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HomeMy WebLinkAbout93-71 THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW 93- 71 being a by-law to authorize the execution of a lease agreement between The Corporation of the Town of Newcastle and The Central Lake Ontario Conservation Authority THE COUNCIL OF THE CORPORATION OF THE TOWN OF NEWCASTLE HEREBY , ,ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Town of Newcastle, and seal with the Corporation Seal, a Lease Agreement dated the day of 1983, between the Town of Newcastle and the Central Lake Ontario Conservation Authority for the purpose of the Town utilizing Elliot Park as a Neighbourhood Park. This agreement is in the form attached hereto as Schedule "A". 2. THAT Schedule "A" attached hereto forms part of this by-law. By-law read a first and second time this 31st day of May 1993. By-law read a third time and finally passed this 31st day of May 1993. ttUJ(f~{t?ffl F YOR , SCHEDULE It A" ro A LEASE AGREEMENT BE'IWEEN CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY AND THE CORPORATION OF TIlE TOWN OF NEWCASTLE DATED FOR REFERENCE TIlE 1st DAY OF MAY, 1993 Property Maintenance Standards These detailed inspections are performed once a month from April to November and once every two months from December to March. Turf Care Grassed areas are mowed and trimmed once every 8 to 10 days on average and will be maintained between 1-1/2 and 3-1/2 inches during the season. Grass areas are fertilized and sprayed as necessary in order to keep it green or to obtain good wearabi1ity on sport fields. Trash Receptacles All areas are litter picked and trash receptacles emptied at time of grass cutting or more frequently as required. Soccer Field Lines are burnt in twice per season and turf top dressed and over seeded if worn. Trees and Shrubs Trees and shrubs are pruned or removed as needed. Playgrounds All playground equipment is checked each time staff are in th~'park and in great detail in accordance with Risk Management. Par.k Furniture All furniture including goal posts, picnic tables, benches, trash receptacles, fences, etc. are inspected each time staff attend the park. CLOCA.EPjSSAGREEl . . SCHEDULE "A" THIS AGREEMENT dated for reference the 1st day of May, 1993. BETWEEN: C~ LAKE ONTARIO CONSERVATION AUl1IORITY , (hereinafter called the "Authority") OF THE FIRST PART - and - THE CORPORATION OF THE TOWN OF NEWCASTL"E , (hereinafter called the "Town") OF THE SECOND PART WHEREAS the Authority ,has acquired certain lands in the Town of Newcastle; AND WHEREAS the Town wishes to lease certain of the lands acquired by the Authority for the purposes of a neighbourhood park; AND ~AS the lands to be leased may be described as being all of Lot 92 and part of Lot 93 according to B.F. Perry's Plan of the former Village of Hampton and part of Lot 18, Concession 5, Geographic Township of Darlington, in the Town of Newcastle, Regional Municipal~~y of Durham, designated as Part 1 on Plan lOR-696 and Part 2 on Plan lOR-774 (hereinafter the "Premises"); AND WHEREAS, subject to the approvals required by the Authority, the Authority is desirous of leasing to the Town the Premises for the purposes of a neighbourhood park; AND WHEREAS the Town is desirous of leasing from the Authority the Premises for the purposes of the neighbourhood park; CLOCA.EP/SSAGREEl - 2 - NOW TIlEREFORE TIllS AGREEMENT WITNESSETH that in consideration of the recitals herein and the carrying out of their respective obligations contained in this Agreement, the parties hereto agree with each other as follows: 1. The Authority doth hereby lease unto the Town the Premises for a term of one (1) year commencing on the 1st day of May, 1993 and ending on the 30th day of April, 1994 provided, however., that should, prior to the end of the term of the one. (1) year lease, the Authority receive approval by way of an Order in Council from the Lieutenant Governor granting the Authority the right to lease the Premises to the Town for a period of twenty (20) years, the term of the lease shall be for a period of twenty (20) years commencing on the date of the Order in Council aforesaid and terminating twenty (20) years from .that date. Provided, however, that if such Order in Council is not received by the Authority by April 30, 1994, this Agreement shall be at an end. The Authority hereby agrees to apply forthwith for the said Order in Council from the Lieutenant Governor. 2. The Town will develop and maintain the Premises for park and recreational purposes with necessary administration and supervision in connection therewith and for no other purpose ,except with the approval in ~"riting of the Authority, which '-. approval shall not be unreasonably ~vithheld and--. shall be given or refused in accordance with the policies of th" Authority at the time such request for approval is received by the Authority from the Town. 3. The cost of development and maintenance of the Premises shall be borne by the Town and all plans for such development shall be submitted to the Authority for its approval in writing. The Authority shall act promptly and reasonably on receiving such request for approval. The decision of the Authority as to whether or not approval shall be given shall be in CLOCA.EPjSSAGREEl - 3 - accordance with the policies of the Authority in effect at the time the request is made. The Town shall assume the full cost and responsibility for the mRintenance of the Preridses to a standard comparable with other parklands maintained by the Town and in accordance with Schedule "A" attached. In the event that the Town fails to maintain the Premises in accordance with the prescribed standard, the Authority may, on not less than five (5) days' written notice to the Town, enter upon the Premises for the purpose of maintaining it and any costs incurred by the Authority by reason of so doing shall be. paid to the Authority by the Town forthwith upon proof of all costs, but such entry by the Authority shall not be deemed to constitute a rescission of this Agreement. 4. The Town shall, at the Town's own cost and expense, at all times during the currency of this Agreement, keep the Premises in a neat and tidy condition, removing or causing to be removed therefrom all papers, refuse, litter, waste or rubbish arising out of the operation of,. the Premises by the Town under this Agreement, all to the satisfaction of the Authority, acting reasonably. :- 5. The Town shall not place or deposit, or cause or permit to be placed or deposited, any fill, sand, gravel, detritus, waste, ~ebris or other materials, articles or things on the Premises which may form a deposit thereon or therein without first making application to the Authority under its Fill, Construction and Alteration to W8terway~ Regulations in effect at the time the applicntion is made. It being understood that the application shall he governed by- the policies of the Authority in effect at the time such application is made by the Town, {<lhich mayor may not be the same policies in effect at the date of this Agreement. 6. No permanent buildings without first obtaining sha 11 the be erected on the Premises consent in writing of the CLOCA,EP/SSAGREEl - 4 - Authority, both as to location and type of building. In order to obtain consent, the Town shall apply to the Authority for consent, and the Authority shall act promptly and reasonably in dealing with the appiication. However, if the Premises are subject to the Fill, Construction and Alteration to Waterways Regulations of the Authority, the Town must apply under those Regulations and be governed by the policies of the Authority in effect at the time such application for consent is made. 7. The Authority shall retain control of all aspects of the watercourse channels, flood control, erosion control and the Town shall not interfere with the carrying out of such works as are necessary for these projects. The cost of above-noted development and maintenance of same shall be borne by the Authority. The Authority shall notify the Town in writing prior to undertaking such works. It being agreed by the parties hereto that the Authority does by these presents reserve unto itself the right of access over the Premises for itself, its servants and agents and all necessary equipment to carry out such works a;3 are necessary for the aforesaid development and maintenance. Any damage caused by the Authority to Premises in exercising its right of access as set forth in this paragraph shall be repaired, replaced or ,restored by the Authority forthwith at its own expense. 8. The Town shall not alter the cour~e of any stream, watercourse or the natural topogrRphy of th~ land within the Premises without first Rpplying to thp Authority under its Fill, Constrnction and Alteration to Wat~rways Regu1a-i;-ions. The application shall be governed in accordance with th~ policies of the Authority in effect at the time such application is made, 9, The Town shall not have the right to lease or otherwise dispose of the Premises herein, or permit concessionaires CLOCA,EP/SSAGREEl - 5 - thereon without prior written approval of the Authority. However, with the exception of concessionaires, the Town shall be entitled to issue permits or licences for the use of all or part of the Premises on a daily, weekly or seasonal bas is . 10. Subject to paragraph 11, the Town shall pay all realty taxes or other charges levied against the Premises, including lands under water and shall assume the said realty tax liability on the Premises. 11. Both parties covenant and agree to indemnify and save harmless the other of and from any and all manner of claims, damages, loss, costs or charges whatsoever occas ioned to or suffered by or imposed upon the parties, either directly or indirectly, in respect of any matter or thing in consequence of or in connection with or arising out of the use, occupancy or development of the Premises or out of any operation connected herewith or in respect of any accident, damage or injury to any person, animal or thing by, from or on account of 'the same. Without limiting the generality of the foregoing, in consideration of the Authority entering into this Agreement, the Town agrees to indemnify and hold harmless the Authority from and against all claims, damages ,~r costs howsoever arising, out of the use by the Town or its invitees, guests or licensees of the Premise~' and any buildings or appurtenances thereon inclnding any claim for personal injury (including death) or property damage howsoever caused. Both parties covenant that the indemnity herein contained shall extend to all damages and c1aim'S" for damages by reason of improper or faulty erection or construction of structures hereinafter erected or instR lIed on the Premises or in connection therewith by each party, its servants or agents and by reason of any ins11fficiency in such structures and whether or not same have been approved by the other party, its servants or agents, rrnrh ~P/~~A~R~~l .' - 6 - 12. The Authority shall be solely responsible for any claims arising from any materials deposited on the Premises prior to the Town's use of the Premises hereunder. 13. The Town shall be solely responsible for any claims arising from any materials deposited on the Premises during the term of this Agreement, which responsibility shall extend beyond the term of the lease whether it be the one (1) year lease; or, the twenty (20) year lease based upon the receipt of the approval ~f of the Lieutenant Governor in Council to the terms of this Agreement. 14. It is understood and agreed that this Agreement shall not be revoked except by the mutual written agreement .of both parties hereto. Provided, however, that should a project be approved by the Ministry of Natural Resources of Ontario pursuant to the provisions of the Conservation Authorities Act, R.S.O. 1990 c.C.27, as amended, from time to time, as a result of which the Authority shall require possession of all or part of the Premises, then it is understood and agreed that possession of all or part of th~ Premises as required by the Authority for the project shall h~ returned to the Authority twelve (12) months following the date written notice of the necessity for the possession of all or part of ,~he Premises has been given by the Authority to the Town. In the event of such repossession by the Autho~ity, the Authority agrees to reimburse the Town for th~ capital cost of all buildings and appurtenanc~s constructed on the Premises repossessed on the following basis: 100% of all capital costs less 5% depreciation for each full year o~use by the Town from the date of completion of any building or appurtenance to the date that the Town must give up possession to the Authority. 15. The Authority is allowed to undertake projects at its for recreational or outdoor ~ducational purposes, own CLOCA,EP/SSAGREFl - 7 - expense, on the Premises, and upon reasonable written notice to the Town, provided that such projects do not interfere with the Town' s use of thE' Premises or any approved works effected or proposed by the Town. 16. The Authority, its servants or agents shall, at all times and for all purposes, have full and free access to any and every part of the Premises. 17. The Town shall not interfere with the public use of the Premises during the currency of this Agreement. 18. This Agreement shall remain in full force and effect and may only be amended in writing by the parties hereto. Any dispute by the parties shall be referred to arbitration. 19. If at any time during the continuance of this Agreement or after the termination the~eof, any dispute, difference or question shall arise between;the parties or any of their legal representatives concerning the interpretation or construction of this A~reement or anything herein contained, then every such dispute, difference or disagreement shall be referred to a single arbitrator, if ,the parties or their legal representatives agree upon one, but should the parties ~r their legal representatives be unable to agree upon the identity of such single arbitrator, then suc~ dispute, difference or disagreement shall be referred to a single arbitrator, to be appointed by a Justice of the Ontario Court of Justice (General Division), which arbitrator shall conduct the arbitration pursuant to The Arbitration -Act, 1991, and amendments' thereto, and every award or determination shall be fina 1 and binding on all the parties hereto, their successors and ass igns and there shall be no appeal therefrom. r.rnr.A F.PISSAGRF.F.1 , . - 8 - In any such dispute, difference or question, the arbitrator appointed hereunder shall be allowed unfettered and unlimited discl':'etion to determine in each and every case the solution which best balances the competing interests of the parties to the arbitration and shall not be bound by any legal precedent in such determination. The arbitrator shall not be bound by the provisions of The Arbitration Act. 1991 in respect of his fees. .The arbitrator shall be entitled to award all or part of his fees against any party in accordance with the principles which govern an award of costs against a non-successful party in a contested matter before the Ontario Court of Justice (General Division). In the absence of such an award by the arbitrator, the arbitrator's costs shall be borne equally by both parties, without regard to their involvement in the arbitration. 20. This Agreement is subject to the right of the Authority and any parties approved by the Authority to maintain and operate utility services installed on, over or across the Premises at the date of this Agreement, and to the right of the Authority to grant leases or licences, as the case may be, from ,time to time, during the currency of this Agreement, covering the {ight and privilege or permissi~n to install, lay, maintain and use utility services on, over or across the Premises and the Town shall not, at any time during the currency hereof, do anything or cause or permit anything to be done which will in any way interfere with the rights and privileges or permissions thereby granted. provided, however, that any-such lease or licence will be granted subject to this Agreement and provided that the lessees or licensees thereunder shall not commence to exercise the rights and privileges or permissions thereby granted unless and until the consent in writing is first obtained from the Town which consent shall not be unreasonably withheld. CLOCA.EP/SSAGREEl '. - 9 - 21. The Town shall in all respects abide by and comply with all rules, regulations and by-laws of municipalities and other governing bodies, including the Authority, in any manner affecting the Premises. 22. If any covenant, obligation or agreement herein or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement of the application of such covenant, obligation or agreement to person or circumstances, other than those which are held invalid or unenforceable, shall be separately valid and enforceable to the fullest extent permitted by law. 23. Any notice to be given hereunder shall be deemed to have been duly given if reduced to writing, signed by or on behalf of the party giving such notice and delivered by hand or mailed by prepaid registered mail in Canada and addressed as follows: to the Authority: Central Lake Ontario Conservation Authority 100 Whiting Avenue Oshawa, Ontario LlH 3T3 to the Town: .. The Corporation of the Town of Newcastle 40 Temperance Street Bowmanville, Ontario LIC 3A6 or at such other address as either party hereto may -have specified by notice in writing and given to the other party hereto. Any notice given by registered mailJ shall be deemed to have been received by the parties to whom the same is addressed, on the next business day following the day upon which such CLOCA.EPjSSAGREEl , .' . . . . - 10 - notice, sent by prepaid registered mail, has been deposited in a post office in Ontario, with postage and cost of regi~tration prepaid. 24. The Town shall reimburse the Authority for its reasonable legal and surveying costs relating to the preparation and completion of this Agreement and the application for consent for approval for the lease of the Premises to the Town. The Town agrees to reimburse the Authority upon receipt from the Authority of invoices for legal and/or surveying fees relating to this Agreement. 25. This Agreement shall be binding upon and enure to the benefit of the Authority and the Town, their successors and approved assigns. 26. This Agreement shall be governed in accordance with the laws of the Province of Ontario. IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate seals attested by the hands of thei.r proper officers duly authorized in that behalf. CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY Per: Per: THE CORPORATION OF TIlE TOWN OF NEWCASTI.F. CLOCA.EP/SSAGREEl