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HomeMy WebLinkAboutCS-08-931.0 BACKGROUNDS and reported to General Purpose 1,1 In report C5 -30 -91 staff rep uently to Council Administration Committee Meeting and subsequently the Hampton Hall that staff had been approached by members their wish that a suitable playground and Board expressing several provided for the Hampton residents. Following park be p centrally suitable site in meetings it was determined the only o Road north of Hampton was Elliott Park located on Old Scug g Mill Street. C,L.O.C.A. Through 1,2 Elliott Park is currently owned by al discussions it was determined that C.L.O.C.A. would inform nested by the Town. entertain a lease agreement if requested MAY 17,, 1993 REPORT 1J0. CS -08 -93 - 2 ° the 1992 Capital Budget authorized the 1,3 Council in approving subject to the first phase development of Elliott Park lease agreement. The $72► 000 for arrangement of a satisfactory provide a playground, walkway first phase construction will and park furniture. 2.0 REPORT: Capital Budget, Town staff 2.1 Following approval of the 1992 to consider either the st to C.L.O.C.A. initiated a req ne title of Elliott Park to the Town for to nominal protect transfer of reement. in order p SUM, or an acceptable lease ag ht make to the an investment or improvement which the Town might discussions Y requested. During property a long term lease was req the Park was not an sale of it was identified that the lease could be authorized easily agreeable option; a one year short term and not in the Town's best interest. A but was sho ears requires an Order In Council long term lease ie. twenty Y al council for both parties from the Lieutenant Governor. Legal lease agreement. were asked to work towards a twenty Y agreement (Attachment 2,2 Following lengthy negotiations a draft ag arties has been No. 2) which meets the criteria for b Council's review and reached and is hereby submitte year lease agreement dated May approval. It proposes a one y will 1994, during which C•L•O•C-A- 1st, 1993 to May 1st, requested endeavour to obtain an order in Council for the e twenty year lease. the provides specific conditions under ealtered or 2.3 The p ranted, may b twenty year lease, if Authority is g be terminated by mutual consent or terminated. The lease may pursuant to the upon 12 months notice, p 0 1990. by C.L.O.C.A. p provisions of the Conservation Authorities f their lands for They may require the return of all ui part o reimburse 1000 of but are req / their use or purposes each depreciation for full the Town's Capital cost less 5% dep ../3 j�l REPORT NO. Cs-08-93 ® 3 MAY li, 1993 year of use by the Town from the time of construction. C.L.O.C.A., during the life of the agreement, will retain the right to access their adjacent land through be the responsible rk der to fulfil their responsibilities and will repair any resulting park damages. 3.0 SUMMARY AND CONCLUSION: 3.1 The Town is being offered a one year lease to m em The Lake intention to expand it to a twenty year Lake Ontario Conservation Authority have indicated their go d faith to seek a 20 year lease agreement for Elliott in favour of the Town of Newcastle. Should the order in Council cn be delayed beyond the one year, the Town may y request extension year by year, however it is not anticipated there will be any delays or refusal in receiving the required order in Council. the 3.2 The citizens of Hampton have been patient in awaiting Council in agreement and development of the park approved by 1992. With the approval of Report No. CS- 08 -93, staff will initiate the Phase I development process as part of our 1993 Park Development program. air and equatable to both the Town 3.3 The proposed agreement is f and C.L.O.C.A. and will in do course provide a boustaff park for Hampton, accessible to all age groups. respectfully recommends the proposed lease agreement be executed. Respectfully submitted, Recommended for presentation to the Committee, Jo, ph P. Caruana, Director De�iartment of Community Services JPC:JDC Lawrence E. otseff, Chief Administrative Officer a �t 7UU ATTACHMENT NO. 1 THE CORPORATION OF THE TOWN OF NEWCASTLE BY -LAW 93- being a by -law to authorize the execution tion of a lease agreement between The Corp of the Town of Newcastle and The Central Lake Ontario Conservation Authority ORATION OF THE TOWN OF NEWCASTLE HEREBY THE COUNCIL OF THE CORP ENACTS AS FOLLOWS: 1. THAT the n and Clerk are of the authorized to execute, and on a Lease Agreement dated the seal with the Corporation Seal, day of 1983, between the Town of Newcastle e Ontario Conservation Authority for the and the Central Lak purpose of the Town utilizing Elliot Park as a Neighbourhood Park. This agreement is in the form attached hereto as Schedule "A ". Z, THAT Schedule "A" attached hereto forms part of this by -law. By -law read a first and second time this By -law read a third time and finally passed this MAYOR CLERK X09 BETWEEN: ATTACHMENT NO. 2 THIS AGREEMENT dated for reference the 1st day of May, 1993. CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY, (hereinafter called the "Authority") OF THE FIRST PART - and - THE CORPORATION OF THE TOWN OF NEWCASTLE, (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 WHEREAS the lands to be leased may be described as being all of Lot 92 and part of Lot 93 according to B.F. Concession Plan the former Village of Hampton and part of Lot , Geographic Township of Darlington, in the Town of Newcastle, Regional Municipality of Durham, designated as Part 1 on Plan 1OR -696 and Part 2 on Plan IOR -774 (hereinafter the "Premises"); AND WHEREAS; subject to the approvals required by the the Author is desirous of leasing to the Town the Authority, y 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; --A r.n /QQAr_RFF1 - 2 - NOW THEREFORE THIS AGREEMENT WI'TNEESSETfi 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, th da y of April, 1994 provided, 1993 and ending on the 30 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 Town shall be period of twenty (20) years, the term of the lease for a period commencing on the date of od of twenty (20) years commen inating twenty (20) the Order in Council aforesaid and term however, that if such years from that date. Provided, April Order in Council is not received by the Authority by p 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 writing of the Authority, which approval shall not be unreasonably withheldolac� S hall of the given or refused in accordance with the is received Authority at the time such request for approval 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 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 rr.nc.A.RP /SSAGREEI - 3 - accordance with the policies of the Authority in effect at the time the request is made. The Town shall f assume the Premises cost and responsibility for the maintena nce arklands maintained by to a standard comparable with other P attached. In the Town and in accordance with Schedule intainA1the Premises in the event that the Town fails to the Authority may, accordance with the prescribed standard, on not less than five (5) days' written notice to the Town, purpose of maintaining it and enter upon the Premises for the p ur p 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. The Town shall, at the Town's own cost and expense, at all 4. keep the times during the currency of this Agreement, p removing or causing to Premises in a neat and tidy condition, be removed therefrom all p litter, waste or papers, refuse, p rubbish arising out of the operation of the Premises by the Town under this Agreement, all to the satisfaction of the Authority, acting reasonably. hall not place or deposit, or. cause or permit to be 5. The Town s placed gravel, detritus, waste, laced or deposited, any fill, debris or other materials, articles or things on the Premises which may form a deposit thereon or therein without first under its Fill, making application to the Authority Regulations in Construction and Alteration to Waterway, It being effect at the time the application is made. understood that the application shall be governed by the policies of the Authority in effect at the ma time bes such application is made by the Town, which may or y same policies in effect at the date of this Agreement. 6, No permanent buildings shall be erected on the Premises the consent in writing of the without first obtaining ,. ,.A on /QQ Af1RPP1 - 4 - Authority, both as to location and type of building. In order to obtain consent, the Town shall apply to the and the Authority shall act promptly Authority for consent, if and reasonably in dealing with the application. However, subject to the Fill, Construction and the Premises are subj the those Alteration to Waterways Regulations of the Authority, ed by Town must a e pply under Regulations and be g overn in effect at the time such the policies of the Authority application for consent is made. ntrol of all aspects of the 7, The Authority shall retain co 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 such works. It being agreed by the prior to undertaking these presents parties hereto that the Authority does by reserve unto itself the right of access over the Pre equipment itself, its servants and agents and all n ecessary to carry out such works as are necessary for the aforesaid dama e caused by the development and maintenance. Any g ht of access as Authority to Premises in exercising its right or set forth in this paragraph shall be repaired, replaced restored by the Authority forthwith at its own expense. Y g, The Town shall not alter the course of any stream, watercourse or the natural topography of the land within the Premises without first app]yi.ng to the Authority under its Waterways Regulations, Fill, Construction and Alteration to The application shall be governed in accordance with the policies of the Authority in effect at the time such application is made. he right to lease or otherwise 9. The Town shall not have t dispose of the Premises herein, or permit concessionaires ­A rD /ccerRFF.1 - S - 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 basis. 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 occasioned 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 y any person, animal or thing by, from or on account y 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 or costs howsoever arising out of the use by the Town or its invitees, guests or licensees of the Premises` and any buildings or appurtenances thereon including any claim for personal injury (including death) or property damage howsoever caused. Roth parties covenant tandeclaimsnfor herein contained shall extend to all damages erection or damages by reason of improper or. faulty construction of structures hereinafter erected or installed on the Premises or in connection therewith by each party, its servants or agents and by reason of any insufficiency in such structures and whether or not same have been approved by the other party, its servants or agents. )14 - 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 of 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 the Premises as required by the Authority for the project shall be returned to the Authority twelve (12) months following the date written notice of the necessity for the possession of all or part of ,the Premises has been given by the Authority to the Town. In the event of such repossession by the Autho 'rity, the Authority agrees to reimburse the Town for the capital cost of all buildings and appurtenances constructed on the Premises repossessed on the following basis: 100% of all capital costs less 5% depreciation for each full year of 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 for recreational or outdoor educational purposes, at its own --A cn /CCAf1T)T7W1 - 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 thereof, any dispute, difference or question shall arise between the parties or any of their legal representatives concerning the interpretation or construction of this Agreement 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 .or their legal representatives be unable to agree upon the identity of such single arbitrator, then such' 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 final and binding on all the parties hereto, their successors and assigns and there shall be no appeal therefrom. 1�� - 8 - In any such dispute, difference or question, the arbitrator appointed hereunder shall be allowed unfettered and unlimited discretion 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 ,right and privilege or permission 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. `1 � I - 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. obligation or agreement herein or the 22 If any covenant, application thereof to any person or circumstance shall to the remainder of this any extent be invalid or unenforceable, obligation or Agreement of the application of such covenant, agreement to person or circumstances, other than those which separately valid be se P are held invalid or unenforceable, shall by law. and enforceable to the fullest extent p 23. Any notice to be given hereunder shall be deemed to have been signed by or on behalf of duly given if reduced to writing, hand or mailed the party giving such notice and delivered by by prepaid registered mail in Canada and addressed as follows: to the Authority: Central Lake Ontario Conservation Authority 100 Whiting Avenue Oshawa, Ontario L1H 3T3 to the Town: The Corporation of the Town of .. Newcastle 40 Temperance Street Bowmanville, Ontario L1C 3A6 or at such other address as either party hereto may have specified by notice in writing and given to the other party hereto. re ister.ed mail, shall be deemed to have Any notice given by g been received by the parties to whom the same is addressed, on the next business day following the day upon which such rr.ncA FP /SSAGREEI n - 10 - notice, sent by prepaid registered mail, has been deposited in a post office in Ontario, with postage and cost of registration 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 their proper officers duly authorized in that behalf. CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY Y ` Per: Per: THE CORPORATION OF THE TOWN OF NEWCASTLE, Per: Per: j1 9 M.nrA RP /RSAGRRF1 0 SCHEDULE "A" TO A LEASE AGREEMENT BETWEEN CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY AND THE CORPORATION OF THE TOWN OF NEWCASTLE DATED FOR REFERENCE THE 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 wearability 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 ther-park and in great detail in accordance with Risk Management. Park Furniture All furniture including goal posts, picnic tables, benches, trash receptacles, fences, etc. are inspected each time staff attend the park. CT,0CA.EP /SSAGREEI � �