3372 Schedule "A" - To authorize an agreement with The Thames Valley District School Board for the provision of a Joint Use Agreement with the Town of TillsonburgGLENDALE GYMNASIUM AGREEMENT
THIS AGREEMENT made as of the :2 5 day of June, 2009.
BETWEEN:
THAMES VALLEY DISTRICT SCHOOL BOARD
(hereinafter the "Board")
-and-
OF THE FIRST PART
THE CORPORATION OF THE TOWN OF TILLSONBURG
(hereinafter the "Town")
OF THE SECOND PART
WHEREAS the Board is the owner of the property (the "Property") described in
Schedule "A" hereto, as well as the buildings located thereon. The Property and the
buildings thereon constitute the location of the Board's school known as Glendale High
School (the "School");
AND WHEREAS the Board has plans to renovate the School (the "Renovation") to
construct, among other things, a new gymnasium and change rooms (the "New Gym")
having the approximate dimensions of the respective areas shown in cross-hatching in
the diagram attached hereto as Schedule "B";
AND WHEREAS the Board and the Town have agreed to enter into this agreement as
permitted by section 183 of the Education Act in respect of the use of the New Gym;
AND WHEREAS the Town has agreed to contribute an aggregate of Nine Hundred and
Forty-four Thousand, Three Hundred Dollars ($944,300.00) towards the costs of the
Renovation;
AND WHEREAS the Board will be expending approximately Eight Million Dollars
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($8,000,000.00) in connection with the Renovation;
AND WHEREAS the Board and the Town represent and warrant one to the other that it
has the capacity and powers to enter into this Agreement and that this Agreement is
validly entered into and binding on it;
NOW THEREFORE in consideration of the premises and the good and valuable
consideration herein contained (the receipt and sufficiency of all of which is hereby
acknowledged by the parties hereto), the parties do hereby covenant and agree with
one another as follows:
ARTICLE 1 -CONTRIBUTION
1.01 Contribution
The Town hereby covenants and agrees to contribute and pay to the Board an
aggregate of Eight Hundred and Seventy-nine Thousand, Three Hundred Dollars
($879,300.00) (the "Contribution"}, in three installments of the following amounts on
the respective dates set forth below:
(a) $249,766.66 shall be paid on the date on which the Board awards a contract for
the completion of the Renovation which provides for the construction of the New
Gym;
(b) $314,766.67 shall be paid on the date on which the architect (the "Architect")
engaged by the Board in connection with the Renovation provides written notice
to the Town that a roof has been completed over the New Gym; and
(c) $314,766.67 shall be paid on the date on which the Architect provides written
notice to the Town that the addition to the School constituting the principal
component of the Renovation (and part of which is the New Gym}, has reached
substantial completion and is capable of being utilized by students at the School.
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The Town's obligation to advance and pay the Contribution on the basis set forth above
is irrevocable and the Town shall not be permitted to dispute, in any fashion, the validity
of any notice delivered by the Architect for purposes of the above referenced
arrangements, subject to manifest error on the part of the Architect. For purposes of
certainty, no disagreement or dispute among the parties with respect to any of the
provisions of this Agreement (or the subject matter thereof), or any other disagreement
or dispute in respect of matters not addressed by this Agreement, shall be alleged or
contended by the Town as being a basis for its not making the Contribution, or any part
thereof, to the Board, as provided for above.
In addition to the Contribution, it is acknowledged and agreed that the Town paid the
Board $65,000.00 in May, 2009, pursuant to the terms of that certain letter dated March
10, 2009 addressed to the Board (to the attention of both Messrs. Brian Greene and
Kevin Bushell) and signed by David C. Morris on behalf of the Town.
1.02 Letter of Credit
In order to secure the Town's obligations to make the Contribution, the Town shall,
contemporaneously with the execution and delivery of this Agreement, either: deliver an
irrevocable letter of credit, drawn in favour of the Board, issued by a financial institution
acceptable to the Board (acting reasonably) and otherwise having the characteristics set
forth in Schedule "C" hereto; or, pay the full amount of the Contribution to the Board.
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1.03 Fundraising Activities and Indemnification
The parties acknowledge that members of the Town's community propose to undertake
certain fundraising activities. In connection therewith the Town acknowledges that the
Board may be restricted from participating in or permitting it or the School to be
associated with any such activities, as a result of the Board's policies, practices,
guidelines, whether written or unwritten, in effect from time to time (the "Guidelines").
The Town hereby covenants and agrees to indemnify and hold the Board, its trustees,
employees and agents (the "lndemnitees") harmless in respect of any loss, damage,
claim, action, suit, proceeding, deficiency or expense, including any and all out-of-
pocket costs, including, without limitation, all reasonable legal fees relating to, arising
from or in connection with any fundraising activities undertaken or sanctioned by the
Town, in whole or in part, for purposes of raising funds for the New Gym or the School.
ARTICLE 2-OWNERSHIP AND MAINTENANCE
2.01 Ownership
The Town hereby acknowledges and agrees that the Board is the owner of the Property
and the School and that the Board will be the absolute owner of the New Gym. The
Town acknowledges and agrees that nothing contained herein or arising herefrom will
provide the Town with any right or interest in the nature of an ownership interest in the
Property, the School or the New Gym.
2.02 Upkeep and Maintenance
Subject to the provisions of sections 3.02, 3.03 and 3.05 hereof, the parties hereby
acknowledge and agree that the maintenance and cleaning of the New Gym shall be the
responsibility of the Board.
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2.03 Rental of New Gym
The Town acknowledges the Board shall at all times have the right and responsibility to
administer the scheduling of the use of the New Gym, such scheduling for and use of
the New Gym will be subject to:
(a) the provisions of Article 3 hereof;
(b) such relevant policies of the Board as may be in effect from time to time;
(c) such facility use agreements as the Board may require, from time to time, to be
entered into by parties wishing to use its facilities;
(d) any such rules as may be established by the Board, from time to time with
respect to the use of its facilities.
ARTICLE 3 -USAGE OF NEW GYM
3.01 Preferred Scheduling
The Board and the Town agree that from such time as the New Gym is completed and
ready for use until August 31, 2029 (the "Preferred Usage Period"):
(a) the Town shall be entitled to not less than thirty (30) hours of use of the New
Gym per week, in the aggregate, as follows:
(i) an aggregate of not less than twenty (20) hours between the hours of
6:00 p.m. and midnight Monday through Friday; and
(ii) an aggregate of not less than ten (1 0) hours between the hours of 7:00
a.m. and midnight Saturday through Sunday;
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(b) activities of or relating to the Board and it's students shall always be given
preferential consideration in respect of the booking and use of the New Gym. In
this regard, it is understood and agreed that: (i) the New Gym will not be
available to the Town between the hours of 7:00 a.m. to 6:00 p.m. on days the
School is in normal usage; and (ii) to the extent that the Town has booked the
usage of the New Gym, the Board shall be entitled to re-schedule such usage by
the Town in circumstances where the New Gym is required for previously
unforeseen Board activities (e.g. playoff games for Board sports teams);
(c) subject to the other relevant terms of this Agreement and subject to the Town
providing the Board with written particulars of the times and dates of the Town's
desired usage of the New Gym during each successive twelve month period
commencing September 1 and ending August 31 during the Preferred Usage
Period (such written particulars to be provided not less than thirty (30) days prior
to the commencement of each such twelve month period), the Board shall use its
reasonable best efforts to ensure that the Permitted Activities (as defined below)
of the Town are given preferential consideration and will receive first priority for
purposes of the use of the New Gym; provided that, the Town will be required to
enter into the Board's form of facility use agreement, in effect from time to time
(but subject to the provisions hereof), and to comply with the terms thereof,
including, without limitation, the insurance requirements thereof; and
(d) to the extent that the Town desires to obtain usage of the New Gym for any time
periods which have not been addressed in its written request contemplated in
paragraph 3.01 (b) above, it shall communicate its desires in respect of same to
the Board and the Board will use reasonable efforts to accommodate such
requests; provided that: activities of or relating to the Board and it's students
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shall always be given preferential consideration; usage of the New Gym already
having been granted by the Board to other parties during such time periods; and,
it is understood and agreed that such additional usage will be subject to the
terms and conditions hereof, mutatis mutandis.
In connection with the foregoing, the Town shall only schedule its usage of the New
Gym for actual and specifically identified activities and purposes. The Town shall not
attempt to book usage of the New Gym on an unplanned basis for activities it may
identify or develop at some point in the future.
3.02 Usage Rates
Notwithstanding any of the provisions hereof or any facility use agreement entered into
between the Board and the Town, during the term of this Agreement, the amount to be
paid by the Town for usage of the New Gym (over and above any amounts the Board
may be entitled to receive from any governmental authority for purpose of community
and similar usage of Board facilities), will be the aggregate of the following:
(a) an amount per hour to be charged to the Town (which shall be referred to herein
as the "Hourly Operating Cost") for each hour, or part thereof rounded up to
the nearest whole hour that the Town uses the New Gym for purposes of its
activities. The Hourly Operating Cost, from time to time, shall be calculated on
the basis set forth in Schedule "D" hereto: As at the date of this Agreement the
Hourly Operating Cost is $1.33; and
(b) to the extent that the Town wishes to use the New Gym at any time when the
Board does not have a normally scheduled custodian shift for the School, the
Town shall be responsible for paying the Board an amount equal to the Board's
custodial costs incurred in connection with such usage by the Town, as
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calculated by the Board (acting reasonably) and recognizing that the Board's
collective agreement with its custodians will have minimum time periods for the
assignment of a custodian (currently three (3) hours) and the Town will be
responsible for reimbursing the Board for its costs resulting from any such
minimum assignment provisions. The Town acknowledges that custodians will
not be assigned by the Board to the School on weekends, public holidays
(established from time to time by any governmental authority), Ontario Family
Day, Easter Monday, Civic Holiday (August), December 24 and December 31 in
each year.
The Board shall, no less frequently than once every twelve (12) months, invoice the
Town for the amount payable by it for its usage of the New Gym during the prior period,
on the basis set forth above. The Town shall pay the amount of all invoices provided to
it, forthwith, upon receipt thereof. Non-payment or delayed payment of any invoice
rendered to the Town (after sixty (60) days prior written notice by the Board to the Town
of such non-payment), will entitle the Board to suspend the Town's usage of the New
Gym, until all outstanding invoices are paid in full and the Board is satisfied, acting
reasonably, that the Town is capable of paying and satisfying invoices for its usage of
the New Gym in a timely manner.
3.03 Covenants of the Town
The Town hereby covenants, acknowledges and agrees as follows:
(a) The Town's usage of the New Gym will be limited to types of athletic activities
identified in Schedule "E" hereto and such additional athletic activities as the
Board and the Town may otherwise agree (together, "Permitted Activities"). It
is understood by the Town that one of the objectives of the Board in restricting
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Permitted Activities will be to recognize that the floor of the New Gym and the
New Gym itself is designed for specific purposes and the Board will want to limit
activities which could be reasonably considered to cause undue wear to the New
Gym.
(b) It is recognized that persons, groups and other entities may wish to enter into
arrangements with the Town so that the Town can schedule Permitted Activities
on behalf of such persons, groups or entities under the auspices of this
Agreement, in connection therewith the Town covenants and agrees that:
(i) in no circumstances shall the Town be relieved of any of its obligations to
the Board under this Agreement or any facility use agreement it enters
into with the Board;
(ii) as between the Board and the Town, any such scheduled Permitted
Activity will be treated as if it were a Permitted Activity of the Town; and
(iii) the aforementioned persons, groups or entities shall be limited to
persons, groups or entities which have a reasonable connection to the
geographic area comprising the Town and otherwise are not persons,
groups or entities whose activities or membership offend Board policies.
(c) under no circumstances shall the Town attempt to enjoy any economic benefit in
connection with its scheduling of Permitted Activities and its use of the New
Gym, other than as specifically contemplated herein. For purposes of certainty,
and without limiting the generality of the foregoing, the Town's usage of the New
Gym is to be strictly on a cost recovery basis and the Town shall not charge any
amount to any parties in connection with the usage of the New Gym which would
result in the Town recovering any amounts in excess of the respective amounts
required to be paid by it to the Board under this Agreement.
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(d) the Town shall be responsible for ensuring that all Permitted Activities scheduled
by it in the New Gym (and any other area of the School it or its invitees are
permitted to use for purposes of access to the New Gym) are undertaken,
carried out and effected in accordance with all applicable laws and all rules and
policies established by the Board, from time to time.
(e) the Town shall be responsible for ensuring that, in connection with any Permitted
Activities scheduled by it in the New Gym (and any other area of the School it or
its invitees are permitted to use for purposes of access to the New Gym), all of
its employees, agents and invitees comply with applicable laws and all rules and
policies of the Board established from time to time.
(f) The Town shall ensure, without cost to the Board, that a sufficient number of
adequately qualified adults are present to ensure the appropriate management,
oversight and supervision of all of its invitees to or participants in a Permitted
Activity scheduled by the Town.
(g) In connection with any Permitted Activities scheduled by the Town, the Town
shall not do, allow, permit or allow to be suffered any waste or damage,
disfiguration or injury to the New Gym or the School, nor allow, permit or allow to
be suffered any overloading thereof. The Town shall not utilize or permit any of
its employees, agents or invitees to use any part of the New Gym or the School
for any illegal or unlawful purpose or any dangerous, noxious or offensive trade
or business, and shall not cause, allow to be caused or permit any nuisance in,
at or on the New Gym or other portion of the School or the Property permitted to
be used by it or its invitees.
(h) No portion of the New Gym shall be used by the Town or its invitees in a manner
which is likely to damage or injure any person, the New Gym or the School or in
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any manner which will interfere with the use and enjoyment of the School by the
Board or any of its employees, agents or invitees. In addition to the foregoing,
the Town agrees that it shall use, and shall ensure that all of its employees,
agents and invitees use, the New Gym, at all times, in a manner that it
compatible with the safe and proper operation of the School.
(i) The Town hereby agrees to cooperate with the Board and to take any and all
steps necessary in order to promote and maintain user safety, including, without
limitation, the Town agrees that none of its employees, agents or invitees will be
permitted to be in any part of the School (other than the New Gym) and will
access the New Gym using such entrance(s) as the Board may designate.
U) The Town shall indemnify the Board and save it harmless from any and all
losses or claims, actions, demands, liabilities and expenses in connection with
Joss of life, personal injury and/or damage to or Joss of property: (i) occasioned
or caused, wholly or in part, by any act or omission of the Town or its agents,
employees, invitees or by any one for whom the Town is otherwise in Jaw
responsible for; or (ii) arising from any breach by the Town of any provision of
this Agreement or any facility use agreement it is required to enter into with the
Board.
For purposes ofthis Agreement, reference to the Town's "invitees", means any and all
persons, groups or entities who attend or participate in a Permitted Activity scheduled by
the Town pursuant to the terms of this Agreement.
3.04 Rights of Board to Deny Access
It is understood and agreed that the Board shall be entitled to refuse access to and/or
usage of the New Gym by the Town, in the event that:
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(a) the Town, its agents, employees or its invitees, breaches the terms of this
Agreement or any facility use agreement the Town enters into with the Board; or,
(b) should the conduct or behaviour of the Town, its agents, employees or its
invitees breach or offend any policies or rules of the Board, in effect from time to
time, including, without limitation, the Board's policies with respect to safe
schools.
Further, the Town acknowledges, understands and agrees that:
(i) in the event that the Board and/or the Property is the subject of or
effected by any labour dispute or disturbance;
(ii) the Board needs to effect repairs and/or upgrades to the New Gym or the
School;
(iii) if the Board is unable to provide a custodian for the School, at any time
that it does not have regularly assigned custodian staff for the School,
and the Town wishes to utilize the New Gym during such period;
(iv) in circumstances where the School is closed as a result of weather
conditions or other acts of God; or,
(v) in circumstances where there has been a power outage or other utility
failure affecting the School,
the Board may not be able to make the New Gym available for use by the Town and
may have to cancel already scheduled Permitted Activities. In such circumstances, the
Board shall have no liability or additional obligations arising from such circumstances.
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3.05 Damage by Fire
To the extent that the New Gym or the School is damaged by fire or other disaster, prior
to August 31, 2029, the Board shall use reasonable commercial efforts to repair or
rebuild the areas of the New Gym and/or the School so damaged, within a reasonable
period of time, so that the Town can continue to enjoy its rights under this Agreement.
Alternatively, the Board may, in its discretion, provide the Town with rights similar to
those enjoyed by the Town under this Agreement in respect of a different facility;
provided that, such facility is reasonably similar to the New Gym and is located within
the Town of Tillson burg.
3.06 Town Indemnity
The Town shall indemnify the Board and save it harmless from any and all losses or
claims, actions, demands, liabilities and expenses in connection with loss of life,
personal injury and/or damage to or loss of property:
(a) arising out of any occurrence in or about the School occasioned or caused
wholly or in part by any act or omission of the Town or any of its agents,
employees, invitees or by any one for whom the Town is otherwise in law
responsible for; or
(b) arising from any breach by the Town of this Agreement or any facility use
agreement it enters into with the Board.
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3.07 Discussions
During the month of September, 2011, and every two (2) years thereafter during the
month of September during the term of this Agreement, representatives of the parties
hereto shall meet, at least once, to discuss and consider:
(a) the operations of the New Gym and the experiences of the parties in relation to
the terms of this Agreement;
(b) scheduling issues and/or concerns which may have arisen in relation to this
Agreement; and
(c) Permitted Activities and any issues or concerns which may have arisen in
respect thereof.
ARTICLE 4-GENERAL
4.01 Effect of Waiver or Forbearance
No waiver by any party of any breach by any other party of any of its covenants,
agreements or obligations contained in this Agreement shall be or be deemed to be a
waiver of any subsequent breach thereof or the breach of any other covenants,
agreements or obligations, nor shall any forbearance by any party to seek a remedy for
any breach by any other party be a waiver by the party so forbearing of its rights and
remedies with respect to such breach or any subsequent breach.
4.02 Notices
(a) Any notice to the parties hereunder may be delivered personally or sent by
prepaid registered or certified mail or prepaid courier to the address for such
party as set out below:
To the Board:
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Thames Valley District School Board
951 Leathorne Street
London, ON N5Z 3M7
Attention: Mr. Kevin Bushell
Facsimile No.: (519) 452-2411
E-mail: k.bushell@tvdsb.on.ca
To the Town:
The Corporation of the Town of Tillson burg
220 Broadway Street, 2nd Floor
Tillsonburg, ON N4H 5A7
Attention: Clerk's Office
Facsimile No.: (519) 842-9431
E-mail: mgraves@tillsonburg.on.ca
any such notice, delivery or payment so delivered or sent shall be deemed to
have been given or made and received on delivery of same or on the third
business day following the mailing of same, as the case may be. Each party
may, by notice in writing to the others from time to time, designate an alternative
address in Canada to which notices given more than ten (10) days thereafter
shall be addressed.
(b) Notwithstanding the foregoing, any notice, delivery, payment or tender of money
or document(s) to be given or made to any party hereunder during any disruption
in the service of Canada Post shall be deemed to have been received only if
delivered personally or sent by prepaid courier.
4.03 Number, Gender, Effect of Headings
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
words importing persons shall include firms and corporations and vice versa. The
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division of this Agreement into Articles and Sections and the insertion of headings are
for convenience of reference only, and shall not affect the construction or interpretation
of this Agreement.
4.04 Assignment and Amendments
Neither party may assign this Agreement without the express written consent of the
other, which may be unreasonably withheld. No amendment, variation or change to this
Agreement shall be binding unless the same shall be in writing and signed by the
parties.
4.05 Successors and Assigns
The rights and liabilities of the parties shall enure to the benefit of their respective heirs,
executors, administrators, successors and permitted assigns.
4.06 Sale of School
In the event that the Board determines that it wishes to sell the Property or the School at
any time prior to August 31, 2029 the Board shall be entitled, at its election:
(a) to continue to make the New Gym available to the Town in accordance with the
terms of this Agreement; or
(b) to provide the Town with rights reasonably similar to those enjoyed by the
Town under this Agreement in respect of a different facility; provided that, such
facility is reasonably similar to the New Gym and is located within the Town of
Tillsonburg.
4.07 Renewal
The Town shall have the right, on written notice to be delivered to the Board not later
than January 1, 2029, to request that the Board enter into negotiations for the
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negotiation and settlement of a new agreement for the period from September 1, 2029
to August 31, 2049, which agreement would be intended to provide the Town with rights
similar to those enjoyed by it pursuant to Article 3 hereof. Such negotiations would be
subject to the following:
(a) both parties shall be required to negotiate in good faith;
(b) any such agreement will not contain any further rights of renewal or any rights
similar to those set out in this section 4.07;
(c) the parties would have to enter into new arrangements for those contemplated
in section 3.02 hereof on a basis which would be intended to allow the Board to
reasonably recover its operational costs for the Town's usage of the New Gym;
(d) such new agreement may not contain a provision similar to section 3.05
hereof, but may expressly provide that, "to the extent the New Gym or the
School is damaged by fire or other disaster, the Board may elect not to repair
or rebuild the areas of the School so damaged and, as a result thereof, the
Board may wish to deny the Town access to the New Gym, and in such
circumstances, the Board shall have no liability or additional obligations arising
from such circumstances"; and
(e) any such new agreement may not contain a provision similar to section 4.06
hereof, but may provide, in effect, that "in the event the Board adopts a
resolution under clause 194(3)(a) of the Education Act (Ontario) (or any similar
provision of any successor legislation), to the effect that the Property is not
required for purposes of the Board, the Board shall be entitled to terminate any
such new agreement on twelve (12) months written notice to the Town,
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following which the Board shall have no further obligation to the Town under
any such new agreement, including, without limitation, the obligation to provide
preferential scheduling for the usage of the New Gym by the Town".
IN WITNESS WHEREOF the parties have duly executed this Agreement.
THE CORPORATI N OF THE
TOWN OF Tl NBURG
SCHEDULE A
DESCRIPTION OF PROPERTY
Tillsonburg Town, Glendale South Side, Plan 500, Part Lot 715, Glendale HS
Municipally known as: 37 Glendale Drive, Tillsonburg, Ontario
-~----------··-
SCHEDULE B
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§ I
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1~1 II IIIII I
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SCHEDULE C
LETTER OF CREDIT CHARACTERISTICS
Intentionally left blank
SCHEDULED
HOURLY RATE CALCULATION
The hourly operating cost shall be calculated as an amount equal to the Board's commodity
cost, from time to time, for 14 kilowatt hours of electricity and 0.01 gigajoules of natural gas. At
the Board's current commodity rate the hourly operating cost is $1.33.
Aerobics
Badminton
Basketball
Boxing
Dance
Fencing
Gymnastics
Handball
Judo
Pilates
Table Tennis
Taekwondo
Volleyball
Wrestling
Yoga
1068163_6.DOC
SCHEDULE E
PERMITTED ACTIVITIES