HomeMy WebLinkAboutCS 12-20Cla 6/
DICKERING
Report to
Executive Committee
Report Number: CS 12-20
Date: June 15, 2020
From: Marisa Carpino
Director, Community Services & Deputy CAO
Subject: Don Beer Arena Pro Shop
- Licence Amending Agreement
File: A-1440
Recommendation:
1. That the Mayor and Clerk be authorized to execute the Don Beer Arena Pro Shop
Licence Amending Agreement as set out in Attachment 1 to which XPRT
Marketing & Promotions will be permitted to operate the Don Beer Arena Pro Shop
from September 1, 2020 to April 30, 2022, subject to minor revisions acceptable to
the Director, Community Services & Deputy CAO and the Director, Corporate
Services & City Solicitor; and,
2. That the appropriate City officials be authorized to take the necessary actions as
indicated in this report.
Executive Summary: The License Agreement permitting XPRT Marketing &
Promotions to operate the Pro Shop in Don Beer Arena expired on April 30, 2020. A
request has been made by XPRT Marketing & Promotions to extend the agreement for
an additional 2 year term as per Section 2 of the current Licence Agreement.
The Arena Pro Shop License Agreement was originally for a 3 year term beginning
September 1, 2017 and ending April 30, 2020 (8 months per term, for a total of 24
months), with 2 optional 8 month term extensions. Under the terms of the agreement,
XPRT Marketing & Promotions is responsible to operate the Pro Shop at Don Beer
Arena for the purposes of selling items and services related to ice hockey, skating,
figure skating and ringette.
The Community Services Department recommends that the current Arena Pro Shop
Licence Agreement be extended with XPRT Marketing & Promotions for a 2 year term
beginning September 1, 2020 and ending April 30, 2022.
Financial Implications: Within the existing Licence Agreement, fees to be paid for
the 2 optional 8 month term extensions was to be $4,800.00 (plus HST) per year.
However, a request was made to City staff by XPRT Marketing & Promotions to
decrease the annual fee paid for the extension period due to declining sales. After
discussion by both parties, it was negotiated that XPRT Marketing & Promotions pay
CS 12-20
Subject: Arena Pro Shop Licence Amending Agreement
June 15, 2020
Page 2
$4,650.00 (plus HST) per year for the 2 year extension period of September 1, 2020 to
April 30, 2022.
As a result, the revenue to be generated from this Licence Amending Agreement is
$9,300.00 (plus HST) for the 2 year term. Yearly fees will be paid in 8 equal payments
at the first of each month made payable to the City of Pickering from September 1st to
April 30th for the period from 2020 to 2022 inclusive.
Discussion: The original Arena Pro Shop License Agreement permitting XPRT
Marketing & Promotions to operate the Don Beer Pro Shop was originally dated
September 1, 2006 and has been extended or re -awarded to XPRT Marketing &
Promotions ever since. XPRT Marketing & Promotions is a family owned business that
has had ties to the Pickering hockey community for over 25 years.
The Arena Pro Shop is located on the first floor within the Don Beer Arena and provides
daily services to facility users. The Arena Pro Shop sharpens skates, silk screens and
embroiders jerseys, conducts skate and equipment repairs, and sells ice sports
merchandise. The services and products offered at the Arena Pro Shop enhance the
operation of Don Beer Arena as a full service destination.
The current Arena Pro Shop License Agreement will expire on April 30, 2020 and
therefore will require a 2 year term extension. Despite COVID-19, both parties are
interested in extending the agreement at this time in order to ensure that services can
resume as soon Don Beer Arena is permitted to reopen. Should arenas remain closed
during the term of the extension due to COVID-19, XPRT Marketing & Promotions will
not be required to pay their monthly rent as is current practice. Interestingly, as per the
Licence Amending Agreement in Attachment 1, the terms of the Licence Agreement
were updated to include clearer provisions for emergency closures, such as the current
COVID-19 restrictions.
Therfore, the Director, Community Services & Deputy CAO recommends that a 2 year
extension to the current Arena Pro Shop Licence Agreement be initiated with XPRT
Marketing & Promotions for a 2 year term beginning September 1, 2020 and ending
April 30, 2022.
CS 12-20 June 15, 2020
Subject: Arena Pro Shop Licence Amending Agreement Page 3
Attachments:
1. Licence Amending Agreement (September 1, 2020 to April 30, 2022)
2. Licence Agreement (September 1, 2017 to April 30, 2020)
Prepared By: Approved/Endorsed By:
01/717-'
Kevin Hayes
Supervisor, Facilities Operations
KH:mc
Marisa Carpino
Director, Community Services &
Deputy CAO
Recommended for the consideration
of Pickering City Council
Tony Prevedel, P.Eng.
Chief Administrative Officer
Attachment No. 1 to Report CS 12-20
Licence Amending Agreement
This Licence Amending Agreement is made as of the day of , 2020.
Between:
XPRT Marketing & Promotions
(the "Operator")
- and -
The Corporation of the City of Pickering
(the "City")
WHEREAS pursuant to a licence agreement dated September 1, 2017 between
the City and the Operator, a copy of which is attached hereto as Schedule "A" (the
"Licence Agreement"), the City granted to the Operator the right to operate certain
services in the arena pro shop facility in the Don Beer Arena located at 940 Dillingham
Road, Pickering;
AND WHEREAS the City and the Operator have agreed to amend the Licence
Agreement as hereinafter set forth;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of
the sum of Two Dollars ($2.00) now paid by each party to the other, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
1. The foregoing recitals are true in substance and fact and are incorporated
herein.
2. The Licence Agreement is hereby amended as follows:
(a) Sections 3.4 and 3.5 are deleted in their entirety and replaced with
the following:
"4. September 1, 2020 ending April 30, 2021, $581.25 plus HST for a
total of $4,650.00 plus HST.
5. September 1, 2021 ending April 30, 2022, $581.25 plus HST for a
total of $4,650.00 plus HST."
(b) Section 4 is amended by adding a new subsection 11 as follows:
"Notwithstanding anything else contained herein, the City reserves the right,
in its sole discretion, to alter the operating schedule and the City will not
be responsible for any losses or damages including any lost revenues
and/or expenses incurred by the Operator due to operating schedule
changes and/or Arena closures, for any reason whatsoever."
(c) A new Section 19 is added as follows:
"14. The City shall not be liable for any damages caused by any delay
or failure to perform the whole or any part of this Agreement, where
such performance is made impossible or impractical due to any
cause direct or indirect, beyond the control of the City, including,
but not limited to, labour disruptions, strikes, lockouts, fire, flood,
storms, acts of nature, natural disasters, acts of war, insurrection
and terrorism, outbreak, pandemic, epidemic, disease or
emergency."
3. Except as hereby amended, the parties confirm that the terms, covenants and
conditions of the Licence Agreement remain unchanged and in full force and
effect.
4. It is understood and agreed that all terms and expressions when used in this
Licence Amending Agreement, unless a contrary intention is expressed herein,
have the same meaning as they have in the Licence Agreement.
5. This Licence Amending Agreement, including any Schedules attached hereto,
constitutes the entire agreement between the parties and may not be amended
or modified in any respect except by written instrument signed by the parties
hereto.
6. This Licence Amending Agreement may be executed in several counterparts,
and/or by facsimile or email transmission, each of which shall constitute an
original and all of which, taken together, shall constitute one and the same
instrument.
7. This Licence Amending Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario.
2
8. If any covenant, obligation or provision contained in this Licence Amending
Agreement, or the application thereof to any person or circumstance, shall, to the
any extent, be invalid or unenforceable, the remainder of this Licence Amending
Agreement or the application of such covenant, obligation or provision to persons
or circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each covenant, obligation or provision of this
Licence Amending Agreement shall be separately valid and enforceable to the
fullest extent permitted by law.
9. This Licence Amending Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns, as the case may be.
In witness whereof the parties have duly executed this Licence Amending Agreement
as of the date first written above.
XPRT Marketing & Promotions
Name:
Title:
Name:
Title:
I/We have the authority to bind the Corporation.
The Corporation of the City of Pickering
David Ryan, Mayor
Susan Cassel, City Clerk
3
Schedule "A"
Licence Agreement
[to be inserted]
4
Attachment No. 2 to Report CS 12-20
Licence Agreement
This Licence Agreement is made as of September 15t 2017.
Between:
XPRT Marketing & Promotions
(the "Operator")
and
The Corporation of the City of Pickering
(the "City")
Whereas the City is the owner of the Don Beer Arena located at 940 Dillingham
Road, Pickering, Ontario, L1W 1Z6 (the "Arena");
And Whereas the Operator wishes to operate a Pro Shop in the Arena.
Now Therefore the parties agree as follows:
Definitions
1. In this Agreement,
(a) "Arena Pro Shop" means the facility located in the Arena for the
operation of the Services as hereinafter defined ;
(b) "Director" means the Director of the City's Community Services
Department or a designate;
(c) "Services" means the supply, rent or sale of items and services
relating to ice hockey, skating, figure skating and ringette; and
(d) "Term" means the term of this Agreement, including any renewal,
as set out in Section 2.
Term
2. (1) The City grants to the Operator the right to operate the Services in the
Arena Pro Shop for the period beginning September 1, 2017 and ending
April 30, 2020 (a total of 24 months), with the option to extend the
agreement for up to two additional one (1) year terms (a total of 16
months), ending April 30, 2022. The Operator shall provide the Services
only during the months of September to April, both inclusive, during each
term. The Operator shall not be permitted to sell any products sold in the
snack bar concession located in the Arena.
(2) This Agreement may be extended at the end of the term subject to the
City being satisfied with the provision of the Services by the Operator and
subject to terms mutually agreeable to the City and the Operator. Operator
shall advise the City no later than April 1, 2020 of its desire to extend the
term.
(3) Either the Operator or the City may terminate this Agreement prior to its
expiry date by providing ninety (90) days' written notice to the other.
Fees
3. The Operator shall pay to the City monthly installments on the first day of
each month in the amount of:
1. September 1, 2017 ending April 30, 2018, $575.00 plus HST for a total
of $4,600.00 plus HST.
2. September 1, 2018 ending April 30, 2019, $575.00 plus HST fora total
of $4,600.00 plus HST.
3. September 1, 2019 ending April 30, 2020, $575.00 plus HST for a total
of $4,600.00 plus HST.
If agreement is to be extended for a further term(s) (up to 16 months total), the
optional pricing submitted for each term shall be in effect until April 30, 2022:
4. September 1, 2020 ending April 30, 2021, $600.00 plus HST for a total
of $4,800.00 plus HST.
5. September 1, 2021 ending April 30, 2022, $600.00 plus HST for a total
of $4,800.00 plus HST.
Operation
4. (1) The Operator shall operate the Services during the term, seven days per
week, between:
(a) 5:00 pm and 10:00 pm Monday through Friday; and
(b) 7:00 am and 9:00 pm Saturdays and Sundays, subject to closing for
statutory holidays or any other reasons, only with the prior written
approval of the Director.
(2) In no event shall the Arena Pro Shop be open before 7:00 am or after 11:00
pm on any day.
(3) The Operator shall supply all equipment required for the operation of the
Services at its expense.
(4) The City shall provide heat and electrical power for the operation of the
Arena Pro Shop at its expense.
(5) The Operator shall pay all realty, business or other taxes or rates that may
be levied against the lands upon which the Arena is located, against the
Arena Pro Shop or against as a result of the Services.
(6) The Operator shall comply with all reasonable standards set by the Director
for the operation and maintenance of the Arena Pro Shop, in keeping with
the standards set for the operation and maintenance of the Arena.
(7) The Operator shall not alter any part of the Arena Pro Shop, nor install any
fixtures thereto without the prior permission in writing of the Director.
(8) The Operator shall comply with all applicable statutes, laws, by-laws and
regulations, whether federal, provincial, municipal or otherwise at any time
in effect during the term of the agreement.
(9) The Operator shall maintain the Arena Pro Shop in a safe, clean and neat
condition and shall maintain all equipment used in providing the Services in
good repair.
(10) The Operator shall operate the Services in a proficient way, and shall
employ trained and courteous staff.
Insurance
5. Prior to occupying the Arena Pro Shop, the Operator; at its own expense, shall
provide,
(a) comprehensive general public liability insurance, identifying the City
as an additional insured, including coverage for personal injury,
contractual liability, tenant's legal liability, non -owned automobile
liability, death and property damage, on an occurrence basis with
respect to the business carried on at the Arena Pro Shop and The
Operators' use and occupancy of the Arena Pro Shop, with
coverage for any one occurrence or claim of not less than
$2,000,000 CDN, which insurance shall protect the City in respect
of claims by The Operators as if the City was separately insured;
(b) All Risk Property insurance coverage for all equipment, furniture
and property owned by the Operator while occupying the Arena Pro
Shop;
(c) the Operator shall provide proof of automobile insurance for any
and all vehicles used for the purpose of any works arising out of the
occupation of the Arena Pro Shop; and
(d) a certificate of insurance coverage in a form satisfactory to the City,
prior to the Operator occupying the Arena Pro Shop, which
insurance coverage shall be kept in full force and effect throughout
the term.
6. The Operator shall not do or omit or permit to be done anything which causes
any insurance premium of the City to be increased, and if any insurance premium
shall be so increased, the Operator shall pay to the City forthwith upon demand
the amount of such increase. If notice of cancellation or lapse shall be given
respecting any insurance policy of the City or if any insurance policy shall be
cancelled or refused to be renewed by an insurer by reason of the use or
occupation of the Arena Pro Shop, the Operator shall forthwith remedy or rectify
such use or occupation upon being requested to do so in writing by the City and
if shall fail to do so the City may, at its option, terminate this Agreement forthwith
by notice to the Operator and the Operator shall immediately vacate the Arena
Pro Shop.
Liability of the City
7. The City shall not be liable to the Operator for any loss of or damage to the
Arena Pro Shop or any equipment or inventory contained therein, whether
caused by fire, theft, burglary or otherwise, unless such loss or damage was
caused by the negligence of the City, its servants, agents or employees.
8. The Operator shall indemnify the City and each of its servants, employees and
agents from and against all actions, suits, claims and demands which may be
brought against any of them, and from and against all losses, costs, charges,
damages and expenses which may be sustained by any of them as a result of
the use and occupation of the Arena Pro Shop by the Operator or those persons
for who the Operator is responsible at law.
Default
9. If at any time the Operator is in default in the performance of any of the
obligations under this Agreement and such default continues for fifteen (15) days
after the receipt by the Operator of notice from the Director setting out the
particulars of such default, the City shall have the right to terminate this
Agreement forthwith, and thereupon all the rights of the Operator under this
Agreement shall immediately cease and the City shall not be liable for payment
to the Operator of any moneys whatsoever by reason of such termination.
10. If any outstanding fees are not paid as required by this Agreement, the City shall
be entitled to retain and dispose of any equipment installed in the Arena Pro
Shop in order to satisfy the outstanding fees and the costs of collecting them.
11. Notwithstanding the termination of this Agreement, the provisions of Section 8
shall continue to bind the Operator and the Operator shall continue to be
obligated to pay to the City all monies due to the City.
General
12. The Director or Designate shall have the right to enter the Arena Pro Shop at any
time for any reason, provided all reasonable efforts are made to minimize any
disruption to the Operator's use of the Arena Pro Shop.
13. The Operator shall not exhibit or allow to be exhibited in the Arena Pro Shop any
sign, notice, notice board, painting, design or advertisement without the prior
consent of the Director.
14. This Agreement shall not be assignable by the Operator without the consent of
the City, which consent may be arbitrarily refused.
15. This Agreement shall enure to the benefit of and be binding upon the parties and
their respective successors and permitted assigns.
16. No amendment to this Agreement shall be effective unless it is in writing and
signed by both parties.
17. The Operator shall not sublet the management/services of the Pro Shop at any
time during this agreement.
18. (1) Any notice to the City under this Agreement shall be in writing and shall be
delivered to the following address:
Pickering Civic Complex
One The Esplanade
Pickering, Ontario
L1 V 6K7
Attention: City Clerk
(2) Any notice to the Operators under this Agreement shall be in writing and
shall be delivered to the following address:
XPRT Marketing & Promotions
1161 Cedarcroft Crescent
Pickering, ON L1X 1R9
Attention: Bill Dawson
(3)
Notice sha be sufficiently given if delivered in person or sent by
registered mail, or sent by facsimile transmission during normal business
hours on a business day. Business day shall mean Monday to Friday
inclusive, excluding statutory holidays.
(4) Each notice sent shall be deemed to have been received on the day it was
delivered or on the third business day after it was mailed.
(5) The parties may change their address for notice by giving notice to the other
in the manner provided in this section.
IN WITNESS WHEREOF the parties have signed this Agreement.
XPRT Marketing & Promotions
Bill Dawson, Owner/Manager
The Corporation of the City oft -Pickering:
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Debbie Shields, City Clerk
We have authority to bind the Corporation