DRAFT
OUTDOOR SPORTS FIELDS
THIS SHARED USE AND MAINTENANCE AGREEMENT made as of ___ day of April, 2008.
THE CORPORATION OF THE TOWN OF
(hereinafter called “
(hereinafter called the “Board”)
WHEREAS Markham and the Board (hereinafter each a “Party” and collectively the “Parties”)
wish to enter into this agreement to provide for the apportionment of costs, shared
use and maintenance of three (3) outdoor sports fields at Bill Crothers
Secondary School.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the sum of Two Dollars ($2.00) of lawful money of Canada now paid by each of the parties hereto to the other and in consideration of the mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties covenant and agree as follows:
1. For the purposes of this Agreement and any amendments thereto, the terms set out in this section shall have the following meanings unless the context expressly or by implication otherwise requires, namely:
(a) “Agreement” means this agreement, all schedules annexed hereto, and all amendments to this agreement from time to time;
(b) “Approved” or “Approval” means, in respect of any matter, approval of such matter by the Management Committee in accordance with Section 40 hereof;
(c)
“Artificial Turf Fields” means, collectively, the two (2) artificial
turf outdoor playing fields constructed or to be constructed on the Board’s
property at the School, as more particularly shown on the Sketch annexed as
Schedule “A“ to this Agreement, together with all ancillary
improvements, including, without limitation, fencing, a running track, the
sprinkler and irrigation system, the CCTV System and landscaping;
(d)
“Board Renewal Notice” has the meaning
ascribed to it in Section 12 of this Agreement;
(e)
“Building” means the maintenance and
washroom building constructed or to be constructed on the Lands;
(f)
“Business Day” or “School Day” means a day other than a Saturday, Sunday or any other
day which is a statutory holiday under the laws of
(g) “CCTV System” means the closed circuit television security system to be installed on the Fields;“Commencement Date” has the meaning ascribed to it in Section 10 of this Agreement;
(h) “Defaulting Party” means any Party in
respect of whom an Event of Default has occurred
for so long as such Event of Default is continuing;
(i) “Event of Default” means the occurrence
of any of the following events:
(i)
if any Party
fails to make any payment on account of any amount required to be made by it
pursuant to this Agreement from time to time within thirty (30) days after any
such payment is due;
(ii)
if any Party
shall fail in any material way to observe, perform or comply with any term,
provision, condition or obligation required by this Agreement or any other of
the Project Agreements to be observed, performed or complied with
by such Party, and such failure shall continue for thirty (30) Business Days
after notice of such failure and the demand for observance, performance or
compliance shall have been given by any other Party, or, where provided for,
the Management Committee, provided however, that if the nature of such failure
is such that it cannot be cured by payment of money and cannot be cured within
a period of thirty (30) Business Days or cannot be cured due to Force Majeure,
such Party shall have such additional time as is necessary as long as the
curing of such default is begun promptly after such notice or demand and is
prosecuted with due diligence to completion;
(iii)
if a Party becomes
bankrupt or insolvent or takes the benefit of any statute for bankrupt or
insolvent debtors or makes any proposal, an assignment arrangement with its
creditors, or any steps are taken or proceedings commenced for the dissolution,
winding-up or other termination of a Party’s existence, but excluding any
dissolution, winding-up or other termination expressly provided or required by
statute; and
(iv)
if a
trustee, receiver, receiver/manager, or a person acting in a similar capacity
is appointed with respect to the business or assets of a Party other than as
expressly provided or required by statute and that Party does not (I) take
immediate steps to have such appointment revoked and (II) thereafter diligently
to obtain an order revoking such appointment;
(j) “Fields” means, collectively, the Artificial
Turf Fields and the Natural Turf Field;
(k) “Fields Maintenance” means:
(v)
with
respect to the Artificial Turf Fields, maintenance in accordance with Subsections
23(a) and (c) hereof and the manufacturers’ specifications at the time of
installation as set out in Schedule “B” annexed to this
Agreement as such specifications may be amended from time to time; and
(vi)
with
respect to the Natural Turf Field, maintenance in accordance with Subsections
23(a) and (c) hereof and the Board’s “Secondary Athletic Field Maintenance
Plan”, as such plan may be amended from time to time; [Note to Draft: Board’s Architect needs to provide requested copy of
the “Manufacturer’s Suggested Maintenance for Artificial Turf Fields” to attach
it as suggested in (i) above]
(l) “Force Majeure” means an event causing a
bona fide delay in the performance of any obligations under this Agreement
(other than as a result of financial incapacity) and not caused by an act or
omission of any Party or Parties or a Person not at arm’s length with such
Party or Parties, resulting from:
(vii)
an
inability to obtain materials, goods, equipment, services, utilities or labour;
(viii)
any
statute, law, by-law or order in council or any regulation or order or
amendment thereto passed or made pursuant thereto but excluding any statute,
law, by-law, order in council, regulation, order or amendment passed or made by
any Party;
(ix)
an order or
direction of any administrator, controller or board, or any governmental
department or officer or other authority excluding any order or direction of
any Party;
(x)
an
inability to procure any licence, permit, permission or authority from any
Person other than a Party necessary for the performance of such obligations;
(xi)
a strike,
lockout, slowdown or other combined action of workmen; or
which such Party or Parties cannot reasonably be expected
to have foreseen as a reasonable likelihood and to have overcome by alternative
means without the expenditure of an amount of money and/or other resources that
is substantially disproportionate to the value to be gained or the loss to be
avoided by any such alternative means, and which in any case shall cause such
Party or Parties to be unable to fulfill or to be delayed or restricted in the
fulfillment of any obligation hereunder;
(m) “Improvements”
and “Site Improvements” means the Fields
and the ancillary washroom and maintenance building constructed or to be
constructed on the Lands, as shown on the sketch attached as Schedule “A” to
this Agreement, but does not include any school building(s), the four (4)
basketball courts and winter ice rink, the Parking Areas or any other
structures or site improvements at the School;
(n) “Lands”
means the lands owned by the Board on which the School, the Parking Areas and
the Improvements have been or will be constructed, legally described in
Schedule “A-1” annexed to this Agreement
(o) “Management
Committee” means the committee established pursuant to Section 34 of this
Agreement;
(p) “Parking
Areas” means the parking areas constructed or to be constructed on the
Lands serving the School and the Fields;
(q) “Maintenance
Schedule” has the meaning ascribed to it in Section 24 of this Agreement;
(r) “Natural Turf Field” means the one (1)
outdoor natural turf playing field constructed or to be constructed on the
Board’s property at the School, as more particularly shown on the Sketch
annexed as Schedule “A“ to this Agreement,
together with all ancillary improvements,
including, without limitation, fencing, the sprinkler and irrigation system,
the CCTV System and landscaping;
(s) “Permit” means any right, licence,
privilege or other form of permission granted to any Person(s) by the Town, or
by any Person to whom responsibility for issuing Permits has been delegated by
the Town or by the Board, to use or occupy all or any of the Fields on a
temporary or periodic basis;
(t) “Person” means any individual,
partnership, corporation, joint venture, association, joint stock company,
trust, unincorporated organization, utility or a governmental authority,
department or other agency;
(u) “Planning Act” means the Planning Act, R.S.O. 1990, c. P.13, as
amended;
(v) “Renewal Notice” has the meaning
ascribed to it in Section 11 of this Agreement;
(w) “Rules”
means the rules approved by the Management Committee from time to time
governing the use and operation of the Fields, including without limitation,
security, access, safety, fire drills, health and maintenance matters and similar
administrative issues;
(x) “Safe
Facility Policies” and “Alcohol
Policies” mean the policies developed and adopted by the Management
Committee from time to time with respect to the Fields only, having regard to
the safe school policies and alcohol policies of the Board and the comparable
policies of the Town to promote a safe and secure environment for all users of
the Fields;
(y) “School” means the
(z) “School Hours” means the hours on any
School Day set out in the following table;
|
Fields |
Years 1 to 3 of the Term |
Years 4 to 8 of the Term |
|
Artificial Turf Field |
|
|
|
Artificial Turf Field with running track |
|
|
|
Natural Turf Field |
|
|
(aa) “School
Maintenance” and “School Site
Maintenance” means the cost of operation, lighting, snow removal,
supervising repairs to and replacements of paving, curbs, walkways,
landscaping, drainage, irrigation systems and lighting facilities as may from
time to time be necessary;
(bb) “Semester
Breaks” has the meaning ascribed to it in Section 17 of this Agreement;
(cc) “Term”
has the meaning ascribed to it in Section 10 of this Agreement;
(dd) “Termination
Notice” has the meaning ascribed to it in Section 12 of this Agreement;
(ee) “Town Hours” means the hours on any School Day set out in
the following table;
|
Fields |
Years 1 to 3 of the Term |
Years 4 to 8 of the Term |
|
Artificial Turf Field |
|
|
|
Artificial Turf Field with running track |
|
|
|
Natural Turf Field |
|
|
(ff) “Utility Costs” means the cost of
utilities incurred by the Board related to the lighting, heating, air
conditioning, electricity, water, irrigation and the cost of any other
utilities required with respect to the Improvements.
Exercise
and Enforcement of Rights
2.
Each Owner
shall perform its obligations under this Agreement and shall, except as
otherwise expressly provided, act reasonably in the exercise and the
enforcement of its rights under this Agreement.
Each right shall, except as otherwise expressly provided, be exercisable
and enforceable from time to time.
3.
Nothing in
this Agreement shall be deemed to create or be construed as creating the
relationship of principal and agent or a partnership or a joint venture between
or amongst the Parties. No Party shall,
as a result of either this Agreement or, in the case of the Board, its
ownership of the Lands, have any fiduciary obligations to the other Party.
Further, the Parties confirm that the terms and provisions of this Agreement
are intended to apply to the Fields only, and shall not be construed so as to
create, either expressly or by implication, any agreement governing the use of
any other playing fields in which the Board or Markham may have an interest.
4.
This
Agreement shall be governed by the laws of the
5.
No delay or
omission by any Party hereto to exercise any right accruing upon and default by
the other Party will impair any such right or be construed as a waiver thereof,
and no waiver by any Party of any of the covenants, conditions, or agreements
hereof to be performed by the other Party will be construed as a waiver of any
succeeding breach thereof or of any other covenant, condition, or agreement.
6.
The
division of this Agreement into sections, captions and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement. The terms “this Agreement”,
“hereof”, “hereunder”, and similar expressions refer to this Agreement and not
to any particular section or other portion hereof and include any agreement or
instrument supplemental or ancillary hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to sections are
to sections of this Agreement.
7.
No
amendment or modification of this Agreement shall be binding unless in writing
and signed by the Parties.
8.
Words
importing the singular number only shall include the plural and vice versa,
words importing the masculine gender shall include the feminine and neuter
genders and vice versa, and words importing persons shall include individuals,
partnerships, associates, trusts, unincorporated organizations and corporations
and vice versa.
9.
The
following are Schedules annexed hereto and incorporated by reference and deemed
to be a part hereof:
Schedule “A” Sketch of Bill Crothers Secondary
School and Sports Fields
Schedule “A-1” Legal
Description
Schedule “B” Artificial
Turf Manufacturer’s Specifications for Maintenance
Schedule “ C” Irrigation
Systems Standards of Maintenance
Schedule “D” Dispute
Resolution Procedures and Arbitration
10.
This
Agreement shall be for a term of twelve (12) years (the “Term”), to commence upon the opening of the School on the day of August, 2008 (the “Commencement Date”).[Note to Draft: Have to insert Commencement
Date.]
11.
If the Town
desires to renew this Agreement upon the expiry of the Term, the Town shall
deliver to the Board, by no later than the date of the ninth (9th) anniversary
of the Commencement Date, written notice (the “Renewal Notice”) setting out its desire to renew.
12.
The Board,
upon receipt of the Renewal Notice, shall, have a period of sixty (60) days to
advise the Town in writing that it either (i) also desires to renew this
Agreement (the “Board Renewal Notice”)
or (ii) does not desire to renew this Agreement (the “Termination Notice”). If the Board advises the Town that it does
not desire to renew this Agreement, this Agreement shall automatically
terminate on the expiry of the Term, and thereafter the Parties shall be
released of all obligations hereunder, unless expressly otherwise provided in
this Agreement. If the Board advises the Town that it also desires to renew
this Agreement, the Board and the Town shall proceed to negotiate the terms of
the renewal of this Agreement in good faith.
13.
The terms
of the renewal of this Agreement must be agreed to in writing by the Town and
the Board within six (6) months of the date the Board Renewal Notice is
received by the Town, failing which this Agreement shall automatically
terminate on the expiry of the Term, and thereafter the Parties shall be
released of all obligations hereunder, unless expressly otherwise provided in
this Agreement.
14.
The Board
hereby grants to the Town the right to issue permits for the exclusive right,
privilege and licence to enter upon and use the Fields or any one of them
during Town Hours, and, subject to this Agreement, to use the washroom and
maintenance building and the Parking Areas as ancillary uses when using the
Fields in accordance with this Section, and to restrict or cancel such permits
for use, subject to the terms and conditions of this Agreement. Prior to
commencing use of any Field, the Town shall provide to the Management Committee
a copy of all use permits issued by the Town.
15.
The Board
has the exclusive and unrestricted right to use the Fields on all School Days
during School Hours. The Town acknowledges and agrees that the Board use of the
Fields may include use by schools other than the School.
16.
The
Management Committee shall, at least twice each year, allocate between the
Board and the Town the use of the Fields on all days which are
17.
Notwithstanding
Sections 15 and 16 of this Agreement, prior to December 31 of each year of the
Term the Board shall notify the Town in writing of its requirements for use of
the Fields for the periods between semesters for the next following year (the “Semester Breaks”). If the Board, in its
sole discretion, advises the Town in its notice that the Board does not require
use of the Fields or any of them during School Hours during Semester Breaks,
the Town shall have the right to issue permits for use of the Fields or any one
of them during such School Hours, and to restrict or cancel such permits for
use, subject to the terms and conditions of this Agreement and, subject to this
Agreement, to use the washroom and maintenance building and the Parking Areas
as ancillary uses when using the Fields in accordance with this Section.
Responsibility
for Construction of Improvements
18.
The Board
shall be responsible for the design and construction of the Improvements,
including all driveways, pathways, field lighting, fencing, security systems and
landscaping, at its cost. The Town confirms that it has reviewed and approved
all plans and specifications for the construction of the Improvements,
including all driveways, pathways, field lighting, fencing, security systems
and landscaping.
Town Contribution to Cost of Construction
19.
The Town
shall pay to the Board, upon receipt from the Board of an invoice or invoices in
respect of the design, planning and construction of the Improvements (including,
without limitation, architectural, landscape architectural and engineering
fees) the maximum
aggregate amount of TWO MILLION DOLLARS ($2,000,000.00) as the Town’s contribution to the cost of construction of the
Improvements. The Town will pay the amounts set out in such invoice or invoices
within sixty (60) days of receipt of such invoice or invoices.
20.
Notwithstanding
the payment by the Town of this capital contribution, and that a portion of
this payment is intended to reimburse the Board for the cost of (i) installing
artificial turf on one of the Fields, (ii) field lighting and (iii) upgrades to
the washroom and maintenance building, the Town acknowledges and agrees that
the Improvements are the sole property of the Board and the Town has no right,
title or interest in the Improvements (including all driveways, pathways, field
lighting, fencing, security systems and landscaping) other than as set out in
this Agreement.
21.
Except as
expressly set out in this Agreement, the Parties agree that there shall be no
alteration, improvement, addition, replacement, reconstruction or redevelopment
of all or any of the Improvements, or any demolition of any Improvements,
unless all such work is approved by the Parties, which approvals may be
withheld in the sole discretion of any Party or which may be given subject to
the satisfaction of conditions established by the Party giving such approval.
SECURITY, MAINTENANCE AND UTILITY
COSTS
Town’s Maintenance Responsibilities
22.
The Town
shall be responsible for all security, maintenance and repair of the Fields during
the Term of this Agreement, at the Town’s sole expense. Without limiting the
generality of the foregoing, the ongoing maintenance of the Fields will include:
(i)
Security:
Securing the Fields against unauthorized use and vandalism, ensuring that
access to the Fields is properly secured upon completion of use at the end of
each day, opening the Fields for use each morning prior to 6:00 a.m.; and
(ii)
Refuse: Ensuring that all garbage and litter is
picked up and properly disposed of at the end of each day, and maintaining the
Fields and the washrooms in a clean and tidy state.
(i)
Grass
Cutting: Grass shall be cut to not less than a 1” cut on average (May to
October inclusive)
(ii)
Aerating:
Use of core type aerator, break up and redistribute cores in two directions
(once in each of May and September);
(iii)
Fertilizing:
Apply 4:2:2 or 5:1:2 @ 12 kg N/ha (0.25 lbs/1000 ft˛) in each direction, and at
least ˝ the nitrogen should be in slow release (once in May and September);
(iv)
Weed
control: Take steps to inhibit weed growth, in compliance with (I) the Board’s standards, and (II) all municipal and provincial
laws, by-laws and regulations
(v)
Overseeding:
Use premium sports turf mixture (once in each of May and October);
(vi)
Topdressing: Drag mat in two directions, with seed mixture
depending on existing soil, drainage and use (once in each of May and October
and, as required, in high traffic areas which typically are in goal mouths and
centre field);
(vii)
Field
Lining: To be completed in spring and
maintained throughout season (May to October inclusive);
(viii)
Notice of Weed
Control and/or fertilizing: When undertaking weed control and fertilizing by
application of chemical and/or organic substances, the Town shall provide
forty-eight (48) hours prior written notice to the Board’s Associate Manager of
Education, Community and Leasing Services;
(ix)
Closure: Take all measures necessary to close the
Natural Turf Field by no later than the second Monday in October of each year
of the Term hereof, including, without limitation, prevention of use of the
Natural Turf Field from the date of closure until the date it is reopened;
(x)
Opening: Take all measures necessary to open the
Natural Turf Field by no later than the date in each year of the Term as
determined by the Management Committee, which measures shall include, without
limitation, removal of all measures taken to prevent use of the Natural Turf
Field after closure pursuant to paragraph (viii) hereof; and
(xi)
Maintaining
the field lighting system at regular intervals.
(i)
Maintenance
will be in strict compliance with the manufacturer’s specifications set out in Schedule
“B” to this Agreement;
and
(ii)
Maintaining
the field lighting systems at regular intervals.
Where the Board supplies any of the above-noted services on
behalf of the Town, the Board may send to the Town an invoice for the cost of
such services, and the Town shall pay such cost within sixty (60) days of
receipt of such invoice.
23.
The Town
covenants and agrees that if the Board, acting reasonably, determines that the
use of any of the Fields by Town and its invitees, and those receiving permits
issued by the Town, has resulted in a higher level of wear and tear than that
which is reasonably expected for such Fields, the Board may notify the Town in
writing of the repair or maintenance required
to the Fields or any one of them. Within two (2) Business Days of receipt of
such notice, the Town shall commence and thereafter diligently carry out and
complete the necessary maintenance and repairs at its cost and, to the extent
required, shall discontinue use of the Field or Fields requiring repair and
maintenance shall properly cancel all permits for the use of such Fields until
the necessary maintenance and repairs are complete. Upon completion of the
maintenance and repairs, the Town shall provide to the Board a written summary
of the work done and confirmation the required maintenance and repairs have
been completed.
24.
On the first
School Day of every month during the Term, the Town shall deliver to the
Management Committee, the principal of the School and to the Associate Manager
of Education, Community & Leasing Services for the Board, a schedule (the “Maintenance Schedule”) setting out the
maintenance to be performed on each of the Fields for the following month. Upon
receipt of the Maintenance Schedule the Town and the principal of the School
shall determine if any of the Fields must be closed to allow for the required
maintenance, and the duration of any such closure. If the Maintenance Schedule
is not delivered to the Management Committee, the principal of the School and
the Associate Manager of Education, Community & Leasing Services for the
Board as required hereunder, no maintenance of the Fields may be performed by
the Town and the Town’s rights to use the Fields as granted in Sections 15, 16
and 17 hereof shall be suspended. Upon delivery of the Maintenance Schedule,
maintenance may resume and the Town’s rights to use the Fields as granted in
Sections 15, 16 and 17 hereof shall be reinstated.
25.
If
Board’s
Maintenance Responsibilities
26.
The Board
shall operate and maintain the functional irrigation systems the Fields, at its
cost, in accordance with the Board’s Irrigation Systems Standards of Maintenance
set out in Schedule “C” annexed to this
Agreement.
27.
The Board
shall operate and maintain functional lighting systems at the School for the
maintenance and washroom building, the parking areas, pathways and laneways, in
accordance with industry standards for lighting for such areas.
28.
The Board
shall be responsible for the payment of all Utility Costs.
29.
If the
electrical service supplied for the lighting systems for the Fields is
separately measured by a check meter, the Town shall pay to the Board the cost
of such electrical service as measured by such meter within thirty (30) days of
receipt of written request for payment. If the Board is unable to install a
separate check meter to measure the electrical service to the lighting systems
for the Fields, the Board shall allocate, acting reasonably, the cost of the
electrical service supplied for the lighting systems for the Fields, and the
Town shall pay to the Board such allocated cost within thirty (30) days of
receipt of written request for payment.
Decision
to Conduct Major Repairs
30.
At least
once in each year during the Term hereof, and in the case of emergency, the
Management Committee shall decide upon which major repairs and replacements
required to the Improvements, including all driveways, pathways, field
lighting, fencing, security systems and landscaping, and whether the Board or
the Town shall have the responsibility for effecting such repairs and/or
replacements. For greater certainty, the replacement of the Artificial Turf
Fields at or after the expiry of the Term is not a major repair or replacement
for the purposes of this Section and Section 31.
31.
Notwithstanding
anything else provided in this Agreement, the cost of effecting major repairs
and/or replacements during the term of this Agreement shall be shared equally
by the Board and the Town. Whichever party is responsible to effect such repair
and/or replacement based on the decision of the Management Committee shall
complete such work in a good and workmanlike manner and in compliance with all
governmental requirements. The party responsible to complete such work may
deliver an invoice or invoices from time to time to the other party in the
amount of fifty percent (50%) of the cost of such work. The other party shall
pay the cost set out in the invoice or invoices to the party which effected the
work within sixty (60) days of the date of receipt of such invoice or invoices.
32.
The Board
and the Town acknowledge and agree that the Parking Areas are meant to primarily service the needs of the School and the
Board in connection with the use of the School, in priority to the needs of the
Town in connection with its use of the Fields. Accordingly, the Board and the Town covenant and
agree that during such times that the School is in use by the Board or for school events and the Fields are in use by the Town, the Management Committee shall,
taking into account the terms of this Section, decide upon how to allocate use
of the Parking Areas between the School and the Town.
33.
The Board
and the Town covenant and agree that all equipment used to maintain and repair
the Fields shall be supplied by the Town and shall be the property of the Town,
and the Board acknowledges and agrees that it shall have no right, title or
interest in such equipment.
Composition
of Management Committee
34.
The implementation
of and decisions required to be made under this Agreement shall be made by a Management
Committee. The Management Committee will be established on the date hereof, and
will consist of three (3) members to be appointed by the Board and three (3)
members to be appointed by the Town. Each of the Town and the Board will notify
the other in writing on the date hereof of the identity of its respective
nominees to the Management Committee, and annually thereafter on or before the
anniversary date of this Agreement.
35.
In addition
to its members on the Management Committee, each Party may, from time to time,
designate and appoint one or more alternate authorized members (“Alternates”)
by notice to the other Party. A Party’s Alternate(s) shall be entitled to
attend meetings of the Management Committee in the place of a named member of
that Party and to vote in the absence of, and in the place of, the Party’s
Member(s).
36.
The
Management Committee will meet at least two (2) times per annum, or otherwise
as agreed by the Management Committee from time to time, to consider matters
related to use and maintenance of the Fields.
37.
Meetings of
the Management Committee will be held on such dates as are agreed to in advance
by the Management Committee or may be called at any time by any member of the
Management Committee, by written notice to all other members of the Management
Committee delivered at least twenty-one (21) days prior to the date of such
meeting, specifying the purpose or purposes for which such meeting is being
called and the specific location of the meeting. Any business may be discussed
at a regularly scheduled meeting. No business other than the business set out
in the notice may be discussed at a meeting called by notice.
38.
All
meetings of the Management Committee shall be held at the School in a room to
be designated by the principal of the School by notice to the Management Committee.
39.
The
representatives of the Board on the Management Committee will nominate the
chair of the first meeting of the Management Committee; the representatives of
the Town on the Management Committee will nominate the chair of the second
meeting of the Management Committee; and thereafter the chair of a meeting will
alternate between a representative of the Board and a representative of the
Town.
40.
A quorum at
any meeting of the Management Committee will consist of at least two (2)
representatives of each of the Town and the Board. Each member of the
Management Committee present at the meeting will have one vote. The chair of
the meeting will not have a casting vote. All decisions of the Management
Committee will require a majority of votes to be approved.
41.
The
Management Committee shall, from time to time, approve rules and policies
related to the use of the Fields, as follows:
(a)
rules
governing the use and operation of the Fields, including without limitation,
security, access, safety, fire drills, health and maintenance matters and
similar administrative issues;
(b)
any
required safe facility policies and alcohol policies, having regard to the safe
school policies and alcohol policies of the Board and the alcohol policies, if
any, adopted by
42.
A decision
of the Management Committee made in accordance with this Agreement with respect
to any matter within the limits of its authority and jurisdiction shall be
binding upon all Parties, including any Defaulting Party. The vote of any member of the Management
Committee on any decision to be made or question considered at any meeting of
the Management Committee shall be binding on the Party appointing such member,
and no Party, or its member(s), shall be obliged to enquire whether any other member
has been duly authorized by the Party appointing such other member to vote in
any particular manner.
43.
No costs or
expenses of any kind or nature relating to the Fields shall be incurred or paid
by or on behalf of the Parties except in accordance with this Agreement or with
the prior written approval of the Management Committee.
44.
The chair
of the meeting will cause minutes to be kept of all proceedings and resolutions
at such meeting, and any minutes, if signed by the chair of the meeting, will
be deemed evidence of the matters stated in them and such meetings will be
deemed to have been duly convened and held and all resolutions and proceedings
shown in them will be deemed to have been duly passed and taken.
Additional
Rules and Procedures
45.
To the
extent that the rules and procedures for the conduct of a meeting of the
Management Committee are not prescribed in this Agreement, the rules and
procedures will be determined by the chair of the meeting.
46.
If, at any
time, any of the Parties (the “Defaulting
Party”):
(a) shall fail
to pay any amount payable by it pursuant to this Agreement to the other Party
or to a third party, as the case may be, and such default is not cured within
ten (10) days following receipt of notice of such default from the other Party;
or
(b) shall
default in any material respect in any of its obligations pursuant to this
Agreement other than payment of money, and fails to correct such default within
thirty (30) days following receipt of notice of such default from the other
Party or, if such default is incapable of being remedied within such period,
the Defaulting Party fails to commence to remedy such default within such
thirty (30) day period and to diligently proceed to remedy such default
thereafter;
then, without prejudice to any other rights which it may
have with respect to such default, the non-defaulting party may in addition to
any right or remedy at law or in equity available to it or them, shall have the
remedies set forth in Section 47.
47.
Any Party
having given a notice of default pursuant to Section 46 may, but shall not be
obliged to, take all reasonable steps to cure the default, including without
limitation, the payment on behalf of the Defaulting Party of any monies due and
payable by the Defaulting Party, the purchase of insurance, the performance of
maintenance, repair or replacement work and the hiring of contractors. The
Defaulting Party shall, upon receipt of proper invoices substantiating such
costs, reimburse the Party making such payments or taking such steps for all
monies, and costs and expenses paid or incurred in the exercise of such rights.
48.
Notwithstanding
any other terms, covenants and conditions contained in this Agreement, the Town
shall indemnify the Board and save it harmless from and against any and all
loss, claims, actions, damages, liability, and expenses in connection with loss
of life, personal injury, damage to property or any other loss or injury
whatsoever arising from or out of (i) this Agreement, (ii) any and all
liability, loss, harm, or claims whatsoever arising out of the Town’s use of
the Improvements and the Parking Areas, (iii) the Town having granted a use
permit for any Field or (iv) the occupancy or use by the Town of the
Improvements and the Parking Areas or any part thereof, or occasioned wholly or
in part by any negligent or willful act or omission of the Town, its agents,
contractors, employees, servants, licensees, permit holders and invitees, or by
anyone permitted to be upon the Lands.
If the Board shall, without fault on its part, be made a party to any
litigation commenced by or against the Town, the Town shall protect, indemnify
and hold the Board harmless and shall defend such action in the name of the
Board or otherwise and pay all costs, expenses, and legal fees so that the
Board shall suffer no loss or harm in connection with such litigation.
49.
The Town
covenants and agrees that:
(a)
The Town
shall maintain its own comprehensive public liability insurance in an amount of
not less than Ten Million Dollars ($10,000,000.00) with respect to any one
accident arising from, under, or through the use of the Improvements or the
Parking Areas or in connection with the enjoyment or exercise of any other
rights conferred under this Agreement. The Town shall deliver a certified copy
of certificate of such policy to the Board upon execution and delivery of this
Agreement and thereafter annually on the anniversary of the date of execution
of this Agreement. The comprehensive public liability insurance policy shall
name the Board as named insured and shall contain cross-liability endorsements
and no cancellation and severability of interests clauses; and
(b)
The Board,
acting reasonably, shall have the right for a period of sixty (60) days
following the end of each three (3) year period during the term of this
Agreement, to give written notice to the Town requiring the amount of the
coverage of the said liability to be increased. The amount of such increase
shall be an amount commensurate with the then current standard of liability
insurance coverage with respect to the operation of public playing fields and
ancillary parking areas.
50.
The Town shall
have the right to terminate this Agreement at any time upon ninety (90) days
written notice to the Board, whereupon this Agreement shall be terminated and at
an end and the Parties shall thereafter have no further obligations or
liabilities hereunder.
DISPUTE RESOLUTION AND ARBITRATION
51.
Except
where monetary damages are inadequate or irreparable harm could occur if any
immediate remedy is unavailable, any dispute, disagreement, controversy,
question or claim between the Parties hereto arising out of or relating to this
Agreement, including, without limitation, any issue considered by the
Management Committee which has resulted in a deadlock (a “Dispute”) shall be conclusively settled by submission to the
procedures for resolving disputes as set out in Schedule
“D”, including
arbitration, if such arbitration is necessary.
REPRESENTATIONS AND WARRANTIES
52.
The Board
represents and warrants to the Town that as of the date of this Agreement:
(a)
it is the
sole beneficial and legal owner of the Lands, with power and authority to
complete this Agreement;
(b)
there are
no undisclosed charges, liens or encumbrances against the Lands except as shown
on registered title;
(c)
to the best
of its knowledge and belief, the Lands:
(i)
have never
been used for the purposes of a waste disposal site;
(ii)
do not
contain any hazardous or toxic substances; and
(iii)
are not
presently nor have they ever been the subject of an inquiry or investigation
work order or claim by the Ministry of the Environment or any similar authority
in connection with the environment matters.
53.
All of the
provisions of this Agreement shall be binding upon and enure to the benefit of
the parties and their respective successors and permitted assigns.
54.
If any
Party is delayed or hindered in or prevented from the performance of its
obligations hereunder or from compliance with any of its covenants hereunder by
reason of any Force Majeure (other than an obligation involving the payment of
money), then the performance of the act or obligation or compliance with a
covenant of such Party will be excused for the period of such delay and the
period for the performance of the act or obligation or compliance with the
covenant will be deemed extended for an equivalent period.
55.
Any notice
to be given pursuant to this Agreement shall, unless otherwise specified in the
Agreement, be delivered or sent by personal delivery, registered letter or
facsimile transmission to the Board and Markham as follows:
Board:
Telephone: (905)
Fax No: (905)
Attention:
Town: The
Corporation of the Town of
101
Telephone: (905)
Fax No. (905)
Attention:
or to such other address as the parties may respectively
from time to time advise in writing, and any such notice, if personally
delivered, shall be deemed to be given on the date of delivery thereof or, if
mailed, shall be conclusively deemed to be received by the other Party five (5)
Business Days after the date of mailing thereof, or upon receipt of
transmission of a facsimile, unless such facsimile is transmitted after 4:30
p.m. or on a day other than a Business Day, in which case, it shall be deemed
to have been received on the next Business Day. Notice given by the principal
of the School constitutes notice from the Board.
56.
Time shall
be of the essence of this Agreement.
57.
The Parties
and their successors and assigns shall execute and deliver such additional
documents and instruments and shall perform such additional acts as may be
necessary or appropriate in connection with this Agreement and all matters
contemplated hereby to effectuate, carry out, and perform the intent of this
Agreement and all of the obligations and agreements contained herein.
58.
If any
provision of this Agreement or its application to a Person or circumstance is,
to any extent, invalid, illegal, or unenforceable, it shall be considered
separate and severable from this Agreement, and the remaining provisions of
this Agreement or the application of the provisions to Persons or circumstances
other than those as to which it is invalid, illegal, or unenforceable shall
remain in full force as though such invalid, illegal, or unenforceable provision
or application had never been included.
59.
The Parties
agree that this Agreement represents the entire Agreement between the Parties
and there are no warranties or representations that affect this Agreement.
60.
Each covenant
contained in this Agreement is a separate and independent covenant and a breach
of covenant by any party will not relieve the other party from its obligation
to perform each of its covenants, except as otherwise expressly provided in
this Agreement.
IN WITNESS WHEREOF the parties have duly
executed this Agreement by their proper signing officers authorized in that
behalf, as at the year and date first above mentioned.
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SKETCH OF
SCHEDULE “B”
ARTIFICIAL TURF MANUFACTURER’S SPECIFICATIONS FOR
MAINTENANCE
SCHEDULE ″C″
IRRIGATION SYSTEMS STANDARDS OF MAINTENANCE
SCHEDULE ″D″
DISPUTE RESOLUTION PROCEDURES AND ARBITRATION
Any
arbitration to be conducted to resolve a Dispute arising under this Agreement
will be conducted in accordance with the following provisions:
1.
Any party may commence arbitration proceedings
by written notice to the other parties of its desire to arbitrate.
2.
Forthwith
after the giving of such notice, the parties or their designated
representatives shall meet in good faith for the purpose of agreeing, or
attempting to agree, upon an arbitration procedure. If such agreement is
arrived at, the matter in dispute shall be arbitrated and settled in accordance
with the agreed procedure (and which agreed procedure shall be reduced to
writing signed by each of the parties, and shall constitute a submission to
arbitration within the meaning of the Arbitration
Act, 1991 (Ontario), as amended or replaced from time to time (the “Arbitration Act”)). Failing such
agreement (which shall itself not be the subject matter of arbitration
hereunder), the matter shall be arbitrated and settled in accordance with the
procedure set out in this Schedule.
3.
The parties recognize that in many instances of
disputes which might arise under this Agreement, the dispute may involve, and
depend for its resolution upon, technical matter or matters which involve
expert knowledge and judgment, where it is in the interests of a prompt and
equitable solution of the matter for the parties to agree upon an independent
expert having the appropriate specialized knowledge as the sole arbitrator. In
any such situation the parties shall negotiate in good faith (which shall
itself not be the subject matter of arbitration hereunder) and act reasonably
with a view to reaching agreement upon an appropriate independent expert as a
sole arbitrator. If such a sole arbitrator is agreed upon by the parties, the
dispute shall be arbitrated and determined in accordance with the following
procedure (and which shall constitute a submission to arbitration within the
meaning of the Arbitration Act):
(a)
such sole arbitrator shall proceed to determine
the dispute, having regard to the provisions of this Agreement and the terms of
the submission to arbitration and any other agreements the parties may have
made respecting the arbitration or the matter in dispute;
(b)
the arbitration shall, subject to any express
provision herein or in any submission to arbitration or other agreement of the
parties affecting the same, be conducted in accordance with the provisions of
the laws of Ontario applicable thereto and the provisions of the Arbitration
Act shall apply thereto;
(c)
the costs of the arbitration shall be awarded in
the discretion of the sole arbitrator; and
(d)
if such
sole arbitrator fails to hear and determine the matter in dispute and render a
decision in writing to the parties within thirty (30) days after the parties
agree upon such sole arbitrator, any party may, by notice to the others, cancel
the appointment of such sole arbitrator, in which case any party may initiate
new arbitration proceedings pursuant to this Section or Section 4 below.
4.
If, within five (5) days after the giving of the
notice referred to in Section 1 above an arbitration procedure shall not have
been agreed upon between the parties or, if applicable, a single arbitrator has
not been appointed in accordance with Section 3 above, any party may, at any
time thereafter, and prior to such a procedure being agreed, give written
notice to the others requiring the dispute to be arbitrated and determined in
accordance with the following procedure (and which shall constitute a
submission to arbitration within the meaning of the Arbitration Act):
(a)
the party
giving the notice referred to above in this subsection shall, in such notice,
give notice of the appointment and the name of the arbitrator chosen by the party
giving such notice;
(b)
the parties
receiving the notice given under Subsection (a) shall, within ten (10) days
after receipt thereof, give a written notice to the party giving the first
notice of the appointment and the name of the arbitrator chosen by the party
giving the notice under this Subsection (b);
(c)
the two
arbitrators so chosen shall jointly appoint a third arbitrator and give written
notice of the appointment and the name of such arbitrator to the parties;
(d)
if a party
required to appoint an arbitrator fails to do so within the period of time
provided herein, or if each party has appointed an arbitrator and the two
arbitrators so chosen fail to agree upon a third arbitrator or to give notice
thereof as required by Subsection (c) within fifteen (15) days after both have
been appointed, then any party not in default of its obligations set out in
this Schedule may apply to a judge of the Court of Ontario (General Division)
pursuant to the provisions of the Arbitration Act for the appointment of an
arbitrator on behalf of the party in default, or the appointment of the third
arbitrator, as the case may be;
(e)
the three (3)
arbitrators appointed pursuant to the preceding provisions shall proceed to
determine the dispute, having regard to the provisions of this Agreement and
the terms of the submission to arbitration and any other agreements the parties
may have made respecting the arbitration or the matter in dispute and the
decision of any two of them shall bind the parties;
(f)
the
arbitration shall, subject to any express provisions herein or in any
submission to arbitration or other agreement of the parties affecting the same,
be conducted in accordance with the provisions of the laws of Ontario
applicable thereto and the provisions of the Arbitration Act shall apply
thereto;
(g)
the costs
of the arbitration shall be awarded in the discretion of the arbitrators;
(h)
a party
shall be entitled to prejudgment and post judgment interest on any award for
the payment of money and in connection with any award in the nature of a declaration
relating to payments under this Agreement. Such prejudgment and postjudgment
interest shall be at the prejudgment and postjudgment interest rate that would
be applicable under the Courts of Justice
Act (
(i)
if the
arbitrators appointed under the preceding provisions shall fail to hear and
determine the matter in dispute and render a decision in writing to the parties
within forty-five (45) days after the appointment of the third arbitrator,
either party on notice to the other may cancel the appointments of all the
arbitrators previously made, in which case either party may initiate new
arbitration proceedings pursuant to this Section 4 or Section 3 above;
5.
The
provisions of this Agreement and this Section requiring the determination of
certain disputes by arbitration shall not operate to prevent recourse to the
courts whenever enforcement of an award by the sole arbitrator or arbitrators,
as the case may be, reasonably requires access to any remedy (such as mandamus,
injunction, specific performance, declaration of right, order for possession,
damages or judicial enforcement) which an arbitrator has no power to award or
enforce. In all other respects an award by the sole arbitrator or arbitrators,
as the case may be, shall be final and binding upon the parties and there shall
be no appeal from the award of the arbitrator or arbitrators, as the case may
be, on a question of law or any other question.
09851.0069/1949767_.45