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115311 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2003066985 • • 07/07/2003 08:14:15 AM Filed 8 Recorded in Official Records of CAROLYN STALEY RESOLUTION NO. 11,531 RULASKI COUNTY CIRCUIT /COUNTY CLERK Fees $29.00 A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY CLERK TO EXECUTE AN OPERATING AGREEMENT BETWEEN THE CITY AND THE LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION RELATING TO THE OPERATION OF THE CITY'S PARKING DECKS AT SECOND AND MAIN STREETS, AND SECOND AND COMMERCE STREETS; AND FOR OTHER PURPOSES. WHEREAS, the City has authorized the construction of issuance of a parking deck and related facilities in the River Market area, and more particularly located at Second and Commerce Streets (the "River Market Deck "), and WHEREAS, the City currently owns a parking deck located at Second and Main Streets (the "Main Street Deck "), which is operated by the Little Rock Advertising & Promotion Commission (the "Commission "), and WHEREAS, in order to finance the River Market Deck, and to refinance the Main Street Deck, and pursuant to Little Rock, Ark., Ordinance No. 18,870 (May 27, 2003), the City has issued Capital Improvement Revenue and Refunding Bonds (Downtown Parking Deck Projects), Series 2003 (the 'Bonds') in the principal amount of eleven million eight hundred and fifty -five thousand dollars ($11,855,000.00), pursuant to the provisions of a Trust Indenture (the "Indenture ") dated as of July 1, 2003, between the City and Metropolitan National Bank, N.A., as Trustee (the "Trustee`), and WHEREAS, the City will pledge the revenues (the "Project Revenues ") of the River Market Deck and the Main Street Deck (collectively the "Projects'), together with all other parking revenues of the City from whatever source derived and not previously pledged by the City including the incremental increase in business license fees authorized by Little Rock, Ark., Ordinance No. 18,841 (March 18, 2003)(the "Other Pledge Revenues ")6tto�gvQ4 ;g the payment of too principal and interest on the Bonds, and "••�� C,RCG'•0 o• a�e�ni %�o 0�i a [PAGE 1 OF 21 Resolution] f Authority to enter operating agreement with A &P for parking decal 5 .,T•r • f a. � O 0 0 1 WHEREAS, the Board of Directors of the City of Little Rock believes that the Projects 2 will serve to promote and facilitate tourism within the City and will help facilitate the 3 utilization of the Little Rock Convention Center and other facilities managed and operated by 4 the Commission for the benefit of the City, and 5 WHEREAS, the Board wishes the Commission to operate the Projects as requested by 6 the City, 7 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE 8 CITY OF LITTLE ROCK, ARKANSAS: 9 Section 1. The Mayor and the City Clerk are authorized to execute an operating 10 agreement in a form substantially the same as that attached as Exhibit A to this Resolution. 11 Section 4. Severability. In the event any title, section, paragraph, item, sentence, 12 clause, phrase, or word of this resolution is declared or adjudged to be invalid or 13 unconstitutional, such declaration or adjudication shall not affect the remaining portions of the 14 resolution which shall remain in full force and effect as if the portion so declared or adjudged 15 invalid or unconstitutional was not originally a part of the resolution. 16 Section 5. Repealer. All laws and parts of laws inconsistent with the provisions of 17 this resolution are hereby repealed to the extent of such inconsistency. 18 ADOPTED: July 1, 2003 19 ATTEST: APPROVED: 21 rl� 22 Nancf Wood, ity Clerk Willie Hinton, Vice Mayor 23 APPROVED AS TO LEGAL FORM: 24 25 26 Thomas M. Carpenter 27 City Attorney 28 H 29 H 30 H [PAGE 2 OF 8] Resolution Authority to enter operating agreement with A&P for parking der" • Doc# 2003066985 • OPERATING AGREEMENT This Operating Agreement (the "Agreement ") made and entered into as of July 1, 2003, by and between the City of Little Rock, Arkansas, a municipal corporation organized and existing pursuant to the laws of the State of Arkansas (the "City") and the Little Rock Advertising and Promotion Commission (the "Commission'). VITTNESSETH: WHEREAS, the City intends to construct a Parking Deck and related facilities and improvements to be located at Second and Commerce in the City (the "Commerce Street Deck "); WHEREAS, the City currently owns a parking deck located at Second and Main Streets (the "Main Street Deck ") which is operated by the Commission pursuant to an Operating Agreement between the City and the Commission; and WHEREAS, in order to finance the Commerce Street Deck and to refinance the Main Street Deck, the City will issue its Capital Improvement Revenue and Refunding Bonds (Downtown Parking Deck Projects), Series 2003 (the "Bonds "), pursuant to the provisions of a Trust Indenture (the "Indenture ") dated as of even date herewith between the City and Metropolitan National Bank, N.A., as Trustee (the "Trustee "); WHEREAS, the City will pledge the revenues of the Commerce Street Deck and the Main Street Deck (collectively the "Projects ") (the "Project Revenues "), together with all other parking revenues of the City from whatever source derived and not previously pledged by the City including the incremental increase in business license fees authorized by Ordinance No. 18,841 (the "Other Pledged Revenues ") (the Project Revenues and the Other Pledged Revenues being sometimes hereinafter referred to collectively as the "Revenues ") to secure the payment of principal of and interest on the Bonds; WHEREAS, the Projects will serve to promote and facilitate tourism within the City, and will help facilitate the utilization of the State House Convention Center and other facilities managed and operated by the Commission for the benefit of the City, and accordingly, the City intends for the Projects to be managed by the Commission on behalf of the City. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Commission and the City hereby agree as follows: Section 1. Operation by Commission. The City hereby appoints and designates the Commission as its Agent to operate and manage the Projects and their related properties and facilities, with full and complete authority and power to manage, operate, improve, extend and [PAGE 3 OF 81 anomtnn Aof " r pv gdc4 EXHIBIT A: OPERATING AGREEMENT WITH A&P COMMISSION 0 0 maintain the Projects and their related properties and facilities. Such authority and responsibility of the Commission is hereby accepted by the Commission. Commission shall operate and manage the Commerce Street Deck in accordance with the requirements of the Lease (Municipal Parking Garage Air Rights Portion) between Arkansas Democrat - Gazette, Inc. and the City dated May 1, 2003, and the similar lease between Clinton Sherman Building 1, LLC and the City. Section 2. Operation and Maintenance. The Commission agrees to operate the Projects continuously in an efficient and economical manner, to the extent practicable under then existing conditions. The Commission shall perform routine maintenance on the Projects not exceeding $25,000.00 annually in an effort to maintain, preserve and keep the Projects in good repair, working order and condition so that the operating efficiency thereof will be of high character. The City will cause all necessary and proper repairs and replacements costing more than $25,000.00 annually to be made so that the business carried on in connection with the Projects may be properly and advantageously conducted at all times in a manner consistent with prudent management, and that the rights and security of the owners of the Bonds may be fully protected and preserved. Section 3. Project Revenues (a) The Commission will promptly collect all Project Revenues as the same become due, shall promptly deposit daily receipts of such Project Revenues into the Parking Deck Revenue Fund established on the books of the City, and shall at all times maintain and promptly and vigorously enforce its rights against any person who does not pay such charges when due. (b) Beginning July 25, 2003, and on the 25" day of each month thereafter, the City shall transfer to the Commission from the Parking Deck Revenue Fund an amount equal to 1/12 of the annual amount budgeted for the maintenance and operations of the Main Street Deck and the Management Fee. Beginning the 25th day of the first month that the Commerce Street Deck is in operation, and on the 25ih day of each month thereafter, the City shall also transfer to the Commission from the Revenue Fund an amount equal to 1/12 of the annual amount budgeted for the maintenance and operations of the Commerce Street Deck, and the Management Fee; provided, however, that the Management Fee paid in 2004 shall be prorated for the actual months of operation of the Commerce Street Deck in that calendar year. (c) The City and Commission will execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, any such further accounts, instruments and transfers for the better assuring, pledging and confirming to the Trustee under the Indenture all and singular the Projected Revenues pledged to the payment of the principal of, redemption price and interest on the Bonds. The Commission will not sell, convey, mortgage, encumber, or otherwise dispose of any part of the Project Revenues. (d) The Commission covenants that it will fix, charge and collect rates, fees and charges for the use of the facilities constituting the Project in amounts which will cause the Project Revenues to be as high as possible under prevailing market conditions, and that such rates, fees and charges will be at all times in amounts commensurate with the rates, fees and charges imposed and collected for similar facilitates in the City. N' W�eus��artYer� IMK..fw� qn�f^� L m, [PAGE 4 OF 81 aewmHw Ammar bmlerapentm6apavml wah A4l ror pv gde iu EXHIBIT A: OPERATING AGREEMENT WITH A&P COMMISSION 0 0 (e) Notwithstanding any other provision of this Agreement, the City and the Commission hereby agree that nothing in this Agreement or the Indenture shall be deemed to constitute an obligation of the Commission with respect to the payment of the principal of or interest on the Bonds, or a pledge of any of the funds or revenues of the Commission with respect to the Bonds. (f) The City hereby covenants to apply or cause to be applied, all Revenues deposited in the Revenue Fund to the payment of principal of and interest on the Bonds, to the operation and maintenance of the Projects, and to other authorized and lawful purposes, all in accordance with the provisions of the Indenture. (g) The Commission hereby covenants to apply all Revenues received from the City for operation and maintenance of the Projects solely to the operation and maintenance of the Projects and for no other purpose. (h) The Commission acknowledges that the City's obligation to make the payments specified in Section 3(b) (for maintenance, operations and the Management Fee) is subordinate to the City's obligation to make monthly debt service payments on the Bonds and to make deposits in the Debt Service Reserve Fund as required by Section 5.06 of the Trust Indenture. Section 4. Management Fee. The Commission shall be paid a Management Fee to reimburse it for the indirect costs of administrative, accounting and human resource services and overhead associated with the operation of the Projects. The Management Fee shall be paid in monthly installments each year to total the annual fee as stated on Exhibit A. Section 5. Observance of Laws and Regulations. The Commission will well and truly keep, observe and perform all valid and lawful obligations or orders or regulations now or hereafter imposed on it by contract, or prescribed by any law of the United States of America or of the State of Arkansas, or by any officer, board or commission having jurisdiction or control, as a condition of the continued enjoyment of any and every right, privilege, license or franchise now owned or hereafter acquired by the Commission, including its right to exist and carry on business, to the end that such rights, privileges, licenses and franchises shall be maintained and preserved, and shall not become abandoned, forfeited or in any manner impaired; provided, however, that the Commission shall not be required to comply with any such orders so long as the validity or application thereof shall be contested in good faith. Section 6. Payment of Taxes and Claims. The City will duly pay and discharge, or cause to be paid and discharged, any taxes assessments or other governmental charges lawfully imposed upon the Project or the Revenues, when the same shall become due, and will duly observe and conform to all valid requirements of any governmental authority relative to any such properties. Section 7. Insurance. Subject in each case to the condition that insurance is obtainable at reasonable rates and upon reasonable terms and conditions. The Commission will procure and maintain or cause to be procured and maintained in the name of the City insurance on the Project 3 H Wcn�u[Deno LMV 1:1w4O Agm GJ [PAGE S OF 81 R..Oh t Amnmar bmWoprrafing.Pa wft AV! pa glob EXHIBIT A: OPERATING AGREEMENT WTfH A&P COMMISSION 9 9 and public liability insurance in such amounts and against such risks as are usually insurable in connection with similar facilities and are usually carried by municipalities operating similar facilities. Section 8. Accounts and Reports. The Commission will at all times keep, or cause to be kept, proper books of record and accounts, separate and apart from all other records and accounts of the City and Commission, in which complete and accurate entries shall be made of all transactions relating to the Projects and the Project Revenues. Such books of record and accounts shall at all times during business hours be subject to the inspection of the City. Section 9. Trustee Reports. The City and Commission will place on file with the Trustee annually within 60 days after the first days of January of each year, so long as any Bonds are outstanding, an unaudited financial statement in reasonable detail for the preceding 12 months, showing the Project Revenues, and all expenditures from the Project Revenues and the resulting Project Revenues available for debt service for such periods. Section 10. Additional Duties and Rights of the Commission. In addition to the foregoing, the Commission shall perform all services that it deems necessary and proper for the operation and management of the Projects, and shall report to the city promptly any conditions concerning the Projects that, in the opinion of the Commission, require that attention of the City. Section 11. Termination and Renewal. This agreement shall be for a term commencing on July 1, 2003, and ending on July 1, 2028. At the termination of this agreement, it shall be renewed automatically on a month -to -month basis that may be terminated by either party by giving not less than sixty (60) days' notice in writing to the other party. LITTLE ROCK ADVERTISING AND PROMOTION COMMISSION By: ---ey —;2 :Z::�— Mary Beth Ringgold, Chair ATTEST: Barry Travis, Chiek`Executive Officer [PAGE 6 OF 81 xum Amhoriry bmler Wn+tm6sya®m1 with AtP (mpad®6M9u EXHIBIT A: OPERATING AGREEMENT WITH A &P COMMISSION 0 0 CITY OF LITTLE ROCK, ARKANSAS Lo ATTEST: City Clerk Mayor Jim Dailey [PAGE 7 OF 81 a..omm� AOkmb, W=WoVmt 6#W �w A krpaffkmgderlo EXHIBIT A: OPERATING AGREEMENT WITH A&P COMMISSION Doc# 2003066985 EXHIBIT A Management Fees Year Amount 2003 $139,750 2004 $250,000* 2005 $255,000 *The total Management Fee for 2004 includes a $160,000 annual management fee for the Main Street Deck and a fee of $10,000 per month for nine months of operation of the Commerce Street Deck. Beginning in January 2006, the Management Fee shall be equal to thirty percent (30 %) of Net Income from Project Revenues. Net Income from Project Revenues is defined as Project Revenues less annual operating and maintenance expense. Beginning in January of 2007, the City and the Commission shall compare the budgeted amount of Management Fee paid to the Commission in the previous year with the actual amount due (based on thirty percent (30 %) of Net Income from Project Revenues). If the Commission has been over paid for that year, it shall pay the overage amount to the City by no later than April 15`s. If the Commission has been paid less than the actual amount due, the City shall pay the shortfall amount to the Commission by no later than April 15`h [PACE 8 OF 81 wmmaq,o mtRw�s+9� wah wkl5r padivadab EXHIBIT A: OPERATING AGREEMENT WITH A&.P COMMISSION