose salaries may from time to time be charged pro rata to the Premises for direct services rendered to the Premises. Employees whose salaries are eligible to be charged pro rata include, but are not limited to, engineers or others to be agreed upon with prior written notice. Employees whose salaries may not be charged pro rata include, but are not limited to, general management personnel, accountants and auditors, unless Owner’s written approval is first obtained. The initially approved schedule of employees may be amended from time to time by mutual agreement.
4 Hire, pay, provide customary benefits for and supervise sufficient experienced and qualified personnel who will render the services required by this Agreement for the professional, businesslike and efficient operation of the Premises. Such employees will be neatly uniformed and courteous to the public. All persons so employed shall be employees of Operator and not of Owner, and shall have no authority to act as the agent of Owner. All matters pertaining to the employment, supervision, compensation, promotion and discharge of such employees are the responsibility of the Operator, which is in all respects the employer of such employees. Operator will negotiate with any union lawfully entitled to represent such employees and shall execute in its own name, and not as agent for Owner, collective bargaining agreements or labor contracts resulting therefrom. Operator shall fully comply with all applicable ordinances, laws and regulations, including, without limitation, those having to do with worker’s compensation, social security, unemployment insurance, hours of labor, wages, working conditions, and other employer-employee related subjects. Operator represents that it is and will continue to be an equal opportunity employer and must advertise as such. This Agreement is not one of agency by the Operator for Owner but one with the Operator engaged independently in the business of managing parking facilities on its own behalf as an independent contractor. All employment arrangements are therefore solely its concern and Owner shall have no liability with respect thereto. Operator shall provide training for new employees.
5 Promote, advertise and endeavor to increase the volume, efficiency and quality of the services rendered.
6 Purchase, on behalf of Owner, supplies necessary for the operation of the Premises in accordance with the annual approved budget.
7 Collect from transient users of and monthly parkers at the Premises parking fees and other charges as directed by Owner, the rates of which shall be determined by Owner from time to time, Operator expressly acknowledging that any increase or decrease in rates shall be subject to Owner’s prior approval in Owner’s sole discretion. Operator shall be responsible for the billing and collection of fees from monthly parkers, provided that Operator shall notify Owner if any party with monthly parking rights becomes more than thirty (30) days in arrears. Operator shall not be responsible to Owner for uncollected accounts, but all monies collected by Operator shall be deposited into the “Collection Account” (as defined in Section 4).
8 Maintain courteous, businesslike relations with users of the Premises, whose requests shall be received, considered and promptly acted upon.
9 Cause the Premises to be maintained in a clean, safe (subject to Operator’s disclaimer in Section 12 below), and orderly manner according to reasonable standards acceptable to Owner, but Operator shall not be required to make (and shall not be authorized to make, without Owner’s prior written approval): (i) any structural, mechanical, electrical or other installations, alterations or repairs to the Premises, (ii) any alterations, repairs or improvements required to be made by Owner as described in Section 12 below, or (iii) any repairs required by statutes, regulations or other governmental requirements pertaining to air quality, environmental protection or persons with disabilities, which matters shall be the sole responsibility of Owner.
10 Promptly notify Owner of any matter that in Operator’s reasonable judgment requires Owner’s attention.
11 Advise and cooperate with Owner in the development and implementation of rules and regulations applicable to the Premises, and enforce such applicable rules and regulations as Owner shall adopt. Advise and consult with Owner with respect to matters of potential changes to traffic control systems, signage and/or any other matter that may substantially alter the use and operation of the Premises, the implementation of any of which shall require Owner’s written consent.
12 Obtain and maintain the policies of insurance specified in Section 8 hereof.
13 Prepare and file all necessary returns, reports and forms required by law in connection with unemployment insurance, social security taxes, worker’s compensation insurance, disability benefits, Federal and state income tax withholding and other similar taxes and all other returns and reports required by any Federal, state or municipal authority (other than income and property tax returns of the Owner) and pay or make all deposits required for such taxes.
14 Annually during the term, by each October 1, Operator shall prepare and deliver to Owner a budget, for Owner’s reasonable approval, reflecting the Gross Receipts and Operating Expenses (defined below) which Operator expects to receive and incur, respectively, during Owner’s forthcoming fiscal year (the “Budget”), it being agreed that if Owner for any reason does not respond to any proposed Budget within thirty (30) days after Owner’s receipt thereof, then Operator shall submit a second written request for approval of the Budget, and if Owner does not respond to the second request for approval of the Budget, then said Budget shall be deemed approved. If at any time during the period covered by an approved Budget, it appears to Operator that the actual total of all Operating Expenses likely to be incurred during said period or any single line item will exceed the Budget’s projected total (or line item) by more than ten percent (10%), Operator shall promptly so advise Owner, and Owner and Operator shall jointly discuss what actions, if any, could be taken to minimize the Operating Expenses without substantially impairing the operation of the Premises.
15 Attend to the making and supervision of all ordinary repairs, decorations and alterations subject to the limits of the approved Operating Budget. Any power washing, restriping or other work that will involve closing all or any portion of the Premises must be performed at times and days approved in advance in writing by Owner. In cases of emergency, Operator may make expenditures for repairs without prior written approval if it is necessary to prevent damage or injury. Owner must be informed of any such expenditures before the end of the next business day.
16 Provide on request the following:
(1) All bank statements, bank deposit slips and bank reconciliation,
(2) Detailed cash receipts and disbursement records,
(3) Detailed trial balance (if available),
(4) General ledger listing (periodically, Owner may request copies of all invoices paid during a specified period),
(5) Summaries of adjusting journal entries, and
(6) Support, documentation for payroll, payroll taxes and employee benefits.
17 Comply on Owner’s behalf with all applicable provisions of the Internal Revenue Service Code and Regulations with respect to the preparation of IRS Form 1099. Operator shall retain a copy of each completed Form in its files.
18 Obtain the written consent of Owner prior to decreasing any Operating Expenses and other garage expenses that will result in a reduction of the general quality of parking service presently being rendered at the Premises.
19 As provided in Section 9(c), remit to Owner the “Net Proceeds” (as defined in Section 4) from the Collection Account, less deductions for Operator’s Management Fees.
20 Schedule for transfer of funds and balance permitted to remain in the Collection Account may be changed from time to time by written instructions from the Owner.
The Owner shall pay Operator for expenses incurred by Operator in the performance of its duties, obligations and services pursuant to this Agreement (collectively, “Operating Expenses”). Operating Expenses shall include, without limitation, all out of pocket (without any profit to Operator) costs, charges and administrative expenses for: salaries and wages and associated payroll burden (including, without limitation, payroll taxes and fringe benefits); license and permit fees; compliance with governmental laws and regulations; uniforms, supplies, tools and cleaning; maintenance and repair to be performed by Operator; telephone; utility charges (except to the extent paid directly by Owner); bookkeeping and administrative services; automobile allowances; employee recruitment, training and ongoing employee relations; computerized accounts receivable service; cost of the monthly report prepared by the certified public accountant pursuant to Section 9 below; banking and credit card system services; postage and freight; tickets, paper and reporting forms; accounts payable processing; health insurance, workers’ compensation insurance and garagekeeper’s legal and general public liability insurance premiums established by Operator; the first $500.00 of any damage claim or loss (plus attorney’s fees and court costs to defend Owner and/or Operator in actions brought to recover damages for such losses) and losses due to theft or robbery. Sales Tax (defined in Section 4) shall be deemed an Operating Expense and shall be deducted each month from Gross Receipts at the same amount that was paid out by Operator for such month. Such Operating Expenses shall be paid from Gross Receipts.
Operating Expenses shall not include (i) the costs of maintenance and repair required of Owner hereunder, or (ii) Owner’s various costs associated with its ownership and/or occupancy of the Premises, including without limitation depreciation, building insurance, real estate taxes and assessments, taxes on Owner’s personal property, debt retirement (including without limitation mortgage interest), rent and such costs and expenses as may be necessitated to comply with the Americans With Disabilities Act of 1990). Payment of such expenses and costs are the sole obligation of Owner.
The following expenses or costs incurred by or on behalf of Operator in connection with the management of the Premises shall be at the sole cost and expense of Operator and shall not be reimbursed by Owner:
1 Cost of gross salary and wages, payroll taxes, insurance, worker’s compensation, and other benefits of Operator’s office personnel not identified in Schedule A;
2 Operator’s corporate or regional general accounting and reporting services which are considered to be within the reasonable scope of the Operator’s responsibility to Owner;
3 Cost of forms, papers, ledgers, and other supplies and equipment used in the Operator’s office at any location off the Premises;
4 Cost of electronic data processing equipment, or any pro rata charge thereon, which is located at Operator’s office off the Premises site;
5 Political or charitable contributions, except that certain charitable contributions may be made after prior consent by Owner;
6 Cost attributable to losses arising from negligence (except as to the first $500 of any such claim, as per the definition of “Operating Expenses” herein above) or fraud on the part of Operator, Operator’s agents or Operator’s employees;
7 Employment fees unless specifically approved by Owner;
8 All regional management costs;
9 Cost advances made to employees and cost of travel by Operator’s employees or agents to and from the Premises; and
10 Training expenses (other than for training of Operator’s employees for work at the Premises).
“Reimbursable Costs” are any expenses which are not deemed Operating Expenses and are approved by Owner prior to expenditure.
If Owner disputes any Operating Expense or Reimbursable Cost, Owner shall give Operator written notice specifying the item disputed and the reason therefor. Payment for any Operating Expense or Reimbursable Cost which is not disputed shall not be withheld. The parties shall, in good faith, diligently pursue resolution of any disputed item within thirty (30) days of said notice.
GROSS RECEIPTS; NET PROCEEDS»
. All Gross Receipts collected by Operator under this Agreement shall be deposited in a federally insured bank account (the “Collection Account”) maintained by Operator. The bank shall be informed in writing that the funds are held in trust for Owner. Through the use of signature cards, authorized representatives of the Owner shall be permitted access to any and all funds in the Collection Account. Operator’s authority to draw against such accounts may be terminated at any time by Owner without notice to Operator, in which event (i) Operator shall have no further obligations hereunder to pay Operating Expenses and other garage expenses or other costs related to the operation of the Premises, and (ii) Owner shall promptly reimburse Operator for all previously unreimbursed Operating Expenses incurred by Operator prior to revocation of Operator’s authority to draw from the Collection Account. Operator cannot and may not terminate the right to a parking space that has been granted pursuant to a lease agreement for commercial or retail space, or institute suit for monies due for use and occupancy without the prior written approval of Owner. In connection with any collection efforts, only legal counsel or a collection firm designated by Owner shall be retained. All legal expenses incurred in bringing such approved suit or proceeding shall be submitted to Owner for its approval. Operator shall not write off any income items without prior approval of Owner.
“Gross Receipts” shall mean all sums collected by Operator for the parking and storage of motor vehicles, whether on an hourly, daily, weekly, or monthly basis, less all refunds, discounts and allowances made by Operator to its customers and less any sales, use, excise, occupancy, gross receipts, parking tax, or any other tax or charge collected by Operator on behalf of and payable to the tax collector (collectively, “Sales Tax”). With regard to Sales Tax, as operator of the parking facility, Operator shall be responsible for payment directly to the tax collector of any Sales Tax based on Gross Receipts collected by Operator. Owner shall be responsible for payment directly to the tax collector of the Sales Tax on any Gross Receipts collected by Owner or its agents (other than Operator). Any deviation from the Sales Tax payment responsibilities as described in the previous two (2) sentences (for example, but without limitation, where Owner pays Sales Tax on Gross Receipts collected by Operator or a portion thereof) must be mutually agreed upon and set forth in a signed amendment to this Agreement. In addition, each party hereto agrees to defend, indemnify and hold harmless the other party hereto, with respect to any and all loss, costs (including attorney’s fees), penalties, and all other liability whatsoever arising out of any breach of the respective Sales Tax payment obligations set forth herein, or as may be subsequently set forth in any signed amendment(s) hereto.
“Net Proceeds” is the balance remaining after deducting all Operating Expenses, the Reserve Amount and Reimbursable Costs from Gross Receipts.
“Reserve Amount” shall mean the sum of $25,000, which Operator shall maintain in the Collection Account at all times during the term of this Agreement. Upon execution of this Agreement by the parties, Owner shall deposit the sum of $25,000 in the Collection Account. If the balance in the Collection Account should at any given time be less than the Reserve Amount, Owner shall deposit into the Collection Account the amount of the deficiency within five (5) days after receiving written notice thereof from Operator. If Owner fails to deposit the deficiency within said five (5) day period, Owner agrees to reimburse Operator for any and all Operating Expenses paid by Operator from its own funds (it being expressly agreed and understood, however, that Operator shall not be under any obligation to do so) together with interest thereon at a rate of interest per annum equal to eight percent (8%).
. As compensation for Operator’s services hereunder, Owner shall pay Operator a management fee of $________ per year, payable in equal monthly installments of $________ (the “Management Fee”), which fee may be deducted by Operator from Gross Receipts to the extent such receipts are sufficient.
CONDITION AND USE OF THE PREMISES»
. Owner warrants and represents that, at the commencement of and throughout the term herein, Owner shall maintain in good condition the portions of the Premises which are the obligation of Owner to maintain under this Agreement. Owner further warrants and covenants that it has obtained or will obtain all licenses and permits necessary for the operation of the Premises as a parking facility (excepting such licenses, police permits and other applicable governmental approvals required for Operator to perform the services required of it under this Agreement). Except as expressly provided in this Agreement, Owner makes no warranty or representation about the retail or commercial facilities to be served by the Premises, or about the Premises, its condition, safety, security or the future income or expenses which may accrue from the Premises or Operator’s operations at the Premises.
REIMBURSEMENT OF DEFICIT»
. In the event the Gross Receipts actually collected by Operator during any month are exceeded by the total of Operating Expenses, the Reserve Amount, Reimbursable Costs and the Management Fee, resulting in a deficit for the month, Owner agrees to pay Operator the deficit within ten (10) days after receipt of Operator’s monthly statement. If payment is not made by Owner to Operator within said ten day period, Operator shall have the right to: (i) charge interest at the rate of eight percent per year on the unpaid balance from the date such payment became due and payable; (ii) offset the amount of the deficit (plus accrued interest) by deduction thereof from any Net Proceeds due or to become due to Owner; and (iii) at its option, after thirty (30) days written notice to Owner (without cure by Owner), terminate this Agreement upon written notice, without waiving or limiting any of its legal remedies (including the right to recover attorneys’ fees and any other expenses incurred) which Operator may pursue to collect the amount owed.
OPERATOR’S INSURANCE COVERAGES»
1 Operator shall carry and maintain, as an Operating Expense, the following insurance coverages:
1 Worker’s Compensation insurance in compliance with the Worker’s Compensation Act of the State of California.
2 Employer’s liability insurance on all employees for the Premises not covered by the Worker’s Compensation Act, for occupational accidents or disease, for limits of not less than $100,000 for any one occurrence, or whatever is necessary to satisfy the requirements of the umbrella liability insurance specified in Subsection (a)(6) below.
3 Garage liability insurance on an occurrence form basis with limits of not less than $1,000,000 per occurrence with an annual aggregate limit of $2,000,000 per location.
4 Garage keeper’s legal liability insurance (if applicable) insuring any and all automobiles that are parked at the Premises by Operator’s attendants or for which a bailment otherwise is created, with limits of liability not less than $1,000,000 per occurrence.
5 Comprehensive crime insurance including employee theft, premise, transit and depositor’s forgery coverage, with limits of liability as to any given occurrence of $50,000 for monies and securities inside and outside the Premises, and $1,000,000 on account of any employee dishonesty.
6 Umbrella liability insurance, in excess following form, with an annual aggregate limit of not less than $50,000,000.
2 The liability policies affording the coverages described in Subsections (a)(3), (a)(4) and (a)(6) above shall be endorsed to cover Owner and its employees, agents, directors and officers as additional insureds.
3 All such insurance shall be with companies as shall be reasonably satisfactory to Owner, and all such policies shall provide that they may not be cancelled or adversely altered without at least thirty (30) days’ prior written notice to Owner. Operator shall deliver satisfactory certificates of insurance to Owner and renewal policies shall be obtained, and certificates delivered to Owner, at least thirty (30) days prior to expiration.
4 Owner hereby waives all claims for recovery from Operator and its employees, agents, directors and officers for personal injury and/or loss or damage to Owner’s property of the type covered by insurance actually carried by Owner or which is commonly covered under an “all-risk” of direct physical loss insurance policy of the type customarily available in ___________, _______, in either case irrespective of applicable deductibles.
(e) Operator shall require that all subcontractors brought onto the Premises have insurance coverage at the subcontractor’s expense, in the following minimum amounts:
(1) Worker’s Compensation Statutory Amount,
(2) Employer’s Liability $1,000,000 minimum, and
(3) Comprehensive General Liability $1 million combined single limit (with Owner named and Owner’s lender named as additional insureds).
Operator must obtain Owner’s written permission to waive or modify any of the above insurance requirements. Higher amounts may be required if the work to be performed is sufficiently hazardous. Operator shall obtain and keep on file certificates of insurance showing that all of Operator’s subcontractors are so insured.
MONTHLY REPORTING; WEEKLY DISBURSEMENTS OF EXCESS»
(a) Within twenty (20) days after the end of each calendar month, Operator shall mail to Owner a statement showing all Gross Receipts, Operating Expenses, Reimbursable Costs, the Management Fee and Net Proceeds for the preceding calendar month. Such statement shall be prepared by a certified public accountant approved by Owner and supported by disbursement vouchers, not later than the 20th calendar day of each following month, of all transactions during the previous calendar month. A report concerning all collections, delinquencies, uncollected items, vacancies, and other matters pertaining to the management, operation, and maintenance of the Premises during the month will be provided on or before the 20th of each following month. In addition, the Operator shall prepare forms prescribed by the Owner to facilitate the input of financial information into the Owner’s accounting system. All financial statements and reports required by Owner will be prepared in accordance with generally accepted accounting principles with the exception that the statements will be prepared on a modified cash basis, remitting the amount collected during the previous month less the following authorized disbursements and expenses incurred in the ordinary course of business in connection with the Premises’ operations and which are reasonable and directly attributable thereto and chargeable to Owner including, but not limited to, the Management Fee, Operating Expenses and other facility expenses, all as specified in Sections 3 and 4. Within sixty (60) days following the last month of the term of this Agreement, Operator shall mail a like final statement.
(b) Operator shall keep complete and accurate reports and records of all Gross Receipts, Operating Expenses, Reimbursable Costs and Net Proceeds relating to the Premises. Operator shall permit Owner or its agents or representatives to inspect and copy Operator’s records (including all of the information and documents described in Section 3(p)) at Operator’s offices during reasonable business hours and at Owner’s expense, at any time during the term of this Agreement and for a period of two (2) years following termination of this Agreement. Notwithstanding the foregoing, Operator shall retain tickets for Owner’s inspection for a period of one hundred eighty (180) days after they are issued.
(c) On Friday of each week during the term of this Agreement, Operator shall wire transfer to Owner the Net Proceeds (less deductions for Operator’s Management Fee), if any.
EQUIPMENT AND IMPROVEMENTS»
. Operator may, with Owner’s written approval, purchase and install equipment or improvements which the parties agree should be installed as part of the revenue and traffic control system and operational requirements for the Premises. Title to equipment and improvements so purchased and installed by Operator shall vest in Owner upon installation, subject to reimbursement. The total cost thereof (including delivery and installation costs and taxes) shall be reimbursed to Operator by Owner within ten (10) days after receipt of Operator’s statement showing the description and cost of each item, or, at the option of Operator, may be deducted by Operator from the Net Proceeds otherwise due and payable to Owner.
. Operator hereby grants to Owner, during the term of this Agreement only, a non-assignable, non-exclusive right and license to use Operator’s intellectual property, including but not limited to its trade names, trademarks and any and all onsite parking amenities programs (the “Intellectual Property”), to the extent related to Operator’s administration, management and operation of the Premises. Upon termination of this Agreement for any reason, Operator shall have the right, at its sole cost and expense, to remove the Intellectual Property from the Premises, and Owner shall refrain from all further use of the Intellectual Property.
. Owner shall, at its expense, be responsible for performance of the following:
1 Repair and maintenance of the Premises, systems and improvements in good condition and repair, including (as applicable): heating, air conditioning, ventilating, exhaust, fire protection, alarm, utility, plumbing (including lavatory facilities), sewage, drainage, security and lighting systems; paving; painting; striping; directional signs, fencing; parking booths; landscaping; windows and doors; plate glass; driveways, sidewalks and curbs (including curb cuts); elevators, manlifts and escalators; sealing and waterproofing; electrical or mechanical equipment, including traffic control devices used at or in the Premises; and all structural repairs.
2 Alterations, improvements and additions that Owner deems necessary and/or as may be required by the Americans With Disabilities Act of 1990 and Proposition 65, and payment of architectural, engineering or consulting fees with respect thereto.
3 Safety and/or security personnel and equipment, if Owner elects, in its sole and absolute discretion to do so.
With respect to subsection (c) above, Owner expressly acknowledges that Operator does not have knowledge or expertise as a guard or security service, and does not employ personnel for that purpose, nor do Operator’s employees undertake the obligation to guard or protect customers against the intentional acts of third parties.
Notwithstanding the preceding provisions of this Section 12, if any repair, alteration or improvement to the Premises or portion thereof is required as the result of the negligence, willful misconduct or breach of this Agreement by Operator, then Operator shall be responsible to Owner for the cost thereof.
. Except to the extent arising from the negligence of Owner or Owner’s employees, agents, representatives, members, managers, directors, partners, officers and affiliates (collectively, “Owner Parties”), Operator shall indemnify, defend, protect and hold harmless Owner and Owner Parties from any and all loss, cost, claims, damages, demands or liabilities arising out of: (i) any breach of this Agreement by Operator, or (ii) the acts or omissions of Operator (or any person or entity employed by Operator or for whom Operator is responsible), in connection with or arising out of this Agreement or the services performed by Operator under this Agreement. The foregoing indemnity shall survive the termination of this Agreement.
. Owner shall, at its expense, provide and maintain commercially prudent insurance coverages for buildings, improvements and any other real or personal property of Owner located on the Premises.
RELEASE AND WAIVER OF SUBROGATION»
. In the event that all or any part of the Premises (including any buildings, improvements or other real or personal property thereon) are damaged or destroyed by fire or other casualty, the rights or claims of either party or its employees, agents, successors or assigns against the other with respect to liability for such loss, destruction or damage resulting therefrom, including loss, destruction or damage suffered as a result of negligence of either party or their employees or agents, are hereby released and discharged, and any and all subrogation rights or claims are hereby waived to the extent of the insurance coverage carried by the parties hereto. All such insurance policies shall contain a clause or endorsement providing that the insurance shall not be prejudiced if the insured has waived its rights of recovery (including subrogation rights) against any person or company prior to the date of loss, destruction or damage.
LICENSES AND PERMITS»
. Operator shall obtain and maintain all licenses and permits required by an operator of parking facilities by any governmental body or agency having jurisdiction over Operator’s operations at the Premises and will abide by the terms of such licenses and permits. Any license or permit fees incurred by Operator specifically for the Premises and for which Operator does not otherwise receive reimbursement shall be deemed an Operating Expense.
LAWS AND ORDINANCES»
. Operator shall not use all or any part of the Premises for any use or purpose which is (i) forbidden by or in violation of any law of the United States, any state or local law or any city ordinance, or (ii) may be dangerous to life, limb or property.
PROHIBITION OF HIRING SUPERVISORY PERSONNEL»
. Operator shall provide experienced and qualified supervisory personnel to supervise its operations. Consequently, Owner covenants and agrees that it shall not hire such supervisory personnel for a period of three (3) months after the date of termination of this Agreement. Owner and Operator agree that it would be difficult to ascertain the amount of damages that would result in the breach of this covenant. Therefore, the parties stipulate and agree that Operator will be compensated in the amount of $5,000 per employee as liquidated damages for each and every employee hired by Owner prior to the end of the 3-month period agreed to herein.
LOSS OR DAMAGE TO PREMISES.
In case of any substantial loss of or damage to the Premises as the result of a taking under the power of eminent domain, or by fire, storm or other casualty, Owner may (i) repair or restore the Premises at Owner’s expense, or (ii) abandon the operation and terminate this Agreement by giving at least ten (10) days’ prior written notice to Operator. If Owner so terminates, Owner shall not be liable to Operator for Management Fees arising after the date of taking or casualty; provided, however, if any portion of the Premises remains suitable for parking and Operator, with Owner’s prior written approval, continues its operations, Operator shall be entitled to receive its Management Fees for the period during which such operations are continued, prorated based on the portion of the Premises being used for parking after such event of damage or eminent domain. If Owner elects to repair and restore the Premises (and does not terminate this Agreement), no Management Fees shall be due for the period the Premises are unsuitable for the ordinary conduct of parking business, and Operator shall not be required to provide services hereunder, but this Agreement shall continue in effect and the term shall be extended for a period equal to the period needed for repair and restoration.
RELATIONSHIP OF THE PARTIES»
. No partnership or joint venture between the parties is created by this Agreement, it being agreed that Operator is an independent Operator.
. Neither party shall be in violation of this Agreement for failure to perform any of its obligations by reason of strikes, boycotts, labor disputes, embargoes, shortages of materials, acts of God, acts of the public enemy, acts of public authority, weather conditions, riots, rebellion, accidents, sabotage or any other circumstances for which it is not responsible and which are not within its control, provided that no such events or conditions shall relieve Operator of its payment or indemnity obligations under this Agreement accruing prior to or after the cessation of such events. No Management Fee shall be due to Operator if it suspends operations for any such cause or event.
. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
. Whenever the approval of either party is required herein, except as otherwise provided in this Agreement, such approval shall not be unreasonably withheld or delayed.
. No waiver of default by either party of any term, covenant or condition hereof to be performed or observed by the other party shall be construed as, or operate as, a waiver of any subsequent default of the same or any other term, covenant or condition hereof.
. If any provision hereof is held to be invalid by a court of competent jurisdiction, such invalidity shall not affect any other provision hereof, provided such invalidity does not materially prejudice either party in its rights and obligations contained in the valid provisions of this Agreement.
. In addition to all other termination rights hereunder, either party may terminate this Agreement upon the breach by the other party of any covenant, term or condition hereof, provided the breaching party first receives written notice of such breach and fails to remedy same, within ten (10) days if a monetary breach or within thirty (30) days if a nonmonetary breach, after receipt of written notice thereof, or if the breaching party fails to commence remedying such non-monetary breach within said 30-day period if such breach cannot be reasonably remedied within thirty (30) days; provided, however the foregoing shall not limit either party’s termination rights under Section 2 above. Either party may terminate this Agreement in the event the other party files a voluntary petition or similar pleading for bankruptcy, insolvency, receivership or makes an assignment for the benefit of creditors, with such termination to be effective upon giving notice thereof.
SALE OF PREMISES»
. Subject and subordinate to all termination rights hereunder, in the event of a sale of the Premises, in whole or in part, this Agreement and Operator’s rights hereunder shall not be disturbed so long as Operator keeps and performs its agreements contained herein.
. Operator shall not assign, encumber or transfer this Agreement or its right, title or interest herein without the prior written consent of Owner, in Owner’s sole and absolute discretion, except that Operator is hereby given the right to assign this Agreement to an affiliate of Operator or to a corporation substantially all of the stock of which is owned by Operator, provided that upon the effectiveness of such assignment, such assignee shall have a net worth at least equal to that of Operator before such assignment, as evidenced by a financial statement presented to Owner and prepared in accordance with generally accepted accounting principles by an independent public accountant reasonably approved by Owner. Owner may assign this Agreement at any time without the consent of Operator.
. Any notice or communication required to be given to or served upon either party hereto shall be given or served by personal service or by express delivery or by mailing the same, postage prepaid, by United States registered or certified mail, return receipt requested, to the following addresses:
|TO OWNER: | |
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|With copy to: | |
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|TO OPERATOR: | |
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|with copy | |
|(by regular mail) to: | |
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Either party may designate a substitute address at any time hereafter by written notice thereof to the other party.
. This Agreement, together with all exhibits hereto, constitutes the entire agreement between the parties, and supercedes all representations, statements or prior agreements and understandings both written and oral with respect to the matters contained in this Agreement and exhibits hereto. No person has been authorized to give any information or make any representation not contained in this Agreement. This Agreement may be amended only by written agreement of the parties.
. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors, executors, administrators, legal representatives and permitted assigns.
NEITHER PARTY DEEMED DRAFTER»
. The parties to this Agreement have had sufficient time to consult legal counsel and negotiate changes regarding the terms hereof. Therefore, neither party shall be deemed the drafter of this Agreement and, as such, this Agreement shall not be construed against either party due to the drafting hereof.
. In the event that either party hereto should (i) retain legal counsel and/or institute any suit against the other for violation of this Agreement or to enforce any of the covenants or conditions herein, or (ii) intervene in any suit in which the other is a party to enforce or protect its interest or rights hereunder, the prevailing party in any such suit shall be entitled to all of its costs, expenses and reasonable fees of its attorney(s) (if and to the extent permitted by law) in connection therewith. The rights and obligations of this Section 33 shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
|OWNER: |OPERATOR: |
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|______________________________, |___________________________, |
|a _________________ |a _______________________ |
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|By: |By: |
|Name: | |
|Title: | |
Operator’s Office Personnel