Loading...
HomeMy WebLinkAboutBy-law 1472/82THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 1472/82 Being a By-Law to authorize the execution of an Agreement between the Corporation of the Town of Pickering and Coca-Cola Ltd. respecting the Don Beer Sports Arena sport timer WHEREAS pursuant to the provisions of section 2(1) of the Community Recreation Centres Act, R.S.O. 1980, chapter 80, the council of a municipality may acquire by purchase, lease or otherwise real and personal property for the purpose of operating one or more community recreation centres; and WHEREAS Coca-Cola Ltd. has offered to provide to the Corporation of the Town of Pickering a sports timer for the Don Beer Sports Arena upon certain terms and conditions to be included in an Agreement between the parties; NOW THEREFORE, the Council of the Corporation of the Town of Picketing HEREBY ENACTS AS FOLLOWS: The Mayor and Clerk are hereby authorized to execute an Agreement in the form attached hereto as Schedule "~' between the Corporation of the Town of Pickering and Coca-Cola Ltd. respecting the acquisi- tion of a sports timing device for the Don Beer Sports Arena. BY-LAW read a first, second and third time and finally passed this 19th day of April , 1982. Schedule 'A' to By-law 1472/82 THIS AGREEMENT MADE this 1st day of October, 1981. BETWEEN: THE __CORPORATION OF THE TOWN OF PICKERING, a municipal corporation incorporated under the laws of Ontario, (hereinafter called "Pickering") ~F THE FIRST PART -and- COCA-COLA LTD.~ a corporation incorporate~-under the laws of Canada, (hereinafter called "CCL") , OF THE SECOND PART. WHEREAS Pickering is the registered owner of the lands and premises located in the Town of Pickering, in the Regional Municipality of Durham and knownllocally~as the Don Beer Sports Arena; AND WHEREAS CCL has agreed upon the following terms and conditions to loan to Pickering a sports timing device to be installed in the Arena; AND WHEREAS Pickering is desirous of entering into an agreement with CCL for the provision and maintena~ce of such a sports timing device and also of certain advertising materials in the Arena and for the supply of certain products of CCL in the Arena and CCL is desirous of adver~:ising and supplying the products of CCL in the Arena; NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. For the purposes of this agreement: (a) "Arena" shall mean the Don Beer Sports Arena, exclusive of the Don Beer Community Centre; (b~ "Event"shall mean all scheduled and rescbeduled sporting events, sporting competitions or sporting contests conducted in the Arean; (c) "Soft Drink Beverages" shall mean and include: (i) all carbonated and non-carbonated beverages for coBsumption and for bar use as mixers or otherwise; -2- (±±) all syrups from which Soft Drink Beverages may be prepared for immediate consumption by the addition of carbonated or non-carbonated water; and (d) (e) (iii) all carbonated and non-carbonated fruit drinks, carbonated and non-carbonated fruit juices, potable waters, flavoured milks and any other non-alcoholic beverages for immediate consumption, including all syrups and preparations from which the same may be prepared; "Soft Drink Beverages of CCL" shall mean and include those Soft Drink Beverages which from time to time are manufactured and sold by CCL or those which are distributed and sold by CCL; "Sports Timer" shall mean a RotomatJc ~p<)rts timer, model no. MPH 2000-1A; (f) (a) "Term" shall mean the term of this agroement which shall commence on the 1st day of October, 1981 and shall be fully completed and ended on the 30th day of September, 1991. CCL hereby agrees, upon the terms and conditions set out herein, to loan to Pickering, for )Jo fee, a sports timer for use in the Arena. (b) Pickering and CCL hereby acknowledge that the Sports Timer has been installed in the Arena to the satisfaction of both parties. (c) CCL hereby agrees that it shall pay for and reimburse Pickering for all reasonable charges, costs and expenses which have been incurred in the delivery to and installation in the Arena of the Sports Timer. 3. The Sports Timer is, and shall at all times be and remain, the sole and exclusive property of CCL and Picketing shall have no right, title or interest therein or thereto except as expressly set forth in this agreement. 4. The Sports Timer is, and shall at all times be and remain, personal property notwithstanding that the Sports Timer or any part thereof may be, or hereafter become, in any manner affixed or attached to, or embedded in, or permanently resting upon, real property or any building thereon. 5. Picketing at its own cost and expense, shall keep the Sports Timer in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required to keep the said Sports Timer in good mechanical and working order. 6. Picketing agrees to assume and bear the entire risk of loss and damage to the Sports Timer from any and every cause whatsoever. No loss or damage to the said Sports Timer or any part thereof shall impair any obligation of Picketing under this agreement which shall continue in full force and effect. In the event of loss or damage of any kind whatsoever to the Sports Timer or any part thereof, Pickering at the option of CCL shall (a) place the same in good repair~ condition and working order, or (b) replace the same with like equipment in good repair, condition and working order. 7. Without the prior written consent of CCL, Pickering shall not make any alterations, additions or improvements to the Sports Timer. All additions and improvements o£ whatsoaver kind or nature made to the said Sports Timer shall belong to and become the property of CCL upon the expiration or termination of this agreement. 8. The Sports Timer shall be used by Picketing only in the Arena and shall not be removed therefrom or otherwise disposed of without the prior written consent of CCLo 9. In the event that the Sports Timer shall be damaged, sold, mortgaged or leased or otherwise disposed of or removed, or if the Arena in which the said Sports Timer ~s installed is mortgaged, sold or otherwise disposed of, or if title to the Arena passes by operation of law to any other person, or if any judgment or mechanics' lien is filed against the title to the said Arena, CCL shall at its option have the right to enter into the Arena or into any other place where the said Sports Timer may be located and remove the sa~d Sports Timer or any part thereof. 10. In the event of any damage or destruction to the Arena from any cause whatsoever, the extent of which is such that it is unsafe or impossible to use the Arena in whole or in part for the staging of Events and which in the opinion of CCL cannot be repaired within thirty (30) days from the date of such damage or destruction, then CCL may terminate this agreement by notice of termination delivered in writing to -4- Pickering within ten (10) days following the occurrence of such damage or destruction, in which event this agreement shall cease and be terminated as of the date of the delivery of such notice of termination and CCL shall be entitled to enter into the Arena or into any other place where the said Sports Timer may be located and remove the said Sports Timer or any part thereof. 11. It is acknowledged and agreed by the parties hereto that CCL makes no warranties, either express or implied, as to any matter whatsoever, including, without limitation, the condition of the said Sports Timer, its merchantability or fitness for any particular purpose. 12. Pickering agrees with CCL as follows: (a) to operate the Arena on a seasonal basis throughout the Term of this agreement; and (b) to operate and illuminate the Sports Timer at all times during all Events held at the Arena during the Term. 13. Upon the expiration or termination of this agreement, CCL shall at its own expense remove the Sports Timer from the Arena, and Pickering shall grant to CCL access to the Sports Timer during normal business hours for 'the purpose. 14. Pickering hereby grants to CCL the right to install and maintain on the Sports Timer throughout the Term one high output, illuminated advertising sign, (hereinafter called the "Sign"), which shall be affixed to the Sports Timer. CCL may, at its discretion, decorate the S~gn in full colour with advertising material for one or more of the Soft Drink Beverages of CCL and may change the advertising material from time to time during the Term. 15. CCL shall, at its own expense, maintain and repair the Sign in good and attractive order, normal wear and tear only excluded. 16. Pickering agrees that no commercial signage or messages other than the advertising material of CCL shall be placed on the Sports Timer. -5- 17. Pickering warrants, represents and covenants to and with CCL that there shall not at any time or times during the Term be any advertising, promotion or mentio~ of any nature or description, whether visual or oral (including the public address system in the Arena) of any Soft Drink Beverage which is not a Soft Drink Beverage of CCL in or about the Arena including its structures, hallways, concourses or at any outside entrances to the Arena and regardless of whether or not it is within the view or hearing of any exisCing or future spectator seat in the Arena, save and except where necessary to describe a member of a team or a team that is sponsored by a soft drink beverage company other than CCL. 18. In the event that the entire Sign is not displayed, illuminated or fully visible throughout any Event during the Term of this agreement, CCL at its option shall be entitled to terminate this agreement by notice of 'termination delivered in writing to Pickering whereupon CCL shall be entitled to enter into the Arena or into any other place where Che Sports Timer may be located and remove the said Sports Timer or any part thereof. 19. Picketing covenants to and with CCL that throughout the Term of this agreement CCL shall be the sole and exclusive supplier of Soft Drink Beverages for sale or complimentary distribution in the Arena durin§ ~vents and that all parties from time to time selling or distributing Soft Drink Beverages in the Arena during Events shall purchase for resale for distribution at the Arena only the Soft Drink Beverages of CCL at CCL's then prevailing wholesale prices and trade terms which from time to time may exist, provided always that the said wholesale prices of CCL shall remain competitive with the wholesale prices which are from time to time offered by ocher manufacturers or distributors of nationally known Soft Drink Beverages. 20. Notwithstanding any other provision contained herein, CCL shall not be liable hereunder for failure to supply Soft Drink Beverages due to government action, statute, ordinance or regulation; strike or other labour disturbance or disruption; fire damage; lack of or inability to obtain materials, labour, fuel or supplies; acts of God; or any other cause, contingency or circumstance which is beyond the control of CCL. 21. The parties hereto agree that the employees, representatives and agents of CCL shall be permitted access to the Arena during normal business hours in order to inspect the Sports Timer and to make alterations to the Sign. -6- 22. Pickering shall obtain and pay the cost of tile electric current required to operate the Sports Timer, including the Sign, and shall also make available and supply ~t no cost to CCL proper and readily accessible feed wires, connectors and cables of sufficient capacity for the operation of the Sports Timer and the Sign. 23. CCL shall hold harmless, defend and indemnify Pickering against all actions, claims, demands, liabilities, damages and costs, including legal fees and court costs, fox libel, slander, infringement of trade mark or trade name, violation of rights of privacy and infringement of copyrights and proprietary rights resulting from any advertising material used on the Sign by CCL. 24. Pickering shall hold harmless, defend and indemnify CCL from and against all actions, claims, demands, liabilities, damages and costs including legal fees and court costs, resulting from any damage or injury to any person or property arising directly or indirectly from the ~nstallatJon, maintenance, operation or care of the Sports Timer unless such damage or injury is caused by the negligent or wilful act or omission of CCL or any of its authorized representatives or agents. 25. Where any notice, request or other communication (hereinafter called a "Notice") is permitted or required to be delivered pursuant to this agreement or otherwise, such Notice shall be in writing and shall be deemed to have been sufficiently and effectually given if signed by or on behalf of the party giving the Notice and mailed by prepaid registered mail addressed as follows: (a) to Pickering: Director of Parks and Recreation Town of Pickering 1710 Kingston Road Pickering, Ontario L1V lC7 (b) to CCL: Secretary Coca-Cola Ltd~ 42 Overlea Boulevard Toronto, Ontario M4H lB8 or if served personally upon an officer or official of the party for whom it is intended. Any such Notice given as aforesaid shall be conclusively deemed to have been delivered and received if served on the date of such service or if mailed on the third (3rd) day after such mailing, provided such Notices shall be mailed in Canada. Either party may from time to time by Notice to the other change the address to which Notices are to be given. Each party agrees to acknowledge in writing receipt of any Notice served personally hereunder. 26. Failure by either party to insist in any one or more instances upon the strict performance of any of the covenants, agreement, terms provisions or conditions of this agreement shall not be construed as a waiver or relinguishment for the future of such covenants, agreements, terms, provisions or conditions. 27. The covenants, agreements, terms provisions and conditions of this agreement shall be binding upon and enure to the benefit of both Picketing and CCL and their respective successors and assigns. 28. This agreement shall not be amended or deemed to be amended save only by further agreement in writing to which shall be affixed the seals of both parties and which shall be signed by the authorized representatives of both parties. 29. This agreement shall be read with all changes of number and gender required by context and shall be governed in accordance with the laws of the Province of Ontario. 30. Time shall be of the essence of this agreement and every part thereof. 31. The parties hereto covenant and agree that they, their successors and assigns will sign such further agreements, assurances, waivers and documents, do and perform or cause to be done and performed such further and other acts and things that may be necessary or desirable from time to time in order to give full effect to this agreement and every part thereof. 32. This agreement expresses the final agreement between the parties hereto with respect to all matters herein and no representations, inducements, promises or agreements or otherwise between the parties not set out here~n shall be of any force and effect. -8- IN WITNESS WHEREOF the parties hereto have hereunto affixed their respective corporate seals attested by the hands of their respective officers duly authorized in that behalf as of the day and year first above written. THE CORPORATION OF THE TOWN OF PICKERING Mayor ~-l~rk COCA-COLA LTD. per: