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2000-039 To enter into a Special Undertaking (License Agreement) between the Simcoe County District School Board and The Corporation of the Township of Oro-Medonte , t -Ow r~ ,'. . . e . '\..... THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2000- 39 Being a By-law to enter into a Special Undertaking (Licence Agreement) between the Simcoe County District School Board and The Corporation of the Township of Oro- Medonte WHEREAS the Municipal Act, RS.O. 1990, c.M.45, Section 207(58) authorizes the Council of a municipality to pass by-laws for acquiring, erecting, altering, maintaining, operating or managing or granting aid for the acquisition, erection, alteration, maintenance, operation or management of places of recreation and amusement, auditoriums, health or community recreation centres within the municipality; AND WHEREAS Council deems it appropriate to enter into an agreement between the Simcoe County District School Board and The Corporation ofthe Township of Oro-Medonte for maintaining, operating, and managing the facility located on lands owned by the Simcoe County District School Board and being in the Hamlet of Shanty Bay for the benefit of the Community ofOro-Medonte; NOW THEREFORE the Council of The Corporation of the Township ofOro-Medonte hereby enacts as follows: 1. That the Mayor and Clerk be and are hereby authorized to execute the Licence Agreement attached hereto as Schedule "A". 2. That Schedule "A" attached hereto fonns part ofthis by-law. 3. That this By-law shall come into force and effect on the date of its passing. By-law read a first and second time this 3rd day of May, 2000 By-law read a third time and finally passed this 3rd day of May, 2000. THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE / ~ L- If 4~A7 Mayor, Ian Beard ~4L Clerk, ynda Aiken r '; ,6< e .' Schedule "A" Licence Agreement THIS AGREEMENT is made as of the 19TH day of April, 2000 BETWEEN: Simcoe County District School Board 1170 Highway 26 - Midhurst - Ontario - LOL 1 XO fax: (705) 734-6320 (hereinafter called "the Board") OF THE FIRST PART - and - The Corporation of the Township of Oro-Medonte Box 100 - Oro - Ontario - LOL 2XO fax: (705) 487-0133 (hereinafter called the "Township") OF THE SECOND PART A: WHEREAS the Simcoe County District School Board and the Township of Oro- Medonte are collectively referred to herein as the "Parties". WHEREAS the Board has constructed Shanty Bay Public School on lands owned by the Board, which includes a gymnasium, stage, kitchen, downstairs washroom, main floor banquet room, main floor meeting room and main floor storage room and which hereinafter referred to as the "Facility" I; \ .J 2- AND WHEREAS the Shanty Bay Ratepayers Association has made a significant financial contribution towards the initial cost of the construction of the Facility. . AND WHEREAS the Parties intend to share the renewal and operating costs between them for the said Facility on the basis herein provided. AND WHEREAS the Parties to this Agreement are desirous of utilizing the said Facility for the benefit of the Shanty Bay Public School and the Community of Oro-Medonte (hereinafter called the "Community") under the supervision of the Shanty Bay Community Hall Board established under the provisions of this Agreement. B: Such Agreement shall be subject to the terms and conditions hereinafter set out. NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and mutual covenants contained herein, the sum of $10.00 now paid by each of the parties hereto to the other, and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, each of the parties hereby covenants and agrees with the other as follows: 1. GRANT OF LICENCE 1.1 The Board hereby grants to the Township a non-exclusive revocable licence to occupy the Facilities for the purposes of community uses, subject to the terms and conditions hereinafter set out. , ' 3- 2. TERM AND TERMINATION . 2.1 This Agreement shall commence on APRIL 19, 2000 and shall continue for a period offive (5) years thereafter (the "Term") unless terminated earlier pursuant to the provisions hereinafter set out. 2.2 Notwithstanding that the Term of this Agreement is for a period of five (5) years, the parties acknowledge and agree that on or before September 30, of each year of the Term, or any renewal thereof, the parties shall participate in an annual review of the terms of this Agreement and shall negotiate the fees payable to the Board, based on a cost analysis of costs incurred by the Board in accommodating the Township pursuant to this Agreement for the immediately preceding year. The annual review shall be attended on behalf of the Board by the Superintendent of Schools, a Trustee of the Board and the school Principal; shall be attended on behalf of the Township by a member of Oro-Medonte Township Council together with two representatives of the Shanty Bay Community Hall Board. In the event that the parties are unable to agree as to the terms of this Agreement and the fees for the ensuing year on or before September 30 of such year, then this Agreement shall be terminated by either party giving written notice to the other on or before September 30 in such year, in which case the effective date of termination shall be October 31, in such year. A full accounting shall be taken and all monies found to be owing to the Board shall be paid within thirty (30) days of such termination. 2.3 The annual review referred to in section 2.2 shall include, without limitation a review of the composition of the Shanty Bay Community Hall Board referred to in section 12 hereof and a determination of when the main floor meeting room may be available for the use of the community during that particular school year for an afternoon on a designated day and also to include discussion regarding the replacement of equipment ,''I j -4- . 2.4 Notwithstanding anything elsewhere herein contained, the Board may terminate this Agreement if the Township shall be in default of any of its covenants, obligations or agreements herein contained and such default shall continue for a period of ten (10) business days following written notice thereof. 2.5 Notwithstanding anything elsewhere herein contained, the Township may terminate this Agreement if the Board shall be in default of any of its covenants, obligations or agreements herein contained and such default shall continue for a period of ten (10) business days following written notice thereof. 2.6 In the event of termination under either sections 2.4 or 2.5: (a) such termination shall be effective immediately; and (b) a full accounting shall be taken and all monies found to be owing to the Board shall be paid within thirty (30) days of such termination (c) disposal of joint personal property will be as may be mutually agreed to between the parties, failing which, same shall be determined through the Alternative Dispute Resolution section of this Agreement 3. RENEWAL 3.1 Upon the expiry of the Term, this Agreement may be renewed on an annual basis for a term to be agreed upon by the parties, provided that neither party terminates this Agreement pursuant to the provisions hereof. Any renewal of this Agreement shall be evidenced by an amending agreement setting out the revised fees, if any, pursuant to the provisions of section 6 hereof. . . - 5- 4. DUTIES AND OBLIGATIONS OF THE TOWNSHIP . 4.1 The Township covenants and agrees to faithfully perform the following duties and obligations all at its sole cost and expense during the Term of this Agreement and any renewal thereof: (a) to abide by, and enforce if and when appropriate all Board and School policies and procedures that may be in force from time to time, including without limitation, the Board and School policy with respect to no smoking on School property; (b) to comply with all applicable statutes, laws, by-laws, and requirements of every regulatory authority having jurisdiction pertaining to the use and operation of the School, including without limitation, complying with the Tobacco Control Act, 1994 (Ontario), as same may be amended from time to time; (c) to ensure that all community user groups of the Facilities sign permits in such form as are approved in writing by the Board for the use of the Facilities; (d) to ensure that all community user groups of the Facilities have obtained insurance for their activities in such amounts and with such terms deemed appropriate for the nature of the activity and in accordance with municipal policy. (e) to obtain and pay for a comprehensive policy of public liability and personal property damage insurance coverage, including owned and non-owned automobile insurance, in respect of anyone accident to a minimum of $5,000,000.00 exclusive of interests and costs, against loss or damage resulting from bodily injury to, or death of, one or more persons and loss of, J i , f - 6- . or damage to personal property of the Township located at the School, or any other public or private property resulting or arising out of any act or omission on the part of the Township or any of its officers, agents, servants, employees, contractors, invitees, customers or those for whom the Township may be responsible in law during the Term or any renewal thereof, and the Township shall provide the Board with a completed Certificate of Insurance from the Township insurer. The policy shall name the Board as an additional insured for the purposes set out in this Agreement and shall be endorsed to provide that in the event of any change in the policy, the insurer will give notice by registered mail to the Board not less than thirty (30) days prior to the effective date of such change or cancellation; (f) to acknowledge and respect the Board's exclusive use and occupation of the Facilities during normal school hours or school days from 7:00 a.m. to 6:00 p.m. ("School Hours") together with such other dates and times for special events ("Special Events") as may be reasonably required by the Principal of the School from time to time on reasonable prior written notice to the Township for such Special Events including, without limitation, student ceremonies and student performances, provided however that the Township may use and occupy any part of the Facilities not required for School purposes during School Hours with the prior written consent of the Principal of the School; (g) to ensure that the main floor banquet room is kept free and clear of extraneous items for the use of community rentals; (h) to ensure that liquor or other intoxicating beverages are not served or permitted in the Facilities except during non-School hours and under appropriate special licence of the Liquor Licence Board of Ontario; 7 . (i) to provide for custodial servicing of the Facilities so as to maintain same in a neat, tidy and clean condition in accordance with Board standards during non-School Hours (excepting only Special Events, which shall be the responsibility of the Board) and during School Hours where the Township uses and occupies any part of the Facilities not required for school purposes; (j) to present to the principal of the School an annual calendar of community events in September of each year of the Term and any renewal thereof together with a calendar of monthly events in advance for each month of the Term and any renewal thereof in order that the principal of the School may be updated on upcoming events; (k) to obtain the prior written approval of the Board regarding any signage which the Township wishes to post inIon the Facilities; and (I) to be responsible for the security and preservation of the portion of the School to which the Township is granted access, the School lands and the Facilities while using and occupying same. 5. OBLIGATIONS OF THE BOARD 5.1 The Board covenants and agrees to faithfully perform the following duties and obligations during the Term of this Agreement and any renewal thereof; (a) to be responsible for the day-to-day operation of the Facilities, subject to the terms and conditions herein contained; (b) to provide for custodial servicing of the Facilities so as to maintain same in a neat, tidy and clean condition in accordance with Board standards during School Hours and for Special Events; .) , , , 8- (c) to allow the Township to place a mobile sign on or about the School for the purposes of community upcoming events, provided that same complies with the applicable municipal by-laws, ordinances and regulations; . (d) to keep the main floor banquet room free and clear of extraneous items for non-School Hours, including, but not limited to stationary decorations and victuals; (e) not to lock any spaces other than the sports equipment room, In the Facilities without the agreement of the Township; (f) to set out appropriate sports related equipment as requested from time to time by community user groups through the Shanty Bay Community Hall Board to the school principal; (g) to co-ordinate the maintenance and repair of the Facilities and the outdoor walkways and parking lots as an integral part of the Board's county-wide maintenance program and to provide the maintenance schedule for the School to the Shanty Bay Community Hall Board in the spring of each year of the Term or any renewal thereof, and on a project-by-project basis for maintenance projects that may be undertaken in the School building that may impact on the schedule of community uses; and (h) to insure the School and the equipment located in the Facilities against fire and those perils insured against in the normal extended coverage endorsement in an amount not less than its full replacement value. () -9 6. FEES PAYABLE TO THE BOARD . 6.1 The Township covenants and agrees to make the following payments to the Board during the Term and any renewal thereof: (a) an amount equal to twenty percent (20%) of the renewal and operating costs for the Facilities, payable forthwith on demand by the Board; and (b) an amount equal to ten percent (10%) of the cost to repair, maintain and replace existing equipment (tables and chairs) in the Facilities, whether or not such repair, maintenance or replacement is due to ordinary wear and tear, payable forthwith on demand by the Board. 6.2 Notwithstanding that the amounts set out in section 6.1 (a) and 6.1 (b) are payable forthwith on demand, the Township shall have the right, exercisable by notice in writing to the Board given within twenty (20) days after receipt of any statement of such operating costs or equipment costs submitted by the Board as aforesaid, at the Township's sole cost and expense, to verify the accuracy of any amount shown on any statement by requiring the Board to give to the Township reasonable explanations related to such statement, including the production of all relevant invoices and receipts. The Township shall have ten (10) days from receipt of such information to verify same after which time the Township shall be deemed to have accepted the accuracy of such information. 7. GOODS AND SERVICES TAX 7.1 Unless otherwise provided in this Agreement, all amounts payable by the Township to the Board hereunder (the "Fees") shall be exclusive of any goods and services tax ("GS1") payable thereon and the Township shall, in addition to the Fees payable pay to the Board all amounts of GST imposed upon the Fees. ,) ,I -10 8. INDEMNITY . 8.1The Township hereby indemnifies and saves harmless the Board, its directors, officers, trustees and employees of, from and against any and all liabilities, losses, damages, costs, claims, suits, actions, charges, expenses and legal fees (as between a solicitor and client) of any kind or nature whatsoever or resulting from (i) any breach of the agreement by the Township or by those for whom the Township may be responsible in law; and (ii) any damage to or destruction of property howsoever occasioned of or by the Township, its officers, agents, servants, employees, contractors, customers, invitees, or by those for whom the Township may be responsible in law and any injury to any person or persons, including death resulting at any time therefrom, occurring in or on the Facilities or School or any part thereof arising from or occasioned by any cause whatsoever, except if such damage or injury is due to the negligence of the Board, its directors, officers, trustees, agents, servants, employees or contractors not under the direction or supervision of the Township. 9. EQUIPMENT 9.1 It is hereby acknowledged and agreed by the parties hereto that the equipment located in the Facilities is the joint property of the Board and the Township and that this licence agreement extends to the use and enjoyment of such equipment by the school and the Township, subject to the terms and conditions of this Agreement, and in particular, the provisions of section 6.1 (b). .. ~ . . -11- 10.ADMINISTRATION OF AGREEMENT . 10.1 For the purpose of administering this Agreement, the parties acknowledge and agree that the following persons may bind the parties in connection with the administration of this Agreement: (a) on the part of the Board, the Principal of the School, a Trustee of the Simcoe County District School Board and the Superintendent of Schools or designate; and (b) on the part of the Township, the Township Council 10.2 In order to assist the Board with respect to the day-to-day operation of the Facilities, the Council of the Township shall establish a Shanty Bay Community Hall Board which shall be composed of three (3) members appointed by the council in the month of January in the year following a municipal election for the term of council. 11. ALTERNATIVE DISPUTE RESOLUTION 11.1 Any dispute between the parties arising out of or relevant to this Agreement which cannot be resolved by the parties shall be referred to mediation by, on the part of the Board, the Principal of the school, the Trustee of the Simcoe County District School Board and the Superintendent of Schools or designate; and on the part of the Township, a member of Oro-Medonte Township Council together with two representatives of the Shanty Bay Community Hall Board. If the dispute is not resolved by these parties the dispute will be referred to mediation for mandatory Alternative Dispute Resolution, and a Mediator shall be selected from the list of approved Mediators of the Superior Court of Justice, County of Simcoe, and such mediation is to take place within thirty (30) days of such referral. Any dispute between the - '\ -12 parties which cannot be resolved by such mediation shall be settled and determined by any Court of competent jurisdiction provided, however, that each party reserves the right to submit such dispute for settlement and determination by arbitration pursuant to the Arbitration Act of Ontario (the "Act"), in which case, the fOllowing provisions shall apply. Either party may at any time give written notice to the other of its desire to submit such dispute to arbitration stating with reasonable particularity the subject matter of such dispute, then the following provisions shall apply. Within five (5) business days after receipt of such notice, the parties shall appoint a single arbitrator with appropriate experience to determine such dispute. If the parties fail to appoint an arbitrator, either party may apply to the Judge of the Supreme Court of Justice to appoint an arbitrator, to determine such dispute. The costs of arbitration shall be paid by the party as determined by the arbitrator, which jurisdiction shall include the determination of the costs to be paid by the unsuccessful party. The award of the arbitrator shall be final and binding upon the parties. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction and enforced in the normal course. 12. RELATIONSHIP OF THE PARTIES 12.1 The parties hereto agree, that each is an independent contractor and not the agent, or other representative or any other party hereto, and that no party has authority to enter into any contract, assume any obligations or give any warranties or representations on behalf of any other party. Nothing in this Agreement shall be construed to create a relationship of partners, joint ventures, fiduciaries, or any other similar relationship between the parties. t. . ii -13 13. ASSIGNMENT . 13.1 Neither party may assign any of its rights or obligations hereunder without the prior written permission of the other party hereto. 14. ENUREMENT 14.1 This Agreement shall be binding upon and inure to the benefit of, not only the parties hereto, but their respective successors and permitted assigns. 15. SEVERABILITY 15.1 Should any provision of this Agreement be found to be invalid by a court of a competent jurisdiction, that provision shall be deemed severed and the remainder of this Agreement shall remain in full force and effect. 16. GOVERNING LAW 16.1 The laws of the Province of Ontario and the laws of Canada applicable therein shall govern as to the interpretation, validity and effect of this Agreement. hereby consent and submit to the jurisdiction of the court of the Province of Ontario in any action or proceeding instituted under this Agreement. 17. ENTIRE AGREEMENT 17.1 This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties hereto, and there are no warranties, representations or other agreements between the parties hereto in connection with the subject matter hereof except as specifically set forth herein. This Agreement may be changed only by written amendment signed by both parties. , .\01", ., 14- 18. CONSENT TO BREACH NOT WAIVER - 18.1 No provision of this Agreement shall be deemed to be waived and no breach shall be deemed to be excused unless such waiver or consent is in writing and signed by the party said to have waived or consented. No consent by either party to, or waiver of, a breach of any provision by the other party shall constitute consent to, or waiver of, any different or subsequent breach. 19. NOTICES 19.1 Any notice, document or other communication required or permitted to be given hereunder shall be in writing and shall be sufficiently given if sent by prepaid mail, if delivered personally, or if sent by telex or facsimile transmission to the address of the other party specified on the face of this Agreement. Any such notice, if mailed, shall be deemed to have been given on the fifth business day following such mailing, or if delivered personally or sent by facsimile transmission, shall be deemed to be given on the first business day following such delivery or transmission, provided that in the event of a disruption in postal services, any notice so mailed shall be deemed to have been delivered on the fifth business day following the resumption of regular postal service. Each of the parties hereto shall be entitled to specify a different address for purposes of this section only, by giving notice in accordance with the terms hereof. , " ~ 'r:- ~ " ., -15 20. COUNTERPARTS , 20.1 This Agreement may be executed by the parties hereto in separate Counterparts, each of which, when executed and delivered, shall be an original, but all such Counterparts shall constitute one and the same instrument. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written. SIGNED, SEALED & DELIVERED In the presence of: SIMCOE COUNTY DISTRICT SCHOOL BOARD Per Title: Chair Per Name: Title: Director of Education THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE Per Title: Mayor Per