Arena Concession Agreement

CONCESSION AGREEMENT


Between


CITY OF CORAL SPRINGS, FLORIDA
------------------------------


and


CAN AM INVESTMENT GROUP, INC.,
------------------------------
A FLORIDA CORPORATION
---------------------


for


THE DESIGN, DEVELOPMENT, CONSTRUCTION, AND OPERATION
OF TWIN ICE-SKATING ARENAS
AT THE CORAL SPRINGS REGIONAL PARK
----------------------------------


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TABLE OF CONTENTS


ARTICLE 1
PURPOSE....................................................................................... 2


ARTICLE 2
TERM.......................................................................................... 2


ARTICLE 3
RIGHT TO NEGOTIATE RENEWAL TERMS.............................................................. 3


ARTICLE 4
EXCLUSIVITY................................................................................... 3


ARTICLE 5
ADDITIONAL SERVICES AND SPACE................................................................. 4


ARTICLE 6
CONSTRUCTION.................................................................................. 4


ARTICLE 7
CONCESSIONAIRE'S MARKETING.................................................................... 6


ARTICLE 8
PROPERTY DESCRIPTION.......................................................................... 6


ARTICLE 9
MINIMUM MONTHLY RENTAL GUARANTEE.............................................................. 6


ARTICLE 10
PERCENTAGE FEES............................................................................... 7


ARTICLE 11
GROSS RECEIPTS................................................................................ 7


ARTICLE 12
SALES TAX..................................................................................... 8


ARTICLE 13
PAYMENT OF FEES............................................................................... 8


ARTICLE 14
REPORTS AND RECORDS........................................................................... 9


ARTICLE 15
STRUCTURE(S) AND AMENITIES................................................................... 10


ARTICLE 16
FACILITY MANAGER............................................................................. 11


ARTICLE 17
CONTRACT ADMINISTRATOR APPROVAL............................................................... 11


3


ARTICLE 18
PUBLIC CONTACT OF CONCESSIONAIRE'S
AND CITY'S EMPLOYEES....................................................................... 12


ARTICLE 19
OPERATING SCHEDULE............................................................................ 12


ARTICLE 20
QUALITY OF CONCESSIONAIRE'S SERVICES.......................................................... 14


ARTICLE 21
FACILITIES AND SERVICES PROVIDED BY CITY. .................................................... 15


ARTICLE 22
FACILITIES, EQUIPMENT, AND SERVICES PROVIDED BY
CONCESSIONAIRE............................................................................. 16


ARTICLE 23
EQUIPMENT INSTALLED BY CONCESSIONAIRE......................................................... 17


ARTICLE 24
MAINTENANCE RESPONSIBILITIES OF CONCESSIONAIRE;
APPEARANCE OF FACILITIES................................................................... 18


ARTICLE 25
CAPITAL IMPROVEMENTS AND REPAIRS.............................................................. 18


ARTICLE 26
DAMAGES....................................................................................... 19


ARTICLE 27
LIABILITY FOR DAMAGE OR INJURY................................................................ 19


ARTICLE 28
DAMAGE OR DESTRUCTION OF PREMISES............................................................. 19


ARTICLE 29
CHANGE OF OPERATIONS HOURS DUE TO PUBLIC HEALTH RISK.......................................... 20


ARTICLE 30
INGRESS AND EGRESS............................................................................ 20


ARTICLE 31
ASSIGNMENT, SUBLETTING, AND SUCCESSORS IN INTEREST............................................ 21


ARTICLE 32
OWNERSHIP OF CONCESSIONAIRE................................................................... 22


ARTICLE 33
PAYMENT AND PERFORMANCE BOND/IRREVOCABLE
LETTER OF CREDIT........................................................................... 23


ARTICLE 34
INSURANCE AND CONTRACTOR INDEMNIFICATION...................................................... 25


4


ARTICLE 35
INDEMNIFICATION OF CITY....................................................................... 32


ARTICLE 36
TERMINATION BY CITY........................................................................... 32


ARTICLE 37
TERMINATION BY CONCESSIONAIRE................................................................. 37


ARTICLE 38
COVENANT OF NON-SUBORDINATION................................................................. 38


ARTICLE 39
COVENANT OF QUIET ENJOYMENT................................................................... 39


ARTICLE 40
NONDISCRIMINATION............................................................................. 39


ARTICLE 41
RULES AND REGULATIONS......................................................................... 40


ARTICLE 42
PAYMENT OF OBLIGATIONS........................................................................ 40


ARTICLE 43
EMERGENCY EVACUATION AND HURRICANE PLAN....................................................... 41


ARTICLE 44
INSPECTION BY CITY............................................................................ 41


ARTICLE 45
EMERGENCY REPAIRS BY CITY..................................................................... 42


ARTICLE 46
TERMINATION OF CONTRACT....................................................................... 42


ARTICLE 47
CONDEMNATION.................................................................................. 43


ARTICLE 48
APPROVALS..................................................................................... 44


ARTICLE 49
INDULGENCE NOT WAIVER......................................................................... 44


ARTICLE 50
NOTICES....................................................................................... 44


ARTICLE 51
PUBLIC ENTITY CRIME STATEMENT AND DRUG FREE
WORKPLACE CERTIFICATION.................................................................... 45


5


ARTICLE 52
CONTRACT ADMINISTRATOR AND CONCESSIONAIRE'S
DESIGNATED REPRESENTATIVE.................................................................. 46


ARTICLE 53
REMEDIES...................................................................................... 46


ARTICLE 54
INTERPRETATIONS............................................................................... 46


ARTICLE 55
JOINT PREPARATION............................................................................. 47


ARTICLE 56
SECURITY...................................................................................... 47


ARTICLE 57
ADVERTISING.................................................................................... 48


ARTICLE 58
ESTOPPEL CERTIFICATES.......................................................................... 48


ARTICLE 59
MISCELLANEOUS PROVISIONS....................................................................... 48


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TABLE OF CONTENTS


EXHIBITS


EXHIBIT "A"
APPROVED ACTIVITIES........................................................................... 52


EXHIBIT "B"
SITE PLAN..................................................................................... 53


EXHIBIT "C"
PROPERTY DESCRIPTION ......................................................................... 54


EXHIBIT "D"
OPERATING SCHEDULE............................................................................ 55


EXHIBIT "E"
PAYMENT AND PERFORMANCE BONDS................................................................. 56


EXHIBIT "F-1"
PUBLIC ENTITY CRIME STATEMENT................................................................. 62


EXHIBIT "F-2"
PUBLIC DISCLOSURE ACT
DISCLOSURE AFFIDAVIT....................................................................... 65
EXHIBIT "G"
DRUG FREE WORKPLACE........................................................................... 66


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CONCESSION AGREEMENT


THIS A CONCESSION AGREEMENT, made and entered into this _____ day of _______________, 1995, by and between:


CITY OF CORAL SPRINGS, FLORIDA
a Municipal Corporation
9551 West Sample Road
Coral Springs, Florida 33065
(hereinafter referred to as "CITY")


and


CAN AM INVESTMENT GROUP, INC.
a Florida corporation
8000 Peters Road, #200
Plantation, FL 33324


(its successors and assigns, hereinafter referred
to as "CONCESSIONAIRE")


for


THE DESIGN, DEVELOPMENT, CONSTRUCTION, AND OPERATION
OF TWIN ICE-SKATING ARENAS
AT THE CORAL SPRINGS REGIONAL PARK
----------------------------------


WHEREAS, the CITY owns and operates recreational amenities at the Regional Park (the "Park") for the recreation and entertainment of Park patrons; and


WHEREAS, the CITY has duly advertised for qualifications and proposals and received proposals for the provision of the design, development, construction, and operation of twin ice-skating arenas ("the Facility") within a portion of the said Park area; and


WHEREAS, the qualifications and proposal of CAN AM INVESTMENT GROUP, INC. ("CONCESSIONAIRE") was determined to be in the best interest of the CITY; NOW, THEREFORE,


W I T N E S S E T H :


IN CONSIDERATION of the mutual covenants, provisions, terms, promises, and conditions contained herein, the parties hereto agree as follows:


ARTICLE 1


PURPOSE


The CITY hereby grants unto the CONCESSIONAIRE and the CONCESSIONAIRE hereby accepts from the CITY, the exclusive use of


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designated Park area as described in Article 8 (the "Property") for a multi-use and multi-user skating arena (the "Facility"). The approved exclusive activities shall be those specific activities set forth on Exhibit "A" attached hereto and made a part hereof.


The Contract Administrator may from time to time approve amendments to the initial list of items relating to the referenced activities.


The CONCESSIONAIRE shall, on/or before October 1 of each year, provide to the Contract Administrator, a current price list for goods and services associated with the CONCESSIONAIRE's activities at the Facility. CONCESSIONAIRE warrants that the pricing is competitive, and consistent with the market sensitive approach to this Concession Agreement. The CONCESSIONAIRE shall be permitted to change the annual price list during any one-year period for goods and services without notice to the Contract Administrator so long as the increase or decrease is less than fifteen (15%) percent of the listed price during any such annual period. However, to the extent of a fifteen (15%) percent increase or decrease, the Contract Administrator shall be notified in writing.


It is the mutual covenant and agreement of the parties hereto that the operation and occupancy by the CONCESSIONAIRE pursuant to this Concession Agreement shall be exclusive except to the extent otherwise set forth in this Agreement or as otherwise stated and provided to other concessionaires in the Regional Park.


ARTICLE 2


TERM


The CITY hereby grants to the CONCESSIONAIRE an initial term of forty-nine (49) years with the right of both parties to negotiate in good faith renewal terms as provided for in Article 3 below. The term of this Concession Agreement shall commence to run from the date the CONCESSIONAIRE commences operations at the facility or upon the issuance of a final and unqualified Certificate of Occupancy, whichever occurs first. For all other purposes, the Effective Date ("Effective Date") of the Agreement shall commence on the date of approval by the City Commission of the City of Coral Springs, Florida, or any other governmental agency having jurisdiction over the Facility, whichever occurs later, and no further governmental action is necessary or required to preclude the CONCESSIONAIRE to commence construction. CONCESSIONAIRE agrees that it will commence operations at the Facility within two (2) years from the Effective Date. In the event that CONCESSIONAIRE is unable to complete construction of the Facility and commence operations due to force majeure circumstances beyond the control of CONCESSIONAIRE, the CONCESSIONAIRE will be granted a reasonable extension of time to complete the construction activities and commence operations. In all other circumstances, the CONCESSIONAIRE may request an extension on the time period to


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commence operations beyond the two (2) year, however, the decision of the CITY is final and absolute.


The payment of rental obligations are as otherwise set forth in Articles 9 and 10 hereinafter.


ARTICLE 3


RIGHT TO NEGOTIATE RENEWAL TERMS


This Concession Agreement may be renewed, at the CITY'S option, for two (2) twenty-five year renewal periods. The CITY or the CONCESSIONAIRE shall commence good faith negotiations to renew this Agreement by providing written notice to either party, in accordance with Articles 46 and Article 50, hereof, at least six (6) months before the end of the initial term and each subsequent renewal term, request that the parties commence negotiations towards renewal of this Concession Agreement.


The parties hereto covenant and agree to negotiate any and all renewals in good faith and in a bona fide fashion consistent with the tenor of this Concession Agreement unless there remain outstanding, in the reasonable opinion of the City, any outstanding and uncured material defaults as described hereinafter.


ARTICLE 4


EXCLUSIVITY


The rights and activities granted to the CONCESSIONAIRE pursuant to Exhibit "A," attached hereto and made a part hereof, under this Concession Agreement are exclusive only to the Park, except that food and beverage sales, and all non-skating activities and party rooms shall be exclusive only to the Property. Nothing contained in this Concession Agreement shall preclude the CITY from charging other fees to park patrons for other amenities or concessions.


During the term of this Agreement, the CITY covenants and agrees not to design, construct, or operate a skating facility of any kind, either indoor or outdoor, in the Park.


ARTICLE 5


ADDITIONAL SERVICES AND SPACE


The Contract Administrator may allow the CONCESSIONAIRE to provide additional skating related space within the Property upon such terms as the parties may agree to in writing. Such additional services must follow the theme of the approved purpose of this


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Concession Agreement. Any additional land requested by CONCESSIONAIRE outside of the boundaries of the Property requires review and approval by the City Commission of Coral Springs.


ARTICLE 6


CONSTRUCTION


CONCESSIONAIRE agrees that it will construct its facilities on the Property in conformity with the approved site plan attached hereto and made a part hereof as Exhibit "B" (the Site Plan"), as such may be revised in accordance with the provisions of this Agreement, according to plans and specifications developed by CONCESSIONAIRE at its sole cost and expense and which plans and specifications shall comply with all applicable codes, ordinances, laws and regulations (the "Improvements"). Once the Improvements are completed, they shall be included in the term "Facility" for all purposes of this Concession Agreement.


The parties hereto shall, prior to the commencement of construction, coordinate construction activities between the CITY and the CONCESSIONAIRE so as to provide for the excavation of land on the Property and in the Park for the corresponding use by the CONCESSIONAIRE of fill material which is needed by the CONCESSIONAIRE to construct the Facility.


In the event that there are any changes to the Site Plan, CONCESSIONAIRE shall submit the revised Site Plan to the Contract Administrator for review and approval, whose approval shall not be unreasonably withheld. The Contract Administrator shall review the Site Plan revision,if non-structural within five (5) business days and if structural within fifteen (15) business days of its submittal by CONCESSIONAIRE. CITY may refuse to grant approval if, in its sole opinion, reasonably applied, any of the proposed Facilities as shown by the revised Site Plan are not inherently related to the approved purpose of this Concession Agreement. The reasons for any non-approval shall be set forth in writing, no later than the time frames set forth above after submittal of the revised Site Plan by CONCESSIONAIRE. In the event CITY'S reasons for any non-approval are not received in writing by CONCESSIONAIRE, within the time frames set forth above, CITY shall be deemed to have approved the revised Site Plan, subject to the approval of the appropriate State of Florida or United States government agencies if the approval of such agencies is required.


CONCESSIONAIRE shall construct, at its own costs and expense, the Improvements in accordance with the Site Plan. CONCESSIONAIRE shall be responsible, at its sole cost and expense, for applying


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for and obtaining any and all permits and approvals required for the construction of the Improvements except as provided for in Article 42, hereinafter set forth. CITY agrees to join in and promptly execute any and all reasonable documents, or, if appropriate, execute consents thereto, pertaining to all or any portion of the Property which are reasonably requested by CONCESSIONAIRE, including, but not limited to, applications and/or documents to be filed with any governmental and/or quasi-governmental authorities with respect to development or redevelopment of the Property or any portion thereof, and which require the joinder or consent of the owner of the Property.


Prior to the commencement of construction of the Improvements, CONCESSIONAIRE, shall submit a copy of the plans and specifications for the Improvements to the Contract Administrator for review and approval, whose approval shall not be unreasonably withheld. The Contract Administrator shall review the plans and specifications within thirty (30) days of submittal by CONCESSIONAIRE. CITY may refuse to grant approval if the proposed Improvements are not compatible architecturally and at the same standards of other improvements within the Park as it is the CITY'S intent to have all Improvements blend in with the overall development of the Park. The reasons for any non-approval shall be set forth in writing, no later than thirty (30) days after submittal of the plans and specifications by the CONCESSIONAIRE. In the event CITY'S reasons for any non-approval are not received in writing by CONCESSIONAIRE within such thirty (30) day period, CITY shall be deemed to have approved the plans and specifications.


All structures, pavements, and other approved permanent improvements (which shall be defined as buildings, fixtures, and all infrastructure related thereto) constructed on the Property shall be the property of CONCESSIONAIRE and shall become the property of the CITY only upon the expiration of this Concession Agreement or other termination as provided for herein.


ARTICLE 7


CONCESSIONAIRE'S MARKETING


CONCESSIONAIRE will use its best efforts to reasonably market, advertise, and promote the Facilities. CONCESSIONAIRE will allocate not less than two (2%) of the previous year's gross receipts, as hereinafter defined, to meet marketing needs. CONCESSIONAIRE agrees to provide the Contract Administrator with a copy of CONCESSIONAIRE'S marketing plan and budget within sixty (60) days prior to the commencement of the operations of the Facility and thereafter on October 1 each year during the term hereof or any renewal thereof. The Contract Administrator may review and comment on the marketing plan and budget but approval of the Contract Administrator is not required for implementation of CONCESSIONAIRE'S marketing plan and budget. Contract Administrator reserves the right to reasonably review and approve all


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advertisements or promotional material to be used by CONCESSIONAIRE for the Facilities that utilizes the Park, Department or CITY logo, and reserves the right to require CONCESSIONAIRE to identify the name of the Regional Park in any promotional or advertising materials.


ARTICLE 8


PROPERTY DESCRIPTION


That portion of the Regional Park designated for the Facility as referenced in Exhibit "C," attached hereto and made a part hereof.


ARTICLE 9


MINIMUM MONTHLY RENTAL GUARANTEE


CONCESSIONAIRE shall pay to the CITY a minimum monthly rental of Two Thousand Five Hundred Dollars ($2,500.00) per month (the "Rent") for the Facility commencing on the first date of operation for the Facility, ("Rent Commencement Date") described in Article 1 hereof. Should CONCESSIONAIRE commence operations at a time of the month other than the first five days of that month, the first month's rent shall be prorated accordingly. Said minimum monthly rent shall be due and payable on the first (1st) day of each month for that current month without billing. If the minimum monthly rent is not received by the CITY by the tenth (10th) day of the month in which it is due, beginning on the eleventh (11th) day, interest at the rate allowed by law (currently 1 1/2 percent per month) shall begin to accrue and the CONCESSIONAIRE shall be deemed in default of this Concession Agreement. In the event that CONCESSIONAIRE rents additional space, or provides additional services or is provided the use of additional acreage within the Park as described in Article 5 herein, the rental fees may differ from the Rent.


ARTICLE 10


PERCENTAGE FEES


To the extent greater than the Minimum Monthly Rental Guarantee set forth above in Article 9, the CONCESSIONAIRE shall pay to the CITY, without billing on a monthly basis, the following sliding scale percentages of Gross Receipts beginning from $0.01 to infinity:


4% of Gross Receipts from ALL SOURCES YR. 1-10


5% of Gross Receipts from ALL SOURCES YR. 11-20


5.5% of Gross Receipts from ALL SOURCES YR. 21-49


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Annual Maximum Payment YR
---------------------- --

$ 75,000.00 1-5
85,000.00 6-10
125,000.00 11-15
150,000.00 16-20
Thereafter, no maximum.


Such payments shall be received by the appropriate CITY office as described in Article 13 herein from CONCESSIONAIRE, without billing, by the thirtieth (30th) day of the month following the month during which the gross receipts as defined in Article 11 herein, were earned. To the extent that the percentage of Gross Receipts as described in this Article exceeds the Rent for that particular month, the Rent payment previously remitted for that month as described in Article 9 shall be credited against the percentage of Gross Receipts amount due and payable. ...