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Parking Lease

Parking Lease

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Published by Carl Weiser
Proposed parking lease between Cincinnati and the Port Authority
Proposed parking lease between Cincinnati and the Port Authority

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Published by: Carl Weiser on Feb 25, 2013
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02/25/2013

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(a) Cooperation. During the Closing Period, the Parties shall cooperate with each
other, the Asset Manager, Operator, and Underwriter in order to permit the Closing to be
consummated on the Closing Date. After the Closing Date, the Parties, the Asset Manager and
the Operator shall cooperate in a commercially reasonable manner regarding the transition of
enforcement and operational control of the Parking System. In furtherance of the foregoing, the
Port Authority, the Asset Manager, and the Operator will prepare prior to the Closing Date, after
consultation with the City, a detailed plan for the transition of the Parking System to the Port
Authority.

(b) Reasonable Efforts. During the Closing Period, each Party shall use all reasonable
efforts (i) to take, or cause to be taken, all actions necessary to comply promptly with all
requirements under this Agreement and all legal requirements which may be imposed on such
Party to consummate the Transaction as promptly as practicable, including making any necessary
filings, and (ii) to obtain (and to cooperate with the other Party to obtain) any Consent of any
Governmental Authority or any other public or private third party which is required to be obtained
or made by such Party in connection with the consummation of the Transaction. Subject to
Section 8.2(b), each Party shall promptly cooperate with and, upon request by the other Party,
promptly furnish any non-confidential or non-proprietary information to the other in connection
with any such efforts by, or requirement imposed upon, any of them in connection with the
foregoing.

(c) Injunctions. If any Governmental Authority of competent jurisdiction issues a
preliminary or permanent injunction or temporary restraining order or other order before the
Time of Closing which would prohibit or materially restrict or hinder the Closing, each Party
shall use all reasonable efforts to have such injunction, decree or order dissolved or otherwise

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eliminated or to eliminate the condition that formed the basis for such injunction or order, in
each case as promptly as possible and, in any event, prior to the Time of Closing.

(d) Operation of the Parking System. During the Closing Period, the City shall
operate the Parking System in the ordinary course in a manner consistent with past practice,
which shall include using all reasonable efforts to preserve the goodwill of the Parking System
and to maintain good business relationships with Persons having business dealings with the
Parking System, to maintain the Parking System in substantially the same or better condition and
repair as they exist on the date hereof and in accordance with past practice (ordinary wear and
tear excepted), to perform (or cause to be performed) in all material respects all of the City’s
obligations under the Parking System Contracts, not to incur Encumbrances on the Parking
System (other than Permitted City Encumbrances) that are not satisfied by the Closing Date (or
retained by the City as Excluded Liabilities after the Closing Date), and to cause the Parking
System to be operated in all material respects in accordance with all applicable Laws (except to
the extent any non-compliance is being contested in good faith by appropriate proceedings and
which are disclosed to Port Authority and Underwriter prior to the execution of this Agreement
or, if occurring during the Closing Period, within Three (3) Days of the City becoming aware of
the noncompliance but in no event less than Three (3) Days prior to Closing), all to the end that
the Parking System as a going concern shall be unimpaired and delivered to the Port Authority at
the Time of Closing in a condition not materially worse than the condition as of the date hereof;
provided, however, that the City shall not amend, modify, renew, execute or otherwise negotiate
any contracts relating to the Parking System or the Parking System Operations after the date
hereof up to the Time of Closing without the prior written approval of the Port Authority and
Underwriter, provided, however, that no such written approval shall be required for any such
contract that expires prior to Closing or is not a Parking System Contract. The City, shall, up to
and including the Time of Closing, be entitled to all of the cash or cash equivalents in or
generated by the Parking System (subject to the terms of Section 2.2(b) in the case of any cash or
cash equivalents that are paid prior to the Time of Closing but are allocable to periods after the
Time of Closing). Without limiting the foregoing, the City shall not terminate, amend, modify or
agree to a waiver of the terms of any Authorization related to the Parking System after the date
of this Agreement and before the Time of Closing without the consent of the Port Authority and
Underwriter, which shall not be unreasonably withheld, conditioned or delayed, provided,
however, that no such consent shall be required for Authorizations that are not assignable to, or
necessary for the operations of, the Port Authority, Asset Manager, or Operator.

(e) Parking System Contracts. The Parking System Contracts shall be assigned by
the City to, and assumed by, the Port Authority at the Time of Closing. All other contracts
related to the Operation of the Parking System shall either be retained by the City following the
Closing Date (so long as such retained contracts do not interfere with the operation of the
Parking System) or be terminated by the City, effective at the time of Closing; provided,
however, that any liability under or related to any Parking System Contract attributable to
periods prior to the effectiveness of the assignment thereof to the Port Authority, shall be solely
for the account of the City.

(f)

Disclosure of Changes.

(i)

During the Closing Period, each Party shall immediately disclose in
writing to the other Party any matter which becomes known to it which is inconsistent in

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any material respect with any of the representations or warranties contained in Article 9.
In the event that the City is the disclosing Party during the Closing Period, any such
writing shall also be provided to the Underwriter. No such disclosure, however, shall
cure any misrepresentation or breach of warranty for the purposes of Section 2.4 or
Article 12; and

(ii) During the Closing Period, the City may supplement or amend the
Schedules hereto, including one or more supplements or amendments to correct any
matter which would constitute a breach of any representation, warranty, covenant or
obligation contained herein. No such supplement or amendment shall be deemed to cure
any breach for purposes of Section 2.4(a) or, subject to the following sentence, for any
other purpose. Notwithstanding the previous sentence, if the Closing occurs, then,
subsequent to the Closing, any such supplement or amendment with respect to any
representation or warranty contained in Section 9.1(d), (i), and (j) relating to a matter
arising after the date hereof will be effective to cure and correct for all purposes any
inaccuracy in, or breach of, any such representation or warranty which would exist if the
City has not made such supplement or amendment, and all references to any Schedule
hereto which is supplemented or amended as provided in this Section 2.5(f)(ii) shall
(subject to the foregoing limitation) for all purposes after the Closing be deemed to be a
reference to such Schedule as so supplemented or amended.

(g) Access to Information. During the Closing Period, but subject to confidentiality
obligations binding on the City with respect to any Person (provided that the City has disclosed
to the Port Authority the existence of the applicable Document that is subject to such
confidentiality limitation in order to enable the Port Authority to evaluate the materiality and
significance of the lack of disclosure based on such limitations) the City shall (i) give the Port
Authority and its Representatives reasonable access during normal business hours and on
reasonable notice to the Parking System, subject to the City’s policies and regulations regarding
safety and security and any other reasonable conditions imposed by the City, (ii) permit the Port
Authority and its Representatives to make such inspections as they may reasonably request and
(iii) to furnish the Port Authority and its Representatives with such financial and operating data
and other information that is available with respect to the Parking System as they may from time
to time reasonably request. Subject to applicable law, the Port Authority shall hold and will
cause its Representatives to hold in strict confidence all Documents and information it obtains
concerning the Parking System in connection with the Transaction. After the Closing Date, the
Port Authority shall at the request of the City, in connection with claims or actions brought by or
against third parties based upon events or circumstances concerning the Parking System, (A)
provide reasonable assistance in the collection of information or Documents and (B) make the
Port Authority’s employees available when reasonably requested by the City.

(h) Casualty Loss Prior to Closing. If prior to the Time of Closing, a material
casualty loss, destruction or damage to the Parking System has occurred, then the City shall, at
its option, within Five (5) Business Days of such event, either (i) promptly and diligently repair
and rebuild the affected parts of the Parking System to restore them to at least the same condition
in which they were before the occurrence of such casualty loss, destruction or damage, provided
that if the affected parts of the Parking System cannot prior to the Closing Date be repaired or
rebuilt to restore them to at least the same condition in which they were before the occurrence of
such material casualty loss, destruction or damage, the City shall make such repairs or

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restoration as can reasonably be completed prior to the Closing Date and shall provide to the Port
Authority and Underwriter a plan for the completion of such repairs or restoration following the
Time of Closing at the City’s expense and shall then complete such repairs or restoration in
accordance with such plan; (ii) authorize the Port Authority to repair the Parking System and
assign to the Port Authority all insurance and other proceeds (if any) payable by third-party
insurers or other third parties in respect of such casualty loss, destruction or damage and enforce
(with the cooperation of the Port Authority) all of its rights, remedies and privileges under any
applicable insurance policies with third-party insurers; or (iii) exclude the affected parts of the
Parking System from the scope of the Parking System and thereafter agree with the Port
Authority and Underwriter to an adjustment of the Closing Consideration; provided, however
where the City, Port Authority, and Underwriter are unable to agree to such an adjustment to the
Closing Consideration within Ten (10) Days of the casualty loss, destruction, or damage to the
Parking System, then the adjustment to the Closing Consideration shall be determined pursuant
to a written appraisal by an independent third party appraiser that is nationally recognized in
appraising similar assets that is acceptable to the City and the Port Authority. If the Parties fail
to agree upon such a single appraiser by the earlier of (x) Thirty (30) Days after the material
casualty loss, destruction or damage to the Parking System, or (y) Ten (10) Days prior to the
Closing Date, then the City and the Port Authority shall each appoint an independent third party
appraiser and both such appraisers shall be instructed jointly to select an equally qualified third
party independent appraiser to make the adjustment to the Closing Consideration, where such
adjustment shall be binding as if initially agreed to in this Agreement. The cost of such binding
appraisal shall be shared equally by the Parties.

(i)

Policies of Insurance. During the Closing Period, the City shall continue in force
all applicable policies of insurance maintained by the City in respect of the Parking System. At
the Time of Closing, all such policies of insurance shall terminate and the Port Authority, acting
through the Operator, shall be responsible for obtaining insurance for the Parking System in
accordance with the terms hereof.

(j)

Employees. Prior to the Time of Closing, the Port Authority shall cause the
Operator to interview all of the Parking System Employees who apply for a position with
Operator. Neither the Port Authority nor Operator shall have any obligation to offer
employment to any such individual but may, in its discretion, choose to do so. If the Operator
makes any offer of employment to any such individual, such offer shall contain only the terms
and conditions of employment that the Operator deems to be appropriate in its discretion. Any
Parking System Employees who are employed by the Operator will be hired as new employees.

(k) Sycamore Garage. The Port Authority acknowledges that the City has entered
into a certain development agreement relating to the demolition of the Seventh Street Garage and
the construction of the Sycamore Garage. The Port Authority further acknowledges that the
Sycamore Garage Plans existing as of the date hereof have been made available to Port
Authority. Following the Closing Date, the Port Authority covenants to use commercially
reasonable efforts to design and construct the Sycamore Garage in accordance with the
Sycamore Garage Plans and pursuant to Schedule 15 and this Agreement. The Port Authority
further covenants to make the Port Authority and the City the beneficiary of any contractor’s
warranties in such contracts to the extent of their respective interest therein.

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