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HomeMy WebLinkAboutTM-32-79 TM-32-79 TO: Chairman and Members of the Community Services Committee FROM: A. C. Culler, Town Manager DATE: March 12th, 1979 SUBJECT: Proposed By-Law No. 78-120 "Being A By-Law to authorize the entering into of an Agreement with the Northumberland and Newcastle Board of Education. " "Swimming Pool and Squash Courts" The above by-law with a proposed agreement was presented to Council for consideration on December 18th, 1.978 at which time the By-Law was tabled at second reading as notification was received that the Board of Education did not agree with the proposed terms of the agreement. On January 24th a meeting was held in Cobourg at which time the Board indicated they were not prepared to enter into a cost sharing arrangement for the maintenance of the proposed complex. The Board also stated they supported 'the building of the complex and would probably purchase time from the Town for school purposes. Based on the discussion at the meeting of January 24th the Town Nbnager was instructed to meet with the School Business Administrator and work out a suitable agreement. A meeting of staff of the Board and Council was held on March 7th, 1.979 and the attached agreement is a result of that meeting. We would recommend to Committee that this agreement be used as a basis of discussion at the next joint meeting, of the Town and the Board of Education. I THIS AGREEMENT made this day of 1979. BETWEEN: NORTHUMBERLAND AND NEWCASTLE BOARD OF EDUCATION, hereinafter called the "BOARD" -and- THE CORPORATION OF THE TOWN OF NEWCASTLE, hereinafter called the "TOWN" WHEREAS the Town wishes to construct an enclosed swimming pool and recreational complex for the use and enjoyment of the citizens of the Tom; and WHEREAS the Town shall bear the responsibility for and all costs of construction of the swimming pool and recreational complex; and WHEREAS the Board is the owner of the lands upon which it is proposed to construct the swimming pool and recreational complex; and WHEREAS the Board is prepared to convey to the Town the lands requisite for the construction of the swimming pool and recreational complex and to grant such licenses, easements and other privileges to permit the supply of services and public ingress and egress both during and after construction of the swimming pool and recreational complex; and W­HEI'.EAS the Town and the Board wish to enter into an agreement governing the transfer of lands, easements and licenses; the use of the swimming pool and recreational complex; NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises; the mutual covenants and agreements herein contained; and other good and val.uabl.e. consideration (the receipt and sufficiency whereof are hereby by each of the parties acknowledged) the parties hereto agree as follows: � -2- ' l) yocLhnLch following execution of this agreement, the Board shall convey to the ?own by deed in reDisLaru6le form for the mmn of IH0-------------($2.80)-------------DOLLARS the lands and premises more particularly shown as Part l on Schedule "A" hereto (hereinafter referred to an the Lands) . 2) Prior to Lhm calling for tenders for the construction of the awLnuniu& pool and recreational complex, the Town shall prepare plans' specifications and o time schedule for construction in consultation with the Dnac6. No tenders shall be called by the Town nor shall construction commence prior to approval of the plans and specifications by the Board and time mcbeJolc for couatcuction. 3) The Tbxm agrees to submit all amendments or alterations to the plans and specifications approval prior to implementation of any such amendments or alterations . 4) Forthwith following approval by the Board of the plans and specifications, the 7ono shall invite tenders for the construction of the swimming pool and recreational complex upon the lands in accordance with such plans and specifications. 5) The Town shall proceed as expeditiously as possible to construct, in u good and workmanlike manner, an enclosed swimming pool and recreational complex, including any modifications to the school which are necessitated by the construction of the complex, upon" the luu0m in accordance with the plans and specifications at its own and exclusive expense , 6) In the event that the ?nnn does not commence construction of an enclosed swimming pool and recreational complex within three (3) years of the date of execution of this agreement, the Town shall re-convey by deed in regintocu6Ie form' the lands, [coe from any excavations or unsafe atznotvze* to the Board for the sum of TWO-----------------($2.0O)--------DOLLARS and all the terms of this agreement shall become null and void and all rights, duties, privileges, easements and licenses sholl, be forthwith terminated. -3- 7) During the period of construction of the swimming pool and recreational complex the Board hereby grants to the Town, its servants, agents, contractors, sub-contractors or any of their employees, the right in the nature of a temporary easement, to enter in, or and upon all of the lands and premises of the Board adjacent to the lands and to arrange for or construct temporary structures or facilities and to excavate those portions of the Board' s property as may be requisite and necessary to enable the Town, its servants, agents, contractors, and sub-contractors to construct the swimming pool and recreational complex, provided however, the Town shall use its best endeavours to cause minimum disruption to the Board's property, structures, facilities and programs and provided further that at completion of the construction of the swimming pool and recreational complex or such earlier time as may be feasible the Town agrees to restore the Board's property, structures and facilities to the condition they were in prior to commencement of construction except to the extent that the plans and specifications provide that the Board' s property, structures or facilities are to be altered, 8) The Board hereby grants to the Town, its servants, agents, contractors, sub-contractors and all users of the swimming pool and recreational complex, the right and nature of a licence to across, over and upon the Board' s property and to park motor vehicles thereon; subject only to the rules and regulations which may from time to time be imposed by the Board pro- vided that such rules and regulations shall be no more onerous than those imposed upon the Board's employees and the general public using the Board' s facilities unless otherwise agreed by the parties hereto. 9) The Town hereby covenants and agrees to grade, level, construct and install no less than twenty (20) asphalt parking spaces within the confines of Part 5 shown on Schedule "A" hereto. 10) It is understood and agreed that when the swimming pool is in use by the Board, the Board shall have the right to use the change room facilities provided in the swimming pool and recreational complex, -4- 11) The operation, maintenance and caretaking of the swimming pool and recreational complex shall at all times be the responsibility of the Town. 12) The Town covenants and agrees to insure the complex against normal perils that are covered by fire and extended coverage in the amount that a prudent owner would normally purchase in the light of the replacement costs of the building and the Town shall provide the Board with proof of insurance from time to time as requested by the Board. The Town agrees to apply any proceeds paid to the Town pursuant to the insurance coverage on the said complex to the costs of the repairs and agrees to repair or cause to be repaired, at no expense to the Board, (unless otherwise agreed upon) any damage in excess of the insurance coverage or excluded by the policy. 13) Forthwith following execution hereof, each of the Town and the Board will arrange for endorsements to be added to the public liability and property damage insurance policies carried by them respectively which endorsements will provide for coverage at the swimming pool and recreational complex as their respective interests appear. 14) Each party shall be solely responsible for any claims which may arise during its respective use of the complex and each party hereby undertakes and agrees to indemnify and save harmless the other of and from all claims, demands, actions, and costs incidental thereto, that may he made or instituted by any person or persons with respect to damages or injuries that may be sustained to person and or property arising out of the use of any of the facilities by either of the said parties,their respective agents or users . 15) Each party may operate one or more programs during its period of use and the costs of preparing and operating the program of the respective parties referred to as their "program costs" shall be born by the respective parties and each party shall hire, employ, pay and assume full responsibility for all instructors, attendances, supervisory staff and shall insure --th-.1 L-sL-Ff ft-c—lenr- compet-e-n—t—,st a f-f- Ison -duty at-,A-11- times at -S- which it has exclusive use of the swimming pool. The term "program costs" shall encompass such costs as the salaries and other costs of providing the staff previously referenced, any specialized equipment and any other costs solely attributable to the program of that party. 16) Each party shall designate a liaison officer and notify the the other party of the liaison officer together with his address and telephone number; and each party shall notify the other party of any change with respect to its liaison officer. 17) The parties shall from time to time establish appropriate rules and regulations and the Town shall post the same and all instructors, attendants and other persons using the complex shall abide thereby. 18) The Town covenants and agrees with the Board as follows: (1) that it shall incorporate into any contract into which it enters for the construction of the swimming pool recreational. complex an undertaking by the contractor, that such contract will not endanger any structure, person or property owned by or under the control of the Board on the land adjacent to the site for the construction of the complex, and that, if any damage results to any structure or person owned by or under the control of the Board on adjacent land which is attributable to the construction of the complex, the contractor will make good any such damage, monetary or otherwise, to the satisfaction of the Board and the owner, or any person injured or a parent or guardian of any such person; and (ii) that it shall fully indemnify and save harmless the Board from any and all claims by the contractor or any sub-contractor pursuant to The Mechanics' Lien Act, R.S .O. 1970, c. 267 , as amended or otherwise. 6- 19) Any notice required to be given under this agreement shall be deemed to have been sufficiently given if sent by Registered Mail, postage prepaid, respectively addressed to: (a) The Northumberland and Newcastle Board of Education, 834 D'Arcy Street, P.O. Box 470, Cobo"rg, Ontario. (b) The Corporation of the Town of Newcastle, 40 Temperance Street, Bowmanville, Ontario. 20) That failure of either party at any time to require performance by the other party of any obligation under this agreement shall in no way effect its rights thereafter to enforce such obligation, nor shall the waiver by either party of the performance of any obligation hereunder be taken, or be held, to be a waiver of the performance of the same or any other obligation hereunder at any time. 21) All matters in difference in relation to this agreement and to the affairs of the swimming pool and recreational complex shall be referred to the arbitration of a single arbitrator, if the parties hereto agree upon one, otherwise to three arbitrators, one to be appointed by each party and a third to be chosen by the first two named before they enter upon the business of arbitration. The award and determination of such arbitrator or arbitrators or any, two of such three arbitrators, shall be binding upon the parties hereto and their respective heirs, executors, administrators and assigns. 22) The Town and the Board each covenant that they will comply with all municipal, provincial and federal laws and regulations Insofar as the same relate to their respective responsibilities hereunder. Further, the Town agrees to enact or amend all by-laws or otherwise carry out any necessary procedure to effectuate the transfers and construction provided for herein and shall. ensure now and in the future that neither this agreement nor the aforementioned conveyance shall conflict or cause the subject property of the Board or the buildings tliereon to conflict with any zoning by-law or any other by-law, resolution or plan. dj 23) The covenants, easements and restrictions set out in this agreement shall run with the property and enure to the benefit of and be binding upon all parties hereto and the respective successors and assigns . 24) This agreement may be altered or amended in whole or in part at any time, by filing with this agreement a written instrument setting forth such changes signed by the parties hereto. WITNESS the corporate seals of the parties hereto duly attested to by the hands of their proper signing officers in that behalf. NORTHUMBERLAND AND NEWCASTLE BOARD OF EDUCATION c/s THE CORPORATION OF THE TOWN OF NEWCASTLE c/s Ij