parking lease

7/29/2019 Parking Lease

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LONG-TERM LEASE AND MODERNIZATION AGREEMENT FOR THE CITY OF

CINCINNATI PARKING SYSTEM

dated as of

________ [], 2013

by and between

THE CITY OF CINCINNATI

THE PORT OF GREATER CINCINNATI DEVELOPMENT AUTHORITY

an


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Table of Contents

Page

ARTICLE 1 ..................................................................................................................................................................... 6DEFINITIONS AND INTERPRETATION .................................................................................................................... 6

Section 1.1. Definitions ............................................................................................................................................... 6Section 1.2. Number and Gender. .............................................................................................................................. 27Section 1.3. Headings. ............................................................................................................................................... 27Section 1.4. References to this Agreement. ............................................................................................................... 27 Section 1.5. References to Any Person. ..................................................................................................................... 27Section 1.6. Meaning of Including. ........................................................................................................................... 27Section 1.7. Meaning of Discretion ........................................................................................................................... 27Section 1.8. Meaning of Notice. ................................................................................................................................ 28Section 1.9. Consents and Approvals. ....................................................................................................................... 28Section 1.10. Trade Meanings ................................................................................................................................... 28Section 1.11. Laws. ................................................................................................................................................... 28Section 1.12. Currency. ............................................................................................................................................. 28Section 1.13. Generally Accepted Governmental Accounting Principles ................................................................. 28Section 1.14. Calculation of Time. ............................................................................................................................ 28Section 1.15. Approvals, Consents and Performance by the City. ............................................................................ 28Section 1.16. Incorporation of Schedules. ................................................................................................................. 29

ARTICLE 2 ................................................................................................................................................................... 31THE TRANSACTION; CLOSING; CONDITIONS PRECEDENT; COVENANTS .................................................. 31

Section 2.1. Grant of Franchise ................................................................................................................................. 31Section 2.2. Closing ................................................................................................................................................... 31[Section 2.3. Deposit. ................................................................................................................................................ 32Section 2.4. Conditions Precedent; Termination ....................................................................................................... 33Section 2.5. Covenants .............................................................................................................................................. 35Section 2.6. Intended Treatment for Federal and State Income Tax Purposes ......................................................... 38Section 2.7. Closing Deliveries ................................................................................................................................ 39Section 2.8. Memorandum of Lease ......................................................................................................................... 39Section 2.9. No General Obligations ......................................................................................................................... 40

ARTICLE 3 ................................................................................................................................................................... 40TERMS OF THE FRANCHISE .................................................................................................................................... 40

Section 3.1. Right to Use and Present Condition ....................................................................................................... 40 Section 3.2. Parking System Operations .................................................................................................................... 40Section 3.3. Operator Engagement; Asset Manager .................................................................................................. 44 Section 3.4. Authorizations; Qualifications ............................................................................................................... 45Section 3.5. No Encumbrances .................................................................................................................................. 45Section 3.6. Tax Exempt Parking Bonds .................................................................................................................. 46Section 3.7. Rights of the City to Access and Perform Work on the Parking System ............................................... 46Section 3.8. Payment of Taxes .................................................................................................................................. 48Section 3.9. Utilities .................................................................................................................................................. 48Section 3.10. Notices of Defaults and Claims ........................................................................................................... 49Section 3.11. Assignment of Operating Agreements and Plans ................................................................................ 49Section 3.12. City Use of Information and Records .................................................................................................. 50 Section 3.13. Parking System .................................................................................................................................... 50Section 3.15. Naming Rights and Commercial Advertisements and Activities ......................................................... 50Section 3.16. Reversion of Parking System ............................................................................................................... 51 Section 3.17. Police, Fire, Emergency, and Public Safety Access Rights ................................................................. 51Section 3.18. Excluded Off-Street Parking Facilities; Future Developments ............................................................ 51 Section 3.19. Negotiations with Governmental Authorities ...................................................................................... 51 Section 3.20. Administration of the Public Way. ...................................................................................................... 52Section 3.21. Air Rights ............................................................................................................................................ 52Section 3.22. Office in the City. ................................................................................................................................ 52Section 3.23. Restrictive Covenant of City ............................................................................................................... 53

ARTICLE 4 ................................................................................................................................................................... 53CAPITAL IMPROVEMENTS ...................................................................................................................................... 53

Section 4.1. Port Authority Responsibility for Capital Improvements ...................................................................... 53


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Section 4.2. Authorizations Related to Capital Improvements .................................................................................. 53Section 4.4. Metering Device Payment Options ........................................................................................................ 54 Section 4.5. Seventh Street Garage Replacement Plan ............................................................................................. 54

ARTICLE 5 ................................................................................................................................................................... 54MODIFICATIONS ........................................................................................................................................................ 54

Section 5.1. City Requests. ........................................................................................................................................ 54Section 5.2. Port Authority Requests ......................................................................................................................... 54 Section 5.3. Performance of Modifications ............................................................................................................... 54

ARTICLE 6 ................................................................................................................................................................... 55OPERATING STANDARDS ........................................................................................................................................ 55

Section 6.1. Compliance with Operating Standards .................................................................................................. 55 Section 6.2. Proposed Operating Standards ............................................................................................................... 55Section 6.3. Proposed Modifications to Operating Standards ................................................................................... 55

ARTICLE 7 ................................................................................................................................................................... 56METERED PARKING REVENUE, OFF-STREET PARKING FACILITY REVENUE AND PARKINGVIOLATION REVENUES ........................................................................................................................................... 56

Section 7.1. Parking Revenue .................................................................................................................................... 56Section 7.2. Temporary Closure of Parking Spaces; Additional On-Street Parking .................................................. 56Section 7.3. Notice .................................................................................................................................................... 57Section 7.4. Planned Permanent Removal ................................................................................................................. 57 Section 7.5. Identified Events and Global Events. ..................................................................................................... 57Section 7.6. Third Party Temporary Closure of Metered Parking Spaces. ................................................................ 58Section 7.7. Additional Metered Parking Spaces ...................................................................................................... 58Section 7.8. Parking Fee and Period of Operation Adjustments ................................................................................ 58 Section 7.9. Right to Challenge ................................................................................................................................. 58Section 7.10. Mitigation of Temporary Closure ....................................................................................................... 60Section 7.11. Delegation to President of the Port Authority 60

ARTICLE 8 ................................................................................................................................................................... 60REPORTING; AUDITS; INSPECTIONS..................................................................................................................... 60

Section 8.1. Reports ................................................................................................................................................... 60Section 8.2. Information ............................................................................................................................................ 61Section 8.3. Inspection, Audit and Review Rights of the City .................................................................................. 62Section 8.4. Audits, Assistance, Inspections and Approvals ..................................................................................... 63

ARTICLE 9 ................................................................................................................................................................... 64REPRESENTATIONS AND WARRANTIES ............................................................................................................. 64

Section 9.1. Representations and Warranties of the City ........................................................................................... 64Section 9.2. Representations and Warranties of the Port Authority .......................................................................... 66Section 9.3. Non-Waiver ........................................................................................................................................... 68Section 9.4. Survival .................................................................................................................................................. 68

ARTICLE 10 ................................................................................................................................................................. 68FINANCE OBLIGATIONS .......................................................................................................................................... 68

Section 10.1. Port Authoritys Obligations ................................................................................................................ 68Section 10.2. Citys Obligations ................................................................................................................................ 68Section 10.3. Port Authoritys Obligation for Estoppel Certificates ......................................................................... 69

ARTICLE 11 ................................................................................................................................................................. 69COMPLIANCE WITH LAWS ..................................................................................................................................... 69

Section 11.1. Compliance with Laws ........................................................................................................................ 69Section 11.2. Non-Discrimination ............................................................................................................................. 69Section 11.3. Compliance with Wage and Hours Laws ............................................................................................. 70

Section 11.4. Non-Collusion ..................................................................................................................................... 70Section 11.5. [Intentionally Omitted]. ....................................................................................................................... 70Section 11.6. Drug-Free Workplace Certification ..................................................................................................... 70Section 11.7.Small Business Enterprise, Minority Business Enterprise and Womens Business Enterprise ............ 70Section 11.8. Reservation of City Right-of-Way Rights and Relocation. ................................................................. 70

ARTICLE 12 ................................................................................................................................................................. 70GOVERNMENTAL IMMUNITY ................................................................................................................................ 71

Section 12.1. Governmental Immunity. ..................................................................................................................... 71ARTICLE 13 INSURANCE ......................................................................................................................................... 71

Section 13.1. Insurance Coverage Required .............................................................................................................. 71


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Section 13.2. Additional Requirements ..................................................................................................................... 73Section 13.3. Damages and Destruction ................................................................................................................... 76

ARTICLE 14 ................................................................................................................................................................. 76[RESERVED] ................................................................................................................................................................ 76ARTICLE 15 ................................................................................................................................................................. 76DELAY EVENTS & VIOLATIONS OF RESTRICTIVE COVENANT ..................................................................... 76

Section 15.1. Delay Events ........................................................................................................................................ 76Section 15.2. Notice of Violation of Restrictive Covenant........................................................................................ 77Section 15.3.Restrictive Covenant Dispute ............................................................................................................... 77

ARTICLE 16 ................................................................................................................................................................. 78DEFAULTS ................................................................................................................................................................... 78

Section 16.1. Default by the Port Authority .............................................................................................................. 78Section 16.2. Defaults by the City ............................................................................................................................. 82Section 16.3. Consequences of Termination or Reversion ........................................................................................ 84

ARTICLE 17 ................................................................................................................................................................. 86RESTRICTIONS ON TRANSFERS ............................................................................................................................. 86

Section 17.1. Transfers by the Port Authority ........................................................................................................... 86Section 17.2. Assignment by the City ....................................................................................................................... 86

ARTICLE 18 LENDERS .............................................................................................................................................. 87Section 18.1. Leasehold Mortgages ........................................................................................................................... 87Section 18.2. Notices and Payments to Leasehold Mortgagees ................................................................................. 88 Section 18.3. Leasehold Mortgagees Right to Cure ................................................................................................. 88Section 18.4. Rights of the Leasehold Mortgagee ..................................................................................................... 88Section 18.5. Termination of this Agreement; New Agreement ................................................................................ 89 Section 18.6. Recognition of Leasehold Mortgagee .................................................................................................. 90Section 18.7. Citys Right to Purchase Leasehold Mortgages. .................................................................................. 90Section 18.8. Assignment and Assumption Agreement ............................................................................................. 91Section 18.9. Right to Dispute Resolution ................................................................................................................. 93

ARTICLE 19 ................................................................................................................................................................. 93DISPUTE RESOLUTION ............................................................................................................................................. 93

Section 19.1. Scope ................................................................................................................................................... 93Section 19.2. Informal Dispute Resolution Procedures ............................................................................................. 93Section 19.3. Mediation ............................................................................................................................................. 94Section 19.4. Litigation ............................................................................................................................................. 94Section 19.5. Provisional Remedies .......................................................................................................................... 94Section 19.6. Tolling ................................................................................................................................................. 94ARTICLE 20 ................................................................................................................................................................. 94

MISCELLANEOUS ...................................................................................................................................................... 94Section 20.1. Notice .................................................................................................................................................. 94Section 20.2. Entire Agreement ................................................................................................................................. 95Section 20.3. Amendment ......................................................................................................................................... 96Section 20.4. Waiver of Rights .................................................................................................................................. 96Section 20.5. Severability .......................................................................................................................................... 96Section 20.6. Governing Law .................................................................................................................................... 96Section 20.7. Submission to Jurisdiction ................................................................................................................... 96Section 20.8. Further Acts ......................................................................................................................................... 97Section 20.9. Costs .................................................................................................................................................... 97Section 20.10. Interest ............................................................................................................................................... 97Section 20.11. Inurement and Binding Effect ............................................................................................................ 97

Section 20.12. No Partnership or Third Party Beneficiaries ...................................................................................... 97Section 20.13. No. General Obligations. Notwithstanding anything herein to the contrary, ..................................... 97Section 20.14. Cumulative Remedies ........................................................................................................................ 97Section 20.15. Counterparts; Facsimile Execution .................................................................................................... 98

SCHEDULES


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Schedule 1 Parking System ContractsSchedule 2 Operating StandardsSchedule 3 Enforcement Policies and ProceduresSchedule 4 Parking HoursSchedule 5 Schedule of Parking Fees and ZonesSchedule 6 [Reserved]Schedule 7 [Reserved]Schedule 8 Financial InformationSchedule 9 Identified EventsSchedule 10 [Reserved]Schedule 11 Parking System LandSchedule 12 Sycamore Garage PlansSchedule 13 [Reserved]Schedule 14 City Advertising PolicySchedule 15 Capital ImprovementsSchedule 16 Advisory Committee Rules of GovernanceSchedule 17 NoteSchedule 18 Technological Improvements


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THIS LONG-TERM LEASE AND MODERNIZATION AGREEMENT FOR THE CITYOF CINCINNATI PARKING SYSTEM (this Agreement) is made and entered into as ofthis [] day of _______ 2013 by and between the City of Cincinnati, a municipal corporation,organized and existing under the laws of the State of Ohio (the City), and The Port of GreaterCincinnati Development Authority, a port authority organized and existing under the laws of the

State of Ohio (the Port Authority).

RECITALS

WHEREAS, the City has established and owns the Parking System (as defined herein);and

WHEREAS, the City desires to provide to its citizens continued access to convenientparking and new technology related thereto; and

WHEREAS, pursuant to Sections 717.05 and 737.022 of the Ohio Revised Code, Chapter331 of the City of Cincinnati Municipal Code, and under the terms of that certain ordinance

adopted by the Members of City Council (the Council) on March [], 2013 (the ParkingSystem Ordinance), the City is authorized to enter into the Transaction (as defined herein); and

WHEREAS, the Port Authority desires to lease and acquire the Parking Facilities (asdefined below) from the City, and obtain a grant from the City of the right to operate, maintainand improve the On-Street Parking System and the Off-Street Parking System for the Term (asdefined herein) of this Agreement in connection therewith, all as hereinafter provided; and

WHEREAS, the City desires to lease the Parking Facilities to the Port Authority andgrant the Port Authority the right to operate, maintain, and improve the On-Street ParkingSystem and the Off-Street Parking System for the Term of this Agreement in accordance with

the provisions of this Agreement including the Operating Standards (as herein defined); and

NOW THEREFORE, for and in consideration of the premises, the mutual covenants,representations, warranties and agreements contained herein and other valuable consideration,the receipt and sufficiency of which are hereby acknowledged, the Parties (as defined herein)covenant and agree as follows:

ARTICLE 1

DEFINITIONS AND INTERPRETATION

Section 1.1. Definitions. Unless otherwise specified or the context otherwise requires,

for the purposes of this Agreement the following terms have the following meanings:

AAA means the American Arbitration Association.

Additional Coverages has the meaning ascribed thereto in Section 13.3(m).

Additional Demand Test means a parking study conducted at the Citys expense by arecognized parking expert that demonstrates additional demand for new off-street parking spacescommensurate with the new off-street parking spaces proposed to be created; provided, however,if the City is required to make a commitment to create new off-street parking spaces in order to


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attract or retain jobs within the City on a time schedule that does not reasonably permit a parkingstudy to be conducted, the City may provide other evidence of commensurate demand that isreasonably acceptable to the Port Authority. Any parking study conducted will be at the Citysexpense and will be conducted by a parking expert selected by the City, with such selectionsubject to the approval of the Port Authority and with such approval not to be unreasonably

withheld or delayed.

Additional Note Payment means those payments from the Port Authority to the City onJune 15

theach Year constituting deferred payments on the Note.

Additional Parking Spaces has the meaning ascribed thereto in Section 7.7.

Adjusted for Inflation means adjusted by the percentage increase, if any, or decrease, ifany, in the Index during the applicable adjustment period.

Advisory Committee means the committee consisting of five members, one of whom isthe City Manager or his or her designee, and four of whom are appointed by the Port Authority,

with at least one member being a senior representative of the Asset Manager familiar with theParking System Operations and the Operator, convened for the purposes as described in, and inaccordance with, the Advisory Committee Rules of Governance set forth in Schedule 16.

Affected Property means any public or private property, including any sign pole, streetlamp, and other structure, including connecting hardware, that supports a Metering Device butwas initially designed to serve other purposes, a building, park, highway, street, road, roadway,railroad, rail or other transit way, sidewalks, plazas, walkways, connectors (above and belowgrade) and any ancillary facilities related to any of the foregoing, under the jurisdiction andcontrol of the City, any other Governmental Authority or any other Person that is located above,below, within the boundaries of, connects or intersects with, crosses over or under or is adjacent

to any Metered Parking Spaces, Unmetered Parking Spaces, or Parking Facility or any partthereof.

Affiliate when used to indicate a relationship with a specified Person, excluding theCity and Port Authority, means a Person that, directly or indirectly, through one or moreintermediaries has a Ten Percent (10%) or more voting or economic interest in such specifiedPerson or controls, is controlled by or is under common control with (which shall include, withrespect to a managed fund or trust, the right to direct or cause the direction of the managementand policies of such managed fund or trust as manager, advisor, supervisor, sponsor or trusteepursuant to relevant contractual arrangements) such specified Person, and a Person shall bedeemed to be controlled by another Person, if controlled in any manner whatsoever that results in

control in fact by that other Person (or that other Person and any Person or Persons with whomthat other Person is acting jointly or in concert), whether directly or indirectly and whetherthrough share ownership, a trust, a contract or otherwise (for purposes of this definition, amanaged fund or trust shall be deemed to be an Affiliate of the Person managing, supervising,sponsoring or advising such fund or trust and a limited partner in a managed fund or trust shallbe deemed to be an Affiliate of such fund or trust and of the Person managing, supervising,sponsoring or advising such fund or trust).

Agreement has the meaning ascribed thereto in the preamble to this Agreement


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(including all Schedules referred to herein), as amended from time to time in accordance with theterms hereof.

Annual Operating Budget has the meaning ascribed thereto in Section 8.2(d).

Applicable Metered Parking Fee Cap means as of the date of determination, the greater

of (a) the Initial Rate, increased by the greater of (i) Three Percent (3%) per Franchise Year , or(ii) the rate of inflation per Franchise Year as determined by the Index; provided that, each suchincrease shall be in accordance with the increment increase and rounding set forth in Section 1 ofSchedule 5, or, (b) a Dynamic Pricing Schedule approved by the Port Authority, after theunanimous approval by the Advisory Committee, or (c) as otherwise approved by the PortAuthority, after the unanimous approval of the Advisory Committee.

Applicable Off-Street Parking Fee Cap means as of the date of determination, withrespect to each Parking Facility or with respect to all parking Facilities in the aggregate (if theCity approves a Dynamic Pricing Schedule), the greater of (a) the Initial Rate, increased by thegreater of (i) Three Percent (3%) per Franchise Year, or (ii) rate of inflation per Franchise Year

as determined by the Index; provided that, each such increase shall be in accordance with theincrement increase and rounding set forth in Section 2 of Schedule 5, or (b) as otherwiseapproved by the Port Authority, after the unanimous approval of the Advisory Committee.

Approval, Approved, Approves, Approved by the City and similar expressionsmean approved or consented to by the City in accordance with the provisions of Section 1.15.

Approved List has the meaning ascribed thereto in Section 3.3(b).

Asset Manager means the Initial Asset Manager, or any other subsequent Personengaged by the Port Authority to assist the Port Authority in management of the Parking System

and Parking System Operations.

Asset Management Agreement means any material agreement, contract, or commitmentby which the Port Authority engages an Asset Manager that qualifies and is consistent with theconditions set forth under Rev. Proc. 97-13 or any successor revenue procedure, regulation orother official procurement of the Internal Revenue Service as to not result in private business useunder 141(b) of the Internal Revenue Code.

Assumed Liabilities has the meaning ascribed thereto in Section 3.2(c).

Assignment and Assumption Agreement has the meaning ascribed thereto in Section18.8(c).

Audit and Review and similar expressions mean, with respect to any matter or thingrelating to the Parking System, the Parking System Operations or this Agreement, theperformance by or on behalf of the City of such reviews, investigations, inspections and auditsrelating to such matter or thing as the City may reasonably determine to be necessary in thecircumstances, conducted in each case in accordance with applicable United States industryaccepted practices, if any, or as required by Law, but in accordance with the provisions of thisAgreement.


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Authorization means any approval, certificate of approval, authorization, consent,waiver, variance, exemption, declaratory order, exception, license, filing, registration, permit,notarization or other requirement of any Person that applies to the Parking System or isreasonably required from time to time for the Parking System Operations.

Available Revenues means the revenue available to pay the City Additional NotePayments on an annual basis after all deposits required under the Indenture have been made.

Bank Rate means the one (1) month London Interbank Offered Rate (LIBOR) (or anysuccessor rate thereto) as reported in The Wall Street Journal (or any successor thereof).

Banks Project means the construction, development, and renovation of the downtownCincinnati riverfront district, which includes several large-scale projects, existing infrastructureimprovements, and development of residential, office, hotel, and commercial space as describedin that certain Master Development Agreement for The Banks dated November 23, 2007, andall future phases in connection therewith.

Bid Date means November 26, 2012.

Bond Proceeds Amount has the meaning ascribed thereto in Section 2.1.

Bondholder Representative means the Underwriter for so long as it owns any of themost junior series of Parking Bonds then outstanding or, if the Underwriter owns no suchParking Bonds, a representative appointed by the holders of a majority in principal amount of themost junior series of Parking Bonds then outstanding.

Business Day means any Day that is not a Saturday, a Sunday or a Day observed as aholiday by the City, the State of Ohio or the United States government.

Capital Improvement means (i) any improvement to the structural, electrical, ormechanical components of the Parking Facilities, (ii) all technology upgrades to MeteringDevices contemplated on Schedule 18, (iii) any maintenance, repair or replacement expenditurein excess of $100,000, Adjusted for Inflation, in the aggregate during any month, with respect tothe Parking System; (iv) any other improvements to the Parking System set forth in the CapitalPlan.

Capital Plan has the meaning ascribed thereto in Section 8.1(d).

Capital Reserve Fund has the meaning ascribed thereto in the Indenture.

Casualty Cost has the meaning ascribed thereto in Section 13.3(a).

Change in Control means, with respect to any Person other than the City and the PortAuthority, whether accomplished through a single transaction or a series of related or unrelatedtransactions and whether accomplished directly or indirectly, either (i) a change in ownership sothat Fifty Percent (50%) or more of the direct or indirect voting or economic interests in suchPerson is transferred to a Person or group of Persons acting in concert, (ii) the power directly orindirectly to direct or cause the direction of management and policy of such Person, whetherthrough ownership of voting securities, by contract, management agreement, or common


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directors, officers or trustees or otherwise, is transferred to a Person or group of Persons acting inconcert or (iii) the merger, consolidation, amalgamation, business combination or sale ofsubstantially all of the assets of such Person; provided however, that notwithstanding anything tothe contrary set forth in this definition, Transactions in shares of a publicly traded company orother transactions involving a publicly traded company shall not constitute a Change in Control

for the purposes of this Agreement, unless they cause such company to no longer be a publiclytraded company.

Cincinnati Streetcar Project means the construction and implementation of anelectronic modern street car transportation system situated in downtown Cincinnati, Ohio that inits initial phase is expected to operate on a 3.6-mile loop linking the Cincinnati CentralRiverfront with the Over-the-Rhine neighborhood, and includes the construction of a track,traction power, overhead contact system, and utility relocation.

City has the meaning ascribed thereto in the preamble to this Agreement.

City Default has the meaning ascribed thereto in Section 16.2(a).

City Request means a written request prepared by or on behalf of the City requestingthat the Port Authority, to the extent permitted hereby, (i) add or perform work in respect of theParking System in addition to that provided for in this Agreement (ii) change the dimensions,character, quantity, quality, description, location or position of any part of the Parking System ormake other changes to the Parking System; provided, however, that no such request may in anyevent request that the Port Authority do any act that could reasonably be expected to violate anyapplicable Law or cause the Port Authority to fail to be in compliance with this Agreement orany other agreement with respect to the Parking Bonds by which the Port Authority is bound.

City Manager means the Manager of the City or another City Official acting under the

direction and pursuant to the authority of the City Manager.

Citys Option has the meaning ascribed thereto in Section 18.7(a).

Claim means any demand, action, cause of action, suit, proceeding, arbitration, claim,judgment or settlement or compromise relating thereto which may give rise to a right to apayment obligation.

Closing has the meaning ascribed thereto in Section 2.2(a).

Closing Consideration has the meaning ascribed thereto in Section 2.1.

Closing Date has the meaning ascribed thereto in Section 2.2(a).

Closing Deposit has the meaning ascribed thereto in Section 2.3(a).

Closing Period means the period from the date hereof up to and including the Time ofClosing.

Comparable Off-Street Parking Systems means with respect to the Off-Street ParkingSystem, a parking garage or parking lot (whether privately or publicly owned) that is located


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within a similarly sized metropolitan area in the United States and that is operated in acommercially reasonable manner and is reasonably comparable to the Off-Street ParkingSystem in terms of physical structure, climate, capacity, utilization and the nature of theservices provided.

Comparable On-Street Parking Systems means with respect to the On-Street ParkingSystem, a parking system consisting of Metered Parking Devices that is located within asimilarly sized metropolitan area in the United States and that is operated in a commerciallyreasonable manner and is reasonably comparable to the Off-Street Parking System in terms oftechnology, equipment, capacity, utilization and the nature of the services provided.

Consent means any approval, consent, ratification, waiver, exemption, franchise,license, permit, novation, certificate of occupancy or other authorization, of any Person,including any Consent issued, granted, given, or otherwise made available by or under theauthority of any Governmental Authority or pursuant to any applicable Law.

Consultant means (i) a consulting firm having national experience in the operation and

management of parking garages, parking lots, and metered parking systems reasonablyacceptable to the Parties and (ii) any individual having experience in the operation andmanagement of parking garages, parking lots, and parking systems that is selected by suchconsulting firm to perform the professional services required to be performed by the Consultant.

Contractor means, with respect to a Person, any contractor with whom such Personcontracts to perform work or supply materials or labor in relation to the Parking System,including any subcontractor of any tier, supplier or materialman directly or indirectly employedpursuant to a subcontract with a Contractor. For the avoidance of doubt, the Asset Manager andOperator (if other than the Port Authority) shall be a Contractor of the Port Authority.

Council has the meaning ascribed thereto in the preamble to this Agreement.

County means County of Hamilton, Ohio and its Board of County Commissioners orany political subdivision, agency, or representative thereof, including its Sheriffs Department.

Day means a calendar day, beginning at 12:01 a.m. in the eastern time zone of theUnited States coinciding with the calendar day.

Debt Service Reserve Fund has the meaning ascribed thereto in the Indenture.

Delay Event means (i) an event of Force Majeure that interrupts or limits in amaterial way the performance of Port Authoritys obligations hereunder or the Port Authoritys

use of the Parking System, (ii) a failure to obtain, or delay in obtaining, any Authorization froma Governmental Authority (provided that such failure or delay could not have been reasonablyprevented by technical and scheduling or other reasonable measures of the Port Authority), (iii)the enactment of a new Law or the modification, amendment or change in enforcement orinterpretation of a Law (including a change in the application thereof by any GovernmentalAuthority) arising after the Bid Date, (iv) a delay caused by the performance of works(including the activities authorized by Section 3.7) carried out by the City when not actingunder the authority or direction of, or pursuant to a contract, sublease or any other agreement orarrangement with the Port Authority, Asset Manager, or the Operator, (v) a delay caused by a


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failure by the City to perform or observe any of its covenants or obligations under thisAgreement or (vi) a delay caused by the presence in, on, under or around the Parking System ofHazardous Substances, which in each case results in or would result in a delay or interruption inthe performance by the Port Authority of any obligation under this Agreement; except to theextent that the consequences of such delay or the cause thereof is specifically dealt with in this

Agreement or arises by reason of (A) the negligence or intentional misconduct of the PortAuthority or its Representatives, (B) any act or omission by the Port Authority or itsRepresentatives in breach of the provisions of this Agreement or (C) except as contemplated bySection 5.1, lack or insufficiency of funds or failure to make payment of monies or providerequired security on the part of the Port Authority. For the avoidance of doubt, a Delay Eventshall not include any of the exceptions listed in clauses (i) through (iv) of the definition of ForceMajeure.

Delay Event Dispute Notice has the meaning ascribed thereto in Section 15.1(e).

Delay Event Notice has the meaning ascribed thereto in Section 15.1(e).

Delay Event Remedy has the meaning ascribed thereto in Section 15.1(d).

Designated Senior Person means such individual who is designated as such from timeto time by each Party for the purposes of Article 19 by written notice to the other Party.

Document has the meaning ascribed thereto in Section 1.15(c).

Dynamic Pricing Schedule means (i) with respect to the Off-Street Parking System, theability of the Port Authority to increase and/or reduce the Off-Street Parking Fee, in each casesubject to the restriction of the Regular Rate Adjustment, , based upon historic, real-time, oranticipated paid use implemented in an effort to achieve optimal paid use during a given period

and/or on a given day; and (ii) with respect to the On-Street Parking System, the ability of thePort Authority to increase and/or reduce the Metered Parking Fee, in each case subject to therestrictions of the Regular Rate Adjustment, after the unanimous approval of the AdvisoryCommittee as required for the On-Street Parking System and as specifically proposed by the PortAuthority in an effort to achieve the optimal paid use during a specified period or Zone.

Eligible Investments means any one or more of the following obligations or securities:(i) direct obligations of, and obligations fully guaranteed by, the United States of America or anyagency or instrumentality of the United States of America, the obligations of which are backedby the full faith and credit of the United States of America; (ii) demand or time deposits, federalfunds or bankers acceptances issued by any Institutional Lender (provided that the commercialpaper or the short-term deposit rating or the long-term unsecured debt obligations or deposits ofsuch Institutional Lender at the time of such investment or contractual commitment providing forsuch investment have been rated A (or the equivalent) or higher by a Rating Agency or anyother demand or time deposit or certificate of deposit fully insured by the Federal DepositInsurance Corporation); (iii) commercial paper (including both non-interest-bearing discountobligations and interest-bearing obligations payable on demand or on a specified date not morethan one year after the date of issuance thereof) which has been rated A (or the equivalent) orhigher by a Rating Agency at the time of such investment; (iv) any money market funds, theinvestments of which consist of cash and obligations fully guaranteed by the United States of


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America or any agency or instrumentality of the United States of America, the obligations ofwhich are backed by the full faith and credit of the United States of America and which havebeen rated A (or the equivalent) or higher by a Rating Agency; and (v) other investments thencustomarily accepted by the City in similar circumstances; provided, however, that no instrumentor security shall be an Eligible Investment if such instrument or security evidences a right to

receive only interest payments with respect to the obligations underlying such instrument orsecurity provides for payment of both principal and interest with a yield to maturity in excess ofOne Hundred Twenty Percent (120%) of the yield to maturity at par.

Emergency means a situation that is urgent and calls for immediate action, which, ifsuch action is not taken, is reasonably likely to result in imminent harm or physical damage toany or all of the Parking System or any natural Person.

Encumbrance means any mortgage, lien, judgment, execution, pledge, charge, securityinterest, restriction, easement, servitude, option, reservation, lease, claim, trust, deemed trust orencumbrance of any nature whatsoever, whether arising by operation of Law, judicial process,contract, agreement or otherwise created.

End Date means the date on which this Agreement expires or is terminated.

Enforcement Operator means the delegatee of the Port Authority appointed pursuant toSection 3.2(e).

Enforcement Policies and Procedures means the policies and procedures established bythe Port Authority, the Asset Manager, and the Operator for the administration and enforcementof parking rules and regulations that are designed to deter parking violations, includingprocedures for the issuance and collection of parking tickets and citations for violations of theparking rules and regulations with respect to the On-Street Parking System, by such means as

permitted by Law, in each case, as set forth in Schedule 3, but excluding all ReservedEnforcement Powers or the Operating Plans.

Engineering Firm means an independent firm of professional engineers that haveexhibited experience with the kinds of Parking Facilities and Metering Devices within theParking System and having a national reputation for skill and experience in the design,construction, reconstruction, maintenance and repair of public parking garages appointed by thePort Authority; provided, however, the engineering firm cannot be related to or affiliated withthe Operator or Asset Manager.

Environment means soil, surface waters, ground waters, land, stream sediments,surface or subsurface strata and ambient air.

Environmental Laws means any Laws applicable to the Parking System or ParkingSystem Operations regulating or imposing liability or standards of conduct concerning orrelating to (i) the regulation, use or protection of human health or the Environment or (ii) theregulation, use or exposure to Hazardous Substances.

Escrow Agent means a bank, trust company or national banking association selected bythe City to hold the Good Faith Deposit.


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Excluded Liabilities has the meaning ascribed thereto in Section 3.2(c).

Excluded Off-Street Parking Facility(ies) means those Parking Garages and ParkingLots that are owned or being developed by the City but are not included within the Off-StreetParking System, including: Fountain Square North Garage, New Pogue Garage and Tower PlaceMall, parking garages included in connection with future phases of the Banks Project, NewConvention Center Headquarters Hotel Garage, Washington Park Garage, U-Square at the LoopGarage, Town Center Garage, Vernon Manor Garage, Kingsgate Marriot Garage, Hampton InnGarage, Keystone Garage, , Third and Central Lot, John Street Lot, Renaissance Lot, and thefuture garage at Fifth and Race.

Excluded Off-Street Parking Facilities Fees has the meaning ascribed thereto inSection 3.18(a).

Exempt Excluded Off-Street Parking Facilities means the following Excluded Off-Street Parking Facilities that are not required to maintain the Excluded Off-Street ParkingFacilities Fees: Fountain Square North Garage, Washington Park, Town Center Garage, Garage

Keystone Garage, Vernon Manor Garage, Kingsgate Marriot, Garage U-Square at the LoopGarage, Hampton Inn Garage.

First Class Parking System means a parking system operated and maintained inaccordance with the Operating Standards and incorporates technology (such as cash paymentalternatives) and operating methods that have gained broad based market acceptance inComparable Off-Street Parking Systems and Comparable On-Street Parking Systems for theirusefulness and cost-effectiveness.

Force Majeure means any event beyond the reasonable control of the Port Authorityand the City that delays, interrupts or limits the performance of a Partys obligations hereunder

including an intervening act of God or public enemy, war, invasion, armed conflict, act offoreign enemy, blockade, revolution, act of terror, sabotage, civil commotions, interference bycivil or military authorities, condemnation or confiscation of property or equipment by anyGovernmental Authority, nuclear or other explosion, radioactive or chemical contamination orionizing radiation, fire, tornado, flooding, earthquake or other natural disaster, riot or otherpublic disorder, epidemic, quarantine restriction, strike, labor dispute or other labor protest, stop-work order or injunction issued by a Governmental Authority, governmental embargo, except tothe extent that the consequence of such event is otherwise specifically dealt with in thisAgreement or arises by reason of (i) the negligence or intentional misconduct of the PortAuthority or its Representatives, (ii) any act or omission by the Port Authority or itsRepresentatives in breach of the provisions of this Agreement, (iii) lack or insufficiency of funds

or failure to make payment of monies or provide required security on the part of the PortAuthority or (iv) any strike, labor dispute or other labor protest involving any Person retained,employed or hired by the Port Authority or its Representatives to supply materials or services foror in connection with the Parking System Operations or any strike, labor dispute or labor protestpertaining to the Port Authority that is caused by or attributable to any act (including any pricingor other practice or method of operation) or omission of the Port Authority or itsRepresentatives. For purposes of Force Majeure, as applied to actions to be taken by, orobligations of, the City, Governmental Authority does not include the City.


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Franchise means the exclusive on-street parking franchise right granted by the City tothe Port Authority as described in Section 2.1.

Franchise Year means (i) if the Closing Date occurs on the first Day of a calendarmonth, the twelve (12) month period beginning on the Closing Date or (ii) if the Closing Datedoes not occur on the first Day of a calendar month, the period from the Closing Date throughthe end of the calendar month in which the Closing Date occurred and the next succeedingtwelve (12) month period and, in either case of clause (i) or (ii), each succeeding twelve (12)month period and in any case ending on the End Date.

Future Off-Street Facilities has the meaning ascribed thereto in Section 3.18(b).

Global Event has the meaning ascribed thereto in Section 7.5.

Good Faith Deposit has the meaning ascribed thereto in Section 2.3.

Government Agreement has the meaning ascribed thereto in Section 3.19.

Governmental Authority means any court, federal, state, local or foreign government,department, commission, board, bureau, agency or other regulatory, administrative,governmental or quasi-governmental authority and, unless expressly excluded, includes the City.The definition of Governmental Authority excludes the Port Authority.

Hazardous Substance means any solid, liquid, gas, odor, heat, sound, vibration,radiation or other substance or emission which is a contaminant, pollutant, dangerous substance,toxic substance, hazardous waste, subject waste, hazardous material or hazardous substancewhich is or becomes regulated by applicable Environmental Laws or which is classified ashazardous or toxic under applicable Environmental Laws (including gasoline, diesel fuel orother petroleum hydrocarbons, polychlorinated biphenyls, asbestos and urea formaldehydefoam insulation).

Identified Event means any event, other than a Global Event, for which the City hasclosed Parking Spaces or agreed to offer free or reduced parking at Metered Parking Spaces orfree or reduced parking at the Parking Facilities in connection with the events listed onSchedule 9, and, if required, as authorized by the permits issued pursuant to Chapter 765 of theCincinnati Municipal Code or through Council passage of special notwithstanding ordinances.

Identified Event Threshold means not greater than five and one half percent (5.5%) ofthe aggregate number of Parking Spaces which would otherwise be operated during a FranchiseYear but for an Identified Event.

Indenture means the Trust Indenture, between the Port Authority and the Trustee,providing for the issuance of the Parking Bonds.

Index means the Consumer Price Index for all Urban Consumers (CPI-U) (notseasonally adjusted) as published by the U.S. Department of Labor, Bureau of Labor Statistics;provided, however, that if the Index is changed so that the base year of the Index changes, theIndex shall be converted in accordance with the conversion factor published by the U.S.Department of Labor, Bureau of Labor Statistics; provided further that if the Index is


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discontinued or revised during the Term, such other index or computation with which it isreplaced shall be used in order to obtain substantially the same result as would be obtained if theIndex had not been discontinued or revised.

Information means any and all information relating to the Parking System Operationsin the Port Authoritys possession or control or available to the Port Authority pursuant to theAsset Management Agreement or Operating Agreement.

Initial Adjustment Date means, with respect to each Parking Facility or Zone, the dateon which all technology improvements have been made to the respective Parking Facility orZone in accordance with Schedule 18.

Initial Asset Manager means AEW Capital Management L.P. or a wholly ownedsubsidiary thereof.

Initial Off-Street Operator means Denison Parking, Inc.

Initial On-Street Operator means Xerox State & Local Solutions, Inc.

Initial Rate means, for each Parking Facility and each Zone, the Initial Rate forParking Fees set forth in Schedule 5.

Institutional Lender means (i) the United States of America, any state thereof or anyagency or instrumentality of either of them, any municipal agency, public benefit corporation orpublic authority, advancing or insuring mortgage loans or making payments which, in anymanner, assist in the financing, development, operation and maintenance of projects, (ii) any (a)savings bank, savings and loan association, commercial bank, trust company (whether actingindividually or in a fiduciary capacity) or insurance company organized and existing under thelaws of the United States of America or any state thereof, (b) foreign insurance company orcommercial bank qualified to do business as an insurer or commercial bank as applicable underthe laws of the United States, (c) pension fund, foundation or City or college or other endowmentfund or (d) investment bank, pension advisory firm, mutual fund, investment company or moneymanagement firm, (iii) any qualified institutional buyer under Rule 144(A) under theSecurities Act or any other similar Law hereinafter enacted that defines a similar category ofinvestors by substantially similar terms or (iv) any other financial institution or entity designatedby the Port Authority and Approved by the City (provided that such institution or entity, in itsactivity under this Agreement, shall be acceptable under then current guidelines and practices ofthe City);provided, however, that each such entity (other than entities described in clause (iii) ofthis definition) or combination of such entities if the Institutional Lender shall be a combinationof such entities shall have individual or combined assets, as the case may be, of not less thanFive Hundred Million Dollars ($500,000,000), which shall include, in the case of an investmentor advisory firm, assets controlled by it or under management.

Law means any order, writ, injunction, decree, judgment, law, ordinance, decision,opinion, ruling, policy, statute, code, rule or regulation of any Governmental Authority.

Leasehold Mortgage has the meaning ascribed thereto in Article 18.

Leasehold Mortgagee has the meaning ascribed thereto in Article 18.


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Leasehold Mortgage Debt has the meaning ascribed thereto in Article 18.

Lessor has the meaning ascribed thereto in Article 18.

Letter of Credit means an irrevocable, unconditional, commercial letter of credit, infavor of the City, in form and content reasonably acceptable to the City, payable in U.S. dollars

upon presentation of a sight draft and a certificate confirming that the City has the right to drawunder such letter of credit in the amount of such sight draft, without presentation of any otherDocument, which letter of credit (i) is issued by a commercial bank or trust company that is amember of the New York Clearing House Association and that has a current credit rating of Alor better by Standard & Poors Ratings Services and an equivalent credit rating by anotherRating Agency (or an equivalent credit rating from at least two nationally recognized RatingAgencies if the named Rating Agency ceases to publish ratings) (or such other commercial bankor trust company reasonably acceptable to the City and Approved by the City prior to thesubmission of the letter of credit), and (ii) provides for the continuance of such letter of credit fora period of at least one year or as otherwise provided in this Agreement. The office forpresentment of sight drafts specified in the Letter of Credit shall be located at a specified street

address within the City of Cincinnati or other location acceptable to the City.

Loss or Losses means, with respect to any Person, any loss, liability, damage,penalty, charge or out-of-pocket and documented cost or expense actually suffered or incurredby such Person, but excluding any punitive, special, indirect and consequential damages and anycontingent liability until such liability becomes actual.

Material Adverse Effect Means any single act or omission, or series of acts or omissionsregardless of the Franchise Year in which any such act or omission occurs, that the Port Authorityor the Bondholder Representative reasonably establishes, based upon verifiable data with respectto (c) or (d) below, that: (a) would adversely affect the exclusion from gross income of the interest

on the Tax Exempt Parking Bonds for federal income tax purposes; or (b) create private usewithin the meaning of Treasury Regulations Section [142-___________________] in excess oftwo percent (2.00%) of [the amount of Gross Proceeds for the Tax-Exempt Parking Bonds; or(c)based on past operating data and projected future operating data, would result in a violation of theRate Covenant; or (d) based on past operating data and projected future operating data, hasresulted or would result in a fifteen percent (15.00%) reduction in debt service coverage (ascompared to the projected level of debt service coverage of the Parking Bonds in each year theParking Bonds are scheduled to remain outstanding had the act, omission, or series of acts oromissions creating the Material Adverse Effect not taken place, as reasonably established by thePort Authority or Bondholder Representative) on either (1) all of the senior-most series of ParkingBonds, or (2) all Parking Bonds. For purposes of determining whether one or more acts or

omissions cause the occurrence of a Material Adverse Effect under clauses (c) or (d) of thepreceding sentence, (A) there shall be taken into account any positive effects of such acts oromissions or related acts or omissions by or at the direction of the City that the City demonstrates,to the commercially reasonable satisfaction of the Port Authority and the BondholderRepresentative, would contemporaneously mitigate the negative effects; (B) Identified Eventsshall be taken into account only to the extent that they exceed the Identified Events Threshold and(C) the Citys building of Excluded Off-Street Parking Facilities or additional Parking Facilitiesunder Section 3.18(b) or 5.4 shall not be taken into account if the Additional Demand Test is metfor such Parking Facilities (including Excluded Off-Street Parking Facilities built after the date of


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this Agreement).

The occurrence of a Material Adverse Effect shall be a violation of the RestrictiveCovenant contained in Section 3.23 herein and may, but does not necessarily, arise as a result ofone or more events or actions that include, but are not limited to, the following:

(i) the Citys failure to maintain open access and standards for the Public Way underSection 3.2(d), subject however to the Identified Events Threshold;

(ii) the Citys change of Law without the approval of the Port Authority and theunanimous approval of the Advisory Committee that necessitates a materialchange in the Port Authority Enforcement Policies and Procedures ;

(iii) the Citys use of its access to or the Citys performance of work on the ParkingSystem under Section 3.7;

(iv) the Citys failure to comply with its covenant under Section 3.18(a) regarding fees

for use of the Excluded Off-Street Parking Facilities, excluding, however anyExempt Excluded Off-Street Parking Facilities are not subject to the Excluded Off-Street Parking Facilities Fee;

(v) the Citys building, financing, developing, or constructing or causing the building,financing, developing, or constructing of additional parking garages, parking lotsor other parking facilities that are not listed in the definition of Excluded Off-StreetParking Facilities, are not included in the Parking System and do not meet theAdditional Demand Test;

(vi) The Citys failure to maintain open access of the Public Way under Section 3.20;

(vii) the Citys use of reserved air rights under Section 3.21 in a manner that materiallyinterferes with Parking System Operations;

(viii) the Citys material failure to fulfill its obligations related to Affected Propertyunder Section 4.3;

(ix) the Citys unreasonable withholding of Operating Standards proposed by the PortAuthority under Section 6.2;

(x) the Citys failure to establish or its modification of the Schedule of Parking Fees inviolation of Section 7.1;

(xi) the Citys Temporary Closures or Permanent Removal of Parking Spaces from theParking System other than in a manner that causes such Temporary Closure orPermanent Removal not to be a violation of the Restrictive Covenant underSection 7.2;

(xii) relocations or removals of portions of the On-Street Parking System toaccommodate Public Improvements under Section 11.8;


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(xiii) the Citys expansion of its mass transit system, other than as part of the CincinnatiStreetcar Project;

(xiv) any Delay Event that the City, directly or indirectly, causes, and any other actionby or at the direction of the City that is not expressly permitted by this Agreementand that, directly or indirectly, causes an interruption in Parking SystemOperations or otherwise adversely affects Parking Revenue; or

(xv) the breach of any material agreement, instrument or document to which the City isa party or bound (other than this Agreement) as a result of the consummation oftransactions contemplated by this Agreement.

Notwithstanding the foregoing, no effect resulting from or directly in connection any ofthe following shall be deemed, either alone or in combination, to constitute or contribute to aMaterial Adverse Effect: (A) general economic conditions or changes therein; (B) financial,banking, currency or capital markets fluctuations or conditions (either in the United States or anyinternational market and including changes in interest rates); (C) conditions affecting the financial

services or parking industries generally; (D) any event or occurrence existing as of the date of thisAgreement; (E) except as contemplated by paragraph (xv) above, any action, omission, change,effect, circumstance or condition expressly permitted or contemplated by this Agreement orattributable to the execution, performance or announcement of this Agreement or the transactionscontemplated hereby; and (F) negligence or intentional misconduct of the Port Authority or itsRepresentatives.

Memorandum of Lease has the meaning ascribed thereto in Section 2.8.

Metered Parking Fee means the fees established as consideration for the privilege ofparking a motor vehicle at a Metered Parking Space all as set forth on Schedule 5, and as may be

adjusted by the Port Authority pursuant to the terms of this Agreement.

Metered Parking Revenue means, during the Term, the revenues derived from MeteredParking Fees, excluding any Parking Violation Revenue related thereto.

Metered Parking Spaces means, as of _______, 2013, those parking spaces whereduring certain periods of time, the City, pursuant to this Agreement, requires the payment of aMetered Parking Fee for parking a motor vehicle at that space or place for a limited period oftime and such designation is effective for all purposes of this Agreement, plus any suchadditional parking spaces designated by the City prior to the Closing Date.

Metering Devices means the parking meters, pay and display stations, electronic

metering devices, and other similar devices that may be used from time to time in connectionwith the Parking System Operations, including any shelters used to guard the devices andpatrons from the elements utilized by Port Authority in its discretion, but excluding AffectedProperty.

New Agreement has the meaning ascribed thereto in Section 18.5(a).

Note means that certain Promissory Note from the Port Authority in the principalamount determined as provided in Section 2.1 for the benefit of the City that sets forth the


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amounts required as additional Closing Consideration, substantially in the form attached hereto asSchedule 17.

Off-Street Operator means the Initial Off-Street Operator, or any other Personsubsequently engaged by the Port Authority or Asset Manager to assist the Port Authority inoperating the Off-Street Parking System.

Off-Street Parking Facility Revenue means, during the Term, the revenues derivedfrom the Off-Street Parking System collected by the Port Authority by the operation of theParking Garages and Parking Lots, excluding any Parking Violation Revenue related thereto.

Off-Street Parking Fee means the fees established as consideration for the privilege ofparking a motor vehicle at the Parking Garages or Parking Lots all as set forth on Schedule 5,and as may be adjusted by the Port Authority pursuant to the terms of this Agreement.

Off-Street Parking Services means the services to be provided by the Port Authority, orits designee, with respect to the Off-Street Parking System as grantee of the franchise and lease

under this Agreement.

Off-Street Parking Spaces means, as of the date hereof, those parking spaces in theOff-Street Parking System for which the City requires the payment of Parking Fees for parking amotor vehicle at the Parking Facilities, plus any such additional parking spaces designated by theCity prior to the Closing Date and any new parking spaces in the Off-Street Parking Systemconstructed pursuant to this Agreement, including parking spaces in the planned SycamoreGarage or constructed by the Port Authority pursuant to Section 3.18.

Off-Street Parking System means the public parking system consisting of the ParkingFacilities as described or depicted on Schedule 11, all improvements, including paving

structures, signage (including all parking garage entry and exit signage), fixtures and personalproperty of any and every kind whatsoever forming a part of and used in connection with suchgarages and lots from time to time, but excluding all rights (including oil, gas and mineral rights,air rights and development rights) retained by the City as the fee simple owner of the realproperty constituting the sites of the Parking Facilities.

On-Street Operator means the Initial On-Street Operator, or any other Personsubsequently engaged by the Port Authority or Asset Manager to assist the Port Authority inoperating the On-Street Parking System.

On-Street Parking System means (i) the Metering Devices, normal meter poles,computer systems and software used in connection with the administration of Metered Parking

Spaces and the collection of Metered Parking Fees, and all improvements and personal propertyof any and every kind whatsoever forming a part of and used in connection with the operationand maintenance of the metering system associated with the Metered Parking Spaces (includingall Metering Devices but excluding any interest in the streets, sidewalks, paving, sign poles,tripods, streetlights or similar real or personal property) and (ii) for purposes of enforcementonly, all of the Unmetered Parking Spaces, but excluding any interests in the streets, sidewalks,paving or similar real property.

On-Street Parking Services means the services to be provided by the Port Authority, or


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its designee, with respect to the On-Street Parking System as grantee of the franchise and leaseunder this Agreement.

Operating Agreement means any material agreement, contract or commitment to whichthe Port Authority or the Asset Manager is a party relating to the Parking System Operations asin force from time to time (including the Parking Enforcement Agreement and any warranties orguaranties), but excluding any Leasehold Mortgage and financing documents related thereto.

Operating Agreements and Plans has the meaning ascribed thereto in Section 3.11.

Operating Reserve Fund has the meaning ascribed thereto in the Indenture.

Operating Standards means the standards set forth in Schedule 2 that apply to theoperation, maintenance, rehabilitation and construction of improvements to, the Parking System.To the extent that any term or provision set forth in or incorporated by reference in Schedule 2conflicts with any term or provision specified in this Agreement, then such term or provision ofthis Agreement shall govern and shall supersede any such conflicting term or provision.

Operator means the Off-Street Operator, On-Street Operator, or both the On-StreetOperator and Off-Street Operator, as applicable, based on the portion of the Parking System towhich the term applies.

Other Franchise Revenue has the meaning ascribed thereto in Section 7.1(e).

Parking Adjudication Agreement means that certain Agreement for the Distribution ofMonies Collected for Parking Infractions between the City and the County governing, amongother things, the adjudication of the Parking Violations.

Parking Bonds means the obligations issued by the Port Authority in connection withits payment to the City of the Closing Consideration, together with any obligations issued torefund those obligations or issued to finance additional Parking Facilities pursuant to Section3.18.

Parking Enforcement means the issuance of parking tickets or citations for violationsof (i) the parking rules and regulations with respect to the Parking Spaces and (ii) other Laws ofthe City of Cincinnati with respect to the Parking System, in each case in accordance with theEnforcement Policies and Procedures set forth in Schedule 3, but excluding any ReservedEnforcement Powers.

Parking Enforcement Agreement means any agreement entered into between the Port

Authority and its Enforcement Operator for the provision of parking enforcement services.

Parking Facilities means Parking Lots and Parking Garages.

Parking Fees means the Metered Parking Fee and the Off-Street Parking Fee.

Parking Garages means the parking garages described in Schedule 11 as Lease Area,and are commonly known as the Garfield Garage, Fountain Square South Garage, GramercyGarage, Broadway Garage, Seventh Street Garage and, upon its completion, Sycamore Garage;


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and any additional parking garages constructed pursuant to Section 3.18.

Parking Lots means the parking lots described in Schedule 11 as Lease Area, and arecommonly known as the Third & Butler Lot (and adjoining L&N Loop Lot), West Central Lot,and the McFarland Lot.

Parking Revenue means all revenue consisting of Metered Parking Revenue, Off-StreetParking Facility Revenue, Parking Violation Revenue, and Other Franchise Revenue.

Parking Services means the On-Street Parking Services and Off-Street ParkingServices.

Parking Spaces means the Metered Parking Spaces and Off-Street Parking Spaces, butexcluding Unmetered Parking Spaces.

Parking System means the On-Street Parking System and Off-Street Parking System.

Parking System Contracts means the agreements to which the City is a party relating tothe use and operations of the Parking System that are set forth on Schedule 1 and that will beassigned to the Port Authority at the Time of Closing or terminated by the City.

Parking System Employees means the current Division of Parking Facilities employeesthat, as of the Bid Date, are employed by the City to service the Parking System.

Parking System Land means those parcels of real property upon which the ParkingGarages and Parking Lots are located and as set forth on Schedule 11 and further described inthe Memorandum of Lease.

Parking System Operations means (i) the operation, management and maintenance of

the Parking System, (ii) the issuance, processing and collection of parking tickets or citations forviolations of parking rules and regulations with respect to the Parking Spaces pursuant to thisAgreement, and (iii) all other actions relating to the Parking System that are performed by or onbehalf of the Port Authority pursuant to this Agreement.

Parking System Ordinance has the meaning ascribed thereto in the preamble to thisAgreement.

Parking Violations means any parking ticket or citation issued by the City, County, orby the Enforcement Operator (excluding moving violations) in accordance with the EnforcementPolicies and Procedures.

Parking Violation Revenue means the revenues derived from any Parking Violationsissued during the Term, any related fines imposed by the court (other than actual court costs)collected for Parking Violations or citations for violations of parking rules and regulationsissued by an Enforcement Operator or [police officer]. The Schedule for Parking Fines is setforth on Schedule 5.

Party means a party to this Agreement and Parties means both of them.


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Period of Operation means, (i) with respect to each Metered Parking Space, the Daysand the period or periods of time during each Day that the City permits the parking of a motorvehicle in that Metered Parking Space and requires the payment of a Metered Parking Fee foruse of that Metered Parking Space as set forth on Schedule 4; and (ii) with respect to the ParkingFacilities, the Days and period or periods of time during each Day that the City permits the

parking of a motor vehicle in a Parking Garage or Parking Lot as set forth on Schedule 4.

Period of Stay means, with respect to each Metered Parking Space, the period orperiods of time that the same motor vehicle may remain continuously parked in such MeteredParking Space pursuant to the Enforcement Policies and Procedures.

Permanent Removal has the meaning ascribed thereto in Section 7.2(c).

Permitted City Encumbrance means, with respect to the Parking System: (i) the PortAuthority Interest; (ii) any Encumbrance that is being contested, or being caused to be contested,by the City in accordance with Section 3.5(b) and disclosed in writing to the Port Authority (butonly for so long as such contest effectively postpones enforcement of any such Encumbrance);

(iii) inchoate materialmens, mechanics, workmens, repairmens, employees, carriers,warehousemens or other like Encumbrances arising in the ordinary course of business of theParking System or the Citys performance of any of its rights or obligations hereunder, and either(A) not delinquent or (B) which are being contested, or are being caused to be contested, by theCity in accordance with Section 3.5(b) (but only for so long as such contest effectively postponesenforcement of any such Encumbrance); (iv) any easement, covenant, condition, right-of-way, orother matters of record, or any zoning, building, environmental, health or safety Law relating tothe development, use or operation of the Parking System (or other similar reservation, right andrestriction) or other defects and irregularities in the title to the Parking System; (v) the police andregulatory powers of the State of Ohio, City of Cincinnati, and Hamilton County with respect tothe Parking System, and the regulation of traffic control and use of the Public Way, including the

Reserved Enforcement Powers; (vi) any right reserved to or vested in any GovernmentalAuthority by any statutory provision or under common law; (vii) any other Encumbrancepermitted hereunder; (viii) any Encumbrances created, incurred, assumed or suffered to exist bythe Port Authority or any Person claiming through it; (ix) any rights reserved to or vested in theCity by any statutory provision; and (x) any amendment, extension, renewal or replacement ofany of the foregoing.

Permitted Port Authority Encumbrance means, with respect to the Port AuthorityInterest: (i) any Encumbrance that is being contested in accordance with Section 3.5(a) (but onlyfor so long as such contest effectively postpones enforcement of any such Encumbrance); (ii)any (A) lien or security interest for obligations not yet due and payable to a Contractor or other

Person, (B) any statutory lien, deposit or other non-service lien or (C) lien, deposit or pledge tosecure mandatory statutory obligations or performance of bids, tenders, contracts (other than forthe repayment of borrowed money) or leases, or for purposes of like general nature, any of whichare incurred in the ordinary course of business of the Parking System Operations and either (A)not delinquent or (B) which are being contested by the Port Authority in accordance with Section3.5(a) (but only for so long as such contest effectively postpones enforcement of any suchEncumbrance); (iii) inchoate materialmens, mechanics, workmens, repairmens, employees,carriers, warehousemens, or other like Encumbrances arising in the ordinary course of businessof the Parking System or the Port Authoritys performance of any of its rights or obligations


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hereunder, and either (A) not delinquent or (B) which are being contested by the Port Authorityin accordance with Section 3.5(a) (but only for so long as such contest effectively postponesenforcement of any such Encumbrance); (iv) any right reserved to or vested in anyGovernmental Authority by any statutory provision or under common law; (v) any otherEncumbrance permitted hereunder; (vi) liens incurred in the ordinary course of business in

connection with workers compensation, unemployment insurance, social security and othergovernmental rules and that do not in the aggregate materially impair the use, value or operationof the Parking System; (vii) any Encumbrances created, incurred, assumed or suffered to exist bythe City or any Person claiming through the City (provided that the City has no right hereunderto create any such Encumbrances); (viii) any Encumbrance, security interest or pledge imposedupon the Port Authority as to Port Authoritys assets arising from borrowings, financings, leasesor similar transactions in the ordinary course of business (including any leasehold mortgage (andfinancing statements or other means of perfection thereto) or any Encumbrance created, incurred,assumed or suffered to exist by the Indenture in connection with the issuance of the ParkingBonds); and (ix) any amendment, extension, renewal or replacement of any of the foregoing.

Person means any individual (including, the heirs, beneficiaries, executors, legalrepresentatives or administrators thereof), corporation, partnership, joint venture, trust, limitedliability company, limited partnership, joint stock company, unincorporated association or otherentity or a Governmental Authority.

Port Authority has the meaning ascribed thereto in the preamble to this Agreement.

Port Authority Default has the meaning ascribed thereto in Section 16.1(a).

Port Authority Interest means the interest of the Port Authority in the Parking Systemcreated by this Agreement and the rights and obligations of the Port Authority under thisAgreement.

Port Authority Request means a written request in respect of the Parking Systemprepared by or on behalf of the Port Authority and addressed to the City seeking to make afundamental change in the dimensions or location of any part of the Parking System; provided,however, that a Port Authority Request need not be submitted in connection with operations,maintenance or repair of the Parking System in the ordinary course or any other aspects ofParking System Operations permitted or reserved to the Port Authority under this Agreement,including any modification or change to the Operating Standards pursuant to Section 6.2.

Property Taxes means any ad valorem property tax attributable to the Parking Systemor the Port Authority

parking lease

Documents