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)
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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)
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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.
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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
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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)
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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
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Schedule "A"
Location Map of City Hall Lands
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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