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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: tiF -z I -Rya !! �3� ti ����; r� i €: 0 : i, Debbie Shields, City Clerk We have authority to bind the Corporation