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CR 11-020 Approval of a Management Agreement with Depot Express, LLC• March 15, 2011 Council Report 2011-020 Approval of a Management Agreement with Depot Express, LLC. Proposed Action Staff recommends adoption of the following motion: Motion to approve a Management Agreement between the City of Hopkins and the Depot Express, LLC. Approval of this agreement formalizes the relationship that has existed between the City of Hopkins and Depot Express as food and beverage provider since 2008. Overview The Partnership Group for the Depot, which includes the City, Depot Express, the Hopkins School District, Park Nicollet, the Depot Board and the Hopkins Minnetonka Recreation Services have been working very well together over the past several years to further the Depot mission. The Partners have continued to utilize the Depot Coffee House as a community-based educational laboratory focused on instilling in each learner the knowledge necessary to start, manage and successfully run a small business. This goal is being accomplished by developing a relationship with the Depot Express management to design learning experiences utilizing all aspects of the • business to achieve the above stated purpose. These experiences have included paid and/or unpaid internships, projects incorporated into the classroom or as class assignments, independent study projects and, and actual case studies focused on the business. • The agreement was originally drafted and has been reviewed by the City Attorney. Primary Issue to Consider e What are some of the highlights of the agreement? Supporting Information • Draft Management Agreement between the City of Hopkins and the Depot xpres , C R ck Getschow City Manager Financial Impact: 0.00 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: Council Report 2011-020 Page 2 • Primary Issue to Consider • What are some of the highlights of the agreement? Depot Express Responsibilities include: • Operate and keep The Depot open for complete menu for a daily minimum of no less than six (6) hours • Maintain adequate staffing for operation of the Depot Coffee House and supervise Depot Express employees in the performance of coffee house operations. • During Depot Express business hours, provide and support a learning environment for students involved. • Perform required recurring maintenance on the espresso machine. • Encourage full budget oversight by the Student Board of Directors. Depot Express shall arrange for all repair and maintenance of fixtures and • equipment used in the operation of the Depot. Maintenance and repairs of fixtures and equipment owned by the City shall be at the expense of the City. • Depot Express shall not have the authority to enter into any contracts on behalf of the City or to incur any liability or obligation on behalf of the City without the prior written approval of the City Manager. City Responsibilities include: • The City shall act as fiscal agent for the Depot Coffee House Project and have sole control over and responsibility for administering the Depot Coffee House Fund. • Maintain insurance coverage for the Depot and the Premises in accordance with the provisions of the Permit Agreement. No provision of this paragraph or this Agreement shall be interpreted to waive any common law or statutory liability immunities available to the City. • • Assign a Project Coordinator who is an employee of the Hopkins -Minnetonka Recreation Services to work with the Depot Coffee House Project in matters related to the operation of the Depot and the Premises. • Council Report 2011-020 Page 3 Perform all building and emergency repair at the Depot according to such maintenance schedules as shall be agreed upon from time to time between the City, Depot Express and the Depot Coffee House Project, but subject to the terms and conditions of the Permit Agreement. Work with Three Rivers Regional Park District to maintain grounds and provide building enhancements in accordance with the terms and conditions of the Permit Agreement. Timeline of the agreement: The term of this Agreement shall commence on March 15, 2011 and continue through December 31, 2012. Thereafter, this Agreement shall automatically renew for successive one-year periods. Either party may cancel this Agreement, effective at the end of the Initial Term or any Renewal Term, by providing written notice to the other party one hundred eighty (180) days prior to the end of the Initial Term or any Renewal • Term. In addition, Depot Express may cancel this Agreement upon thirty (30) days prior written notice to the City if it has experienced negative Net Operating Income for the previous two (2) calendar months. 0 • MANAGEMENT AGREEMENT THIS AGREEMENT is entered into by and between the City of Hopkins, a municipal corporation under the laws of Minnesota ("City") and The Depot Express, LLC, a Minnesota limited liability company, ("Depot Express") effective as of March 15, 2011 (the "Effective Date"). RECITALS: A. Pursuant to that certain Permit Agreement between the City, the Hennepin County Regional Railroad Authority and Three Rivers Park District attached to this Agreement as Exhibit A (the "Permit Agreement"), the City is entitled to use the premises described in Recital paragraph 1) of the Permit Agreement (the "Premises") and the Depot building commonly referred to as the Hopkins Station Train Depot Building (the "Depot") "for community recreation and education purposes and related public uses, including use of the Depot for operation of the Depot Coffee House subject to the rights of (Three Rivers Park District) granted in (the Permit Agreement)". B. The City and Depot Express have agreed the City shall retain Depot Express to manage and operate some of the City's permitted uses of the Premises and the Depot upon the terms and conditions stated in this Agreement. • NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in and made a part of this Agreement, and other good and valuable consideration, the City and Depot Express agree as follows: 1. Definitions. When used in this Agreement, the following words and phrases shall have the meanings stated below, unless the context clearly requires a different meaning: a. "The Depot Coffee House Fund" shall mean and refer to the Depot Coffee House Enterprise Fund maintained by the City. b. "The Depot Coffee House Project" shall mean and refer to the joint endeavor of the student board of directors consisting of students from the Hopkins School District and other districts, the City and staff employed by the City that are paid through the Depot Coffee House Fund. c. "The Student Board of Directors" shall mean and refer to the Board of Directors of the Depot Coffee House Project consisting of 15 students from the Hopkins School District and other districts and 3 adult members. 2. Retention of Depot Express as Manager. The City retains Depot Express to act as manager of the following activities and functions to be conducted on the Premises, namely: • a. To manage and operate the Depot Coffee House food and beverage service operations subject to the terms and conditions stated in this Agreement. HopCiviUDepotExpressManagementAgmt-Redlined b. To schedule, arrange for and manage functions, meetings and other periodic events to be held at the Depot building upon terms and conditions approved by the City and using the form of Use Agreement attached hereto as Exhibit B, as such Use Agreement may subsequently be modified with the approval of the City, for such meetings, events and functions approved by the City. The City and Depot Express shall cooperate with one another in scheduling of events and functions to be conducted at the Depot or on the Premises. C. Depot Express shall also provide the educational and consulting services described in section 4 of this Agreement. DEPOT EXPRESS IS AUTHORIZED TO PERFORM ONLY THOSE ACTIVITIES AND FUNCTIONS DESCRIBED IN PARAGRAPHS a, b AND e, ABOVE, AND SUCH OTHER AUTHORIZED ACTIVITIES AND FUNCTIONS AS ARE EXPRESSLY STATED ELSEWHERE IN THIS AGREEMENT, OR AS MAY BE AGREED TO IN WRITING SUBSEQUENTLY BY THE CITY MANAGER OR DESIGNEE DURING THE TERM OF THIS AGREEMENT. 3. Depot Express Responsibilities. In performing its obligations under this Agreement, Depot Express shall observe and comply with the following specific responsibilities: a. Operate and keep The Depot open for consumable and non -consumable sales for a daily minimum of no less than six (6) hours. is b. Maintain adequate staffing for operation of the Depot Coffee House and supervise Depot Express employees in the performance of coffee house operations, as may be determined in the discretion of Depot Express. C. Conduct regularly occurring meetings of Depot Coffee House staff, as determined to be reasonably necessary in the discretion of Depot Express. Depot Express shall notify Depot Coffee House Project personnel of such meetings and permit them to attend. d. Maintain a separate bank account and provide budgeting and reporting for all activities and operations performed by Depot Express under this Agreement. All income, receipts and revenues from operation of the Depot Coffee House, event rental and other activities performed by Depot Express under this Agreement shall be deposited in such account and all expenses related to such activities shall be paid from such account, to the extent the account has sufficient funds for payment of such expenses. Funds from operation of the Premises and the Depot by Depot Express shall not be commingled with other funds of Depot Express. Depot Express shall maintain accurate books, records and accounts of all financial transactions related to its activities as Manager under this Management Agreement. The City shall have the right to review at the cost of the City, all such books, records, accounts and bank statements for the separate bank account maintained by Depot Express for Depot Coffee House operations and to retain copies of such records. • e. Contract directly with vendors or suppliers for all food and beverage products required for the operation of The Depot Coffee House. HopCivil/DepotExpressManagementAgmt-Redlined 2 f. Collect all rents and other amounts payable under Use Agreements negotiated by Depot Express pursuant to this Agreement. g. At all times during the term of this Agreement, Depot Express shall maintain in effect the following types and amounts of insurance: L Comprehensive business liability insurance with limits of liability of no less than $1,000,000.00 for each occurrence and $2,000,000.00 aggregate. ii. Worker's compensation and employer's liability insurance conforming with statutory requirements. The City shall be named as a certificate holder for all such insurance coverage and the Certificates of Insurance shall provide that the City shall be given thirty (30) days prior written notice of the cancellation or non -renewal of any such insurance policies. h. Products and services provided under the management of Depot Express .must follow the policies established by the Depot Coffee House Project, to the extent commercially practicable. i. All fixtures and equipment, excluding the kitchen stereo system, located at the Depot on the Effective Date are the property of the City or the Depot Coffee House Project. • Depot Express may, at its discretion, purchase and install equipment in the Depot to facilitate Depot Coffee House operations. Such equipment shall remain the property of Depot Express, and must be removed at the end of the term of this Agreement and all damage resulting from such removal repaired at the expense of Depot Express. j. Perform maintenance on the espresso machine as may be reasonably necessary for its proper operation. k. Depot Express shall not remove, alter or replace any of the furniture, fixtures or equipment located on the Depot without the prior written consent of the City. 1. Depot Express shall allow only properly trained personnel to operate equipment located in the Depot, sufficiency of such training to be determined by the Depot in its discretion. M. Depot Express shall arrange for all repair and maintenance of fixtures and equipment used in the operation of the Depot. Maintenance and repairs of fixtures and equipment owned by the City shall be at the expense of the City. n. Depot Express shall not have the authority to enter into any contracts on behalf of the City or to incur any liability or obligation on behalf of the City without the prior written approval of the City Manager or Facilities Director. • o. Depot Express shall, during the entire term of this Agreement, obtain and maintain any and all licenses and permits necessary for the operations conducted on the Premises by Depot Express pursuant to the provisions of this Agreement. HopCivil/DepotExpressManagementAgmt-Redlined • • P. Any equipment purchased by Depot Express and used in Depot Coffee House operations shall remain the property of Depot Express, and shall be removed from the Premises and all damage resulting from such removal repaired, at the sole cost of Depot Express, within a reasonable time following termination of this Agreement. 4. City Responsibilities. The City shall perform the functions and assume those responsibilities described below related to the performance of this Agreement: a. The City shall act as fiscal agent for the Depot Coffee House Project and have sole control over and responsibility for administering the Depot Coffee House Fund. b. Maintain insurance coverage for the Depot and the Premises in accordance with the provisions of the Permit Agreement. No provision of this paragraph or this Agreement shall be interpreted to waive any common law or statutory liability immunities available to the City. C. Assign a Project Coordinator who is an employee of the Hopkins -Minnetonka Recreation Services to work with the Depot Coffee House Project in matters related to the operation of the Depot and the Premises. d. Perform all building and emergency repair at the Depot according to such maintenance schedules as shall be agreed upon from time to time between the City, Depot Express and the Depot Coffee House Project, but subject to the terms and conditions of the Permit Agreement. e. Work with Three Rivers Regional Park District to maintain grounds and provide building enhancements in accordance with the terms and conditions of the Permit Agreement. L Provide all personnel necessary for the operation of the Depot by the City, with the exception of personnel performing the functions and responsibilities assumed by Depot Express hereunder, which functions and responsibilities shall be performed by Depot Express employees. g. Unless otherwise noted, the following expenses incurred at the Depot shall be paid by the City from the Depot Coffee House Fund: L Rent or other charges due under the Permit Agreement. ii. Cleaning/janitorial (shared cost between City and Depot Express). iii. Pest control. iv. Security expenses. V. Telephone — local. Vi. Internet services. Vii. Gas. Viii. Water softening and purification. ix. Garbage/recycling/composting costs. X. Snow removal from parking areas and walkways. . HopCiviVDepotExpressManagementAgmt-Redlined 4 . Xi. Equipment rental and repair (shared cost between City and Depot Express). xii. Any other expense that is related to rental/utilities/building maintenance. h. Subject to the provisions of subparagraph 3.o., maintain all fixtures and equipment owned by the City or the Depot Coffee House Project in good working order. L Allow Depot Express to use all fixtures and equipment necessary for the performance of its responsibilities under this Agreement at no charge to Depot Express. Attached to this Agreement as Exhibit C is a schedule describing all of the fixtures and equipment located at the Depot and used in the operation of the Depot Coffee House. All such fixtures and equipment described in Exhibit C, and all replacements of such fixtures and equipment (unless paid for by Depot Express), shall remain the sole property of the City or the Depot Coffee House Project. j. During the term of this Agreement, Depot Express shall have the right to use the name "The Depot Coffee House" for the operation and promotion of the Depot coffee house business. Depot Express shall not use the name "The Depot Coffee House" for any other businesses or activities conducted by Depot Express or at any location other than the Depot. Following the termination of this Agreement, and provided the City has elected to discontinue • coffee house operations at the Depot, Depot Express may use the name "the Depot Coffee House" and any logo associated with the Depot Coffee House for other business operations with the prior written approval of the City, which approval shall not be unreasonably withheld. Depot Express has been advised the City has not registered the name "the Depot Coffee House" as a trademark or service mark or otherwise obtained proprietary rights in such name or any logo associated therewith. k. In the event the City or the Depot Coffee House Project intends to sell any of the fixtures or equipment used in the operation of the Depot Coffee House during the term of this Agreement, the City grants Depot Express the option ("Option") to purchase such fixtures or equipment upon the following terms and conditions: L The City shall serve notice on Depot Express of the City's intention to sell such fixtures and equipment ("Option Notice"). The Option Notice shall identify each item of fixtures or equipment the City intends to sell and state the price at which the City intends to offer each such item for sale, which price shall be the fair market value of each item of fixtures or equipment at the time of service of the Option Notice. ii. If Depot Express intends to exercise the Option, it shall serve notice on the City of such intent ("Notice of Option Exercise") within three (3) business days after delivery of the Option Notice to Depot Express. If Depot Express believes the offering price for the fixtures and equipment stated in the Option Notice exceeds the fair market value of such fixtures and equipment, the Notice of Option Exercise shall advise • the City that Depot Express intends to exercise the Option and obtain an appraisal as provided in subparagraph iii, below. If the Notice of Option Exercise does not advise the City of Depot Express's intention to obtain an appraisal of the fixtures and HopCivil/DepotExpressManagementAgmt-Redlined 5 • equipment pursuant to subparagraph iii, the purchase price for the fixtures and equipment identified in the Option Notice shall be the price stated therein. If Depot Express fails to serve the Notice of Option Exercise on the City within the three (3) business day period stated in this subparagraph ii, the Option shall terminate and be of no further effect, and the City may proceed to sell the fixtures and equipment identified in the Option Notice to a third party. W. If Depot Express serves the Notice of Option Exercise on the City in accordance with the provisions of subparagraph ii, above, and advises the City Depot Express intends to obtain an appraisal of the fixtures and equipment, Depot Express shall obtain a written appraisal of the fair market value of the fixtures and equipment identified in the Option Notice from a qualified appraiser and deliver such written appraisal to the City within ten (10) business days of delivery of the Notice of Option Exercise to the City. If the fair market value price of the fixtures and equipment identified in the Option Notice, as stated in the appraisal obtained by Depot Express, differs from the fair market value price of the fixtures and equipment as stated in the Option Notice by ten percent (10%) or less, the purchase price for such fixtures and equipment shall be established as the average of the two prices. If the fair market value price of the fixtures and equipment identified in the Option Notice, as stated in the appraisal obtained by Depot Express, differs by ten percent (10%) or more from the fair market value price stated in the Option Notice, the City shall obtain a second appraisal from a qualified appraiser, within ten (10) business days after receipt of the appraisal • obtained by Depot Express, of the fair market value of the fixtures and equipment identified in the Option Notice. The purchase price for the fixtures and equipment identified in the Option Notice shall then be established as the average of the two closest, in dollar terms, of the fair market values for the fixtures and equipment stated in the Option Notice, the appraisal obtained by Depot Express and the appraisal obtained by the City. iv. If Depot Express exercises the Option in accordance with the provisions of subparagraphs i through iii, above, and upon establishment of the purchase price in accordance with the provisions of such subparagraphs, Depot Express shall pay such purchase price to the City, in cash or certified funds, within ten (10) business days after establishment of the purchase price. If Depot Express fails to pay the purchase price so established for the fixtures and equipment subject to the Option within such ten (10) business day period, the Option shall be null and void, and the City may proceed with the sale of such fixtures and equipment to a third party. M. The City shall not have the authority to enter into any contracts on behalf of Depot Express or to incur any liability or obligation on behalf of Depot Express without the prior written approval of an authorized representative of Depot Express. n. The City shall indemnify and hold harmless Depot Express with respect to any legal suits or actions against Depot Express, its owners or employees, with respect to which the • City is legally adjudged to be primarily liable. o. Depot Express shall be the sole authorized vendor of consumables on the premises and adjoining grounds, and the City shall not permit, license, or approve any sales by HopCiviMepotExpressManagementAgmt-Redlined 6 • other party, including installation of vending machines, without the express written approval of Depot Express. This clause does not apply to one-time events approved by the Depot Coffee House Student Board of Directors. The board may also approve of installation of permanent or semi-permanent vending machines by outside parties if they serve only non -consumable products Depot Express does not wish to carry. 5. General Statement of Purpose. The Depot Coffee House Project has entered into an agreement with Hopkins Independent School District No. 270 ("District 270") for the use of the Depot and the Premises for certain community-based educational functions. The City and Depot Express shall work cooperatively to operate the Depot consistent with those community-based educational functions and with the other goals and objectives stated below. Specifically, the following is a statement of purpose for the use of the Depot by District 270: Hopkins IDS 270 shall use the Depot Coffee House as a community-based educational laboratory focused on instilling in each learner the knowledge necessary to start, manage and successfully run a small business. This goal with be accomplished by developing a relationship with the Depot Coffee House management to design learning experiences utilizing all aspects of the business to achieve the above stated purpose. These experiences may include but not be limited to; paid and/or unpaid internships, projects incorporated into the classroom or as class assignments, independent study projects and, actual case studies focused on the business (both current and past). • In addition, the following describes the goals and objectives of the City, Depot Coffee House Project and Depot Express related to the activities to be conducted at the Depot: • Commitment to the mission of the Depot Coffee House Project • Stewardship of the historic Depot (e.g. ADA, safety, cleanliness, repair) • Commitment to providing safe, healthy, nurturing, engaging work/participation environment to employees and volunteers • Strive towards greater sustainability (environmental, financial, operational) • Prevention of repair problems with building, grounds and equipment • We must pass periodic, unannounced health inspections • Building Cleanliness — staff and board members need to leave the building clean, stocked and ready for the next Shift/event. • Support from the DCHP on staffing during slower sales segments of the day • Marketing a unified message, brand, presentation to public regarding The Depot Coffee House name • Financial transparency and integrity • Positive public relations • Excellent participant/customer experience • Expand to new audiences • Offer fair-trade, organic coffee and give priority to products from local vendors • • Furthering the growth of the Depot Award for Student Creativity • Create greater outreach into the Arts HopCiviUDepoTxpressManagementAgmt-Redlined 7 • All board members that want to serve as baristas need to go through DE staff training program and attend all barista training sessions throughout the year The following is a description of services or activities to be provided or participated in by Depot Express related to. the operation of the Depot Coffee House: • Act as liaison on building issues with Three Rivers Regional Park District. • Solicit donations to auctions and outreach events. • Provide extra staffing for Board related events and meetings. • Staff time to comply with City and Board reporting requirements. Depot Express and the City shall work cooperatively together with the objective of accomplishing the objectives and purposes described above in the operation of the Depot Coffee House. Student Board activities at the Depot will be supervised and managed by the Depot Coffee House Project and the Student Advisory Board. The Student Advisory Board will consult with and provide advice to Depot Express related to the performance of its functions and responsibilities under this Agreement. 6. Financial Management. The City and Depot Express agree to the following terms and conditions related to the receipt, disbursement and payment of income, revenues and expenses for the activities and functions performed by Depot Express under this Agreement: a. All receipts from revenues, rents and other income from operations conducted at • the Depot by Depot Express shall be deposited in a separate bank account maintained by Depot Express and administered in accordance with the provisions of subparagraph d of Section 3 of this Agreement. b. Prior to the end of each fiscal year of Depot Express and upon termination of this Agreement, representatives of Depot Express, the City and the accountant for Depot Express shall review the financial records of Depot Express for the purpose of determining whether Depot Express has generated any net operating income ("Net Operating Income") from conducting the operations and functions to be performed by Depot Express under this Agreement during the immediately preceding fiscal year or partial fiscal year prior to termination. Net Operating Income is defined as all revenues, rents, income, receipts and other amounts received by Depot Express in connection with the operation of the Depot Coffee House and the other functions to be performed by Depot Express under this Agreement minus i) all costs and expenses necessarily incurred by Depot Express in the operation of the Depot Coffee House and performance of its other functions under this Agreement, including salaries, benefits and other employment costs paid to employees of Depot Express; ii) all costs necessarily incurred by Depot Express for fees of consultants, such as attorneys and accountants; and iii) such other customary costs and expenses as are considered deductible business expenses in accordance with generally accepted accounting principals. At the end of each fiscal year of Depot Express or upon termination of this Agreement, all Net Operating Income, if any, for such fiscal year or partial fiscal year prior to termination shall be paid by Depot Express to the City to be deposited in the Depot Coffee House Fund. 7. Term. The term of this Agreement shall commence on the Effective Date and continue through December 31, 2012 ("Initial Term"). Thereafter, this Agreement shall automatically renew for HopCiviVDepofl?xpressManagementAgmt-Redlined 8 • successive one-year periods (each a "Renewal Term"). Either party may cancel this Agreement, effective at the end of the Initial Term or any Renewal Term, by providing written notice to the other party one hundred eighty (180) days prior to the end of the Initial Term or any Renewal Term. In addition, a) Depot Express may cancel this Agreement upon thirty (30) days prior written notice to the City if it has experienced negative Net Operating Income for the previous two (2) calendar months and, b) either party may cancel this Agreement for breach of any material term thereof upon thirty (30) days written notice, subject to the right to cure by the breaching party within fourteen (14) days of being so notified. 8. Independent Contractor Status. Depot Express shall select the means, method, and manner of operating the Depot Coffee House and otherwise performing its responsibilities under this Agreement. No provision of this Agreement is intended or may be construed in any manner as creating or establishing the relationship of co-partners between the City and Depot Express or as constituting Depot Express or any of its employees as agents, representatives, or employees of the City for any purpose or in any manner whatsoever. Depot Express is to be and shall remain an independent contractor with respect to all services and activities performed under this Agreement. Any and all personnel of Depot Express or other persons while engaged in the performance of any work or services required or provided by Depot Express under this Agreement shall not be deemed to have any contractual relationship with the City and shall not be considered employees of the City by virtue of this Agreement. Any and all claims related to the performance of the undertakings and responsibilities of Depot Express under this Agreement that may or might arise under the Minnesota Economic Security Law or the Workers' Compensation Act of the State of Minnesota on behalf of personnel of • Depot Express, arising out of employment or alleged employment including without limitation, claims of discrimination against Depot Express, its officers, agents, contractors, or employees shall in no way be the responsibility of the City. Depot Express shall defend, indemnify and hold harmless the City, its officials, officers, agents, and employees from any and all such claims. Depot Express personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the City, including, without limitation, tenure rights, medical and hospital care, sick leave, Workers' Compensation, Re-employment Compensation, disability, severance pay, and retirement benefits. • 9. Notices. All notices, requests and other communications hereunder shall be in writing and shall be delivered personally or by first class United States mail (postage prepaid) addressed to the recipient at the below address, or at such other address as such party shall have specified to the other party hereto in writing. Notices shall be deemed duly delivered for all purposes at the time of personal delivery to the representative of the City or Depot Express named below or two business days after being deposited in the United States mail. The addresses for notices are as follows: If to the City: City of Hopkins Attention: City Manager 1010 First Street South Hopkins, MN 55343 HopCiviVDepotExpressManagementAgmt-Redlined 9 0 If to Depot Express: The Depot Express, LLC Attention: CFO 246 Fifth Avenue North Hopkins, MN 55343 Either party may change its address for notice purposes by notice given to the other party in the manner provided above. 10. Incorporation of Permit Agreement. All of the terms, covenants and conditions of the Permit Agreement attached hereto as Exhibit A are incorporated in and made a part of this Agreement. In the event of any conflict or inconsistency between the terms of this Agreement and those of the Permit Agreement, the terms and conditions of the Permit Agreement shall control. Depot Express shall observe and comply with all terms, covenants and conditions of the Permit Agreement in the performance of its functions and operations under this Agreement. 11. Miscellaneous. A. Governing Law. All matters relating to the interpretation, construction, validity and enforcement of this Agreement shall be governed by the laws of the State of Minnesota. B. Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and supersedes all prior agreements and understandings with respect to such subject matter, and the parties hereto have made no agreements, representations or warranties relating to the subject matter of this Agreement which are not set forth herein. C. Amendments. No amendment or modification of this Agreement shall be deemed effective unless made in writing and signed by the parties hereto. D. No Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel to enforce any provisions of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived. E. Assignment. This Agreement shall not be assignable, in whole or in part, by either party without the prior written consent of the other party. F. Counterparts. This Agreement may be simultaneously executed in any number of counterparts, and such counterparts executed and delivered, each as an original, shall • constitute but one and the same instrument. HopCiviVDepotExpressManagementAgmt-Redlined 10 • G. Severability. To the extent any provision of this Agreement shall be invalid or unenforceable, it shall be considered deleted herefrom and the remainder of such provision and of this Agreement shall be unaffected and shall continue in full force and effect. H. Captions and Headlines; Interpretation. The captions and paragraph headings herein are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or though its agent prepared the same, it being agreed that the agents of both parties have participated in the preparation hereof. I. Binding Effect. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. J. No Third -Party Beneficiaries. There are no third party beneficiaries of this Agreement, intended or otherwise. The undersigned parties have executed this Agreement effective as of the Effective Date stated in the first paragraph. so City of Hopkins is HopCiviUDepotExpressManagementAgmt-Redlined I I By — Its By — Its The Depot Express, LLC By — Its By — Its • CONSENT • Hopkins Independent School District No. 270 hereby approves of and consents to the foregoing Agreement. HOPKINS INDEPENDENT SCHOOL DISTRICT NO. 270 By — Its By — Its HopCiviVDepotExpressManagementAgmt-Redlined 12 • EXHIBIT A • Copy of Permit Agreement Between Hennepin County Regional Railroad Authority, the City and Three Rivers Park District HopCiviVDepotExpressManagementAgmt-Redlined 13 . EXHIBIT B Inventory of Fixtures and Equipment Kitchen- 3 pairs Halogen LongLights 4 Hanging Light Fixtures 8 mini Halogen 1 double door cooler 1 stand up fridge 1 under counter fridge 1 stand up freezer 1 under counter freezer 1 Conti espresso machine • 2 hanging fixtures each bay 3 mini halogens at window 3 mini halogens in front entry 18 colored lights in Freight Room 8 LED color lights 6 stage lights 4fan 2 wall sconces 4 built in bench seating fixtures 12 2 top tables 30? Herman Mille chairs • 2 wifi tables HopCiviMepotExpressManagementAgmt-Redlined 14 0 1 Flatscreen TV • • 7 patio Umbrellas Neon OPEN Sign Desktop Computer w/printer/scanner combo Nintendo 64, 4 controllers, 15 games Nintendo Wii 4 controllers, charger, 5 games Ambient Stereo system, 6 indoor speakers, 2 outdoor speakers Performance Sound equipment: 3 stage monitors, 2 PA speakers, one subwoofer, 9 mic stands, 3 in closet amplifiers, 1 sound board, 10-20 microphones and cables, one portable 6 channel mixer. 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