Attachment A Page 1 of 11 LICENSE AGREEMENT. THIS AGREEMENT made as of the day of 2009.

Transcription

1 Attachment A Page 1 of 11 LICENSE AGREEMENT THIS AGREEMENT made as of the day of BETWEEN: THE CORPORATION OF DELTA, a municipal corporation under the Community Charter having an address at 4500 Clarence Taylor Crescent, Delta, British Columbia V4K 3E2 ("Delta") AND: BOYS & GIRLS CLUB COMMUNITY SERVICES OF DELTA/ RICHMOND, a society having incorporation number S and an address at Avenue, Suite 301, Delta, British Columbia V4C 3C6 (the "Licensee") WHEREAS: A. Delta is the registered owner of those lands located in the Municipality of Delta, in the Province of British Columbia, which are described on Schedule A hereto ( the "Lands"); B. The Licensee is a not-for-profit community service organization that organizes and provides services to families, children and youth in the Municipality of Delta; C. In connection with the delivery of services and the fulfillment of its mandate, the Licensee wishes to use that square metre portion of the Lands shown outlined and hatched on Schedule B (the "Garden"); D. Delta has agreed to grant to the Licensee certain rights of occupation relating to the Garden and the Municipal Council of Delta, by resolution made on the _ day of 2009, has authorized Delta to grant to the Licensee the rights in respect of the Garden set out in this Agreement; NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by the parties hereto), Delta and the Licensee hereby agree as follows. 1. Grant of License Subject to the terms and conditions of this Agreement, Delta hereby grants to the Licensee a non-exclusive license of occupation ( the "License") of the Garden for a term of two (2) years, commencing the day of, 2009 and terminating on the day of 20_ (the "Term").

2 2 Attachment A Page 2 of 11 The Licensee will have the right during the Term to use the Garden from dawn to dusk each day. In the event of an emergency, Delta may pre-empt the Licensee's programming without advance notice. The Licensee will also have the right to pass and repass over the Lands, on foot and with equipment, but without vehicles, in order to obtain access to and egress from the Garden. 2. Purpose The Licensee shall use the Garden only for the purpose of operating a garden and/or for other purposes necessary or incidental thereto, and for no other purpose without the prior written consent of Delta. 3. Renewal 3.1 Subject to any right of termination contained in this Agreement, the Licensee may, at its option, renew the License for three (3) one (1) year Terms, commencing on the first day after the expiry of the Term, if it has: (a) not, in the opinion of Delta, materially breached any provision of this Agreement during the Term; and (b) provided to Delta notice of its exercise of this option to renew no later than six (6) months before the conclusion of the Term. 3.2 The terms and conditions set out in this Agreement shall apply to any renewal of the License pursuant to this Section, except that no additional right of renewal will be granted to the Licensee and the License Fee (as hereinafter defined) payable by the Licensee to Delta for the Renewal Term shall be as determined by Delta in accordance with its then current Fees and Charges Bylaw. 4. License Fee In consideration of the License granted herein, the Licensee shall pay to Delta the sum of $1.00 per year. 5. Management of the Garden; Licensee Covenants 5.1 Subject to the terms and conditions set forth in this Agreement, as set forth in Section 7, the Licensee will be responsible for, and will take all steps necessary in connection with, the day-to-day operation and management of all facets of the Garden for the duration of the Term and will pay all costs, charges and expenses related thereto. Without limiting the generality of the foregoing, the Licensee hereby covenants: (a) to place all garbage from the Garden neatly into Delta's garbage bins, and pay all costs associated with same; (b) to obtain and maintain all licenses, approvals and permits required by any statutory authority in connection with the Licensee's activities and its use and occupation of the Garden; F:\ADMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

3 3 Attachment A Page 3 of 11 (c) to be responsible for, and to take all steps necessary in connection with, the general care, custody and control, and the securing and safeguarding of the Garden and its contents at all times during the Term; (d) to perform and bear the cost of all repairs and maintenance of the Garden as necessary to keep the same in a good state of repair and operation and to bear all operating costs relating to the Licensee's use and occupation thereof; (e) to at all times keep the Garden and every part thereof in a clean, healthy, sanitary and tidy condition acceptable to Delta and not to permit waste, paper, garbage, ashes or objectionable material to accumulate on the Garden; (f) (g) not to cause or permit any waste, paper, garbage, ashes or objectionable material to be placed on the Lands; to be responsible for all equipment used by the Licensee and/or any of its agents, servants, members or invitees on the Garden; (h) if any graffiti is sprayed or painted on the Garden, or any other vandalism of the Garden occurs, to act in a timely manner to return the Garden to a clean and tidy condition; (i) (j) to permit Delta at all reasonable times, and so as not to unreasonably interrupt activities carried out on the Garden, to enter upon and view the state of repair of the Garden and to comply with all reasonable requirements of Delta regarding or arising from the same; not to construct, maintain, use or permit to be constructed, maintained or used upon the Garden or the Lands, any structure or improvement of any kind whatsoever without first obtaining the written consent of Delta, which consent may be withheld by Delta in its sole discretion; (k) to ensure that all alterations, additions, improvements and renovations permitted to the Garden or the Lands, and all structures and improvements constructed, maintained or used upon the Garden or the Lands comply with all applicable statutes, regulations and bylaws of any relevant municipal, provincial, federal or other governmental authority, and the Licensee covenants to obtain at its cost all requisite permits and approvals in connection therewith; (I) (m) to under no circumstances cause the removal or demolition in whole or in part of all or any part of the Garden, without the prior written consent of Delta, which consent may be withheld by Delta in its sole discretion; to observe, abide by and comply with all laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority in any way affecting the Garden or the use or occupation thereof by the Licensee and not to carry on any activity on the Garden that may result in injury, increase the hazard of fire or liability of any kind, or increase the premium rate of insurance against loss by fire or liability upon the Lands, or cause the cancellation or invalidation of any policy of insurance of any kind upon or in respect of the same, nor shall the Licensee bring any explosive or inflammable materials on the Garden; F:\ADMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

4 4 Attachment A Page 4 of 11 (n) to promptly pay all accounts, charges and expenses as they become due for any labour performed on or material supplied to the Garden and not to suffer or permit any lien to be filed or remain registered against the title to the Lands as a result of anything done in the Garden by the Licensee or its employees, agents, invitees or members, except as expressly ordered or authorized by Delta; (o) on the expiry or earlier termination of the License, to peaceably quit, surrender and deliver to Delta possession of the Garden, together with all fixtures and erections therein or thereon, all in good and substantial order, repair and condition relative to the age thereof and in a safe, clean, tidy and sanitary condition, and to remove all rubbish and waste material from the Garden and deliver to Delta all keys to the Garden that the Licensee has in its possession; and (p) not to do or permit or suffer to be done on the Garden anything that may be or become a nuisance or which may be offensive or in contravention to municipal, provincial or federal laws. 5.2 The Licensee acknowledges and agrees that any improvements that the Licensee may, with permission from Delta, construct, install or locate upon the Garden from time to time, and all alterations, additions and improvements thereto, will be fixtures on the Lands and the absolute property of Delta, except that structures that are placed on the Garden by the Licensee, but not permanently affixed thereto may be removed by the Licensee at the expiry or other termination of the License, provided that the Licensee restores the Garden to good condition following such removal in accordance with this Section Delta Covenants [Intentionally deleted] 7. Insurance 7.1 The Licensee shall obtain from a company duly registered and authorized to conduct insurance business in Canada, and shall maintain in full force and effect during the Term all insurance required to be obtained by it pursuant to this Agreement. Adequate proof of such insurance shall be provided to Delta at the commencement of the Term and upon each change in or renewal or extension of coverage. The parties agree that: (a) the Licensee shall purchase and maintain comprehensive general liability insurance naming Delta as an additional insured and covering liability to third parties for bodily injury or death, property damage and unlicensed vehicle and attached equipment operations. This insurance shall be an all risk, occurrencebased policy with a limit of not less than $5,000,000 per occurrence and a deductible not greater than $1,000 and shall include a cross-liability clause; (b) the Licensee shall purchase and maintain tenant's legal liability insurance in the amount of at least $5,000,000, with a deductible not greater than $1,000; (c) the Licensee shall ensure that vehicles owned and/or operated by it in connection with this Agreement attach third party automobile liability insurance in an amount not less than $5,000,000 per occurrence; F:\ADMIN\ Leases and agreements \Agreements\ Boys and Girls Club Community Svcs of Delta Richmond \ Errol Wintebute Garden \Vegetable Garden 2.doc

5 5 Attachment A Page 5 of 11 (d) the Licensee shall obtain and maintain such other insurance in connection with its use and occupation of the Garden hereunder as Delta may from time to time reasonably require. 7.2 Each policy of insurance obtained by the Licensee pursuant to Section 7.1 must include a provision that such insurance may not be cancelled without providing to Delta no less than thirty (30) days advance notice thereof. 7.3 The Licensee acknowledges and agrees that should the Licensee at any time during the Term fail to maintain insurance as required by Section 7.1, Delta, though not obliged to do so, may obtain and/or maintain such insurance in such amount or amounts, with such deductible amounts and for such period or periods of time as Delta deems advisable and the Licensee shall, upon Delta obtaining any such insurance, pay to Delta such amounts as Delta has expended for such insurance within thirty (30) days after receipt of any invoice from Delta. 8. Indemnity 8.1 The Licensee hereby releases Delta and each, any and all of its elected officials, officers, servants, agents and employees (collectively, the "Delta Group") from, and hereby covenants and agrees to indemnify and save harmless the Delta Group against any and all manner of liability, actions, causes of action, prosecutions, claims, fines, demands, damages, losses, costs or expenses for economic loss, property damage, personal injury including death, in any way occurring, and by whomsoever made, brought or prosecuted, which the Delta Group or the Licensee or its officers, servants, agents, employees, contractors, invitees, licensees and guests may sustain or be put to, in any manner based upon, arising out of or attributable to: (a) the execution of this Agreement; (b) any act or omission of the Licensee or its officers, servants, agents, employees, contractors, invitees, licensees or guests; (c) any neglect or non-compliance on the part of the Licensee or its officers, servants, agents, employees, contractors, invitees, licensees or guests with the terms, conditions or provisos of this Agreement; (d) breach of any bylaw, statute or regulation; (e) any latent or apparent defect in the Lands or the Garden; or (f) the Licensee's occupation or use of the Lands and the Garden; including all costs, counsel fees, expenses and liabilities incurred from, or in relation to, any such claim or any action or proceeding or prosecution brought thereon. 8.2 The Licensee further agrees that the Delta Group shall not be liable for, and the Licensee hereby releases the Delta Group from all claims related to, any loss or damage sustained by the Licensee resulting directly or indirectly from: (a) the Garden being inaccessible for any period during the Term for the purpose of repairs, maintenance, cleaning or any similar purpose; (b) the exercise by Delta of its pre-emption rights as set forth in Section 1 above; or (c) any matters beyond the control of Delta. F:\ADMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

6 6 Attachment A Page 6 of The obligation of the Licensee to release, indemnify and save harmless the Delta Group under the provisions of Sections 8.1 and 8.2 shall survive any expiration, cancellation or termination of the License or this Agreement. 9. Events of Default 9.1 Delta may forthwith terminate this Agreement and the License and take full possession of the Garden without further notice to the Licensee and without prejudice to any other right or remedy to which Delta may be entitled if: (a) any amount due from the Licensee to Delta under this Agreement is in arrears and is not paid within thirty (30) days after written demand by Delta; (b) the Licensee has breached any of its obligations under this Agreement, other than payment of any amounts due from the Licensee, and after thirty (30) days notice in writing from Delta the Licensee fails to remedy such breach or, in the case of a failure which cannot with due diligence be cured within such thirty (30) day period, if the Licensee shall not promptly proceed to cure the same and thereafter prosecute such curing with diligence, it being intended in connection with a failure not capable of being cured within such thirty (30) day period that the time within which the Licensee shall have to cure the same shall be extended for such period as may be reasonably necessary to cure the same with diligence; (c) the Licensee fails to promptly and faithfully comply with the directions, rules and regulations of Delta within thirty (30) days of the Licensee having received such directions, rules and regulations; (d) a creditor of the Licensee executes or attaches the License or any of the goods and chattels, improvements or fixtures erected or placed by the Licensee in or upon the Garden and the same is not stayed within thirty (30) days; (e) the Licensee makes any assignment for the benefit of creditors, or becomes insolvent or bankrupt or ceases to function or if proceedings are commenced to wind up the Licensee or if it is struck from the corporate register by the Registrar of Companies for any reason; (f) a liquidator or a receiver or a trustee in bankruptcy is appointed for or in relation to the Licensee under the Bankruptcy and Insolvency Act or the Companies' Creditors Arrangement Act or any law of Canada or any province thereof relating to bankruptcy or insolvency if such appointment is not vacated or terminated within thirty (30) days or stayed on appeal; or (g) without Delta's approval, this License or Agreement is assigned or the controlling shares of the Licensee are disposed of or the control of the Licensee is changed. 9.2 The Licensee hereby waives all claims for damages to or loss of any of the property of the Licensee caused by Delta taking possession of the Garden pursuant to Section 9.1 or Section 10 and no action taken by Delta pursuant to Section 9.1 or Section 10, whether by summary or other proceedings, shall be deemed to absolve or relieve the Licensee from its obligations hereunder. F:\ADMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

7 7 Attachment A Page 7 of Termination Without prejudice to any right or remedy Delta may have in the event of any default by the Licensee and notwithstanding any rights or obligations of Delta herein, either party may terminate this Agreement and the License without cause on ninety (90) days written notice to the other party. 11. Non - liability in the Event of Labour Disruption The Licensee acknowledges that the Lands on which the Garden is located are maintained by union personnel and as such, the Garden may be affected from time to time by any labour disruptions affecting Delta. The Licensee hereby waives all claims for damages or loss, economic or otherwise, suffered by the Licensee as a result of any such labour disruption or associated union activity in or around the Lands. 12. Damage or Destruction If, during the Term the Garden or any part thereof is destroyed or damaged, the Licensee will have the right to restore the same at its sole cost, provided the Licensee gives to Delta, within one month following the date of such damage or destruction, notice that the Licensee intends to restore the Garden pursuant to this Section. If the Garden is damaged or destroyed and the Licensee fails or neglects to give Delta such notice, the Licensee will vacate the Garden two months following the date of such damage or destruction and the License herein shall be terminated. 13. Assignment or Change of Control During the Term the Licensee will not: (a) assign this Agreement or the License; (b) allow any other person to manage the whole or any part of the Garden; or (c) sell, transfer or otherwise dispose of its shares or by any other means, change the control or beneficial ownership of the Licensee, without first obtaining the written consent of Delta, which may be withheld for any reason or may be granted subject to such conditions as Delta considers appropriate. 14. Notice Any notice or payment required or permitted by this Agreement to be given shall be in writing and shall be deemed to have been duly given if delivered by hand, mailed or sent by prepaid registered mail, addressed as follows: F:\ADMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

8 8 Attachment A Page 8 of 11 (a) if to Delta: THE CORPORATION OF DELTA 4500 Clarence Taylor Crescent Delta, British Columbia V4K 3E2 Attention: Director of Parks, Recreation & Culture (b) if to the Licensee: BOYS & GIRLS CLUB COMMUNITY SERVICES OF DELTA/RICHMOND Avenue, Suite 301 Delta, British Columbia V4C 3C6 Attention: or to such other address as any party may from time to time advise the other party in writing. Any such notice shall be deemed to have been given and received, if delivered, when delivered and if mailed, on the third business day after the mailing thereof in any government post office in the Province of British Columbia, provided that if mailed and after the time of mailing there shall be any slowdown, strike or labour dispute that might affect the delivery of such notice, then such notice shall be effective only if actually delivered. 15. Miscellaneous 15.1 The Licensee is not granted and does not hereby acquire any right or interest whatsoever in the Garden or the Lands This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein No term, condition, covenant or other proviso herein shall be considered to have been waived by any party unless such waiver is expressed in writing by that party and no such waiver shall be construed as or constitute a waiver of any further or other breach of the same or any other term, condition or proviso The terms and provisions of this Agreement shall extend to, be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns Time is of the essence of this Agreement This Agreement constitutes the entire agreement between the parties regarding the use of the Lands and the Garden by the Licensee and shall not be modified or amended except by a written document executed and delivered by both parties hereto This Agreement may be executed in counterparts, which counterparts will together comprise one and the same instrument. F:WDMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute Gard en\vegetable Garden 2.doc

9 9 Attachment A Page 9 of 11 IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written. BOYS & GIRLS CLUB COMMUNITY SERVICES DELTA / RICHMOND, by its authorized signatory: Name: THE CORPORATION OF DELTA, by its authorized signatories: Mayor Lois E. Jackson Claudia Jesson, Acting Municipal Clerk F:WDMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

10 Attachment A Page 10 of 11 SCHEDULE A THE LANDS The Lands are those lands: 1. located at Avenue in the Municipality of Delta, in the Province of British Columbia, which lands and Lands are legally described as: Parcel Identifier No.: Legal Description: Lot 1 District Lot 106 Group 2 New Westminster District Plan BCP15153 F:\ADMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

11 Attachment A Page 11 of 11 SCHEDULE B THE GARDEN 4.61-t tr Q Ili W,,} Recreation Centre F:WDMIN\Leases and agreements\agreements\boys and Girls Club Community Svcs of Delta Richmond\Errol Wintebute

12 Bcys & Girls Club Community Services of Delta!Richmcnd Attachment B Page 1 of 1 Julie Halfnights Municipal Wide Services Analyst Parks. Recreation & Culture 4500 Clarence Taylor Crescent Delta, BC V4K 3E2 jalfnights@cord.delta.bc.ca F: February 9, 2009 Dear Julie, I am writing to express not only my thanks but also a plan to facilitate an event on April 4t" between the Boys and Girls Club Wintemute site, the Kiwanis Club and McKee house. We were approached by the Kiwanis club to be part of a North America 'one day' event which coordinates a 'days of caring' program. We have been selected by the Kiwanis club to be the primary benefactor of the event, however as part of their mandate to work with seniors I saw it as an excellent opportunity to bridge this possibility with McKee house. I met with Jan Wilson on February 4'h to discuss the project. From this conversation a number of ideas were generated, but I was happy to see that I have her full support on the project. I have submitted the project idea to the Kiwanis club to not only spend the day beautifying the landscape afencing the Wintemute, but also to suggest building a small vegetable garden along the playground 9 on park property adjoining Wintemute and Mckee house. If the Kiwanis accepts this project to partner with us on, then we will advise you of this decision. In the meantime if I could request approval of the project from Delta Parks. Recreation & Culture it would be greatly appreciated. In turn, as requested I have outlined below the following points: The work will take place April 4`" between 9am-5pm The work will be done by Kiwanis Club, BGCCS staff, member and community volunteers The project will be paid for through a grant from The Kiwanis Club BGCCS will take full responsibility for it's maintenance. BGCCS will take full responsibility to remove the garden if it should fail The proposal is to build a raised vegetable garden approximately 2-3 feet high, feet long and 3-4 feet wide. A sketch of the garden in the approximate area is included (attachment). If you have further question feel free to me at JohnT(a beccs.bc.ca Sincerely John Thornburr. Manager, Child and Youth Services th Avenue, Suite 301 Delta, British Columbia A good place to be V4C 3C6 Registered Chantabie O ga za ' on No 8409&387CRR00?' T F