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HomeMy WebLinkAbout89-138 '!; .' \ '..' THE CORPORATIQq OF THE 'lQtN OF NEWCASTLE BY-LAW 89-138 being a by-law to enter into a licence agreement with BowIIIanville ZOOlogical Park Limited '!HE e<:x:JOCIL OF '!HE CORPORATION OF THE 'lOON OF NEWCASTLE ENACl'S AS FOI.I.CMS: l. THAT the Mayor and Clerk are hereby authorized to execute on behalf of the Coqoration of the 'lbwn of Newcastle and seal with the Corporate Seal, a Licence Agreement as amended, between Bowmanville ZOOlogical Park Limited and the Corporation of the 'lbwn of Newcastle, dated this day of 1989, which Agreement is attached hereto and marked Schedule "A". By-law read a first and second time this 24th day of July, 1989 By-law read a third time and finally passed this 24th day of July 1989 MAYOR CLERK REPEALED BY BY-LAW ,.~Q.;.<;l~. LICENCE Newcastle \licence This Licence made as of the 24th day of July, 1989 BE1WEEN: THE CORPORATION OF THE TOWN OF NEWCASTLE (hereinafter called the wUcensorW) . and . BOWMANVILLE ZOOWGICAL PARK LIMITED (hereinafter called the wUcenseeW) WHEREAS at its meeting on July 24, 1989, the Council of the Town of Newcastle adopted with amendments the recommendations contained in Report #CS.28-89 and past By.law No.89-138 to authorize the making of this Licence, WITNESSETH THAT the Licensor licences to the Licensee and the Licensee licences and takes from the Licensor, subject to the terms and conditions set forth herein, the land described in Exhibit A and identified as the subject site (hereinafter called the "Premises"), to be used and occupied by the Licensee for the purpose only of overflow parking of passenger motor vehicles for visitors to the facility known as the Bowmanville Zoo, for a term commencing on the 24th day of July, 1989 and ending on the 31st day of December, 1989, subject to earlier termination as hereinafter provided. This Licence is made upon the following terms and conditions, which the Licensor and the Licensee covenant and agree to keep and perform: 1. Licence Fee The Licensee shall pay licence fee of Five Hundred ($500.00) Dollars in advance on the first day of the term of this Licence. 2. Crossing Guard and Tennination of Licence During the term of this Licence, the Licensee shall provide a crossing guard in the person of an off-duty police officer, at the Premises, to assist people crossing Highway #2 between the Premises and the facility known as the Bowmanville Zoo, at all times when the Premises are used. Notwithstanding the provisions of Article 12, if the Licensee is in breach of this Article 2, the Licensor shall be entitled, at its option, to terminate this Licence on notice to the Licensee. On delivery of notice of termination to the Licencee in accordance Article 13 hereof where upon this Licence shall terminate immediately. 3. Licen~or's Title and Allowable Use The Licensor covenants as a condition of this Licence that it has good marketable fee title to the Premises and the right to make this licence for the term aforesaid and that the provisions of this Licence do not conflict with or violate the provisions of existing agreements between the Licensor and third parties. 4. Maintenance and Re~ The Licensor shall have no responsibility or obligation of any nature whatsoever with respect to the repair or maintenance of the Premises except that the Licensor shall be responsible for the regular cutting of grass. Subject to the foregoing, the Licensee shall maintain the Premises during the term of this licence as a grassy and wooded area to the same standards as are maintained in public parks in the Town of Newcastle. The Licensee shall be responsible for the costs of replacing any trees or shrubs or repairing the lawn on the Premises which may become damaged by the use of this licence. Such repairs or replacement shall be performed by the Licensor at the cost of the Licensee. The Licencee shall pay such cost to the Licensor forthwith on delivery of a notice to the Licenccc by the Licensor demanding payment thereof. 5. Services The Licensor shall not be required to furnish any services or utilities to the Premises during the term of this Licence. The Licensee assumes full and sole responsibility for the supply of and payment for such services and utilities, if any are required by the Licensee. 6. On-Site Parkini The Licensee acknowledges that the purpose of this Licence is to permit the Licencee to use the Premises for the purposes of overflow vehicular parking for the facility known as the Bowmanville Zoo during the period expiring December 31, 1989 in which period the Licensee shall prepare a plan showing the accommodation of all vehicular parking to be provided in connection with the operation the Bowmanville Zoo lan~ and in which period necessary arrangements will be made by the Licencee to implement such parking plan commencing with the 1990 season of the Bowmanville Zoo. The Licencee covenants with the Licensor that on or before December 31, 1989 it will prepare a site plan for the Bowmanville Zoo lands which shows all vehicular parking which is to -2- be provided in eonneetion with the operation of the Bowmanville Zoo to be accommodated on the Bowmanville Zoo lands and not on the Premises. The Licencee covenants to deliver a copy of the site plan to the Licensor on or before December 31, 1989. For the avoidance of doubt and without derogating from any other provision of this Licence, the eovenant eontained in this Article 6 shall survive the termination of this Licence whether by surrender, expiry of the term of this Licence or termination of this Licence by the Licensor. 7. Surrender of Premises Without derogating from Article 4 hereof, at the expiration of the term of this Licence, the Licensee will peaceably yield up to the Licensor the Premises and the Licensee shall ensure that the Premises are in the same condition as they were in on the day as of which this Licence was made. 8. Inspection The Licensor shall have the right at all reasonable times during business hours to inspect the Premises. 9. Insurance The Licensee shall maintain or cause to be maintained throughout the term of this Licence and all-risks insurance policy naming the Licensor and the Licensee as insured persons, in the amount of at least Two Million ($2,000,000.00) Dollars for each occurrence. The policy shall eontain such terms as are satisfactory to the Town's Chief Administrative Officer. A certificate of such insurance shall be delivered to the Town's Chief Administrative Officer by the Licencee before the Licencee goes into occupation of the Premises pursuant to this Licence. 10. ~ (a) The Licensee shall pay for all taxes, special or other assessments and other governmental charges (hereinafter called .real estate taxes.) levied or assessed upon the Premises and the improvements which may be situate thereon, provided the same are due and payable during the term of this Licence. Any real estate taxes (or installments thereof, if payable in installments) shall be apportioned so that the Licensee shall pay only that portion of real estate taxes as falls within the term of this Licence. If allowed by law, the Licensee may pay for real estate taxes in installments. The Licensee shall not be obligated to pay any income tax, tax on rents or rentals, profits tax, excise tax or other similar tax charge that may be payable by or chargeable to the Licensor under any present or future law of the Province of Ontario in which the Premises are located. (b) The Licensee shall have the right, by appropriate proceedings, to protest or contest any assessment or reassessment for real estate taxes, or any special assessment, or the validity of either, or of any change in assessments or the tax rate. ( c) The Licensee shall be entitled to receive any tax refunds properly allocable to the term of this Licence, as it may be extended, and relating to taxes paid by the Licensee, as a result of any such contests or proceedings. 11. COD\RJiance With Law (a) During the term the Licensee shall, at its sole cost and expense, promptly comply with all laws, ordinances, orders, rules, regulations and requirements of all federal, provincial and municipal governments and governmental agencies, which are applicable to the Premises, to the improvements which may be situate thereon, or to the use, manner of use or occupancy thereof. (b) After prior notice to the Licensor, the Licensee shall have the right to contest by appropriate legal proceedings at the Licensee's sole cost and expense and with counsel of the Licensee's choosing, the validity of any law, ordinance, order, rule, regulation or requirement with which, by the provisions of this licence, it is obligated to comply. If by the terms of any such law, ordinance, order, rule, regulation or requirement, compliance therewith may be legally held in abeyance without incurring any lien or charge of record against the Premises, and without subjecting the Licensor to any fines, penalties or any other liability for failure to eomply therewith, the Licensee may postpone eompliance until the final determination of any such proceedings, provided that all proceedings shall be prosecuted with due diligence. 12. Default Except as provided in Article 2 hereof, if the Licensee shall default in the performance of any of its obligations under this Licence and if such default shall eontinue for five days after notice thereof from the Licensor specifying in what manner the Licensee has defaulted (except that if such default cannot be cured within said five- day period, this period shall be extended for a reasonable additional time, provided that the Licensee commences to cure such default within the five-day period and proceeds diligently thereafter to effect such cure), the Licensor may cure such default and any costs and expenses incurred by the Licensor therefor shall be deemed additional rent, or the Licensor may lawfully enter the Premises and repossess the same as of the former estate of the Licensor. .3. 13. Termination When Required for Municipal Use This Licence may be terminated at any time at the Town's discretion if the Council resolves that it requires the Premises for any municipal use, by the Town giving notice of termination to the Licencee. 14. Notices Al1y notice, request, communication or demand under this Licence shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Licensor at 40 Temperance Street, Bowmanville. Ontario, Attention: Mr. Lawrence Kotseff and the Licensee at 340 King Street East, Bowmanville, Ontario. Attention: Mr. Michael Hackenberger. Such notice; request or demand shall be deemed to have been delivered on the date it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation (whether anticipated or existing) of mail service affecting the delivery of such notice. the notice shall not be deemed to have been delivered until five (5) business days after the date that normal mail service is restored. 15. Assisnment and Sublicence The Licensee may not assign this Licence or sublicence all or any part of the Premises at any time during the term hereof without the consent of the Licensor which consent may be unreasonably withheld. 16. Non-Exclusive Licence The Licensee acknowledges that this Licence of the Premises is non-exclusive. The Licensee shall have the right of use of the Premises for the purpose set out herein subject to the right of others to use the Premises when the Premises are not in use by the Licensee. 17. Indemnity of Licensor The Licensee shall defend the Licensor and hold the Licensor harmless from and against all claims, actions, losses, damages and expenses (including reasonable legal fees) incurred by the Licensot in connection with the loss of life. personal injurY' or damage to property caused dwing the term of this licence, in whole or material part, by the act or omission of the Licensee, its agents, employees, licensees, invitees or contractors, arising (i) from any occurrence in or on the Premises, or (ii) from the use by the Licensee of any part of the Premises, or (ill) from any work undertaken by the Licensee on the Premises; provided that the provisions of this Article and the indemnity hereunder shall not be applicable when such claims, actions, losses, damages or expenses are caused wholly or in material part by the act or omission of the Licensor. its agents, employees, contractors, licensees or invitees. The Licensee shall have the right to defend. at its own expense and by counsel of its own choosing, and shall defend. against any claim to which the aforesaid indemnity agreement would apply. and the Licensor's right to defend or settle any such claim shall be limited to those cases where the Licensee has failed or refused to defend. 18. CountefJ'arts This Licence may be executed in several counterparts, each of which shall be deemed to be an original. and all counterparts shall constitute one and the same instrument. This Licence shall not be binding and in effect until one counterpart of this Licence, duly executed by the Licensor and the Licensee, has been delivered to each party hereto. 19. R~lPstration of Licence The Licensee shall not register this Licence or notice of this Licence against the title to the Premises. 20. Govemin~ Law This licence shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties submit to the jurisdiction of the cow1s of the Province of Ontario in order to enforce this Licence. 21. Invalidity If any term, covenant or condition of this Licence to any extent is held invalid or unenforceable, the remainder of this Licence shall not be affected thereby and each term, covenant and condition of this licence shall be separately valid and enforceable to the fullest extent permitted by law. 22- (a) Miscellaneous (b) No remedy or election given by any provision in this Licence shall be deemed exclusive unless so indicated. but each shall. whenever possible, be cumulative in addition to all other remedies in law or equity which either party may have arising out of the default of the other party and failure to cure such default within the applicable grace period. Pailure of either party to cure a default of the other under this licence shall not render such non- defaulting party in any way liable therefor, or relieve the defaulting party from any of its obligations hereunder. .4- 23. Bindin~ A~eement This Ucence shall bind and enure to the benefit of the parties hereto and their respective successors. 24. Entire Aareement This Ucence contains the entire agreement of the parties and shall not be modified except by an instrument in writing which is signed by both parties. IN WITNESS WHEREOF, this Ucence has been duly executed by the parties hereto as of the day and year fust above written. By: Cul& RPORATION OF mE TOWN TLE And: BOWMANVlLLEZOOLOGICALPARKLlMITED By: . ./14 7U~ -f / ~'~ ,./;;~ //, ..;;~.4r-- JY And: '.r '. . .l ' EXHIBIT A The Premises referred to in the within Licence comprise those lands which form Part of Block D, Plan of Subdivision 698 registered in the Registry Office for the Registry Division of the Region of Durham (#10). They are identified on this drawing as the "Subject Site". ---' I( I AJrs . . ..... .... . ' ..'" -... ~", Pl-4-'i " U' If o. v " , ~I ;;- i;; I- I ':- ~ I ~ I al -e I l1) , ,<: L', 1- , r:; ., " . '" ... '" , 'I ~...~ - . ? .' ~ BLOCK '0' '"' III ~ , "'I. / ..,1 J~ '... / / ....,/ / f/":' J .,~;' / I / : / I I '-)-r I_I"", I Ii I ,0