HomeMy WebLinkAboutAM 10-052, Authorize the Avalanche Lease Page 1 of 2 AM No. 10-052
CITY OF PALMER ACTION MEMORANDUM NO. 10-052
SUBJECT: Authorize the City Manager to Negotiate and Enter Into a Lease and Facility Use
Agreement with the Alaska Avalanche Hockey Club LLC for a Period of Five (5) Years
AGENDA OF: July 13, 2010
Council action:
Approved for presentation by B. B. Allen, City Manager_______________________
Route
To: Department/Individual: Initials/Date: Remarks:
X Originator – City Manager 6-30-10
X City Clerk 7/7/10
X City Attorney 7/7/10
Director of Administration
Director of Community
Development
Director of Community Services
Director of Public Safety
Director of Public Works
Attachment(s): Lease and Facility use Agreement with Alaska Avalanche Hockey Club LLC
Certification of Funds:
No fiscal impact.
Funds are budgeted from this account number:
X Funds are not budgeted. 2010 Budget modification is required.
Affected account number: 01-00-00-3XXX
$17,428
(4 months x 4,357)
Director of Administration Signature: ________
Summary statement: Passage of action memorandum no. 10-052 provides for a five year
agreement with the Alaskan Avalanche Hockey Club LLC from which the City will derive direct
payments of $30,500 per year, and sales tax revenue from increased use and sales associated
with 27 Avalanche Home Hockey Games. The City commits to expansion of the arena with new
locker rooms, an equipment storage facility, seating to accommodate 1,500 spectators and the
ancillary items which accompany expansion of the facility.
Background: The City Manager has been working with Avalanche representatives for the past
several months to bring the franchise to Palmer. On June 8, 2010, the City Council passed an
Ordinance no. 10-013 which permits beer and wine sales at the Palmer Ice Arena. The five year
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Lease and Facilities Agreement spells out the particulars of the association including the
following:
• A $50,000 capital investment from the Avalanche over a 4 year period
• An annual fee Rent and Facility Use Fee of $30,500 paid by the Avalanche each year
• All beverages and food during league hockey games shall be sold by the Avalanche
• Advertising revenues are split with the City retaining advertising on the Zamboni,
Scoreboard, Center Ice, and the Arena name
• Expansion of the Arena by the 2011-12 Season to 1,500 seats
Note: Separate legislation in the July 13, 2010, City Council packet addresses construction
costs.
Administration recommendation: Approve action memorandum 10-052.
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City of Palmer
Alaska Avalanche Hockey Club LLC
Lease and Facility Use Agreement
LEASE AND FACILITY USE AGREEMENT (“Agreement”) made as of the ___ day of ______,
2010 by and between the CITY OF PALMER (“City”), and ALASKA AVALANCHE HOCKEY
CLUB, LLC (“AAHC”).
W I T N E S S E T H :
In consideration of the mutual covenants herein, the parties agree as follows:
Section 1. Definitions and Attachments
1.1 Certain Defined Terms.
As used herein, the term:
(a) Palmer Arena (PA) means the Palmer Ice Arena located at 1317 Kerry Weiland
Court, Palmer, Alaska.
(b) “Default Rate” means an annual rate of interest equal to the lesser of (i)
the maximum rate of interest for which AAHC may lawfully contract in
Alaska, or (ii) ten and one-half percent (10.5%).
(c) “Fees” mean the fees that are payable by AAHC for the use of the Leased
Premises under Sections 5.1 and 5.2.
(d) “Leased Premises” means the areas within the PA that are defined as such in
Section 2, and marked on the PA floor plan attached hereto as Exhibit ”B.”
(e) “Term” means the term of this Agreement as defined in Section 4.1.
(f) “Home Game” means any event where a ticket is sold or donation is made in
lieu of compensation including pre-season tournaments, charity games, regular
season, conference playoff, divisional playoff, championship playoff, league
sanctioned event or tournament played pursuant to a schedule established by
the AAHC or North American Hockey League.
(g) “Prime Time” means Saturday and Sunday of each week of the season from
8:00 AM – 8:00 PM and Monday through Friday 5:00 PM-8:00PM.
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(h) “Non-Prime Time” means the remainder of the time the rink is open not
designated Prime Time, Monday through Friday 10:00 AM-4:00 PM and 10:00
PM Monday through Sunday and 9:00 PM Sunday.
1.2 Additional Defined Terms. The following additional terms are defined in the Sections
of this Agreement noted below:
Term Section
“Event of Default” 11.1
“Rent and Facility Use Fees” 5.1
1.3 Exhibits. The following documents are attached hereto, and shall be deemed to be a
part thereof:
Exhibit ”A” Schedule for AAHC’s Use of the Facility
Exhibit ”B” Floor Plan of the PA
Exhibit ”C” Services and Conditions
Exhibit “D” Palmer Arena Rules and Regulations
Exhibit ”E” Minimum Security Requirements
Exhibit “F” Signage and Advertisements
Exhibit “G” PA/AAHC Improvement Plan
Section 2. Leased Premises. City hereby leases to AAHC, and AAHC hereby rents from City,
the areas described in this agreement, subject to Section 1.3 Exhibits A-G within the
PA (collectively, the “Leased Premises”). City shall deliver possession of the Leased
Premises to AAHC on August 30, 2010, and AAHC accepts the Leased Premises as
they exist on that date.
2.1 Equipment Storage Area and Locker Room. The locker room is for the assembly of
the team for practice, pre-game and post-game activities. AAHC has the exclusive use
of this room for the term of this agreement. A portion of the room can be used for the
storage of equipment associated with the operation of AAHC’s activities. For the
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2010-11 season City agrees to provide an area upstairs in the PA for AAHC’s
equipment storage.
2.2 Equipment Storage Area and Locker Room
(a) The City will provide a minimum of 520 square feet of space to be used by
AAHC with the agreement that AAHC will pay for all leasehold improvements
to that space.
Section 3. Facility Use. The City hereby leases to AAHC the following areas within the PA (the
“Leased Premises”) subject to conditions stated below.
3.1 Description of Leased Premises. The Facility shall consist of the areas described in
this agreement and depicted in Exhibits A-G.
3.2 All fixtures and display cases are recognized as part of the building. No
advertisements on or use of such areas is permitted. See Exhibit F.
Section 4. Term.
4.1 Commencement and Termination. The Term of this agreement commences on August
30, 2010, and expires on May 1, 2015. If AAHC fails to surrender the Leased Premises
at the end of the Term or any renewal thereof, in addition to the other remedy which
the City may have, AAHC shall defend and indemnify City against all claims and
demands by a succeeding tenant, arising from AAHC’s failure to surrender the Leased
Premises at the end of the Term. This agreement may be terminated:
(a) By the mutual consent of the Parties, expressed in writing;
(b) By either Party immediately upon a material breach of this agreement; or
(c) By the City of Palmer if there are insufficient funds lawfully appropriated for
its performance.
4.2 Holding Over. If AAHC is in possession of the Leased Premises after the end of the
Term of this Agreement, in the absence of any agreement extending the Term, the
tenancy under this Agreement shall become one from month to month, terminable by
either party on thirty (30) days prior written notice, at a monthly rental equal to one
hundred fifty percent (150%) of the average monthly rent.
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4.3 Extension of Term. City may, in its discretion, offer to extend the Term for up to two
additional one (1) year periods. City shall give AAHC written notice of an offer to
extend the Term at least ninety (90) days before the expiration of the current Term.
AAHC may accept an offer to extend the Term by giving City written notice of
acceptance not later than thirty (30) days after the date of City's notice of the offer to
extend. In the event that AAHC accepts City's' offer to extend the Term, all of the terms
and conditions of the Agreement, except as modified in the City's offer to extend the
Term, shall remain in full force and effect during the extended Term.
Section 5. Rent, Fees, Security and Capital Improvement Contribution
5.1 Rent and Capital Improvement Fees. AAHC shall pay annual Rent and Facility Use
Fees for the Leased Premises in the amount of $30,500, for home games and
exhibition games for the Term of this Agreement.
(a) Included in the Home Game Fee shall be 130 hours of practice ice (non-prime
time, 94.5 hours of game ice, and twelve (12) months use a minimum of 520
square feet of locker room and coaches office storage space in the PA.
(b) Included in the per Exhibition Game Fee shall be 3 hours of game ice, subject
to the Facility Use Fee specified in Section 5.2.
(c) AAHC agrees to pay $50,000 for capital improvements to the Palmer Arena,
under the following terms:
1. $12,500 on signing.
2. Three additional annual installments of $12,500 each payable on _____.
5.2 Facility Use Fees – Additional Ice. AAHC shall pay prevailing advertised rate as
published on the PA website for ice rental in excess of that purchased in Section 5.1.
5.3 Sale of Alcoholic & Non-Alcoholic Beverages & Food.
(a) All non-alcoholic beverages and food items and their associated costs must be
approved in writing by the City prior to any sale by the AAHC.
5.4 Fee Adjustments. This is a five (5) year contract and there will be no fee adjustments,
subject to Palmer Municipal Code 3.21.150.
5.5 Payment for Additional Services. In addition to the Rent and Facility Use Fees payable
under Section 5.1 and 5.2, AAHC shall reimburse the City for any and all services not
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included in this Agreement, but requested by AAHC or required to fulfill AAHC's
responsibilities under the terms of this Agreement.
5.6 AAHC shall pay all home game fees and practice ice fees per section 5.1 and 5.2 on or
before the first day of the month, at the rate of $4,357.00 per month for seven (7)
months beginning September, 2010. This fee includes game and practice ice time.
(a) Rent or Fee payments not received by the City within five (5) days after the
due date are considered delinquent and will be subject to interest at the Default
Rate specified in Section 1.1(b).
(b) In addition, AAHC will not be allowed to use the Facility until all delinquent
payments, plus accrued interest, have been made to the City. Reinstatement of
scheduled use following a delinquency will require prepayment of estimated
monthly Facility use fees by the first day of each month for the remainder of
the Term of this Agreement. Any payment by AAHC or acceptance by City of
a lesser amount than shall be due from AAHC to City shall be treated as a
payment on account.
5.7 Security Deposit and Guarantees.
(a) The City requires that an irrevocable letter of credit in the amount of
$100,000.00 be issued by Wells Fargo Bank, N.A. in favor of the North
American Hockey League as security for the Alaska Avalanche Hockey Club
LLC Membership Agreement with the North American Hockey League.
(b) The City requires a Personal Promissory Note with Guaranty of Operations in
the amount of $150,000.00 to be personally executed by Mark D. Lee in favor
of the North American Hockey League.
(c) Both of the foregoing finance instruments described in (a) and (b) must be in
full force during the term of this agreement. In the event either (a) or (b) lapse,
the agreement will be considered in default. The owner of Avalanche Hockey
Club LLC will notify the American Hockey League in writing to notify City in
the event of default of either (a) or (b).
Section 6. Signs and Advertising.
6.1 Signs on Leased Premises.
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(a) There shall be no signage on the exterior of the leased premises except by a
major sponsor designated by the City.
6.2 Advertising in Facility.
(a) The City reserves the right to withhold permission from AAHC to solicit
advertising for the following locations in the arena:
(i) Zamboni
(ii) Arena Scoreboard
(iii) Center Ice in the Arena
(b) The term of any advertising placed in the Facility under (a) of this section
expires at the termination of this agreement unless extended by prior agreement
between the AAHC and the City. The City makes no warranties or
representations of any kind concerning the nature or number of events to be
held in the Facility and the City shall have no liability for any failure to display
advertising or for any other matter concerning the use of the sign system due to
any act of God, or any other reason beyond the control of the City.
(c) AAHC shall arrange for the manufacture and installation of all dasherboard ads,
including any protective covering necessary to ensure durability of the ad.
The City will hang ceiling banners at its expense. AAHC will not request less
than six (6) banners to be hung at one time. In the event AAHC is required to
hang less than six (6) banners, it will pay 50% of the installation costs.
Advertising material shall be subject to approval of the City for compatibility
with available technical processes.
(d) This agreement allows event-specific advertising and sponsorship for other PA
users without altering or defacing AAHC’s advertisements
(e) All advertisements must be approved by the City. The City has the right to
refuse any advertisement that may not be in the best interest of the PA or the
community.
(f) This section applies to all advertisements that are affixed to the ice hockey
dasher boards, walls, railings, glass and other structures that are permanent
fixtures of the facility. Any advertising affixed to any portable structure by the
AAHC, whether it is for the entire season or during games only, is subject to
approval by the City.
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(g) All advertising or promotional materials displayed in or distributed in the
building or on the common grounds of the facility including driveways,
parking lots and easements is subject to written approval by the City.
(h) See Exhibit F regarding signage and advertisements. Conceptual Layout
Options.
Section 7. Additional Covenants of AAHC.
7.1 (a) Compliance with Laws, Regulations and Codes. AAHC, at its expense,
shall use the Leased Premises and the PA in compliance with all federal, state,
municipal and other governmental statutes, laws, rules, orders, regulations and
ordinances.
(b) AAHC acknowledges Section 3.2 and shall not cover permanent cases.
7.2 PA Rules and Regulations: Care of Facility. AAHC shall comply with the Facility
Rules and Regulations in Exhibit D, as they may be amended by the City from time to
time. The City shall notify AAHC in writing of any amendment to the PA Rules and
Regulations.
7.3 Accommodation of Other PA Users. AAHC shall assure that all participants,
spectators and others who are present at its events at the PA conduct themselves in a
professional, inoffensive and unobtrusive manner toward other persons who have been
permitted to use the PA before, during and after AAHC’s use of the PA and Leased
Premises.
7.4 Facility Occupancy. AAHC shall not admit persons to an event at the Facility in
numbers exceeding the PA’s maximum building occupancy. The PA/AAHC
improvement plan is attached as Exhibit G.
7.5 Security. AAHC, at its expense, shall provide a minimum of five (5) unarmed,
uniformed security guards for each game and tournament in the Facility, and provide
security and crowd control as described in Exhibit E to this Agreement. Security
personnel must be clothed in attire designating them as facility security employees.
7.6 Alcoholic Beverage Sales.
(a) AAHC shall not permit persons attending AAHC events to bring alcoholic
beverages into the PA. Alcoholic beverages may be purchased and consumed
within the PA only in areas that the State of Alaska Alcoholic Beverage Control
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Board has designated and approved for that purpose. AAHC shall have at least
one uniformed security personnel at each access point to any area designated for
the purchase or consumption of alcoholic beverages. AAHC shall ensure that all
rules and regulations of the State of Alaska Alcoholic Beverage Control Board
including but not limited to Alaska Statute Title 4 and Alaska Administrative
Code Title 13, Chapter 104 are strictly enforced during AAHC events at the PA.
(b) Due to the anticipated presence of a large number of youthful spectators at
AAHC events, it is imperative that AAHC take effective preventive and
remedial measures against minors consuming alcoholic beverages,
irresponsible consumption of alcoholic beverages, and disorderly conduct.
Without limiting the generality of the foregoing, AAHC shall enforce strictly
the exclusion and removal from the. PA of minors consuming alcoholic
beverages, intoxicated persons, and persons engaging in disorderly conduct,
and summon necessary police assistance in a timely manner.
AAHC shall maintain a written record of each incident in which a person is removed from the PA and
each call for police assistance under this subsection, report all injuries and furnish a copy of each such
record to the City not later than the first business day after the incident. The City reserves the right to
trespass fans for cause.
(c) AAHC shall cease all sales and/or service of alcoholic beverages at a time no later
than when ten (10) minutes remain on the game clock of the third period of each
game played in the PA.
(d) If AAHC at any time fails to comply with any requirements in subsections (a)
through (c) of this section, in addition to any other remedy that is available for
AAHC's breach of this Agreement, the' City may restrict or terminate AAHC's
permission to sell alcoholic beverages in the PA for all or part of the remainder of
the Term of this Agreement.
7.7 Equipment and Utensils. AAHC shall keep any equipment owned and used by AAHC
in the PA in clean and good working condition at all times at AAHC’s expense.
AAHC shall be responsible for repairing or replacing any equipment or other property
owned by the City and used by the AAHC that is lost, damaged or otherwise rendered
unfit for use for reasons other than reasonable wear and tear. AAHC shall maintain all
AAHC supplied concession equipment and utensils in clean, sanitary and proper
working order. AAHC shall repair promptly any malfunctioning AAHC supplied
equipment or remove it from the Facility.
Failure of AAHC to abide by the above requirements may result in the revocation of
the authorization for concession operations in the Facility. AAHC shall remain in
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compliance with all health and safety rules and regulations as promulgated by Alaska
State Statutes. AAHC shall remove all of its equipment from the Facility not later than
the earlier to occur of (i) the expiration of the Term of this Agreement, and (ii) fifteen
(15) days after AAHC’s last event during the Term of this Agreement, unless City and
AAHC agree in writing to a different schedule for the removal.
7.8 City at its expense will maintain the Leased Premises in a clean, orderly and sanitary
condition and free of insects, rodents, vermin and other pests; keep any refuse in
industry standard containers within the interior of the Leased Premises until removed;
and have such refuse removed on a daily basis. AAHC will not obstruct any driveway,
corridor, walkway, parking area, lobby or any other area within the PA. AAHC will
not permit the parking of vehicles so as to interfere with the use of any driveway,
corridor, walkway, parking area or loading area; receive or ship articles of any kind
outside the designated loading areas for the Leased Premises; or place a load upon any
floor which exceeds the floor load which the floor was designed to carry. In
accordance with occupational health and safety and medical protocol, AAHC agrees to
clean up blood on ice and all leased premises areas.
7.9 Damage to the PA. AAHC shall pay the cost of repairing any damage to the PA that
occurs while AAHC is using or occupying the Leased Premises, and any damage to
the PA that is caused by AAHC, its contractors, agents or invitees.
7.10 Taxes. AAHC shall pay the appropriate taxing authority any and all sales, excise and
other taxes levied, imposed or assessed upon the Rent or Fees payable hereunder.
AAHC shall also be solely responsible for and pay within the time provided by law all
taxes imposed on its inventory, furniture, trade fixtures, apparatus, equipment and any
other of AAHC’s personal or other property.
7.11 Description of the PA. In all of its written materials and advertising, AAHC shall refer
to the PA only as the Matanuska Telephone Association Palmer Arena or as further
directed by the City.
Section 8. Management and Operation of the PA.
8.1 Management and Operation.
(a) City will operate and maintain the PA in a manner deemed by the City to be
reasonable and appropriate and in the best interests of the PA. City will have
the right (i) to establish, modify and enforce reasonable rules and regulations
with respect to the PA, (ii) to enter into, modify and terminate easements and
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other agreements pertaining to the use and maintenance of the parking areas
and other parts of the PA, (iii) to enforce parking charges, (iv) to close
temporarily any or all portions of the PA, (v) to discourage non-customer
parking, and (vi) to do and perform such other acts in and to said areas and
improvements as, in the exercise of good business judgment, City shall
determine to be advisable.
(b) AAHC is responsible for staffing parking activities for games, but not for
practices.
8.2 Changes and Additions to the PA.
(a) City reserves the right at any time and from time to time (i) to make or permit
changes or revisions in its plan for the PA including additions to, subtractions
from, rearrangements of, alterations of, modifications of or supplements to the
building areas, walkways, parking areas, driveways, or other areas, (ii) to
construct other buildings or improvements on the PA and to make alterations
thereof or additions thereto, and (iii) to make or permit changes or revisions in
the PA including additions thereto, and to convey portions of the PA to others for
the purpose of constructing thereon other buildings or improvements, including
additions thereto and alterations thereof.
(b) City will provide minimum seating for 1,500 people on or before August 2011.
City will provide a locker room and coach’s office as described in exhibit G.
8.3 Utilities. City shall pay all charges for water, sewer and electric service to the Leased
Premises and the Facility. AAHC shall not at any time overburden or exceed the
capacity of the mains, feeders, duels, conduits, or other facilities by which such utilities
are supplied to, distributed in or serve the Leased Premises or the Facility. If AAHC
desires to install any equipment that will require additional utility facilities or utility
facilities of a greater capacity than the facilities provided by City, such installation shall
be subject to City's prior written approval of AAHC's plans and specifications therefore.
If City approves such installation and if City provides such additional facilities to
accommodate AAHC’s installation, AAHC agrees to pay City, on demand, the cost for
providing such additional utility facilities or utility facilities of greater capacity.
8.4 Concession Sales Locations. The City, in its sole discretion shall determine the
assignment of concession sale locations within the Facility. The AAHC may equip and
operate the concession sale locations assigned to it by the City during all AAHC
sponsored events and at such other times as AAHC may request subject to City
approval. The AAHC will make no modifications to the structure or utility services
provided in the concession sale locations without the prior written consent of the City.
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Any such changes will comply with applicable codes and be subject to inspection and
approval by the City Public Works Department. AAHC may use designated concession
sale locations for selling alcoholic beverages, team memorabilia, raffle tickets, fifty-fifty
(50-50) game tickets, programs, and other items with the prior written consent of the
City.
8.5 Concession Sales Locations.
(a) Day of Game Ticket Sales. AAHC shall be responsible for day of game ticket
sales. AAHC shall offer day of game ticket sales beginning no later than sixty
(60) minutes before the start of each game. City shall permit AAHC to use of the
PA ticket booth on a nonexclusive basis with the PA staff and other individuals
or groups approved by the City. There will be no charge to AAHC for the use of
the ticket booth.
8.6 Employee Parking. AAHC's employees, players, and volunteers shall comply with
City's parking rules and regulations. Parking shall be available to employees on a first-
come, first-served basis in common with other visitors to the PA. AAHC shall notify
its employees in writing of the provisions of this section.
Section 9 Liability, Indemnity and Insurance.
9.1 Limitation of City Liability. City shall not be liable for the unavailability of the
Leased Premises. AAHC will provide a copy of its policy through League USA.
9.2 Indemnification by AAHC. The AAHC shall defend and hold the CITY, its officers,
employees and agents harmless from and against any and all liability, loss, expense
(including reasonable attorney's fees), or claims for death or injury to persons or damage
to property arising out of the performance of this lease and facility use agreement but
only in proportion to and to the extent such liability, loss, expense, attorney's fees, or
claims for injury or damages are caused by or result from the negligent or culpable acts
or omissions of AAHC, its officers, agents or employees.
The CITY shall defend and hold the AAHC, its officers, employees and agents harmless
from and against any and all liability, loss, expense (including reasonable attorney's
fees), or claims [or death or injury to persons or damage to property arising out of the
performance of this lease and facility use agreement but only in proportion to and to the
extent such liability, loss, expense, attorney's fees, or claims for injury or damages are
caused by or result from the negligent or culpable acts or omissions of the CITY, its
officers, agents, or employees.
9.3 Required Insurance Coverage. Before commencing its occupancy of the Leased
Premises or use of the Facility, and at all times during the Term of this Agreement,
AAHC shall carry and maintain at its expense the following nondeductible insurance
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coverage. AAHC may meet these insurance requirements with any combination of
primary and excess/umbrella policies.
(a) Commercial general liability, including without limitation insurance against
assumed or contractual liability under this Agreement, with limits of liability
not less than $1,000,000 combined single limit bodily injury and property
damage, $1,000,000 personal injury, and $2,000,000 aggregate.
(b) Automobile liability, with a combined single limit of not less than $1,000,000
per accident applying to all vehicles used in conjunction with this lease.
(c) Workers' compensation, including employer's liability with limits of not less
than $500,000 per accident, $500,000 disease-policy limit, and $500,000
disease -each employee.
(d) Liquor liability, commencing before AAHC sells any alcoholic beverages in
the Facility, with limits not less than $3,000,000 each common cause,
$3,000,000 annual aggregate.
(e) Umbrella/Excess Liability $1,000,000 Occurrence and $1,000,000 Aggregate.
The Umbrella/Excess policy shall provide excess limits over the general
liability, liquor liability, employers liability and auto liability
(f) No pyrotechnical and/or flash use permitted.
9.4 Insurance Policy Requirements. Insurance Policy Requirements. AAHC shall provide
City with certificates of insurance and/or copies of each policy acceptable [a City for
the coverage’s listed herein promptly upon commencement of AAHC's obligation to
procure the same. The company or companies writing any insurance which AAHC is
required to carry and maintain as well as the form of such insurance shall at all times
be subject to City's approval, and any such company or companies shall be licensed to
do business in the State of Alaska and shall have a minimum A.M. Best rating of A
VII or be approved by the City Manager. AAHC’s insurance policies shall be primary
and non contributory with any insurance maintained by the City and will name the
City as additional insured on their Commercial general liability, automobile liability
and liquor liability insurance policies. AAHC will waive all rights of subrogation
against the City for any losses arising from leased premises. A waiver of subrogation
will be endorsed on AAHC’s workers compensation, general liability, liquor liability
and auto liability policies. Commercial general liability, automobile liability and liquor
liability insurance policies shall name City as additional insured and shall require that
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the insurer provide the City with thirty (30) days written notice before it cancels,
refuses to renew or materially alters coverage required by this Agreement.
Section 10. Repairs and Alterations: Liens.
10.1 Maintenance by City. City shall maintain the PA in good repair, except for the
maintenance and repairs that are AAHC's responsibility under this Agreement.
10.2 AAHC's Improvements and Maintenance. AAHC shall install at its expense the
furniture, fixtures and equipment that it requires to conduct its business in the Leased
Premises, using new and quality materials and equipment. Not later than the end of the
Term, AAHC shall remove all furniture, fixtures and equipment that it has installed in
the Leased Premises, AAHC shall repair any damage to the Leased Premises caused by
the removal of its furniture, fixtures or equipment, and shall surrender the Leased
Premises at the expiration of the Term or at such other time as it may vacate the Leased
Premises in as good condition as when received, excepting ordinary wear and tear.
AAHC will alter "the Leased Premises only with the prior written approval of City,
AAHC shall perform any approved alterations at its expense, promptly, efficiently,
competently, and in a good and workmanlike manner by duly qualified and licensed
persons, using first grade materials, without interference with or disruption to the
operations of the PA. All such work shall comply with all applicable governmental
codes, rules, regulations and ordinances.
10.3 Mechanics Liens: AAHC shall pay promptly all persons furnishing labor or materials
with respect to any work performed by AAHC on or about the Leased Premises,
AAHC promptly shall discharge of record or bond to the satisfaction of City any
mechanic's or other lien filed against the PA, by any such person. If AAHC fails to
discharge of record or bond to the satisfaction of City any such lien, then, in addition
to any other right or remedy, City may bond or discharge the same, and AAHC shall
pay to City upon demand the amount so paid by City plus its attorney's fees incurred in
defending against such lien or in procuring its discharge, together with interest thereon
at the Default Rate specified in Section 1.1(a).
Section 11. Default.
11.1 "Event of Default” Defined. Anyone or more of the following events shall constitute an
"Event of Default":
(a) The failure of AAHC to pay any Rent, Fees or other sum of money when due
hereunder;
(b) Default by AAHC in the performance or observance of any covenant or
agreement of this Agreement (other than a default involving the payment of
money), which default is not cured within ten (10) days after the giving of notice
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thereof by City, unless such default is of such nature that it cannot be cured
within such ten (10) day period, in which case no Event of Default shall occur so
long as AAHC shall commence the curing of the default within such ten (10) day
period and shall thereafter diligently prosecute the curing of same; provided,
however, if AAHC shall default in the performance of any such covenant or
agreement of this Agreement three (3) or more times in any twelve (12) month
period, that notwithstanding such defaults have each been cured by AAHC, any
further similar default shall be deemed an Event of Default without the ability to
cure;
(c) The sale of AAHC’s interest in the Leased Premises under attachment, execution
or similar legal process; or if AAHC is adjudicated as bankrupt or insolvent
under any state bankruptcy or insolvency law or an order for relief is entered
against AAHC under the federal Bankruptcy Code and such adjudication or order
is not vacated within ten (10) days;
(d) The commencement of a case under any chapter of the federal Bankruptcy Code
by or against AAHC, or the filing of a voluntary or involuntary petition
proposing the adjudication of AAHC as bankrupt or insolvent, or the
reorganization of AAHC, or an arrangement by AAHC with its creditors, unless
the petition is filed or case commenced by a party other than AAHC and is
withdrawn or dismissed within thirty (30) days after the date of its filing.
(e) The admission in writing by AAHC of its inability to pay its debts when due;
(f) The appointment of a receiver or trustee for the business or property of AAHC,
unless such appointment shall be vacated within ten (10) days of its entry;
(g) The making by AAHC of an assignment for the benefit of its creditors, or if in
any other manner AAHC's interest in this Agreement shall pass to another by
operation of law;
(h) The vacating or abandonment of the Leased Premises by AAHC at any time
during the Term of this Agreement;
(i) The occurrence of any other event described as constituting an "Event of
Default" elsewhere in this Agreement.
11.2 Remedies. Upon the occurrence and continuance of an Event of Default, City, without
notice to AAHC in any instance (except where expressly provided for below or required
by law) may do anyone or more of the following:
(a) With or without judicial process, enter the Leased Premises and take possession
of any and all goods, inventory, equipment, fixtures and all other personal
Page 15 of 18
property of AAHC situated in the Leased Premises without liability for trespass
or conversion, and may sell all or any part thereof at public or private sale.
AAHC agrees that five (5) days' prior notice of any public or private sale shall
constitute reasonable notice. The proceeds of any such sale shall be applied, first,
to the payment of all costs and expenses of conducting the sale or caring for or
storing said property, including all attorneys' fees; second, toward the payment of
any indebtedness, including without limitation indebtedness for Rent or Fees,
which may be or may become due from AAHC to City; and third, to pay the
AAHC, on demand, in writing, any surplus remaining after all indebtedness of
AAHC to City has been fully paid.
(b) Perform, on behalf and at the expense of AAHC, any obligation of AAHC under
this Agreement which AAHC has failed to perform and of which City shall have
given AAHC notice, the cost of which performance by City, together with
interest thereon at the Default Rate from the date of such expenditure, shall be
payable by AAHC to City upon demand.
(c) Elect to terminate this Agreement and the tenancy created hereby by giving
notice of such election to AAHC, and may reenter the Leased Premises, without
the necessity of legal proceedings, and may remove AAHC and all other persons
(if AAHC is still in possession) and property from the Leased Premises, and may
store such property in a public warehouse or elsewhere at the cost of and for the
account of AAHC without resort to legal process and without City being deemed
guilty of trespass or becoming liable for any loss or damage occasioned thereby.
(d) Exercise any other legal or equitable right or remedy which it may have.
Notwithstanding the provisions of subsection (b) of this section, and regardless of
whether an Event of Default shall have occurred, City may exercise the remedy
described in subsection (b) of this section without any notice to AAHC if City, in its
judgment, believes it would be injured by failure to take rapid action or if the
unperformed obligation of AAHC constitutes an emergency. Any costs and expenses
incurred by City (including without limitation attorneys' fees) in enforcing any of its
rights or remedies under this Agreement shall be repaid to City by AAHC upon demand.
Section 12. Inspection/Access by City. AAHC will permit City, its agents, employees and
contractors to enter all parts of the Leased Premises during AAHC's business hours,
upon 24 hours' notice, except in case of emergency, to inspect the same and to enforce or
carry out any provision of this Agreement, including, without limitation, any access
necessary for the making of any repairs which are City's obligation hereunder; provided,
however, that, in an emergency situation, such access shall be at any time upon City's
oral request.
Page 16 of 18
Section 13. Miscellaneous.
13.1 Notices. Any notice, request, demand, approval or consent given or required to be given
under this Agreement shall be in writing and shall be addressed as follows:
To City: City of Palmer
Steve Carrington, Director
Department of Community Services
231 W. Evergreen
Palmer, AK 99645
To AAHC: Alaska Avalanche Hockey Club, LLC
Attn: Mark Lee
1560 North Legacy Lane
Palmer, AK 99645
Either party may, at any time, change its notice address for the above purposes by sending a
notice to the other party stating the change and setting forth the new address.
13.2 No Waiver. No failure by City to insist upon the strict performance of any agreement,
term, covenant or condition hereof, or to exercise any right or remedy consequent upon a
breach thereof, and no acceptance of full or partial fees during the continuance of any
such breach, shall constitute a waiver of any such breach, agreement, term, covenant or
condition. No waiver by City of any breach by AAHC under this Agreement shall affect
or alter AAHC's obligations under this Agreement in any way whatsoever
13.3 Successors and Assigns. No benefit under this Agreement may be assigned; nor may any
duty under this Agreement be delegated, without the prior written consent of the City.
13.4 Captions and Headings. The Section captions and headings in this Agreement are for
convenience of reference only and in no way shall be used to construe or modify the
provisions set forth herein.
13.5 No Discrimination. It is intended that the Facility shall be developed so that all
prospective tenants and users thereof, and all customers, employees, licensees and
invitees of all tenants shall have the opportunity to obtain all the goods, services,
accommodations, advantages, facilities and privileges of the PA without discrimination
because of race, creed, color, sex, age, national origin or ancestry, To that end, AAHC
shall not discriminate in the conduct and operation of its business in the PA against any
person or group of persons because of the race, creed, color, sex, age, national origin or
ancestry of such person or group of persons.
Page 17 of 18
13.6 No Joint Venture. Any intention to create a joint venture or partnership relation between
the parties hereto is hereby expressly disclaimed.
13.7 Integration; Amendment. The parties intend this Agreement and its attachments hereto
to be the final expression of their agreement and as the complete and exclusive statement
of the terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. This Agreement may be modified only by a
writing signed by the party against whom the modification is enforceable.
13.8 Severability. If any term or provision, or any portion thereof, of this Agreement, or the
application thereof to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and be enforced to the fullest extent permitted by law.
13.9 No Third Party Beneficiaries. Nothing contained in this Agreement shall be construed
so as to confer upon any other person the rights of a third party beneficiary.
13.10 Applicable Law; Venue. This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with the laws of the State of Alaska and the
City of Palmer. Any legal proceeding in connection with this Agreement shall be in the
trial courts for the State of Alaska for the Third Judicial District in Palmer.
Page 18 of 18
IN WITNESS WHEREOF, the parties hereto have set their hands the day and year stated in the
acknowledgments below.
CITY OF PALMER, ALASKA ALASKA AVALANCHE HOCKEY CLUB, LLC
_____________________________________ _____________________________________
B. B. ALLEN, City Manager NAME, Title
STATE OF ALASKA )
) ss:
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this ___ day of ________, 2010, before me, the undersigned, a
Notary Public in and for the State of Alaska, duly commissioned and sworn, personally appeared Bill Allen,
known to me and to me known to be the City Manager of the City of Palmer who executed the foregoing
instrument, and he acknowledged to me that he signed the same freely and voluntarily on behalf of the City of
Palmer for the uses and purposes therein mentioned.
WITNESS my hand and official seal.
Notary Public in and for Alaska
My commission expires:
STATE OF ALASKA )
) ss:
THIRD JUDICIAL DISTRICT )
THIS IS TO CERTIFY that on this ___day of ________, 2010, before me, the undersigned, a
Notary Public in and for the State of Alaska, duly commissioned and sworn, personally appeared
_________________, known to me and to me known to be the ____________ of the Alaska Avalanche Hockey
Club, LLC, who executed the foregoing instrument, and acknowledged to me that he/she signed the same freely
and voluntarily on behalf of the Alaska Avalanche Hockey Club, LLC for the uses and purposes therein
mentioned.
WITNESS my hand and official seal.
Notary Public in and for Alaska
My commission expires:
EXHIBIT A
City of Palmer
231 W. Evergreen
Palmer, Alaska 99645
Phone (907) 745-3271
Fax (907) 745-0930
Customer Schedule at the Palmer Ice Arena
Dates for the Week of _______________________
Contact Name __________________________________ Contact Phone ____________
DATE DAY CUSTOMER NAME EVENT TYPE START TIME END TIME
DURATION (MIN)
6-8-2010 TU SAMPLE Private Rent 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE Private Rent 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE 2 Practice 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE Private Rent 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE 2 Practice 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE 2 Practice 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE 2 Practice 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE 2 Practice 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE Private Rent 6:00 PM 7:00 PM 60
6-8-2010 TU SAMPLE 2 Practice 6:00 PM 7:00 PM 60
“ “ “ “ “ “ “ “
“ “ “ “ “ “ “ “
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EXHIBIT B
FLOOR PLAN
EXHIBIT C
SERVICES AND CONDITIONS
1. The City shall provide ice resurfacing, scoreboard, public address system, team
locker rooms for each event and maintenance thereof.
2. The City shall provide a single dedicated phone line for use by the media. Long
distance calls will only be available by using a call card or calling collect.
3. AAHC will have access to the facility beginning ninety (90) minutes prior to the
scheduled start of each game. Doors are scheduled to open forty-five (45)
minutes prior to the start of each scheduled game. Other Users of the ice rink
have until sixty (60) minutes prior to the start of each scheduled game to vacate
the ice rink and team locker rooms.
4. AAHC shall keep its assigned equipment storage area clean and orderly.
5. AAHC shall inform its concessionaires to thoroughly clean the designated
concession area(s) at the end of each game.
6. AAHC shall remove all supplies from and thoroughly clean the designated
concession area(s) no later than five (5) days after the last event of the season.
7. AAHC shall obtain all necessary permits, licenses and insurance and abide by all
city, borough, state and federal laws pertaining to the sale of alcoholic beverages.
8. The City has the final approval on any banners placed in or around the facility.
9. AAHC shall give written notice of all proposed dates for special events/activities
during any of the AAHC’s sponsored events (e.g. cars/trucks on the ice, foreign
materials on the ice surface, crowd participation events, throwing or catching
events, skating parties after games, etc.). The City will approve or disapprove
these events in writing.
10. AAHC shall not obstruct any access to stairs or exit doors.
11. AAHC shall enforce the rule of no participants permitted on the walking track for
the purpose of watching the event without consent of the facility manager.
12. AAHC shall provide all “on/off” ice officials for games and be responsible for all
related expenses.
EXHIBIT D
ARENA RULES AND REGULATIONS
1. AAHC may not be on the ice surface or sit on the dasher boards in the players or
penalty boxes during the resurfacing or other maintenance operations. All gates
to the arena are to remain closed during resurfacing operations. AAHC may
return to the ice surface after the Zamboni has completed resurfacing the ice and
the gates are closed; or when other maintenance operations have been completed.
2. Absolutely no puck shooting may take place when a MTAPA staff person is on
the ice or personnel gates are open. Puck shooting when a MTAPA staff person is
on the ice may result in immediate suspension of AAHC from the facility for the
remainder of the scheduled season.
3. Vandalism or other misuse of any part of the MTAPA will result in individual,
team or organizational suspension from the facilities. Personnel in charge of each
user group (i.e. coaches) are responsible for the conduct of their participants while
they are using the MTAPA both on and off the ice. Team locker rooms should be
inspected prior to each use. Observation of any damages or other irregularities
should be reported to a facility staff person immediately. The MTAPA Manager
will review each incident and determine appropriate and reasonable actions
necessary to maintain proper use etiquette.
4. In order to assure a punctual start for each user, it is mandatory you leave the ice
immediately at the conclusion of your allotted time. Failure to comply may result
in suspension of ice time until such time as the facility manager is assured that the
problem is corrected.
5. AAHC is responsible for individual, team, and in some cases, spectator control
during their allotted ice time. (AAHC will be informed if security officers are
needed for spectator control).
6. Smoking is prohibited inside the building.
7. Alcoholic beverages are prohibited at all times from team locker rooms and from
inside the facility unless purchased from a vendor inside the facility, and then
consumed in an approved area by the Alcohol Beverage Control Board. Failure to
comply will result in immediate suspension of individuals and/or teams from the
facility for the remainder of the scheduled season.
8. Use of illegal drugs is prohibited and will result in immediate suspension of
individuals and/or teams from the arena for the remainder of the scheduled
season.
9. AAHC agrees to hold harmless, defend and indemnify the City from any claim
whatsoever arising out of the use and occupation of the facility by the AAHC.
10. Vehicle parking is in designated areas only. No parking in handicap, fire or
ambulance zones or in other areas as posted. Vehicles in violation are subject to
ticketing or towing and impound at the owners expense.
11. Team locker rooms can be secured for all events.
It is the AAHC’s responsibility to use assigned locker rooms. Upon completion
of the event, the room shall be cleared by the AAHC and inspected by an on duty
supervisor. If there is any damage to the room or the room is not satisfactorily
cleaned, a penalty of a minimum of $100 will be imposed on the using team or
organization. Payments or arrangements will be made within seventy-two (72)
hours, or the AAHC will be suspended from further facility use.
12. All ice time will be scheduled by the administration of the MTAPA. Any ice time
cancellation will be honored up to thirty (30) days prior to the scheduled date.
Scheduled changes are the responsibility of the AAHC. The City will not track
any changes on the master schedule. The AAHC will be invoiced for all the time
whether or not they use it or sell it to another user. The City reserves the right to
alter, cancel or reschedule any time with reasonable notice.
13. Hitting or throwing pucks, tennis balls, tape balls or any other objects off the ice
surface is prohibited and will result in the confiscation of hockey sticks, pucks,
etc. This includes the team locker rooms.
14. Children under the age of 14 will have adult supervision while in the facility.
15. Posting of any advertisements, posters or flyers must be pre-approved by the
facility manager.
16. Taping of posters, banners, decorations, etc. to the glass surrounding the ice rink
and display cases are not permitted.
17. Spitting tobacco on the ice, walls, floor, water fountains, benches, corners and any
out of the way place is unsanitary and dangerous. It will not be tolerated and may
result in suspension from use of the building.
18. The AAHC may not be the sole user of the facility. In consideration of other
patrons, everyone needs to act in an unobtrusive, professional manner.
19. All Players in all ice hockey classifications must wear appropriate safety
equipment. All players must wear a hockey helmet, with chinstrap properly
fastened, while on the ice, in the player’s boxes and penalty bench. Any coach
under the age of eighteen (18) years of age must wear a helmet while on the ice or
in the player’s bench. All players and coaches must abide by USA Hockey Rules
and Regulations.
20. Shaking or grabbing on the glass surrounding the ice rink is prohibited and may
result in the suspension from the facility for the remainder of the season or longer
depending on the severity of the act.
EXHIBIT E
MINUMUM SECURITY REQUIREMENTS
1. AAHC shall provide a minimum of 5 licensed unarmed uniformed security
personnel over 21 years of age during AAHC’s sponsored events.
2. In the event that the attendance average for more than three consecutive games
goes above 1000 attendees per game, AAHC shall be required to provide a
minimum of six (6) licensed unarmed uniformed security personnel over 21 years
of age.
3. In the event that attendance average goes over 1000 attendees for three (3)
consecutive games, AAHC shall be required to increase the number of licensed
unarmed security personnel over 21 years of age to three (3), but under no
circumstance will less than five (5) security personnel be on duty at any event.
4. All security personnel shall be on duty at least fifteen (15) minutes prior to the
start of all AAHCs’ sponsored events and until all spectators have left the facility.
5. Security personnel shall make a concerted effort to communicate the courtesies of
sitting in the handicap seating to members of the public.
6. Security shall immediately remove any individuals who throw any items onto the
ice rink surface or into players or penalty boxes, with the exception of those items
that are thrown onto the ice during special events such as “Chuck-a-Puck.”
7. Obviously intoxicated individuals who are abusive, belligerent, combative or
disruptive shall be removed from the facility. Individuals involved in physical
altercations or who otherwise refuse to respond to the directions of security staff
will be trespassed from the facility for a period of not less than one (1) year.
8. Security shall be responsible for enforcing item numbers 3, 5, 6, 7, 8, 10, 13, 14,
17 & 20 of the Palmer Ice Arena Rules and Regulations as stated in Exhibit D.
9. The City reserves the right to ensure contract compliance of this Agreement at all
times. The City and/or its representatives maintain the right to enter the premises
for any purpose but primarily for inspecting the facilities and operational
compliance.
EXHIBIT F
ADVERTISING AND PROMOTION
CONCEPTUAL LAYOUT