Parking Garage Management and Operating Agreement Pier 40
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Parking Garage Management and Operating Agreement Pier 40 Parking Garage 353 West Street New York City, NY 10014-3674 Contract No. F5220 TABLE OF CONTENTS Section Page 1. Definitions 1 2. Engagement 3 3. Term of Agreement 5 4. Staff 6 5. Hours of Operation and Parking Rates 10 6. Management Fee, Deposit of Parking Revenues and Payment Terms 10 7. Incentive Management Fee 12 8. Costs of Operations, Expenses of the Operator, and Operator’s 13 Itemized Statements 9. Controlling Costs of Operations and Budget Approvals 16 10. Compliance with Laws 17 11. Maintenance And Purchase Of Equipment, And Security 19 12. Maintenance and Repairs of Garage 20 13. Receipts, Audits, Cash Deposits, Disbursements and Controls 21 14. Insurance 26 15. Indemnification 30 16. Access 32 17. Capital Improvements and Equipment 33 18. Procurement of Bids, Services and Goods; Tax Exemption 35 19. Meetings; Approvals 36 20. Assignment 37 Hudson River Park Trust Page 1 of 4 Table of Contents Section Page 21. Defaults; Cancellation and Termination 37 22. Permits and Licenses 39 23. Sales and Parking Taxes 39 24. Marketing Activities 40 25. Telephone and Internet Service 40 26. Free Parking, Exclusive Parking Area, and Reduced Rate Parking 41 27. Governing Law, Jurisdiction, Controversies 43 28. Set-Off Rights 43 29. MacBride Fair Employment Principles 43 30. Communications 44 31. Survival 44 32. Entire Agreement/Modification 44 33. Benefits and Burdens 45 34. No Waiver 45 35. Conflict of Interest 45 36. Non-Collusive Bidding Requirement 46 37. Omnibus Procurement Act of 1992 46 38. International Boycott Prohibition 47 39. Severability 47 40. Confidentiality 47 41. Acceptance of Final Payment; Release and Discharge 48 42. No Arbitration 48 Hudson River Park Trust Page 2 of 4 Table of Contents Section Page 43. Service of Process 48 44. Interest of Others 49 45. Identifying Information and Privacy Notification 49 46. Property Loss, Damage 50 47. Disclosure of Lobbyists 50 48. Inability to Perform 50 49. No Property Interest 51 50. Penalties for Non-Performance 51 51. Operator as Independent Contractor 51 Hudson River Park Trust Page 3 of 4 Table of Contents APPENDICES APPENDIX A: Aerial Photographs and Plans of the Garage APPENDIX B: Certain Garage Duties and Obligations of Operator APPENDIX C: Parking Rates, 2015 APPENDIX D: Management Fee APPENDIX E: Expenses of the Operator APPENDIX F: Budget APPENDIX G: Approved Staffing Schedule APPENDIX H: Job Descriptions and Qualifications APPENDIX I: Required Monthly and Annual Reports APPENDIX J: Inventory of Existing Equipment, Materials and Supplies APPENDIX K: Penalties for Non-Performance Hudson River Park Trust Page 4 of 4 Table of Contents PARKING GARAGE MANAGEMENT AND OPERATING AGREEMENT THIS AGREEMENT (“Agreement”) made as of ________between the HUDSON RIVER PARK TRUST, a New York public benefit corporation, having an address at Pier 40, 353 West Street, Suite 201, New York, New York 10014 (“Trust”), and ________________________________________________________________ (“Operator”, and together with the Trust, the “Parties”). RECITALS: WHEREAS, the Trust, pursuant to the Hudson River Park Act, Chapter 592 of the laws of 1998 of the State of New York (as amended) (“Act”), is responsible for the development, operation and maintenance of Hudson River Park and the improvements thereon (“Park”), which is located along West Street in the Borough of Manhattan, New York, and WHEREAS, the Act permits the use of Pier 40, located in the Park at 353 West Street (“Site”), for the parking of passenger cars and other commercial uses; and WHEREAS, the Trust seeks to operate, maintain and improve the existing parking garage located at Pier 40 as delineated in Appendix A hereof (“Garage”); and WHEREAS, the Trust desires to engage the Operator to manage, maintain, and operate the Garage and the Operator desires to manage, maintain, and operate the Garage on the terms and conditions set forth herein. NOW, THEREFORE, the Trust and the Operator hereby agree as follows: 1. DEFINITIONS 1.1. Capitalized terms used herein shall have the meanings ascribed to them for the purpose of interpreting the Agreement. 1.2. “Budget” means the Operator’s estimation of Parking Revenues, Costs of Operations (including Parking Tax), and Management Fee. The initial Budget is attached hereto as Appendix F. 1.3. “Trust” has the meaning set forth in the Preamble. 1.4. “Business Day” means any day other than a Saturday or Sunday or a legal holiday on which national banking associations in New York, New York are authorized or delegated by law, governmental decree or executive order, to be closed. Hudson River Park Trust Page 1 January 6, 2020 Draft 3 Parking Garage Management and Operating Agreement 1.5. “City” means the City of New York. 1.6. “Costs of Operations” means the reimbursable costs, fees, and expenses incurred and paid by the Operator in connection with the management, maintenance, and operation of the Garage as set forth in Section 8.1 of the Agreement. 1.7. “Emergency” means an imminent threat to public health, welfare or safety or to property in which the Trust has an interest. 1.8. “Expenses of the Operator” means all costs, fees, and expenses that are incurred and paid by the Operator that are not Costs of Operations as described in Section 8.2 and Appendix E of the Agreement. 1.9. “Garage” has the meaning set forth in the Recitals. 1.10. “Hazardous Materials” means the following: Flammable explosives or radioactive materials; Petroleum products or petroleum hydrocarbons, including, but not limited to, gasoline, diesel, oil, grease, organic lead, benzene, toluene, ethyl benzene, halocarbons, xylene, cadmium, chromium, lead and zinc products; and Any other chemical, paint, material, substance or other matter of any kind whatsoever that is prohibited, limited or regulated or designated toxic or hazardous by any federal, state, county, regional or local authority or legislation, and any and all regulations promulgated from time to time under the foregoing. 1.11. “Management Fee” has the meaning set forth in Section 6.1 of the Agreement. 1.12. “Management Statement” has the meaning set forth in Section 8.5 of the Agreement. 1.13. “New Hires” means any employee that has not completed their labor union probationary period and has less than thirty (30) days of job experience after the end of the probationary period. 1.14. “Operating Account” has the meaning set forth in Section 6.4 of the Agreement. 1.15. “Operating Reserve” has the meaning set forth in Section 6.5 of the Agreement. 1.16. “Operator” has the meaning set forth in the Preamble. Hudson River Park Trust Page 2 January 6, 2020 Draft 3 Parking Garage Management and Operating Agreement 1.17. “Parking Rates” means the parking rates detailed in Section 5.3 of the Agreement. 1.18. “Parking Revenues” means gross revenues, including without limitation, from parking fees, income, receipts, fees, proceeds and other forms of consideration or sums of any description, received or earned or derived by Operator from its management, maintenance and operations at the Garage whether directly or through any of its subtenants, sub-operators, occupants, concessionaires, licensees or vending, token or coin machine operators. Notwithstanding the foregoing, the Parking Revenues shall not include any transaction fee arising from third party aggregators. 1.19. “Parking Tax” means the parking tax described in Section 13.16 of the Agreement. 1.20. “Site” has the meaning set forth in the Recitals. 1.21. “Term” means the period of time commencing on the Commencement Date and expiring on the Expiration Date as provided in Section 3.1 of the Agreement. 1.22. “Uncollected Tickets” means those tickets that are issued by a ticket issuing machine at the Garage and are: Missing and not associated with a lost ticket form completed by the customer; Missing and not associated with reported acts of intentional theft involving breaking of gates, or assault of a cashier; or Missing and not as a result of an emergency situation such as fire, chemical spill, collapse, acts of terrorism, police action, etc. 2. ENGAGEMENT 2.1. The Trust hereby engages the Operator, and the Operator hereby accepts engagement by the Trust, to manage, maintain and operate the Garage as a parking facility in accordance with the terms and conditions set forth herein. 2.2. The Operator shall provide all personnel necessary for the proper management, maintenance and operation of the Garage, including without limitation, off-Site executive and supervisory personnel. 2.3 The Operator shall maintain a full complement of on-site staff as set forth in Appendix G. All on-site staff on vacation, holiday, or other benefit days off shall be replaced by similarly trained and competent replacement staff that shall be paid at straight-time (no overtime) hours. The sole exception to this Hudson River Park Trust Page 3 January 6, 2020 Draft 3 Parking Garage Management and Operating Agreement requirement is for replacement staff that replace on-site staff for a one (1) day illness. 2.4 The duties and obligations of the Operator include, without limitation: 2.4.1 The timely collection and remittal of Parking Revenues as provided in Section 6.2 of the Agreement and the payment of Costs of Operations as provided in Section 8.1 of the Agreement; 2.4.2 The “Certain Garage Duties and Obligations of Operator” detailed in Appendix B of the Agreement; 2.4.3 Enforcing applicable warranties for goods and services procured by the Operator for the Garage and maintaining updated copies of all warranties; 2.4.4 Optimizing the effectiveness of the Garage revenue control systems; 2.4.5 Performing periodic parked vehicle inventories to identify any unauthorized, unidentified and/or unpaid vehicle within the Garage in accordance with established inventory and follow-up procedures, including but not limited to, the Memorial Day holiday weekend, Independence Day holiday weekend, Labor Day holiday weekend, and the weekend following Thanksgiving; 2.4.6 Produce a standard operations, procedure and audit manual (“SOPAM”) specifically tailored for the Garage within sixty (60) days of the execution of the Agreement for the Trust’s review and approval.