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EXHIBIT 10.14
CONCESSION AGREEMENT
Between
CITY OF CORAL SPRINGS, FLORIDA
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and
CAN AM INVESTMENT GROUP, INC.,
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A FLORIDA CORPORATION
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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
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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
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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
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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
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▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter referred to as "CITY")
and
CAN AM INVESTMENT GROUP, INC.
a Florida corporation
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(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
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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 $0.01 to infinity:
4% of Gross Receipts from ALL SOURCES YR. 1-10
5% of Gross Receipts from ALL SOURCES YR. 11-20
5.5% of Gross Receipts from ALL SOURCES YR. 21-49
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Annual Maximum Payment YR
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$ 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. The increases in the percentages of Gross
Receipts referenced above shall be effective on the anniversary of the Rent
Commencement Date set forth above in Article 9.
ARTICLE 11
GROSS RECEIPTS
The term "Gross Receipts" as used in this Concession Agreement means
all monies paid or payable to or considerations of determinable value received
by the CONCESSIONAIRE or any subcontractor for sales made, transactions had, or
for services rendered, from all sources, in the operations of this Concession
Agreement, regardless of when or where the order therefore is received or the
goods delivered or services rendered, whether paid or unpaid, whether on a cash
or credit basis or in consideration of any other thing of value. Those items not
includable in "Gross Receipts", as defined herein, shall include sales refunds,
returned merchandise, any taxes imposed by law paid by the customer and directly
payable by the CONCESSIONAIRE to the CITY or to a taxing authority, proceeds
from selling equipment not normally sold in the course of the business,
insurance proceeds, any uncollected credit card sales, and sales to employees.
To the extent necessitated by individual projects initiated by the CITY
and/or the CONCESSIONAIRE, the parties hereto agree to re- review this provision
affecting gross receipts when, to the extent it is concluded mutually between
the parties that for special events and other activities that additional
exclusions or modifications to this paragraph shall be deemed appropriate.
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ARTICLE 12
SALES TAX
The CONCESSIONAIRE shall be liable for the prevailing state of Florida
Sales and Use Tax imposed on Rent, if any (currently at the rate of 6 percent)
on the amounts payable to the CITY under this Concession Agreement. This Sales
and Use Tax shall be payable to the CITY which in turn will remit same to the
Department of Revenue. Said tax is applicable to guarantee and percentage
payments, unless otherwise determined by the State of Florida.
ARTICLE 13
PAYMENT OF FEES
The CONCESSIONAIRE shall pay all fees and charges required by this
Concession Agreement to the following:
CITY OF CORAL SPRINGS, FLORIDA
a Municipal Corporation,
Director of Parks and Recreation
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▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Checks shall be made payable to the "City of Coral Springs, Florida").
In the event CONCESSIONAIRE fails to pay any of the rentals, fees,
percentages of gross receipts or other charges as required to be paid under the
provisions of this Concession Agreement after same shall become due, interest at
the rate allowed by law (currently 1.5 percent per month) shall accrue, at the
Contract Administrator's option against the delinquent payment(s) until same are
paid. Interest shall be charged from the date payment is due unless otherwise
specified herein. Implementation of this provision shall not preclude the CITY
from terminating this Concession Agreement for default in the payment of Rent,
fees, or charges, unless the CITY has accepted such late payment.
ARTICLE 14
REPORTS AND RECORDS
14.1 CONCESSIONAIRE shall maintain during the term of this Concession
Agreement all books of account, reports, and records customarily used
in this type of operation and such records as are necessary to document
its activities pursuant to this Concession Agreement and all monies
collected hereunder, not limited to Gross Receipts. The form of all
such records, cash registers, tapes, books, ledgers, journals, sales
slips, and invoices, installed or used for recording the operations of
the
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CONCESSIONAIRE under this Concession Agreement shall be kept to
determine the financial status of the CONCESSIONAIRE in accordance with
generally accepted accounting principles. Subsequent recommendations
for changes, additions, or deletions shall be contingent upon written
approval of the Contract Administrator. The CITY reserves the right to
reasonably modify reports and records requirements from CONCESSIONAIRE.
14.2 On or before the thirtieth (30th) day following the end of each
calendar month throughout the term of this Concession Agreement, the
CONCESSIONAIRE shall furnish to the Contract Administrator a report of
Gross Receipts during the preceding calendar month, on forms approved
by the Contract Administrator. This report shall be signed by the
CONCESSIONAIRE certifying to the accuracy of such gross receipts. Any
percentage fees or charges due shall be payable with the submission of
the report provided for in this Article.
14.2.1 CONCESSIONAIRE shall at its own expense submit annually, to
the Contract Administrator within ninety (90) days following
the end of the calendar year, a certified report of gross
receipts prepared in accordance with auditing standards
adopted by the American Institute of Certified Public
Accountants and attested to by an independent Certified Public
Accountant licensed by the state of Florida, as to the correct
Gross Receipts per month arising from the CONCESSIONAIRE'S
operations under this Concession Agreement.
14.2.2 In the event of any construction in accordance with Article 6
above, a separate report shall be prepared within thirty (30)
days after completion of any permanent improvements certifying
to said improvement costs, except to the extent that the
CONCESSIONAIRE shall execute a report approved by the CITY and
certified by the CONCESSIONAIRE.
14.3 The CONCESSIONAIRE shall allow the Contract Administrator or the
auditors of the CITY following reasonable notice to CONCESSIONAIRE to
inspect all or any part of the compilation procedures for the aforesaid
monthly reports relating to the monthly gross receipts. Said inspection
shall be at reasonable times during regular business hours and is at
the sole discretion of the Contract Administrator. Records shall be
available at all times Monday through Friday inclusive, except legal
holidays, between the hours of 9:00 a.m. and 5:00 p.m. at
CONCESSIONAIRE'S principal office located in either Dade, Broward, or
Palm Beach Counties. It is the principal objective of the parties
hereto to permit the CITY to
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verify the gross receipts of the CONCESSIONAIRE as described in this
Agreement.
14.4 All records of the CONCESSIONAIRE necessary to verify any report set
forth herein shall be available to the Contract Administrator and the
CITY'S auditors at CONCESSIONAIRE'S principal office in either Dade,
Broward, or Palm Beach Counties for a period of three (3) years after
the end of each year of the Concession Agreement or any extensions
thereof, or a lesser period of time if provided for by Florida General
Law or any rules and/or regulations applicable to public records
retention.
ARTICLE 15
STRUCTURE(S) AND AMENITIES
15.1 All equipment and personal property furnished by CONCESSIONAIRE shall
be of first-rate quality suitable for its intended purpose.
15.2 It shall be the responsibility of the CONCESSIONAIRE and the Contract
Administrator, or designee, to coordinate maintenance, repair, and
activities responsibilities of each.
15.3 The CONCESSIONAIRE agrees to maintain the Property and the Facility in
the same condition, order, and repair as at the commencement of
operations at the Facility and after any improvements are made,
excepting only reasonable wear and tear arising from the use thereof
under this Concession Agreement.
ARTICLE 16
FACILITY MANAGER
The CONCESSIONAIRE shall hire and assign a full-time qualified,
experienced Manager for its operations at the Facility. Said Manager or
Manager's Authorized Agent must be at least eighteen (18) years of age and will
be physically available during reasonable operating hours. The qualifications of
said Manager shall be submitted to the Contract Administrator upon request, and
subject to the reasonable approval of same by the Contract Administrator. During
the hours when the Manager is not on duty or available, the qualified Manager's
Authorized Agent shall be on duty designated by the CONCESSIONAIRE or the
Manager at the Facility. The Manager and the qualified Manager's Authorized
Agent shall be authorized representatives of the CONCESSIONAIRE and be entitled
to responsibly act in all matters relating to the day-to-day operation of the
Facility hereunder. The Contract Administrator, upon request, shall be advised
in writing of the
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names, addresses, social security numbers, and birth dates of the Manager(s) and
Manager(s) Authorized Agent at the Facility. CONCESSIONAIRE will endeavor to
hire persons of good moral character and will investigate the background of
those persons it wishes to employ, to the best of their ability.
ARTICLE 17
CONTRACT ADMINISTRATOR APPROVAL
Except as set forth in Exhibit "A," the Contract Administrator reserves
the right to approve all of the following matters:
17.1 Use of any type of coin and/or token-operated amusement/game machines
inside or outside of the building at the Facility, as also described on
Exhibit "A."
17.2 Signage, Facility name, and graphics, or any material changes from
original approval for the same.
17.3 Equipment, provided that in all events the replacement of any equipment
with comparable equipment suitable for the purpose intended shall not
require the approval of the Contract Administrator.
17.4 Any use of the CITY logo, Park and Recreation Department or Park name.
17.5 Landscape material replanting or removal, unless the replanting is with
landscape material which meets the approved landscape plans and
specifications for the Facility.
Further, it is understood by the CONCESSIONAIRE that should any of the
above items be disapproved, CONCESSIONAIRE may offer alternative solutions. Any
approval required of the Contract Administrator shall not be unreasonably
withheld.
ARTICLE 18
PUBLIC CONTACT OF CONCESSIONAIRE'S AND CITY'S EMPLOYEES
CONCESSIONAIRE'S and CITY'S employees, agents, representatives,
independent contractors, subcontractors, volunteers, partners, or others
involved in the maintenance or operation of the Park and the Facility in contact
with the public shall perform their duties in an efficient and courteous manner.
Failure of any of these persons to do so shall be grounds for his or her removal
from duties in the Park by the responsible party's direct action, or via the
Contract Administrator's or CONCESSIONAIRE'S reasonable demand of the other as
the responsible party if after the reasonable objection of a party, the party
receiving the objection fails to take the necessary steps to
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correct the cause of such objection. All of CONCESSIONAIRE'S and Park's
employees shall be distinctively uniformed or appropriately attired so as to be
distinguishable as the CONCESSIONAIRE'S employees and/or distinguished from the
CITY Park's employees' attire.
ARTICLE 19
OPERATING SCHEDULE
19.1 The Facility will be required to operate seven (7) days a week during
regular Park hours or other submitted hours of operation approved by
the Contract Administrator, which approval shall not be unreasonably
withheld. Sufficient CONCESSIONAIRE attendants will be available to
provide service in a business-like manner. A schedule of intended hours
of operation is attached hereto as Exhibit "D" and is hereby approved
by CITY. Thereafter, any changes requested in the schedule of hours of
operation shall be submitted to the Contract Administrator for
reasonable approval. The Contract Administrator reserves the right to
approve any proposed changes by CONCESSIONAIRE to the schedule. The
Contract Administrator shall review any proposed changes to the
schedule within ten (10) days of its submittal by CONCESSIONAIRE. The
reasons for any non-approval shall be set forth in writing no later
than ten (10) working days after submittal of such request. In the
event such written notice of non-approval is not mailed or otherwise
transmitted to CONCESSIONAIRE within such ten (10) day period, CITY
shall be deemed to have approved the proposed changes to the schedule.
The Contract Administrator may, upon notice to CONCESSIONAIRE,
temporarily require a change in the daily hours or the number of days
per week of operation, if, in the reasonable discretion of the Contract
Administrator, such a change is desirable and reasonable in light of a
substantial public health concern regarding the operation of a
multipurpose iceskating facility and all other possible resolutions
have been exhausted. In the event of such reduction of hours or
temporary closure, the monthly minimum rental guarantee set forth in
Article 9 shall be prorated as set forth in this paragraph, to reflect
the reduced hours of operation at the Facility.
In recognition of this concept, the parties hereto further covenant and
agree to implement a formula based upon a weighted average directly
proportionate to the more intense hours of operation of the
CONCESSIONAIRE such that the "down time" shall be adjusted on an hour
by hour basis and further reflected in a reduction of the minimum
monthly rental guarantee set forth hereinbefore
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in Article 9. The formula shall include a prorated hour-for-hour rent
reduction from 6:00 a.m. to 5:00 p.m. and two (2) hours reduction in
rent for each hour from 5:00 p.m. to 6:00 a.m.
The parties further agree to mutually cooperate, each with the other,
on a program by program and project by project basis during the term of
this Concession Agreement incident to individualized operating schedule
modifications.
19.2 The CONCESSIONAIRE recognizes that the City will be conducting or
permitting special events, from time to time, in the Park. These events
may include CITY sponsored events, events that are produced by the CITY
with another entity and events that are produced by another entity
only, with the CITY's permission. CONCESSIONAIRE agrees to cooperate
with the CITY, in a reasonable manner which will not have a major
impact on CONCESSIONAIRE, with these events. Any disruption to
CONCESSIONAIRE which forces the temporary closure of the facility will
be compensated in accordance with the terms and conditions otherwise
set forth in this Concession Agreement. The CITY shall provide the
CONCESSIONAIRE with not less than ninety (90) days written notice as to
the occurrence of an event of major impact as described in this
sub-paragraph. Any closure of the facility of three (3) hours or more
shall engender compensation from the CITY to the CONCESSIONAIRE based
upon a review by the parties of the CONCESSIONAIRE's last three (3)
months of revenues divided on a per diem basis and allocated towards
the lost revenue occasioned by such closure. The parties hereto shall
use their mutual best efforts to reschedule events to accommodate
public use of the facility and specific league play.
19.3 The CONCESSIONAIRE further covenants and agrees to comply with the
applicable provisions of Article 16-2 of the Code of Ordinances, as
amended from time to time, with regard to noise, noise levels and
conflicts with adjacent and abutting property owners to the Park and
the CONCESSIONAIRE'S operations.
19.4 All on-site parking within this Concession Agreement shall be
maintained and operated by the CONCESSIONAIRE. To the extent that the
CITY engages in a special event, in that event, the CITY shall have
access to the CONCESSIONAIRE'S available parking areas at which time
the CITY shall maintain and operate such parking areas during the
limited periods described herein. Further, the parties shall exercise
reasonable prudence and diligence in providing reasonable access to
each party's available parking areas during such special events.
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19.5 In the event that the Contract Administrator and/or the City Manager or
City Commission permanently modifies the hours of operation described
on Exhibit "D," this Concession Agreement shall be subject to
re-negotiation of the fees and expenses set forth in Articles 9 and 10
hereinabove. Should the parties fail to negotiate terms acceptable to
either party, then, in that event, this Concession Agreement shall be
deemed to be terminated as if such termination were a termination
without cause, as described in Section 36.6, et. seq. hereinafter set
forth.
ARTICLE 20
QUALITY OF CONCESSIONAIRE'S SERVICES
20.1 The CONCESSIONAIRE shall conduct its operations in a business-like
manner in accordance with this Concession Agreement and so as to not
unreasonably interfere with the public's use of other areas of the Park
or infringe upon the normal method of operations of any parties
authorized as of the date hereof to conduct business near the Property.
20.2 Each party shall control the conduct, demeanor, performance and
appearance of its officers, members, employees, agents, volunteers,
independent contractors, subcontractors, representatives, customers,
and patrons and upon reasonable objection of the other party concerning
the conduct, demeanor, performance or appearance of any such person,
the party to whom such objection is made shall immediately take all
necessary steps in the discretion of either party to correct the cause
of such objection. The objecting party reserves the right to reasonably
request that the other party remove any such person in the event that
the steps to correct such objection are unsuccessful, the granting of
which shall not be unreasonably withheld by CONCESSIONAIRE or CITY.
20.3 CONCESSIONAIRE shall furnish good, prompt, and efficient service
adequate to meet all reasonable demands therefor. The Contract
Administrator may periodically evaluate CONCESSIONAIRE'S performance
under the Concession Agreement. As a result of these performance
evaluations, the Contract Administrator may reasonably request
CONCESSIONAIRE to modify its operations so as to furnish good, prompt
and efficient service.
20.4 The CONCESSIONAIRE shall not conduct any business or activity not
specifically authorized by this Concession
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Agreement, unless approved by the Contract Administrator, whose
approval shall not be unreasonably withheld.
ARTICLE 21
FACILITIES AND SERVICES PROVIDED BY CITY
The CITY shall provide, at its sole cost and expense, the following:
21.1 Water, sewer, electric, and telephone lines sufficient to service the
Facility, to the property line of each project. Provision of these
services shall coincide with the CONCESSIONAIRE's construction
timetable otherwise described herein, and made a specific part hereof.
21.2 Non-exclusive municipal parking as existing at the time of commencement
of operations at no cost to the CONCESSIONAIRE.
21.3 Grass mowing and exterior landscape maintenance outside the boundaries
of the Facility in a manner comparable to that in the remainder of the
Park(s). Any landscaping materials donated by CONCESSIONAIRE for
exterior landscaping shall become CITY property if and when used for
Facility exterior landscaping.
21.4 Design, construct and install infrastructure as described in the CITY's
Master Plan for the Regional Park including the construction of a
two-lane roadway from the Sample Road entrance to the Royal Palm
entrance to the Regional Park, all to coincide with the
CONCESSIONAIRE's construction timetable referred to in this Concession
Agreement.
21.5 Adequate parking for other users throughout the Regional Park in order
to accommodate CITY-generated activities not specifically allocated to
the CONCESSIONAIRE or to any other CONCESSIONAIRE operating within the
Regional Park.
21.6 Access to the lake, either in existence on the Effective Date or to be
created during the course of construction contemplated for this
CONCESSIONAIRE and other concessionaires in the Regional Park,
including canals. To the extent necessary or appropriate, the City
shall endeavor to provide easements, rights of way and other points of
ingress and egress to the lake and/or canals for irrigation purposes
and for the CONCESSIONAIRE'S activities, consistent with the
construction scheduling activities contemplated by Article 6,
hereinabove set forth.
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21.7 To keep and maintain the Park in a presentable and park-like
condition, including the main Park road and associated infrastructure
and landscaping on the premise that implementation of the Master Plan,
as amended, of the Park may not yet be completed at the time the
CONCESSIONAIRE's Facility is provided a certificate of occupancy by the
CITY.
ARTICLE 22
FACILITIES, EQUIPMENT, AND SERVICES PROVIDED BY CONCESSIONAIRE
The CONCESSIONAIRE, at its sole cost and expense, except as otherwise
provided for in Article 42, hereinafter set forth, shall provide and/or maintain
at the Facility:
22.1 Janitorial services within the Facility's boundaries.
It is CONCESSIONAIRE'S responsibility to collect garbage and trash
generated at the Facility and to provide/furnish its own trash removal.
22.2 Devices or registers for recording original sales as approved in
advance by the Contract Administrator pursuant to Article 14 above.
22.3 Installation and connection of utilities as existing to operating
equipment and, if to be metered, utility meters. CONCESSIONAIRE will be
responsible for all costs associated with utilities for the Facility.
Impact fees, as defined by the municipal code, shall not be charged to
the CONCESSIONAIRE.
22.4 All interior and exterior maintenance and repair, renovations and
improvements at the Facility.
22.5 Pest control at the Facility.
22.6 Public pay telephone(s) as separately contracted with supplier.
22.7 The prorata portion not to exceed two thousand and no/100 ($2,000.00)
dollars, of the cost incurred by the CITY in revising the Master Plan
for the Regional Park to accommodate the CONCESSIONAIRE'S operations
and other concessions granted by the CITY payable when approved by
Broward County and the City of Coral Springs.
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ARTICLE 23
EQUIPMENT INSTALLED BY CONCESSIONAIRE
23.1 All equipment, furnishings, signage, and advertising installed,
removed, or replaced by the CONCESSIONAIRE shall be in keeping with the
appropriate standards of decor at the Facility. The Contract
Administrator reserves the right to reasonably approve any such
equipment, signage, and advertising prior to or following such
installation. The Contract Administrator shall review documentation
concerning the foregoing within fourteen (14) days of its submittal by
CONCESSIONAIRE. The reasons for any non-approval shall be set forth in
writing no later than fourteen (14) working days after submittal of
such documentation. In the event such written notice of non-approval is
not mailed or otherwise transmitted to CONCESSIONAIRE within such
fourteen (14) day period, CITY shall be deemed to have approved the
foregoing to which the document relates. However, in all events,
CONCESSIONAIRE may replace any equipment, furnishings, signage or
advertising previously approved by the Contract Administrator, as the
case may be, that meets the plans and specifications for the same
without the prior approval of the Contract Administrator.
23.2 CONCESSIONAIRE agrees that all new equipment, furnishings, and
improvements provided shall meet the requirements of all applicable
building, fire, pollution, and other related codes.
23.3 CONCESSIONAIRE shall not alter or modify any portion of Improvements
constructed on the Property without first obtaining written approval
from the Contract Administrator whenever a regulatory permit may be
required for said alteration or modification. Such approval shall not
be unreasonably withheld.
23.4 CONCESSIONAIRE shall maintain a list of all business personal property
at the Facility subject to liens, leasing, or other security
arrangement and shall provide such list upon request by the Contract
Administrator. No security interests shall attach to this Concession
Agreement.
ARTICLE 24
MAINTENANCE RESPONSIBILITIES OF CONCESSIONAIRE;
APPEARANCE OF FACILITIES
CONCESSIONAIRE shall keep and maintain the Facility in good working
order and repair and in the same clean and orderly condition as it existed at
the commencement of operations, ordinary wear and tear excepted. CONCESSIONAIRE
shall assume the entire responsibility for all repair and maintenance whatsoever
in the Property and the Improvements. CONCESSIONAIRE shall have the right to
close the Facility and Improvements for a cumulative total time
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period of four (4) weeks during any calendar year for repairs and maintenance
provided, however, that CONCESSIONAIRE provides at least thirty (30) days
written notice to the Contract Administrator unless there exists an emergency or
force majeure which precludes the provision of such notice as described herein.
CONCESSIONAIRE shall keep the Property, the Facility and Improvements in a clean
and orderly condition and appearance at all times, shall collect and dispose of
garbage in receptacles provided by the CONCESSIONAIRE. CITY agrees to keep and
maintain the Park in the same clean and orderly condition and appearance as it
existed as of the commencement, and as otherwise described in this Concession
Agreement, at all times during the term hereof or any renewal thereof,
reasonable wear and tear excepted.
ARTICLE 25
CAPITAL IMPROVEMENTS AND REPAIRS
CONCESSIONAIRE has the responsibility for capital improvements to the
Facility. "Capital Improvements" means all expenditures for building or
structural additions, alterations or new structures, the depreciable life of
which, according to accepted accounting principles, is in excess of one (1)
year. All repairs, maintenance and equipment purchase, replacement or servicing
shall be the responsibility of the CONCESSIONAIRE.
CONCESSIONAIRE shall be responsible for the costs of all repairs,
maintenance and/or related replacement costs required to operate the Facilities
and all its displays, equipment, machinery, appliances, appurtenances, fixtures,
alterations, and systems (including, but not limited to, the plumbing and
electrical systems, wiring and conduits, heating and air conditioning systems).
Such repairs, maintenance and replacements, interior, ordinary as well as
extraordinary, and structural as well as non-structural, shall be made promptly
as and when necessary. All repairs, replacements and maintenance shall be of a
quality and class at least equal to the original work. CONCESSIONAIRE, when it
has knowledge of the same, shall advise Contract Administrator of necessary
repairs.
ARTICLE 26
DAMAGES
CONCESSIONAIRE shall repair all damage to the Facility caused by the
CONCESSIONAIRE, its employees, agents, customers, invitees, visitors, or
independent contractors contracting with the CONCESSIONAIRE.
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ARTICLE 27
LIABILITY FOR DAMAGE OR INJURY
The CITY shall not be liable for any damage or injury which may be
sustained by any party or persons at the Facility subject to the terms,
conditions, and provisions of Article 35, hereinafter set forth.
ARTICLE 28
DAMAGE OR DESTRUCTION OF PREMISES
If either the Facility or any structures therein are partially damaged,
but not rendered unusable for the purposes of this Concession Agreement, and
capable of being repaired within thirty (30) days, the damage shall be repaired
with due diligence by the CONCESSIONAIRE from the proceeds of the insurance
coverage policy and/or at its own cost and expense, and for the period of
CONCESSIONAIRE'S business interruption a pro rata adjustment shall be made as to
the Rent set forth above in Article 9 and other, similar payment guarantees.
In the event the Facility is completely destroyed or so damaged that it
will remain unusable for more than thirty (30) days, the CONCESSIONAIRE and the
CITY shall be under no obligation to repair and reconstruct the Facility, and
adjustment of the rent payable hereunder shall be proportionately made up to the
time of such damage or destruction, and this Concession Agreement shall cease
and terminate, and all adjustments which are proper including restoration of the
Property to a clean, neat, and usable condition shall be made accordingly.
Notwithstanding the foregoing, the CONCESSIONAIRE may, at its sole discretion at
its own cost, elect to reconstruct the Facility at its own cost and expense in
which case, this Concession Agreement shall ▇▇▇▇▇, but not terminate until such
reconstruction is completed and written notice of such completion is given in
accordance with the requirement hereof to the other party. If such damage or
destruction is covered by insurance, the proceeds thereof shall be made
available to CONCESSIONAIRE for the purpose of reconstruction. In the event
CONCESSIONAIRE, elects to reconstruct the Facility, CONCESSIONAIRE shall
promptly, after notifying CITY of such election, remove all debris resulting
from such damage to the Facility and to the extent that the removal of debris
under such circumstances is covered by insurance, the proceeds thereof shall be
made available to CONCESSIONAIRE. CONCESSIONAIRE shall promptly commence and
diligently prosecute reconstruction of the Facility to completion.
ARTICLE 29
CHANGE OF OPERATIONS HOURS DUE TO PUBLIC HEALTH RISK
In the event that the CITY, in the interest of public safety and
welfare, is required by any governing authority to undertake a mandatory closure
of the Park(s) or cancel activities, in whole or in part, or when, in its
discretion, the CITY determines it is necessary to close the Park(s) or cancel
activities, in whole or in
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part, based upon the occurrence of acts of nature or other circumstances which
may pose a public safety hazard, the CITY may adjust the Park and the Facility's
hours, in whole or in part, accordingly. In either event, the CONCESSIONAIRE
shall be entitled to an abatement or a reduction in the Rent due the CITY. The
CITY shall not be held responsible for any lost revenues or business activities
at the Facility resulting from the adjusted hours of operations at the Facility.
In the event the CITY, in its discretion, not to exceed three (3) calendar days,
as opposed to a mandatory closure required by any governing authority, elects to
close the Park(s) or requires CONCESSIONAIRE to reduce its hours of operation at
the Facilities for the reasons stated in this Article, the next Rent payment as
set forth in Article 9 shall be prorated and credited on an hour-by-hour basis
to reflect the reduced amount of hours of operation at the Facility. The formula
and methodology for pro-rating financial obligations of the CONCESSIONAIRE to
the CITY shall be as provided for in Article 19 hereinabove set forth.
ARTICLE 30
INGRESS AND EGRESS
Subject to rules and regulations, statutes and ordinances, and the
terms of this Concession Agreement, CITY represents and warrants that during the
term hereof, CONCESSIONAIRE, its agents, employees, patrons, invitees, suppliers
of services and furnishers of materials, shall have right of ingress and egress
without toll or charge to and from the Facility, twenty-four (24) hours a day.
In the event that the only ingress and egress to the Facility is through the
Park, the hours of operation for CONCESSIONAIRE shall be consistent with the
hours of operation of the Park.
Notwithstanding the foregoing, the ice rink and softball CONCESSIONAIRE
shall be permitted to function beyond regular Park hours. Therefore, the CITY
shall provide for the gating of the road within the Park such that the
CONCESSIONAIRE may remain open for business beyond normal Park hours without
motor vehicles having access to or from the CITY's Park.
ARTICLE 31
ASSIGNMENT, SUBLETTING, AND SUCCESSORS IN INTEREST
CONCESSIONAIRE shall not assign, sublet, mortgage, pledge, nor
otherwise encumber this Concession Agreement nor any portion thereof without
written approval of the Contract Administrator, which shall not be unreasonably
withheld. Unapproved assignment, subletting, mortgaging, pledging, or
encumbering shall be grounds for immediate termination of this Concession
Agreement except as herein provided.
Notwithstanding anything to the contrary contained in this Concession
Agreement, CONCESSIONAIRE, shall have the right to
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encumber its interest including vertical construction above the real property to
either an institutional lender or to a non- commercial investor/secured party in
all CONCESSIONAIRE-owned furnishings, equipment and personal property from time
to time by appropriate instrument if said property is not deemed a fixture. Any
equipment, furnishings or personal property attached to the real property which
can not be removed without significant alterations being required will be deemed
a fixture. All improvements consisting of the miniature golf courses and other
structures shall not be deemed fixtures for the purposes of this paragraph.
Hence, the CONCESSIONAIRE shall maintain the right and option to encumber its
interest in the Facility and the improvements thereon without the consent of the
Contract Administrator, so long as the encumbrance does not attach to the CITY's
interest in the real property.
Should a secured party foreclose its secured interest in the
CONCESSIONAIRE and/or this Concession Agreement, then, in that event, such
lender shall comply with each and every term, condition, and provision of this
Agreement as if such lender were the CONCESSIONAIRE including the payment of all
sums due the CITY. Should foreclosure occur, then, in that event, the Lender
shall dispose of its interests within twenty-four (24) calendar months
subsequent to foreclosure subject to the CITY's consent as set forth
hereinafter. Except, however, that to the extent that a buyer, acceptable to the
CITY for the business is identified within the twenty-four (24) month period,
then, the CITY shall extend the twenty-four (24) month period not to exceed an
additional twelve (12) months so long as all payments required under this
Contract are current and in good standing and the Buyer is demonstrably and in
good faith negotiations for the acquisition of the business to the reasonable
satisfaction of the CITY. In the event that the Lender fails to do so, then, the
CITY shall be permitted and authorized to enter the Facility and take possession
of same as if a termination without cause had occurred as set forth in paragraph
37.4, hereinafter set forth. The CITY shall retain the right to review and to
approve any sale or divesture of the lender's interest in this Concession
Agreement, such consent not to be unreasonably withheld.
The CITY, in its sole and absolute discretion may extend the time frames set
forth in this Article 31. The CITY shall exercise reasonableness in its
consideration of an extension request but may be arbitrary in its final decision
to extend based on all prevailing circumstances.
Subject to the CITY's notice of an existing lender, the lender shall receive a
copy of any notice of default delivered from the CITY to the CONCESSIONAIRE as
provided for in this Concession Agreement. The lender, once notified, may
request additional time over and above that granted to the CONCESSIONAIRE to
allow the lender to elect whether or not to cure the default itself or to take
other appropriate action. The CITY shall accept, where
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commercially reasonable, any cure by the CONCESSIONAIRE's lender as though it
were made by the CONCESSIONAIRE, subject to any other term, condition or
provision of this Concession Agreement.
It is agreed that all terms and conditions of this Concession Agreement
shall extend to and be binding on assignees, sublessees, and other successors as
may be approved by the CITY.
CONCESSIONAIRE shall be liable for acts and omissions by any
subcontractor affecting this Concession Agreement to the extent CONCESSIONAIRE
would be liable if such act or omission was committed by CONCESSIONAIRE.
ARTICLE 32
OWNERSHIP OF CONCESSIONAIRE
The ownership of CONCESSIONAIRE is very important to the CITY.
Therefore, the CITY reserves the right to terminate this Concession Agreement
any time a change in ownership involving more than twenty-five (25%) percent of
the ownership of the CONCESSIONAIRE has not been specifically approved by the
CITY. The CITY shall reject any proposed new owner on any reasonable ground.
Notwithstanding the foregoing, any officer or director of CONCESSIONAIRE, may,
in his or her sole and absolute discretion and without the approval of the
Contract Administrator, sell, pledge or otherwise transfer his or her interest
in CONCESSIONAIRE to family member(s) for estate planning purposes or for a
trust established to benefit family members so long as there is no financial or
operational impact to the Facility and the CITY receives notification of the
change in ownership. CONCESSIONAIRE agrees to provide to the Contract
Administrator, within three (3) business days after receipt of written notice
from Contract Administrator requesting same, an accurate list of all owners of
the CONCESSIONAIRE, showing the percentage of ownership of each owner. If all
CONCESSIONAIRE stock is registered with the Federal Securities and Exchange
Commission and the stock is publicly traded, the CONCESSIONAIRE is exempt from
the list requirement and change of ownership approval requirement of this
Article. However, notwithstanding the foregoing, the CONCESSIONAIRE agrees to
provide to the CITY the aforementioned information and shall notify the CITY
within ten (10) days of any changes in the directors or officers of the
CONCESSIONAIRE. The parties hereto recognize that the corporate structure of the
CONCESSIONAIRE may characterize the CONCESSIONAIRE as a wholly-owned subsidiary
of a parent company duly qualified and subject to the jurisdiction of the
Federal Securities and Exchange Commission.
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ARTICLE 33
PAYMENT AND PERFORMANCE BOND/IRREVOCABLE LETTER OF CREDIT
33.1 Construction--The CONCESSIONAIRE shall cause the General Contractor
hired in connection with the construction and completion of
improvements at the Facility to have Payment and Performance Bonds or
any irrevocable letter of credit obtained and delivered to the Contract
Administrator in the form attached hereto and made a part hereof as
Exhibit "E" or as otherwise approved by the CITY'S Financial Management
Department not less than ten (10) days prior to the anticipated
commencement of any construction. The Payment and Performance Bonds
shall be for the full amount of work and shall remain in effect until
completion of the work and payment for the improvements, free and clear
of all claims of mechanics, laborers and materialmen, and any others
participating in the construction activity. The Payment and Performance
Bonds shall be for the benefit of the CITY and the CONCESSIONAIRE, and
shall name the CITY as an additional obligee/insured. The surety shall
meet the following qualifications:
33.1.1 Each bond must be executed by a surety company of recognized
standing, authorized to do business in the State of Florida as
surety, having a resident agent in the State of Florida and
having been in business with a record of successful continuous
operation for at least five years.
33.1.2 The surety company shall hold a current certificate of
authority as acceptable surety on federal bonds in accordance
with United States Department of Treasury Circular 570,
Current Revisions. If the amount of the Bond exceeds the
underwriting limitation set forth in the circular, in order to
qualify, the net retention of the surety company shall not
exceed the underwriting limitation in the circular, and the
excess risks must be protected by coinsurance, reinsurance, or
other methods in accordance with Treasury Circular 297,
revised September 1, 1978 (31 DFR Section 223.10, Section
223.111). Further, the surety company shall provide CITY with
evidence satisfactory to CITY, that such excess risk has been
protected in an acceptable manner.
33.1.3 The surety company or bank/commercial lender shall have at
least the following minimum ratings or A- rated companies
listed in same Financial Size Category in the latest revision
of Best's Insurance Report:
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Best's Best's
Policy- Financial
holder's Size
Amount of Bond Ratings Category
-------------- ------- --------
500,001 to 1,000,000 A Class I
1,000,001 to 2,000,000 A Class II
2,000,001 to 5,000,000 A Class III
5,000,001 to 10,000,000 A Class IV
10,000,001 to 25,000,000 A Class V
25,000,001 to 50,000,000 A Class VI
50,000,001 or more A Class VII
33.2 Operations--Following construction of the Facility and prior to
commencement of operations, the CONCESSIONAIRE shall furnish to CITY an
Operations Performance Bond with a surety meeting the qualifications as
set forth below and in a form acceptable to CITY'S Financial Management
Department.
33.2.1 Operations Performance Bond or Letter of Credit. The
CONCESSIONAIRE shall furnish an Operations Performance Bond,
or irrevocable letter of credit or cash deposit (where
interest accrues, interest shall be payable to the
CONCESSIONAIRE once a year and invested by the CITY in a
customary money market, interest bearing instrument), to the
CITY'S Financial Management Department each year in a form
acceptable to the CITY with a surety meeting the
qualifications set forth by the CITY'S Financial Management
Department in the amount equal to six (6) times the minimum
monthly rental guarantee to be paid CITY pursuant to Article 9
herein. This Operations Performance Bond will be conditioned
solely upon the full and faithful performance of all covenants
of this Concession Agreement. The Operations Performance Bond
for the first year's operation shall be submitted to the CITY
before the commencement of operations at the Facility by
CONCESSIONAIRE. The CONCESSIONAIRE may, in lieu of the
Operations Performance Bond, but subject to the above
conditions set forth in this Article, deposit with the CITY an
irrevocable letter of credit or cash deposit in the amount
equal to six (6) times the Rent.
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ARTICLE 34
INSURANCE AND CONTRACTOR INDEMNIFICATION
34.1 CONCESSIONAIRE agrees to abide by and include the following provisions
in all contracts it enters into with successful Contractor(s) in
connection with the construction and completion of the improvements at
the Facility:
In consideration of Twenty-five Dollars ($25.00) and other
valuable consideration, the CONTRACTOR shall indemnify and
save harmless the CITY ("CITY"), its officers, agents and
employees, from or on account of any injuries or damages,
received or sustained by any person or persons during or on
account of any operations connected with the work to be
performed on the subject Property including warranty period;
or by or in consequence of any negligence (excluding sole
negligence of CITY), in connection with the same; or by use of
any improper materials or by or on account of any act or
omission of the said CONTRACTOR or its subcontractors, agents,
servants or employees.
CONTRACTOR agrees to indemnify and save harmless the CITY
including warranty period against any claims or liability
arising from or based upon the violation of any federal,
state, county or city laws, by-laws, ordinances or regulations
by the CONTRACTOR, his or her subcontractor, agents, servants
or employees. CONTRACTOR agrees to indemnify and save harmless
the CITY from all such claims and fees, and from any and all
suits and actions of every name and description that may be
brought against CITY on account of any claims, fees,
royalties, or costs for any invention or patent, and from any
and all suits and actions that may be brought against CITY
including warranty period for the infringement of any and all
patents or patent rights claimed by any person, firm, or
corporation.
CONTRACTOR further agrees to indemnify and save harmless the
CITY, its officers, agents and employees, for or on account of
any injuries or damages, received or sustained by any person
or persons resulting from any patent construction defects.
These
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indemnifications survive the term of this Contract. In the
event that any action or proceeding is brought against CITY by
reason of any such claim or demand, CONTRACTOR, upon written
notice from CITY shall resist and defend such action or
proceeding by counsel acceptable to CITY.
The indemnification provided above shall obligate the
CONTRACTOR to defend at his own expense or to provide for such
defense, at the CITY'S option, any and all claims of liability
and all suits and actions of every name and description that
may be brought against the CITY excluding only those which
allege that the injuries arose out of the sole negligence of
the CITY, which may result from the operations and activities
under this Contract whether the construction operations be
performed by the CONTRACTOR, its subcontractors or by anyone
directly or indirectly employed by either.
34.2 CONCESSIONAIRE agrees to include the following insurance language in
any agreement it enters into with any successful Contractor(s) and
CONCESSIONAIRE further agrees to provide to CITY, prior to commencement
of any improvements, Certificates of Insurance evidencing Contractor(s)
compliance with the requirements of this section:
Insurance Requirements:
A. Without limiting any of the other obligations or liabilities
of CONTRACTOR, CONTRACTOR shall provide, pay for, and
maintain in force until all of its work to be performed under
this Contract has been completed and accepted by CITY (or
for such duration as is otherwise specified hereinafter),
the insurance coverages set forth herein.
1. Workers' Compensation insurance to apply for all
employees in compliance with the "Workers'
Compensation Law" of the State of Florida and all
applicable federal laws. In addition, the
policy(ies) must include:
a. Employers' Liability with a limit of One
Hundred Thousand Dollars ($100,000.00) each
accident.
b. If any operations are to be undertaken on
or about navigable waters, coverage must
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be included for the U.S.
Longshoremen & Harbor Workers Act
and ▇▇▇▇▇ Act.
2. Comprehensive General Liability with minimum
limits of One Million Dollars
($1,000,000.00) per occurrence, combined
single limit for Bodily Injury Liability and
Property Damage Liability. Coverage must be
afforded on a form no more restrictive than
the latest edition of the Comprehensive
General Liability policy, without
restrictive endorsements, as filed by the
Insurance Services Office, and must include:
a. Premises and/or Operations.
b. Independent Contractors.
c. Products and/or Completed
Operations for contracts over Fifty
Thousand Dollars ($50,000.00) -
CONTRACTOR shall maintain in force
until at least three years after
completion of all work required
under the Contract, coverage for
Products and Completed Operations,
including Broad Form Property
Damage.
d. Explosion, Collapse and Underground
Coverages.
e. Broad Form Property Damage.
f. Broad Form Contractual Coverage
applicable to this specific
Contract, including any hold
harmless and/or indemnification
agreement.
g. Personal Injury Coverage with
Employee and Contractual Exclusions
removed, with minimum limits of
coverage equal to those required
for Bodily Injury Liability and
Property Damage Liability.
h. CITY is to be expressly included as
an "Additional Insured" in the name
of "City Commission of the City of
Coral Springs, Florida" with
respect to liability arising out of
operations performed for CITY by or
on behalf of CONTRACTOR or acts or
omissions of CITY in connections
with general supervision of such
operation.
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3. Business Automobile Liability with minimum
limits of Five Hundred Thousand Dollars
($500,000.00) per occurrence, combined
single limit for Bodily Injury Liability and
Property Damage Liability. Coverage must be
afforded on a form no more restrictive than
the latest edition of the Business
Automobile Liability policy, without
restrictive endorsements, as filed by the
Insurance Services Office, and must include:
a. Owned Vehicles.
b. Hired and Non-Owned Vehicles.
4. Builder's Risk Insurance for the
construction of above ground buildings
and/or structures is required. The coverage
shall be "All Risk" form for 100 percent of
the completed value, including CITY as a
named insured, with a deductible of not more
than Five Thousand Dollars ($5,000.00) each
claim.
5. Waiver of Occupancy Clause or
Warranty-Policy must be specifically
endorsed to eliminate any "occupancy clause"
or similar warranty or representation that
the building(s), addition(s) or structure(s)
in the course of construction shall not be
occupied without specific endorsement of the
policy. The policy must be endorsed to
provide that the Builder's Risk Coverage
will continue to apply until final
acceptance of the building(s), addition(s)
or structure(s) by the CITY.
6. Flood Insurance--When the buildings or
structures are located within an identified
special flood hazard area, flood insurance
must be afforded for the lesser of the total
insurable value of such buildings or
structures, or, the maximum amount of flood
insurance coverage available under the
National Flood Program.
B. If the initial insurance expires prior to the
completion of the work, renewal certificates of
insurance shall be furnished to the CITY thirty (30)
days prior to the previous certification's
expiration.
C. Notice of Cancellation and/or Restriction - The
policy(ies) must be endorsed to provide the City of
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Coral Springs with thirty (30) days notice of
cancellation and/or restriction.
D. The CONTRACTOR shall furnish to the designated
Contract Administrator Certificates of Insurance or
endorsements evidencing the insurance coverage
specified above within 15 days after notification
of award. The required Certificates of Insurance
shall name the types of policies provided, refer
specifically to this Contract, and state that such
insurance is as required by this Contract. The
Certificate of Insurance shall be in form similar
to and contain the information set forth in CITY
Form 00608.
E. The official title of the owner is "City of Coral
Springs, Florida." This official title shall be
used in all insurance documentation.
34.3 In the event CONCESSIONAIRE elects to perform any construction
work for which a CITY building permit is required for the
Facility, CONCESSIONAIRE agrees to indemnify CITY as a
Contractor, as provided for above in Section 34.1 for a period
of eighteen (18) months from the date of final completion of
the improvements.
34.4 In the event CONCESSIONAIRE elects to perform any construction
work contemplated herein, CONCESSIONAIRE agrees to maintain
the same insurance requirements as provided for in Section
34.2 above.
34.5 Without limiting any of the other liabilities of
CONCESSIONAIRE, CONCESSIONAIRE shall furnish evidence to the
CITY prior to commencement of operations and maintain during
the term of this Concession Agreement the following insurance:
34.5.1 Comprehensive General Liability Insurance in an
amount not less than One Million Dollars
($1,000,000.00) per occurrence combined single limit
for bodily injury and property damage. Coverage must
be afforded on a form no more restrictive than the
latest edition of the Comprehensive General
Liability policy, without restrictive endorsements
as filed by the Insurance Services Office and must
include:
a. Premises and/or Operations.
b. Independent Contractors.
As their interest may appear, CITY is to be included
as an "Additional Insured" in the name of
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"City Commission of the City of Coral Springs, Florida," with
respect to liability arising out of the Facility's operations
performed for CITY by or on behalf of CONCESSIONAIRE or acts
of omissions of CITY in connection with general supervision of
the Facility's operations.
34.5.2 If the company operates a company owned vehicle, business
Automobile Liability Insurance covering all owned, non-owned,
and hired vehicles used in connection with the Concession
Agreement in an amount not less than One Million Dollars
($1,000,000.00) combined single limit for bodily injury and
property damage. Coverage must be afforded on a form no more
restrictive than the latest edition of the Business Automobile
Liability Policy, without restrictive endorsements, as filed
by the Insurance Services Office.
34.5.3 Worker's Compensation Insurance--as required by the Worker's
Compensation Law of the state of Florida and all applicable
federal laws.
34.5.4 Fire and extended coverage insurance covering all property
both real and personal, with One Hundred percent (100%)
replacement value, naming CITY in the name of "City
Commission" as an additional payee.
34.5.5 CONCESSIONAIRE shall provide or cause its contractor to
provide Builder's Risk Insurance during any CONCESSIONAIRE
construction under this Concession Agreement, and
CONCESSIONAIRE shall provide any other insurance or security
that may be required, if applicable.
34.5.6 DRAM shop/liquor liability coverage.
34.6 The insurance coverage required under this Article shall include those
classifications, as listed in standard liability manuals, which most
nearly reflect the operations of CONCESSIONAIRE. All insurance policies
required above shall be issued by companies authorized to do business
under the laws of the state of Florida, with management and financial
strength qualifications as set forth by the CITY'S Financial Management
Department.
34.7 Certificates of Insurance will indicate that no modification,
cancellation or expiration shall be made without a thirty (30) day
written advance notice to the CITY, as certificate holder, and approval
by the CITY'S Financial Management Department.
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34.8 Compliance with the foregoing requirements shall not relieve
CONCESSIONAIRE of any liability and obligation under this Article or
under any other section of this Concession Agreement.
34.9 CONCESSIONAIRE shall provide to CITY not less than ten (10) days prior
to commencement of any activities at the Facility site Certificates of
Insurance evidencing the insurance coverage as specified above. The
required Certificates of Insurance shall not only name the types of
coverage provided, but also shall refer specifically to this Concession
Agreement and the particular sections contained therein in accordance
with the type of insurance which is being furnished, and shall state
that such insurance is as required by such sections of this Concession
Agreement. If the initial insurance expires prior to the completion of
the Concession Agreement, renewal Certificates of Insurance shall be
furnished thirty (30) days prior to the date of their expiration.
Insurance shall not be canceled without thirty (30) days prior written
notice to CITY, and must be endorsed to provide the same. Failure of
CONCESSIONAIRE to obtain and maintain proper amounts and types of
insurance under this Concession Agreement shall constitute a material
breach of this Concession Agreement by CONCESSIONAIRE.
34.10 CITY reserves the right to reasonably amend the insurance requirements
of CONCESSIONAIRE every three (3) years (the "Insurance Period") so
long as the increase does not exceed ten percent (10%) of the required
insurance coverages during the Insurance Period and at anytime
CONCESSIONAIRE makes a capital improvement on the Property. Any change
of insurance coverage in excess of ten percent (10%) shall require the
mutual approval of the CITY and the CONCESSIONAIRE.
34.11 CITY shall give CONCESSIONAIRE at least sixty (60) days written notice
of any new insurance requirements. CONCESSIONAIRE shall have sixty (60)
days from the date of receipt of the notice to discuss any objection to
the changes in the insurance requirements with the CITY'S Financial
Management Department before the new insurance requirements are deemed
effective.
ARTICLE 35
INDEMNIFICATION OF CITY
CONCESSIONAIRE shall at all times hereafter, indemnify, hold harmless
and defend CITY, its agents, servants and employees from any and all
claims, liability, loss, or cause of action of any kind or nature arising
out of the actions, or
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negligence, in whole or in part of the CONCESSIONAIRE, its officials,
subcontractors, agents, or employees, in the fulfillment of this
Concession Agreement. The CONCESSIONAIRE shall pay all claims and
losses of any nature whatever in connection therewith, and shall defend
all suits, in the name of the CITY when applicable, and shall pay all
costs and judgments which may issue thereon. The CONCESSIONAIRE shall
not be required to indemnify or defend the CITY, its officers, agents,
or employees, who are grossly negligent or have exhibited willful
misconduct.
ARTICLE 36
TERMINATION BY CITY
The occurrence of any of the following shall cause this Concession
Agreement to be terminated without notice by the CITY at its sole discretion
upon the terms and conditions set forth below:
36.1 TERMINATION WITHOUT NOTICE:
36.1.1 Assignment by the CONCESSIONAIRE for the benefit of creditors.
36.1.2 Abandonment or discontinuation by CONCESSIONAIRE of operations
hereunder. "Discontinuation" shall mean any closing (other
than a scheduled closing or closing necessitated by acts
beyond the control of the CONCESSIONAIRE) or failure to
provide all services or amenities for thirty (30) consecutive
days or more. "Abandonment" shall mean an implied or express
repudiation or renunciation of any operations under this
Concession Agreement or any material part thereof, subject to
the renovation and refurbishment authorization provided for in
this Concession Agreement.
36.1.3 The discovery of any material fraudulent statement in the
CONCESSIONAIRE'S proposal leading to award of this Concession
Agreement, within three (3) years from the Effective Date,
which significantly affects the CONCESSIONAIRE'S
qualifications to perform under the Concession Agreement
following notice by the CITY and an opportunity within thirty
(30) days for CONCESSIONAIRE to explain the matter to the
reasonable satisfaction of CITY. If the explanation is not
satisfactory to CITY, termination of the Agreement shall occur
without further notice required.
36.1.4 Unapproved change of ownership interest in CONCESSIONAIRE
and/or failure to submit the
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ownership list within the time frames more particularly in
Article 32 hereof.
36.1.5 Failure to cease immediately, after notice by hand- delivery
or overnight courier, any activity which causes limitation of
CITY'S use of the Park, unless the nature of the activity is
such that it is not possible for CONCESSIONAIRE to immediately
cease the activity and CONCESSIONAIRE has begun corrective
action to remedy the situation and is diligently pursuing the
matter until corrected.
36.1.6 The CONCESSIONAIRE falls sixty (60) days past the due date for
any sum or sums due the CITY under this Concession Agreement,
after receiving a thirty (30) day notice of such default from
the CITY.
36.1.7 If a Principal or Owner of CONCESSIONAIRE has been found
guilty of, regardless of final adjudication, or a plea of nolo
contendere to, any illegal conduct or activity which (i) is
customarily considered to be a "white collar crime" such as,
fraud, embezzlement or misappropriation of funds, or (ii)
involves an act of moral turpitude, or (iii) which results in
a felony conviction, unless CONCESSIONAIRE has demonstrated to
the satisfaction of the CITY within fifteen (15) days after
adjudication of said Principal or Owner that action is being
diligently taken to remove said Principal or Owner from any
aspect of the business' operation pending an appeal of the
conviction and, in no event shall such removal take longer
than One Hundred Twenty (120) days. If the conviction is
upheld on appeal, the other Principals or Owners shall take
diligent action to remove the Principal or Owner entirely from
the business and, in no event shall such permanent removal
take longer than One Hundred Twenty (120) days. For the
purposes of this section, the term "moral turpitude" shall
mean conduct or acts that tend to degrade the Principals or
Owners in society or bring them into public hatred, contempt,
scorn or ridicule, or that will tend to shock, insult or
offend the community or ridicule public morals or decency or
harm the image of the CITY by virtue of its association with
the facility.
36.1.8 Any illegal conduct or activity by an employee of
CONCESSIONAIRE, upon CONCESSIONAIRE'S failure to take
corrective action within forty-eight (48) hours after receipt
of written notice from the Contract Administrator or CITY.
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36.2 TERMINATION AFTER RECEIPT OF A FOURTEEN (14) DAY WRITTEN NOTICE BY
CERTIFIED OR REGISTERED MAIL TO ANY KNOWN ADDRESS OF CONCESSIONAIRE SET
FORTH IN ARTICLE 50 HEREOF FOR THE FOLLOWING:
36.2.1 Notice of any condition posing a threat to health or safety of
the public or patrons and not diligently remedied by
CONCESSIONAIRE within the fourteen (14) days. The CITY shall
extend the remedy period beyond fourteen (14) days if the
CONCESSIONAIRE cannot complete within fourteen (14) days and
is demonstrating due diligence to comply. A request for an
extension shall not be unreasonably withheld.
36.3 TERMINATION AFTER RECEIPT OF A THIRTY (30) DAY WRITTEN NOTICE BY
CERTIFIED OR REGISTERED MAIL TO ANY KNOWN ADDRESS OF CONCESSIONAIRE FOR
THE FOLLOWING:
36.3.1 Nonperformance of any covenant of this Concession Agreement
and failure of CONCESSIONAIRE to diligently remedy such
breach. The CITY shall extend the remedy period beyond thirty
(30) days if the CONCESSIONAIRE cannot complete within thirty
(30) days and is demonstrating due diligence to comply. A
request for an extension shall not be unreasonably withheld.
36.3.2 The conduct of any activity or the merchandising of any
product or service not specifically authorized herein. The
CITY shall extend the remedy period beyond thirty (30) days if
the CONCESSIONAIRE cannot complete within thirty (30) days and
is demonstrating due diligence to comply. A request for an
extension shall not be unreasonably withheld.
36.3.3 A judicial dismissal of litigation instituted by
CONCESSIONAIRE against CITY where the court finds there was a
complete absence of a justiciable issue of either law or fact.
36.4 In the event CITY terminates this Concession Agreement pursuant to
Sections 36.1, 36.2, or 36.3 above, any capital improvements made at
the Facility shall become the property of the CITY.
36.5 Notice for termination as specified under Sections 36.2 and 36.3 above
may be sent by the CITY'S Contract Administrator in the same manner as
described in Article 50 herein.
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36.6 TERMINATION WITHOUT CAUSE:
The City shall have the right to terminate this Concession
Agreement without cause upon a sixty (60) day written notice by
certified or registered mail to any known address of CONCESSIONAIRE.
This time period can be extended up to an additional thirty (30) days,
at CITY'S sole discretion, which discretion shall not be unreasonably
withheld, by CONCESSIONAIRE delivering a written request to CITY for
the same before completion of the initial sixty (60) day period. The
total notice period is not to exceed Ninety (90) days. CONCESSIONAIRE'S
notice extension request shall include sufficient explanation and
documentation to allow CITY to reasonably grant same. Should CITY elect
to terminate this Concession Agreement without cause, or should this
Concession Agreement be terminated prior to actual termination date
through CITY'S fault and through no fault of CONCESSIONAIRE, CITY will
pay to CONCESSIONAIRE the applicable "Compensation Amount" described
below.
36.6.1 Except as provided in Section 36.6.2, if the CITY terminates
this Concession Agreement without cause within the initial
forty-nine (49) year term or any extensions of said Agreement,
the CITY shall pay to the CONCESSIONAIRE the following
"Compensation Amount": (i) the cost of all approved permanent
improvements made by the CONCESSIONAIRE to the Facility
located at the Park (collectively the "Capital Improvements"),
subject to a "straight line" depreciation value reduction of
2% per year for the initial forty-nine year term for each
improvement and (ii) the value of the business (not including
improvements) as a going concern (excluding inventory) as
determined by an appraisal conducted by a nationally
recognized certified public accounting firm or other business
appraisal entity mutually agreed upon by the CITY and
CONCESSIONAIRE. The decision of the selected appraiser shall
be final, absolute and binding on both parties. The fee for
said appraisal shall be borne by the CITY.
36.6.2 In the event the CITY terminates this Concession Agreement
without cause within the initial forty-nine (49) year term or
any extensions of said Agreement as a result of a directive
from a state or federal government or authority or a court
order from a court of competent jurisdiction requiring the
CITY to use the Property for a purpose other than the intended
purpose set forth in this Concession Agreement, the CITY shall
be required to
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pay to CONCESSIONAIRE the following "Compensation Amount":
36.6.2.1 The cost of all approved permanent improvements made by the
CONCESSIONAIRE to the Facility located at the Park
(collectively the "Capital Improvements"), subject to a
"straight line" depreciation value reduction of 2% per year
for the initial forty-nine (49) year term for each
improvement.
36.6.2.2 The CITY'S right to terminate this Concession Agreement
pursuant to this subsection shall not be deemed to construe or
grant or deny CONCESSIONAIRE the right to seek additional
remedies or redress against the federal, state, county, or
other authority directing said action.
CITY and CONCESSIONAIRE agree that, in the event the CITY and
CONCESSIONAIRE mutually agree to have CONCESSIONAIRE provide the
services described herein at an alternate site, under the same terms
and conditions as provided herein, the compensation amount provided for
above shall not be applicable.
With respect to the costs of the permanent improvements referenced
above, CONCESSIONAIRE shall provide to CITY a list of Construction
Costs within ninety (90) days after completion of any and all approved
permanent improvements made to the Facility together with invoices,
canceled checks, contracts, and a report as required under Article 14.
Thereafter, the CITY will have sixty (60) days to review such
Construction Costs. In the event of a discrepancy of Ten Percent (10%)
or more between the report and CITY staff's evaluation of the
Construction Costs, the CITY shall have the right to hire an
independent certified public accountant to verify the costs. The
decision of the independent certified public accountant, the cost of
which shall be incurred by the CITY, as to the Construction Costs will
be final and absolute.
36.7 Notwithstanding the provisions contained in paragraph 36.6 through
36.6.1, the CITY covenants and agrees that it shall not terminate this
Concession Agreement without cause for a period of time commencing from
the commencement of operations as described in Article 2, "Term"
through and including five (5) years thereafter as an inducement for
the CONCESSIONAIRE to design, construct, finance, and commence
operations pursuant to this Concession Agreement.
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ARTICLE 37
TERMINATION BY CONCESSIONAIRE
CONCESSIONAIRE shall have the right upon thirty (30) calendar days from
receipt of written notice by certified or registered mail to CITY to terminate
this Concession Agreement at any time after the occurrence of one or more of the
following events:
37.1 Issuance by any court of competent jurisdiction of any injunction
substantially restricting the use of the Facility for the purposes set
forth herein, and the remaining in force of said injunction for a
period of more than thirty (30) calendar days.
37.2 A breach by the CITY of any of the terms, covenants, or conditions
contained in this Concession Agreement and the failure of the CITY to
remedy such breach or show diligent effort to remedy same for a period
of thirty (30) calendar days after receipt of written notice sent in
accordance with Article 50 hereof from the CONCESSIONAIRE, of the
existence of such breach, except that for the CITY's failure to remedy
such breach, the CONCESSIONAIRE shall be entitled to the compensation
set forth and described in Section 36.6.1, hereinabove.
37.3 The assumption by the United States Government or any authorized agency
thereof, or any other governmental agency, of the operation, control or
use of the Facility, or any substantial part, or parts, thereof in such
a manner as to substantially restrict CONCESSIONAIRE'S operations for a
period of thirty (30) calendar days or more.
37.4 Termination Without Cause: CONCESSIONAIRE shall have the right to
terminate this Concession Agreement without cause upon a sixty (60) day
written notice by certified or registered mail to CITY'S address as
stated in Article 50 herein, or as thereafter amended by CITY with
CONCESSIONAIRE'S knowledge. CITY reserves the right to unilaterally
extend this notice period up to a total of ninety (90) days. Should
CONCESSIONAIRE elect to terminate this Concession Agreement without
cause, CONCESSIONAIRE'S rights and privileges as stated with this
Concession Agreement shall cease at the termination date and
CONCESSIONAIRE may not be entitled to any reimbursement by CITY at
CITY'S option, for capital improvements made or fixtures installed at
the Facility by CONCESSIONAIRE.
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ARTICLE 38
COVENANT OF NON-SUBORDINATION
38.1 CONCESSIONAIRE covenants and agrees that during the term of this
CONCESSION AGREEMENT, that the CONCESSIONAIRE shall not subordinate its
interests in the CONCESSION AGREEMENT, in the Property upon which
improvements are placed or any other interest the CONCESSIONAIRE may
have in this CONCESSION AGREEMENT. The CONCESSIONAIRE acknowledges the
Non-Subordination Covenant contained herein and shall not, during the
course of the term hereof, request subordination of any of the CITY'S
interests as otherwise described and defined in this CONCESSION
AGREEMENT.
ARTICLE 39
COVENANT OF QUIET ENJOYMENT
The CITY covenants and agrees that, except as otherwise provided for in
this Agreement, the CONCESSIONAIRE'S quiet enjoyment of the land at all times
during the term hereof shall not be disturbed by any act of the CITY, or anyone
acting by, through, or under the CITY.
ARTICLE 40
NONDISCRIMINATION
40.1 CONCESSIONAIRE does hereby for itself, its personal representatives,
successors in interest, and assigns, as part of the consideration
hereof, covenant and agree that:
40.1.1 No person on the grounds of race, color, religion, national
origin, sex, age, or handicap shall be excluded from
participation in, be denied the benefits of or be otherwise
subjected to discrimination in the use of said Facility or in
said CONCESSIONAIRE'S programs, policies or special events.
40.1.2 That in the construction of any improvements on, over, or
under such land and the furnishings of services thereon, no
person on the grounds of race, color, religion, national
origin, or sex shall be excluded from participation in, be
denied the benefits of, or otherwise be subjected to
discrimination.
40.2 CONCESSIONAIRE shall fully comply with its obligations under the
Americans with Disabilities Act (ADA), including Title I and Title II.
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40.3 In the event it is judicially or administratively finally
determined with all rights of appeal and review exhausted that a breach
of any of the above nondiscrimination covenants was committed by any of
the principals, owners, or the Facility Manager of CONCESSIONAIRE, then
CITY shall have the right to terminate this Concession Agreement and
re-enter and repossess said Facility thereon and hold the same as if
said Agreement had never been made or issued, except as provided in
Article 36.4. The CONCESSIONAIRE shall prior to the commencement of
operations deliver to the CITY for its review and approval a "Policy
Manual" governing personnel policies and guidelines affecting the
CONCESSIONAIRE's business operations.
40.4 CONCESSIONAIRE shall not discriminate against any employee or volunteer
or applicant to be employed or suspended in the performance of the
Concession Agreement with respect to hiring, tenure, terms, conditions
or privileges to employment or volunteering because of age, sex or
physical handicap (except where based on a bona fide occupational
qualification); or because of marital status, color, religion, national
origin or ancestry.
40.5 CONCESSIONAIRE agrees to provide the Contract Administrator with its
Affirmative Action Plan prior to the commencement of operations under
this Concession Agreement.
ARTICLE 41
RULES AND REGULATIONS
The CONCESSIONAIRE will observe, obey, and comply with all ordinances
and regulations promulgated thereunder not in conflict herewith and adopted by
the CITY and all laws, ordinances and/or rules and regulations of other
governmental units and agencies having lawful jurisdiction, which may be
applicable to CONCESSIONAIRE'S operations under this Concession Agreement.
CONCESSIONAIRE specifically acknowledges that it will not undertake any activity
which shall cause challenge to the CITY'S ownership or right to undertake
otherwise authorized activities or impose reasonable regulations at the Park and
will immediately cease such activity upon notice from the CITY or Contract
Administrator.
ARTICLE 42
PAYMENT OF OBLIGATIONS
42.1 CONCESSIONAIRE shall pay any and all taxes and other costs lawfully
assessed against its business and legal interest in the Facility, the
Improvements, and/or the operations under this Concession Agreement;
provided,
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however that CONCESSIONAIRE shall not be deemed to be in default of its
obligations under this Concession Agreement for failure to pay such
taxes pending the outcome of any legal proceedings instituted to
determine the validity or amount of such taxes and/or other costs.
42.2 Notwithstanding the foregoing, the CITY has carefully considered the
public purposes associated with this Concession Agreement and by virtue
thereof hereby exempts the CONCESSIONAIRE from the payment of all
CITY-imposed or CITY-required impact fees, application fees, and those
costs and expenses otherwise required by the CITY's Code of Ordinances.
All non-CITY costs and expenses associated with this Concession
Agreement shall be borne solely by the CONCESSIONAIRE.
ARTICLE 43
EMERGENCY EVACUATION AND HURRICANE PLAN
The CONCESSIONAIRE shall provide to the Contract Administrator
emergency evacuation and hurricane plans consistent with the plans of the CITY'S
Parks and Recreation Division for that Park. These plans shall be detailed
procedures of actions to be taken by CONCESSIONAIRE and its employees or agents
if an evacuation need or hurricane alert warning is present. Hurricane plans are
to be initially submitted to the Contract Administrator and annually updated or
amended by CONCESSIONAIRE by the second Tuesday of May each year of this
Concession Agreement. Evacuation plans are to be initially submitted to the
Contract Administrator within fifteen (15) days following commencement of
operations at the Facility by CONCESSIONAIRE, and an updated or amended plan is
to be submitted by the second Tuesday of May during each year of this Concession
Agreement. CITY will furnish a copy of CITY's plan to CONCESSIONAIRE each year
and the CONCESSIONAIRE shall design its Plan accordingly, thereafter.
The CONCESSIONAIRE shall cooperate with the CITY during circumstances
described in this Article so as to make available the Facility as a hurricane
shelter or as an evacuation center to serve, the health, safety, and welfare of
the citizens and residents of the CITY. The parties shall mutually cooperate to
coordinate the use of the Facility should such an occurrence arise during the
term hereof.
ARTICLE 44
INSPECTION BY CITY
The Contract Administrator or designee shall have the authority to make
periodic reasonable inspections of the Facility and equipment and operations
during normal operating hours to determine if such are being maintained in a
neat and orderly
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condition. Such periodic inspections may also be made at the Contract
Administrator's or designee's discretion to determine whether the CONCESSIONAIRE
is operating in compliance with the terms and provisions of this Concession
Agreement. All inspections shall be conducted in a manner so as not to interfere
with the normal operations of the Facility.
ARTICLE 45
EMERGENCY REPAIRS BY CITY
45.1 Emergency Repairs to Facility: In the event that the CONCESSIONAIRE
does not cause any repair or "emergency repair" to be made to the
Facility after a reasonable time, CITY may then cause all the needed
repair to be made. An emergency repair shall mean one that is related
to a health, safety or liability issue. In such event, the CITY shall
have the absolute right to make the repairs to the Facility operated
under this Concession Agreement, free from any and all liability to the
CONCESSIONAIRE for loss of business or damages or any nature whatsoever
during the making of such emergency repairs, except for such damage
caused by the sole negligence or intentional misconduct of the CITY and
where not otherwise indemnified by the CONCESSIONAIRE. CITY shall give
CONCESSIONAIRE reasonable advance notice where CITY discovers needed
emergency repairs at the Facility and where CONCESSIONAIRE is not in
the process of repairing same. CITY shall be reimbursed by
CONCESSIONAIRE for the reasonable costs incurred as a result of the
said repairs.
45.2 Emergency Repairs to Property: In the event it becomes necessary for
CITY to enter the Property in order for CITY to conduct emergency
repairs to CITY owned equipment or facilities beneath the Property,
CITY shall give CONCESSIONAIRE emergency notice pursuant to Article 50
hereof and shall perform such emergency repair work in an expeditious
manner causing the least possible interference to CONCESSIONAIRE'S
operations, and shall diligently prosecute such emergency repairs to
completion. Upon completion of the emergency repairs, CITY shall
restore the Property to the condition in which it existed prior to the
emergency repairs becoming necessary. In the event emergency repair
work is performed by other than CITY employees, CITY shall cause such
other party to indemnify and hold CONCESSIONAIRE harmless to the same
extent CONCESSIONAIRE is required to have its contractors indemnify
CITY pursuant to Section 34.1 and 34.2 hereof.
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ARTICLE 46
TERMINATION OF CONTRACT
46.1 The CONCESSIONAIRE, within forty-five (45) calendar days following the
termination of this Concession Agreement, shall forthwith remove all of
its personal property from the Property. Any personal property of
CONCESSIONAIRE not removed in accordance with this Article within
forty-five (45) days following termination of this Concession Agreement
shall become property of the CITY subject to the CITY'S right to
recover disposal costs incurred, if any.
It is the intention of the parties to this Concession Agreement that
all furnishings and equipment purchased or leased by CONCESSIONAIRE,
except those permanently affixed to buildings or structures, as defined
under the laws of the state of Florida, shall be the personal property
of the CONCESSIONAIRE.
46.2 Upon termination of this Concession Agreement for any reason and the
removal of all personal property by CONCESSIONAIRE, the CONCESSIONAIRE
shall deliver the Property to the CITY in substantially similar
condition than the same was at commencement of this Concession
Agreement, loss by fire or other casualty and ordinary wear and tear
excepted . The Contract Administrator shall have the first right of
refusal within thirty (30) calendar days of termination of this
Concession Agreement to elect to purchase any portion of the
CONCESSIONAIRE'S personal property in the Facility and pay to the
CONCESSIONAIRE the fair market value thereof as mutually agreed by the
parties hereto.
46.3 In the event the CITY terminates this Agreement for cause, CITY, at its
option, may require CONCESSIONAIRE to remove any permanent improvement
or combination thereof excluding irrigation.
ARTICLE 47
CONDEMNATION
This Agreement shall terminate if the entire Property and Facility are
taken by condemnation or eminent domain or if such taking is of a substantial
nature that the Facility cannot be reasonably used for the intended purpose.
Nothing in this Agreement shall be deemed or construed to grant CONCESSIONAIRE
any right to receive or share in a condemnation or eminent domain award with
respect to the Property or Facility. Instead, the right, if any, of the
CONCESSIONAIRE to share in a condemnation or eminent domain award shall be based
upon and shall be consistent with existing Florida law.
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ARTICLE 48
APPROVALS
Except as provided otherwise, whenever any approvals are required
hereinabove by either party, they shall be reasonable, not unreasonably withheld
or charged for except as may be required by the municipal code of the City of
Coral Springs or any other governmental agency having jurisdiction over the
Facility.
The reasons for any non-approval shall be set forth in writing, no
later than forty-five (45) days after submittal of the request of approval or
after that action by CONCESSIONAIRE which, pursuant to this Agreement, requires
approval. In the event CITY's reasons for any non-approval are not received in
writing by CONCESSIONAIRE within such forty-five (45) day period, CITY shall be
deemed to have approved.
ARTICLE 49
INDULGENCE NOT WAIVER
The indulgence of either party with regard to any breach or failure to
perform any provision of this Concession Agreement shall not be deemed to
constitute a waiver of the provision or any portion of this Concession
Agreement, either at the time of the breach or when the failure occurs or at any
time throughout the term of this Concession Agreement. Payment of any rent due
pursuant to Article 9 herein shall not be deemed to constitute a waiver of a
breach of any other provision of this Agreement.
ARTICLE 50
NOTICES
Whenever either party desires to give notice unto the other, it must be
given by written notice, sent by registered or certified United States mail,
with return receipt requested, postage pre-paid, addressed to the party for whom
it is intended, at the place last specified, and the place for giving of notice
in compliance with the provisions of this Article. For emergency situations,
notice may be sent by hand-delivery or overnight courier, or facsimile transfer
which bears a confirmation receipt of transfer or a signed facsimile receipt.
Either party may change the address at which notice is to be given by giving
notice as provided in this Article. For the present, the parties designate the
following as the respective places for giving of notice, to-wit:
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FOR CITY:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
a Municipal Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Department of Leisure Services Development
With Copy To:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Deputy City Attorney
Josias & Goren, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ -- (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile
FOR CONCESSIONAIRE:
▇.▇. ▇▇▇▇▇▇
CAN AM Investment Group, Inc.
a Florida corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ -- (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile
With a Copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE 51
PUBLIC ENTITY CRIME STATEMENT AND DRUG FREE
WORKPLACE CERTIFICATION
CONCESSIONAIRE shall submit to the Contract Administrator prior to
execution of this Concession Agreement the following forms:
a. A completed Public Entity Crime Statement pursuant to
Section 287.133(3)(a), Florida Statutes, in the form
attached hereto and made a part hereof as Exhibit "F,"
and
b. A completed Drug Free Workplace Certification in the form
attached hereto and made a part hereof as Exhibit "G."
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ARTICLE 52
CONTRACT ADMINISTRATOR AND CONCESSIONAIRE'S
DESIGNATED REPRESENTATIVE
The Contract Administrator for the CITY for this Concession Agreement
shall be appointed by the City Manager. The CONCESSIONAIRE'S Designated
Representative for this Concession Agreement is ▇.▇. ▇▇▇▇▇▇. In administration
of this Agreement, as contrasted with matters of policy, all parties may rely
upon the instructions or determinations made by the respective Contract
Administrator and the Designated Representative. CONCESSIONAIRE may, from time
to time, in its absolute discretion, change its designated representative upon
written notice to CITY given in accordance with Article 50 hereof.
ARTICLE 53
REMEDIES
In the event of a breach of any of the terms or conditions of this
Concession Agreement, it is specifically acknowledged and agreed that either
party shall, in addition to all other remedies which may be available in law or
equity, have the right to enforce this Agreement by specific performance,
injunctive relief, prohibition or mandamus to compel the other party to abide by
the terms of this Agreement.
ARTICLE 54
INTERPRETATIONS
54.1 This Concession Agreement and the exhibits and attachments hereto,
and other documents and agreements specifically referred to
herein, constitute the entire, fully integrated Agreement between
the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous verbal or written
agreements between the parties with respect to the subject matter
hereof, excepting any past or contemporaneous written or verbal
agreements expressly and clearly incorporated by reference within
the four corners of this Concession Agreement. This Concession
Agreement may be amended only by written document, properly
authorized, executed, and delivered by both parties hereto. For the
CITY, appropriate authorization shall be construed to mean
appropriate formal action by the CITY. This Concession Agreement
shall be interpreted as a whole unit and section headings are for
convenience only. Waiver of any breach under this Agreement shall
not constitute waiver of any other breach. Invalidation of any
portion of this Concession Agreement shall not automatically
invalidate
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the entire Concession Agreement. All interpretations shall be governed
by laws of the state of Florida.
54.2 Any decisions reached by the Contract Administrator provided for in
this Concession Agreement and not disputed within forty-five (45) days
by the CONCESSIONAIRE, shall be final.
54.3 Any decisions reached by the Contract Administrator provided for in
this Concession Agreement shall be subject to review by the City
Manager and ultimately, the City Commission of the City of Coral
Springs, Florida. Review by the City Manager or the City Commission
shall be conducted in the normal course of business with all the
decisions of the City Commission to be final.
ARTICLE 55
JOINT PREPARATION
The preparation of this Concession Agreement has been a joint effort of
the parties and the resulting document shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the
other.
ARTICLE 56
SECURITY
The Contract Administrator makes no warranties as to any obligation to
provide security for the Facility, outside of standard security measures
supplied for the Park in general. CONCESSIONAIRE may provide its own specialized
security for the Facility, subject to the Contract Administrator's written
approval. If CONCESSIONAIRE provides security for the Facility, the
CONCESSIONAIRE is responsible only for activities at the Facility and not the
Park. Absence of said CONCESSIONAIRE'S security measures shall not increase the
CITY'S or the Contract Administrator's security obligation. The CITY and the
Contract Administrator shall not be responsible for any damage done at the
Facility relating to security. The CITY shall provide non-sworn officers for
Park security otherwise contemplated by the terms, conditions, and provisions
hereof. The CITY's Park Ranger shall be on duty only in Park operating areas and
only for Common Areas and not for the Facility described in this Concession
Agreement. The CONCESSIONAIRE shall not be responsible for general park security
of any kind, sort or description, unless specifically authorized and requested
and pursuant to a written document in equal dignity herewith. To best protect
the health, safety, and welfare of the citizens and residents of Coral Springs,
the parties hereto, shall reasonably attempt to cross-train and cross-reference
the CITY's police operations with the security activities at the park and at the
Facility. The parties further recognize the importance of
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continuous cooperation and communication on issues of security and related
activities affecting the use of public property.
ARTICLE 57
ADVERTISING
CONCESSIONAIRE will provide Dasher Board Advertising (two (2) panels
per arena), at no cost to the CITY, for community based advertising in years
1-10 of the Concession Agreement. CONCESSIONAIRE, in conjunction with the
Contractor Administrator, will make arrangements for the City to provide
community based programs for its residents to a maximum of $5,000.00 per year
for the first 10 years of the Concession Agreement, at no cost to the CITY.
ARTICLE 58
ESTOPPEL CERTIFICATES
CITY, through the Contract Administrator, the CONCESSIONAIRE's lender,
if any, and the CONCESSIONAIRE agree, upon not less than thirty (30) days prior
written request by one to the other, to execute and deliver to the requesting
party a statement in writing setting forth whether or not this Concession
Agreement is unmodified and in full force and effect (or, if there have been
modifications, that the same is in full force and effect as modified, and
providing copies of any written modifications), and the date to which the rent,
payment of percentage fees and other charges have been paid, if any, and, to the
best of the CITY'S knowledge, whether or not any violations of this Concession
Agreement are in existence as of the date of said statement, it being intended
that any statement delivered pursuant to this Article may be relied upon by any
assignee of CONCESSIONAIRE or any holder of a security interest in equipment,
trade fixtures and merchandise.
ARTICLE 59
MISCELLANEOUS PROVISIONS
59.1 Counterparts. This Agreement may be executed in any number of
counterparts, any one and all of which shall constitute the Contract of the
parties.
59.2 Amendment. No modification or amendment of this Agreement shall be of
any force or effect unless in writing executed by the parties hereto.
59.3 Attorneys' Fees. If any party obtains a judgment against any other
party by reason of breach of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees
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and costs, including paralegal costs, at both the trial and appellate levels.
59.4 Governing Law. This Agreement shall be interpreted in accordance with
the laws of the State of Florida, both substantive and remedial. Venue of all
proceedings shall be in Broward County, Florida.
59.5 Entire Agreement. This Agreement set forth the entire agreement
between the parties hereto and all subject matters herein and supersedes all
prior and contemporaneous negotiations, understandings and agreements, written
or oral, between the parties.
59.6 Captions, Headings, Etc. Captions, headings, section and subsection
numbers in this Agreement are for convenience and reference only, and shall
have no effect upon the meaning of any of the terms or provision herein.
IN WITNESS WHEREOF, the parties have made and executed this Concession
Agreement on the respective dates noted herein for each party: CITY through its
City Commission of Coral Springs, signing by and through its Mayor, authorized
to execute same by City Commission action on the 4th day of April,
1995, and CAN AM Investment Group, Inc., signing by and through its
President/Secretary, duly authorized to execute same.
CITY
CITY OF CORAL SPRINGS, a municipal
corporation organized and existing under the
laws of the State of Florida
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, MAYOR
APPROVED AS TO FORM BY: ATTEST:
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CITY CLERK
DEPUTY CITY ATTORNEY
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CONCESSIONAIRE
ATTEST: CAN AM INVESTMENT GROUP, INC.
a Florida corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By /s/ ▇. ▇. ▇▇▇▇▇▇
-----------------------------------
---------------------------- ▇. ▇. ▇▇▇▇▇▇
Secretary Title: President/Secretary
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57
EXHIBIT "A"
APPROVED ACTIVITIES
ACTIVITIES EXCLUSIVE TO THE PARK:
* All ice and in-line skating, figure skating, hockey, and
related activities
* Sale of all ice and in-line skating and hockey-related
merchandise and sundry items
* All ice and in-line skating and hockey equipment repairs
* All skating and hockey special events
(The term "skating" used above shall mean all ice skating, roller skating, and
in-line skating where applicable)
ACTIVITIES EXCLUSIVE TO THE FACILITY:
* Beverage sales including soft drinks, juices and all
other non-alcoholic beverages/drinks, both can and
fountain
* Beer and wine, both can and draft and/or by the glass
* Soft drink vending machines
* Amusement game machines, not to exceed ten (10), in
addition to two (2) hockey-related amusement devices
(i.e., "air-hockey," or similar game)
* Food and snack sales
* Corporate events
* Birthday parties
* Charity events
* Exhibitions
* Tournaments (Local, Regional and International)
58
EXHIBIT "B"
SITE PLAN
* Concessionaire's master plan of facility
* City/Parks and Recreation Department master plan of park
59
EXHIBIT "C"
PROPERTY DESCRIPTION
4 acres +/- in the southwest portion for Parcel "M", Coral Springs
Regional Park Addition, ▇▇ ▇▇▇, ▇▇ ▇▇
▇▇
EXHIBIT "D"
OPERATING SCHEDULE
- Seven Days Per Week 5:00 a.m. - 2:00 a.m.
- Special Event Schedule - 24 hours subject to Contract
Administrator's approval pursuant to paragraph 19.1
- At Concessionaire's Option, with notice to the City,
Concessionaire may close for the following holidays:
New Years Day
Easter
Memorial Day
July 4th
Jewish New Year
Thanksgiving
Christmas Day
61
EXHIBIT "E"
PAYMENT AND PERFORMANCE BONDS
00719. FORM OF PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
That we __________________________, as Principal, hereinafter called
CONTRACTOR/CONCESSIONAIRE, and ____________________, as Surety, are bound to the
City Commission of the City of Coral Springs, Florida, as Obligee, hereinafter
called CITY, in the amount of ______________ Dollars ($__________) for the
payment whereof CONTRACTOR/CONCESSIONAIRE and Surety bind themselves, their
heirs, executors, administrators, successors and assigns, jointly and severally.
WHEREAS, CONTRACTOR/CONCESSIONAIRE has by written agreement entered
into a Contract, Bid/Contract No.: ____________, awarded the _____________ day
of ________________________, 19______, with CITY for construction and operation
of a multi-facility softball complex, in accordance with the Contract Documents
prepared by _____________________ which Contract Documents are by reference made
a part hereof, and for the purposes of this Bond are hereafter referred to as
the "Contract";
THE CONDITION OF THIS BOND is that if CONTRACTOR/CONCESSIONAIRE:
1. Performs the Contract for construction of _________________,
the Contract being made a part of this Bond by reference, at
the times and in the manner prescribed in the Contract; and
2. Pays CITY all losses, damages, expenses, costs and attorneys
fees including appellate proceedings, that CITY sustains as a
result of default by CONTRACTOR/CONCESSIONAIRE under the
Contract; and
62
3. Performs the guarantee of all work and materials furnished under the
Contract for the time specified in the Contract; then THIS BOND IS
VOID, OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT.
Whenever CONTRACTOR/CONCESSIONAIRE shall be, and declared by CITY to
be, in default under the Contract, CITY having performed CITY'S
obligations thereunder, the Surety may promptly remedy the default, or
shall promptly:
3.1. Complete the Contract in accordance with its terms and
conditions; or
3.2. Obtain a bid or bids for completing the Contract in
accordance with its terms and conditions, and upon
determination by Surety of the lowest responsible Bidder,
or, if CITY elects, upon determination by CITY and Surety
jointly of the lowest responsible Bidder, arrange for a
contract between such Bidder and CITY, and make available
as work progresses (even though there should be a default
or a succession of defaults under the Contract or
Contracts of completion arranged under this paragraph)
sufficient funds to pay the cost of completion less the
balance of the Contract Price; but not exceeding,
including other costs and damages for which the Surety
may be liable hereunder, the amount set forth in the
first paragraph hereof. The term "balance of the
Contract Price," as used in this paragraph, shall mean
the total amount payable by CITY to
CONTRACTOR/CONCESSIONAIRE under the Contract and any
amendments thereto, less the amount properly paid by CITY
to CONTRACTOR/CONCESSIONAIRE.
No right of action shall accrue on this bond to or for the use of any
person or corporation other than CITY named herein.
The Surety hereby waives notice of and agrees that any changes in or
under the Contract Documents and compliance or noncompliance with any
formalities connected with the Contract or the changes does not affect
Surety's obligation under this Bond.
Signed and sealed this ______ day of _______________, 19_____.
63
FORM OF PERFORMANCE BOND
(Continued)
WITNESSES:
----------------------------------
(Name of Corporation)
-----------------------------
Secretary By
--------------------------------
(Signature and Title)
(CORPORATE SEAL)
----------------------------------
(Type Name and Title signed above)
IN THE PRESENCE OF: INSURANCE COMPANY:
By
----------------------------- --------------------------------
Agent and Attorney-in-Fact
Address:
----------------------------- --------------------------
(Street)
----------------------------- ----------------------------------
(City/State/Zip Code)
Telephone No.:
--------------------
64
00720. FORM OF PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS:
That we _________________________________, as Principal, hereinafter
called CONTRACTOR/CONCESSIONAIRE, and ___________ - ______________, as Surety,
are bound to the City of Coral Springs of the City of Coral Springs, Florida, as
Obligee, hereinafter called CITY, in the amount of _______________________
Dollars ($____________) for the payment whereof CONTRACTOR/CONCESSIONAIRE and
Surety bind themselves, their heirs, executors, administrators, successors and
assigns, jointly and severally.
WHEREAS, CONTRACTOR/CONCESSIONAIRE has by written agreement entered
into a Contract, Bid/Contract No.: __________, awarded the __________ day
of_____________________, 19______, with CITY for construction and operation of a
multi-facility softball complex, in accordance with the Contract Documents
prepared by _________________________ which Contract Documents are by reference
made a part hereof, and for the purposes of this Bond are hereafter referred to
as the "Contract";
THE CONDITION OF THIS BOND is that if CONTRACTOR/CONCESSIONAIRE:
1. Pays CITY all losses, damages, expenses, costs and
attorneys fees including appellate proceedings, that CITY
sustains because of default by CONTRACTOR/CONCESSIONAIRE
under the Contract; and
65
2. Promptly makes payments to all claimants as defined by Florida
Statute 225.05(1) for all labor, materials and supplies used directly
or indirectly by CONTRACTOR/CONCESSIONAIRE in the performance of the
Contract;
THEN CONTRACTOR'S/CONCESSIONAIRE'S OBLIGATION SHALL BE VOID; OTHERWISE,
IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE
FOLLOWING CONDITIONS:
2.1. A claimant, except a laborer, who is not in privity
with CONTRACTOR/CONCESSIONAIRE and who has not
received payment for its labor, materials, or
supplies shall, within forty-five (45) days after
beginning to furnish labor, materials, or supplies
for the prosecution of the work, furnish to
CONTRACTOR/CONCESSIONAIRE a notice that he intends
to look to the bond for protection.
2.2. A claimant who is not in privity with
CONTRACTOR/CONCESSIONAIRE and who has not received
payment for its labor, materials, or supplies shall,
within ninety (90) days after performance of the
labor or after complete delivery of the materials or
supplies, deliver to CONTRACTOR/CONCESSIONAIRE and
to the Surety, written notice of the performance of
the labor or delivery of the materials or supplies
and of the nonpayment.
2.3. No action for the labor, materials, or supplies may be
instituted against CONTRACTOR/CONCESSIONAIRE or the Surety
unless the notices stated under the preceding conditions (2.1)
and (2.2) have been given.
2.4. Any action under this Bond must be instituted in accordance
with the Notice and Time Limitations provisions prescribed in
Section 255.05(2), Florida Statutes.
The Surety hereby waives notice of and agrees that any changes in or
under the Contract Documents and compliance or noncompliance with any
formalities connected with the Contract or the changes does not affect
the Surety's obligation under this Bond.
Signed and sealed this ____ day of _________________, 19____.
66
FORM OF PAYMENT BOND
(Continued)
WITNESSES:
----------------------------------
(Name of Corporation)
-----------------------------
Secretary By
--------------------------------
(Signature and Title)
(CORPORATE SEAL)
----------------------------------
(Type Name and Title signed above)
IN THE PRESENCE OF: INSURANCE COMPANY:
By
----------------------------- --------------------------------
Agent and Attorney-in-Fact
Address:
----------------------------- --------------------------
(Street)
----------------------------- ----------------------------------
(City/State/Zip Code)
Telephone No.:
--------------------
67
EXHIBIT "F-1"
PUBLIC ENTITY CRIME STATEMENT
SWORN STATEMENT UNDER SECTION 287.133(3)(A),
FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES
THIS FORM MUST BE SIGNED IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICER
AUTHORIZED TO ADMINISTER OATHS.
1. This sworn statement is submitted to the City of Coral Springs in
conjunction with that certain Concession Agreement with respect to
__________________________________________________ whose business
address is ____________________________________ and whose Social
Security number is __________________.
2. I understand that a "public entity crime" as defined in
Paragraph 287.133(1)(g), Florida Statutes, means a violation
of any state or federal law by a person with respect to and
directly related to the transaction of business with any
public entity of with an agency or political subdivision or
any other state or with the United States, including, but not
limited to, any bid or contract for goods or services to be
provided to any public entity or an agency or political
subdivision of any other state or of the United States and
involving antitrust, fraud, theft, bribery, collusion,
racketeering, conspiracy, or material misrepresentation.
3. I understand that "convicted or conviction" as defined in
Paragraph 287.133(1)(b), Florida Statutes, means a finding of
guilt or a conviction of a public entity crime, with or
without adjudication of guilt, in any federal or state trial
court of record relating to charges brought by indictment or
information after July 1, 1989, as a result of a jury verdict,
non-jury trial, or entry of a plea of guilty or nolo
contendere.
4. I understand that an "affiliate" as defined in Paragraph
287.133(1)(a) Florida Statutes, means:
A. A predecessor or successor of a person convicted of a
public entity crime; or
B. An entity under the control of any natural person who is
active in the management of the entity and who has been
convicted of a public entity crime. The term "affiliate"
includes those officers, directors, executives, partners,
shareholders, employees, members and agents who are
active in the management of an affiliate. The ownership
by one person of shares constituting a controlling
interest in another person, or a pooling of equipment or
income among persons when not for fair market value under
an arms length agreement, shall be a prima facie case
68
Public Entity Crimes Affidavit
Page 2 of 3
that one person controls another person. A person who
knowingly enters into a joint venture with a person who has
been convicted of a public entity crime in Florida during the
preceding 36 months shall be considered an affiliate.
5. I understand that a "person" as defined in Paragraph
287.133(1)(e), Florida Statutes, means any natural person or
entity organized under the laws of the state or of the United
States with the legal power to enter into a binding contract
and which bids or applies to bid on contracts for the
provision of goods or services let by a public entity, or
which otherwise transacts or applies to transact business with
a public entity. The term "person" includes those officers,
directors, executives, partners, shareholders, employees,
members, and agents who are active in management of an entity.
6. Based on information and belief, the statement which I have marked
below is true in relation to the entity submitting this sworn
statement. (Please indicate which statement applies).
____ Neither the entity submitting this sworn statement, nor any officer,
directors, executives, partners, shareholders, employees, members, or
agents who are active in management of the entity, nor any affiliate of
the entity have been charged with and convicted of a public entity
crime subsequent to July 1, 1989.
____ The entity submitting this sworn statement, or one or more of the
officers, directors, executives, partners, shareholders, employees,
members, or agents who are active in management of the entity, or an
affiliate of the entity has been charged with and convicted of a public
entity crime subsequent to July 1, 1989. However, there has been a
subsequent proceeding before a hearing officer of the State of Florida,
Division of Administrative Hearings and the final order entered by the
hearing officer determined that it was not in the public interest to
place the entity submitting this sworn statement on the convicted
vendor list. (Please attach a copy of the Final Order) UNDERSTAND THAT
THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC
ENTITY IDENTIFIED IN PARAGRAPH 1 (ONE) ABOVE IS FOR THAT PUBLIC ENTITY
ONLY, AND THAT THIS FORM IS VALID THROUGHOUT DECEMBER 31 OF THE
CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM
REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT
IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017 FLORIDA
STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN
THIS FORM.
69
Public Entity Crimes Affidavit
Page 3 of 3
Signature
Sworn to and subscribed before me this ____ day of _________________, 19____.
Personally know ____________________________________________________________
OR Produced identification. Notary Public State of ______________
___________________________ My commission expires _______________
(Type of Identification)
_____________________________________
Printed typed or stamped commissioned
name of notary public)
70
Public Entity Crimes Affidavit
Page 4 of 3
EXHIBIT F-2
PUBLIC DISCLOSURE ACT
DISCLOSURE AFFIDAVIT
STATE OF FLORIDA )
) ss:
COUNTY OF )
BEFORE ME, the undersigned authority in said
County and State, personally appeared _______________________,
who being first duly sworn, deposes and says as follows:
I am ___________________________________________________________ and I hereby
certify that the names and addresses listed on Exhibit "1" attached hereto and
by this reference made a part hereof, are the names and addresses of every
person having a beneficial interest in said Concession Agreement, however small
or minimal, and do hereby file this Affidavit for the purpose of complying with
the provisions of Section 286.23 Florida Statutes Public Disclosure Act.
(Affix Corporate Seal)
--------------------------------------------
(Deponent)
--------------------------------------------
(Address of Deponent, Required by
Section 286.23 Florida Statutes)
--------------------------------------------
(Attestation by Secretary or Assistant
Secretary if Deponent is Officer
of Corporation)
Sworn to and subscribed before me this _____________day of____________, 199___.
---------------------------------------------
Notary Public, State of
My commission expires:
71
Public Entity Crimes Affidavit
Page 5 of 3
EXHIBIT "G"
DRUG FREE WORKPLACE
DRUG FREE WORKPLACE:
CAN AM Investment Group, Inc., a Florida corporation, will operate a
drug-free workplace in accordance with Florida law.
All Job Applicants will undergo a urinalysis test for drugs. Any
employee testing positive will be denied continued employment at that time.
All guidelines set forth by the State of Florida and the U.S.
Government will be strictly adhered to and followed.
"Job Applicant" means any person who has applied for a position with an
employer and has been offered employment conditioned upon successfully passing a
drug test, and may have begun work pending the results of the drug test.
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CONSENT AND AMENDMENT AGREEMENT
THIS CONSENT AND AMENDMENT AGREEMENT (this "Agreement"), dated as of
August 8th, 1995, by and between the CITY OF CORAL SPRINGS, FLORIDA, a municipal
corporation, having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (the "City"), and ICELAND (CORAL SPRINGS) LIMITED PARTNERSHIP, a Delaware
limited partnership, having an office at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Partnership").
W I T N E S S E T H
WHEREAS, the City and CAN AM Investment Group, Inc. ("Can Am") have
entered into that certain Concession Agreement, dated April 4, 1995 (as the same
may, from time to time, be amended, modified, supplemented, extended and/or
renewed, the "Concession Agreement"), pursuant to which the City has granted
exclusive use of the Property (as defined in the Concession Agreement) for a
multi-use and multi-user skating area (the "Facility" as defined in the
Concession Agreement); and
WHEREAS, by that certain Assignment Agreement between Can Am and the
Partnership dated August 8, 1995 (the "Assignment Agreement"), Can Am assigned
the Concession Agreement and Can Am's rights thereunder to the Partnership,
subject to approval from the City; and
WHEREAS, Can Am and the Partnership have requested the City to (a)
consent to the said assignment to the Partnership and (b) agree to certain
amendments to the Concession Agreement, including amendments with respect to
the rights of any Lender (as defined in Section 8 hereof) holding a security
interest or other lien (a "Security Interest") in or upon all of the right,
title and interest of Concessionaire (as used herein, "Concessionaire" means
the Partnership at present, and subject to Paragraph 3 hereof, its successors
and assigns and other holders of the interests of Concessionaire from time to
time) under the Concession Agreement.
NOW, THEREFORE, intending to be legally bound and for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto covenant and agree as follows:
1. Consent. The City hereby consents to the assignment of the
Concession Agreement from Can Am to the Partnership pursuant to the Assignment
Agreement.
2. Security Interest.
(a) The City hereby (i) agrees that Concessionaire shall have
the right to obtain financing (the "Secured Debt") from a Lender which may be
secured by, inter alia, a Security Interest, (ii) consents to the granting of a
Security Interest in favor of any Lender and to the perfection of such Security
Interest by recordation or otherwise, and (iii) agrees that the granting by
Concessionaire of a Security Interest shall not be deemed an assignment of the
Concession Agreement, or, if the same shall be deemed such an assignment
pursuant to applicable law, such an assignment shall not be deemed to be in
violation of or a default under the Concession Agreement. Any Security Interest
granted by Concessionaire to a Lender in the Concession Agreement and all
personal property and removable trade fixtures of Concessionaire (the
"Collateral") shall have priority to the extent of all obligations of
Concessionaire to Lender secured thereby over any security interest or lien,
however acquired, of the City in or affecting the same Collateral. The City
further understands and agrees as follows:
(A) The holder(s) of any beneficial interests (whether as
shareholder(s), partner(s), member(s) or otherwise) in any partner
(including, without limitation, any partner that is a corporation,
partnership, limited liability company or other person or entity) of
the Partnership may pledge all or a portion of its/their interests
("Pledged Interests") of or in such partner and any one or all of the
partners (the "Partners") of the Partnership may pledge its partnership
interest ("Partnership Interest") in the Partnership, in each case to a
Lender as
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security for payment of the obligations of the Partnership under the
Secured Debt and the other documents related thereto. Such pledges of
the Pledged Interests and of the Partnership Interests to a Lender will
not be deemed an assignment of the Pledged Interests or the Partnership
Interest, or, if the same shall be deemed such an assignment pursuant
to applicable law, such an assignment shall not be deemed by the City
to be in breach or violation of or a default under the Concession
Agreement.
(B) Notwithstanding the provisions of Articles 31 and 32 of
the Concession Agreement, the City hereby consents to the pledge of the
Pledged Interests and the Partnership Interests referred to in
Paragraph 2(a) hereof and to any assignment or transfer of the Pledged
Interests and/or the Partnership Interests, either to a Lender or to
any other person or entity, arising by reason of a default under the
pledge agreement relating to the Pledged Interests and under the
assignment and security agreements relating to the Partnership
Interests and the occurrence of a Foreclosure Event (as hereinafter
defined) in respect thereof.
(b) Concessionaire hereby acknowledges and agrees that (i) no
Security Interest shall constitute a lien on the Property and (ii)
Concessionaire shall have no right to ▇▇▇▇▇ ▇ ▇▇▇▇ on the Property.
3. Performance by Lender. The City hereby agrees that
Concessionaire shall have the right to assign to Lender shall have the right to
take any and all action, perform any and all obligations and exercise any and
all of the rights of Concessionaire under the Concession Agreement, and any such
action, performance and exercise shall have the same effect as if taken,
performed or exercised directly by Concessionaire. Concessionaire hereby agrees
that any such exercise by Lender shall be binding upon Concessionaire with the
same force and effect as if exercised by Concessionaire.
4. Default Notices. Whenever the City shall deliver any notice,
request, demand or other communication ("Notice") to Concessionaire, including
but without limitation, with respect to (a) any default or termination as
described in Article 36 of the Concession Agreement, other than the default set
forth in Section 36.1.1 of the Concession Agreement (an "Automatic Default"), or
(b) any event or condition underlying any default (other than an Automatic
Default), or (c) the occurrence of any event (other than an Automatic Default)
that starts the running of any time period within which Concessionaire is
required to take some action or after which the City may terminate the
Concession Agreement (collectively, "Default"), the City shall at the same time
deliver to the Lender a copy of any such Notice at the address given in writing
by Lender to the City pursuant to Paragraph 14 of this Agreement. If the City
is not required to give any such Notice to Concessionaire, then the City shall
deliver Notice to the Lender promptly after the occurrence of the Default
(except in the case of an Automatic Default), pursuant to Paragraph 14 of this
Agreement. No Notice to Concessionaire, no action with respect to
Concessionaire (whether or not as a result of a Default), and no termination of
the Concession Agreement shall be effective, subject to Paragraphs 5, 6 and 10
hereof, unless Notice thereof, if required pursuant to this Paragraph 4, has
been delivered to Lender.
5. Cure. Upon the occurrence of a Default and the delivery of
Notice to Lender (if so required pursuant to Paragraph 4 hereof), Lender shall
have the right at its option within thirty (30) days after receipt of the Notice
to cure any such Default (subject to extension pursuant to Paragraph 6 hereof),
and the City shall accept such performance by Lender with the same force and
effect as if performed by Concessionaire. The cost of the cure by Lender shall
be added to the Secured Debt of Concessionaire.
6. Forbearance. Upon the occurrence of a Default and the delivery
of Notice to Lender (if so required pursuant to Paragraph 4 hereof), the City
shall not take any action to effect a termination of the Concession Agreement or
exercise any other remedies with respect to the Default:
(a) so long as the Lender shall have cured such Default
within the period stated in Paragraph 5 hereof, or
(b) if such Default can only be cured by the Lender upon
obtaining possession of the Facility, or if such Default cannot be
cured, so long as Lender shall seek to obtain possession of the
Facility, or if such Default cannot be cured, so long as Lender shall
seek to obtain possession of the Facility with diligence and
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74
continuity through a Foreclosure Event or otherwise, and, in the case
of a Default that is curable, shall cure such Default within the period
stated in Paragraph 5 after obtaining possession of the Facility, or
(c) in the case of a Default which cannot with diligence be
cured, or the cure of which cannot be commenced, within the 30 day
period set forth in Paragraph 5 hereof, Lender shall have such
additional time as reasonably necessary to cure such Default of
Concessionaire.
The time periods specified in Paragraphs 5, 6(b) and 6(c) hereof shall be
extended by the time during which Lender's right to pursue the actions described
therein shall be stayed or delayed by operation of law or by any court of
competent jurisdiction (including, without being limited to, by reason of any
bankruptcy or similar proceeding). Lender shall not be required to continue to
proceed to obtain possession, or to continue to possess the Facility, or to
continue to prosecute proceedings pursuant to Paragraph 6(b) hereof, if and when
the Default shall be cured.
7. Possession by Lender.
(a) The City hereby consents to the possession of the
Facility and/or ownership of all right, title and interests of Concessionaire's
interests under the Concession Agreement by Lender or an affiliate of Lender
(each a "Lender Party") or by any other person or entity (any such Lender Party
or other person or entity is herein referred to as a "Successor
Concessionaire"), as a result of the exercise of remedies (including but not
limited to as a result of foreclosure, deed-in-lieu of foreclosure, sale
pursuant to Section 363 of the Bankruptcy Code or otherwise (a "Foreclosure
Event")) by Lender in respect of the Secured Debt, notwithstanding Article 31 of
the Concession Agreement. In addition, if any Lender Party shall succeed to the
rights and interests of Concessionaire under the Concession Agreement, such
Lender Party shall have the additional right to transfer its interest under the
Concession Agreement, subject to the approval of the City, which approval the
City agrees not to unreasonably withhold or delay, but shall not be required to
dispose of its interest within the twenty-four (24) month period set forth in
Article 31 of the Concession Agreement; provided, however, that in the event a
Lender Party does not transfer its interest under the Concession Agreement
within twenty-four (24) months after such Lender Party's obtaining such interest
and affirmatively (and in writing) elects to be Concessionaire under the
Concession Agreement, then such Lender Party, from and after the expiration of
such twenty-four (24) month period, shall be liable as Concessionaire under the
Concession Agreement and shall not be entitled to benefits of Paragraph 12
hereof. The foresaid election by such Lender Party to become Concessionaire
under the Concession Agreement shall not be subject to approval by, or the
consent of, the City and shall be deemed automatically effective upon the
delivery to the City of the written notice of such election.
(b) In the event a Lender Party transfers its interest in the
Concession Agreement as permitted pursuant to Paragraph 7(a) hereof, such Lender
Party shall automatically be relieved and released from all obligations and
liabilities under the Concession Agreement. The City agrees, within ten (10)
days after the effective date of such transfer and at such Lender Party's
expense, to execute and deliver such instruments as shall be reasonably
requested by such Lender Party to effectuate such release.
8. Lender Defined. As used herein, the term "Lender" shall mean any
lender of the Secured Debt to Concessionaire; provided, however, that such
Lender shall be subject to approval from the City, such approval not to be (a)
unreasonably withheld or delayed or (b) conditioned upon any amendment to the
Concession Agreement, as amended hereby; provided, further, however, that such
consent from the City shall not be required in the event such lender (i) has an
"investment grade" credit rating from ▇▇▇▇▇'▇ Investors Service, Inc. of Baa3 or
better and/or from Standard & Poor's Rating Group of BBB- or better and (ii) is
(A) any bank, as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended (as amended, the "Act"), (B) any savings and loan association, building
and loan association, cooperative bank or similar institution as defined in
Section 3(a)(5)(A) of the Act, (C) any insurance company as defined in Section
2(13) of the Act, (D) any investment company registered under the Investment
Company Act of 1940, as amended, (E) any plan established and maintained by a
state, its political subdivisions, or any agency or instrumentality of a state
or its political subdivisions, for the benefit of its employees, if such plan
has total assets in excess of $100,000,000 or (F) any employees benefit plan,
within the meaning of the Employee Retirement Income Security Act, which has
total assets in excess of $100,000,000.
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9. Amendments/Additional Consents.
(a) The City and Concessionaire agree that (i) the second,
third and fourth sentences of the third paragraph of Article 31 of the
Concession Agreement (the first sentence thereof being subject to Paragraph 12
hereof) and (ii) Sections 36.1.3, 36.6, 36.7 and 46.3 of the Concession
Agreement, and hereby deleted in their entirety. No Default under Section
36.1.3 (whether having previously arisen or hereafter discovered) shall apply to
the Concession Agreement, and the City shall have no right to terminate, the
Concession Agreement as a result thereof. In addition, notwithstanding anything
to the contrary contained in the Concession Agreement or in this Agreement, in
the event that any Successor Concessionaire shall succeed to the rights and
interests of Concessionaire (whether under the Concession Agreement or under a
new concession agreement entered into pursuant to Paragraph 10 hereof), neither
Lender Party nor any successor or assign shall be required to cure any Default
which is not curable. For the purposes of this Agreement, any default in the
payment of a liquidated amount shall be deemed a "curable" default.
(b) The City and Concessionaire hereby agree that the second
and third sentences of Article 47 of the Concession Agreement are hereby deleted
in their entirety and replaced with the following:
"In the event of any such taking, exercise of eminent domain or
condemnation with respect to the Property or the Facility, whether or
not such taking or eminent domain results in the termination of this
Agreement, the entire award paid in connection with such taking or
eminent domain shall be paid as follows: (i) to the City, (A) the
award allocated for, or attributable to, the value of the Property (as
vacant and unimproved), taking into account that the Property is
encumbered by this Agreement, and (B) the portion of the award, if
any, allocated for, or attributable to, the value of the Facility
(without attributing any value to the replacement cost thereof) for
the period of time from and after the date (the "Final Date") that is
the latest scheduled expiration date of this Agreement, assuming the
exercise of both renewal options set forth in Article 3 hereof, and
(ii) to Concessionaire, the balance of such award, including, but not
limited to, any portion of the award attributable to the value of (A)
this Agreement and the rights of Concessionaire hereunder, (B) the
Facility and all fixtures, equipment and personalty located thereat
for the period of time commencing on the date of such award and ending
on the Final Date (but in no event less than the unamortized value of
the Facility and all fixtures, equipment and personalty, calculated
based on a period from the date of completion of construction and
installation of the Facility through the Final Date), and (C) the
value of the business (as a going concern) conducted at the Facility.
Notwithstanding anything in this Agreement to the contrary, the City
and Concessionaire hereby agree that for the purposes of any taking,
exercise of eminent domain or condemnation by any governmental
authority, this Article 47 shall be construed and interpreted in
accordance with its terms, employing the rules of construction that
would be applicable had this Agreement been a lease between the City,
as landlord, and Concessionaire, as tenant, and the rights hereunder
and the estate created hereby been a leasehold estate, all in
accordance with the laws of the State of Florida and the Constitution
of the United States."
(c) Notwithstanding anything in Article 32 of the Concession
Agreement to the contrary, (i) the City acknowledges that (A) the Partnership,
as Concessionaire, is a Delaware limited partnership, (B) the Partnership
intends to sell, and shall be selling, up to seventy-five percent (75%) of the
aggregate direct or indirect beneficial interests in the Partnership (the
"Partnership Interests") to third-party investors and (C) as of the date hereof,
the Partnership has not yet sold all of the Partnership Interests and (ii) the
City consents to the sale and transfer of the Partnership Interests to such
third-party investors; provided, that, an entity which shall directly or
indirectly control, be controlled by or be under common control with Stadium
Consultants International Inc., shall at all times be the beneficial economic
owner of at least fifteen percent (15%) of the aggregate equity interests of the
Partnership.
(d) Exhibit "C" to the Concession Agreement is hereby amended
in its entirety to read as follows:
"7 acres +/- in the southwest portion for Parcel "M", Coral
Springs Regional Park Addition, ▇▇ ▇▇▇, ▇▇ ▇▇"
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Upon completion of the Property Description in accordance with Paragraph 17
hereof, Exhibit "C" will be further amended by substituting the Property
Description for the foregoing description.
10. Termination. Notwithstanding anything to the contrary contained
in the Concession Agreement or in this Agreement, in the event that the
Concession Agreement is terminated by the City or any Concessionaire or in the
event the Concession Agreement is disaffirmed or rejected pursuant to any laws
(including bankruptcy or insolvency laws) by any Concessionaire, Lender shall
have the right to request, by written notice within sixty (60) days after the
City's Notice of Default is received by Lender, that the City enter into a new
concession agreement with a Lender Party. Upon such request, the City shall
enter into a new concession agreement with such Lender Party which shall:
(a) be effective as of the date of termination of the
Concession Agreement, but shall be deemed to have the same priority as
the Concession Agreement;
(b) be for the remainder of the period that would have
constituted the term of the Concession Agreement had the Concession
Agreement not been terminated, and be upon all of the covenants,
rights, options and conditions thereof (including any amendments
thereof consented to by Lender and the amendments to the Concession
Agreement pursuant to this Agreement);
(c) not require Lender Party to cure any Default under the
Concession Agreement that is not susceptible of being cured by Lender
Party; and
(d) give Lender Party the right to transfer its interests
under the new concession agreement notwithstanding Articles 31 and 32
of the Concession Agreement, subject to the approval of the City, which
approval the City agrees not to unreasonably withhold or delay, but
Lender Party shall not be required to dispose of its interest within
the twenty-four (24) month period set forth in Article 31 of the
Concession Agreement.
If Lender shall elect not to exercise such right to a new concession agreement,
the City shall give Lender the right to enter upon the Property during such
sixty (60) day period for the purpose of removing Concessionaire's personal
property therefrom, provided, however, that Lender shall repair any damage
arising from such removal.
11. Estoppel. As a material inducement for the Partnership to enter
into this Agreement and the Assignment Agreement, the City hereby certifies to
the Partnership as follows:
(a) The Concession Agreement has not been modified except
pursuant to this Agreement, and as so modified is in full force and
effect. The Concession Agreement has not been terminated nor has the
City received any notice or other election from Concessionaire
terminating the Concession Agreement.
(b) No rent, percentage fees or other Amounts are, as of the
date hereof, due or payable.
(c) There is no defense, offset, claim or counterclaim by or
in favor of the City against Can Am or any other Concessionaire under
the Concession Agreement or against the obligations of the City under
the Concession Agreement.
(d) The City is not aware of any Default now existing of the
City or of Can Am or any other Concessionaire under the Concession
Agreement, or of any event which with notice or the passage of time or
both would constitute a Default of the City or of Can Am or any other
Concessionaire under the Concession Agreement.
(e) The City has not received notice of a prior sale,
transfer, assignment, hypothecation or pledge of the Concession
Agreement by Can Am or any other Concessionaire, except to the
Partnership.
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(f) The Property has suffered no damage or destruction which
would prohibit or inhibit the construction of the Facility and, under
applicable zoning and use laws, ordinances, rules and regulations, the
Property may be used for the purposes contemplated by Concessionaire in
accordance with the Concession Agreement.
(g) There is no suit, action, proceeding or audit pending,
or, to the knowledge of the City, threatened against or affecting the
City or the Property under the Concession Agreement at law or in equity
or before or by any court, administrative agency or other governmental
authority which brings into question the validity of the Concession
Agreement or which if determined adversely against the City might
result in any material adverse change to the leasehold interest of
Concessionaire under the Concession Agreement.
(h) There is no presently known fact which materially
adversely affects, or with the passage of time may materially adversely
affect, the condition or operations of the Property under the
Concession Agreement.
(i) The "Effective Date" (as defined in Article 2 of the
Concession Agreement) has not yet occurred.
12. Lender's Liability. During the period that any Lender Party
shall be taking the action described in Section 6 hereof, shall be in possession
of the Facility or shall succeed to the rights and interests of Concessionaire
under the Concession Agreement, such Lender Party shall have no personal
liability under the Concession Agreement except that such Lender Party shall be
liable for the payment of monetary amounts pursuant to Articles 9, 10 and 12 of
the Concession Agreement ("Amounts") and its rights under the Concession
Agreement shall be subject to compliance with all of the other terms and
conditions of the Concession Agreement as are susceptible of compliance by such
Lender Party having, however, the benefit of the same Notice and cure periods
and rights as are afforded Concessionaire under the Concession Agreement. The
provisions of this Paragraph 12 are expressly subject to the final clause of the
second sentence of Paragraph 7(a) hereof which beings with the words "provided,
however".
13. Concession Agreement Amended. This Agreement constitutes an
amendment of the Concession Agreement. To the extent of any conflict or
inconsistency between the provisions of this Agreement and the Concession
Agreement, the provisions of this Agreement shall govern the rights and
obligations of Concessionaire, Lender, any other Lender Party and the City. All
references in the Concession Agreement to "this Agreement," "this Concession
Agreement" or words of similar import shall mean the Concession Agreement as
amended by this Agreement. The Concession Agreement, as shall mean the
Concession Agreement as amended by this Agreement. The Concession Agreement, as
amended by this Agreement is hereby ratified and confirmed and is in full force
and effect.
14. Notices. All notices, demands, requests, consents, approvals,
offers, statements and other instruments or communications required or
permitted to be given hereunder shall be given in the manner set forth in
Article 50 of the Concession Agreement and
(a) if to the City, shall be addressed as follows:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
a Municipal Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Department of Leisure Services Development
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With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Deputy City Attorney
Josias & Goren, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Concessionaire, shall be addressed as follows:
Iceland (Coral Springs) Limited Partnership
c/o Iceland (Coral Springs) Corp.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Real Estate Notices 9196/2 BJW
(c) if to the Lender, shall be addressed to the address or
addresses as provided in writing to the City and Concessionaire.
Each party may substitute another address or addresses for its address(es)
stated above by giving three (3) days' notice of the new address or addresses
to each of the other parties hereto in the manner set forth in Article 50 of
the Concession Agreement.
15. Successors and Assigns. The provisions hereof shall be binding
upon and inure to the benefit of the parties hereof and their respective
successors and assigns.
16. Governing Law. This Agreement shall be interpreted in accordance
with the laws of the State of Florida, both substantive and remedial. Venue of
all proceedings shall be in Broward County, Florida.
17. Recordation. A memorandum of this Agreement and of the
Concession Agreement, substantially in the form of Exhibit A hereto, shall be
recorded upon the request of Concessionaire. In connection therewith, the City
agrees to use its best efforts in obtaining, and delivering to Concessionaire,
an accurate legal description of the Property (the "Property Description")
reasonably satisfactory to Concessionaire within eighteen (18) days after the
delivery to the City of a site plan prepared by Concessionaire. The Property
Description shall then be attached to Schedule A to the said memorandum.
18. Merger. This Agreement set forth the entire agreement between
the parties hereto and all subject matters herein and supersedes all prior and
contemporaneous negotiations, understandings and agreements, written or oral,
between the parties.
19. Headings. The headings to the paragraphs of this Agreement are
for convenience only and are not intended to be a part of this Agreement and
shall not be construed to modify, explain or alter any of the terms, covenants
or conditions herein contained.
[END OF PAGE; SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned have entered into this Consent and
Agreement effective as of the day first above written.
THE CITY:
CITY OF CORAL SPRINGS, a municipal
corporation organized and
existing under the laws of
the State of Florida
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Mayor
Approved as to Form By: Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- ----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Deputy City Attorney ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, City Clerk
THE PARTNERSHIP:
ICELAND (CORAL SPRINGS) LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: Iceland (Coral Springs) Corp.,
as General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, President
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EXHIBIT A
FORM OF MEMORANDUM OF CONCESSION AGREEMENT
AND CONSENT AND AMENDMENT AGREEMENT
THIS MEMORANDUM OF CONCESSION AGREEMENT AND CONSENT AND AMENDMENT
AGREEMENT (this "Memorandum"), dated as of August 8, 1995, by and among the
CITY OF CORAL SPRINGS, FLORIDA, a municipal corporation having an office at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "City"), CAN AM
INVESTMENT GROUP, INC., a Florida corporation having an office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Can Am"), and ICELAND (CORAL SPRINGS)
LIMITED PARTNERSHIP, a Delaware limited partnership, having an office at ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Concessionaire").
W I T N E S S E T H
1. The City and CAN AM Investment Group, Inc. ("Can Am") have
entered into that certain Concession Agreement, dated April 4, 1995 (as amended,
by the Consent and Amendment Agreement (as defined herein), the "Concession
Agreement"), pursuant to which the City has granted exclusive use of the
Property (as described in Schedule A hereto) for a multi-use and multi-user
skating area (the "Facility" as defined in the Concession Agreement).
2. Pursuant to that certain Assignment Agreement between Can Am and
Concessionaire dated August 8, 1995 (the "Assignment Agreement"), Can Am
assigned the Concession Agreement and Can Am's rights thereunder to
Concessionaire.
3. Pursuant to that certain Consent and Amendment Agreement between
the City and Concessionaire, dated as of August 8, 1995 (the "Consent and
Amendment Agreement"), the City consented to the assignment made pursuant to the
Assignment Agreement and the City and Concessionaire agreed to certain
amendments to the Concession Agreement.
4. This Memorandum is subject to all of the terms, conditions and
provisions of the Concession Agreement, and in the event that the terms,
conditions and provisions of the Concession Agreement conflict with this
Memorandum, the terms, conditions and provisions of the Concession Agreement
shall control.
5. The term of the Concession Agreement (the "Term") is forty-nine
(49) years commencing on the earlier to occur (i) the date the Concessionaire
commences operations of the Facility or (ii) the issuance of a final and
unqualified Certificate of Occupancy for the Facility.
6. Upon written notice given by the City or Concessionaire to the
other party no less than six (6) months prior to the expiration of the
then-current Term, the City and Concessionaire have agreed to negotiate, in good
faith, two (2) twenty-five (25) year renewals of the Term.
This instrument is intended to be only a Memorandum of the Concession
Agreement and the Consent and Amendment Agreement, reference to each of which
is hereby made for all of the terms, conditions and covenants of the parties.
This instrument shall not be construed to modify, change, vary or interpret the
Concession Agreement or the Consent and Amendment Agreement or any of their
respective terms, covenants or conditions. Full copies of the Concession
Agreement, the Consent and Amendment Agreement and other documents relating to
the Concession Agreement are available for inspection of the office of the City
Clerk of Coral Springs, Florida.
* * *
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the City and Concessionaire have duly executed and
delivered this Memorandum on the date hereinabove first set forth.
THE CITY:
CITY OF CORAL SPRINGS, a municipal
corporation organized and
existing under the laws of
the State of Florida
By:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, Mayor
Approved as to Form By: Attest:
By:
------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, City Clerk
Deputy City Attorney
CAN AM:
CAN AM INVESTMENT GROUP, INC.
By:
--------------------------------
▇.▇. ▇▇▇▇▇▇, President
CONCESSIONAIRE:
ICELAND (CORAL SPRINGS) LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: Iceland (Coral Springs) Corp.,
as General Partner
By:
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, President
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CONSENT AND SECOND AMENDMENT TO
CONCESSION AGREEMENT BETWEEN THE CITY OF
CORAL SPRINGS, FLORIDA
AND ICELAND (CORAL SPRINGS), LIMITED PARTNERSHIP
THIS CONSENT AND SECOND AMENDMENT TO CONCESSION AGREEMENT
(the "Second Amendment"), dated as of the 20th day of February, 1996 is made by
and between the CITY OF CORAL SPRINGS, FLORIDA, a municipal corporation,
organized under the laws of Florida, having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("CITY"), and ICELAND (CORAL SPRINGS), LIMITED
PARTNERSHIP, a Delaware limited partnership, its successors, heirs and assigns
(the "Partnership") having an office at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇
368, and CORAL SPRINGS ICE, LTD., a Florida limited partnership, its successors,
heirs and assigns ("Ice"), having an office at 3900 BCE Place, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
W I T N E S S E T H:
WHEREAS, the CITY and CAN AM Investment Group, Inc. ("Can Am") entered
into that certain Concession Agreement dated April 14, 1995 (the "Concession
Agreement"), pursuant to which the CITY has granted exclusive use of the
Property (as defined in the Concession Agreement) for a multi-use and multi-user
skating arena (the "Facility", as more particularly defined and described in the
Concession Agreement); and
WHEREAS, Can Am assigned the Concession Agreement to the Partnership by
virtue of an Assignment Agreement dated August 8, 1995 (the "Assignment
Agreement") and the CITY approved such assignment to the Partnership and agreed
to certain modifications and amendments
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to the Concession Agreement by virtue of the Consent and Amendment Agreement
dated August 8, 1995 (the "First Amendment"); and
WHEREAS, the Partnership and Ice have requested the CITY to consent to
an assignment of the Concession Agreement to Ice; and
WHEREAS, Ice and the CITY desire to further modify and amend the
Concession Agreement, as modified by the First Amendment, in order to enhance
the economic viability of the Facility and the public purposes to be served upon
its opening and operation.
NOW, THEREFORE, intending to be legally bound and for good and valuable
consideration as set forth herein, the receipt and sufficiency of which are
hereby acknowledged by each of the parties hereto, the parties do hereby agree
that the terms of the Concession Agreement, to which this Agreement is appended
are hereby amended as follows:
TERMS
1. The foregoing recitals are hereby incorporated by reference as
if set forth fully herein. All capitalized terms not defined in this Agreement
shall have the same meanings ascribed thereto in the Concession Agreement.
2. The CITY hereby consents to the assignment of the Concession
Agreement from the Partnership to Ice pursuant to the certain Assignment
Agreement of even date herewith.
3. All references herein to the "Modified Agreement" shall mean
the Concession Agreement as modified by the First Amendment and the Assignment.
4. Article 11, "Gross Receipts", of the Concession Agreement is
modified to add the following text at the end thereof:
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Notwithstanding anything to the contrary herein, for the
purposes hereof, "Gross Receipts" shall include revenues
generated from the regular and customary day-to-day operations
of the Facility but not from other properties or business
operations of the Partnership or other ventures in which the
Partnership may be a partner or have an interest.
5. Paragraph 15.1 of the Concession Agreement is modified to read
as follows: All equipment and personal property furnished by
Concessionaire shall be of such quality as is typical for
projects of a similar nature and costs and generally suitable
for their intended purposes.
6. The third sentence of Article 16 of the Concession Agreement
is deleted and replace with the following:
The Manager and Manager's Authorized Agent shall have, in the
CONCESSIONAIRE's reasonable opinion, a satisfactory level of
experience in the management of recreational or similar
facilities. The CONCESSIONAIRE shall provide certain
background information to the CITY, particularly the name,
address, and social security number of the Manager. The
Manager shall confirm to the CONCESSIONAIRE that neither the
Manager nor the Manager's Authorized Agent has been convicted
of any felony. The Manager's Authorized Agent shall be at
least 18 years of age.
7. The last sentence of Article 16 of the Concession Agreement is
deleted and replaced with the following:
The CONCESSIONAIRE will reasonably endeavor to investigate the
background of the Manager and the Manager's Authorized Agent.
The CITY will, at the request of CONCESSIONAIRE, and if
legally accessible and permissible, have the
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CITY'S police department determine or verify the existence of
prior convictions of the Manager or Manager's Authorized
Agent.
8. Article 17 is modified to add the following at the end
thereof:
The CITY agrees, subject to Article 48 of the Concession
Agreement, that its approvals as set forth above will not be
unreasonably withheld or delayed. However, notwithstanding any
provision of the Concession Agreement to the contrary, if the
Contract Administrator fails to approve or disapprove any
specific item or matter presented to the CITY pursuant to this
Article 17 within twenty-one (21) days from receipt thereof,
the Contract Administrator shall be deemed to have approved
the same.
9. The Concession Agreement is modified to delete the reference
to "working" days throughout the Concession Agreement, such that all references
to a number of days shall be to "calendar" days. Article 48 of the Concession
Agreement is modified to change the reference therein from "forty-five (45)
days" to "twenty-one (21) days."
10. The first line of the first paragraph of Paragraph 19.1 is
modified to substitute the word "allowed" for the word "required" and the
seventh line of Paragraph 19.1 is modified to substitute the word "allowed" for
the word "intended." The following new sentence shall be added immediately
following the sentence of Paragraph 19.1:
The CONCESSIONAIRE shall be permitted all reasonable
discretion in setting the hours of operation within the
permitted hours of operation set forth on Exhibit "D" hereto
in order to permit the CONCESSIONAIRE to maximize the
profitability of the Facility and to ▇▇▇▇▇▇ other public
purposes at the Facility and at the Park.
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11. The third sentence of Paragraph 19.1 is deleted and replaced
with the following:
Any requests by the CONCESSIONAIRE to operate the Facility in
excess of the permitted hours of operation set forth on
Exhibit "D" shall be submitted to the Contract Administrator
for reasonable approval.
The second full paragraph of Paragraph 19.1 is modified to add
the following: For the purposes hereof, "substantial public
health risk" means natural disasters, national or regional
emergencies, war, pestilence, and riot.
12. Paragraph 19.2 of the Concession Agreement is modified to add
the following text after the phrase "temporary closure of the Facility" in the
fourth sentence thereof: "which significantly or severally restricts
CONCESSIONAIRE's ability to operate the Facility in its normal practice".
13. Paragraph 19.5 of the Concession Agreement is deleted and
replaced with the following:
The CITY acknowledges and agrees that the ability of the
CONCESSIONAIRE to set its hours of operation within the
permitted hours as set forth on Exhibit "D" hereto in its
reasonable discretion is critical to the profitability of the
Facility, and therefore the hours may be set by the
CONCESSIONAIRE within the permitted hours with the intent to
maximize the profitability of the Facility.
14. Article 28 is deleted and replaced with the following:
If either the Facility or any structures therein are damaged
or destroyed, the CONCESSIONAIRE shall restore the same within
a reasonable time and with due diligence after receipt by
CONCESSIONAIRE of insurance proceeds from the hazard insurance
policies required pursuant to the terms of the Concession
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Agreement sufficient to restore or reconstruct the Facility.
During the period the Property is unusable or being
restored or reconstructed, rent shall be abated pending
completion or restoration of the Facility. To the extent that
the Facility shall be partially damaged and partially usable,
rent shall ▇▇▇▇▇ proportionally to the extent that the
Facility is unusable. To the extent that the CITY receives
any insurance proceeds for the damage or destruction of the
Facility, it shall promptly pay such proceeds to the
CONCESSIONAIRE for the purpose of restoration and
reconstruction. CONCESSIONAIRE shall promptly commence and
diligently prosecute the reconstruction and restoration of
the Facility upon receipt of the insurance proceeds in
sufficient amounts to complete such reconstruction or
restoration.
15. Article 29, "Change of Operation Hours Due to Public Health
Risk", of the Concession Agreement is modified to add the following:
The CITY shall use all reasonable and diligent efforts to
eliminate the public safety hazard to the extent possible and
reopen the Park as soon as possible after the occurrence of
the public safety hazard in order to minimize any adverse
financial impact on the CONCESSIONAIRE.
16. The first paragraph of Article 31 and all of Article 32 are
deleted and the following is substituted in its entirety:
Without limiting the rights of CONCESSIONAIRE in connection
with the right to grant a Security Interest to a Lender (as
such terms are defined in the First Amendment) or to pledge or
mortgage the Concession Agreement as provided in the
Concession Agreement, CONCESSIONAIRE shall be entitled to
assign all of its rights hereunder, and/or shall be entitled
to transfer equity interests in CONCESSIONAIRE only upon
CITY's prior written consent, which consent shall
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not be unreasonably withheld or delayed; provided, however,
that (i) CONCESSIONAIRE shall have the right, without the
prior consent of the CITY to assign this Agreement to, and/or
transfer equity interests in CONCESSIONAIRE to, an "Affiliate"
of CONCESSIONAIRE. For the purposes hereof, an "Affiliate"
means any other "Person", which directly or indirectly through
one or more intermediaries controls, or is controlled by, or
is under common control with, the CONCESSIONAIRE or its
general partner(s). For the purposes hereof, "Person" means a
person, corporation, partnership or such other legal or
contractual entity. For the purposes hereof, "control"
(including its correlative meanings, the terms "controlling",
"controlled by" and "under common control with") as used with
respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of such Person, whether through the
ownership of voting securities or partnership interests, by
agreement, or otherwise; (ii) CONCESSIONAIRE shall have the
right to assign its rights hereunder to and/or transfer equity
interests in CONCESSIONAIRE, without the prior consent of the
CITY, to any entity traded on a public exchange, including but
not limited to any national or state exchange, or any Canadian
exchange; and (iii) CONCESSIONAIRE shall have the right to
transfer limited partnership interests in CONCESSIONAIRE, or
in CONCESSIONAIRE's general partner, or to transfer other
interests in CONCESSIONAIRE which do not have any managerial
control over CONCESSIONAIRE, without the prior consent of the
CITY, so long as such assignee has not been convicted of a
felony. With respect to an assignment or transfer that
requires the CITY's consent as provided above, the reasonable
basis for such consent shall be based on the following
criteria: (x) the assignee or transferee has not been
convicted of a felony, (y) the assignee or transferee has the
financial capability for operating the Facility on a
day-to-day basis, and (z) the
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assignee or transferee has the skill to manage the Facility on
a day-to-day basis whether on its own or through the
engagement of third party managers. If the CITY has a
reasonable basis to reject the assignee or transferee, the
CITY must make such rejection in writing to the CONCESSIONAIRE
within fourteen (14) days of receipt from written notice from
the CONCESSIONAIRE of its intent to assign or transfer the
Concession Agreement or an interest in CONCESSIONAIRE that
would require consent of the CITY hereunder stating the reason
for such rejection. If the CITY fails to respond in writing
stating the reasons for rejection as required herein within
such fourteen (14) day period, the CITY shall have approved
the assignee or transferee. The Contract Administrator may
initially approve or disapprove an assignee or transferee
pursuant to this Paragraph; however, the CITY's decision shall
only be final if confirmed by the City Commission at a regular
meeting or at a special meeting called for the purposes
described herein. Further, the Concessionaire shall be
continuously subject to the applicable requirements of Section
286.23, Florida Statutes, with respect to full and complete
disclosure, as otherwise provided herein.
17. Add the following Paragraph 33.3 to the Concession Agreement:
In lieu of the delivery of a Payment and Performance Bond
during construction as set forth in Paragraph 33.1 above, or
an Operation Performance Bond or Letter of Credit, as set
forth in Paragraph 33.2 above, the CONCESSIONAIRE shall
deliver, respectively, its guaranty (or the guaranty of such
affiliated entity deemed acceptable to CITY in its reasonable
discretion) of completion of construction, or of the
performance of the Concession Agreement.
18. Add the following new paragraph to the Concession Agreement:
The CONCESSIONAIRE shall have the right to request reasonable
modifications to the Concession Agreement or to the form and
structure of the Concession
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Agreement, as necessary and appropriate in order for
CONCESSIONAIRE, in its discretion, to obtain financing of the
Facility and the Concession Agreement. The CITY agrees to
cooperate in such modifications to the Concession Agreement,
so long as such modifications do not reduce the amount of rent
to be paid hereunder, extend the term of the Concession
Agreement, or materially increase the burden on the CITY under
the Concession Agreement or limit the responsibilities of the
CONCESSIONAIRE under the CONCESSION AGREEMENT, subject to the
applicable requirements of the City Charter, the City Code of
Ordinances, Florida Statutes, and any other general and
special laws applicable to the Concession Agreement.
19. Article 36 of the Concession Agreement is deleted and replaced
in its entirety with the following:
ARTICLE 36
DEFAULT AND TERMINATION
36.1 The following, if not cured within the applicable notice, cure
or grace period as provided herein, shall be deemed events of default by the
CONCESSIONAIRE under the Concession Agreement:
36.1.1 Assignment by the CONCESSIONAIRE for the benefit of
creditors, not dismissed within thirty (30) days from
filing the same.
36.1.2 Abandonment or discontinuation by CONCESSIONAIRE
of operations hereunder. "Discontinuation" shall mean
any closing (other than a scheduled closing or
closing necessitated by acts beyond the control of
the CONCESSIONAIRE) or failure to provide material
services or amenities for thirty (30) consecutive
days or more and the Facility is not reopened within
thirty (30) days from written notice from the City to
the CONCESSIONAIRE. "Abandonment" shall mean an
express repudiation or renunciation of material
operations under this Concession Agreement or any
material part thereof, coupled with the actual
closing of the Facility by the CONCESSIONAIRE,
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subject to the renovation and refurbishment
authorization and other permitted bases for such
closure as set forth in the Concession Agreement)
provided for in this Concession Agreement.
36.1.3.1 A change of ownership interest in CONCESSIONAIRE in
violation of the terms of this Concession Agreement
not cured within thirty (30) days from
CONCESSIONAIRE's receipt of written notice from the
CITY, or
36.1.3.2 Failure to submit the ownership list within thirty
(30) days from assignment or transfer.
36.1.4 The CONCESSIONAIRE falls sixty (60) days past the due
date for any sum or sums due the CITY under this
Concession Agreement, after receiving a thirty (30)
day written notice of such default from the CITY.
36.1.5 If an "Owner", or a "Principal" of an Owner of
CONCESSIONAIRE has been found guilty of, regardless
of final adjudication, or a plea of nolo contendere
to, any illegal conduct or activity which (i) is
customarily considered to be a felony "white collar
crime" such as, fraud, embezzlement or
misappropriation of funds or other felony crime,
unless CONCESSIONAIRE has demonstrated to the
reasonable satisfaction of the City, that within
thirty (30) days after adjudication of said Owner or
Principal that action, to the extent that the
CONCESSIONAIRE has the lawful right to do so, is
being diligently taken to remove said Principal or
Owner from any aspect of the business' operation
pending an appeal of the conviction unless such
appeal would prohibit such removal. If the conviction
is upheld on appeal, the other Principals or Owners
shall take diligent action, to the extent that the
CONCESSIONAIRE has the lawful right to do so, to
remove the convicted Principal or Owner entirely from
the business. To the extent that CONCESSIONAIRE seeks
to remove the convicted Principal or Owner by an
assignment of the Concession Agreement or the
transfer of interests in CONCESSIONAIRE, the
CONCESSIONAIRE shall have 90 days (together with an
additional 90 days with the consent of the City, not
to be unreasonably withheld) to
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commence and diligently pursue such assignment. For
the purposes hereof, an "Owner" is defined as a
general partner, or managing equity owner of
CONCESSIONAIRE, and a "Principal" shall be deemed a
general partner or an officer of an Owner.
36.1.5 Any illegal conduct or activity, which would be
considered a felony, by an employee of
CONCESSIONAIRE, upon CONCESSIONAIRE's failure to
contact the Contract Administrator or other
appropriate representative of the CITY to determine
an appropriate and lawfully permitted course action
within seventy-two (72) hours after receipt by
CONCESSIONAIRE of written notice from the Contract
Administrator or CITY, and/or the failure of the
CONCESSIONAIRE to commence and diligently pursue such
action within thirty (30) days thereafter.
36.1.7 Creation by CONCESSIONAIRE of a condition posing a
substantial public health risk not diligently
remedied by CONCESSIONAIRE within fifteen (15) days
(together with an additional fifteen (15) days with
the CITY's consent, not to be unreasonably withheld)
from receipt by CONCESSIONAIRE of written notice from
the CITY, or if such is not reasonably capable of
being cured within such thirty (30) days,
CONCESSIONAIRE has not diligently commenced such cure
within said thirty (30) day period.
36.1.8 Nonperformance of any material covenant of this
Concession Agreement and failure of CONCESSIONAIRE to
diligently remedy such breach within an additional
thirty (30) days from receipt by CONCESSIONAIRE of
written notice by the CITY, or if such is not
reasonably capable of being cured within such thirty
(30) days, CONCESSIONAIRE has not diligently
commenced such cure within said thirty (30) day
period.
36.2 The City shall only have the right to terminate this
Concession Agreement if an event of default remains uncured
after the expiration of all applicable cure periods (or if
such event of default is not reasonably capable of being cured
within such cure period, if CONCESSIONAIRE has not caused
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such cure and diligently pursued such cure) and upon an
additional fourteen (14) days written notice of termination
the CONCESSIONAIRE does not cure the event of default (or
commence to diligently cure; if such is not reasonably capable
of cure within such cure period).
36.3 In the event CITY properly terminates this Concession
Agreement pursuant to Section 36 hereof, any capital
improvements made at the Facility shall become the property of
the CITY.
36.4 Notices of default or for termination as specified hereunder
shall be sent by the CITY's Contract Administrator in the same
manner as described in Article 50 herein.
20. Paragraph 36.14 is modified to add at the beginning thereof:
"Where approval is required hereby,"
21. Paragraph 8 of the First Amendment is modified to add to the
definition of the term "Lender", any private entity in the business of lending
funds for facilities similar to the Facility, or other recreational facilities.
22. Notwithstanding anything herein contained, if any one or more of
the provisions of this Second Amendment shall for any reason whatsoever be held
to be illegal, invalid, or unenforceable in any respect, such illegality,
invalidity, or unenforceability shall not affect any other provision of this
Second Amendment, but this Second Amendment shall be construed as if such
illegal, invalid, or unenforceable provision had never been contained herein.
23. The Modified Agreement, as amended by this Second Amendment, shall
not be further modified except by an instrument in writing executed by each of
the parties hereto.
24. This Second Amendment shall be binding upon and shall inure to the
benefit of the parties hereto, and their respective successors and assigns.
25. This Second Amendment may be executed in any number of counterparts
and all counterparts shall be construed together and shall constitute but on
Agreement.
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26. Except as specifically modified herein, the Modified Agreement
shall continue in full force and effect without change or modification. To the
extent of any conflict or inconsistency between the provisions of the Modified
Agreement and this Second Amendment, the provisions ofthis Second Amendment
shall govern the rights and obligations of the Partnership. The Modified
Agreement as amended by this Second Amendment is hereby ratified and confirmed
by the parties hereto.
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IN WITNESS WHEREOF, the Partnership and the CITY have caused this
Second Amendment to be executed and made effective as of the day and year first
above written.
PARTNERSHIP:
ICELAND (CORAL SPRINGS), LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Iceland (Coral Springs) Corp., a Florida
corporation, as general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: President
---------------------------
ICE:
CORAL SPRINGS ICE, LTD., a Florida limited
partnership
By: Coral Springs Ice, Inc., a Florida
corporation, its general partners
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Vice President
---------------------------
CITY OF CORAL SPRINGS, FLORIDA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Title: Mayor
--------------------------------
Approved as to form by: Attest:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, City Clerk
Deputy City Attorney
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