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HomeMy WebLinkAboutBy-law 6285/04 SCHEDULE "A" THE CORPORATION OF THE CITY OF PICKERING BY-LAW NO.~2~_~/O4 Being a by-law to authorize the execution of a Management Agreement attached hereto as Schedule "A" between the Corporation of the City of Pickering and The Canadian Progress Club - Durham South to use the facility known as the Front Street Centre. These premises are located at Water Lots 1, 2 and Part of Water Lot 3, Plan 65, in the City of Pickering (Progress Frenchman's Bay East Park). WHEREAS pursuant to the provisions of Section 110 Municipal Act, 2001, chapter 25, the Council of The Corporation of the City of Pickering may by by-law lease premises owned by the Corporation; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF PICKERING HEREBY ENACTS AS FOLLOWS: The Mayor and Clerk are hereby authorized to execute a Management Agreement in the form acceptable to the Solicitor for the City for a three-year (3) term ending December 31, 2006, between the Corporation of the City of Pickering and The Canadian Progress Club - Durham South. BY-LAW read a first, second and third time and finally passed this 2ndl day of February 2004. Dave Ry~ , ,~77' ~f'uce Taylor, City Clerk SCHEDULE "A" THIS MANAGEMENT AGREEMENT made January 1, 2004, pursuant to the provisions of sections 110 of the Municipal Act, 2001, chapter 25. BETWEEN: THE CANADIAN PROGRESS CLUB - DURHAM SOUTH herein called the "Club" OF THE FIRST PART, - and - THE CORPORATION OF THE CITY OF PICKERING herein called the "City" OF THE SECOND PART. WHEREAS, the City owns a facility known as the Front Street Centre, these premises are located at Water Lots 1, 2 and Part of Water Lot 3, Plan 65, in the City of Pickering, hereinafter referred to as the "Centre". WHEREAS, the Club has proposed management services to the City with respect to Centre; NOW THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of the mutual covenants and agreements herein contained and the sum of Twenty-Five ($25.00) Dollars paid by each party to the other (the receipt and sufficiency of which is hereby acknowledged), subject in the terms and conditions hereinafter set out, the Parties hereto agree as follows: 1. DEFINITIONS (1) For the purpose of this Agreement "Premises" shall mean: (a) the entire Centre including exterior deck and access walks. (2) For the purpose of this Agreement, "Management Services" shall mean: (a) the leasing of the Premises, or parts thereof, from time to time during the Term of this Agreement, to non-commercial leases and third parties for non-profit functions, charity events, receptions and any other City-approved purposes in accordance with the rental rates agreed to between the parties hereto in accordance with paragraph 7 of this agreement; (b) the provision of care taking and general maintenance services to the Premises at the Club's expense, together with the provisions of all necessary cleaning and maintenance supplies such as cleaning products, related paper products and cleaning equipment; (c) snow removal on all sidewalks, walkways and all other areas of pedestrian passages on the premises. TERM The Club shall have use of the Premises and shall provide the City with Management Services to the satisfaction of the City for a three-year Term (the "Term") commencing on January 1, 2004 and ending on December 31, 2006 unless earlier terminated. 3. MAINTENANCE (a) The City shall be responsible for all inspections and preventative maintenance with respect to the heating equipment, transformer, parking lot, lights and exterior landscaping, however, the Club shall be responsible for any damages or costs incurred due to the misuse or negligence of the Club, its employees, invitees, servants, agents, or others under its control and the Club shall pay to the City on demand the expense of any repairs including the City's reasonable administration charge necessitated by such negligence or misuse; (b) The City shall provide grass cutting and landscaping services and snow removal for the parking lot of the Centre only. The Club shall be responsible for snow removal on other areas of pedestrian passage at the Centre; (c) The Club shall be responsible for all day-to-day operating expenses including all utilities and garbage removal; and (d) The City shall repair existing leaks in plumbing in basement and provide a new roof if deemed necessary by the Director, Operations & Emergency Services, which determination will be final. 4. SECURITY The Club shall be responsible for the security of the Premises. The Club shall be responsible for any costs incurred or arising due to the misuse or negligence of the Club, its employees, invitees, servants, agents or others under its control and the Club shall pay to the City on demand the expense of any repairs including the City's reasonable administration charges necessitated by such negligence or misuse. The Club will ensure that no copies of the keys to the Premises are made without the prior written consent of the City. 5. CITY USE OF PREMISES Notwithstanding any other provision of this Agreement, the City and the Club acknowledge and agree that the City will have first right of refusal to use the Premises. The Club will not be entitled to any rental fees or other remuneration associated with the use of the Premises by the City. 6. USE & OCCUPANCY OF PREMISES BY THE CLUB The Club agrees to use, and ensure that the use of the Premises is in accordance with the City's Alcohol Management Policy, which is attached hereto as Schedule "A". (a) Sharing of Use The parties herein acknowledge and agree that the Club shall have the exclusive use of the Premises every Saturday and Wednesday evening throughout the year. (b) Appearance of Premises The Club agrees to maintain and operate the Premises so that they shall always be of good appearance and suitable for the proper operation of the uses required to be carried on therein and comparable with the standards of the best such uses, and in so doing, to keep both the interior and exterior of the Premises clean, orderly and tidy, and clear of all refuse, snow and ice. 2 (c) By-Laws The Club agrees to comply, at its own expense, with all Municipal, Federal, Provincial, sanitary, fire, health and safety laws, regulations and requirements pertaining to the occupation and use of the Premises, the condition of the improvements, trade fixtures, furniture and equipment installed by or on behalf of the Club therein and the making by the Club of any repairs, changes or improvements therein, which repairs, changes or improvements, shall be pre-approved by the City in accordance with the provisions of Clause 3 herein. 7. RENTAL REVENUES I. The Club shall retain 100% of the rental fees recovered for the Premises from all lessees other than City. II. The Club shall submit a written report to the City quarterly yearly, which shall include financial statements setting out the details of the funds, received by the Club from the rental of the Premises. III. The Club agrees that it shall only charge such fees for the rental of the Premises at the rate that is approved by the City from time to time. The City and the Club shall establish the approved rental fee rate yearly throughout the Term. 8. GENERALCOVENANTS (1) The City covenants with the Club: (a) for quiet enjoyment; and (b) to observe and perform all covenants and obligations of the City herein. (2) The Club covenants with the City: (a) to pay all day-to-day expenses, (b) to pay all goods and services taxes, and (c) to observe and perform all covenants and obligations of the Club herein. 9. PROHIBITION AGAINST ASSIGNMENT AND SUB-LETTING The Club shall not assign this Management Agreement without the prior written consent of the City which consent may be arbitrarily withheld. 10. LEASEHOLD IMPROVEMENTS & TRADE FIXTURES (1) Definition of Leasehold Improvements For purposes of this Management Agreement, the Term "Leasehold Improvements" includes without limitation all fixtures, improvements, installations, alterations and additions from time to time made, erected or installed by or on behalf of the Club in or on the Premises, and whether or not moveable, with the exception of furniture and equipment not of the nature of fixtures. (2) Installation of Improvements & Fixtures (3) The Club shall not make, erect, install or alter any Leasehold Improvements or trade fixtures, including lighting, in or on the Premises without having first obtained the City's written approval. The Club's request for any approval hereunder shall be in writing and accompanied by an adequate description of the contemplated work and, where appropriate, working drawings and specifications thereof. All work to be performed in the Premises shall be performed by competent contractors and subcontractors of whom the City shall have approved, such approval not to be unreasonably withheld. All such work shall be subject to inspection by and the reasonable supervision of the City, and shall be performed in accordance with any reasonable conditions or regulations imposed by the City and completed in a good and workmanlike manner in accordance with the description of work approved by the City. Liens & Encumbrances on Improvements & Fixtures In connection with the making, erection, installation or alteration of Leasehold Improvements and trade fixtures and all other work or installations made by or for the Club in or on the Premises, the Club shall comply with all the provisions of the Construction Lien Act, and other statutes from time to time applicable thereto, including any provision requiring or enabling the retention by way of hold-back of portions of any sums payable, and except as to any such hold-back shall promptly pay all accounts relating thereto. The Club shall not create any mortgage, conditional sale agreement or other encumbrance in respect of its Leasehold Improvements or, without the consent of the City, with respect to its trade fixtures nor shall the Club take any action as a consequence of which any such mortgage, conditional sale agreement or other encumbrance would attach to the Premises or any part thereof. If and whenever any lien for work, labour, services or materials supplied to or for the Club or for the cost of which the Club may be in any way liable or claims therefore shall arise or be filed or any such mortgage, conditional sale agreement or other encumbrance shall attach, the Club shall within 20 days after receipt of notice thereof procure the discharge thereof, including any certificate of action registered in respect of any lien, by payment or giving security or in such other manner as may be required or permitted by law, and failing which the City may in addition to all other remedies hereunder avail itself of its remedy under section 12 hereof and may make any payments required to procure the discharge of any such liens or encumbrances, shall be entitled to be reimbursed by the Club as provided in section 12, and its right to reimbursement shall not be affected or impaired if the Club shall then or subsequently establish or claim that any lien or encumbrance so discharged was without merit or excessive or subject to any abatement, set-off or defence. This subsection shall not prevent the Club from mortgaging or encumbering its chattels, furniture or equipment not of the nature of fixtures. (4) Additions and Alterations The Club shall not make any alterations or additions to the Premises without the prior written consent of the City's Director, Operations & Emergency Services. Any such pre-approved alterations, addition, or fixtures shall be added to the City's inventory of fixtures, and shall form part of the City's property. The Club acknowledges that it has no claim to any such alteration, addition or fixture upon the Termination of this Agreement. 11. INSURANCE & LIABILITY (1) Club's Insurance The Club shall take out and keep in force during the Term: 4 (2) (a) comprehensive insurance of the type commonly called general public liability, which shall include coverage for personal liability, contractual liability, Club's legal liability, non-owned automobile liability, bodily injury, death and property damage, all on an occurrence basis with respect to the Club's use and occupancy of the Premises, with coverage for any one occurrence or claim of not less than $2,000,000, or such other amount as the City may reasonably require upon not less than six months notice at any time during the Term, which insurance shall include the City as a named insured and shall protect the City in respect of claims by the Club as if the City were separately insured; and (b) insurance against such other perils and in such amounts as the City may from time to time reasonably require upon not less than 90 days written notice, such requirement to be made on the basis that the required insurance is customary at the time for prudent tenants of similar properties. All insurance required to be maintained by the Club hereunder shall be on Terms and with insurers to which the City has no reasonable objection. Each policy shall contain a waiver by the insurer of any rights of subrogation or indemnity or any other claim over to which the insurer might otherwise be entitled against the City or the agents or employees of the City, and shall also contain an undertaking by the insurer that no material change adverse to the City or the Club will be made, and the policy will not lapse or be cancelled, except after not less than thirty days written notice to the City of the intended change, lapse or cancellation. The Club shall furnish to the City, if and whenever requested by it, certificates or other evidences acceptable to the City as to the insurance from time to time effected by the Club and its renewal or continuation in force, together with evidence as to the method of determination of full replacement cost of the Club's Leasehold Improvements, trade fixtures, furniture and equipment, and if the City reasonably concludes that the full replacement cost has been underestimated, the Club shall forthwith arrange for any consequent increase in coverage required hereunder. If the Club shall fail to take out, renew and keep in force such insurance, or if the evidences submitted to the City pursuant to the preceding sentence are unacceptable to the City or no such evidences are submitted within a reasonable period after request therefore by the City then the City may give to the Club written notice requiring compliance with this section and specifying the respects in which the Club is not then in compliance with this section. If the Club does not, within 72 hours or such lesser period as the City may reasonably require having regard to the urgency of the situation, provide appropriate evidence of compliance with this section, the City may, but shall not be obligated to, obtain some or all of the additional coverage or other insurance which the Club shall have failed to obtain, without prejudice to any other rights of the City under this Lease or otherwise, and the Club shall pay all premiums and other expenses incurred by the City in that connection as additional rent pursuant to section 12 hereof. Limitation of City's Liability The City shall not be liable for any bodily injury or death of, or loss or damage to any property belonging to the Club or its employees, invitees or licensees or its guests, or to any other person in, on or about the Premises. 12. 13. (3) Club's Indemnification of City The Club shall indemnify and save harmless the City in respect of: (a) all actions, causes of actions, suits, claims and demands whatsoever, which may arise either directly or indirectly by reason of any act or omission of the Lessee, its servants, licensees, invitees, members, guests, contractors or agents in the use or occupation of the Premises; (b) any loss, cost, expense or damage suffered or incurred by the City arising from any breach by the Club of any of its covenants and obligations under this Management Agreement; and (c) all costs, expenses and reasonable legal fees that may be incurred or paid by the City in enforcing against the Club the covenants, agreements and representations of the Club set out in this Management Agreement. CITY'S ACCESS The Club shall be responsible for minor repairs to the Premises, at its expense, reasonable wear and tear, fire damage, lightning damage and storm damage excepted. (2) The City shall be permitted at any time and from time to time to enter and to have its authorized agents, employees and contractors enter the Premises for the purposes of inspection, maintenance or making repairs, and the Club shall provide free and unhampered access for the purpose, and shall not be entitled to compensation for any inconvenience, nuisance or discomfort caused thereby, but the City in exercising its rights hereunder shall proceed to the extent reasonably possible so as to minimize interference with the Club's use and enjoyment of the Premises. DELAY & NON-WAIVER (1) Unavoidable Delay Except as herein otherwise expressly provided, if and whenever and to the extent that either the City or the Club shall be prevented, delayed or restricted in the fulfillment of any obligation hereunder in respect of the making of any repair, the doing of any work or any other thing, other than the payment of rent or other monies due, by reason of: (i) strikes or work stoppages; (ii) inability to obtain any material, service, utility or labour required to fulfill such obligation; any statute, law or regulation of, or inability to obtain any permission from, any government authority having lawful jurisdiction preventing, delaying or restricting such fulfillment; or (iv) other unavoidable occurrence, the time for fulfillment of such obligation shall be extended during the period in which such circumstances operates to prevent, delay or restrict the fulfillment thereof, and the other party shall not be entitled to compensation for any inconvenience, nuisance or discomfort thereby occasioned. 14. (2) Waiver If either the City or the Club shall overlook, excuse, condone or suffer any default, breach or non-observance by the other of any obligation hereunder, this shall not operate as a waiver of such obligation in respect of any continuing or subsequent default, breach or non-observance, and no such waiver shall be implied but shall only be effective if expressed in writing. REMEDIES OF CITY (1) In addition to all rights and remedies of the City available to it in the event of any default hereunder by the Club through improper compliance or non- compliance with any obligation arising either under this or any other provision of this Management Agreement or under statute or the general ~aw, (a) the City shall have the right at all times to remedy or attempt to remedy any default of the Club, and in so doing may make any payments due or alleged to be due by the Club to third parties and may enter upon the Premises to do any work or other things therein, and in such event all expenses of the City in remedying or attempting to remedy such default shall be payable by the Club to the City as additional rent forthwith upon demand; (b) the City shall have the same rights and remedies in the event of any non-payment by the Club of any amounts payable by the Club under any provision of this Management Agreement as in the case of a non-payment of rent; and (c) if the Club shall fail to pay any rent or other amount from time to time payable by it to the City hereunder promptly when due, the City shall be entitled, if it shall demand it, to interest thereon at a rate of three per cent per annum in excess of the minimum lending rate to prime commercial borrowers from time to time current at the City's bank from the date upon which the same was due until actual payment thereof. (2) Remedies Cumulative The City may from time to time resort to any or all of the rights and remedies available to it in the event of any default hereunder by the Club, through improper compliance or non-compliance with any obligation arising either under any provision of this Management Agreement or under statute or the general law, all of which rights and remedies are intended to be cumulative and not alternative, and the express provisions hereunder as to certain right and remedies are not to be interpreted as excluding any other or additional rights and remedies available to the City by statute or the general law. (3) Right of Re-Entry on Default or Termination If and whenever the rent hereby reserved or other monies payable by the Club or any part thereof shall not be paid on the day appointed for payment thereof, whether lawfully demanded or not, and the Club shall have failed to pay such rent or other monies within five (5) business days after the City shall have given to the Club notice requiring such payment, or if the Club shall breach or fail to observe and perform any of the covenants, agreements, provisos, conditions and other obligations on the part of the Club to be kept, observed or performed hereunder, or if this Management Agreement shall have become Terminated pursuant to any provision hereof, or if the City shall have become entitled to Terminate this Management Agreement and shall have given notice Terminating it pursuant to any provision hereof, then and in every such case it shall be lawful for the City thereafter to enter into and upon the Premises or any part thereof in the name of the whole and the same to have again, ? 15. 16. repossess and enjoy as of its former estate, anything in this Management Agreement contained to the contrary notwithstanding. (4) Termination & Re-Entry (a) If and whenever the City becomes entitled to re-enter upon the Premises under any provision of this Management Agreement the City, in addition to all other rights and remedies, shall have the right to Terminate this Management Agreement forthwith by leaving upon the Premises notice in writing of such Termination. (b) The Term of this Agreement may be terminated by either Part upon six month's notice to the other in writing. (c) The Term of this Agreement may be terminated by the City upon ten day's notice to the Club in writing in the event that the insurance required to be provided in section 11 of this Agreement is not provided or not kept in force. (d) In the event that this Agreement is terminated by the City pursuant to subsection (a), (b) or (c) above, the City shall honour any bookings previously made with the Club for the use of the Premises after the effective date of termination. (5) Payment of Rent, etc. on Termination Upon the giving by the City of a notice, in writing, terminating this Management Agreement, whether pursuant to this or any other provision of this Management Agreement, this Management Agreement and the Term shall Terminate, rent and any other payments for which the Club is liable under this Management Agreement shall be computed, apportioned and paid in full to the date of such Termination, and the Club shall immediately deliver up possession of the Premises to the City, and the City may re-enter and take possession of them. IMPROPER USE OF PREMISES; BANKRUPTCY In case without the written consent of the City the Premises shall be used for any purpose other than that for which they were leased, or occupied by any persons whose occupancy is prohibited by this Management Agreement, or if the Premises shall be vacated or abandoned, or remain unoccupied for fifteen (15) days or more while capable of being occupied; or if the balance of the Term or any of the goods and chattels of the Club shall at any time be seized in execution or attachment, or if the Club shall make any assignment for the benefit of creditors or any bulk sale, become bankrupt or insolvent or take the benefit of any statute now or hereafter in force for bankrupt or insolvent debtors, then in any such case the City may at its option Terminate this Management Agreement by leaving upon the Premises notice in writing of such Termination and thereupon, in addition to the payment by the Club of rent and other payments for which the Club is liable under this Management Agreement, rent for the current month and the next ensuing 3 months shall immediately become due and paid by the Club. MISCELLANEOUS PROVISIONS (1) Registration of Management Agreement Neither the Club nor the City shall register this Management Agreement or a notice of this Management Agreement. (2) Manaqement Agreement Constitutes Entire Aqreement There are no covenants, representations, warranties, agreements or conditions express or implied, collateral or otherwise forming part of or in any way affecting or relating to this Management Agreement save as expressly set out in this Management Agreement; this Management Agreement constitutes the entire agreement between the City and the Club and may not be modified except as herein explicitly provided or except by agreement in writing executed by the City and the Club. (3) (4) (5) Notices Any notice required or contemplated by any provision hereof shall be given in writing, and (a) if to the City, either delivered to the City Clerk personally or mailed by prepaid registered mail addressed to The City Clerk, The Corporation of the City of Pickering, Pickering Civic Complex, One The Esplanade, Pickering, Ontario L1V 6K7; and (b) if to the Club, either delivered to The Canadian Progress Club - Durham South, cio the President or Secretary, at Pickering, Ontario. Every such notice shall be deemed to have been given when delivered or, if mailed as aforesaid, upon the third day after the day it is mailed. Either party may from time to time by notice in writing to the other, designate another address in Canada as the address to which notices are to be mailed to it. Interpretation All of the provisions of this Management Agreement are to be construed as covenants and agreements as though words importing such covenants and agreements were used in each separate provision hereof, and the titles and captions appearing for the provisions of this Management Agreement have been inserted as a matter of convenience and for reference only and in no way define, limit or enlarge the scope or meaning of this Management Agreement or of any provision hereof. Extent of Manaqement Agreement Obligations This Management Agreement and everything herein contained shall enure to the benefit of and be binding upon the respective heirs, executors, administrators and other legal representatives, as the case may be, of each party hereto, and every reference herein to any party hereto shall include the heirs, executors, administrators, and other legal representatives of such party. IN WITNESS WHEREOF the Parties hereto have executed this Indenture. SIGNED, SEALED AND DELIVERED THE CANAl A~ P '~:~O .UB- DURHAM SOUTH THE CORPORATION OF THE CITY OF PICKERING Dave Ryan, Mayor Bruce Taylor, City Clerk