HomeMy WebLinkAboutPLN 15-23Report to Council
Report Number: PLN 15-23
Date: May 23, 2023
From: Kyle Bentley
Director, City Development & CBO
Subject: Licence Agreement – Open Studio Art Café
-Seasonal Patio Program use of City owned lands
-File: D-1000-006
Recommendation:
1.That Council approve the Draft Licence Agreement for the temporary use of City Property
adjacent to 617 Liverpool Road, to operate a Seasonal Patio, between the City of
Pickering and Open Studio Art Café, from such time as the final inspection of
construction has been undertaken and approved, until November 30, 2023, as set out in
Appendix I to Report PLN 15-23;
2.That the Mayor and City Clerk be authorized to execute the Licence Agreement between
the City of Pickering and Open Studio Art Café, in the form as appended 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 necessary
actions as indicated in this report.
Executive Summary: Open Studio Art Café (OSAC), located at 617 Liverpool Road in the
Nautical Village, has submitted a request to operate a Seasonal Patio on the City owned
boulevard in front of their establishment. Seasonal Patios were previously approved for this
location in 2020, 2021 and 2022, through the City’s Temporary Patio Program, a business
continuity program implemented by the City during the period of pandemic restrictions for
restaurants. The Temporary Patio Program is now closed, however, OSAC wishes to continue
the practice of operating a Seasonal Patio on the City’s boulevard, using the same location
and patio design as approved under previous Licence Agreements.
The proposed location (see Location Map, Appendix I – Schedule “A”) of the Seasonal Patio is
the same as in previous years. This year’s Seasonal Patio would continue to be subject to the
requirements of the Ontario Fire Code, the Ontario Building Code, the Accessibility For
Ontarians with Disabilities Act, and all Provincial and Regional Health Department regulations.
In order to accommodate the increased occupancy load of patrons seated on a Seasonal Patio,
OSAC has obtained an approved Building Alteration Permit to redesign the interior layout of
the café, add washroom capacity, and to change the use of this premises from an ‘Art Gallery’
with take-out coffee service, to a ‘Restaurant’ use. This work will increase the seating capacity
of the facility, so as to legally comply with occupancy load maximums.
May 23, 2023 PLN 15-23
Subject: Licence Agreement – Open Studio Art Café Page 2
Staff therefore recommends that the City enter into a Licence Agreement with OSAC for
temporary use of the City’s boulevard, from such time as the Building Services Section has
undertaken the final inspection and approves the construction, as required under OSAC’s
approved Building Permit, until November 30, 2023 (see Draft Licence Agreement, Appendix I).
The OSAC Seasonal Patio would also be subject to terms that restrict the patio patron
movements to within the identified boundary of the Seasonal patio, that restrict amplified music
after 9:00 pm, and that excludes outdoor cooking.
Financial Implications: A one-time fee of $500.00 plus HST will be payable by OSAC, as
a term of the Licence Agreement. No further financial implications are associated with this
Licence Agreement.
Discussion: Third party use of municipally owned property for any reason is subject to the
execution of a Licence Agreement with the City and, in this case, is permitted for a limited term
of operation that does not conflict with the City’s municipal Winter Maintenance operations.
Open Studio Art Café (OSAC) is located at 617 Liverpool Road in the Nautical Village. For the
fourth consecutive year, they are requesting permission to operate a temporary patio on the
City owned boulevard at this address. City staff in Fire Services, Building Services and
Municipal Law Enforcement have considered this request, and have no objection to the
proposed design or location of the temporary patio space.
Matters relating to maximum occupant loads and permitted uses at this facility have recently
been addressed through the City’s issuance of a Building Alteration Permit that approves a
new interior design. These works include the construction of additional washroom capacity,
and supports a change of use from “Art gallery” with take-out only coffee service, to a
“Restaurant” use permitting both take-out and eat-in food service. Once completed, the newly
renovated facility will achieve a higher maximum occupancy load, that can be shared across
the interior space, the porch and a Seasonal Patio.
The proposed term of the Licence Agreement is from such time as the City has conducted an
approved final inspection of the construction work, until November 30, 2023. The patio must be
removed at the end of the term to accommodate the City’s Winter Maintenance program.
OSAC has provided the requisite Certificate of Insurance noting the City as an added insured,
in an amount as required by the City. Compliance with the Ontario Building Code, Ontario Fire
Code, the Accessibility for Ontarians with Disability Act, applicable Municipal By-laws and
current Provincial and Region of Durham Health & Safety criteria must be maintained at all
times, all of which are subject to inspection without notice.
Staff therefore recommends the City enter into a Licence Agreement (see Draft Licence
Agreement, Appendix I) with OSAC for the temporary use of the City owned boulevard, as
indicated in the site drawing (see Location Map, Appendix I – Schedule “A”).
PLN 15-23 May 23, 2023
Subject: Licence Agreement – Open Studio Art Café Page 3
Any future requests for use of the City’s boulevard for a Seasonal Patio use will be reviewed
on an annual basis, and brought to Council for their consideration.
Appendix:
Appendix I Draft Licence Agreement
Prepared By:
Original Signed By
Catherine Hodge
Senior Coordinator, Development Liaison
Approved/Endorsed By:
Original Signed By
Kyle Bentley, P. Eng.
Director, City Development & CBO
CH:ld
Recommended for the consideration
of Pickering City Council
Original Signed By
Marisa Carpino, M.A.
Chief Administrative Officer
Appendix I to
Report PLN 15-23
Draft Licence Agreement
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This Licence Agreement is made this ____ day of May, 2023.
Between:
Open Studio Art Café 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 Seasonal
Patio for the serving of food and beverages; and
Whereas the City has agreed to grant to the Restaurant a non-exclusive licence permitting the
Seasonal 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 Seasonal 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.
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.
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Term
5. Unless earlier terminated as provided herein, the term of this Licence shall commence on a
date to be inserted here _________, once identified, to be the date when City Council approval
has been obtained and final City inspections are approved, and will expire on November 30,
2023 at 9:00 pm (the “Term”), subject to the terms of Section 10 of this Lease Agreement.
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
Seasonal Patio, at its own expense, and restore the Lands to its original condition.
Fee
8. The Restaurant shall pay a one-time fee of Five Hundred dollars +HST, payable to the City
upon execution of this Licence Agreement, and 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 law, by-laws, rules and regulations
governing its use of the Lands for the Seasonal Patio, including, but not limited to, the City’s
Noise By-law, Traffic and Parking By-laws, the Ontario Building Code (OBC), the Ontario Fire
Code (OFC), the Accessibility for Disabled Ontarians Act, 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 Seasonal Patio, including,
but not limited to:
a) Final inspection on all construction work necessary to comply with the Ontario Building
Code relating to a change in occupancy;
b) Tents, should they be constructed, must comply with applicable building permit
requirements under the Building Code Act, OBC and the City’s Temporary Tent Standard
Operating Procedure (City Development Department);
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 all applicable
Fire Code requirements; and
d) No smoking signs to be placed, in accordance with the Durham Region smoking ban
by-law.
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Fire Safety & Ontario Building Code
11. The Restaurant acknowledges that the Seasonal Patio is subject without notice, to:
a) inspections to be carried out by City of Pickering Fire Services to determine compliance
with the OFC; and
b) inspections to be carried out by City of Pickering Building Services Section to determine
compliance with the OBC.
12. The location of the Seasonal 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. The outdoor preparation or cooking of food is not permitted.
Utilities
14. The Restaurant shall assume all costs and expenses in connection with the Seasonal Patio,
including, but not limited to, all utility costs.
15. 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.
16. The Restaurant shall ensure all power cords have been covered to avoid tripping hazards.
17. 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
18. Subject to any other regulatory approval (e.g. liquor licence), the Seasonal Patio shall operate
between the hours of 7 am to 9 pm only.
Conditions of Use
19. The maximum, combined occupancy for both interior and exterior seating shall comply with the
requirements of the OBC.
20. The Restaurant will ensure that patrons using the Seasonal Patio remain within the defined
area of the Seasonal licence as detailed in Schedule A included herein at all times during open
hours of operation of the Seasonal Patio.
21. The Restaurant will at all times comply with and ensure compliance with the terms of City of
Pickering By-Law 6834/08, and specifically Schedule 2, Section 1 thereof, whereby no
amplified noise or music is permitted between the hours of 9:00 pm and 7:00 am.
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Maintenance
22. The Restaurant shall ensure that the Lands and the Seasonal 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.
23. In the event that the Restaurant wishes, during the Term, to replace or materially alter the
Seasonal 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 Seasonal
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.
24. The Restaurant shall ensure that any personnel installing, maintaining, replacing, altering or
repairing the Seasonal 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
25. The Restaurant shall remove any and all refuse generated by the use of the Seasonal Patio,
as it occurs and at the expense of the Restaurant.
Insurance
26. 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 Seasonal 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, given by the insurer(s) to the City
of Pickering if this Policy is cancelled or if any material 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:
The Corporation of the City of Pickering, Attention: City Development Department, One
The Esplanade, Pickering, ON, L1V 6K7.
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27. 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
28. The City shall not be liable to the Restaurant for any loss, damage or personal injury (including
death) relating to the Seasonal 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.
29. 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.
30. Save and except for the gross negligence as it relates any of its to obligations under this
Agreement, 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 Seasonal Patio on the Lands. This provision shall survive the
expiration or earlier termination of this Licence.
31. 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 Seasonal Patio on
the Lands.
Force Majeure
32. 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
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.
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Relationship of Parties
33. 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
34. The parties agree that the provisions of the Commercial Tenancies Act DO NOT apply to this
Licence between the parties
Notice
35. 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, City Development & CBO
Email: citydev@pickering.ca
Phone Number: 905.420.4617
and in the case of the Restaurant to:
617 Liverpool Road
Pickering, ON L1W 1R1
Attention: Michele Bolton
Email: draw@openstudioartcafe.com
Phone Number: 905.420.2233 or cell: 905.626.7300
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
36. 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
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.
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Time
37. In all respects, time shall be of the essence of this Licence.
Counterparts
38. 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
39. The City shall have the right to enter the Lands at any time for any reason.
40. 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.
41. The Restaurant shall not alter, add to or vary in any way any part of the Lands without the prior
approval of the City.
42. This Licence shall not be assignable by the Restaurant without the consent of the City, which
consent may be arbitrarily refused.
43. This Licence shall enure to the benefit of and be binding upon the parties and their respective
successors and permitted assigns.
44. Schedule “A” 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.
45. No amendment to this Licence shall be effective unless it is in writing and signed by both
parties.
46. 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.
47. 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.
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48. 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.
Open Studio Art Café Inc.
_________________________________
Name:
Title:
_____________________________________
Name:
Title:
I/We have authority to bind the Corporation.
The Corporation of the City of Pickering
Kevin Ashe, Mayor
Susan Cassel, City Clerk
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Schedule “A”
Location Map of the Lands
Location of Seasonal 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
Seasonal Patio Location – Open Studio Art Café
Municipal boulevard in front of 617 Liverpool Road, Pickering