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Report To: General Government Committee
Date of Meeting: November 9, 2015
Report Number: LGL-009-15 Resolution: 4
File Number: Department File# L2030-02-09 By-law Number: ;I,o\ i
Report Subject: Older Adult Governance - Management of the Beech Centre
Recommendations:
1. That Report LGL-009-15 be received;
2. That Council pass By-law No. 2015-074 attached to this Report (Attachment 1) in order
to designate the Beech Centre as a municipal capital facility and exempt it from taxation;
3. That the Clerk be directed to provide written notice of By-law No. 2015-074 to the
Minister of Education as required by subsection 110(5) of the Municipal Act, 2001;
4. That the Clerk be directed to provide written notice of By-law No. 2015-074 to the
Municipal Property Assessment Corporation, the Clerk of the Region of Durham and the
local school boards as required by subsection 110(8) of the Municipal Act, 2001;
5. That the Mayor and the Clerk be authorized to execute the Transition Agreement and
Municipal Capital Facility Agreement with the Bowmanville Older Adult Association
attached to this Report (Attachments 2 and 3);
6. That staff be authorized to take"all steps necessary to fulfill all of the Municipality's
obligations under the Transition Agreement; and
7. That all interested parties listed in Report LGL-009-15 and any delegations be advised
of Council's decision.
Municipality of Clarington
Report LGL-009-15 Page 2
Report Overview
This Report contains recommendations that are intended to implement specific aspects
of Council's preferred option for older adult service delivery. The agreements attached
to this Report provide the basis for the management of the Beech Centre to be
transferred from a municipal service board (Clarington Older Adult Centre Board) to an
independent not-for-profit corporation (Bowmanville Older Adult Association).
1 . Background
1.1 In 1998, the Municipality became the owner of 26 Beech Avenue, Bowmanville.
The Municipality took title to the property subject to a lease with the Bowmanville
Tennis Club.
1.2 In October 1998, the Municipality leased the property (other than the tennis court
area) to the Clarington Older Adult Association.
1.3 In December 2011, Council established the Clarington Older Adult Centre Board
as a municipal service board to operate and manage the Beech Centre.
1.4 In May 2012, the Municipality entered into a new lease with the Bowmanville
Tennis Club.
1.5 On June 29, 2015, Council considered Report CSD-008-15 (Older Adult Strategy
Governance) and resolved, amongst other matters, to dissolve the Clarington
Older Adult Centre Board effective January 1, 2016 and enter into an agreement
with a not-for-profit corporation for the use and operation of the Beech Centre.
The full resolution (#GPA-425-15) reads as follows:
That Report CSD-006-15 be received;
That By-law 2011-166 be repealed effective January 1, 2016;
That staff develop a two year Agreement for the use and operation
of 26 Beech Avenue by the COAA as a registered not-for-profit
corporation;
That the Agreement identify that the minimum qualifying age for
membership with the COAA be established at 55 years with the
exception of current COAA members between the ages of 50-54
years who will be grandfathered;
Municipality of Clarington
Report LGL-009-15 Page 3
That the COAA update the organization's information with the
Province of Ontario Ministry of Government Services in regard to
their corporate status;
That the mandate of the Community Services Department be
expanded to include responsibility for community programming for
adults age 55 years and over living in Clarington effective January
1, 2016;
That the Community Services Department be given budget
approval to recruit and hire an Older Adult Coordinator and Older
Adult Programmer(non-affiliated positions) with a start date of
August 2015, at a cost of approximately$72,400 including salaries
and benefits for 2015;
That the Community Services Department be given 2015 budget
approval for$40,000 for capital equipment purchases for the
dedicated space at the Courtice Community Complex and that the
necessary funds be-accessed from the Community Services Capital
Reserve Fund;
That the Community,®Services Department develop a 2016 Older
Adult Budget as a part of the overall Community Services 2016
budget submission; and
That the COACB be directed to liaise with the Municipal Director of
Finance/Treasurer on the development of a revised 2015 budget.
2. Discussion
2.1 Consistent with the direction provided through Resolution #GPA-425-15, staff
have prepared 2 agreements that are intended to transfer the management and
operation of the Beech Centre from the Clarington Older Adult Centre Board to a
new not-for-profit corporation (Bowmanville Older Adult Association — a name
selected by the current COAA Board).
2.2 Bowmanville Older Adult Association has been incorporated under the Canada
Not-For-Profit Corporations Act.
2.3 The Transition Agreement (Attachment 2) deals with the transfer of assets and
liabilities from the Municipality and the municipal service board (COAA Board) to
the new corporation (BOAA). In essence, it deals with matters that are applicable
to the purchase and sale of a business. The Municipal Capital Facilities
Agreement (Attachment 3) is intended to address matters that will continue into
the future in terms of the Municipality's relationship with the new corporation. It is
Municipality of Clarington
Report LGL-009-15 Page 4
essentially a lease that has been tailored so that it also addresses municipal
taxation issues and issues relating to older adult services and programs.
2.4 The key elements of the Transition Agreement are as follows:
(a) Section 4 (Transfer of Assets)
Ownership of all assets currently being used by COAA (other than the real
property) will be transferred to BOAA. Staff felt that this was appropriate
because the assets of value (e.g. the vehicles) were paid for using money
raised by the COAA as opposed to grant monies that came from the
Municipality.
(b) Section 8 (Reserve Funds)
It is recommended that the existing Older Adult Reserve Funds be dealt
with as follows:
(i) 50% of the Operating Reserve Fund (total fund balance $69,100 as
at September 30, 2015) be paid to BOAA and the remaining 50% be
redirected to the Municipality's Facilities Maintenance Reserve Fund
and used to address future capital repairs or improvements at the
Beech Centre.
The funds in the Older Adults Centre Operating Reserve Fund date
back to when the Beech Centre was originally established as the
Older Adults Centre and the COAA was charged with the operation
of the centre. At that time, Council set aside in a separate reserve
fund $1 million for a period of several years, of which the principal
could not be used. The principal was then returned to its original
reserve fund. The interest earned on the funds was to be available
to assist COAA in the operations and programming of the facility. The
funds have only been drawn on a couple of occasions over its history.
As a result of the original intent of the funds, staff feel that it is a fair
position that half of the remaining funds go towards the programming
of the facility through the newly formed organization and half go
towards future capital needs of the facility through the operations
department.
(ii) The Capital Reserve Fund ($17,826 as at September 30, 2015) be
paid out in its entirety to BOAA.
This reserve fund was established originally for the purpose of
providing funds to monitor the costs and revenues associated with
the construction and completion of the Clarington Older Adults
Centre through By-law 96-95 with provincial and federal grants as
Municipality of Clarington
Report LGL-009-15 Page 5
well as donations to be deposited into this account. Due to both the
original source of the funds specific for the centre and the smaller
dollar value of this reserve fund currently, it is recommended that the
funds be transferred to the new organization for minor capital
purposes.
(c) Sections 10 — 12 (Liabilities)
In accordance with O. Reg. 582/06, the Municipality will stand in the place
of the COAA Board for all purposes after it is dissolved effective January
1, 2016. This means that all liabilities of the Board vest in the Municipality.
These sections speak to all such liabilities.
2.5 The key elements of the Municipal Capital Facilities Agreement are as follows:
(a) Sections 5 — 8 (Use of Centre)
The uses are described so as to ensure that the Beech Centre maintains
tax exempt status.
(b) Section 11 (Term)
As directed by Council, the initial term is 2 years. Thereafter, the term will
automatically renew for periods of 1 year unless otherwise terminated.
(c) Part 4 (Programing) "
Part 4 is intended to Ensure that responsibilities for services and programs
are clearly articulated in order to avoid duplication and public confusion
around service delivery.
(d) Part 5 (Maintenance and Repairs)
The Municipality will`continue to be responsible for structural maintenance
and repairs at the property and BOAA will be responsible for day-to-day
maintenance.
2.6 The last item in Resolution #GPA-425-15 directed the Municipal Director of
Finance /Treasurer to liaise with the COAA board on the development of a
revised 2015 budget. The Director met with COAA representatives in late July to
discuss such revisions. Based on the information provided as well as the original
budget submission, the Director was satisfied that the revised budget request of
Municipality of Clarington
Report LGL-009-15 Page 6
$255,000 (reduced from $310,000) fairly represented the operational
requirements to fulfil the organizations mandate for the balance of the 2015 year.
3. Concurrence
3.1 This report has been reviewed by the Director of Community Services, Director of
Corporate Services, Director of Operations and Director of Finance who all
concur with the recommendations.
3.2 The agreements attached to this Report have been reviewed and approved by
the Clarington Older Adult Centre Board.
4. Conclusion
4.1 It is respectfully recommended that Council adopt all of the recommendations
contained in this Report in order to effectively implement Council's direction
respecting the operation and management of the Beech Centre.
5. Strategic Plan Application
Not applicable.
Submitted by:—ZL Reviewed b,
C. Allison, B. Comm, LL.B Franklin Wu,
Municipal Solicitor Chief Administrative Officer
Staff Contact: Andrew C. Allison, 905-623-3379 ext. 2013 or aallisongclarin. tog n net
Attachments:
Attachment 1 - By-law No. 2015-074
Attachment 2 - Transition Agreement
Attachment 3 - Municipal Capital Facilities Agreement
The following is a list of the interested parties to be notified of Council's decision:
Muriel Moynes, President, Clarington Older Adult Centre Board
Alan Tibbles, Vice President, Clarington Older Adult Centre Board
Angie Darlison, Executive Director, Clarington Older Adult Centre Board
Cathie Ward, Past President, Clarington Older Adult Centre Board
a
Municipality of Clarington
Report LGL-009-15 Page 7
Steve Coles, Steering Committee Member
John Coffey, Steering Committee Member
Julie Michalejko-Earle, Steering Committee Member
Audrey Andrews, Manager of Diversity and Immigration, Region of Durham, Steering
Committee Member °
Larry Gilks
Attachment 1 to
Municipality of Clarington Report LGL-009-15
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2015-074
A by-law to designate the Beech Centre as a municipal capital facility
and exempt it from all taxes levied for municipal and school purposes
WHEREAS section 110 of the Municipal Act, 2001 permits a municipality to enter into
agreements for the provision of municipal capital facilities;
AND WHEREAS save and except for the lands described in a lease between The Corporation
of the Municipality of Clarington (the "Municipality") and the Bowmanville Tennis Club dated
May 11, 2012, the lands known municipally as 26 Beech Avenue, Bowmanville which are
legally described as Part 1 on Plan 40R-14445, Municipality of Clarington, Regional
Municipality of Durham (the "Beech Centre") is a municipal capital facility from which older
adult services and programs have been and will continue to be provided;
AND WHEREAS the Municipality has authorized the execution of an agreement with the
Bowmanville Older Adult Association ("BOAX) for the continued use of the Beech Centre as a
municipal capital facility;
AND WHEREAS subsection 110(6) of the Municipal Act, 2001 provides that a municipality may
exempt from all or part of the taxes levied for municipal and school purposes land or a portion
of it on which municipal capital facilities are located;
AND WHEREAS Ontario Regulation 603/06, as amended, specifies the classes of municipal
capital facilities that can be exempt from taxation under subsection 110(6) of the Municipal Act,
2001, and the Beech Centre is within a class that qualifies for such exemption;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON ENACTS AS FOLLOWS:
Designation
1. The Beech Centre is hereby designated as a municipal capital facility (as that term is
defined in subsection 2(1) of Ontario Regulation 603/06) effective January 1, 2016 for
the purpose of providing older adult services and programs.
Tax Exemption
2. The Beech Centre is hereby exempted from taxation in accordance with subsection
110(6) of the Municipal Act, 2001 and paragraph 15 of subsection 2(1) of Ontario
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Municipality of Clarington
Report LGL-009-15 Page 9
Regulation 603/01 effective January 1, 2016.
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3. In accordance with clause 5(b) of Ontario Regulation 603/01, Council hereby declares
that the Beech Centre shall be used for the purposes of the Municipality as set out in the j
Municipal Capital Facilities Agreement between the Municipality and BOAA dated
January 1, 2016 and shall be for public use.
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Effective Date
4. This by-law comes into force and is effective on January 1, 2016.
PASSED this 23rd day of November, 2015.
Adrian Foster, Mayor
C. Anne Greentree, Municipal Clerk
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ATTACHMENT NO. 2
LG L-009-15
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TRANSITION AGREEMENT
THIS AGREEMENT is dated November 23, 2015
BETWEEN:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(the "Municipality")
- and -
BOWMANVILLE OLDER ADULT ASOCIATION
("BOAA")
RECITALS
A. By a Transfer registered on January 5, 1998, the Municipality became the owner of the
lands known municipally as 26 Beech Avenue, Bowmanville which are legally described
as Part 1 on Plan 40R-14445, Municipality of Clarington, Regional Municipality of
Durham (the "Property").
B. The Municipality took title to the Property subject to a lease with the Bowmanville
Tennis Club dated January 1, 1998 of the tennis court area (the "Tennis Court Lands").
C. By lease dated October 1, 1998, the Municipality leased the balance of the Property
which includes buildings and ancillary parking facilities (the "Centre") to the Clarington
Older Adult Association.
D. Pursuant to By-law 2011-106 passed on December 5, 2011, Council established the
Clarington Older Adult Centre Board (the "Board") as a municipal service board in
accordance with section 196 of the Municipal Act, 2001 to operate and manage the
Centre.
E. By an agreement dated May 11, 2012, the Municipality entered into a new lease with the
Bowmanville Tennis Club for the Tennis Court Lands.
F. On June 29, 2015, Council considered Report CSD-008-15 and resolved, amongst other
matters, to dissolve the Board effective January 1, 2016 and develop a 2 year agreement
for the use and operation of the Centre by a registered not-for-profit corporation.
G. On November 23, 2015, Council considered Report LGL-009-15 and passed By-law No.
2015-074 which,
(a) designated the Centre as a municipal capital facility (as that term is defined in
subsection 2(1) of O. Reg. 603/06) effective January 1, 2016; and
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Beech Centre Transition Agreement Page 12
(b) exempted the Centre from taxation in accordance with Subsection 110(6) of the
Municipal Act, 2001 and paragraph 15 of subsection 2(1) of O. Reg. 603/01
effective January 1, 2016.
H. In accordance with O. Reg. 582/06, the Municipality will stand in the place of the Board
for all purposes on and after the Effective Date, and all rights, claims, undertakings,
obligations, assets and liabilities of the Board shall vest in the Municipality on the
Effective Date save and except as set out in this Agreement.
NOW THERFORE the Municipality and BOAA agree as follows:
PART 1 - INTERPRETATION
Definitions
1. In this Agreement,
"Agreement" means this Agreement as it may be amended from time to time;
"Board" means the Clarington Older Adult Centre Board described in Recital D;
"BOAR" means the Bowmanville Older Adult Association, a corporation incorporated
under the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23 and includes, where
appropriate, its agents, consultants, contractors, employees and those for whom it is in
law responsible;
"Centre" means the portion of the Property described as such in Recital C and shown in
Schedule "A";
"Council" means the Council of the Municipality;
"Effective Date" means January 1, 2016;
"Municipality" means The Corporation of the Municipality of Clarington including,
where appropriate, its agents, consultants, contractors, employees and those for whom it
is in law responsible; and
"Property" means the property described in Recital A.
Extended Meanings
2. In this Agreement, unless otherwise specified,
(a) a grammatical variation of a word or expression defined has a corresponding
meaning;
(b) references to an Act or By-law shall include any amendments to or replacements
of such Act or By-law;
Beech Centre Transition Agreement Page 1 3
(c) references to Parts, sections and Schedules are references to Parts, sections and
Schedules in this Agreement;
(d) where reference is made to a consent, waiver, approval, notice, request or other
communication, such matters shall be deemed to be qualified by the words "acting
reasonably"; and
(e) every provision by which BOAA is obligated in any way through the words
"BOAA shall" will be deemed to include the words "at its expense" (including the
payment of any applicable taxes).
3. The following Schedules are attached to and form part of this Agreement:
Schedule "A" Arial Photo of the Property and the Centre
Schedule "B" Municipal Capital Facility Agreement
PART 2 - TRANSFER OF ASSETS AND LIABILITIES
Transfer of Assets
4. As of the Effective Date, the Municipality sells, conveys, assigns and transfers to BOAA,
and releases all right, title and interest in, all of the physical or tangible assets used by the
Board and located at the Centre on the Effective Date (the "Transferred Assets")
including the following:
(a) Toyota SIE [5TDZK3DC5BS020462].
(b) Toyota RG4 [2T3ZF4DVXCW155562].
(c) 2008 GMC Van [1GDJG316381124088].
(d) Cash on hand and short-term investments.
(e) Receivables.
(f) Books, records, mailing lists, advertising and promotional materials, equipment
maintenance records, and all other documents (whether in hard copy or electronic
form).
(g) Computers and related software, websites, office equipment and office supplies.
(h) Furniture.
(i) Phone system and any other technological equipment.
(j) The telephone number 905-697-2856, fax 905-697-0739 and email address
coaa(i4bellnet.ca.
Beech Centre Transition Agreement Page 14
(k) The internet domain name www.claringtonbeechcentre.ca.
(1) All social media accounts, including Facebook, Google Plus, LinkedIn, Twitter
and YouTube accounts established by the Board.
Consideration
5. All of the Transferred Assets shall be transferred to BOAA for the total purchase price of
Two Dollars ($2.00).
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Representation and Warranty
6. The Municipality represents and warrants to BOAA that it has good and marketable title
to all of the Transferred Assets free and clear of all liens and encumbrances.
Sales Taxes
7. Any sales taxes applicable on the sale of the Transferred Assets shall be the responsibility
of the Municipality.
Reserve Funds
8. The Municipality's existing Older Adults Operating Reserve Fund shall be split with
BOAR. Fifty percent (50%) of the amount that is in such fund on the Effective Date
shall be paid by the Municipality to BOAA. The remaining fifty percent (50%) shall be
redirected to the Municipality's Facilities Maintenance Reserve Fund, which is overseen
by the Municipality's Director of Operations, and used to address future capital repairs or
improvements at the Centre. The Older Adults Capital Reserve Fund shall be paid out in
its entirety to BOAA. As of September 30, 2015, the amounts in such reserves are
$69,100 (Operating) and $17,826 (Capital).
Assumption of Contracts
9. As of the Effective Date, the Municipality assigns and transfers to BOAA, and BOAA
assumes all obligations under, the following contracts, if any, that were entered into with
the Board (the "Assumed Contracts"):
(a) All employment contracts.
(b) All maintenance contracts.
(c) All contracts for computers and other equipment (i.e. photocopier).
(d) Acorn Landscaping(snow removal).
Liabilities
10. Save and except for the Assumed Contracts, BOAA shall not assume any obligation or
liability of the Municipality under contract or otherwise. Without limiting the generality
Beech Centre Transition Agreement Page 15
of the foregoing, the Memorandum of Understanding between the Municipality and the
Board dated June 16, 2009 shall be of no further force or effect.
11. Save and except as set out in the Municipal Capital Facility Agreement (Schedule "B"),
the Municipality shall not be responsible for any liability that arises from BOAA's
operation of the Centre on or after the Effective Date including any employment-related
liabilities.
12. The Municipality shall not be responsible for any liability that arises from the Board's
operation of the Centre before the Effective Date, save and except any employment-
related liabilities if any Board employee does not accept employment with BOAA (in
which case the Municipality shall be responsible for all severance liability under the
Employment Standards Act, 2000, S.0. 2000, c. 41).
Vehicle Insurance
13. As of the Effective Date, BOAA shall be required to obtain its own vehicle insurance.
Budget
14. BOAA shall revise its budget for the 2015 year and prepare a new budget to reflect
programming changes that will take place as a result of this Agreement.
PART 5 - MISCELLANEOUS
Business Registration
15. BOAA shall be required to obtain its own business registration number.
EPC Grants
16. The Municipality shall cooperate with BOAA to ensure that nothing in this Agreement
prejudices the ability of BOAA to apply for and receive grants under the Elderly Persons
Centres Act, R.S.O. 1990, c.E.4 or any other type of government or private sector
financial assistance program.
Marketing
17. BOAA may advertise or otherwise make public the programming that it intends to deliver
after the Effective Date once Council has approved the execution of this Agreement and
the execution of the Municipal Capital Facility Agreement (Schedule "B").
18. All Municipal services currently provided to the Board (e.g. financial and legal) shall
continue to be provided to the Board up until the Effective Date. Thereafter only those
Municipal services specifically identified in the Municipal Capital Facility Agreement
(e.g. repairs and maintenance provided by the Operations Department) shall continue to
be provided to BOAR.
Beech Centre Transition Agreement Page 16
Dispute Resolution
19. If either party provides the other party with notice of a dispute regarding the
interpretation or implementation of this Agreement (a "Dispute"), then the parties shall
use their best efforts to settle the Dispute by negotiating with each other in good faith. If
the parties are unable to resolve a Dispute, it shall be submitted to mediation by an
impartial third party to be agreed upon by the parties to the Dispute. If the parties are
unable to resolve the Dispute through mediation, then it shall be referred to arbitration in
accordance with the provisions of the Arbitration Act, 1991, S.O. 1991, c.17.
Entire Agreement
20. This Agreement and the Municipal Capital Facility Agreement (Schedule "B") constitute
the entire agreement between the parties concerning the Centre and may only be amended
or supplemented by an agreement in writing signed by both parties.
Further Assurances
21. Both parties agree that they shall execute and deliver, at the request of the other party, all
such further documents, agreements and instruments, and will do and perform all such
acts as may be necessary to give full effect to the intent and meaning of this Agreement.
Registration
22. Neither this Agreement nor notice of it shall be registered against title to the Property.
Notices
23. All notices, communications and requests for approval which may be or are required to
be given under this Agreement shall be in writing and shall be mailed by first class
prepaid post, sent by e-mail or delivered:
To the Municipality: Municipality of Clarington
40 Temperance Street
Bowmanville, ON L 1 C 3A6
Attention: Municipal Clerk
Email: clerks�c�clarin Ytai .net
To BOAA: Bowmanville Older Adult Association
26 Beech Avenue
Bowmanville, ON L 1 C 3A2
Attention: Executive Director
Email: exec-director @bellnet.ca.
or such other address or number of which either party has notified the other. Any such
notice shall be effective from the date that it is so mailed, emailed or delivered.
Beech Centre Transition Agreement Page 17
Governing Law
24. This Agreement shall be governed by, and be construed and interpreted in accordance
with, the laws of Ontario and the laws of Canada applicable in Ontario.
Approvals
25. Wherever an approval or consent is required to be given under this Agreement, the
consent or approval shall not be unreasonably withheld, delayed or conditioned, and any
withholding of approval or consent shall be accompanied by reasons therefor. The party
from whom an approval or consent is required shall, within 30 business days after the
request for approval or consent is received, advise in writing the party requesting such
approval or consent that it consents or approves, or that it withholds its consent or
approval.
Assignment
26. The BOAA shall not assign this Agreement without the consent of the Municipality.
Successors and Assigns
27. This Agreement shall extend, be binding upon and enure to the benefit of the parties,
their respective successors and permitted assigns.
Covenants
28. Each obligation in this Agreement, even though not expressed as a covenant, is
considered for all purposes to be a covenant. Each covenant is a separate and independent
covenant and a breach of covenant by any party shall not relieve the other parties from
their obligations to perform each of their covenants, except as otherwise provided in this
Agreement.
Severability
29. The invalidity or unenforceability of any provision in this Agreement shall affect the
validity or enforceability of such provision only and any such invalid provision shall be
deemed to be severable from the balance of this Agreement.
IN WITNESS WHEREOF the Municipality and BOAA have executed this Agreement.
THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON
Mayor Adrian Foster
Anne Greentree, Municipal Clerk
Beech Centre Transition Agreement Page IS
BOWMANVILLE OLDER ADULT ASSOCIATION
Muriel Moynes, President
Alan Tibbles, Vice-President
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Beech Centre Transition Agreement Page 19
SCHEDULE "A"
ARIAL PHOTO OF THE PROPERTY AND THE CENTRE
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Beech Centre Transition Agreement Page 10
SCHEDULE "B"
MUNICIPAL CAPITAL FACILITY AGREEMENT
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ATTACHMENT NO. 3
LG L-009-15
MUNICIPAL CAPITAL FACILITY AGREEMENT
THIS AGREEMENT is dated as of January 1, 2016
BETWEEN:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(the "Municipality")
-and-
BOWMANVILLE OLDER ADULT ASSOCIATION
("BOAA")
RECITALS
A. The Municipality owns the lands known municipally as 26 Beech Avenue, Bowmanville
which are legally described as Part 1 on Plan 40R-14445, Municipality of Clarington,
Regional Municipality of Durham (the "Property").
B. By an agreement dated May 11, 2012, the Municipality leased a portion of the Property
to the Bowmanville Tennis Club.
C. In accordance with subsection 110(2) of the Municipal Act, 2001, the Municipality and
BOAA wish to enter into an agreement to allow for the lease, operation and maintenance
of the balance of the Property which includes buildings and ancillary parking facilities
(the "Centre") as a municipal capital facility.
D. On November 23, 2015, Council considered Report LGL-009-15 and passed By-law No.
2015-074 which designated the Centre as a municipal capital facility and exempted the
Centre from taxation.
NOW THERFORE the Municipality and BOAA agree as follows:
PART 1 - INTERPRETATION
Definitions
1. In this Agreement,
"Agreement" means this Agreement as it may be amended from time to time;
"BOAA" means the Bowmanville Older Adult Association, a corporation incorporated
under the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23 and includes, where
appropriate, its agents, consultants, contractors, employees and those for whom it is in
law responsible;
Beech Centre Agreement Page ( 2
"Centre" means the portion of the Property described as such in Recital C and shown in
Schedule "A";
"Commencement Date" means January 1; 2016;
"Council" means the Council of the Municipality;
"Municipality" means The Corporation of the Municipality of Clarington including,
where appropriate, its agents, consultants, contractors, employees and those for whom it
is in law responsible;
"older adult" means a person 55 years of age or older;
"Property" means the property described in Recital A; and
"Term" means the term of this Agreement as set out in section 11.
Extended Meanings
2. In this Agreement, unless otherwise specified,
(a) a grammatical variation of a word or expression defined has a corresponding
meaning;
(b) references to an Act or By-law shall include any amendments to or replacements
of such Act or By-law;
(c) references to Parts, sections and Schedules are references to Parts, sections and
Schedules in this Agreement;
(d) where reference is made to a consent, waiver, approval, notice, request or other
communication, such matters shall be deemed to be qualified by the words "acting
reasonably"; and
(e) every provision by which BOAA is obligated in any way through the words
"BOAA shall" will be deemed to include the words "at its expense" (including the
payment of any applicable taxes).
Schedule
3. Schedule "A" (Arial Photo of the Property and the Centre) is attached to and forms part
of this Agreement.
PART 2 - GRANT AND USE
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Grant
4. In consideration of the performance by BOAA of its obligations under this Agreement,
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the Municipality leases to BOAA the Centre for the Term and agrees to observe and
perform all of the covenants to be observed and performed by the Municipality under this
Agreement. In consideration of the performance by the Municipality of its obligations
under this Agreement, BOAA takes the Centre on lease from the Municipality and agrees
to observe and perform all covenants to be observed and performed by BOAA under this
Agreement.
Use of Centre
5. Subject to the restrictions set out in Part 4 (Programming), the Centre may be used by
BOAA for such purposes as in its judgment are consistent with the purposes for which it
was incorporated which, for ease of reference, are described as follows in BOAA's
Articles of Incorporation:
The purposes of Bowmanville Older Adult Association are to relieve
loneliness and isolation of the aged and to improve their mobility and
fitness by establishing, operating and maintaining a senior citizens'centre
that will provide recreation, education, cultural activities and other
programs for senior citizens.
6. The Municipality acknowledges that BOAA is permitted to allow individuals and
organizations to use the Centre on a limited basis in the same manner as members of the
public are entitled to use portions of the Municipality's other community centres.
7. BOAA shall not be permitted to allow any person to use any portion of the Centre for any
period of time for any commercial activity if such use will alter the tax exempt status of
the Centre. Without limiting the generality of the foregoing, auctions shall not be
permitted. Silent auctions that are part of a not-for-profit event shall be'permitted.
8. The Centre shall be used only-for the purposes set out in sections 5 and 6 and for no other
purpose without the consent of the Municipality.
Nuisance
9. BOAA shall not carry on any activity or do or suffer any act or thing that constitutes a
nuisance or which is offensive or an annoyance to the owners or tenants of properties
surrounding the Centre.
Assignment and Subletting
10. In order to ensure compliance with subsection 110(6)(c) of the Municipal Act, 2001,
BOAA shall not assign, sublet or otherwise allow any person to occupy or use any
portion of the Centre except as permitted by this Part without the consent of the
Municipality.
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PART 3 - TERM AND RENT
Term
11. The term of this Agreement shall be 2 years commencing on the Commencement Date
and terminating on December 31, 2017. The Term shall be automatically extended for
further periods of one year unless otherwise terminated.
Termination
12. This Agreement may be terminated by either party upon 1 year's notice. Upon
termination of this Agreement, the Centre shall be deemed to no longer be a municipal
capital facility.
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Overholding
13. If BOAA remains in possession of the Centre after the expiry or earlier termination of the
Term, there shall be no tacit renewal of this Agreement or the Term, notwithstanding
statutory provisions or legal presumption to the contrary, and BOAA shall be deemed to
be occupying the Centre as a tenant from month to month upon the same terms,
covenants and conditions as are set forth in this Agreement insofar as they are applicable
to a monthly tenancy.
Rent
14. BOAA shall pay to the Municipality as rent for the entire Term in lawful money of
Canada the nominal amount of Two Dollars ($2.00).
Utilities
15. BOAA shall pay or cause to be paid all charges for water, gas, electricity, light, heat or
power, telephone, internet, cable or other communication service used, rendered or supplied
upon or in connection with the Centre throughout the Term.
Taxes
16. The parties agree that because the Centre has been designated by the Municipality as a
municipal capital facility, the Centre is exempt from taxes levied for municipal and school
board purposes.
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PART 4 - PROGRAMMING
Age
17. Consistent with its Articles of Incorporation, all programs, services and activities that are
planned, organized or administered by BOAA shall be restricted to older adults and
current members who are under 55 years of age.
Non-Competition
18. BOAA shall not provide any programs or services outside of the Centre that will compete
with programs or services provided directly by the Municipality to older adults.
19. Subject to section 20, BOAA shall be permitted to provide its programs or services,
(a) from any location within the geographic boundaries of the Bowmanville urban
area;
(b) from any location outside the geographic boundaries of the Bowmanville urban
area if the program or service requires specialized facility space (e.g. golf and
bowling);
(c) from any location outside the geographic boundaries of the Bowmanville urban
area for one time special events; and
(d) from any parks, trails, forests or other outdoor areas wherever they are located.
20. BOAA shall not be permitted to provide any programs or services within any indoor
recreational facilities owned or operated by the Municipality.
21. Subject to the restrictions contained in this Part and in Part 2 (Grant and Use), BOAA
may,
(a) fix the hours when the Centre will be open to the public;
(b) establish rates, fees or charges for admission to, or use of, the Centre; and
(c) adopt policies or rules for the use of portions of the Centre.
22. BOAA shall have access to the Clarington Recreation & Leisure Guide on the same basis
as other community service groups. The Community Services Department shall have
access to BOAA's noticeboards to advertise its own programs and services for older
adults.
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PART 5 - MAINTENANCE AND REPAIRS
BOAA Responsibilities
23. Subject to section 25, BOAA shall be responsible for such day-to-day repair and
maintenance of the Centre as are proper or necessary to keep the Centre clean and in
good condition. This responsibility shall include custodial care.
24. BOAA shall not alter any physical component of the Centre's buildings or grounds
without approval from the Municipality.
Municipal Responsibilities
25. The Municipality shall be responsible for all repairs and maintenance to the Centre's
structure including its mechanical systems and elevator.
26. The Operations Department of the Municipality shall assign a representative who will act
as a staff liaison to BOAA to respond to building maintenance and repair issues. As the
Municipal liaison, this individual shall attend BOAA Board meetings as a non-voting
resource person when requested.
Heritage
27. Any repairs or maintenance work undertaken at the Centre, whether structural or
otherwise, shall be undertaken in a manner that reflects its heritage features and its
inclusion in a heritage conservation district under Municipal By-Law No. 2006-102.
PART 6 - INSURANCE AND INDEMNITY
Director's Liability Insurance
28. BOAA shall be required to obtain its own director's liability insurance.
Contents Insurance
29. The Municipality shall take out and maintain insurance for the Property and BOAA's
contents which are located in the Centre. On or before March 31 in each year, BOAA
shall provide the Municipality with a list of its contents for such purpose.
CGL Insurance
30. BOAA shall take out and maintain commercial general liability insurance pertaining to
BOAA's liability to others in respect of injury, death or damage to property occurring
upon, in or about the Centre, such insurance to be of an amount which is reasonable and
sufficient having regard to the scope of the risk and the current practice of prudent
owners of similar Centre for the carrying on of similar businesses, but in any event in an
amount not less than three million dollars ($3,000,000.00) for claims arising out of one
occurrence. Such policy shall also name the Municipality as an additional insured and
Beech Centre Agreement Page ( 7
may not be cancelled unless prior notice by registered letter has been given to the
Municipality by the insurer 30 days in advance of the expiry date.
31. If requested, BOAA shall file with the Municipality a Certificate of Insurance in a form
satisfactory to the Municipality's Director of Finance, verifying that the insurance
`required by this Agreement is in effect and setting out the essential terms and conditions
of the insurance.
32. The provision of the insurance required by this Agreement shall not relieve BOAA from
liability for claims not covered by the policy or which exceed its limits, if any, for which
BOAA may be held responsible.
Insurance Risks
33. BOAA shall not do, omit to do, or permit to be done or omitted to be done upon the
Centre anything that may contravene or be prohibited by any of the Municipality's
insurance policies in force from time to time covering or relevant to any part of the
Centre or which would prevent the Municipality from procuring its policies with
companies acceptable to the Municipality. If the occupancy of the Centre, the conduct of
activity in the Centre or any acts or omissions of BOAA at the Centre causes or results in
any increase in premiums for any of the Municipality's insurance policies, BOAA shall
pay such increase to the Municipality.
Indemnification
34. Each of the Municipality and BOAA shall indemnify and save harmless the other from
and against any and all actions, losses, damages, claims, costs and expenses (including
solicitors' fees on a solicitor and client basis) to which the party being indemnified shall
or may become liable by reason of any breach, violation or non-performance by the party
so indemnifying of any covenant, term or provision of this Agreement or by reason of
any damage, injury or death occasioned to or suffered by any person or persons including
the Municipality or BOAA, as the case may be, or any property by reason of any
wrongful act, neglect or default on the part of the party so indemnifying or any of those
persons for whom it is in law responsible. For greater certainty, the limitation of liability
set out above in this section does not extend to claims, losses or damages resulting in
whole or in part from the gross negligence or wilful misconduct of the party claiming
indemnification, its employees or those for whom it is in law responsible.
PART 7 - REMEDIES
Municipality's Right to Remedy Default
35. In addition to all other remedies the Municipality may have under this Agreement and in
law, if BOAA is in default of any of its obligations under this Agreement, and such
default has continued for a period of 30 days after receipt of notice by BOAA (or such
longer period as may be reasonably required in the circumstances to cure such default,
except in an emergency where the Municipality will not be required to give notice), the
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Municipality, without prejudice to any other rights which it may have with respect to
such default, may remedy such default and BOAA shall be responsible for all such costs.
Waiver
36. No condoning, excusing or overlooking by the Municipality of any default, breach or
non-observance by BOAA at any time or times in respect of any covenant, obligation or
agreement under this Agreement shall operate as a waiver of the Municipality's rights
hereunder in respect of any continuing or subsequent default, breach or non-observance,
or so as to defeat or affect in any way the rights of the Municipality in respect of any such
continuing or subsequent default or breach, and no waiver shall be inferred from or
implied by anything done or omitted by BOAA save only an express waiver in writing.
PART 8 - MISCELLANEOUS
Quiet Enjoyment
37. The Municipality shall permit BOAA to peaceably possess and enjoy the Centre during
the Tenn without any interference from the Municipality, or any person lawfully
claiming by, from or under the.Municipality provided BOAA is not in default.
Right of Entry
38. BOAA agrees to permit the Municipality to enter the Centre during normal business
hours for the purpose of inspecting the same, and BOAA shall arrange for such entry at a
time convenient to both parties. The Municipality shall use its best efforts to minimize
the disruption to BOAA's operations during any such entry.
Signs
39. BOAA may only erect signs at the Centre with the Municipality's approval. All such
signs shall be removed from the Centre at the end of the Term.
Compliance with Laws
40. BOAA shall comply with all legal requirements (including statutes, laws, by-laws,
regulations, ordinances, orders, rules and regulations of every governmental authority
having jurisdiction) that relate to its use or occupation of the Centre.
Agreements
41. BOAA may enter into agreements for normal operating or administrative matters
respecting the Centre provided such agreements are consistent with the terms of this
Agreement. Without limiting the generality of the foregoing, the Municipality
acknowledges that BOAA shall be permitted to contract with the Lions Club of
Bowmanville for the provision of services to AGCO licensed events within the Centre.
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Bulk Purchasing
42. To the extent possible, the Municipality shall allow BOAA to participate in the bulk
purchase of any insurance, utilities, goods or other services.
Grant Requests j
43. On or before November 1st in each year, BOAA may prepare and submit for Council'8
consideration a grant request for the ensuing calendar year. Such requests shall include
financial statements from BOAA's previous fiscal year and current unaudited financial
statements.
44. If requested by the Municipality, as part of the review of any grant all minutes, books,
records, documents, transactions, accounts and vouchers of BOAA related to the grant
shall be open to the Municipality for inspection.
Entire Agreement
45. This Agreement and the Transition Agreement between BOAA and the Municipality
dated September 21, 2015 constitute the entire agreement between the parties concerning
the Centre and may only be amended or supplemented by an agreement in writing signed
by both parties.
Further Assurances
46. Both parties agree that they shall execute and deliver, at the request of the other party, all
such further documents, agreements and instruments, and will do and perform all such
acts as may be necessary to give full effect to the intent and meaning of this Agreement.
Registration
47. Neither this Agreement nor notice of it shall be registered against title to the Property.
Notices
48. All notices, communications and requests for approval which may be or are required to
be given under this Agreement shall be in writing and shall be mailed by first class
prepaid post, sent by e-mail or delivered:
To the Municipality: Municipality of Clarington
40 Temperance Street
Bowmanville, ON L 1 C 3A6
Attention: Municipal Clerk
Email: clerks L&larin gto�, n.net
To BOAA: Bowmanville Older Adult Association
26 Beech Avenue
Bowmanville, ON L1C 3A2
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Attention: Executive Director
Email: exec-director(t-i),bellnet.ca
or such other address or number of which either party has notified the other. Any such
notice shall be effective from the date that it is so mailed, emailed or delivered.
Governing Law
49. This Agreement shall be governed by, and be construed and interpreted in accordance
with, the laws of Ontario and the laws of Canada applicable in Ontario.
Approvals
50. Wherever an approval or consent is required to be given under this Agreement, the
consent or approval shall not be unreasonably withheld, delayed or conditioned, and any
withholding of approval or consent shall be accompanied by reasons therefor. The party
from whom an approval or consent is required shall, within 30 business days after the
request for approval or consent is received, advise in writing the party requesting such
approval or consent that it consents or approves, or that it withholds its consent or
approval.
Successors and Assigns
51. This Agreement shall extend, be binding upon and enure to the benefit of the parties,
their respective successors and permitted assigns.
Covenants
52. Each obligation in this Agreement, even though not expressed as a covenant, is
considered for all purposes to be a covenant. Each covenant is a separate and independent
covenant and a breach of covenant by any party shall not relieve the other parties from
their obligations to perform each of their covenants, except as otherwise provided in this
Agreement.
Severability
53. The invalidity or unenforceability of any provision in this Agreement shall affect the
validity or enforceability of such provision only and any such invalid provision shall be
deemed to be severable from the balance of this Agreement.
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IN WITNESS WHEREOF the Municipality and BOAA have executed this Agreement.
S
THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON
Mayor Adrian Foster
Anne Greentree, Municipal Clerk
BOWMANVILLE OLDER ADULT ASSOCIATION
Muriel Moynes, President
Alan Tibbles, Vice-President
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SCHEDULE "A"
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