HomeMy WebLinkAboutECD 01 -24Report to Council
Report Number: ECD 01-24
Date: April 22, 2024
From: Fiaz Jadoon
Director, Economic Development & Strategic Projects
Subject: Licence Agreement – Open Studio Art Café
- Seasonal Patio Program Use of City Owned Lands
- File: D-1600-002
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 (OSAC), from May 1, 2024 until November 30, 2024;
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 Director, Corporate
Services & City Solicitor and the Director, Economic Development & Strategic Projects; 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: The purpose of this report is to seek authorization from Council to
execute a Draft Licence Agreement with Open Studio Art Café (OSAC), located at 617 Liverpool
Road in the Nautical Village, 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 submitted in 2023.
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 had 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
ECD 01-24 April 22, 2024
Subject: Licence Agreement – Open Studio Art Café Page 2
take-out coffee service, to a ‘Restaurant’ use. This work has increased the seating capacity of the
facility, so as to legally comply with occupancy load maximums.
Staff therefore recommends that the City enter into a Licence Agreement with OSAC for
temporary use of the City’s boulevard, from May 1, 2024 until November 30, 2023.
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.
Relationship to the Pickering Strategic Plan: The recommendations in this report are
aligned with the Pickering Strategic Plan Priorities of Champion Economic Leadership and
Innovation; Advocate for an Inclusive, Welcoming, Safe & Healthy Community and Strengthen
Existing and Build New Partnerships. .
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: The purpose of this report is to seek authorization from Council to execute a
Draft Licence Agreement with Open Studio Art Café (OSAC), located at 617 Liverpool Road in the
Nautical Village, to operate a Seasonal Patio on the City owned boulevard in front of their
establishment.
Open Studio Art Café (OSAC) is located at 617 Liverpool Road in the Nautical Village. For the fifth
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 already been
addressed in 2023 through the City’s issuance of a Building Alteration Permit that approved a new
interior design at this location. This work included the construction of additional washroom
capacity and supported a change of use from “Art gallery” to a “Restaurant” permitting take-out
and eat-in food service. Since completed, the renovated facility has achieved a higher maximum
occupancy load, that is shared across the interior space, the porch and a Seasonal Patio.
The proposed term of the Licence Agreement is from May 1, 2024 until November 30, 2024. 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
ECD 01-24 April 22, 2024
Subject: Licence Agreement – Open Studio Art Café Page 3
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”).
Any future requests for use of the City’s boulevard for Seasonal Patio use will be reviewed on an
annual basis, and brought to Council for their consideration.
Attachment:
1.Draft Licence Agreement
ECD 01-24 April 22, 2024
Subject: Licence Agreement – Open Studio Art Café Page 4
Prepared By:
Azeem Shah
Senior Advisor, Creative Industries & Tourism
Economic Development & Strategic Projects
FJ:as
Approved/Endorsed By:
Fiaz Jadoon, Ec.D., CEcD, MPM, B.COMM
Director, Economic Development &
Strategic Projects
Recommended for the consideration
of Pickering City Council
Marisa Carpino, M.A.
Chief Administrative Officer
Original Signed By: Original Signed By:
Original Signed By:
1
Attachment 1 to Report ECD 01-24
Draft Licence Agreement
2
This Licence Agreement is made this 15th day of April, 2024.
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 licences and other interests to other third
parties.
3
Term
5.Unless earlier terminated as provided herein, the term of this Licence shall commence
on May 1st, 2024, and will expire on November 30, 2024 at 9:00 pm (the “Term”), subject
to the terms of Section 10 of this Lease Agreement. This agreement shall be effective on
the day it is last signed by either party.
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 (30) 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 its 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, licences and
approvals that may be required in connection with its use of the Lands for the Seasonal
Patio, including, but not limited to:
a.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);
b.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
c.No smoking signs to be placed, in accordance with the Durham Region smoking
ban by-law.
4
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.
Maintenance
5
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.
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
6
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 or inaction
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.
Relationship of Parties
7
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 licencee 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.
Time
8
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.
9
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.
Date: __________________ __________________________________________________
Name:
Title:
Date: __________________ __________________________________________________
Name:
Title:
I/We have authority to bind the Corporation.
The Corporation of the City of Pickering
Date: __________________ __________________________________________________
Kevin Ashe, Mayor
10
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