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HomeMy WebLinkAboutECD 02-26 Report to Council Report Number: ECD 02-26 Date: April 27, 2026 From: Fiaz Jadoon Director, Economic Development & Strategic Projects Subject: Licence Agreement with Open Studio Art Cafe Seasonal Patio on City Owned Lands File: A-1440-001 Recommendation: 1. That Report ECD 02-26 regarding the Licence Agreement with Open Studio Art Cafe be received; 2. That the Mayor and City Clerk be authorized to execute the Licence Agreement between the City of Pickering and Open Studio Art Café 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 May 1, 2026 until November 30, 2026 in the form as attached 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 actions necessary to implement the recommendations in this report. 1.0 Executive Summary: The purpose of this report is to seek approval from Council to execute a Draft Licence Agreement with Open Studio Art Café (OSAC), located at 617 Liverpool Road, to operate a seasonal patio on the City owned boulevard in front of the establishment. A seasonal patio has been approved annually at this location from 2020 through to 2022, under the City’s Temporary Patio Program during the pandemic when restrictions for restaurants were implemented. The Temporary Patio Program has since ended; however, OSAC has continued to operate a seasonal patio on the City’s boulevard through annual Licence Agreements approved by Council. ECD 02-26 April 27, 2026 Page 2 The request for the seasonal patio in 2026 is in the same location as previous years and 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. The seasonal patio has previously operated without enforcement concerns, safety incidents, or accessibility complaints. 2.0 Relationship to the Pickering Strategic Plan: The recommendations in this report respond to the Pickering Strategic Plan Priority of Champion Economic Leadership and Innovation; and Strengthen Existing & Build New Partnerships. 3.0 Financial Implications: A one-time fee of $500.00 plus HST will be payable to the City by OSAC, as a term of the Licence Agreement. No additional financial implications will be associated with this Licence Agreement. 4.0 Discussion: The purpose of this report is to seek approval from Council to execute a Draft Licence Agreement with Open Studio Art Café (OSAC), located at 617 Liverpool Road, to operate a seasonal patio on the City owned boulevard in front of the establishment. Seasonal patios are recognized as a contributing element for community vibrancy and enhanced visitor experience in tourism related areas of the City. For the seventh consecutive year, OSAC is requesting permission to operate a temporary seasonal patio on the City owned boulevard in front of the establishment. Consistent with City practice, this seasonal patio permit continues to be reviewed annually to ensure alignment with operational, accessibility, and maintenance requirements. The OSAC seasonal patio is subject to terms which restrict patio patrons movements to within the identified boundary of the seasonal patio and restricts amplified music after 9:00 pm and does not permit any form of outdoor cooking. City staff in Fire Services, Municipal Law Enforcement, and Building Services have considered this request, and have no objection to the identified location as there have been no enforcement concerns, safety incidents, or accessibility complaints at this location. The term of the Licence Agreement is from May 1, 2026 to November 30, 2026. The seasonal patio must be removed at the end of the term to accommodate City winter maintenance. Compliance with the Ontario Building Code, Ontario Fire Code, the Accessibility for Ontarians ECD 02-26 April 27, 2026 Page 3 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 recommends the City enter into a Licence Agreement (see attached Draft Licence Agreement) with OSAC for the temporary use of the City owned boulevard, as indicated in the site drawing (see Location Map, Attachment 1 – 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 Prepared By: Azeem Shah, Senior Advisor, Creative Industries & Tourism Approved/Endorsed By: Fiaz Jadoon, Director, Economic Development & Strategic Projects FJ:as Recommended for the consideration of Pickering City Council By: Marisa Carpino, M.A. Chief Administrative Officer 1 Attachment 1 - Report ECD 02-26 Draft Licence Agreement 2 This Licence Agreement is made this 30th day of April, 2026. 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. 3 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. Term 5. Unless earlier terminated as provided herein, the term of this Licence shall commence on May 1, 2026, and will expire on November 30, 2026 at 9:00 pm (the “Term”), subject to the terms and conditions of this Licence 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 thirty (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 4 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. 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. 5 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 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. 6 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 $5,000,000.00, 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 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. 7 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, 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, incl uding, 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 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 8 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, Economic Development & Strategic Projects Email: fjadoon@pickering.ca Phone Number: 905.420.4660 ext. 2292 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 Title 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. 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. 9 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 forms 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 covenant s 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. 10 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. 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 Agreement on the dates evidenced below. 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 Date: Susan Cassel, Clerk 11 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