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HomeMy WebLinkAboutOPS 11-23 3 Report to Executive Committee Report Number: OPS 11-23 Date: April 3, 2023 From: Brian Duffield Director, Operations Subject: The Liverpool Road Limited Partnership Lease Agreement Renewal -File: A-1440 Recommendation: 1. That Report OPS 11-23 regarding the Liverpool Road Limited Partnership Lease Agreement Renewal be received; 2. That the Mayor and the City Clerk be authorized to execute the Lease Agreement for the for use of privately owned lands at 640 Liverpool Road and 609 Annland Street as a public parking lot, as set out in Attachment 1 to this Report, subject to the minor revisions agreeable to the Director, Operations and the Director, Corporate Services & City Solicitor; and, That the appropriate City of Pickering officials be authorized to take the necessary action to give effect hereto. Executive Summary: The attached Lease Agreement (the “Lease”) between the Corporation of the City of Pickering, as tenant, and The Liverpool Road Limited Partnership by its general partner 2864543 Ontario Inc. as landlords, will continue to provide much needed additional public parking near the south end of Liverpool Road. The leased site has an area of 1.44 acres and accommodates approximately 51 automobiles, including three accessible parking spots. A location map of the site is included as Attachment 2 to this Report. Access to the site is off the south side of Annland Street, approximately 96 meters west of Liverpool Road. The site is well located to provide parking for visitors to Frenchman’s Bay, including Millennium Square, Beachfront Park, Progress Frenchman’s Bay East Park and various shops and businesses located in and around Nautical Village at the foot of Liverpool Road. Upon execution of the original Lease in 2018, the City performed upgrades to the site in the form of adding gravel to the parking lot, installing a catch basin, parking curbs and repairing the perimeter fence and gate. The Lease is for a term of five years notwithstanding the foregoing, this Lease is terminable by either party with 60 days’ written notice to the other party. The rent for the term is $1,600.00 per month plus applicable taxes and operating expenses. The City will be responsible for the maintenance of the site during the term of the Lease. OPS 11-23 April 3, 2023 Subject: The Liverpool Road Limited Partnership Lease Agreement Renewal Page 2 Financial Implications: During the term of the Lease, the City will be required to pay the following: 1. Rent in the amount of $19,200.00 per year in equal monthly installments of $1,600.00 plus applicable HST for the five-year term of the Lease. 2. Charges for any electricity and other utilities used in connection with the site. 3. Applicable property taxes and insurance costs. 4. Maintenance costs for the site. 5. Costs of any fixtures, chattels, improvements, installations, alterations or additions, if any, from time to time made, erected or installed on the site by the City. Discussion: Many of the City’s lakefront amenities, including Millennium Square, Frenchman’s Bay, Beachfront Park and Progress Frenchman’s Bay East Park, are accessed from the south end of Liverpool Road. This area of the City is a destination for both residents and visitors, especially from April to October. There is a need for additional public parking to relieve traffic congestion and to enhance public access to the enjoyment of the lakefront area. To provide much needed additional parking near the intersection of Liverpool Road and Annland Road, staff recommend that Council approve the renewal of the attached Lease. The site has an area of 1.44 acres and will accommodate approximately 51 automobiles, including three accessible parking spots. A location map of the site is included as Attachment 2 to this Report. Access to this site is off the south side of Annland Street, approximately 96 meters west of Liverpool Road. The site is currently a gravel lot, with parking curbs surrounded by existing fencing. The original Lease executed in 2018 was between the City and Richard John Avis and Walter Keith Avis as landlords. The lands were sold in 2021 and an assignment of Lease was executed with the new landlords on October 12, 2021 between the City and The Liverpool Road Limited Partnership by its general partner 2864543 Ontario Inc. The term of this Lease is five years with the option for either party to terminate upon 60 days’ written notice to the other party. The Lease requires the City to bear any cost associated with property taxes, maintenance and insurance. The Lease also contains a provision whereby the City must indemnify the landlords in respect of any liabilities associated with the use of the site as a parking lot. The Lease has been reviewed by City Legal Services. The terms of the Lease are commercially reasonable, therefore, staff recommend that Council approve the renewal of the Lease for a five-year term. Attachments: 1. Draft Lease Agreement. 2. Location Map of the Site. OPS 11-23 Subject: The Liverpool Road Limited Partnership Lease Agreement Renewal April 3, 2023 Page 3 Prepared By: Approved/Endorsed By: Original Signed By: Original Signed By: Rob Gagen Manager, Parks & Property Brian Duffield Director, Operations BD:nm Recommended for the consideration of Pickering City Council Original Signed By: Marisa Carpino, M.A. Chief Administrative Officer Attachment #1 to Report OPS 11-23 Lease Agreement This Lease is made as of the 9th day of May, 2023 Between: The Corporation of the City of Pickering (the "City") -and - The Liverpool Road Limited Partnership by its general partner 2864543 Ontario Inc. (collectively, the "Landlord") Article I Interpretation Definitions 1. In this Lease, (a) "Basic Rent" means the rent payable by the City pursuant to Section 14; (b) "Business Day" means any day of the week except Saturday, Sunday or any statutory or civic holiday observed in the Province of Ontario; (c) "Commencement Date" means the 9th day of May, 2023; (d) "Land" means the lands municipally known as 640 Liverpool Road and 609 Annland Street, Pickering, and legally described in Schedule "A"; (e) "Lease" means this lease as it may be amended from time to time in accordance with the provisions hereof; (f) “Property Tax” means all real estate taxes, general taxes, school taxes, levies, rates, duties, assessments and charges imposed against real property, buildings, structures, equipment, facilities and improvements by municipal or other governmental authorities having jurisdiction excluding any public or local improvement charges levied in conjunction with or as a result of any original construction of the Land or any expansion thereof and excluding any taxes which are primarily of a nature of taxes on income, capital, business, placement of business or otherwise personal to the Landlord and not primarily of a nature of taxes on real property; 2 (g) “Proportionate Share” means a fraction which has as its numerator the area of the Site, in square metres, and as its denominator the area of the Land, in square metres; (h) “Rent” means the aggregate of Basic Rent and all other sums of money or charges required to be paid by the City under this Lease; (i) “Site” means that portion of the Land as shown on the sketch attached as Schedule "B" being an area of approximately 2,090 square metres; and, (j) “Term” means the term of this Lease as set out in Section 1 1 and any extension or renewal thereof. Headings 2. The division of this Lease into articles, sections, subsections and schedules and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Lease. Schedule 3. The following Schedules are incorporated into and form part of this Lease: Schedule "A" Legal Description of the Land. Schedule "B" Location Map of Lease Limits with The Liverpool Road Limited Partnership. Severability 4. All of the provisions of this Lease are to be construed as covenants even where not expressed as such. If any such provision is held to be or rendered invalid, unenforceable or illegal, then it shall be considered separate and severable from this Lease and the remaining provisions of this Lease shall remain in force. Number 5. Wherever a word importing the singular number only is used in this Lease, such word shall include the plural. Words importing either gender or firms or corporations shall include the other gender and individuals, firms or corporation where the context so requires. Governing Law 6. This Lease shall be governed by, and interpreted and enforced in accordance with, the laws in force in the Province of Ontario. 3 Entire Agreement 7. This Lease and the Schedules attached hereto constitute the entire agreement between the parties concerning the Site and may only be amended or supplemented by an agreement in writing signed by both parties. Article II Grant and Use Grant 8. In consideration of the performance by the City of its obligations under this Lease, the Landlord leases the Site to the City for the Term, and any renewal term, and covenants to observe and perform all of the covenants and obligations to be observed and performed by the Landlord under this Lease. In consideration of the performance by the Landlord of its obligations under this Lease, the City takes the Site on lease from the Landlord and covenants to pay the Rent and to observe and perform all other covenants to be observed and performed by the City under this Lease. Use of Premises 9. The City, its employees, agents, servants, invitees, licensees and members of the general public shall be permitted to use the Site for the purpose of public parking, and shall be entitled to vehicular and pedestrian access to and from the parking spaces over the driveway and walkway portions of the Site to and from the adjacent public highway. The Site shall be open for public use as a parking lot 24 hours per day, 7 days per week. The City shall not be permitted to use the Site for any other purpose without the prior written consent of the Landlord. Nuisance 10. The City shall not carry on any business or do or suffer any act or thing which constitutes a nuisance or which is offensive or an annoyance to the Landlord or other occupants of the Land. 4 Article III Term Term 11. The term of this Lease is five (5) years commencing on the 9th day of May, 2023 and ending on the 8th day of May, 2028. Notwithstanding the foregoing, this Lease is terminable by either party on 60 days written notice to the other party. 12. [Intentionally Deleted] Overholding 13. If the City remains in possession of the Site after the expiry of the Term, or any renewal term, there shall be no tacit renewal of this Lease, notwithstanding statutory provisions or legal presumption to the contrary, and the City shall be deemed to be occupying the Site as a tenant from month to month at the Basic Rent in effect during the last month of the Term, or renewal term, and otherwise upon the same terms, covenants and conditions as are set forth in this Lease insofar as they are applicable to a monthly tenancy. Article IV Rent Basic Rent 14. The City shall pay to the Landlord as Basic Rent during the Term in lawful money of Canada the sum of $19,200.00, plus applicable H.S.T., per annum in equal monthly instalments of $1 ,600.00, plus applicable H.S.T., each on the first day of each calendar month during the Term, the first of such payments to be made on the Commencement Date or on the first day of the calendar month next following the Commencement Date if the Commencement Date is not on the first day of a calendar month. If the Commencement Date is not the first day of a calendar month, then Basic Rent for such month shall be pro-rated on a per diem basis, based upon a period of 365 days. Upon the Commencement Date, and each year thereafter, the City shall deliver to the Landlord twelve post-dated cheques for the monthly Basic Rent due for the next twelve months of the Term and any renewal thereof. Manner of Payment 15. The City shall make all payments of Rent by ETF auto deposit to the Landlord (or to such other person as the Landlord may designate by notice) at the address specified in Section 39 (or such other address as the Landlord may designate by notice). 5 Article V Taxes Property Taxes 16. The City shall pay, when due, its Proportionate Share of the Property Taxes imposed against the Land during the Term, and any renewal term, directly to the taxing authority and provide proof of such payment to the Landlord within 15 days of payment. Right to Contest 17. The City has the right to contest or review the assessment of the Site for Property Taxes by legal proceedings or in such manner as the City in its opinion deems advisable. Any proceedings or other steps taken by the City, if instituted, shall be conducted diligently at its own expense. No such contest shall defer or suspend the City's obligation to pay Property Taxes pending the contest. If the Landlord undertakes such contest in respect of the Site, the City will be credited with its Proportionate Share of Property Taxes recovered, less the Landlord's reasonable cost of recovery. Article VI Utility Costs Utilities 18. The City agrees to pay or cause to be paid all charges for electricity, light, or power used, rendered or supplied upon or in connection with the Site throughout the Term, and any renewal term. Notwithstanding the foregoing, the City acknowledges and agrees that as of the Commencement Date, there is no hydro installed on the Site and in the event the City requires hydro to be installed on the Site, the City shall install hydro on the Site at its sole cost and expense. Any work to be carried out and completed by the City relating to hydro installation on the Site shall be completed in accordance with Sections 20 to 23 of this Lease, and the City shall perform such work in a manner that does not interfere with the use of the Land by the Landlord or its servants, agents, employees and invitees. 6 Article VII Maintenance, Repairs and Alterations Maintenance and Repair of Site 19. The City, at its sole cost and expense, shall maintain and keep or cause to be maintained and kept in good and substantial state of repair the Site and be solely responsible for ensuring the provision of maintenance to the Site during the Term, and any renewal term, including, (a) maintaining the access driveway and walkways, gravel drive aisles and parking surface, access gate, curb stops, and landscaping; (b) repairing potholes and other defects; (c) removing trash and debris; (d) snow and ice removal; and, (e) at the option of the City, in its sole and absolute discretion, providing security on the Site it being understood that the Landlord is not responsible for the security of the Site. 20. The City shall obey all federal, provincial and municipal laws, acts, ordinances, regulations, orders-in-council and by-laws which could in any way pertain to the work relating to the City's Improvements. 21. All alterations, renovations and new construction are subject to approval by the Landlord, acting reasonably. All related permit fees and costs, including the provision of any diagrams, architectural plans and architectural fees, are at the expense of the City. 22. The City covenants not to make or erect on the Site any installations, alterations, or additions without submitting drawings and specifications to the Landlord and without obtaining the Landlord's prior written consent in each instance, which consent shall not be unreasonably withheld. The City must further obtain the Landlord's prior written consent to any material change or changes in such drawings and specifications submitted as aforesaid. Liens 23. The City shall ensure that no lien or claim for lien is registered against any portion of the Land or against the Landlords or the City's interest therein for services or materials supplied at the request of the City. If a lien or claim for lien is registered or filed against title to the Land, the City shall, within 30 days after it has received notice from the Landlord, procure the discharge thereof, failing which the Landlord, at its option, may discharge the lien or claim for lien by 7 paying the amount claimed to be due into court and the amount so paid shall be paid forthwith by the City to the Landlord. Removal of City's Improvements 24. The City, at its sole and unfettered option, may remove any of the City's Improvements which it has installed provided it restores the Site, as nearly as possible, to the state it was in before the commencement of the Term. Upon the expiry of the Term, or any renewal term, any of the City's Improvements remaining on the Site (which the City has not elected to remove) shall become the property of the Landlord without compensation to the City. Article VIII Insurance and Indemnity City’s Insurance 25. The City, at its sole cost and expense, shall purchase and keep in full force and effect during the Term of this Lease, and any renewal term, comprehensive general liability insurance, identifying the Landlord as an additional insured, pertaining to the City's liability to others in respect of injury, death or damage to property occurring upon, in or about the Site, with coverage for any one occurrence or claim of not less than $7,000,000.00. 26. The City shall provide to the Landlord an insurance certificate completed by the City's insurance provider confirming such coverage. Indemnification 27. The City covenants to indemnify the Landlord against any and all claims, actions, damages and liability (including, without limiting the generality of the foregoing, all claims for personal injury, death and/or property damage) and also damages arising from any breach of this Lease by the City or from any act or omission of the City or those for whom the City is at law responsible in or around the Site and against all costs incurred in connection with any such claim arising from the City's use and occupation of the Site. The Landlord shall not be liable for any loss or damage to any property belonging to the City or to any other persons or for any injury to any person while such person or property is on the Site unless such loss, damage or injury is caused directly by the negligence of the Landlord, or those for whom the Landlord is at law responsible. 8 Article IX Remedies on Default Landlord's Right to Re-Enter 28. If the Rent remains unpaid for 15 days after the City has received notice thereof, then it shall be lawful for the Landlord at any time thereafter to re-enter the Site. Landlord's Right to Remedy Default 29. In addition to all other remedies the Landlord may have under this Lease and in law, if the City is in default of any of its obligations under this Lease other than the payment of Rent, and such default has continued for a period of 30 days after receipt of notice by the City (or such longer period as may be required in the circumstances to cure such default, except in an emergency where the Landlord will not be required to give notice), the Landlord, without prejudice to any other rights which it may have with respect to such default, may remedy such default and the cost thereof shall be added to the Rent due on the next succeeding date on which Rent is payable. City's Right to Remedy Default 30. In addition to all other remedies the City may have under this Lease and in law, if the Landlord is in default of any of its obligations under this Lease and such default has continued for a period of 30 days after receipt of notice by the Landlord (or such longer period as may reasonably be required in the circumstances to cure such default, except in an emergency where the City will not be required to give notice), the City, without prejudice to any other rights which it may have with respect to such default, may remedy such default and the cost thereof to the City shall forthwith be paid by the Landlord to the City. Waiver 31. No condoning, excusing or overlooking by either party of any default, breach or non-observance by the other at any time or times in respect of any covenant, obligation or agreement under this Lease shall operate as a waiver of such party's rights hereunder in respect of any continuing or subsequent default, breach or non-observance, or so as to defeat or affect in any way the rights of the Landlord or the City herein in respect of any such continuing or subsequent default or breach, and no waiver shall be inferred from or implied by anything done or omitted by the Landlord or the City save only an express waiver in writing. 9 Article X Priority of Lease Sale of Land 32. The Landlord shall not sell, assign or otherwise transfer all or any part of its interest in the Land unless such sale, assignment or transfer is made subject to this Lease and all of the rights of the City hereunder. Subordination 33. The City shall not be required to subordinate this Lease to any mortgagee, chargee or other encumbrancer unless the Landlord has first obtained from any such mortgagee, chargee or other encumbrancer a non-disturbance agreement in form acceptable to the City whereby such encumbrancer agrees that, so long as the City is not in default under any of the terms and conditions of this Lease, the City will not be disturbed in its possession of the Site and to provide further that said mortgagee, chargee or encumbrancer, in the event that it goes into possession of the Land, including the Site, shall be bound by all of the terms and covenants of this Lease, The Landlord covenants to make its best efforts to obtain a non-disturbance agreement from any existing mortgagee. Article Xl Landlord's Covenants, Representations and Warranties Quiet Enjoyment 34. The Landlord shall permit the City to peaceably possess and enjoy the Site during the Term, and any renewal term, without any interference from the Landlord, or any person lawfully claiming by, from or under the Landlord provided the City is not in default. Landlord's Representations and Warranties 35. The Landlord represents and warrants to the City that: (a) to the best of its knowledge, there has not been, is not now and will not at any time during the Term, and any renewal term, be any Environmental Contaminant ("Environmental Contaminant" includes any hazardous or toxic substances or materials, including without limitation, products of waste, contaminants, pollutants, dangerous substances, mold, noxious substances, explosive or improperly handled friable materials including asbestos, PCBs and substances or any other materials declared or defined to be hazardous, toxic, contaminant or pollutant in or pursuant to any law of any authority) located, stored, manufactured, refined, disposed of, produced, processed or incorporated in or on any part of the Land, the Site, or the surrounding lands; 10 (b) it has good and marketable title to the Land and is lawfully entitled to grant and is capable of granting to the City a valid lease for the Site; (c) to the best of its knowledge, there is no law, by-law, regulation, direction or notice of any governmental authority having jurisdiction or any registered restriction or agreement against the title to the Land which would prevent the use of the Site by the City for the purposes set out in this Lease; and, (d) The Landlord shall indemnify and save harmless the City from and against any and all actions, losses, damages, claims, costs and expenses (including solicitors' fees on a solicitor and client basis) to which the City shall or may become liable by reason of any misrepresentation or breach of any warranty by the Landlord under this Section 36. Article Xll Miscellaneous Signs 36. The City, at its sole cost and expense, may install and maintain signs on the Site advising the public of the availability of parking on the Site, or any other signs it considers necessary for the proper conduct of its operation on the Site. Delay 37. Notwithstanding anything to the contrary contained in this Lease, if either party is bona fide delayed or hindered in or prevented from the performance of any term, covenant or act required hereunder by reason of strikes, labour troubles, inability to procure materials or services, power failure, restrictive governmental laws or regulations, riots, insurrection, sabotage, rebellion, war, act of God, or other reason whether of a like nature or not which is not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such term, covenant or act is excused for the period of the delay, and the party so delayed shall be entitled to perform such term, covenant or act within the appropriate time period after the expiration of the period of such delay, provided that nothing herein contained shall in any way excuse the City from the prompt payment of Rent. Notice 38. Any notice, demand or other communication (in this Section, a "notice") required or permitted to be given or made under this Lease shall be in writing and shall be sufficiently given or made if, (a) delivered in person during normal business hours on a Business Day and left with a receptionist or other responsible employee of the relevant party at the applicable address set forth below; 11 (b) sent by prepaid first class mail; or, (c) sent by any electronic means of sending messages, including telex or facsimile transmission, which produces a paper record ("Electronic Transmission") during normal business hours on a Business Day or, if not sent on a Business Day, such notice shall be deemed to have been sent on the Business Day next following; in the case of a notice to the Landlord, addressed to it at: Liverpool Road Limited Partnership Group 178 Hopedale Avenue Toronto, Ontario M4K 3N2 Attention: Greg Silas notice to the City, addressed to it at: The Corporation of the City of Pickering Civic Complex One The Esplanade Pickering, Ontario LIV 6K7 Attention: City Clerk Fax: 905.420.9685 Each notice sent shall be deemed to have been received: (a) on the day it was delivered and as stated in Subsection 39(a) above; (b) on the third Business Day after it was mailed (excluding each Business Day during which there existed any general interruption of postal services due to strike, lockout or other cause); or, (c) on the same day that it was sent by Electronic Transmission, or on the first Business Day thereafter if the day on which it was sent by Electronic Transmission was not a Business Day. 39. Either party may change its address for notice by giving notice to the other party as provided in this Section. Status Statement 40. The City, at the request of the Landlord and upon not less than 30 days' prior notice, shall execute and deliver a statement in writing certifying that this Lease is unmodified and in full force (or, if modified, stating the modifications), the amount of Rent payable, the dates to which any amount provided in this Lease to be paid by the City to the Landlord has been paid and stating whether or not there is any existing default under this Lease on the part of the Landlord of which the City has notice. 12 Assignment and Subletting 41. The City shall not assign this Lease or sublet all or any portion of the Site without the prior written consent of the Landlord which consent may not be unreasonably withheld. Landlord's Consent 42. Where the Landlord's consent or approval is required by this Lease to any act of the City, such consent or approval shall not be unreasonably withheld and the response of the Landlord shall be communicated to the City within 10 days of the receipt of a request for such consent or approval, failing which the Landlord shall be deemed to have been given such consent or approval. Registration of Lease 43. The City may, at its option and its sole cost and expense, register a notice of this Lease in the Land Registry Office for Durham (No. 40) and the Landlord will co-operate with the City to facilitate such registration, provided that the form of such notice shall only include information relating to the Term and the Landlord has provided its written consent, acting reasonably, to the notice being registered. Successors and Assigns 44. This Lease shall ensure to the benefit of and be binding upon the parties and their respective successors (including any successor by reason of amalgamation or statutory arrangement) and permitted assigns. In Witness Whereof the parties have executed this Lease. ________________________________ ________________________________ ________________________________ ________________________________ 13 Schedules 45. Schedules “A” and “B” attached hereto form part of this Agreement. In Witness Whereof the parties have executed this Lease. The Corporation of the City of Pickering Kevin Ashe, Mayor Susan Cassel, City Clerk The Liverpool Road Limited Partnership by its general partner 2864543 Ontario Inc Greg Silas 14 Schedule “A” Legal Description of the Land PIN26319-0614 (LT) PCL 6-1 Sec M89; Lt 6 PI M89 (Pickering) Except Pt 76 Exprop PI 95; Pickering PIN 26319-0615 (LT) PCL 7-2 Sec M89; Lt 7 PI M89 (Pickering) Except Pt 77 Exprop PI 95; Pickering Schedule “B” Location Map of Lease Limits with The Liverpool Road Limited Partnership !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !!!!!!!!!!!! ! ! ! ! !!! !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! !!!!!!!!!!! ! ! ! ! ! ! 640 1294 607 1280 1290 1292 1282 1288 609 661 653 649 645 641 657 660 602 616 604 618 620606 661 663 1272 1274 1272 1274 ANNLAND STREET WHARF STREET LI V E R P O O L R O A D SCALE: Engineering Services Department Location Map The Liverpool Road Limited Partnership Jan 26, 2023 DATE: q 1:687 Attachment #2 to Report OPS 11-23