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HomeMy WebLinkAboutRepublic / Payne Parking System Augusta Richmond GA DOCUMENT NAME: ~61'U<DL.t c.. / P A'jf\J 14 ?Af<.\{,,.i J ~'J <;,e;rr\ DOCUMENT TYPE: YEAR: ~ODO BOX NUMBER: 1 r FILE NUMBER: lle)"o, ~ NUMBER OF PAGES: 34 .. .l AUGUSTA-RICHMOND COUNTY COMMISSION BOB YOUNG Mayor STAFF AnORNEYS V ANESSA FLOURNOY SPARTICUS HEYWARD LEE BEARD TOMMY BOYLES ULMER BRIDGES ANDY CHEEK HOBOY G. HANKERSON WILLIAM B. KUHLKE, JR. WM. "WILLIE" H. MAYS, III STEI'HEN E. SHEPARD M,\RION WILLIAMS JAMES B. WALL CITY A HORNEY AUGUSTA LAW DEPARTMENT RICl-IARD L. COLCLOUGH Mayor Pro Tem GEORGE R. KOLB Administrator March 7, 2003 Please Reply to: P.O. Box 2125 Augusta, GA 30903 (706) 821-2488 Fax (706) 722-5984 jwall@co.richmond.ga.us Ms. Lena Bonner Clerk, Commission 8th Floor, City-County Bldg. Augusta, GA 30911 RE: Republic/Payne Parking System Our File No. AR-15-154 Dear Lena: I enclose herewith the original Performance Bond issued in connection with the contract between Republic/Payne Parking System and Augusta for the Radisson Parking Lot and Deck, which was approved in January, 2003. I am also enclosing a copy of the Certificate of Liability Insurance. Please include these in the City's pem1anent records with the contract. By carbon copy of tIllS letter, I am forwarding copies of the Bond and Certificate of Liability Insurance, as well as the Operating Plan to Rick Acree. With best personal regards, I am Yours very truly, ~ James B. Wall/A.-P JBW/sjp Enclosures cc: Mr. Rick Acree .... )' ; . Bpnd No. 4003387 PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS, That, Republic/Pavne Parkine: System, as Principal, and the Fidelity & Deposit Co. of Marvland, a corporation organized and existing under the laws of the State of Marvland, as Surety, are held and fmnly bound unto the City of Aue:usta, GA, as Obligee, in the just and aggregate full sum of Seventy-Five Thousand and no/l00** ($75,000.00) Dollars, to the payment of which swn, well and truly to be made, the said Principal and Surety bind themselves and their respective heirs, administrators, executors, successors and assigns, jointly and severally, fmnly by these presents. WHEREAS, the Principal has entered into a certain written contract with the Obligee, dated Februarv 1'\ 2003, which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, the condition of this obligation is such that, if the Principal shall faithfully perfonn as required by the contract, on his part, and shall fully indemnifY and save harmless the Obligee from all cost and damage which the Obligee may suffer by reason of failure so to do and shall fully reimburse and repay the Obligee all outlay and expense which the Obligee may incur in making good any such default, then the obligation shall be null and void, otherwise it shall remain in full force and effect. PROVIDED, however, it shall be a condition precedent to any right of recovery hereunder that, in the event of any default on the part of the Principal, a written statement of the particular facts showing date and nature of such default shall be immediately given by the Obligee to the Surety, and in any event, no later than fifteen (15) days thereafter, and shall be forwarded by registered mail to the Surety at its Branch Office, Atlanta, GA. AND PROVIDED FURTHER, that no action, suit or proceeding, except as hereinafter set forth shall be had or maintained against the Surety on this instrument unless the same be brought or instituted and process served upon the Surety within twelve (12) months after termination of this bond. AND PROVIDED FURTHER, HOWEVER, that this bond only covers a tenn beginning 2/1/2003 and ending 2/1/2004 regardless of the number of years the aforesaid contract shall cover or be in force, and not withstanding anything in the aforesaid contract to the contrary. Such tenn may be continued from year to year by the issuance of a continuation certificate executed by the Surety. I f such tenn is so continued, the liability of the Surety for each successive tenn shall not be cumulative, but rather, the liability of the Surety shall be limited to the penal amount of this bond for the entire period of time which such bond may be in effect pursuant to such continuation certificates. Failure of Principal to post renewal bond(s) shall not constitute a default under the expiring bond. AND PROVIDED FURTHER, that by acceptance of this bond, the City of Aue:usta, GA, as Obligee, hereby acknowledges the one year tenn of the bond and the non-cumulative nature of Surety's liability as set forth in the preceding paragraph. The surety, however, expressly reserves the right to tenninate its liability at any time by giving thirty (30) days written notice to the Obligee. 1t is further understood and agreed that the Surety will provide thirty (30) days notice of renewal prior to the last day of each contract year. In witness whereof, the said Principal and Surety have signed and sealed this instrument this 6th day ofFebruarv, 2003. Republic Parkine: Systems, Inc. BY: AJ,/~ / Principal Fidelity & Deposit Company of Marvland BY~~cf Beth J. Gray, Attome - act .', . Su ety ~ .' '" /' r .-------.....~ '.. ~ . . " EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND "Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senior Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee, shall have power, by and with the concurrence of the Secretary or anyone of the Assistant Secretaries, to appoint Resident Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or to authorize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations, policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in the nature ofmortgages,...and to affix the seal of the Company thereto." CERTIFICA TE I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the original Power of Attorney of which the foregoing is a full, true and correct copy, is in full force and effect on the date of this certificate; and I do further certify that the Vice-President who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized by the Board of Directors to appoint any Attorney-in-Fact as provided in Article VI, Section 2, of the By-Laws of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed." IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said Company, this !o d ') d'yof ~a~ , ~oo..3. a:rv~ Assistant Secretary ". " Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFFICE: 3910 KESWICK ROAD, BALTIMORE, MD 21211 KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by PAUL C. ROGERS, Vice President, and T. E. SMITH, Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By-Laws of said Company, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, does hereby nominate, constitute and appoint John F. KILLEBREW, Maurice O. HORNER, Ronnie L. FOUTS, Margaret FRAZIER, John W. LYMAN and Beth J. GRAY, all of Chattanooga, Tennessee, EACH its true an(\ lawful agent and Attorney-in-Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and':~its act an~<a~: any and all bonds and undertakings and the execution of such bonds or undertakings in pursuanc~8!r"'e'se prese~~liall be as binding upon said Company, as fully and amply, to all intents and purposes, as if they had b~~y execut~d acknowledged by the regularly elected officers of the Company at its office in Baltimore, Md., in t~e.t'{~n prope~;;;bns. This power of attorney revokes that issued on behalf of John F. KILLEBREW, Maurice O. Hq~R, Ronni~ifOUTS, Sherry GREGORY, John W. LYMAN, and Margaret FRAZIER, dated August 3, 2001. ~ <,,@ The said Assistant Secretary does hereby certi~r the extra~~ forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By-Laws of said Company, ~now in forc% IN WITNESS WHEREOF, the said ~~:opresident~~Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said 4€lVELITY A~bEPOSIT COMPANY OF MARYLAND, this 6th day of August, A.D. 2002. {~ 'V ~ ATTEST: ~~ M '0~ ~ ~~V~ FIDELITY AND DEPOSIT COMPANY OF MARYLAND T E. Smith By: Assistant Secretary Paul C. Rogers ~ Vice President State of Maryland } ss' County of Baltimore . On this 6th day of August, A.D. 2002, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came PAUL C. ROGERS, Vice President, and T. E. SMITH, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affIXed my Official Seal the day and year first above written. ~#~- Carol1. Fader Notary Public My Commission Expires: August I, 2004 POA-F 032-6044 ~.'. :.: A CORO,w: ;~.$BmJIt'I:~im_:..ft}.E.:;:Ui~~nwl._]NS.ij@nl6E: :: 'PAGE':l:'O~.':.:.:.:~:r ;~~:;~~;v> . ...... ..... ..:.. '.~ .: :...:.;.,:.....:. ::.:. .;.;........ ....: .'. ::.:: ::...:.:.... :', ..:.:.... ::':::.'. :.;..........:. . :...... .: '. '. :'.':... :.: .':.' '::. .'. :..... . .. ..... .. . . . . PRODUCER" 46000 THIS CERTlACATE IS ISSUED AS A MATTER OF INFORMATION Winis of Tennessee. Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTlACATE 1100 Republic Centre HOLDER. THIS CERTlACATE DOES NOT AMEND, EXTEND OR 633 Chestnut Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Chattanooga TN 37450 COMPANIES AFFORDING COVERAGE (423)756-7821 19882.001 (CHAT) COMPANY Hartford Fire Insurance Company A Sandra Watson INSURED COMPANY B Republic Parking System. Inc. 1 600 Republic Centre Chattanooga TN 37450 COMPANY C THIS IS TO CERTIFY THAT THE POUCIES OF INSURANCE USTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POUCY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POUCIES DESCRIBED HEREIN IS SUBJECT TO All THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POUCIES. UMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. co Lm TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION DATE (MMfOD/'fY) DATE (MMfOD/'fY) UMITS A GENERAL UABIUTY 20UENMS4041 X COMMERCIAL GENERAL UABIUTY CLAIMS MADE [K] OCCUR OWNER'S & CONTRACTOR'S PRCT 01--.lUL-2002 01--.lUL-2003 GENERAL AGGREGATE PRODUCTS-cOMP OP AGG PERSONAL & ADV INJURY EACH OCCURRENCE 2.000.000 2.000.000 1.000.000 1. 000.000 1.000.000 10.000 AUTOMOBILE UABIUTY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON.QWNED AUTOS COMBINED SINGLE UMIT $ BODILY INJURY $ (Per person) BODILY INJURY $ (Per accident) PROPERTY DAMAGE $ AUTO ONLY - EA ACCIDENT $ OTHER THAN AUTO ONLY: EACH ACCIDENT $ EACH OCCURRENCE AGGREGATE GARAGE UABIUTY ANY AUTO EXCESS UABIUTY UMBRELlA FORM OTHER THAN UMBRELLA FOAM WORKERS COMPENSATION AND EMPLOYERS' UABIUTY THE PROPRIETOA/ PARTNERS/EXECUTIVE OFACERS ARE: INCL EL DISEASE.f>OLJCY UMIT EL DISEASE-EA EMPLOYEE EXCL OTMER DESCRIPTION OF OPERATIONS/lOCATIONS/VEHICLES/SPECIAL ITEMS SEE ATTACHED .::#~jgBpijQ~r:::::::::::::::::::::....... ... ............. "PH'" ....... ..H.................... ...... .................................. . illi.liA . )))):.CANC . noN: :":. .:; .:'. ............. H..... ............. .. .... H ... ... . . . . . . .;:::;:;;:;:;;:;:;:::;:;:;;;;;:;:::::::::::;:::::;:;:;:::;::::::::' ........1.................. AC6Rr.#2s~s'f9 .. ..::??t:tC~t; .. ..H..H......... ............................... SHOULD ANY OF TME ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE TMEREOF. TME ISSUING COMPANY WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIACATE HOLDER NAMED TO TME LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBUGATION OR UABIUTY OF ANY KIND UPON TME COMPANY ITS AGENTS OR REPRESENTATIVES. AUTMORIZED REPRESENTATIVE ~~.~ .. ....;.:.:....:::::::.::::::::::::::::::::::::::::?:.:;::::~~r:::::.:.:.:.:::::::; ....... .. ........:.:.:-:.'.... ....:.:::;:::;:;:;=::::;:::;:::::;:::;:;:: :':':':':':'. .... ;':';':"';';':':':-:':';':... .... i)~Ae6Ai)]$WP.BWAT1bN%i9ri: .. GA - City of Augusta. GA 530 Greene Street Room 801 Augusta GA 30911 1*. ~-;. :::::: II }:t~::"":"':::'e":'~a""""":::'m:":':'I"::'e'':'::':I"':(3':':':"':':::~>:"'::/m::""':':'B"::"::;:::'IJ':':':':':'::::S"':':=:J"'::m":-:c"'::S":':"'::::m:=::.:a..':...:..::!f!.::::....::{fI...:::;:-..::E1:::.....:-:::.e.....::::::::::::=::=::::::::::::::::::::::::;::::i::::::::::::t~\::::::::::::::r::::::::::::::::::::::::::::::::W ... \ A 1:1 IS ...... .. . ....,. .. .. .... .. . '" ........... ........ '. .. .. . ... . ......................................,.,........,...................... ...., ISSUE DATE (MM/ODfYYl :::!: ....'1..'1...1... .... ..... .......:!:::iI::::=;;.;;;::.;.:.:\:..i:\.iii.::j.::::,:::;::;;:::::,:;:::;..3::.::;;\2:,:::::::;\:.:.:::::::::..:\:.:;'::).:::,:.:.:",}):.)::::;:::)::::::.;}1:;:;:::::;:;:;;:i::;i;i:;::;;::ieAaj~t;it~i);0E;!;2)!':::::!:@ 7-FEB-2003 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO R GHTS UPON TH CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 46000 INSURED Republic Parking System. Inc. 1 600 Republic Centre Chattanooga TN 37450 PRODUCER Willis of Tennessee. 'nc. 1100 Republic Centre 633 Chestnut Street Chattanooga TN 37450 (423) 756-7821 Sandra Watson THIS IS TO CERTIFY THAT THE POUCIES OF INSURANCE USTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POUCY PERIOD INDIcATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POUCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCWSIONS AND CONDITIONS OF SUCH POUCIES. UMITS MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POUCY NUMBER UMITS DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS Certificate holder is additional insured under General Liability policy for operations of ~he named insured if required by written contract and subject to all policy forms. conditions and exclusion. RE: River Walk Garage. Radison Convention Center. Augusta. GA Crime: Fidelity & Deposit of Maryland - Employee Dishonesty - $25.000 Blanket - Form A ::::;g~~~i.;g::B9f:E~:!t:::!!::i:}!tt:m:::.:...::::.:::::.:..:;.::;::;:::;:;:;::::;;;:.:.;:;:;:::....::.}::::::::)::::::.:.::::::::::.::::::=:::,;t!:?'g#.ffl?!t.r:M19~}}!:mm::::::!:!::t::::::?t:::mt:m!:):!:!:!:itt:;::::,::::!:!/:::!;:;;:;::::;:::;:;:::;:;:::::::::::::=:;-::..::....... Augusta GA 30911 SHOULD ANY OF THE ABOVE DESCRIBED POlICIES BE CANCElleD BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN NOTICE TO THE CERTIACATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBUGATION OR LIABILITY OF ANY KIND UPON THE COMPANY ITS AGENTS OR REPRESENTATIVES. AUTHOR~EDREPRESENTAnvE ..:.:::,: .::...:::::....}:7ilf0Pt::::~:\~;::11tt:::t:::\::\:::i:::\\::::::r:::?::::::::\':::::}}::::::::::}@\mWijit#~b:~:) GA . City of Augusta. GA 530 Greene Street Room B01 lWiUii$:~$Wj!!i~:::::':!:;::!II:I::!::;::!I::::::::!::I:;:::::::;::i:::iI::mI:::;::WII:ieGt::::::' .. t I ~ PARKING MANAGEMENT AGREEMENT PUBLIC PARKING FACILITIES AT AUGUST A RADISSON RIVERFRONT TillS AGREEMENT, made and entered into this .z;~ay Of~, 2003, between Augusta, Georgia, a political subdivision of the State of Georgia, 530 Greene Street, Room 80 I, Augusta, Georgia 30911, ("AUGUSTA"), and Republic/Payne Parking System with offices at Suite 2000 Republic Centre in Chattanooga, Tennessee ,(hereinafter "Operator").. WHEREAS, AUGUSTA is the operator of Radisson and Convention Center Parking Facility (hereinafter "Facility"), located in the County of Richmond, State of Georgia, and WHEREAS, AUGUST A deems it advantageous to the public to retain the services of a company specializing in the management, operation and marketing of public parking facilities; and WHEREAS, AUGUSTA has solicited responses to a Request for Proposal to manage, operate and market its public parking facilities; and WHEREAS, AUGUSTA has determined that the Operator's response to AUGUSTA's Request for Proposals to manage, operate and market the public parking facilities was the proposal most advantageous to AUGUSTA and to the public interest; and WHEREAS, AUGUSTA and Operator desire to enter into an Agreement based on the Operator's response to AUGUSTA's Request for Proposals. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties do hereby agree as follows: ARTICLE 1 PREMISES AUGUSTA 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 Page 1 I L Facilities located at the Radison Convention Center hereinafter referred to as the "Premises." ARTICLE 2 TERM 1. This Agreement shall be for a term of one (1) year, commencing at 12:00 a.m. on February 1,2003 and expiring on January 31,2004 (the "Initial Term") 2. AUGUSTA reserves the right to renew this Agreement, at the sole discretion of AUGUST A and under terms to be determined by AUGUSTA, for two (2) additional one (1) year renewal terms. If AUGUSTA chooses to exercise its right to renew this Agreement, the Operator shall be notified of the terms to which AUGUSTA shall exercise this right, at least one-hundred twenty (120) days before the expiration of this Agreement. The Operator shall have the choice as to whether to accept AUGUSTA's proposal, or allow the Agreement to expire, and shall so notify AUGUSTA in writing within thirty (30) days of receipt of AUGUSTA's proposal. Nothing in this paragraph shall be construed as to require AUGUSTA to exercise such option to renew or to require the Operator to accept such proposal from AUGUSTA. ARTICLE 3 GROSS RECEIPTS I. The Operator shall collect and hold in trust for and on behalf of AUGUST A all Gross Receipts due from parking customers. "Gross Receipts due" as used herein shall be defined as all sums collected by the Operator from the rental of space for the parking and storage of motor vehicles whether on an hourly, daily, weekly, or monthly basis, less all refunds, credit card fee discounts, and other discounts as authorized by AUGUSTA; sales tax, use tax, excise tax, occupancy tax, gross receipts tax, or other taxes assessed upon or attributable to said receipts. Said taxes shall be held by the Operator and paid directly to the taxing entity involved. All taxes, discounts and refunds shall Page 2 I . be accounted for and included in the Operator's monthly revenue statement including fees or discounts paid to a third party derived from usage of credit cards to pay parking fees Gross Receipts due AUGUSTA shall include and reflect adjustments for any and all cashier shortages, overcharges, undercharges, and uncollected parking fees. Dishonored checks, uncollectable or uncollected fees and credit card charges and other bad debts shall not be included in gross receipts provided such transactions were processed in accordance with procedures previously accepted and approved by the Assistant Director. 2. The Operator shall deposit all Gross Receipts into an account as designated by AUGUSTA and in the name of AUGUSTA, prior to the end of the next banking day after collection. A penalty for failure to deposit said Gross Receipts by the end of the next banking day following collection shall be assessed equaling ten percent (10%) of the total amount of that day's Gross Receipts. Failure to deposit the Gross Receipts within the required time period in excess of two (2) occurrences per month shall be cause for immediate termination of this agreement. 3. The Operator shall submit to AUGUSTA a monthly statement accounting for all "Gross Receipts" due by the twentieth (20th) day of the month following the month of operation. The monthly revenue statement shall be in a format approved by the Assistant Director. Failure to submit this statement on or before the indicated date may be cause for immediate cancellation of this agreement. 4. The operator shall be granted an operating fund advance equivalent to 2 months operating expenses, to be credited against the first two months of operation. Page 3 ,I . ARTICLE 4 OPERATING EXPENSES 1. AUGUSTA shall reimburse the Operator for all approved operating expenses incurred in the management, operation and marketing of the Premises. "Operating Expenses" as used herein shall include all expenses relating to the management, operation and marketing of the Premises, including all salaries and wages, workmen's compensation insurance as provided by state law, related payroll taxes, uniforms, supplies, tools, cleaning, maintenance, repair costs to revenue control/office equipment, certified annual audit, tickets, postage, office and marketing expense, hospitalization insurance, and other expenses as authorized and included within an operating budget approved in advance by AUGUSTA. 2. Specifically, Operating Expenses shall not include costs of business licenses, permits, headquarters bookkeeping, administrative, or accounting fees, liability insurance as described in Article 18, bid/proposal, performance and fidelity bonds which shall be paid by the Operator from the Operator's Management Fee as defined in Article 5. Operating Expenses shall also not include taxes on the Operator's personal property, debt retirement, or any other expenditure that is not included in the Operator's approved annual budget as included and defmed herein, and not approved by AUGUST A in writing. 3. The Operator shall invoice AUGUSTA, by the twentieth (20th) day of the month following the month of operation, for its Operating Expenses incurred in a single monthly period. AUGUSTA shall reimburse the Operator for all authorized and approved budgeted expenses, less any undocumented expenses, within thirty (30) days following receipt by AUGUSTA of such invoice. The monthly Operator's Management Fee shall be included in the monthly invoice. Except for payroll and payroll related expenses, receipts for all expenditures shall be included with the Page 4 ,I monthly invoice. Payroll and payroll related expenses shall be submitted in accordance with the policies agreed to between AUGUSTA and the Operator. The monthly invoice shall be in a format approved by the Assistant Director. 4. Any disputed invoices or charges shall be deducted by AUGUSTA from the Operator's invoice. The Assistant Director of Public Works, Facilities Management Division, (hereinafter Assistant Director) shall provide the Operator, in writing prior to the time of payment of the monthly invoice, reasons for the deduction. The Operator, within thirty (30) days, has the right to present a written explanation of the disputed invoices or charges to AUGUSTA. The Assistant Director shall determine the validity of the disputed invoices or charges based on additional documentation supplied by the Operator. If approved, after additional documentation is considered, the amount shall be added to the next invoice paid by AUGUSTA. The Assistant Director's decision in any matter pertaining to disputed invoices or charges is final. ARTICLE 5 COMPENSATION 1. As compensation for the Operator's performance hereunder, AUGUSTA shall pay to the Operator each month a Management Fee. Such fee shall be included in the monthly invoice as indicated in Article 4. The monthly management fee shall be one-twelfth (1/12) of the annual management fee for each year or succeeding year as defined in Article 2. The annual management fee for the Initial Term shall be $21,000. 2. Additionally, as an incentive for Operator to maximize and increase the total revenue generated from the Premises, AUGUST A agrees to pay operator a percentage of all "net revenues" generated in excess of $1 00,000 dollars as herein provided: a. If net revenues equal $100,001 to $200,000 dollars, AUGUSTA shall receive Page 5 " 70% and Operator 30% of all such revenues; b. If net revenues equal $200,001 to $400,000 dollars, AUGUSTA shall receive 60% and Operator 40% of all such revenues; c. If net revenues are greater than or equal to $400,001 dollars, AUGUSTA shall receive 50% and Operator 50% of all such revenues. Under this Article, "net revenues" shall mean the total amount of all revenues generated by Operator, for Augusta, minus maintenance fees, and all operating expenses. ARTICLE 6 ANNUAL BUDGET I. The Operator shall submit to AUGUSTA, ninety (90) days prior to each anniversary date of this Agreement, an annual and monthly budget, for all Operating Expenses to be incurred during the year. AUGUST A shall notify the Operator of any changes to the budget or budget approval, on or before the anniversary date of this Agreement. 2. Upon approval by AUGUSTA, all Operating Expenses included in the annual budget shall be considered authorized and reimbursable, as incurred, to the Operator. Changes to the annual budget shall be approved in writing by AUGUSTA. Any expense incurred by the Operator above the pre-approved budget in any single month period shall not be reimbursed by AUGUST A unless prior written approval is received from the Assistant Director. 3. An initial budget for 2003 is attached to this Agreement as Exhibit A. ARTICLE 7 OPERATIONAL PROCEDURES AND POLICY MANUAL I. An Operational Procedures and Policy Manual (hereinafter "Manual"), reflecting the operation of the facility as proposed by the Operator shall be submitted to the Assistant Director Page 6 within thirty (30) days of the commencement date of this Agreement. The Manual shall include, at a minimum, the following: a. General operating and management policies b. Customer service policies c. Example of monthly invoice to AUGUSTA d. Cash control, audit and ticket exceptions including validation procedures e. Lost Ticket and Missing Ticket procedures f. Employee job descriptions g. Employee training guide h. Employee schedules 1. Emergency procedures and phone numbers J. Manager's office and home phone number k. Company personnel policies 1. Check and credit card approval procedures 2. The Manual shall be modified as the operation of the facility or the information contained in the Manual changes. The Operator is responsible for the maintenance of the Manual to assure that all data is current. The Manual shall be reviewed and revised annually within 30 days following the annual commencement date of this Agreement. It shall be the Operator's responsibility to submit the revised manual for review and approval by the Assistant Director. ARTICLE 8 RECORDS AND REPORTS 1. The Operator shall keep and maintain true and accurate records of gross receipts and operating expenses in accordance with generally accepted accounting principles. The Operator shall Page 7 " submit daily to the Assistant Director or designated representative a validated deposit slip for the previous day(s)'s receipts. The Operator shall submit montWy to the Assistant Director of Public Works, Facilities Management Division, or designated representative, as directed by the Assistant Director, the following: a) An activity report reconciling total Gross Receipts to the daily deposits. b) Daily report of Gross Receipts, overnight vehicle count, ticket validations and exceptions, and ticket reconciliation in accordance with the Operations Procedures and Policy Manual. c) MontWy activity and Gross Receipts summaries and certifications, to be reconciled to daily reports. In addition, the Operator shall have available to the Assistant Director or designated representative for inspection, upon forty-eight (48) hours notice and within normal business hours, the following: a. Records of all tickets purchased and used including dispenser number from which used and date used. b. All used parking tickets, lost ticket forms and validations for a twelve (12) month period. At the end of this period, all of these records shall be turned over to the Assistant Director. c. All shift reports for a twelve (12) month period. At the end of this period, copies of all of these records shall be turned over to the Assistant Director. d. Any and all other accounting records maintained locally which pertain to the receipt of parking revenues and operating expenses. 2. The Operator shall make all records available upon forty-eight (48) hours notice, no matter where retained, during normal business hours, at the Assistant Director's office. Page 8 3. The Operator shall not destroy any records pertaining to the operation of the Premises without the express written permission of the Assistant Director. 4. At the expiration or termination of this Agreement, the Operator shall turn over to AUGUST A all the books and records of gross receipts and operating expenses, including supporting documents, maintained throughout the term of this Agreement. 5. All source records of Gross Receipts, which shall include but not be limited to: Parking Tickets, Cash Register Tapes, Shift Reports, Master Reports, Daily Revenue Reports, whether computer generated or manually generated, shall be kept at all times within the City of Augusta. These records shall be maintained by the Operator until the annual report required above is delivered to and accepted by AUGUSTA, at which time they shall be delivered to AUGUSTA for further disposition. AUGUSTA shall provide and maintain such storage facilities as necessary to facilitate the storage of the above records and shall provide reasonable access to such facilities. All data bases for such purpose will be maintained by the Operator who shall assure that adequate hard copies and data backups are done on a routine basis; data backups should be stored on an approved media for such storage for a period of time requested by AUGUSTA. ARTICLE 9 AUDIT Within 90 days following the end of each fiscal year, Operator shall provide an unqualified statement certified by an Independent Certified Public Accountant in accordance with generally accepted accounting principles (GAAP) certifying that Gross Receipts due AUGUSTA and Operating Expenses are true and accurately reported as defined within this agreement. The cost of the audit will be considered an operating expense. AUGUSTA reserves the right to audit all books and records of the Operator at any time upon Page 9 . . forty-eight (48) hours advance notice to the Operator. If the audit results reflect a shortage of funds over three percent (3%) per annum, the Operator shall bear the full cost of the audit and reimburse AUGUSTA for any shortage. ARTICLE 10 OBLIGATIONS OF AUGUSTA 1. AUGUSTA shall operate and maintain the lighting system within the Premises and pay all costs thereof. Light bulbs shall be considered an operating expense, with the exception of the high mast lighting. 2. AUGUSTA shall pay the Operator's invoiced anlount, less any unauthorized or undocumented charges, including monthly management fee, within thirty (30) days receipt by AUGUSTA of the invoice. 3. AUGUSTA shall be responsible for any major maintenance or repair of the parking facility, landscaping, entrance/exit roadways, and areas outside of the Premises. 4. AUGUSTA shall be responsible for selection, placement, and erection of all signage. 5. AUGUSTA shall provide the parking revenue control equipment. AUGUSTA shall review the need for additional equipment which may be requested from time to time by the Operator in order to meet the demands of new technologies or in order to provide more effective an efficient service due to revised operating procedures. Approval for the purchase of such requested equipment shall be at the sole discretion of AUGUSTA. Any such equipment approved for purchase by the Operator shall be purchased according to established AUGUSTA purchasing procedures and shall be included in the Operating Budget as approved by AUGUSTA. The expense for the purchase of additional equipment shall be reimbursed to the Operator during the remaining term of the fiscal year of this Agreement amortized at Yz of 1% above the official prime rate as stated in the Wall Street Page 10 Journal as ofthe date the equipment is invoiced. All such equipment shall be owned by AUGUSTA and Operator shall make no claim to the equipment upon termination of this Agreement, except in the event of an early termination of this Agreement, in which event AUGUSTA shall pay Operator for any unamortized cost, less any credit due AUGUSTA. ARTICLE 11 OBLIGATIONS OF THE OPERATOR I. The Operator shall invoice AUGUSTA on or before the twentieth (20th) day of each month for the preceding month's operating expenses including the monthly management fee. 2. The Operator shall submit a missing ticket report with each monthly invoice. The Operator shall also submit a ticket validation report with each monthly invoice, which includes the dollar value of each validation. 3. The Operator shall submit a monthly maintenance log to the Assistant Director. Such maintenance log shall be due on the twentieth (20th) day of the month immediately following the month for which such maintenance log was maintained. 4. The Operator shall submit to the Assistant Director, monthly no later than twentieth (20th) day of the month following the month of operation, a statement, witnessed and certified correct by an officer of the company, accounting for all Gross Receipts due from the Premises during the previous month. 5. The Operator shall continuously operate the Premises initially from 7:00am to II :OOpm, seven (7) days per week or as may be mutually agreed upon by both parties. 6. The Op:Tator shall employ a General Manager experienced in parking administration who will devote his/her full time to the performance of Operator's responsibilities established in this Agreement. The General Manager will meet regularly with Assistant Director to keep AUGUSTA fully informed concerning Page 11 operations whose responsibility include to manage, operate and market the Public Parking Facilities. The General Manager shall hire, train, supervise and terminate, as necessary, personnel to operate cashier booths and perform the required duties; provide supervisory persOlmel necessary to ensure efficient operation of the facilities; and equip, staff and maintain a business office. AUGUST A reserves the right to approve selection of the Operator's General Manager. The Operator shall additionally employ an Assistant Manager who shall be on duty on alternate days when the General Manager is not on duty. 7. The Operator shall provide ten (10) days advance written notice to AUGUSTA of any change in its General Managers or Assistant Managers and shall include any change of address or telephone number. 8. The Operator shall provide sufficient personnel at all times to accommodate departing cars in a timely manner. It is the goal of AUGUSTA that no car shall wait in line over five (5) minutes before exit. AUGUSTA reserves the right to require the Operator to provide additional staff as required. 9. Operator shall employ personnel to enter and update all computer database functions including but not limited to vehicles, inventory, ingress and egress of vehicles, toll plaza, toll plaza revenues, time functions, and ticket inventories. 10. The Operator shall anticipate peak traffic periods and staff the Premises appropriately. If staffing is anticipated that exceeds authorized budget, the Operator shall, in advance, request a budget increase from AUGUST A . II. With the exception of the General Manager, the Operator shall provide new uniforms for employees as necessary to assure that employees are dressed in neat, clean, identifiable uniforms at all times. Uniforms shall be consistent in appearance, style and color for all parking employees and Page 12 subject to the approval of the Assistant Director. Contractor shall submit a uniform proposal to the Assistant Director within 30 days of the execution of the Management Agreement. The cost of new uniforms is a reimbursable expense that will be paid by the Operator. Operator's employees, while on duty, must wear a photo identification badge, which shall be returned to Operator when employees cease work for the Operator. The names of on-duty cashiers shall be placed on the exterior of the booths to be readily visible by drivers of exiting vehicles. 12. The Operator shall remove from service any employee who is discourteous to any customer or who does not present the professional image AUGUSTA expects of its own employees. The Operator shall immediately remove any employee the Assistant Director requests for any reason whatsoever. No employee of the Operator shall use improper language, act in a loud, or boisterous manner, or in any manner act in an improper, inappropriate or offensive way. Each parking ticket issued to Operator's employees shall be appropriately validated and stapled to employee's shift report in accordance with approved operating procedures. 13. The Operator shall employ experienced and knowledgeable personnel and provide all employees with appropriate operational and customer service training. Operator shall take necessary emergency action to protect the Premises, revenue and safety of the public. 14. The Operator shall be responsible for maintenance of the interiors of the tollbooths, revenue control office, and any other structures that may be provided hereafter. The Operator shall be responsible for keeping the Premises, including all parking areas, entrance and exit areas, exit tollbooths, revenue control office, rest room and landscaped areas in or inm1ediately adjacent to the Premises in a neat and clean condition at all times. The Operator shall be responsible for operation of the Premises in accordance with the Operations Manual. The Operator shall conduct daily inspections (daytime and nighttime) of the Premises. Written reports of inspections shall be Page 13 submitted to the Assistant Director in the format to be agreed upon by the Assistant Director and Operator and shall indicate the condition of lighting, general appearance, potential safety hazards, fire equipment, graffiti, cleanliness and any other items which may be requested by Assistant Director. The Operator shall notify AUGUSTA of any areas requiring maintenance and/or repair upon discovery of such items. 15. The Operator shall keep the premises at all times free of trash and debris. All trash shall be removed and stored by the Operator in approved receptacles provided by AUGUSTA. The Operator shall be responsible for periodic sweeping of only the parking Premises, the daily removal of debris and trash from the parking Premises including along curbs and between parked vehicles and depositing same in a receptacle provided by AUGUSTA. 16. The Operator shall provide ticket stock and all other supplies in order to ensure effective control and management of the Premises. 17. The Operator shall maintain all of the revenue control equipment. Maintenance contracts shall have the approval of the Assistant Director prior to their execution by the Operator. Such costs shall be reimbursable under the Operator's approved annual budget. 18. The Operator shall provide all office furniture, safes, if necessary. equipment and supplies for the exit booths in a manner consistent with the intent of this Agreement, such costs to be reimbursed by AUGUST A by inclusion in the Annual Budget. The purchase of all furniture and equipment shall be subject to the prior approval of the Assistant Director. 19. The Operator shall have no power to do any act or make any contract which may create any lien, mortgage or other encumbrance, upon an interest of AUGUST A in the Premises, or the improvements located thereon. 20. Operator shall provide a cash bank sufficient to accommodate parking transactions. Page 14 21. Operator shall provide professional advice to AUGUSTA regarding appropriate parking rates, enhanced revenue control systems/equipment, parking facility requirements, signage, internal traffic flow, customer service enhancements, holiday and peak period public information needs and operating procedures which will improve the level of service efficiency and profit of the parking Premises. 22. Operator shall coordinate with AUGUST A the removal of abandoned vehicles from the parking facilities and relocation of vehicles that are inappropriately parked or remove/relocate vehicles for other operational needs as directed by the Assistant Director. 23. The Operator shall provide the Assistant Director with copies of any and all written complaints received and the Operator's response thereto within five days. ARTICLE 12 P ARKING RATES Existing parking rates shall remain in effect until authorized and changed only upon approval of AUGUSTA. ARTICLE 13 TRANSITION The Operator shall cooperate with AUGUST A in achieving an effective and efficient transition of the operation of the Premises at the termination of this Agreement. Failure to comply with this paragraph is considered damaging to AUGUSTA and shall be sufficient cause for AUGUSTA to demand payment of the Operator's performance bond, and the language shall specifically be included in the bond to provide for this condition of the Agreement. Page 15 ARTICLE 14 FACILITY USAGE REPORTS The Operator agrees to furnish AUGUST A, upon request, facility utilization data in a format approved by the Assistant Director. ARTICLE 15 PERFORMANCE AND FIDELITY BOND 1. Upon execution of this Agreement, the Operator shall furnish AUGUSTA with a valid performance bond in the principal sum of seventy-five thousand dollars ($75,000) issued by a company acceptable to AUGUSTA, authorized to do business in the State of Georgia, and payable to AUGUSTA in case this Agreement is canceled for cause or upon default by the Operator. Said bond shall be kept in full force by the Operator during the term of this Agreement and any extension thereof. The bond shall be conditioned to ensure faithful and full performance of all the terms of this Agreement by the Operator. Evidence of the maintenance of this performance bond shall be submitted annually, on the anniversary of this Agreement, to AUGUSTA. 2. The Operator agrees to obtain and maintain during the term of this Agreement a fidelity bond in an amount not less than $25,000 guaranteeing the faithful performance of the General Manager, Assistant Manager, Supervisors and employees handling or responsible for the handling of daily Gross Receipts. The fidelity bond shall be in a form and drawn on a surety acceptable to AUGUSTA. 3. Operator shall report to Assistant Director within 24 hours after Operator becomes aware of any possible theft by employee(s) or any allegation of employee dishonesty. Page 16 ARTICLE 16 INSURANCE AND INDEMNIFICATION 1. Operator shall provide and maintain, at its own expense which is not reimbursable, the following types and amounts of insurance, during the term of this contract: ~ Comprehensive General (Public) Liability - to include (but not limited to) the following: Combined Single Limit for Bodily Injury and Property Dan1age: $1,000,000 a. Premises/operations b. Independent contractor c. Personal injury liability d. Contractual liability (insuring Indemnity provision within this contract) The above $1,000,000 public liability and property damage shall be primary coverage. Any expense for deductible loss sustained by the Operator where such insurance policy includes a deductible limit approved by AUGUST A is reimbursable. The procuring of such policy of insurance shall not be construed to be a limitation upon Operator's liability or as a full performance on its part of the indemnification provisions of the Contract. Operator's obligations to AUGUSTA are, notwithstanding said policy of insurance, for the full and total amount of any damage, injury or loss as provided under the terms of the contract. Prior to the contract effective date, Operator shall furnish to AUGUST A certificates or copies of the policies, plainly and clearly evidencing required insurance, and thereafter new certificates prior to the expiration date of any prior certificate. Operator understands that it is its sole responsibility to provide this necessary information and that failure to comply timely with the requirements of this article shall be a cause for termination of this contract, under the provisions of the termination clause. Insurance required herein shall be issued by a company or companies of sound and adequate financial responsibility and authorized to do business in the State of Georgia. All policies shall be subject to examination and approval by AUGUST A for their adequacy as to form, content, form of Page 17 : protection, and providing company. Insurance required by this contract for AUGUSTA, as additional insured shall be primary insurance and not contributing with any other insurance available to AUGUSTA, under any third party liability policy. Operator further agrees that with respect to the above-required insurance, AUGUSTA shall: 1. Be named as additional insured/or an insured, as its interest may appear or be provided with a waiver of subrogation. 2. Be provided with 30 days advance notice, in writing, of cancellation or material change. If either requirement #1 or #2 require the payment of additional premium by Operator, Operator may present such information to AUGUSTA for its reconsideration. AUGUSTA will not be responsible for any of Operator's insurance costs. 2. AUGUSTA shall stand indemnified by the Operator as provided herein. It is expressly understood and agreed by and between the parties that the Operator is and shall be deemed to be an independent contractor responsible to all persons for its respective acts or omissions, and AUGUST A shall in no way be responsible therefor. 3. The Operator agrees to indemnify, defend, save and hold harmless AUGUSTA, its officers, directors, agents, and employees from any and all claims, liabilities, danlages, losses, suits, fines, penalties, demands and expenses, including costs of suit and attorney fees, which any or all of them may hereafter incur, be responsible for, or payout as a result of bodily injury (including death) to any person or damage to any property or person, arising out of the Premises or any acts or omissions of the Operator, its agents, guests, invitees, employees, or contractors in cOlmection with the Operator's use of the Premises or its operations at the Premises, except to the extent caused by the sole negligence or willful misconduct of AUGUSTA or its officers, directors, agents or Page 18 employees. 4. Upon the filing with AUGUSTA of a claim for damages arising out of incidents for which Operator herein agrees to indemnify, defend, save and hold hatmless AUGUSTA, AUG UST A shall notify the Operator of such claim. Any final judgement rendered against AUGUSTA for any cause for which the Operator is liable hereunder shall be conclusive against the Operator as to liability and amount, provided AUGUSTA has notified the Operator of such claim as provided above. ARTICLE 17 LOSS CONTROL AND SAFETY The Operator shall retain control over its employees, agents, servatlts and subcontractors, as well as control over its invitees, patrons and activities on and about the managed Premises and the manner in which such activities shall be undertaken and to that end, the Operator shall not be deemed to be an agent of AUGUSTA. Precaution shall be exercised at all times by the Operator for the protection of all persons, including employees, and property. The Operator shall make special effort to detect hazards and shall take prompt action where loss control/safety measures should reasonably be expected. Operator shall be responsible for ensuring that its employees, agents, servants and subcontractors comply with all safety-related AUGUST A ordinances rules and procedures governing the Premises. ARTICLE 18 TERMINA TION I. This Agreement shall expire at the end of the full term hereof, and the Operator shall have no further right or interest in the Premises. 2. AUGUSTA may terminate this agreement upon ninety (90) days written notice to Page 19 , . the Operator for any reason whatsoever at the sole discretion of AUGUSTA with the understanding that all services being perfom1ed by the Operator under this agreement shall cease upon the date such notice becomes effective. AUGUST A shall upon invoice, pay for all service rendered to the date of termination as provided for herein. 3. AUGUSTA shall have the right to terminate this Agreement for a violation of the terms hereof, at any time after thirty (30) days notice has been given to the Operator and unless corrective action has been taken or commenced within said thirty (30) day period and thereafter diligently completed. 4. AUGUST A shall have the right to terminate this Agreement immediately upon or after any of the following: a. Assignment for Creditors: The Operator makes a general assignn1ent for the benefit of creditors. b. Bankruptcy: The Operator files a petition for relief as a debtor under any section or chapter of the Federal Bankruptcy Code, as amended from time to time, or under any similar law or statute of the United States or the State of Georgia; or a petition or an answer proposing the entry of any order for relief against the Operator as a debtor in a bankruptcy or reorganization proceeding under any present or future bankruptcy or similar law is filed in any Court. c. Receivership: A receiver, trustee, or custodian is appointed for all or substantially all of the assets of the Operator in any proceeding brought by or against the Operator, or the Operator consents to or acquiesces in such appointment. d. AUGUSTA may terminate this agreement immediately if the Operator Page 20 . 1 . abandons and discontinues service within the Premises. 5. rfthis Agreement is terminated, AUGUSTA shall have the right to repossess the Premises in accordance with applicable law without prejudice to any other remedies available to AUGUSTA for such default, absent such reentry. 6. The Operator may terminate this Agreement upon thirty (30) days advance written notice, after any of the following: a. The issuance by any court of competent jurisdiction of an injunction in any way preventing or restraining the use of the Premises or any part thereof so as to substantially affect Operator's use of the Premises, and the remaining in force of such injunction for a period of ninety (90) days or more, provided, however, that said court action is not due to any fault of Operator. b. The default by AUGUST A in the performance of any term herein required to be performed by AUGUST A, which term substantially affects the Operator's ability to conduct its business under this Agreement, and failure by AUGUSTA to cure or commence to cure and diligently pursue such cure within thirty (30) days after receipt of notice of such default from the Operator. c. The substantial restriction of the Operator's ability to conduct its business at the Premises for a period of ninety (90) days or more because of the action of the Federal or State government or any agency or political subdivision thereof substantially restJ.;cting the operation of the Premises by AUGUSTA. 7. Upon expiration ofthe term, or upon termination of this Agreement, the Operator shall peacefully surrender and vacate the Premises in as good condition as when the term of this Page 21 J . Agreement conunenced, excepting ordinary wear and tear. The Operator and AUGUSTA agree that all Improvements placed on the Premises shall be and remain AUGUSTA's property upon the expiration of the term or upon the termination of this Agreement. Personal property of the Operator shall be removed at the Operator's expense, within ten (10) days of the expiration, or termination of this Agreement. If Operator fails to remove its personal property within said ten (10) day period, AUGUSTA may remove the property and store it, all at the expense of the Operator. ARTICLE 19 SUBORDINA TION This Agreement shall be subject and subordinate to all the terms and conditions of any instrument and documents under which AUGUSTA acquired the land or improvements thereon, of which said Premises are a part, and shall be given only such effect as will not conflict with nor be inconsistent with such terms and conditions. ARTICLE 20 SUSPENSION OF SERVICES AUGUST A may, by written notice, direct Operator to suspend performance on all or any pm1 of the services for such period oftime as may be determined by AUGUSTA to be necessary or desirable for its convenience. If such suspension causes additional expense to Operator in performance, and not due to fault or negligence of Operator, the Agreement will be adjusted on the basis of actual costs resulting directly from the suspension. Any claim by Operator for a cost adjustment must be supported by appropriate documentation asserted promptly after Operator has been notified to suspend performance. In the event that all or any part of the parking facilities shall remain closed or their use substantially restricted for a twenty-four (24) hour period because Operator, for any reason, is unable Page 22 r . to provide the personnel necessary to maintain normal operations, AUGUST A shall have the right to take over the duties of Operator, using its own employees or others. ARTICLE 21 ASSIGNMENT AND SUBCONTRACTING I. The Operator agrees that it will not sell, convey, transfer, mortgage, subcontract, sublease or assign this Agreement or any part thereof, or any rights created thereby, without the prior written consent of AUGUST A, it being the intention of AUGUSTA to grant this Agreement individually to the Operator. 2. Any assignment or transfer of this Agreement or any rights of the Operator hereunder, without the prior written consent of AUGUST A is invalid, and shall convey to AUGUST A the right to terminate this Agreement at its sole discretion. ARTICLE 22 GENERAL PROVISIONS I. AUGUST A reserves the right to further develop or improve the Premises as it sees fit. 2. The Operator agrees to abide by all Federal, State and local laws, ordinances, rules and regulations which may be applicable to its operation under this Agreement and to abide by the ordinances, rules and regulations of AUGUSTA which may from time to time be formulated by AUGUSTA in regard to the management, operation or use of the Premises. 3. Cumulative Remedies: Each of the rights and remedies provided by this Agreement shall be cumulative and shall not be exclusive of any other rights or remedies provided by this Agreement or allowed by law. 4. Waivers: Failure by AUGUSTA to insist upon the strict perfonnance by the Operator Page 23 of any of the terms herein contained shall not constitute a waiver of AUGUSTA's right to thereafter enforce any such term, but the same shall continue in full force and effect. The exercise of any right to tel111inate arising under this Agreement shall not operate to deprive AUGUSTA of any co-existing right to seek damages or other remedies arising from the default of the Operator. 5. The acceptance of rents or fees or the continued performance by AUGUSTA of its obligations under this Agreement after a default by the Operator in its performance of any of Operator's obligations under this Agreement shall not be deemed a waiver of AUGUSTA's right to terminate this Agreement for such default. 6. The Operator shall not use, or pennit the use of, the Premises or any part thereof, for any purpose or use other than those authorized by this Agreement. 7. Choice of law and venue: This Agreement shall be performable and enforceable in the Superior Court of Richmond County, Georgia, and shall be construed in accordance with the laws of the State of Georgia. Operator by execution of this Agreement specifically consents to jurisdiction and venue in the Superior Court of Richmond County and waives any right to contest same. 8. TillS Agreement is made for the sole and exclusive benefit of AUGUST A and the Operator, their successors and assigns, and is not made for the benefit of any third party. 9. In the event of any ambiguity in any of the terms of this agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the san1e. 10. All covenants, stipulations and agreements in this Agreement shall extend to and bind each party hereto, its legal representatives, successors and assigns. II. The titles of the several articles of this Agreement are inserted herein for convenience only, and are not intended and shall not be construed to affect in any manner the terms hereof, or the Page 24 , . .. interpretation or construction thereof. 12. Nothing herein contained shall create or be construed to create a co-partnership between AUGUSTA and Operator or to constitute the Operator an agent of AUGUSTA. AUGUSTA and Operator each expressly disclaim the existence of such a relationship between them. 13. Invalid Provision: If any covenant, condition or provision contained in this Agreement is held to be invalid by any Court of competent jurisdiction, the invalidity of any such covenant, condition or provision shall in no way affect any other covenants, conditions or provisions contained in this agreement; provided, that the validity of such covenant, condition or provision does not materially prejudice either AUGUSTA or Operator in its respective rights and obligations contained in the valid covenants, conditions or provisions of this agreement. 14. Interpretation of Agreement: Nothing in the Agreement shall be construed or interpreted in any manner whatsoever as limiting, relinquishing or waiving any right of ownership enjoyed by AUGUSTA in the Premises property, or in any manner waiving or limiting AUGUSTA's control over the management, operation, or maintenance of the Premises property, except as specifically provided for in tillS Agreement, or in any manner impairing the right of AUGUST A. 15. Force Majeure. Neither AUGUSTA nor Operator shall be deemed to be in violation of this Agreement for reason of failure to perform any of its obligations hereunder, by reason of strikes, boycotts, labor disputes, embargoes, shortages of materials, acts of God, acts of the public enemy, flight restrictions, weather conditions, riots, rebellion, accidents, sabotage or any other events, conditions or circumstances for which it is not responsible and/or which are not within its control. 16. Conflict of Interest: The Operator agrees that, upon signing of this Agreement or Page 25 .. , . . ;; within five (5) days after the acquisition of any interest herein described during the term of this Agreement, the Operator shall disclose in writing to AUGUSTA whether any elected official of AUGUST A or Officer or employee of AUGUSTA has or hereafter acquires any direct, indirect, legal or beneficial interest in the Operator or in any contract, lease or agreement between AUGUSTA and the Operator, or in any franchise, concession, right or privilege of any nature herein or otherwise granted by AUGUSTA to the Operator. 17. Notices: Notices to the parties shall be deemed sufficient if in writing and mailed, postage prepaid, address to: AUGUSTA: Administrator 530 Greene Street Augusta, GA 30911 Operator: Republic/Payne Parking System Suite 2000 Republic Centre Chattanooga, Tennessee 37450 Attn: Mark Huth President & Chief Operating Officer ARTICLE 23 ENTIRE AGREEMENT 1. This Agreement consists of Articles I to 24 inclusive. 2. This Agreement represents the entire and integrated Agreement between AUGUSTA and Operator superseding all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both AUGUSTA and Operator. Page 26 ~ Y.. ~ . 1/- this 2/- day of IN WITNESS WHEREOF, the parties hereto have caused this instrument to be signed ~7 ,2003. Page 27 REPU~NEPARRINGSYSTEM BY: /v' ~ XS ITS: fl2.c-$ \j)~ ~ <:....c:) <:i .' _ l [SEAL ]~ ~& ,lV- ....::: '2 ........",' . . .. ~. i ./ "0 a; ii: .s::; III :> III "0 c:: CO c:: o III III ....=6 .. 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