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HomeMy WebLinkAboutAGR-7254.D - AMERIPARK, LLC. - OISF PARKING MANAGEMMENTDocusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 Initial AGR-7254.D L7 PARKING MANAGEMENT AGREEMENT This Agreement entered into this the 24th day of July,2025,by and between CITY OF ORANGE, a municipal corporation organized and existing under the laws of the State of California("Owner") and AMERIPARK,LLC, organized and existing under the laws of the State of Georgia ("Manager"). WHEREAS,Owner now owns a parking facility containing 608 parking spaces located at 130 N. Lemon Street, Orange, CA 92866 ("Premises") and desires Manager to manage and operate the parking services on the Premises. NOW, THEREFORE, in consideration of the foregoing and of the respective covenants and undertakings herein set forth,the parties hereto hereby agree as follows: 1. Definitions. a. "Gross Revenue" means all revenue, whether hourly, daily or monthly, collected by the Owner or Manager in connection with the operation of the Premises, including the value of all discounted,validated and free parking granted by Owner from the parking of vehicles in the Premises, as well as income from vending machines, pay telephone commissions, and other income approved by Owner, but excluding Taxes and credit card fees or other similar charges. Any Gross Revenue collected directly by Owner shall be accurately reported to Manager. b. "Taxes" means all transaction value, sales and any other taxes, rates, charges or assessments levied, rated, charged or assessed or required to be collected or paid(or both collected and paid)in the operation of the Premises. c. "Operating Expenses" means all of the labor, insurance, supplies and other expenses associated with the operation of a parking service on the Premises, which includes any expenses,whether or not budgeted,which occur beyond the reasonable control of Manager with or without Owner's prior consent. d. "Net Operating Surplus" means Gross Revenues less Operating Expenses and Taxes as hereinafter defined. 2. Scope of Work. Owner hereby contracts with Manager on an exclusive basis to direct, supervise and manage the parking service on the Premises upon the terms and conditions set forth herein and in Exhibit A(the"Services"). Notwithstanding the foregoing,Manager retains the right to perform the same or similar type of services for third parties during the Term of this Agreement. 3. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 4. Term. The term of this Agreement shall commence on August 29,2025 and shall continue for a period of approximately one month ending September 30,2025,unless either party terminates the Agreement as described in Section 5. IJocusign Envelope ID:57F7A387-4A8B-46ED-647E-95C355284DF6 5. Termination. Each party shall have the right to terminate this Agreement in the event the other party has failed to perform any of the material terms and conditions specified herein, if written notice of such failure has been provided in writing in accordance with Section 26 and that party has not corrected such failure within thirty (30) days, or such additional time as is reasonably necessary, of its receipt of written notice. In the event of such termination, this Agreement shall terminate immediately upon the passage of the notice period or cure period if such failure is not cured and all undisputed compensation and other undisputed fees invoiced in writing shall be paid through the termination date. a. Failure to Receive Permits. Manager shall have the right to immediately terminate this Agreement in the event that, for whatever reason, Manager is unable to secure and/or maintain all necessary licenses and permits required by governmental agencies to operate a parking operation on the Premises as determined by Manager in its sole discretion. Manager shall incur no additional liability or penalty as a result of such termination. b. Deficiencies. In the event Owner fails to satisfy contractual deficiencies within five (5) calendar days from receipt of Manager's written notice thereof,Manager,without prejudice to any other right or remedy,shall have the right to take whatever steps it deems necessary to correct the deficiencies and charge the costs thereof to Owner,which shall be liable for payment of same,including reasonable attorneys'fees. c. Remedies. In the event Owner fails to comply with a material obligation under this Agreement, Manager,without prejudice to any other right or remedy, shall have the right to terminate the applicable Services and,to the extent the cost of completing the Services plus reasonable attorneys'fees incurred by Manager as a result of terminating the Services exceeds the unpaid balance of the price of the Services, Owner shall be liable to Manager for payment of same. d. Effect of Termination/Survival of Certain Provisions. No compensation shall accrue or shall be owing in respect of any period after the effective date of termination and no liability of any kind shall accrue on account of such termination in conformance with this Section 5. Sections 3,5(d), 13, 14, 15,23(a)through and including 23(c),24 through and including 30 hereof shall survive the termination of this Agreement.Notwithstanding the foregoing, the provisions of this Agreement that,by their nature and content, are intended to survive the termination of this Agreement shall so survive and continue to bind the parties. 6. Non Solicitation. Owner and Manager agree that during the Term hereof and for a period of one(1)year thereafter, each will not,directly or indirectly,for itself, or as agent,or on behalf of or in conjunction with any other person,firm,partnership,corporation or other entity,solicit, divert or hire away or attempt to solicit, divert or hire away any employee or contractor of the other or its affiliates to leave such employment or contract or cause anyone else to do so. 7. Operating Expenses. Except as otherwise agreed to in this Agreement, all Operating Expenses shall be the sole responsibility of the Manager. 2 Docusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 8. Fees. a. Manager agrees to provide Owner the services set forth herein for the following Fees collectively referred to as"Management Fee"): $49.25 per labor hour. b. The total Management Fee payable to Manager shall not exceed SIX THOUSAND ONE HUNDRED SIXTY DOLLARS($6,160.00). 9. Deposit of Gross Revenue. If applicable,Manager shall deposit the Gross Revenue collected daily into Owner's bank account. 10. Payment of Management Fee. Manager's Management Fee shall be payable as follows: within thirty(30)days of the conclusion of the Services,Manager shall provide Owner with an accounting of the personnel and labor hours attributed to the Services for which Owner agrees to remit payment within 30 days of receipt of invoice. 11. Capital Improvements. Intentionally Omitted. 12. Indemnification. a. Owner Indemnification. Owner hereby indemnifies and defends,protects and holds each of Manager, any direct or indirect officer,director,manager,partner, shareholder,trustee, beneficiary, owner, employee, agent or representative of Manager (collectively, the Manager Indemnified Parties")harmless from and against all claim,liability,loss expense or damage (including reasonable attorney's fee) actually suffered or incurred by such Manager Indemnified Parties that arises out of or relates to any structural faults of the Premises,any failure of Owner to maintain the Premises,any failure of Owner to provide proper warnings, guards, or protection of persons and their property in or about the Premises from known or reasonably foreseeable dangers and any act,omission,negligence, willful misconduct,fraud or uncured material breach of this Agreement by Owner. b. Manager Indemnification. Except as set forth in this Agreement, Manager hereby indemnifies and defends,protects and holds each of Owner, any direct or indirect officer, director, manager, partner, shareholder, trustee, beneficiary, owner, employee, agent or representative of Owner (collectively, the "Owner Indemnified Parties") harmless from and against all claim, liability, loss expense or damage (including reasonable attorney's fee) actually suffered or incurred by such Owner Indemnified Parties that arises out of or relates to Manager's gross negligence,willful misconduct or fraud. 13. Limitation of Liability. a. In no event shall Manager be liable to owner or to any third party for any loss of use, revenue, or profit, loss or compromise of any data, or for any consequential, incidental, indirect,exemplary,special,or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not manager has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. b. In no event shall Manager's aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or 3 Docusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 otherwise, exceed the aggregate amounts paid to Manager pursuant to the applicable statement of work in the 12 month period preceding the event giving rise to the claim. c. Limitation of Liability for Infringement. For purposes of clarification and notwithstanding anything to the contrary provided under this Agreement, Owner acknowledges and agrees that Manager shall not be liable to Owner or any third party,and has no obligation to defend, indemnify or hold harmless Owner or any of its employees, agents or subcontractors,for damages arising out of or resulting from or in any way related to any claim or allegation that any equipment,device or technology,whether provided by Manager, Owner or a third party, or the use or operation of that equipment, device or technology at the Premises or in the provision of services, infringes upon or misappropriates the patent, copyright, trademark, trade secret rights or other intellectual property or proprietary rights of a third party. 14. Confidentiality. a. From time to time during the Term of this Agreement, either Party (as the "Disclosing Party")may disclose or make available to the other Party(as the "Receiving Party"),non- public,proprietary,and confidential information of Disclosing Party that is summarized in writing and confirmed as confidential ("Confidential Information"); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section;(b)is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;(c)was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information.Except as otherwise required by the California Public Records Act,the Receiving Party shall: (x)protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information,but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and(z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party's Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf,to exercise its rights or perform its obligations under this Agreement. b. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek,at Disclosing Party's sole cost and expense,a protective order or other remedy. c. Except as otherwise required by the California Public Records Act, if requested by Disclosing Party at any time, the Receiving Party will promptly return or destroy all Confidential Information received under this Agreement,and all copies,extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has complied with this requirement. Notwithstanding the foregoing,Receiving Party shall be permitted to retain one copy of all such written material 4 Docusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 solely to be kept in the files of its legal department (or otherwise in its archives), on a confidential basis,and in accordance with the terms of this Agreement. 15. Contamination. Manager shall not be liable in any manner whatsoever for any soil contamination, if any, now or in the future on the Premises. Owner agrees to defend, indemnify, and hold Manager harmless from and against any and all actions, costs, claims, losses,expenses and/or damages arising in connection with any such contamination. Further, Manager shall not be liable for any structural faults or defects in the Premises or actions that result therefrom. 16. Insurance. Prior to the commencement of this Agreement and at all times during the term hereof, Manager agrees to maintain, or cause to be maintained with financially sound and reputable insurers insurance coverages listed below. a. The Owner shall be included as an additional insured on all such applicable policies: i. Workers Compensation. Worker's Compensation insurance as required by California law. ii. General Liability. Comprehensive General Liability insurance on an occurrence form basis with limits of one million dollars ($1,000,000) per occurrence with an annual aggregate limit of two million dollars($2,000,000). iii. Umbrella Liability. Umbrella liability insurance with an annual aggregate limit of five million dollars ($5,000,000) which policy shall include, without limitation, coverage of liability for matters insured against by the policy described in this Section. b. Deductible.All insurance coverages carried by Manager are subject to a deductible which shall be included as an Operating Expense for the Premises. c. Fire Coverage and Waiver. Owner shall obtain and maintain fire and extended coverage insurance covering the Premises and personal property contained therein. Owner does hereby waive all rights of recovery,if any, against Manager for damage to, or destruction of,the Premises in the event such damage or destruction is caused by fire or other casualty which can be covered under a standard fire and extended coverage insurance policy.Upon Manager's request, Owner shall provide Manager with a certificate of insurance from Owner's insurer evidencing the insurance coverage specified in Section 16(c). The certificate of insurance shall name Manager as an additional insured. Owner shall provide Manager with 30 days' advance written notice in the event of a cancellation or material change in Owner's insurance policy.Except where prohibited by law,Owner shall require its insurer to waive all rights of subrogation against Manager's insurers and Manager. 17. Books and Records. Manager shall keep in accordance with generally accepted accounting procedures books of account and records that properly reflect the Gross Revenue,labor hours, and expenses. These books and records may be kept at Manager's place of business,but shall be open for inspection upon ten (10) days' prior notice by Owner or its duly authorized representative within three years after the expiration of each year; provided, however, notwithstanding any other provision of this Agreement to the contrary,Owner shall have no right to audit or contest any past records more than twelve(12)months following the completion of any year during the term of this Agreement. 5 Docusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 18. Audit. Manager will provide to Owner, and any Person designated by Owner, access to Manager's personnel and to Manager's operating facilities for the purpose of performing audits and inspections of Manager's operation, Manager's personnel and/or any of the relevant information relating to the Services being performed under this Agreement. Such audits, inspections and access may be conducted to: (a) verify the accuracy of charges and invoices; b)examine Manager's performance of the Services; (c)monitor compliance with the terms of this Agreement;and(d)any other matters reasonably requested by Owner. 19. Record Retention. After expiration or termination of this Agreement,Manager will retain all financial transaction and inspection records for a period of twelve(12)months. 20. Security. Owner expressly acknowledges that the Manager's obligations in connection with the management, operation and promotion of the premises and employment of persons in connection therewith, do not include the rendition of service, supervision, or furnishing of personnel in connection with the personal safety and security of employees,tenants,customers, or other persons within and about the Premises. Manager does not have knowledge or expertise as a guard or security service, and does not employ personnel for that purpose, nor do Manager's employees undertake the obligation to guard or protect customers against the intentional acts of third parties. Owner shall determine,at Owner's discretion,whether and to what extent any precautionary warnings,security devices,or security services may be required to protect patrons in and about the Premises. 21. PCI-Security Compliance. Manager shall provide all revenue control equipment and related hosting and other systems necessary to service the Premises and perform the Services collectively,the"Systems"). Manager represents and warrants to Owner that its Systems shall be at all times during this Agreement compliant with the then-prevailing industry standards governing the storing, handling, processing and transmission of personal and financial information (the "Information"), including, but not limited to, Payment Card Industry Data Security Standards(PCI-DSS)(collectively,the"Standards"). a. Remedies for Non-Compliance. If, for any reason and at any time, the Systems or any portion thereof are not compliant with the Standards, Manager, at its expense, shall promptly take all steps necessary (i) to bring the Systems into compliance with the Standards and (ii) notify Owner in writing of such non-compliance. If, at any time, Manager determines or receives written notice that there has been any unauthorized release of or access to any Information,Manager shall notify Owner in writing of the release within three(3)days following its learning of the unauthorized release. b. Indemnification for Non-Compliance. Manager agrees to indemnify and hold harmless Owner from and against all costs, losses, claims, damages or other injury incurred by, imposed upon, brought or asserted against Owner arising from the Standards or any unauthorized release of or access to the Information,and waives any and all claims it may have against Owner with respect thereto, including for any adverse impact upon Gross Revenue arising therefrom. Manager shall provide Owner with a certificate of attestation of compliance of the Systems with the Standards from the Manager's Qualified Security Assessor on an annual basis, or upon request,if so requested by Owner. 6 Docusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 22. General Provisions: a. Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein,and supersedes all prior and contemporaneous understandings,agreements,representations and warranties, both written and oral, regarding such subject matter. The parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work,the terms and conditions of this Agreement shall supersede and control. b. Non-Waiver. No failure of either party to exercise any power given to it hereunder,or to insist upon strict compliance by the other party of its obligation herein, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of that parry's right to demand exact compliance with the term hereof. c. Construction and Enforceability. This Agreement has been fully negotiated between the parties and shall be construed without regard to any presumption or rule of law or equity regarding construction of this Agreement against the party causing this Agreement to be drafted or prepared. If any clause or provision of this Agreement is illegal, invalid or unenforceable under applicable present or future laws or regulations effective during the term of this Agreement,the remainder of this Agreement shall not be affected. d. Blue Pencil. In lieu of each clause or provision of this Agreement which is illegal,invalid or unenforceable,there shall be added as a part of this Agreement a clause or provision as nearly identical as may be possible and as may be legal,valid and enforceable. e. Licenses. Manager possesses any and all licenses which are required under state or federal law to perform the Services and shall maintain all appropriate licenses,including a City of Orange business license,at its sole cost,during the performance of this Agreement. f. Successors and Assigns. All of the covenants, agreements, terms and conditions to be observed and performed by the parties hereto shall be applicable and binding upon their respective heirs,personal representatives,successors and to their respective assigns. g. Plurality of Owner and Manager. Whenever the term"Owner"and"Manager"are used herein, they shall be taken to include all persons signing this Agreement as Owner and Manager, respectively, their heirs, devisees, personal representatives, successors and assigns. h. OFAC Compliance. Each party to this Agreement represents and warrants to the other i) that neither it nor any person or entity that directly or indirectly owns any interest in it nor any of its officers, directors or managing members is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset control("OFAC") of the U.S. Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List)or under any statute,executive order(including Executive Order 13224 (the Executive Order") signed on September 24, 2001 and entitled "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism"), or other governmental action, (ii) that its activities do not violate the International Money Laundering Abatement and Financial Anti-Terrorism Act 7 Docusign Envelope ID:57F7A387-4A8B-46ED-B47E-95C355284DF6 of 2001 or the regulations or orders promulgated thereunder (as amended from time to time, the "Money Laundering Act"), and (iii) that throughout the term of this Agreement, it shall comply with the Executive Order and with the Money Laundering Act. i. Force Majeure. The Manager shall not be liable or responsible to Owner,nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Manager including,without limitation,acts of God,flood,fire,earthquake,explosion,governmental actions,war,invasion or hostilities(whether war is declared or not),terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock- outs,strikes or other labor disputes(whether or not relating to either party's workforce),or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 10 days, Owner shall be entitled to give notice in writing to Manager to terminate this Agreement. 23. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement to any person without the express prior written consent of the other party;provided, however, that either party may, without the consent of the other, assign this Agreement, its rights,and obligations hereunder to an Affiliate,or in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction. For purposes of this section, Affiliate shall mean any entity that is controlled by such party or is under common control with such party. 24. Governing Law. This Agreement shall be governed by, construed under, interpreted, and enforced in accordance with the laws of the State of California. 25. Notices. All notices,requests,consents,claims, demands,waivers and other communications under this Agreement(each,a"Notice",and with the correlative meaning"Notify")must be in writing and addressed to the other party at its address set forth below(or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein,all Notices must be delivered by personal delivery,nationally recognized overnight courier or certified, email, fax, or registered mail (in each case, return receipt requested,postage prepaid). Except as otherwise provided in this Agreement,a Notice is effective only(a)on receipt by the receiving Party;and(b)if the party giving the Notice has complied with the requirements of this Section. MANAGER: AmeriPark,LLC Attn: Legal Dept. RE: 2025-47918 307 7th Avenue, STE. 307 New York,NY 10001 8 Docusign Envelope ID:57F7A387-4A8B-36ED-647E-95C355284DF6 With a copy to: legalnotices@reimaingedparking.com OWNER: Attn: Jack Morgan City of Orange 300 E. Chapman Ave. Orange,CA 92866 26. Severability. If any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, it shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall not be in any way affected or impaired thereby and shall continue in full force and effect. 27. Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. 28. Counterparts. This Agreement may be executed in counterparts,each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. IN WITNESS WHEREOF,the parties have duly executed this Agreement as of the day and year first above written. MANAGER: AmeriPark,LLC OWNER: City of Orange,a municipal corporation signed by: r—Signed by: Initial 44 By: ,,o rtnoussa By:a, Li. italc.in.Lrawol, Print Name:Print1fflF5F i tiFPiildenbrand Print Title:Chief Revenue Officer Print Title: City Manager Date: 7/30/2025 I 03:48:10 PDT Date: 08/21/2025 APPROVED AS TO FORM: Signed by: dopy 4/A7/.414441- 4,m 1WIffiliets Interim City Attorney ATTEST: Signed by: ParneliMiltirtifft City Clerk q 9