DATE: August 9, 2010 REPORT NO. EN2010-121 TO: FROM: CHAIR AND MEMBERS COMMITTEE OF THE WHOLE OPERATIONS AND ADMINISTRATION SANDRA LAWSON, P.ENG., GENERAL MANAGER, ENGINEERING & OPERATIONAL SERVICES. 1.0 TYPE OF REPORT CONSENT ITEM [ ] ITEM FOR CONSIDERATION [ X ] 2.0 TOPIC Joint Use Agreement Braemar House School and the City of Brantford 3.0 RECOMMENDATION A. THAT the Joint Use Agreement between Braemar House School and the City of Brantford, as attached to Report No. EN2010-121, BE APPROVED; and B. THAT the Mayor and Clerk BE AUTHORIZED to sign the agreement on behalf of the municipality; and C. THAT the agreement BE PLACED on the Signing By-law for presentation to Council. 4.0 PURPOSE To seek Council s endorsement of the use agreement related to the jointly constructed parking lot at Braemar House School and Grandwoodlands Park.
Date: August 9, 2010 Page 2 4.0 BACKGROUND Parking is often a problem in community parks, especially those that have sports fields and/or are adjacent to schools. In the case of Braemar House School and Grandwoodlands Park, both factors have contributed over the years to parking headaches for area residents, park users, parents and school bus drivers. The development of a joint parking lot at this location has largely resolved the parking concerns in this neighbourhood. The attached agreement formally sets out the rules for usage and care of the parking lot, which crosses the property line between the parcels of land owned by the school and the municipality. 5.0 CORPORATE POLICY CONTEXT Brantford s Community Strategic Plan-Shaping Our Future January 2006 Goal #4 Excellence in Governance & Municipal Management Brantford will be recognized as a fiscally responsible and well-managed city that provides efficient and effective government services. 7.0 INPUT FROM OTHER SOURCES The attached agreement was prepared by Legal staff based on input from the Executive Director at Braemar House School, as well as Parks and Recreation staff. 8.0 ANALYSIS In order to resolve parking concerns being experienced by both the school and the Parks and Recreation Department, a parking lot to serve the needs of both agencies was designed and constructed. The parking lot costs were shared by both agencies with an understanding that other costs associated with maintenance would also be shared. The agreement prepared by the City s Legal staff sets out the roles and responsibilities and essentially is the final piece of the partnership. 9.0 FINANCIAL IMPLICATIONS There will be no additional costs to the City as a result of the agreement as the parking lot maintenance as set out in the agreement has already been factored into the appropriate City operating budget. 10.0 CONCLUSION The joint use and operational model for this parking lot is a cost effective operating model and one that Parks and Recreation staff will continue to pursue wherever practical.
Date: August 9, 2010 Page 3 M. Sinclair Sandra Lawson, P.Eng., Director of Parks and Recreation General Manager Engineering & Operational Services Attachment: Agreement for Joint Use of Parking Lot with Braemar House In adopting this report, is a by-law or agreement required? If so, it should be referenced in the recommendation section. By-law required [ ] yes [ x ] no Agreement(s or other documents to be signed by Mayor and/or City Clerk [ x ] yes [ ] no Is the necessary by-law or agreement being sent concurrently to Council? [ x ] yes [ ] no
Date: August 9, 2010 Page 4 AGREEMENT FOR THE JOINT USE OF PARKING LOT MADE THIS DAY OF 2010. B E T W E E N: BRAEMAR HOUSE SCHOOL (hereinafter called the "School - and - THE CORPORATION OF THE CITY OF BRANTFORD (hereinafter called the "City" OF THE FIRST PART OF THE SECOND PART WHEREAS the City and the School entered into a Letter of Understanding dated November 9, 2005 that acknowledged the contributions of both parties towards the development and maintenance of a joint use asphalt parking lot (the Parking Lot located partly on School property at 36 Baxter Street and partly on City property at Grandwoodlands Park located at 20 Baxter Street, as shown on the map attached herein as Schedule A ; and WHEREAS it is the wish of the City and the School to mutually use the Parking Lot for the maximum benefit of the community; WHEREAS the parties wish to enter into an agreement respecting the maintenance and shared use of the Parking Lot; NOW THEREFORE IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS: 1. GRANT OF LICENSE (1 The City grants a licence to the School, its representatives, employees, contractors, invitees and licensees providing the non-exclusive right to enter upon and use that portion of the Parking Lot on City property ( City Parking Lot during the times outlined in the attached Schedule B for the purpose of providing parking for vehicles being used in conjunction with the activities taking place at the School. (2 The School grants a licence to the City, its representatives, employees, contractors, invitees and licensees, providing the non-exclusive right to enter upon and use that portion of the Parking Lot on School property ( School Parking Lot during the times outlined in
Date: August 9, 2010 Page 5 the attached Schedule B for the purpose of providing parking for vehicles being used in conjunction with the activities taking place at Grandwoodlands Park. (3 The School and the City shall be entitled to have the use of their respective portion of the Parking Lot notwithstanding the rights granted to each other pursuant to this Agreement. (4 Notwithstanding the provisions of Section 1, provided there is a School function or activity planned for a particular time, the Executive Director of the School shall have the right, upon provision of ten (10 days' advance notice to the City, to restrict vehicular access to the School Parking Lot for not more than two (2 consecutive days or evenings, provided that access to the City Parking Lot is not restricted and at least some vehicular access to the School Parking Lot remains available for the use of the City or its representatives, employees, contractors, invitees and licensees during such times. (5 Notwithstanding the provisions of Section 1, provided there is a City function or activity planned for a particular time, the City shall have the right, upon provision of ten (10 days' advance notice to the School, to restrict vehicular access to the City Parking Lot for not more than two (2 consecutive days or evenings, provided that access to the School Parking Lot is not restricted and at least some vehicular access to the City Parking Lot remains available for the use of the School or its representatives, employees, contractors, invitees and licensees during such times. (6 The parties acknowledge that changes or alterations to the Parking Lot will impact upon their licensing activities. Accordingly, the parties shall provide each other with not less than two (2 months' advance notice of any permanent change or alteration to their portion of the Parking Lot that will interrupt or diminish the other party s use of the Parking Lot. (7 Each party shall not have the right, without the express written permission of the other party to this Agreement to erect any fixture or to install any service, structure or facility upon the Parking Lot. (8 Each party shall have the right upon advance written permission of the other Party to install temporary services, structures or facilities upon the Parking Lot, provided such services, structures or facilities do not diminish the use of the Parking Lot by the other party hereto and provided they are removed at the expense of the party requesting the installation or its representatives, employees, contractors, invitees and licensees. (9 It is acknowledged and agreed that any licence granted in this Agreement shall be subject to the provisions of the School s and the City s policies which prohibit smoking and alcohol use on all lands owned by them respectively. (10 Nothing in this Agreement shall be construed as conferring upon the parties, property rights in the land or fixtures of the Parking Lot, with the limited exception of the licences granted pursuant to this Agreement.
Date: August 9, 2010 Page 6 2. TERM The term of this Agreement shall be five (5 years and this Agreement may be extended as of right by the School and the City, provided neither entity is in breach of this Agreement, for a further term of five (5 years by the provision of notice of extension at any time during the final year of the initial term. 3. SCHEDULING The licences granted by this Agreement shall be subject to the right of the School and the City to provide each other not later than June 30th of each calendar year with a schedule of required dates, attached hereto as Schedule B, between September 1 of each year and August 31 of the subsequent year. The use of the Parking Lot by the City will take place during weekends, holidays and after 6:00 p.m. on regular school days. The use of the Parking Lot by the School will take place on regular school days until 6:00 p.m. 4. SECURITY Each party will take such measures as are reasonably necessary to maintain security at the Parking Lot. 5. TRESPASS TO PROPERTY Each party shall take such steps, as it deems appropriate, to ensure that its invitees abide by applicable laws. Notwithstanding the foregoing, the parties reserve the right, acting reasonably, to deny access to their portion of the Parking Lot to any person, group or association that has demonstrated disregard for applicable laws. Each party appoints the other party hereto, its Council, Board, officers, employees, agents and persons for whom it is in law responsible as agents with full authority to enforce the provisions of the Trespass to Property Act, 1990, while using or occupying the Parking Lot of the appointing party pursuant to the terms and provisions of this Agreement. Each party shall indemnify the appointing party against any and all demands, claims, damages, actions, causes of actions and costs thereof arising out of the enforcement or attempted enforcement of the Trespass to Property Act, 1990, by the party, its Council, Board, officers, employees, agents and persons for whom it is in law responsible while using or occupying the Parking Lot of the said appointing party. 6. MAINTENANCE AND REPAIRS The parties agree to repair and maintain the Parking Lot, consistent with the level of repair and maintenance of first class facilities of a similar nature in the City of Brantford. The parties agree that they shall share expenses for the full cost of all repairs and
Date: August 9, 2010 Page 7 maintenance for the Parking Lot Contracts for the repair and maintenance of the Parking Lot shall be tendered by the City following consultation with the School as to specifications, the form of tender, selection criteria, and other relevant considerations. For purposes of this section, the terms "repair", "maintain" and "maintenance" mean snowplowing, line painting, sweeping, and asphalt repairs and reconstruction on an as-needed basis. In the event that: (i The parties are unable to agree upon specifications, the form of tender, selection criteria or other relevant considerations pursuant to this Section 6; or, (ii Either party gives notice to the other that it wishes to terminate the cost-sharing arrangements in this Section, the cost sharing arrangements in this Section shall, in the case of (i above, terminate immediately and, in the case of (ii above, terminate on the date which is six months following the date on which the notice was received. Where the cost sharing arrangements in this section have been terminated, each party shall be solely responsible for the repair and maintenance of its portion of the Parking Lot to the level of repair and maintenance of first class facilities of a similar nature in the City of Brantford, at its expense. 7. USE OF PREMISES The Parking Lot shall not be used for any purpose other than as a parking lot, or such other uses as may have been specifically approved by each party. The parties shall have the right to arbitrarily refrain from consenting to any such other uses. Each party will not do or omit or permit to be done or omitted upon or about the Parking Lot anything which shall result in a nuisance or menace to the other party or to owners or occupiers of neighboring premises, provided that normal use of the Parking Lot for the purposes hereunder shall not be deemed to be a nuisance. 8. GARBAGE Each party shall keep their portion of the Parking Lot well maintained, in a reasonably clean and tidy condition, and in such a condition, as a careful owner would do, at its sole expense. Each party shall be responsible for any and all disposal containers for all waste involved in use of the Parking Lot. 9. PUBLIC ORDERS Each party shall, at its own expense, observe and promptly comply with all statutes, orders-in-council, by-laws, rules, regulations and requirements of all federal, provincial and municipal governments and appropriate departments (including contracted enforcement personnel thereof, and the orders, rules and regulations of the board of fire underwriters, technical standards association, and any other body thereafter
Date: August 9, 2010 Page 8 constituted exercising similar functions which may be applicable to the Parking Lot and/or the use or manner of use of the Parking Lot. 10. INSURANCE Each party shall obtain the following insurance: Commercial General Liability Insurance, insuring against damage or injury to persons, including death or property with limits of not less than $5,000,000.00 per occurrence or such greater amount as each party may from time to time request or other types of policies appropriate to the Agreement as each party may reasonably require. The insurance policy shall: (a Include as additional insured The Corporation of the City of Brantford and Braemar House School ; (b Contain a cross-liability clause, severability of interests clause endorsement; (c Contain a clause including Contractual Liability coverage arising out of the contract or agreement; (d Proof of insurance will be submitted by way of an executed Certificate of Insurance in a form satisfactory to the City and the School prior to execution of the agreement, each year or ten (10 days prior to renewal of policy. All requested lines of coverage to be shown on the Certificate; (e If cancelled or changed in any manner, that would affect the City and the School as outlined in coverage specified herein for any reason, thirty (30 days prior written notice by mail or facsimile transmission will be given by the insurer(s; (f It shall be the sole responsibility of each party to determine what additional insurance coverage, if any, is necessary and advisable for its own protection and/or to fulfill its obligation under this Agreement. Any such additional insurance shall be maintained and provided at the sole expense of each party; (g The Policy will be recorded as being a primary policy and shall be in a form and issued by an insurance company satisfactory to each party, that is licensed to carry on business in Ontario; (h Provide for a deductible amount of no greater than $10,000, which will be the sole responsibility of the insured for all policies under this Agreement. All requested lines of coverage shall be shown on the Certificate of Insurance; 11. OBLIGATION TO INDEMNIFY Each party hereby indemnifies and holds harmless the other party, its Mayor, Councillors, Board, officers, employees, agents, representatives, contractors or licensees, successors and assigns, against any and all demands, all liabilities, losses, damages, actions, causes of action, charges, fees, costs, harm or claims whatsoever arising in respect of the use of the Parking Lot pursuant to this Agreement by that party, or in respect of any rights and obligations of the parties contained in or arising from this Agreement, except where such liability, losses, harm or claims are caused by virtue of the negligence of either of the parties or their Mayor, Councillors, Board, officers, employees,
Date: August 9, 2010 Page 9 agents, representatives, contractors, licensees, successors and assigns, or in respect of any loss, damage or injury (including injury resulting in death: (a to any person or property (including, without restricting the generality of the foregoing, officers, employees, agents, representatives, subcontractors, licensees, and property of each party directly arising out of, resulting from or sustained by reason of the use of the Parking Lot by the indemnifying party, or any operation in connection therewith or any fixtures or chattels thereon; or (b to any person in the course of that person's entry onto or exit from the Parking Lot in connection with the use of the Parking Lot by the indemnifying party. 12. NOTICE Any notice to be given pursuant to this Agreement shall, unless otherwise specified in this Agreement, be delivered or sent by registered letter or facsimile transmission to the City and the School as follows: Braemar House School: 36 Baxter St Brantford, Ontario N3R 2V8 City: City of Brantford c/o Parks and Recreation, 1 Sherwood Drive, Brantford ON N3T 1N3 or to such other address as the parties may respectively from time to time appoint in writing, and any such notice, if mailed, shall be conclusively deemed to be received by the other party ten (10 business day after the date of the mailing of such notice, or transmission of a facsimile. 13. TERMINATION Any party to this Agreement may terminate this Agreement upon provision of six (6 months' notice to the other party. 14. ARBITRATION In the event of a dispute with respect to any matter arising out of this Agreement, which has not been resolved by the parties such dispute shall be referred to arbitration in accordance with the Arbitration Act, 1991. 15. ASSIGNMENT AND SUBLETTING Neither party may assign this agreement without the approval of the other party in writing, which approval may be arbitrarily withheld.
Date: August 9, 2010 Page 10 16. INVALIDITY OF PROVISIONS If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to person through circumstances other than those as to which it is held invalid and unenforceable, shall not be affected thereby. 17. WAIVERS, CUMULATIVE REMEDIES Any condoning, excusing or overlooking by either party of any default, breach or nonobservance by the other party at any time or times in respect of any covenant, proviso, or condition herein contained shall not (any law, statutory or otherwise to the contrary notwithstanding operate as a waiver of the first-mentioned party s rights hereunder in respect of any continuing or subsequent default, breach or non-observance, nor so as to defeat or affect in any way the rights of such first-mentioned party hereunder in respect of any such continuing or subsequent default, breach or non-observance and all rights and remedies herein contained of such party shall be deemed to be cumulative and not alternative and the taking of any proceeding or step shall not preclude the taking of any other proceeding or step. 18. WHOLE AGREEMENT This Agreement and the schedules annexed hereto and forming a part hereof, set forth all of the covenants, promises, agreements, conditions and understanding between the parties concerning the demised premises and there are no covenants, promises, agreements, conditions or understandings either oral or written, between them other than as herein set forth. Except as herein otherwise provided, no subsequent alteration, amendments, change or addition to this Agreement shall be binding upon the parties unless reduced to writing and signed by both of them. It is further understood and agreed that all of the agreements and provisions contained in this Agreements are to be construed as covenants on the part of the party so agreeing to them. 19. BINDING UPON SUCCESSORS AND ASSIGNS The terms, covenants, and conditions of this Agreement shall be binding upon and shall enure to the benefit of each of the parties hereto and their respective heirs, personal representatives, successors or assigns. 20. RELATIONSHIP OF THE PARTIES The parties to this Agreement are not in a partnership relationship or a joint venture and neither party shall have the capacity to bind the other or incur liability on behalf of the other.
Date: August 9, 2010 Page 11 21. FORCE MAJEURE In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock-outs, labour troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be excused for the period of the delay and the period for the performance of such act shall be extended for a period equivalent to the period of such delay. 22. PROPER LAW This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by, the laws of the Province of Ontario. 23. TIME OF THE ESSENCE Time shall be of the essence of this Agreement and every part hereof. IN WITNESS WHEREOF the parties hereto have hereunto set their corporate seals duly attested by the hands of their proper signing officers in that behalf. SIGNED, SEALED AND DELIVERED BRAEMAR HOUSE SCHOOL in the presence of: Witness Board Chair Executive Director THE CORPORATION OF THE CITY OF BRANTFORD Mike Hancock, Mayor Darryl Lee, City Clerk
Date: August 9, 2010 Page 12 SCHEDULES A AND B
Date: August 9, 2010 Page 13 Appendix SCHEDULE A
Date: August 9, 2010 Page 14 SCHEDULE B This schedule is to be used in the event that either party wishes to amend Section 3- Scheduling of this agreement. The following revisions are hereby requested by Proposed Dates Times Duration Received by Date Any requests to extend the terms of Section 3 Scheduling are to be provided to the other party no later than June 30 th of the calendar year.