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HomeMy WebLinkAboutCS 35-19Cfy �t DICKERING Report to Council Report Number: CS 35-19 Date: October 21, 2019 From: Marisa Carpino Director, Community Services Subject: Licence Agreement - Graymatter Marketing Solutions Inc. - File: A-1440 Recommendation: 1. That the Mayor and City Clerk be authorized to execute a Licence Agreement with Graymatter Marketing Solutions Inc. as set out in Attachment 1 to this report, subject to minor revisions as may be required by the Director, Community Services and the Director, Corporate Services & City Solicitor; and 2. That the appropriate officials of the City of Pickering be authorized to take the necessary actions as indicated in this report. Executive Summary: On June 24, 2019, Council authorized staff to issue a park permit to Graymatter Marketing Solutions Inc. from Friday, November 29 to Saturday, November 30, 2019 (inclusive) for a Christmas Market by way of Council Resolution #107/19 (CS 30-19). This new two day community event, hosted in Esplanade Park, will feature a variety of craft vendors and food trucks and will undoubtedly serve to enhance the City's Celebrate Winter festivities offered annually throughout the month of December. As recently coordinated by Graymatter Marketing Solutions Inc., the Christmas Market will also feature a Light Tunnel and Christmas Tree Light Sculpture in Esplanade Park as an overall enhancement to their event activities. And, in an effort to support the City's Celebrate Winter festivities, Graymatter Marketing Solutions Inc. has agreed to keep the light installation in Esplanade Park until January 1St As a result, staff have prepared a Licence Agreement with Graymatter Marketing Solutions Inc. wherein Graymatter Marketing Solutions Inc. is responsible to install/display the light sculpture on City property from approximately November 15 to January 1 each year and to dismantle/return to storage the light features after January 1St. In return, the City is responsible to cover all associated utility costs resulting from this light installation and provide secure storage for the light features when they are not in use. The Community Services Department recommends that the Licence Agreement be initiated for a three year term beginning November 1, 2019 to October 31, 2022, as per Attachment 1 to this Report. CS 35-19 October 21, 2019 Subject: Licence Agreement Page 2 Financial Implications: The City of Pickering will be responsible to cover the hydro costs associated with the Christmas Tree Light Sculpture and Light Tunnel, as well as one-time electrical upgrades to the park in the amount of $11,740 (plus HST). When not in use, the City will store the Christmas Tree Light Sculpture and the Light Tunnel at the Operations Centre for the term of the agreement. Graymatter Marketing Solutions Inc. is responsible to assume all costs and expenses in connection with the transport, delivery, installation, display and dismantling of the Christmas Tree Light Sculpture and the Light Tunnel. Discussion: New this year, a Christmas Market will be hosted at Esplanade Park by Graymatter Marketing Solutions Inc. This two day community event will coincide with the City of Pickering's Tree Lighting event on Friday, November 29, 2019 and will continue to operate on Saturday, November 30, 2019. As part of their event plans, Graymatter Marketing Solutions Inc. has arranged to install a Christmas Tree Light Sculpture and Light Tunnel as an enhanced feature of their event. In an effort to support the City's month-long Celebrate Winter festivities, Graymatter Marketing Solutions Inc. has offered to keep the light sculptures in Esplanade Park throughout the month of December. Clearly, the light sculptures will become a beacon drawing residents and visitors alike to Esplanade Park throughout the holiday season, creating great public interest and social media awareness reaching far beyond the borders of our community. The LED Christmas Tree Light Sculpture is 40 feet tall and will be installed in the circular garden of Esplanade Park. City staff will have the ability to control the light levels and timing of lights to ensure that the system powers off during non -peak hours. Staff have advised Pickering Horticultural Society and have asked them to make the necessary arrangements to protect or remove existing plant materials, as may be required. The Christmas Tree Light Sculpture, which is on loan to Graymatter Marketing Solutions Inc., will be featured on City property from mid- November to January 1St, as authorized annually by the original owner. The LED Light Tunnel is 60 feet long, 12 feet wide and 16 feet tall and will be installed over the walkway leading to the circular garden from the north east corner of Esplanade Park. A timer will be installed to ensure the Light Tunnel is powered off during non -peak hours. The Light Tunnel will be owned by Graymatter Marketing Solutions Inc. thanks to a donation from OPG in the amount of approximately $12,000. This grant was obtained in partnership with, and with the support of, the City of Pickering. At this time, City staff requests the approval of Council to execute a Licence Agreement with Graymatter Marketing Solutions Inc. for a three year term beginning November 1, 2019 to October 31, 2022, as per Attachment 1 of this Report. V CS 35-19 October 21, 2019 Subject: Licence Agreement Page 3 Attachments: 1. Licence Agreement with Graymatter Solutions Inc. 2019-2022 2. Location Map Prepared By: Tanya Ryce Supervisor, Cultural Services TR:mc Approved/Endorsed By: Marisa Carpino, M.A. Director, Community Services Recommended for the consideration of Pickering Citouncil Tony Prevedel, P.Eng. Chief Administrative Officer Attachment No. 1 to Report CS 35-19 This Licence Agreement made as of the 2nd day of October 2019. BETWEEN The Corporation of the City of Pickering (the "City") - and - Graymatter Marketing Solutions Inc. (the "Licensee") RECITALS: A. The Licensee has requested to: (i) use a portion of lands at City Hall located at One The Esplanade, Pickering, as identified on the location map attached hereto as Schedule "A" (the "City Hall Lands") in order to install and dismantle a forty (40) foot Christmas tree (the "Christmas Tree") and a light tunnel (the "Light Tunnel"), as depicted on the diagram attached hereto as Schedule "B"; and (ii) store the Christmas Tree and the Light Tunnel at the City's Operations Centre located at 1975 Clements Road, Pickering (the "Operations Facility") (collectively, the "Use"). B. The Licensee has agreed to transport, deliver, install and dismantle the Christmas Tree and the Light Tunnel on the City Hall Lands. C. The City has agreed to grant to the Licensee a non-exclusive licence permitting the Licensee to access and use portions of the City Hall Lands and the Operations Facility (the City Hall Lands and the Operations Facility are collectively referred to in this Agreement as the "Licensed Lands") for the purpose of the Use, subject to the terms and conditions contained in this Agreement. IN CONSIDERATION of the mutual covenants hereinafter set forth and other good and valuable consideration, the City and the Licensee hereto agree as follows: 1. Grant of License (1) Subject to the terms of this Agreement, the City grants permission to the Licensee to use the Licensed Lands on a non-exclusive basis for the Use. (2) The Licensee acknowledges that this Agreement does not create an interest in the Licensed Lands nor does the Licensee claim any past or present interest, howsoever arising, as a result of or connected in any way with the use and occupation of the Licensed Lands. (3) The licence granted herein is only for the duration of this Agreement and only for the purposes and uses stated herein. No other purposes shall be permitted without prior approval from the City. (4) The licence granted herein is not exclusive and the City reserves the right to grant, renew or extend licenses and other interests to other third parties. (5) -2 Notwithstanding anything else contained herein, the City reserves the right to require the Licensee to install the Christmas Tree and the Light Tunnel at an alternate location, as designated by the City in its sole discretion, upon reasonable notice to the Licensee, and the City will not be liable to the Licensee for any damage or loss occasioned thereby. 2. Installation/Dismantle of Christmas Tree and Light Tunnel (1) The Licensee shall be granted access to the City Hall Lands beginning on November 1st of each year of the Term for the purpose of transporting, delivering and installing the Christmas Tree and the Light Tunnel on the City Hall Lands, at its expense and to the satisfaction of the City, so that the Christmas Tree and the Light Tunnel are in full operation on or before November 15th of each year of Term. (2) The Christmas Tree and the Light Tunnel shall remain installed and in full operation from November 15th to January 1St of each year of Term (the "Operational Term"), subject to extreme weather conditions or other exceptional circumstances that may compromise public safety. (3) Within fifteen (15) days after January 1st of each year of the Term, the Licensee shall dismantle the Christmas Tree and the Light Tunnel on the City Hall Lands, and transport the Christmas Tree and the Light Tunnel to the Operations Facility for storage, at its expense. (4) Save and except all hydro fees to be paid by the City, the Licensee shall assume all costs and expenses in connection with the transport, delivery, installation, operation and dismantling of the Christmas Tree and the Light Tunnel, including, but not limited to, costs of flagmen and road closures to enable safe installation and removal of the Christmas Tree and the Light Tunnel. 3. Storage of Christmas Tree and Light Tunnel (1) The Licensee shall be permitted to store the Christmas Tree and the Light Tunnel in a location to be determined by the City, at its discretion, within the Operations Facility from January 1St to October 31St of each year of the Term. (2) The Licensee shall be permitted access to the Operations Facility at such times as may be permitted by the City in order to store the Christmas Tree and the Light Tunnel, and shall provide the City with at least twenty-four (24) hours prior written notice when access to the Operations Facility is required. 4. Use by Licensee (1) The Licensee agrees to use the Licensed Lands solely for the purpose of the Use. (2) There shall be no further uses granted by the City to the Licensee and permitted by this licence without the prior written consent of the City, which consent may be withheld by the City in its sole discretion. 5. Term (1) Unless earlier terminated as provided herein, this Agreement shall be for a term of three (3) years commencing on November 1, 2019 (the "Commencement Date") and expiring on October 31, 2022 (the "Term"). (2) The parties acknowledge and agree that the Christmas Tree is not owned by the Licensee and that the obligation of the Licensee to install the Christmas Tree on the City Hall Lands is conditional upon rights to the Christmas Tree being granted to the Licensee by a third party. If the (3) 3 Licensee is unable to obtain the rights to the Christmas Tree, the Licensee shall provide written notice to the City within sixty (60) days prior to November 1St of the given year of the Term, and any terms and conditions contained herein relating to the Christmas Tree shall be of no further force and effect. For the purpose of clarification, this Agreement shall remain in full force and effect as it relates to the Light Tunnel. The Licensee shall remove the Christmas Tree from the Licensed Lands, at its own expense, within sixty (60) days of written notice being delivered by the Licensee to the City. Except as otherwise provided for in this Agreement, this Agreement may be terminated by the City at any time and for any reason during the Term upon sixty (60) days prior written notice to the Licensee, and the City will not be liable to the Licensee for any damage or loss occasioned thereby. (4) Upon the expiry or earlier termination of this Agreement, the Licensee shall remove the Christmas Tree and the Light Tunnel from the Licensed Lands, at its own expense, within thirty (30) days of termination of this Agreement. 6. Payment The Licensee shall pay to the City a license fee in the amount of $1.00, the receipt and sufficiency of which is hereby acknowledged. 7. Maintenance and Replacement of Christmas Tree and Light Tunnel (1) The Licensee shall ensure that the Christmas Tree and the Light Tunnel are maintained in a state of good and safe repair during the Operational Term, to the satisfaction of the City. (2) The Licensee shall ensure that any personnel transporting, delivering, installing, dismantling, maintaining, repairing, altering or replacing the Christmas Tree and the Light Tunnel shall be properly trained and fully qualified to perform the relevant work. The Licensee shall ensure that it complies with the Construction Act and takes all necessary steps to prevent a lien from being claimed in respect of the Christmas Tree and the Light Tunnel. 8. Liability and Indemnity (1) The City shall not be liable to the Licensee for any loss, damage or personal injury (including death) relating to the Christmas Tree or the Light Tunnel, whether caused by fire, theft, and burglary or otherwise, unless such loss or damage was caused by the negligence of the City, its servants, agents or employees. The City will not be responsible for loss of equipment due to electrical power surges. (2) Save and except for the negligence or willful misconduct of the City, the Licensee agrees to indemnify and save the City, and all its directors, officers, employees, elected officials, agents, contractors and representatives (collectively, the "Indemnified Parties") harmless from any and all loss, damage, claim, liability, cost, expense and demand, of any kind, including all legal fees on a solicitor/client basis incurred or suffered by the Indemnified Parties or any of them directly or indirectly arising out of any action whatsoever by the Licensee, its directors, employees, agents, contractors, invitees or anyone arising as a result of the installation, dismantling, storage, operation, maintenance, repair, alteration or replacement of the Christmas Tree or the Light Tunnel, or its presence on the Licensed Lands. This provision shall survive the expiration or earlier termination of this Agreement. -4 9. Insurance The Licensee agrees to provide commercial general liability insurance for all liability arising out of bodily injury (including death) and property damage, such insurance to be for not less than $5,000,000.00 per occurrence or loss, to be in full force and effect at all times during the Term. A copy of the Certificate of Insurance confirming such insurance coverage must be provided by the Licensee to the City within five (5) business days of such request. The City shall be an additional insured on such policy. 10. Default Either party shall have the right, at its option, to terminate this Agreement in the event that the other party defaults in any provision of this Agreement and such default has not been cured within fifteen (15) days of written notice thereof being delivered by the non -defaulting party. 11. Relationship of Parties Nothing contained herein shall be deemed or construed by the parties, nor by any third party, as creating the relationship of principal and agent, landlord and tenant, partnership or of joint venture between the parties, it being understood and agreed that none of the provisions contained herein, nor any of the acts of the parties shall create any relationship between the parties other than that of licensor and licensee as described in this Agreement. 12. Assignment The Licensee shall not assign, transfer, sublease, part with possession or dispose of all or any part of the Licensed Lands or this Agreement or any privileges or interests hereby granted to it without the prior written consent of the City which may be unreasonably or arbitrarily withheld, failing which the City shall be entitled to terminate this Agreement immediately after the occurrence of such breach. 13. Notice Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be sufficiently given if sent by pre -paid registered mail from a post office in Canada addressed in the case of the City to: Pickering Civic Complex, One The Esplanade, Pickering, ON L1V 6K7 Attention: Director, Community Services Fax No.: 905.420.2596 and in the case of the Licensee to: Graymatter Marketing Solutions Inc. 1550 Bayly Street, Unit 16A Pickering, ON L1W 3W1 Attention: Audra Leslie Phone No.: 905.420.1810 Fax No.: n/a Such notice may be given by hand delivery or sent electronically by either party to the other. Any such notice mailed shall be deemed to have been given on the third (3rd) business day following such mailing or, if delivered by hand, shall be deemed to have been given on the day of delivery or, if sent electronically, shall be deemed to have been given on the business day following transmission. In -5 the event of a postal strike or pending postal strike, any or all notices must be given by personal delivery or by electronic means. 14. Title The Licensee hereby agrees to keep title to the Licensed Lands, including every part thereof, free and clear of any lien, encumbrance or security interest or notice thereof. The Licensee shall not enter into any agreements for the Licensed Lands which would run with the Licensed Lands and become an obligation of the City upon termination or expiration of this Agreement. 15. Successors and Assigns This Agreement shall ensure to the benefit of and be binding upon the City and the Licensee and their respective permitted successors and assigns. 16. Entire Agreement It is understood and agreed that this Agreement represents all terms and conditions and obligations of the City and Licensee. The City and Licensee are not responsible for any warranties, conditions or obligations unless specifically indicated in this Agreement. 17. Governing Law This Agreement shall be interpreted and construed in accordance with and governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. 18. Counterparts This Agreement may be executed in any number of counterparts, and each of such counterparts shall constitute an original of this Agreement and all such counterparts together shall constitute one and the same agreement. This Agreement or counterparts hereof may be executed and delivered by fax or email, and the parties adopt any signatures provided or received by fax or email as original signatures of the applicable party or parties, provided that any party that delivers its executed Agreement by fax or email shall promptly forward to the other party a copy of this Agreement with an original signature forthwith after any such delivery by fax or email. 19. General (1) The recitals are true in substance and fact and are incorporated herein. (2) Schedules "A" and "B" attached to this Agreement form part of this Agreement. (3) The failure of any party to exercise any right, power or option or to enforce any remedy or to insist upon the strict compliance with the terms, conditions and covenants under this Agreement shall not constitute a waiver of the terms, conditions and covenants herein with respect to that or any other or subsequent breach thereof nor a waiver by that party any time thereafter to require strict compliance with all terms, conditions and covenants hereof, including the terms, conditions and covenants with respect to which the party has failed to exercise such right, power or option. Nothing shall be construed or have the effect of a waiver except an instrument in writing signed by a duly authorized officer of the applicable party which expressly waives a right, power or option under this Agreement. (4) Should any provision or provisions of this Agreement be illegal or not enforceable, it or they shall be considered separate and severable from this Agreement and its remaining provisions shall remain in force and be (5) -6 binding upon the parties hereto as though the said provision or provisions had never been included. The headings in this Agreement have been inserted as a matter of convenience and for reference only and in no way define, limit or enlarge the scope of meaning of this Agreement nor any of the provisions hereof. (6) The Licensee shall not have the right to register this Agreement or notice thereof against title to the Licensed Lands or any part thereof. (7) This Agreement and any information or documents that are provided hereunder may be released pursuant to the provisions of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.M.56, as amended. This acknowledgement shall not be construed as a waiver of any right to object to the release of this Agreement or of any information or documents. IN WITNESS WHEREOF the City and the Licensee have executed this Agreement as of the date first written above. The Corporation of the City of Pickering David Ryan, Mayor Susan Cassel, City Clerk Graymatter Marketing Solutions Inc. Name: Title: Name: Title: I/We have authority to bind the Corporation 7 Schedule "A" Location Map of City Hall Lands -8 Schedule "B" Diagram of Christmas Tree and Light Tunnel [to be inserted] ttachment No. 2 to Report CS 35-19 Valley Farm Rd. Pickering Town Centre Esplanade Park location map SCALE: N.T.S. Attachment for Community Services Department Report CS 35-19 Licence Agreement C4rd PICKERING