HomeMy WebLinkAboutPLN 32-21Report to Council
Report Number: PLN 32-21 Date: June 28, 2021
From: Kyle Bentley
Director, City Development & CBO
Subject: Lease Agreement – Mr. Delicious Cakes and Pastries Inc. -Temporary Patio Program – use of City owned lands
-File: D-1000-006
Recommendation:
1.That Council approve the Draft Lease Agreement for the Temporary Use of City Property
adjacent to 1295 Wharf Street, Unit 44A, between the City of Pickering and Mr. DeliciousCakes and Pastries Inc. for the period July 1, 2021 to November 30, 2021, as set out inAttachment #2 to Report PLN 32-21;
2.That the Mayor and City Clerk be authorized to execute the Lease Agreement between
the City of Pickering and Mr. Delicious Cakes and Pastries Inc. in the form as attached to
this report subject to revisions as may be acceptable to the Chief Administrative Officer,the City Solicitor, and the Director, City Development & CBO; and
3.That the appropriate officials of the City of Pickering be authorized to take the necessaryactions as indicated in this report.
Executive Summary: Mr. Delicious Cakes and Pastries Inc. (Mr. Delicious) located at 1295 Wharf Street, Unit 44A in the Nautical Village, has submitted a request to operate a temporary outdoor patio on the City owned boulevard in front of their establishment.
The proposed location and design (see Location Map, Attachment #1) of the temporary patio space have met the requirements laid out by the City’s ‘Temporary Patios – Municipal Review and Approval Process’. Staff therefore recommends that the City enter into a lease agreement with Mr. Delicious for temporary use of the City’s boulevard from July 1, 2021 to November 30, 2021 (see Draft Lease Agreement, Attachment #2).
Financial Implications: There are no financial implications associated with this lease agreement.
Discussion: Municipal By-law 7769/20 was approved in June of 2020, in support of the creation of new or expanded, temporary restaurant patios. This By-law was amended in
November of 2020, extending the date of effectiveness of temporary or new patio spaces until
such time as all Provincial Emergency Orders related to the COVID-19 pandemic have been lifted.
Report PLN 32-21 June 28, 2021
Subject: Lease Agreement – Mr. Delicious Fine Dining by the Lake Page 2
As identified in the City’s guidelines, Temporary Patios – Municipal Review and Approval Process,
operation of a temporary patio space on City owned property is subject to the execution of a
lease agreement with the City and is permitted for a limited term of operation being the earlier of the lifting of all Provincial Emergency Orders, or the commencement of the City’s municipal winter maintenance operations.
Mr. Delicious Cakes and Pastries Inc. (Mr. Delicious) is located at 1295 Wharf Street, Unit 44A,
with frontage onto Liverpool Road in the Nautical Village, and has requested permission to
operate a temporary expanded patio space on the City owned boulevard directly in front of their establishment. Fire Services have reviewed their Request to Review for Temporary Patio, and have worked with Mr. Delicious to finalize a design and location of the temporary patio space that meets the criteria of the City’s temporary patio guidelines and Provincial and
Regional Health & Safety regulations.
The term of the lease agreement is from July 1, 2021 to November 30, 2021. The temporary patio expansion must be removed by the earlier of the lifting of all Provincial Emergency Orders related to the pandemic, or the commencement of the City’s winter maintenance program. Mr. Delicious has provided the requisite Certificate of Insurance noting the City as an
added insured, with coverage amounts as required by the City.
During the 2020 temporary patio season, the City received numerous complaints relating to noise, and the use of an outdoor smoker at this café location. Should noise complaints arise again this season, Municipal Law Enforcement staff will enforce the terms of the City’s Noise Control By-law 6834/08 and take appropriate action.
As indicated in Section 7 of the City’s ‘Temporary Patios – Guidelines for Submitting a Request
to Review’, the City may also choose to require closure of the patio should noise issues remain unresolved. This consequence is in keeping with the extended licensing permissions from the Alcohol & Gaming Commission of Ontario, who require that a municipality have no objection to the operation of the temporary patio space in order to be granted an extension of a liquor
licence.
Section 6 of the City’s guidelines indicates the use of the outdoor smoker (or ‘barbeque’) is permitted. Use of the smoker at Mr. Delicious has been addressed by Fire Services to ensure it complies with the Ontario Fire Code. Fire Prevention staff have worked closely with the owner and staff of Mr. Delicious to instruct on the appropriate placement and use of the
smoker, to mitigate smoke emissions, and confirm staff’s ability to effectively use the required
fire extinguishers.
The use of a smoker, barbeque, or other outdoor cooking appliance is a temporary permission granted under the Temporary Patio program. The City’s Waterfront & Nautical Village visioning exercise will provide the opportunity to engage businesses and residents and collect full public
input on the use of commercial outdoor cooking appliances. Staff will consider the comments
and report back to Council on the findings.
Report PLN 32-21 June 28, 2021
Subject: Lease Agreement – Mr. Delicious Fine Dining by the Lake Page 3
In keeping with the City’s ongoing desire to support the re-opening of business in Pickering,
staff therefore recommends the City enter into a lease agreement (see Draft Lease
Agreement, Attachment #2) with Mr. Delicious for the temporary use of the City owned boulevard, as indicated in the attached site drawing (see Location Map, Attachment #1).
Attachments:
1. Location Map 2. Draft Lease Agreement
Prepared By: Approved/Endorsed By:
Original Signed By Original Signed By
Catherine Hodge Kyle Bentley, P. Eng. Senior Coordinator, Development Liaison Director, City Development & CBO
CH:ld
Recommended for the consideration of Pickering City Council
Original Signed By
Marisa Carpino, M.A. Chief Administrative Officer
Attachment #1 to PLN 32-21
Location Map
Location of temporary patio on City of Pickering lands, known legally as:
Liverpool Road, south of Annland Street being the Road Allowance between Lots 22 and
23, Range 3, Concession Broken Front, Pickering.
Mr. Delicious Cakes and Pastries Inc.
1295 Wharf Street, Unit 44A, Pickering
Attachment #2 to PLN 32-21
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This Licence Agreement is made this 29th day of June, 2021.
Between:
Mr. Delicious Cakes and Pastries Inc.
(the "Restaurant”)
-and -
The Corporation of the City of Pickering
(the "City")
Whereas the City owns the lands legally described as Liverpool Road, south of Annland Street being
the Road Allowance between Lots 22 and 23, Range 3, Concession Broken Front, Pickering; and
Whereas the Restaurant wishes to use a portion of the City-owned lands as shown in red on the
location map attached hereto as Schedule “A” (the “Lands”) for the purpose of operating a temporary
outdoor patio for the serving of food and beverages as shown on the plans and specifications
attached hereto as Schedule “B” (the “Temporary Patio”); and
Whereas the City has agreed to grant to the Restaurant a non-exclusive licence permitting the
Temporary Patio on the Lands subject to the terms and conditions set out in this Licence.
Now Therefore in consideration of the mutual covenants hereinafter set forth and other good and valuable consideration, the City and the Restaurant agree as follows:
Licence
1.Subject to the terms of this Licence, the City grants permission to the Restaurant to use the
Lands on a non-exclusive basis for the Temporary Patio.
2.The Restaurant acknowledges that this Licence does not create an interest in the Lands nor
does the Restaurant claim any past or present interest, howsoever arising, as a result of or
connected in any way with the use and occupation of the Lands.
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3. The licence granted herein is only for the duration of this Licence 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 enter onto the
Lands and to grant, renew or extend licenses and other interests to other third parties.
Term
5. Unless earlier terminated as provided herein, the term of this Licence shall commence on July 1, 2021, and expire on the earlier of November 30, 2021 at 9 pm, or such time as restrictions under the Province of Ontario's COVID-19 response framework are lifted. (the
“Term”). 6. Except as otherwise provided for in this Licence, this Licence 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 Restaurant. Notwithstanding the foregoing, if at any time the Restaurant is in default in the
performance of any of the obligations under this Licence, the City shall have the right to terminate this Licence forthwith and thereupon all the rights of the Restaurant shall immediately cease. The City shall not be liable for payment to the Restaurant for any damage or loss arising from the termination of this Licence by the City pursuant to this Section.
7. Upon the expiry or earlier termination of this Licence, the Restaurant shall remove the Temporary Patio, at its own expense, and restore the Lands to its original condition.
Fees
8. The Restaurant shall not be required to pay to the City any fee for this Licence, but shall be
responsible for payment of all applicable non-City permits, licences, staffing charges, and
approval fees where applicable.
Applicable Laws
9. The Restaurant shall comply strictly with all applicable laws, by-laws, rules and regulations governing its use of the Lands for the Temporary Patio, including, but not limited to, the City’s Noise By-law, Traffic and Parking By-laws, the Ontario Building Code, the Ontario Fire Code,
and all applicable requirements of the Technical Standards & Safety Authority. 10. The Restaurant, where applicable, shall obtain all necessary permits, licenses and approvals that may be required in connection with its use of the Lands for the Temporary Patio, including, but not limited to:
a) The City of Pickering form – ‘Request to Review for Temporary Patio’;
b) Tents, should they be constructed, must comply with applicable building permit requirements under the Building Code Act, Ontario Building Code (OBC) and the City’s
Temporary Tent Standard Operating Procedure (City Development Department);
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c) Compliance with the Health & Safety Guidelines as issued for outdoor patio operations by
the Province of Ontario and the Durham Region Health Department; and
d) No smoking signs to be placed, in accordance with the Durham Region smoking ban by-law. Fire Safety
11. The Restaurant acknowledges that throughout the term of the Lease, the Temporary Patio is
subject without notice, to a fire inspection to be carried out by City of Pickering Fire Services to determine compliance with the Ontario Fire Code. 12. The location of the Temporary Patio must maintain a 1.2 metre clearance from all fire hydrants or fire connections (Siamese) and they must be visible and accessible at all times.
13. Portable fire extinguishers, (a) shall be present if cooking equipment is used on the Temporary Patio, and any location serving alcoholic beverages. Extinguishers must be properly rated for the hazard
present. Portable extinguishers shall be kept operable and fully charged; (b) shall be located so that they are easily seen and shall be accessible at all times; and (c) in proximity to a fire hazard shall be located so as to be accessible without exposing the operator to undue risk.
14. Restaurant staff must be familiar with the safe operation of portable fire extinguishers in their work area.
Utilities
15. The Restaurant shall assume all costs and expenses in connection with the Temporary Patio,
including, but not limited to, all utility costs.
16. The Restaurant and its employees, agents and contractors, including its electrical support group, is prohibited from altering City electrical infrastructure, and is only permitted to use existing outlets.
17. The Restaurant shall ensure all power cords have been covered to avoid tripping hazards. 18. The City assumes no responsibility to the Restaurant for the temporary or unavoidable interruption of the supply of any public utility service due to any cause whatsoever.
Hours of Operation
19. Subject to any other regulatory approval (e.g. liquor licence), the Restaurant will maintain their usual hours of operation for the existing restaurant (or existing patio), or as directed by the Province of Ontario, ‘Roadmap to Re-Open’.
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Maintenance
20. The Restaurant shall ensure that the Lands and the Temporary Patio are maintained in a state of good and safe repair, and in a clean and sanitary condition during the Term, to the
satisfaction of the City. The Restaurant shall immediately notify the City of any damage to the Lands. 21. In the event that the Restaurant wishes, during the Term, to replace or materially alter the Temporary Patio, the Restaurant shall not commence replacement or alteration unless:
(a) the City has approved the Restaurant’s plans, specifications and appearance of the proposed replacement or alteration; (b) otherwise agreed to by the City, the replacement or alteration does not occupy an area that is larger than the Lands and shall be situate in the same location as the
Temporary Patio; (c) the Restaurant has received all regulatory approvals and/or the replacement or alteration complies with all regulatory requirements; and
(d) the Restaurant has obtained any necessary permits for the work to be undertaken. 22. The Restaurant shall ensure that any personnel installing, maintaining, replacing, altering or repairing the Temporary Patio shall be properly trained and fully qualified to perform the
relevant work. The Restaurant 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 Lands. Waste Management
23. The Restaurant shall remove any and all refuse generated by the use of the Temporary Patio,
as it occurs and at the expense of the Restaurant. Insurance
24. The Restaurant, at its own expense, shall provide,
(a) comprehensive general public liability insurance, identifying the City as an
additional insured, including coverage for personal injury, contractual liability, non-owned automobile liability, death and property damage, on an occurrence basis with respect to the Temporary Patio and the use and occupancy of the Lands, with coverage for any one occurrence or claim of not less than $5,000,000, which insurance shall protect the City in respect of claims by the
Restaurant as if the City was separately insured;
(b) a certificate of insurance coverage in a form satisfactory to the City, which insurance coverage shall be kept in full force and effect throughout the Term;
(c) Thirty (30) days prior written Notice, by registered mail, will be given by the
insurer(s) to the City of Pickering if this Policy is cancelled or if any material
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change occurs that would, for any reason, affect this Certificate or the City of Pickering as outlined in the coverage specified herein. Notice will be given to:
(d) The Corporation of the City of Pickering, Attention: City Development Department, One The Esplanade, Pickering, ON, L1V 6K7
25. The Restaurant shall not do or omit or permit to be done anything that causes any insurance premium of the City to be increased, and if any insurance premium shall be so increased, the
Restaurant shall pay to the City forthwith upon demand the amount of such increase. If notice of cancellation or lapse shall be given respecting any insurance policy of the City or if any insurance policy shall be cancelled or refused to be renewed by an insurer by reason of the use or occupation of the Lands, the Restaurant shall forthwith remedy or rectify such use or occupation upon being requested to do so in writing by the City and if the Restaurant shall fail
to do so the City may, at its option, terminate this Licence forthwith by notice to the Restaurant.
Liability and Indemnification
26. The City shall not be liable to the Restaurant for any loss, damage or personal injury (including death) relating to the Temporary Patio or the use and occupancy of the Lands, whether caused
by fire, theft, burglary, or otherwise, unless such loss or damage was caused by the
negligence or willful misconduct of the City, its servants, agents or employees. 27. Once any equipment is erected on the Lands, the Restaurant shall determine its own terms for overnight security of its equipment, and the Lands and equipment shall be and remain at the
risk of the Restaurant.
28. Save and except for the gross negligence or willful misconduct of the City, the Restaurant agrees to indemnify and save the City, and all its directors, officers, employees, elected officials, agents, contractors and representatives harmless from any and all losses, actions,
damages, claims, liability, costs, expenses and demands, of any kind, including, without
limiting the generality of the foregoing, all claims for personal injury, illness or death, including any claims arising from the COVID-19 virus, or from any act or omission of the Restaurant or those for whom the Restaurant is at law responsible arising out of any action whatsoever by the Restaurant, its directors, employees, agents, contractors, invitees or anyone in connection
with the Restaurant’s use and occupancy of the Lands or the presence of Temporary Patio on
the Lands. This provision shall survive the expiration or earlier termination of this Licence.
29. The Restaurant waives any and all claims against, releases from liability and agrees not to sue the City, its directors, officers, employees, elected officials, agents, contractors and
representatives for any personal injury, illness, death or any other loss sustained by the
Restaurant or for which the Restaurant may be responsible arising out of, or in connection with the Restaurant’s use and occupancy of the Lands or the presence of the Temporary Patio on the Lands, including any loss arising from the COVID-19 virus.
Force Majeure 30. The City shall not be liable for any damages caused by any delay or failure to perform the
whole or any part of this Licence, where such performance is made impossible or impractical
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due to any cause direct or indirect, beyond the control of the City, including, but not limited to,
labour disruptions, strikes, lockouts, fire, flood, storms, acts of nature, natural disasters, acts of
war, insurrection and terrorism, outbreak, pandemic, epidemic, disease or emergency.
Relationship of Parties
31. 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 Licence.
Commercial Tenancies Act
32. The parties agree that the provisions of the Commercial Tenancies Act DO NOT apply to this Licence between the parties.
Notice
33. 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
Email: citydev@pickering.ca Attention: Director, City Development & CBO Fax No.: 905.420.7648 and in the case of the Restaurant to:
1295 Wharf Street, Unit 44A Pickering, ON L1W 1A2 Attention: Glenroy Taylor Email: delicious_mr@hotmail.com Phone No.: 416.999.5890
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 the event of a postal strike or pending postal strike, any or all notices must be given by personal delivery or by electronic means.
Title
34. The Restaurant hereby agrees to keep title to the Lands, including every part thereof, free and
clear of any lien, encumbrance or security interest or notice thereof. The Restaurant shall not
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enter into any agreements for the Lands which would run with the Lands and become an obligation of the City upon termination or expiration of this Licence.
Time
35. In all respects, time shall be of the essence of this Licence.
Counterparts
36. This Licence may be executed in any number of counterparts, each of which shall be deemed
an original and all of which taken together shall be deemed to constitute one and the same
document. The execution of this Licence will not become effective until counterparts hereof
have been executed by all the parties hereto. Counterparts may be executed either in original
or electronic form and the parties adopt any signatures received in electronic form as original
signatures of the parties.
General
37. The City shall have the right to enter the Lands at any time for any reason. 38. The Restaurant agrees to ensure activities are limited to the typical operation of a commercial temporary outdoor patio and will not inhibit in any way the safety and enjoyment of the public
or its use of the adjacent public owned lands.
39. The Restaurant shall not alter, add to or vary in any way any part of the Lands without the prior approval of the City.
40. This Licence shall not be assignable by the Restaurant without the consent of the City, which
consent may be arbitrarily refused. 41. This Licence shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
42. Schedules “A” and “B” attached to this Licence form part of this Licence. The recitals at the head of this Licence are true and accurate and form a part hereof. 43. No amendment to this Licence shall be effective unless it is in writing and signed by both parties. 44. 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 Licence 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 Licence.
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45. The headings in this Licence 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 Licence nor any of the
provisions hereof.
46. The Restaurant shall not have the right to register this Licence or notice thereof against title to the Lands or any part thereof.
In Witness Whereof the City and the Restaurant have executed this Licence as of the date first written
above.
Mr. Delicious Cakes and Pastries Inc.
_________________________________
Name: Glenroy Taylor
Title: Owner
I/We have authority to bind the Corporation.
The Corporation of the City of Pickering
Dave Ryan, Mayor
Susan Cassel, City Clerk
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Schedule “A”
The Lands
Location of temporary patio on City of Pickering lands, known legally as:
Liverpool Road, south of Annland Street being the Road Allowance between Lots 22 and
23, Range 3, Concession Broken Front, Pickering..
Mr. Delicious Cakes and Pastries Inc.
1295 Wharf Street, Unit 44A, Pickering
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Schedule “B”
Temporary Patio
Plans and Specifications
Proposed plans and specifications for the temporary patio are subject to inspection by the City and
must comply at all times with current Health & Safety regulations as may be issued by the
Province of Ontario's COVID-19 response framework or Region of Durham Health Department.
Proposed design for existing patio occupancy on private property, and occupancy of temporary
expanded patio on City of Pickering owned boulevard.
Drawing not to scale