2011/08/25 Special Council MtgNiagaraaulls
PRAYER: Councillor Pietrangelo
SPECIAL COUNCIL MEETING
August 25, 2011
DISCLOSURES OF PECUNIARY INTEREST
Disclosures of pecuniary interest and a brief explanation thereof will be made for
the current Council Meeting at this time.
REPORTS
1. Chief Administrative Officer BDD- 2011 -06 - City of Niagara Falls and Niagara
Parks Commission, Visitor Transportation System
Agreement
-AND -
Email from Sue McDowell, Fallsview/ Victoria Centre BIA
NOTE: the VTS agreement is attached to the proposed execution bylaw .
MAYOR'S REPORTS, ANNOUNCEMENTS
BY -LAWS
The City Clerk will advise of any additional by -laws or amendments to the by -laws
listed for Council consideration.
2011 -110 A by -law to authorize the execution of an Agreement with the Niagara Parks
Commission respecting a Visitor Transportation System (VTS).
2011 -111 A by -law to designate Block 119, Registered Plan 59M -379, not be subject to
part-lot control.
2011 -112
2011 -113
2011 -114
- 2 -
A by -law to designate the whole of the City of Niagara Falls as a site plan
control area, to define the classes of development that may be undertaken
without the approval of plans and drawings, and to delegate to an appointed
officer of the municipality the powers or authority of council permitted under
section 41 of the Planning Act, R.S.O. 1990, c.P.13.
A by -law to appoint Councillor Vince Kerrio as Acting Mayor.
A by -law to adopt, ratify and confirm the actions of City Council at its special
meeting held on the 25 day of August, 2011.
NEW BUSINESS
Niagara
REPORT TO:
SUBMITTED BY:
SUBJECT:
RECOMMENDATION
EXECUTIVE SUMMARY
Mayor James M. Diodati and
Members of Municipal Council
City of Niagara Falls
Business Development
BDD- 2011 -06
City -NPC Visitor Transportation System Agreement
BDD- 2011 -06
August 25, 2011
That Council approve the Agreement between the City and the Niagara Parks Commission
(NPC) related to the operation of the Visitor Transportation System (VTS) for a ten (10)
year term.
The NPC and City of Niagara Falls have finalized the terms of the VTS agreement. Under
the terms of the new funding model, the BIA's and City VTS agreement are no longer
required.
The highlights of the new agreement between the City and the NPC are as follows:
• The City will manage, operate, and maintain the Blue and Red Lines.
• The NPC will manage, operate, and maintain the Green Line.
• Over the ten year term of the Agreement, NPC will pay to the City an annual
contribution of $1M (plus applicable 2.5% annual escalator (compounded))
towards the operating costs of the Red and Blue Lines of the VTS system.
• NPC is entitled to 100% of VTS gross ticket revenues from the 4 kiosks which
will be located in NPC Parks and responsible for the operating and maintenance
costs associated with such kiosks for the 10 year term of the Agreement.
• For each year of the 10 year term of the Agreement, the annual VTS gross ticket
revenues from the 5 kiosks owned by the City which will be located on property
along the Red Line or Blue Line and any walk -ons shall be allocated as follows:
► until such time as the VTS gross ticket revenues from all kiosks, walk -ons
and discounted VTS tickets for the applicable year equals $1M (plus
applicable 2.5% annual escalator), 100% will go to NPC and NPC agrees to
reimburse the City out of such revenues for the costs of the day -to -day
operation and maintenance of the 5 City owned kiosks until said amount is
reached. The City will be responsible for the operating and maintenance of
August 25, 2011 2 BDD- 2011 -06
the 5 City owned kiosks, and
• VTS gross ticket revenues from kiosks, walk -ons, and discounted VTS
tickets for the applicable year above $1M (plus applicable 2.5% annual
escalator), NPC and City will share equally (50 % -50 %) inclusive of costs for
operating and maintaining kiosks.
• For each year of the 10 year term of the Agreement, NPC and City will share
equally the revenue from the sale of VTS tickets from the kiosk at Union Station
in Toronto after first deducting the costs to operate and maintain the kiosk.
• For each year of the 10 year term of the Agreement, NPC and City will share
equally (50 % -50 %) the VTS gross ticket revenues from the one kiosk at GONia
Niagara Falls station less the costs to operate the Queen Street route and to
operate and maintain the one kiosk at GO/Via Niagara Falls station.
• During the 10 year term of the Agreement, a holder of a VTS tickets is entitled
to travel on each of the Green, Red, and Blue Lines and transfer between such
Lines for two successive days.
• NPC agrees to make available to members of the BIA's tickets, at a price per
ticket of $2.50 (plus applicable 2.5% annual escalator (compounded)) provided
that all such tickets (i) are offered only to guests /visitors /tourists; and (ii) are
packaged /bundled with a hotel room or another product/service of a value of no
less than $40.
• NPC will have input into the substance and form of ITS reports to be developed
during the implementation of the ITS system.
• The route of the Green Line will run between Table Rock and the intersection
of the Victoria Avenue and River Road.
• The disembarkment and boarding of the Red Line and /or Blue Line in the Parks
shall be limited to Table Rock.
The concept of Advisory Committee in the Agreement will be redefined as the
VTS Feedback Committee. The purpose of the VTS Feedback Committee will
be to provide the BIAs with a forum for discussion and voice to communicate
their concerns and opinions of the performance of the new VTS system. The
VTS Feedback Committee will have no decision making authority but will make
recommendations to the City and NPC on the matters brought before it. The
VTS Feedback Committee will be comprised of 2 representatives from each of
(i) NPC, (ii) City, and (iii) each BIA. One of the representatives of NPC shall
serve as the chairperson of the VTS Feedback Committee.
• If the City builds the bus terminal with sufficient bus storage bays, the City
agrees to lease /license to NPC that number of storage bays equal to NPC's pro
rata share of the total number of VTS buses, up to a maximum of 8 storage
bays, for an annual fee of $1 per storage bay plus NPC's pro -rata portion of
over -head costs associated with such storage (i.e. electricity, heating, etc.)
August 25, 2011 3 BDD- 2011 -06
In addition to the general indemnity clauses in the Agreement, the following is
intended regarding the indemnification by or of the parties:
► Bus orders and bus delivery and City run building projects (including the
building and supply of kiosks) contemplated by and funded through the
Agreement and the Contribution Agreement shall be the sole responsibility
of City, and City shall not look to NPC for indemnity for such orders, delivery
and projects. Notwithstanding the foregoing, in this paragraph, the City's
indemnification responsibility with respect to bus order and bus delivery is
subject to NPC finalizing its bus specifications and delivering such
specifications to the City on or before August 15, 2011.
• Road improvements in the Parks contemplated by and funded through the
Agreement and the Contribution Agreements shall be the sole responsibility
of NPC, and NPC shall not look to City for indemnity for such road
improvements.
• Any press releases relating to this Agreement and the VTS system project shall
be jointly agreed to and released.
• City and NPC agree that the Agreement is subject to approval by the members
of the Niagara Parks Commission and ratification by Niagara Falls City Council.
BACKGROUND
In collaboration with BIA's and NPC, an operating funding model had been developed for
the VTS. Under this model, the City would run the Red and Blue Lines with the BIA's
contributing $600,000 with an annual escalation of 2.5% for up to 10 years. The City
reallocated $400,000 from the Falls Shuttle program to cover the balance of the operating
costs for the Red and Blue Lines.
The NPC would operate the Green Line which services the NPC property and would be
responsible for operating costs of the Green Line.
Due to various outstanding issues regarding the NPC and City agreement and the
extremely sensitive timeline for the project, the Province appointed a mediator to mediate
the outstanding issues on July 28, 2011. Upon conclusion of the full day mediation, a new
financial and operating model was developed between the City and NPC which no longer
required the financial support of the BIA's. The BIA's have been informed of the new model
and that their agreement with the City will not be executed.
FINANCIAL IMPACT
The NPC will pay to the City $1 million annually during the term of the agreement
towards the operating costs of the Red and Blue Lines with a 2.5% escalation
compounded annually. In addition, the $400,000 which was reallocated from the Falls
Shuttle to support the VTS will serve as an annual reserve fund for the Red and Blue
Item
Budget
Rolling Stock - Red & Blue Line:
• 11 articulated buses (60')
• 5 articulated buses (40')
10,928,400
Rolling Stock - Green Line:
• 9 articulated buses (60')
• 2 articulated buses (40')
7,862,300
ITS /Fare Box
2,600,000
10 Ticket Kiosks:
650,000
Branding Platform
325,000
Operating, Maintenance, & Storage
Facility Architect Fees
1,450,000
Site Preparation, Services, Access,
IT Connection
1,000,000
Building Construction
14,650,000
FF &E, Project Management,
Geotechnical, Environmental
800,000
Station, Upgrade, Drop -off and
Pick -up Points
1,000,000
Intersection, Lane Improvements
1,900,000
NPC River Road Realignment
5,835,200
Subtotal
$49,000,900
HST
$999,100
Total
$50,000,000
August 25, 2011 4 BDD- 2011 -06
Lines. Also, the balance of FMC funds which have been dedicated to the VTS costs to
date will be directed to the City to be used for cash flow support, operating deficiencies,
major maintenance, and capital requirements towards the City's Red and Blue Lines.
An agreement regarding the balance of the funds will be prepared between OLG /FMC
and the City of Niagara Falls.
As Council is aware, the Capital Budget for the project is $50 million comprised of $25
million provided by the Federal and Provincial governments respectively. The Capital
Budget will be allocated as follows:
August 25, 2011 5 BDD- 2011 -06
With the revised funding and operating model finalized, the City can proceed to enter
into contribution agreements with the Federal and Provincial governments for the $50
million.
CITY COUNCIL STRATEGIC PRIORITY
Economic vitality and convenient, accessible and sustainable transportation within the
City and moving forward with the implementation of the Visitor Transportation System.
Recommended by:
Respectfully submitted;
SF /Ib
(
Serge Felicetti, Director of Business Development
,
odd Chief ministrative
Officer r
(8/23/2011) Dean Iorfida - Re: people mover Page 1
From: Sue McDowell < suemcdowell @fallsviewboulevard.com>
To: Dean Iorfida <diorfida @niagarafalls.ca>
CC: " <hoakes @cliftonhill.com >" <hoakes @cliftonhill.com >, " <nshahani @gmail.co...
Date: 8/18/2011 1:04 PM
Subject: Re: people mover
Sue McDowell
Sent from my iPhone
Without benefit of spellcheck
On 2011- 08 -18, at 11:24 AM, "Dean Iorfida" <diorfida @niagarafalls.ca> wrote:
> Sue:
> The special meeting of City Council on the People Mover (Visitor Transportation) agreement between
the City and the Niagara Parks Commission will take place a week from today:
> Thursday, August 25, 2001 at 5:30 p.m., Council Chambers
> If someone wishes to speak, they should notify me in writing.
> Hopefully, I will have an agenda that I can send out early next week. I would remind you of an email that
was sent out last week (see below).
> Thanks
> Dean
>
Hi Dean & thank you... My BIA 's are in support of this.
>
> The partnering BIAs should take comfort in the following:
> 1) They are not being looked to for a contribution.
> 2) Their members can still purchase the tickets at the previously stipulated $ 2.50, as a part of a
package of goods and services with a minimum value of $40.00, which was part of the proposed
agreement with the BIA's.
> 3) The rules concerning shuttles remain, as is. Shuttles are unlikely to even be mentioned in the
agreement with the NPC.
> Once again, these matters are close to being finalized and the BIA's will get full details in the near future.
Assure your members that the developments, in my opinion, are positive from a BIA perspective.
> Dean
> Dean lorfida, City Clerk
> Niagara Falls
> 905 - 356 -7521, Ext. 4271
> 905 - 356 -9083 (Fax)
»» "Sue McDowell" < suemcdowell @fallsviewboulevard.com> 8/18/2011 9:56 AM »>
(8/23/2011) Dean lorfida - Re: people mover Page 2
> Hi Dean:
> Please notify myself & the BIA's when the people mover issue comes before
> council. We are very concerned about this & would like to make a
> presentation.
> Thank you!
>
> Sue McDowell
> Executive Director
> Fallsview BIA
>
> P.O. Box 655
>
> Niagara Falls, Ontario
> L2E 6V5
> tel: 905 358 7137 cell: 905 348 4880 fax: 905 358 5891
> Visit our website- < http : / /www.fallsviewboulevard.com />
> www.fallsviewboulevard.com
> join us facebook for all the latest updates - Niagara Fallsview Boulevard
> Laugh often, long and loud. Laugh until you gasp for breath.
> Come let us make you laugh - Fallsview Boulevard!!
>
- 6 - April 20, 2009
Council Minutes
COMMUNICATIONS AND COMMENTS OF THE CITY CLERK
Child Find Ontario- Request that the month of March be proclaimed as "Missing
Children's Month" and May 25 be declared as "National Missing Children's Day"
in the City of Niagara Falls.
RECOMMENDATION: For the Approval of Council.
ORDERED on the motion of Councillor Kerrio, seconded by Councillor Pietrangelo
that the communication be approved.
FINANCE REPORTS
REPORTS
Carried Unanimously
F- 2009 -22 - The Use of Excess Funds- Downtown Revitalization. The report
recommends that Council make a decision on the use of the remaining Downtown
Revitalization funds.
ORDERED on the motion of Councillor Diodati, seconded by Councillor Thomson
that Mordechai Grun be permitted to make a presentation.
with Councillor loannoni opposed.
Motion Carried
Mordechai Grun, Chair, on behalf of the Downtown BIA, made a brief presentation
informing Council of the Downtown Beautification project.
ORDERED on the motion of Councillor Thomson, seconded by Councillor Fisher
that the remaining funds from the Downtown Public Realm Studies fund be provided for
Downtown streetscape and beautification and that the Downtown B.I.A. provide a list of the
different projects where the money will be allocated.
Motion Carried
with Councillor loannoni opposed.
RATIFICATION OF COMMUNITY SERVICES COMMITTEE MATTERS
ORDERED on the motion of Councillor loannoni, seconded by Councillor Kerrio that
the actions taken in Community Services Committee, on April 20, 2009 be approved.
Carried Unanimously
1. That the minutes of the April 6, 2009 meeting be adopted as recorded.
2. People Mover Project Update Report
That the City indicate to the Federal Government that the municipality is
working diligently and is committed to the People Mover System; and that the
Federal Government be requested to work with the municipality and extend
the June deadline on the People Mover funding.
3. TS- 2009 -02
Tourist Area Parking Demand Study
That the Tourist Area Park Demand Study be received; Staff proceed with
meetings with the appropriate stakeholders and report back to Council.
4. PD- 2009 -25
Matters Arising from Municipal Heritage Committee Regarding the
Oswald House Fence, 2922 St. Paul Avenue
PD- 2009 -32 - Municipal Staff Review Regarding the Oswald House
Fence, 2922 St. Paul Avenue
August 31, 2009
Council Minutes
CONSENT AGENDA
THE CONSENT AGENDA IS A SET OF REPORTS THAT COULD BE APPROVED IN ONE
MOTION OF COUNCIL. THE APPROVALENDORSES ALL OF THE RECOMMENDATIONS
CONTAINED IN EACH OF THE REPORTS WITHIN THE SET. THE SINGLE MOTION WILL
SAVE TIME.
PRIOR TO THE MOTION BEING TAKEN, A COUNCILLOR MAY REQUEST THAT ONE OR
MORE OF THE REPORTS BE MOVED OUT OF THE CONSENT AGENDA TO BE
CONSIDERED SEPARATELY.
BDD- 2009 -04 - People Mover Update. It is recommended for the information of Council.
ORDERED on the motion of Councillor Thomson, seconded by Councillor Fisher
that the possibility of subsequent phases be recognized.
Carried Unanimously
F- 2009 -43 - Tax Receivables Monthly Report (July). It is recommended for the
information of Council.
F- 2009 -44 - Municipal Accounts. It is recommended that Council approve the municipal
accounts totaling $33,592,369.43 for the period July 3, 2009 to August 12, 2009.
MW- 2009 -59 - Mewburn Road Bridge Temporary Closure Status Report and Next
Steps. It is recommended that the Town of Niagara -on- the -Lake, Region of Niagara and
affected area residents be notified of the extension of the temporary closure of the
Mewbum Road Bridge pending the completion of a Municipal Class Environmental
Assessment (EA) of alternatives; and
That Delcan Corporation be engaged to complete the EA in accordance with their attached
proposal dated July 3, 2009 at an upset limit of $60,000 (plus GST and contingencies.)
MW- 2009 -60 - Calaguiro Estates Subdivision Phase 2 Sidewalk Elimination. It is
recommended that the requirement to construct interior sidewalks in the Calaguiro Estates
Phase 2 Subdivision be deleted in exchange for equivalent cash payment to the City to
construct a new sidewalk on Dorchester Road (between Calaguiro Drive and Fireman's
Park.)
MW- 2009 -62 - Lundy's Lane Historical Museum Quantity Surveyor Services
Consultant Selection. It is recommended that the firm cm2r Incorporated be awarded the
Quantity Surveying assignment for the construction of the Lundy's Lane Historical
Museum. and that the Mayor and City Clerk be authorized to executive this agreement.
MW- 2009 -63 - Ontario Power Generation Lands - Oakwood Drive - Temporary Access
and Construction Licence Agreement Oakwood Place Shopping Centres Inc. It is
recommended that the City enter into an agreement with Ontario Power Generation Inc.
and Oakwood Place Shopping Centres Inc. for the construction and maintenance of an
underground storm sewer and outfall into the Hydro Power Canal; and that the Mayor and
City Clerk be authorized to execute the Licence Agreement.
MW- 2009 -64 - Fernwood Subdivision, CN Rail Watermain Pipe Crossing Agreement
Lundy's Lane ( Mile 26.41 Stamford Subdivision). It is recommended that the Mayor and
City Clerk be authorized to sign and execute an agreement with Canadian National Railway
Company for the right to construct, use and maintain a new 200mm diameter watermain
on Lundy's Lane required for the Fernwood Plan of Subdivision.
PD- 2009 -64 - SWC- 2009 -003, That's Amore Pizzeria, Sidewalk Cafe Licence
Agreement with the City, 4572 Queen Street. It is recommended that the Mayor and the
City Clerk be authorized to execute a Sidewalk Cafe Licence Agreement with
Kanagasangary Tharmasangary & Suresh Balendra and Historic Niagara Development Inc.
to permit the operation of a sidewalk cafe over a portion of the City sidewalk in front of
That's Amore Pizzeria located at 4572 Queen Street.
- 9 - February 22. 2010
Council Minutes
2. Ontario Provincial Police, Niagara Detachment - requesting Bridge Dedication
for CN overpass at Sand Plant Hill in the name of Provincial Constable John
Gregovski.
RECOMMENDATION: For the Consideration of Council
ORDERED on the motion of Councillor Kerrio, seconded by Councillor Maves that
the request be approved.
Carried Unanimously
REPORTS
RATIFICATION OF COMMUNITY SERVICES COMMITTEE MATTERS
ORDERED on the motion of Councillor loannoni. seconded by Councillor Diodati
that the actions taken in Community Services Committee. on February 22. 2010 be
approved.
Carried Unanimously
1) The minutes of the January 25, 2010 meeting be approved
2) REPORTS
a) MW- 2010 -09
Glenholme Avenue Road Allowance
That the above report be deferred
b) PD- 2010 -02
Research into Enacting a By -law under
Section 99.1 of the Municipal Act
That Council not enact a by -law under Section 99.1 of the Municipal Act.
c) PD- 2010 -15
Appeal of Committee of Adjustment Decision
Consent Application B- 2009- 034,Ort Road /Reixinger Road
Applicant: Joe Kekic (Agent -Brian Sinclair)
1. That staff withdraw the appeal of the Committee of Adjustment to the OMB
regarding consent application B- 2009 -034. Ort Road /Reixinger Road.
d) BDD- 2010 -01
People Mover Project Update
For the information of Committee.
e) PD- 2010 -11
Commercial Building & Facade Improvement Grant Application
CB &FIG- 2009 -017 4519, 4521 and 4525 Queen Street
Sal & Mary DiPietro and Carman & Anna Tartaglia
1. That the Commercial Building & Facade Improvement Grant Application for
4519, 4521 and 4525 Queen Street be approved subject to the owners
satisfying all the program requirements including the requirements of City
permits and entering into an agreement with the City
2. That the Mayor and Clerk be authorized to sign and execute the grant
agreement_
f) F- 2010 -43
Water Sustainability Plan Report
That Council approve the Water Report as submitted.
g) F- 2010 -39
Water Billing Update
-11- June28,2010
Council Minutes
That Council approve the monthly billing of combined water /hydro accounts by
Niagara Peninsula Energy Inc. effective August 2010.
h) F- 2010 -40
2009 Reserves & Reserve Funds
That the City Council receive this report on the 2009 activity in reserves and reserve
funds
I) PD- 2010 -52
Request by the Downtown BIA to Utilize Funds
from the Downtown CIP Reserve
That the request by the Downtown BIA be approved
4) NEW BUSINESS:
That the petition presented by Mr. Zappitelli, regarding Riall Street, be referred to staff
for a report.
5) R&C- 2010 -15 - Advertising Policy
MW- 2010 -44 - Kalar Road Appraisal
People Mover
The report recommends that Council approve the Advertising Policy with the
amendment that no political advertising be permitted.
ORDERED on the motion of Councillor Thomson, seconded by Councillor Pietrangelo
that the policy be approved with the issue of political advertising to be deferred.
Carried Unanimously
RATIFICATION OF IN CAMERA COMMITTEE RECOMMENDATIONS
ORDERED on the motion of Councillor loannoni, seconded by Councillor Pietrangelo
that the recommendation from the "In Camera" meeting on January 25. 2010 be approved
That staff be authorized to proceed with the accusation of the necessary properties
required to construct the road improvements for Kalar Road from Lundy's Lane to
Beaverdams Road, as set out in the report.
2 That the Mayor and Clerk be authorized to execute any and all agreements and
documents related to the People Mover.
Carried Unanimously
- 6 - August 9, 2010
Council Minutes
f) TS- 2010 -37
Niagara Air Bus Vehicles
That the report be deferred.
g) TS- 2010 -38
Family & Children Services Charter Request
That Council approve the request of FAC's for a grant equal to the cost of Charter
Services.
h) CAO- 2010 -06
Gale Centre Alarms
That the report be received for the information of Council.
I) CD- 2010 -07
Political Advertising
That the Corporate Advertising Policy state the following regarding political
advertising:
The City will not allow advertising. either directly or through third party arrangements
that promotes, or may be construed to promote, a political party or candidate, so
as to avoid any impression that the City is supporting any particular party or
candidate.
3) NEW BUSINESS:
That a letter be sent to Toronto Blue Jay All Star John Buck inviting him to Niagara
Falls.
RATIFICATION OF IN CAMERA COMMITTEE RECOMMENDATIONS
ORDERED on the motion of Councillor Diodati, seconded by Councillor Pietrangelo
that the recommendations from the "In Camera" meeting on August 9, 2010 be approved.
1. BDD- 2010 -05 - People Mover Operations, Maintenance and Storage Facility
Site Selection
That Council reconfirm its Feb. 22n approval, approving the City -owned Salt
Yard site on Stanley Avenue for the People Mover Operations, Maintenance,
and Storage Facility (OMSF).
2. That staff investigate the opportunity to combine the People Mover and
Niagara Falls Transit operations on the selected site, and report back to
Council following the investigation.
2. HR- 2010 -07 - New Collective Agreement Between the City of Niagara Falls and
the Amalgamated Transit Union, Local 1582
1. That Council ratify the amended Collective Agreement between The
Corporation of the City of Niagara Falls and the Amalgamated Transit Union
(ATU) and its Local 1582.
with Councillors loannoni, Kerrio and Fisher opposed to # 1.
Motion Carried
-5-
Children's Museum, the Niagara Youth Gallery and providing arts & culture services. Ms.
Attenborough requested that Council consider moving the NF Art Gallery as a fee for
Service.
Ruthann Brown, representing Women's Place, asked Council to reconsider any
grant cuts and stressed the extreme need for the funds. She provided clarification on their
reserve funds.
Brian Pellow, Project SHARE, indicated that the organization has received a 26%
cut from the Region. He expressed the opinion that having reserves is more an indication
that the organization follows sound financial principles.
Motion made by Mayor Diodati to approve the City impact tax at 1.59, no seconder. Motion
Failed.
ORDERED on the motion of Councillor Thomson. seconded by Councillor Diodati
to approve the proposed budget reductions.
with Councillors Wing. loannoni and Morocco opposed.
ORDERED on the motion of Councillor Gates. seconded by Councillor Maves for
reconsideration to accept the blended increase to the tax rate of 1.59 %.
2. L- 2011 -07
Oswald House Fence Issue
with Councillors Wing and loannoni opposed.
ORDERED on the motion of Councillor Gates. seconded by Mayor Diodati that
Council accept the blended increase to the tax rate of 1 59 %.
with Councillors Kerrio, loannoni and Wing opposed_
RATIFICATION OF "IN CAMERA" RECOMMENDATIONS
1 BDD- 2011 -01
Reallocation of Falls Shuttle Operating Costs to the VTS
Motion Carried
Motion Carried
Motion Carried
ORDERED on the motion of Councillor Wing, seconded by Councillor Morocco that
the recommendations from the "In Camera" meeting from March 21'. 2011 (Item #1) and
April 4'. 2011(Item #2) meeting be approved.
Carried Unanimously
with Councillor Kerrio declaring a conflict to # 1
That Council approve the operating model between the BIA's and the NPC as
outlined in the report and the reallocation of the Falls Shuttle net operating costs of
$400,000 annually to the Visitor Transportation System (VTS)
That, in the event council wishes to secure the cooperation of the Owners of 2922
St. Paul Avenue to assist in the restoration of the historic Oswald House fence, the
Mayor and Clerk be authorized to execute the Agreement that has been signed by
those Owners on or about March 21. 2011
*
(8/23/2011) Dean Iorfida - VTS Agreement Page 1
From:
To:
CC:
Date:
Subject:
Attachments:
All:
"Ed Lustig" <elustig @broderickpartners.com>
<diorfida @niagarafalls.ca>
<ktodd @niagarafalls.ca >, <sfelicetti @niagarafalls.ca >, <kbeaman @niagaraf...
8/23/2011 12:14 PM
VTS Agreement
VTS Agreement with Schedules A - D.pdf; Schedule E VTS Bus Lease.pdf; Sched
ule F VTS Bus Storage Bay Licence.pdf; Schedule H Notice Details.pdf; Sched
ule G Pymt Schedule of Annual Grants.pdf
As you have requested in order to send out an agenda to the Members of
Council today for this Thursday's special meeting, I have included the
above noted Agreement in its current form.
Please note, as I advised you earlier today:
1. The body of the VTS Agreement is in the form of my last draft
of Friday together with all of the revisions requested by Lisa last
night that are acceptable to the City;
2. The route schedules (Blue, Green and Red Line) are as per
Serge's email last night but have not yet been approved by NPC; and
3. The Lease and Licence are in the form that I last received
from Lisa on Sunday and approved yesterday subject to changes to
incorporate Ken Beaman's comments re insurance provisions that have not
yet been forwarded to me by Lisa.
Regards
Ed
CITY OF NIAGARA FALLS
By -law No. 2011 -
A by -law to authorize the execution of an Agreement with the Niagara Parks Commission respecting
a Visitor Transportation System (VTS).
THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS
AS FOLLOWS:
1. An Agreement made between the Niagara Parks Commission (the "NPC ") and the
Corporation of the City of Niagara Falls (the "CCNF "), respecting a visitor transportation
system (the '`VTS "), as attached hereto, is hereby approved and authorized..
2. The Mayor and Clerk are hereby authorized to execute the said Agreement.
3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver the said
Agreement.
Passed this twenty -fifth day of August, 2011.
DEAN IORFIDA, CITY CLERK JAMES M. DIODATI. MAYOR
First Reading:
Second Reading:
Third Reading:
August 25, 2011.
August 25, 2011.
August 25, 2011.
THIS AGREEMENT made and entered into 25th day of August, 2011.
BETWEEN:
THE CORPORATION OF THE CITY OF NIAGARA FALLS
(the "CCNF "),
RECITALS:
- and -
THE NIAGARA PARKS COMMISSION
(the "NPC").
WHEREAS the CCNF operates a public bus transportation service within the City
of Niagara Falls:
AND WHEREAS the NPC operates a bus transportation service known as the
People Mover, generally within the Park. for the purpose of transporting visitors to and from
points of interest within the Park;
AND WHEREAS the CCNF and the NPC wish to improve the level of bus
transportation services within certain areas of the Park and in the City of Niagara Falls that (a)
supports and encourages public and private investments in tourism, (b) relieves traffic congestion
and creates convenient connections between tourist attractions in the City of Niagara Falls and in
the Park, and (c) is operated in an efficient, safe, reliable and sustainable manner;
AND WHEREAS the CCNF and the NPC intend to establish a visitor
transportation system (VTS ") that results in people having improved convenient transportation
to and from certain areas within the Park and the City of Niagara Falls by coordinating bus
service operations among and between their respective Lines through integrated and coordinated
practices in areas such as scheduling, traffic patterns, bus specifications, branding and
operational terms, and by providing the opportunity for passengers to conveniently transfer
between the Lines without additional payment;
AND WHEREAS CCNF shall enter into an agreement (the "Contribution
Agreements ") with each of the Government of Canada (the "Federal Government ") and the
Government of the Province of Ontario (the "Ontario Government ") pursuant to which each
such Government will provide the CCNF with Twenty -Five Million Dollars (525,000,000)
(collectively, "Funding ") to fund the capital costs of the VTS, subject to certain terms;
AND WHEREAS CCNF has agreed to use certain of the Funding to acquire
twenty (20) clean diesel articulated sixty (60) foot buses and seven (7) clean diesel forty (40)
foot buses (each a "VTS Bus ", and collectively, the "VTS Bus Fleet "), and each such bus will
have installed on it intelligent transportation system hardware and software, and will be used for
the operation of the VTS;
AND WHEREAS NPC and CCNF intends to enter into an agreement on the date
hereof pursuant to which CCNF agrees to lease to the NPC eleven (11) VTS Buses;
AND WHEREAS CCNF intends to use certain of the Funding for the design,
construction and completion of a VTS bus maintenance and storage facility to be located in the
City of Niagara Falls;
AND WHEREAS NPC wishes to license from CCNF bus storage space in such
VTS bus maintenance and storage facility for the purpose of storing VTS Buses;
AND WHEREAS the Council of the CCNF has resolved to participate with the
NPC to develop. manage and operate the VTS:
AND WHEREAS the Board of Commissioners of the NPC has resolved to
participate with the CCNF to develop. manage and operate the VTS:
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration
of the mutual covenants and agreements hereinafter contained and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged by each of the
Parties hereto), the Parties agree as follows:
1.1 Definitions
1. INTERPRETATION
In this Agreement, unless there is something in the subject matter that is
inconsistent therewith. the following terms have the following meanings:
"Agreement' means this agreement and all attached schedules, as the same may
be supplemented, amended. restated or replaced from time to time:
"Applicable Law" means (i) any domestic or foreign statute, law (including the
common and civil law and equity), constitution. code, ordinance, rule, regulation,
restriction, regulatory policy or guideline having the force of law, by -law (zoning
or otherwise) or order. (ii) any consent, exemption, approval or licence of any
Governmental Authority. and (iii) any policy, practice or guideline of, or contract
with, any Governmental Authority which, although not actually having the force
of law, is considered by such Governmental Authority as if having the force of
law:
"Arbitrator" has the meaning given to it in Section 15.6;
"BIAs" means the Boards of Management of the Clifton Hill, Fallsview, Victoria
Centre and Lundy's Lane Business Improvement Areas of the CCNF;
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"Blue Line" means the VTS bus service to be managed, operated and maintained
by the CCNF within the CCNF and to and from certain areas within the Park
along the route set out in Schedule B. including all necessary appurtenances
related thereto, as same may be amended in accordance with the terms of this
Agreement:
"Business Day" means Monday through Friday except for any statutory or civic
holidays observed in the City of Niagara Falls;
"CCNF VTS Kiosk" has the meaning given to it in Section 4.1.2;
"Contribution Agreements" has the meaning given to it in the fifth Recital to
this Agreement:
"Council" means the council of the CCNF;
"Discounted VTS Ticket" means a VTS Ticket sold by NPC at a price of Two
Dollars, Fifty Cents (52.50) in the First Year, and for every subsequent year of
this Agreement, Two Dollars, Fifty Cents (52.50) plus an amount equal to two
and one -half percent (2.5 %) of the previous year's price, and which ticket will
bear thereon the words "No Cash Value" and "Not For Re -Sale" or similar words
to that affect and be packaged with the sale of a product or service available in the
City of Niagara Falls;
"Dispute" has the meaning given to it in Section 15.1;
"Federal Government" has the meaning given to it in the fifth Recital to this
Agreement;
"First Year" means the initial year of VTS operations beginning on or about the
Operational Date:
"GO VTS Kiosk" has the meaning given to it in Section 4.1.2;
"Governmental Authority" means (i) any court, judicial body or arbitral body,
(ii) any domestic or foreign government whether multinational, national, federal,
provincial, territorial, state, municipal or local and any governmental agency,
governmental authority, governmental tribunal or governmental commission of
any kind whatever, (iii) any subdivision or authority of any of the foregoing, (iv)
any quasi - governmental or private body exercising any regulatory, expropriation
or taxing authority under or for the account of any of the above, (v) any
supranational or regional body such as the World Trade Organization, and (vi)
any stock exchange;
"Green Line" means the VTS bus service to be managed, operated and
maintained by the NPC within the Park along the route between Table Rock and
the intersection of Victoria Road and River Road in the City of Niagara Falls as
4
set out in Schedule C, including all necessary appurtenances related thereto, as
same may he amended in accordance with the terms of this Agreement;
"including" means "including without limitation ";
"ITS" has the meaning given to it in Section 6.1.1;
"Lines" means collectively the Green Line, Blue Line and Red Line, and "Line"
means any one of them;
"Member of a BIA" means a corporation, a limited company, an unlimited
liability company, a general partnership, a partnership, an association, an
unincorporated organization or other entity that is a part of a BIA;
"Negotiation Period" has the meaning given to it in Section 15.1;
:Notice" has the meaning given to it in Section 16.6;
"NPC Code of Conduct" has the meaning given to it in Section 14.1.1(g);
"NPC Legislation" has the meaning given to it in Section 14.1.1(g):
"NPC VTS Buses" has the meaning given to it in Section 5.1.2;
"NPC VTS Kiosk" has the meaning given to it in Section 4.1.3:
"Ontario Government" has the meaning given to it in the fifth Recital to this
Agreement;
"Operational Date" means the date when both Parties agree that all VTS Buses
have been delivered to and accepted by the Parties and are put into operations as
evidenced by the exchange of written correspondence between the Parties
confirming same;
"Park" has the meaning given to it in the Niagara Parks Act (Ontario);
"Parties" means, collectively, each of the signatories to this Agreement, and
"Party" means either of them;
"Queen Street Services" means that part of the Blue Line operated by the CCNF
that serves the Queen Street:Downtown area in the City of Niagara Falls shown
on Schedule B:
"Red Line" means the VTS bus service to be managed, operated and maintained
by the CCNF within the CCNF and to and from certain areas within the Park
along the route set out in Schedule D, including all necessary appurtenances
related thereto, as same may he amended in accordance with the terms of this
Agreement;
1.3 Construction
5
"Retail VTS Ticket" means any VTS Ticket sold at a price of Ten Dollars
(S10.00) per ticket in the First Year and at the applicable New Retail Price per
ticket in each subsequent year of the Term;
"Suits" has the meaning given to it in Section 14.1.1(d);
"Term" has the meaning given to it in Section 2.1.1;
"Union VTS Kiosk" has the meaning given to it in Section 4.1.2;
"VTS" means the visitor transportation system to be established hereunder by
CCNF and the NPC that results in people having improved convenient
transportation to and from certain areas within the Park and the City of Niagara
Falls by coordinating bus service operations among and between their respective
Lines through integrated and coordinated practices in areas such as scheduling,
traffic patterns, bus specifications, branding and operational terms, and by
providing the opportunity for passengers to conveniently transfer between the
Lines without additional payment;
"VTS Bus Fleet" has the meaning given to it in the sixth Recital to this
Agreement:
"VTS Bus Lease" has the meaning given to it in Section 5.1.2;
"VTS Facility" has the meaning given to it in Section 7.1.1;
"VTS Facility Licence" has the meaning given to it in Section 7.1.3;
"VTS Feedback Committee" has the meaning given to it in Section 4.2.1;
"VTS Kiosks" means collectively, the CCNF VTS Kiosks, the GO VTS Kiosk,
the NPC VTS Kiosks and the Union VTS Kiosks, and "VTS Kiosk" means any
one of them; and
"VTS Ticket" has the meaning given to it in Section 12.1.1.
1.2 Binding Effect
This Agreement shall be binding upon and shall enure to the benefit of the Parties
and their respective successors and permitted assigns.
Each obligation or agreement of CCNF or NPC expressed in this Agreement,
even though not expressed as a covenant, is considered to be a covenant for all purposes.
(a) The division of this Agreement into Articles and Sections and the insertion of
headings are for convenience of reference only and do not affect the construction
or interpretation of this Agreement.
(h)
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The terns "hereof', "herein ", "hereby ", "hereunder ", "hereto ", "hereinafter" and
similar expressions refer to this Agreement and the Schedules and not to any
particular Article, Section, Schedule or other portion hereof. Unless something in
the subject matter or context is inconsistent therewith, references herein to
Articles, Sections and Schedules are to articles and sections of and schedules to
this Agreement.
(c) The provisions of this Agreement shall be deemed severable, and the termination,
invalidity or unenforceability of any one or more of the provisions hereof shall
not affect the validity or enforceability of the other provisions hereof.
(d) Words importing the singular number include the plural and vice versa, words
importing any gender include all genders and words importing persons include
individuals, corporations, limited and unlimited liability companies. general and
limited partnerships, associations, trusts, unincorporated organizations, joint
ventures and Governmental Authorities.
(e) Accounting terms used in this Agreement and not otherwise defined herein shall
have the meaning given to such terms, from time to time, in the Handbook of the
Canadian Institute of Chartered Accountants.
(f) Time is of the essence of this Agreement and of every part hereof.
(g) No amendment to this Agreement will be valid or binding unless set forth in
writing and duly executed by both of the Parties.
(h) All references to currency herein are to lawful money of Canada.
(i) Unless otherwise provided herein, each reference to an enactment is deemed to be
a reference to that enactment, and to the regulations made under that enactment,
as amended or re- enacted from time to time. Similarly, unless othenvise provided
herein, each reference to an agreement is deemed to be a reference to that
agreement, as it may be supplemented, amended or restated from time to time.
(j) If any action is required to be taken pursuant to this Agreement on or by a
specified date which is not a Business Day, then such action shall be valid if taken
on or by the next succeeding Business Day.
(k) The provisions of this Agreement shall not affect the rights of the Parties which
may subsist from time to time to any other agreements between them dated
concurrently with or subsequently to this Agreement nor relieve the Parties of any
obligations they may have pursuant to such agreements.
1.4 Schedules
The following attached schedules are attached to and form part of this Agreement:
Schedule A VTS Facility Location
Schedule B
Schedule C
Schedule D
Schedule E
Schedule F
Schedule G
Schedule H
1.5 Governing Jurisdiction and Attornment
The Parties hereby agree that this Agreement and the provisions hereof shall be
construed in accordance with the laws of the Province of Ontario and the laws of Canada and the
Parties attorn to the jurisdiction of the Courts of the Province of Ontario.
1.6 Entire Agreement
This Agreement constitutes the entire agreement and understanding by and
between the Parties, except as herein otherwise expressly provided. There are no
representations, warranties. promises, terms, conditions, undertakings or collateral agreements or
understanding. written or oral. express or implied between the Parties pertaining to the subject
matter hereof other than as expressly set forth in this Agreement.
2.1
Term of Agreement
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Blue Line
Green Line
Red Line
VTS Bus Lease
VTS Bus Storage Bay Licence
Payment Schedule of Annual Grants
Notice Details
2. TERM
2.1.1 This Agreement shall become effective on the date hereof and shall remain in
effect until the tenth (10th) anniversary of the Operational Date, unless earlier terminated as
provided herein (the "Terns " ").
2.1./ Notwithstanding any other provision in this Agreement, if the Operational Date
does not occur on or before the 30th day of March, 2013 (or such other date as the March 30,
2013 date is extended to under the Contribution Agreements). this Agreement shall become null
and void and of no force and effect and. neither Party shall bear any responsibility to the other
Party for anything arising out of or relative to this Agreement, except as follows:
(a) VTS Bus orders and deliveries, VTS Kiosks orders, deliveries and installations,
and CCNF run VTS facility building project contemplated by and funded through
this Agreement and the Contribution Agreements shall be the sole responsibility
of the CCNF, and the CCNF shall not look to the NPC for indemnity for such
orders, deliveries, installations or building projects.
(b) Upgrades to the NPC People Mover stations and NPC infrastructure
improvements contemplated by and funded through this Agreement and the
Contribution Agreements shall be the sole responsibility of the NPC, and the NPC
shall not look to the CCNF for indemnity for such upgrades and infrastructure
improvements, except to the extent that the Federal Government and/or the
Ontario Government reimburses moneys to the CCNF for any such upgrades or
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infrastructure improvements under the Contribution Agreements and such
reimbursed moneys have not, in turn, been paid over to the NPC.
2.1.3 On or before the date that is one (1) calendar year prior to the ninth (9
anniversary year of Operational Date, each Party shall provide the other Party with written notice
of its desire to either extend this Agreement or to take no action to extend this Agreement. Any
extension of this Agreement must be extended by the mutual consent of both Parties and upon
such terms and conditions as may be agreed to by the Parties.
2.2 Termination
2.2.1 Either Party shall have the right to terminate this Agreement immediately, in the
event of the other Party's bankruptcy or insolvency, or any initiation, voluntary or involuntary,
of bankruptcy or insolvency of such other Party. Except as set out in this Section 2, the Parties
shall not terminate this Agreement.
2.2.2 For greater certainty,
(a) a termination of this Agreement pursuant to this Section 2 shall not result
in a termination of either of the Lease or the Licence; and
(b) a termination of the VTS Bus Lease in accordance with its terms shall not
result in a termination of this Agreement; and
(c) a termination of the VTS Facility Licence in accordance with its teens
shall not result in a termination of this Agreement.
3. FEDERAL AND PROVINCIAL CONTRIBUTION AGREEMENTS
3.1 Covenants
3.1.1 The CCNF will provide the NPC with true and complete copies of the fully
executed and delivered Contribution Agreements forthwith upon the CCNF's receipt of them.
3.1.2 If the terms of the Contribution Agreements contradict or conflict with the terms
of this Agreement, or the terns of the Contribution Agreements would cause a Party to be unable
to fulfill its obligations or covenants in this Agreement, the Parties will use commercially
reasonable efforts to reach an agreement on amendments to this Agreement to address such
contradicting or conflicting terns.
3.1.3 The CCNF will provide true and complete disclosure of this Agreement and its
terms and the corresponding required reports to the Federal Government and the Ontario
Government under the terms of the Contribution Agreements. The CCNF shall satisfy all other
terms and conditions of the Contribution Agreements.
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4. VISITOR TRANSPORTATION SYSTEM
4.1 VTS Responsibilities
4.1 1 The Parties acknowledge and agree that the routes of the Lines, including the
stops for passenger pick -up and disembarkment, have been set based on the Parties'
understanding of traffic flow and passenger needs, so as to generate the most in ridership.
4.1 Subject to the terms hereof, the CCNF will be responsible for the management of
and for the payment of all operating and maintenance costs to service and operate the Blue Line
and Red Line, the five (5) VTS Ticket kiosks located in the City of Niagara Falls along the Blue
Line and the Red Line (collectively, the "CCNF VTS Kiosks "), the VTS Ticket kiosk located in
or at Union Station in Toronto (the "Union VTS Kiosk "), and the VTS Ticket kiosk located in or
at the Via Rail GO station in the City of Niagara Falls (the "GO VTS Kiosk ").
4.1.3 Subject to the terms hereof, the NPC will be responsible for the management of
and for the payment of all operating and maintenance costs to service and operate the Green Line
and the four (4) VTS Ticket kiosks located in the Park (collectively. the "NPC VTS Kiosks ").
4.1.4 The upgrade of the NPC People Mover stations in the Park will be undertaken by
the NPC through the funds NPC will receive from the capital allocation therefor referred to in
Section 10.1.1(b). The maintenance and operation of these stations including all costs shall be
the sole responsibility of the NPC.
4.1.5 Subject to the terms hereof, the CCNF and the NPC will be responsible for their
own employees and providing the necessary resources to meet their respective commitments as
outlined in this Agreement.
4.1.6 Each of the CCNF and the NPC will each appoint a VTS Operations Manager
who will work together with each other in support of VTS operations and needs. The VTS
Operations Managers shall be in charge of each of the Parties" respective operations of the VTS
and shall be the persons who will serve as each Party's designated representative to work
together with the other Party on the day -to -day operations of the VTS.
4.1.7 The CCNF and the NPC will work together to produce annual VTS operating
budgets, which will include information for staffing, capital expenditures and major operational
changes that may affect the overall operation of the VTS.
4.1.8 The CCNF and the NPC will work together to develop commercially reasonable
common branding for the VTS, VTS Bus Fleet, VTS Kiosks, VTS Tickets and VTS bus stops.
Once agreed to, modifications to such branding shall not be made without the agreement of both
Parties. The Parties shall agree that the costs of developing such branding will be covered by the
CCNF's capital allocation of the VTS capital program under the Contribution Agreements and
the costs of painting and decaling the NPC VTS Buses will be the responsibility of the NPC and
the costs of painting and decaling all other VTS Buses and the VTS Kiosks will be the
responsibility of the CCNF. In the event that the costs of developing such branding are not
covered by the CCNF's capital allocation of the VTS Capital Program under the Contribution
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Agreements. to the extent such costs are not covered. such costs shall he shared equally by the
CCNF and the NPC.
4.2 VTS Feedback Committee
4.2.1 The CCNF and the NPC will establish a committee (the "VTS Feedback
Committee ") for the purpose of providing the Parties and the BIAs with a forum for comments,
feedback discussions and recommendations with respect to the operations and performance of
the VTS. For greater certainty. the members of the VTS Feedback Committee shall not be
entitled to any reports or proprietary VTS information and will have no decision making
authority but may make recommendations to the CCNF and NPC on the matters brought before
it. Nothing in this section will prevent the CCNF from providing to the BIAs any reports it has
concerning the Blue Line and the Red Line.
4. The VTS Feedback Committee will be comprised of two (2) representatives from
each of (i) the NPC. (ii) the CCNF and (iii) each of the BIAs. One of the representatives of the
NPC shall serve as the chairperson of the VTS Feedback Committee.
4.2.3 The VTS Feedback Committee will meet once during the First Year and no less
than twice a year thereafter. The meeting dates for all such meetings will be set by the
chairperson of the VTS Feedback Committee.
5.1 VTS Buses
6.1 ITS System
5. VTS BUSES
5.1.1 The CCNF shall purchase and own the VTS Buses, and each such bus will have
installed in it all required ITS equipment and software during the Term within the time
limitations and upon the terms peiniitted in order to obtain full reimbursement of all the
acquisition costs for the VTS Buses under the Contribution Agreements.
5.1 .2 On the date hereof, the CCNF, as lessor, and the NPC, as lessee, will enter into a
vehicle lease agreement in the form of the vehicle lease attached hereto as Schedule E (the "VTS
Bus Lease ") pursuant to which the CCNF shall, inter alia, lease to NPC nine (9) clean diesel
articulated sixty foot (60') buses and two (2) clean diesel standard forty foot (40') buses (the
"NPC VTS Buses ") (which buses will have the vehicle specifications set out in such vehicle
lease) out of the VTS Bus Fleet.
5.1.3 It is acknowledged and agreed that from time to time VTS buses may be
borrowed between the NPC and the CCNF on such terms and conditions as mutually agreed.
6. ITS SYSTEM
6.1.1 The CCNF shall purchase, own and operate all software and hardware for an
intelligent transportation system ( "ITS ") to facilitate the operations of the VTS during the Term
within the time limitations and upon the terms permitted in order to obtain full reimbursement of
all the acquisition costs for the ITS under the Contribution Agreements
6.1.2 The CCNF shall use commercially reasonable efforts to ensure that the ITS
programming assists the NPC in its VTS operations.
6.1.3 The CCNF will consult with NPC and take into consideration NPC's requests and
suggestions as to the substance and form of the ITS reports to be developed during the
implementation of the ITS.
6.1 .4 The CCNF will provide ITS operations reports to the NPC of the same nature of
the ITS reports the CCNF will obtain and utilize during the Term at no charge to NPC. The
CCNF will make all necessary and appropriate efforts to safeguard all ITS data, operations
reports. analyses. compilations, memoranda, notes and any other writings (including, without
limitation. any such material in written form. magnetically encoded or any other form of media)
and other ITS information relating to or pertaining to the NPC and, or the Green Line (the "NPC
ITS Confidential Information ") from disclosure to anyone person other than the NPC and the
CCNF shall not disclose any NPC ITS Confidential Information to any person other than the
NPC without:
(a) the prior written approval of the NPC, or
(b) pursuant to any judicial or governmental requirement or order, provided that if the
CCNF becomes legally compelled to disclose any of the NPC ITS Confidential
Information, the undersigned shall provide the NPC with prompt prior written
notice of same so that the NPC may seek a protective order or other appropriate
remedy or waive compliance with these terms.
The NPC shall be the sole owner of the NPC ITS Confidential Information.
6.1.5 After the expiration of the Term or other earlier termination of the Agreement. the
NPC will have the option to retain, and the CCNF shall provide, the services of the CCNF to
operate the ITS and produce the ITS reports and other products for the NPC VTS Buses as the
NPC has received over the one year period prior to such expiration or termination at a cost of
One Dollar (S1 .00) per year plus the NPC's pro rata portion of the costs of the CCNF to operate
the ITS and produce such ITS reports and other products during the period of the NPC's actual
use of such services of the CCNF. Should the NPC exercise such option to retain the services of
the CCNF. the CCNF will provide NPC with a non - disclosure covenant in the form set out in
Section 6.1 .4 pursuant to which the CCNF will not disclose, inter alia, any data contained in any
of the ITS reports relating to or pertaining to the NPC and`or the NPC bus route that replaces the
Green Line. The NPC shall be the sole owner of such reports and data relating to or pertaining to
the NPC and:or the NPC bus route that replaces the Green Line.
7. VTS FACILITY
7.1 .1 The CCNF shall design, construct. own and operate a VTS bus maintenance and
storage facility to be located on CCNF owned property located on Stanley Avenue in the City of
Niagara Falls as shown on Schedule A ( "VTS Facility "); during the Term within the time
limitations and upon the terms permitted in order to obtain full reimbursement of all the
acquisition costs for the VTS Facility under the Contribution Agreements.
7.1.2 During the Term, so long as the VTS Facility Licence is in effect, the CCNF will
not maintain or store non -VTS buses in the VTS Facility unless the NPC is then entitled to
licence enough bus storage bays for the NPC to store all of the NPC VTS Buses under the VTS
Facility Licence.
7.1.3 On the date hereof, the CCNF, as licensor, and the NPC, as licensee. will enter
into a VTS bus storage bay licence in the form of the bus storage bay licence (the " NTS Facility
Licence') attached hereto as Schedule F pursuant to which the CCNF shall, inter alia, licence to
the NPC, subject to certain restrictions set out therein, the lesser of:
(a) eight (8) bus storage bays located in the VTS Facility: and
(h) the NPC's pro rata share of the aggregate number of bus storage bays located in
the VTS Facility. (For the purposes of this Section, "pro rata share" means the
ratio of the aggregate number of NPC VTS Buses to the aggregate number of
VTS Buses.)
7.1.4 Provided that the capital funding supplied by the Federal Government and the
Ontario Government under the Contribution Agreements is sufficient to do so, the CCNF will
use its best efforts to ensure that the VTS Facility is sufficiently large to store all of the NPC
VTS Buses.
7.1.5 The CCNF will use its best efforts to design, construct and complete the VTS
Facility and have the VTS Facility operational during the 2013 calendar year.
8. ROLES AND RESPONSIBILITIES
8.1 Roles and Responsibilities of the CCNF
8.1.1 The CCNF shall permit any holder of a valid VTS Ticket to ride the Blue Line
and Red Line for two (2) consecutive days.
8.1.2 The CCNF will provide access and right of way to enable the NPC VTS Buses to
travel within the CCNF for the purpose of driving to and from the VTS Facility.
8.1.3 The CCNF, including VTS staff, will comply with the rules and protocols of
operating within the Park as described in the NPC Code of Conduct.
8.1.4 The CCNF will cause each of its current and future directors, officers, employees
and members to adhere to the NPC Legislation and any written directives from NPC to ensure
compliance with NPC Legislation and hereby assumes all responsibility for any failure to
comply with the terms of this Section.
8.1.5 The CCNF agrees to adhere to the principles and all provisions of the NPC Code
of Conduct applicable to the CCNF. The CCNF will cause each of its current and future
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directors, officers, employees and members to read and adhere to the NPC Code of Conduct and
hereby assumes all responsibility for any failure to comply with the terms of the NPC Code of
Conduct on the part of the CCNF and such persons.
8.2 Role and Responsibilities of the NPC
8.2.1 Subject to Section 8.2.4, the NPC shall taant to the CCNF in the First Year the
sum of One Million Dollars (51,000,000.00) to aid in the general operation and maintenance of
the Red Line and the Blue Line, and for every subsequent year of this Agreement, One Million
Dollars ($1,000,000.00) plus an amount equal to two and one half percent (2.5 %) of the previous
year grant payment (each an "Annual Grant"). The payment of the Annual Grants shall be in
accordance with the payment schedule set out in Schedule G.
8.2.2 The NPC shall permit any holder of a valid VTS Ticket to ride the Green Line for
two (2) consecutive days.
8.2.3 Subject to the terms of this Agreement, the NPC will provide the CCNF with
access to the Park to operate the CCNF VTS Buses within the approved areas of the Park in
order to facilitate the operation of the Blue Line and the Red Line. The sole passenger pick -up
and disembarkment point within the Park for the Blue Line and the Red Line shall be limited to
NPC's Table Rock.
8.2.4 In each year following the Operational Date, the CCNF shall produce in April and
October a schedule setting out the days of operation of the Blue Line and the Red Line (the
"Schedule "). The Schedule may. from time to time, be amended by the CCNF, acting in a
commercially reasonable manner. In the event that, in any year, the Blue Line and the Red Line
are not in operation. in any manner, for three (3) consecutive days of operation. as shown on the
then current Schedule. the NPC shall be entitled to a reduction in the amount of the then current
Annual Grant equal to the number of days that the Blue Line and the Red Line are not in
operation, in any manner, multiplied by the amount of the then current Annual Grant for that
year divided by 365. The said reduction shall be made each year on a quarterly basis at the end
of March, June, September and December for the preceding quarter year.
9.1 Traffic Itlatters
9. TRAFFIC MATTERS
9.1.1 The NPC and the CCNF acknowledge and agree that the CCNF has the authority
to direct access and traffic flow within the City of Niagara Falls subject to Applicable Laws.
9.1.2 The NPC and the CCNF acknowledge and agree that under the :Niagara Parks .4ct
(Ontario) the NPC is the sole authority for traffic within the Park. is the sole authority for the
Green Line and has the authority to direct access and traffic flow within the Park subject to
Applicable Laws.
9.1.3 The NPC and the CCNF acknowledge and agree that under the Municipal Act
(Ontario) the CCNF is the municipal authority for traffic on the streets in the City of Niagara
Falls, is the sole authority for any changes to the Blue Line andror the Red Line within the City
9.2 Audit of VTS
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of Niagara Falls. is, subject to Section 14.1.1 (f). the sole authority for any changes to the Blue
Line and or the Red Line within the Park, and has the authority to direct access and traffic Clow
on the streets in the City of Niagara Falls subject to Applicable Laws.
9.1.4 Notwithstanding Sections 9.1.2 and 9.1.3,
(a) each of the Parties agree to consult with each other and to take into
consideration the opinions of the other Party before making any changes to the routes
under their sole authority. as referred to in the aforesaid Sections, and to the embarkation
and disembarkation points on such routes and
(b) Changes may be made to the Blue Line or Red Line in the routes in the
Park and passenger pick -ups and disembarkment points in the Park only with the NPC's
prior approval.
9.2.1 After the first (1 ") anniversary of the Operational Date but prior to the fifth (5
anniversary of the Operational Date, the Parties will jointly conduct an audit of the VTS
operations, finances, capital expenditures. operating and capital budgets, responsibilities of the
Parties, passenger safety and traffic flow impacting the Lines. The Parties will mutually agree
upon the time period for when to commence the audit. The costs of such audit will be shared
equally between the Parties.
9.2,2 Prior to the commencement of such audit, the Parties will use commercially
reasonable efforts to establish terms of reference for such audit, including timelines, scope,
budget and method and type of audit report.
9 2.3 If mutually agreed. the Parties may retain third party consultants, including an
independent traffic consultant. should there be concerns about visitor safety and/or traftic Clow,
to undertake such audit or any part thereof.
9.2.4 Each Party will be given thirty (30) Business Days to review and assess all audit
reports, including the recommendations set out in such reports for changes or improvements to
the VTS. Following such thirty (30) Business Day period. the Parties will meet to discuss their
positions on the reports and their recommendations. If the Parties mutually agree, as a result of
their review and assessment of the audit reports and recommendations, that this Agreement
requires amendments, the Parties, together with their advisors, will use commercially reasonable
efforts to reach an agreement on amendments to this Agreement.
9 Notwithstanding the foregoing in this Section 9.2, should there be any concerns
about visitor safety and /or traffic flow.
(a) the parties will retain an independent traffic consultant to undertake a review of
the traffic flow and/or visitor safety of the routes; and
(b) the CCNF retains the sole authority for any changes to the routes and passenger
pick -ups and disembarkment points of the Blue Line and or the Red Line in the
City of Niagara Falls: and
(c) the NPC retains the sole authority for any changes to the routes and passenger
pick -ups and disembarkment points for each of the Lines in the Park; and
(d) each of the Parties agree to consult with each other and to take into consideration
the opinions of the other Party before making any changes to any of the routes
and the embarkation and disembarkation points on such routes.
10.1 NPC Capital Program Allocations
10.1.1 The CCNF and the NPC have prepared a capital program necessary to develop
and implement the VTS and the amount that will be allocated to NPC's portion of the VTS
capital program is Fourteen Million, Fifty -Seven Thousand, Five Hundred and Six Dollars
(S14,057.506) (the "NPC Allocated Capital "). The Parties agree that the NPC Allocated
Capital \vi11 be paid as follows:
(a) the CCNF will pay out, and seek reimbursement from the Federal Government
and the Ontario Government under the Contribution Agreements, 58,122.025 for
the NPC VTS Buses and the NPC VTS Kiosks to be allocated as follows:
(1
(ii) NPC VTS Kiosks 5260.000; and
(b) the NPC will pay out, and the CCNF will seek reimbursement from the Federal
Government and the Ontario Government under the Contribution Agreements,
55,935,481 for upgrades to the NPC People Mover stations and NPC
infrastructure improvements ( "NPC Paid Capital ") to be allocated as follows:
( 1 )
- 15-
10. CAPITAL COST ARRANGEMENTS
NPC VTS Buses 57,862,025: and
upgrades to the NPC People Mover stations - S100,000; and
(ii) NPC infrastructure improvements 55.835,481.
10.1.2 The NPC acknowledges and agrees that the capital costs of the VTS are being
funded by monies received by the CCNF from the Federal Government and the Ontario
Government under the Contribution Agreements and that the CCNF has no other resources with
which to pay for the capital costs of the VTS. The CCNF will not execute the Contribution
Agreements unless the NPC Allocated Capital is acceptable to the Federal Government and the
Ontario Government under the Contribution Agreements.
10.1.3 Should either Party elect to expand, upgrade, or modify any capital purchase of
the type, quantity or models of any of the VTS Buses, then the cost of such expansion, upgrade,
10.3 Reduction in Funding
- 16 -
or modification shall be borne entirely by the Party requesting the expansion, upgrade, or
modification.
10.1.4 Notwithstanding how the amounts are allocated to specific items within the VTS
capital program budget, it is agreed that the NPC will be entitled to the aggregate reimbursement
amounts received by the CCNF for items set out in NPC's portion of the VTS capital program as
described in Section 10.1.1 up to the full amount of the NPC Allocated Capital. For greater
certainty. subject to the required consent of the Federal Government and the Ontario
Government, the NPC shall have the right to reallocate the NPC Allocated Capital among the
capital expenditure items set out in NPC's portion of the VTS capital program as described in
Section 10.1.1. If requested to do so by the NPC, the CCNF agrees to use commercially
reasonable efforts to obtain such consent of the Federal Government and the Ontario
Government to a reallocation of the NPC Allocated Capital among the capital expenditure items
set out in NPC's portion of the VTS capital program as described in Section 10.1.1. The CCNF
will not seek. and will ensure that the Contribution Agreements do not call for, any contributions
or dollars from NPC for the initial capital costs to set up the VTS above the NPC Allocated
Capital.
10.2 Procedures for Reimbursement of NPC Paid Capital
10.2.1 The CCNF and NPC agree that within seven (7) Business Days of the CCNF's
receipt of invoices or receipts for NPC's payment of any portion of the NPC Paid Capital, the
CCNF will:
(a) submit such invoices or receipts together with all necessary reports to the Federal
Government and the Ontario Government for reimbursement in accordance with
the Contribution Agreements;
(b) diligently follow -up with each of the Federal Government and the Ontario
Government for reimbursement for the sums evidenced by invoices or
receipts at least once a month; and
(c) within seven (7) Business Days of the CCNF's receipt of such reimbursement
moneys from the Federal Government and the Ontario Government, the CCNF
will pay over such moneys to NPC by cheque, money order or wire transfer.
10.3.1 The Parties acknowledge that the Contribution Agreements may contain a clause
that entitles the Federal Government or the Ontario Government to reduce or terminate any
payment under the Contribution Agreements in certain circumstances. Should any such
reduction or termination occur, the Parties agree:
(a) in the event that such reduction or termination is in respect to a particular capital
expenditure. the Party who is responsible for such capital expenditure will bear
such reduction or termination;
11.1 Sales Taxes
- 17-
(b) in the event that such reduction or termination is in respect of the VTS capital
program as a whole, the Parties will share in the responsibility for such reduction
or termination on a pro rata basis.
11. SALES TAXES
All amounts stated or described in this Agreement, including amounts of costs,
consideration and revenues, are exclusive of all sales, use, value -added or similar taxes
(collectively, "Sales Taxes "). The Parties agree that they will cooperate to collect, remit, refund,
credit, report and pay all applicable Sales Taxes where required by, and in accordance with, the
applicable legislation and regulations made hereunder.
12. VTS TICKETS
12.1 Sales of VTS Tickets and Allocation of Revenues
12.1.1 The Parties shall jointly procure and equally pay for the production of passenger
tickets for the VTS (the "VTS Tickets ").
12.1.2 The VTS Tickets shall be of a quality, design and brand that is mutually agreed
upon by the Parties.
12.1.5 Every VTS Ticket issued by the Parties shall entitle a passenger who holds such
VTS Ticket to ride any VTS Bus and to transfer between the Lines without additional cost tier
two (2) consecutive days. The VTS Tickets will include a means of identifying two (2)
consecutive days of validity.
12.1.4 Retail VTS Tickets will be sold by the NPC to passengers including at each of
NPC VTS Kiosks, on board the NPC VTS Buses and at NPC retail locations.
12.1.5
the NPC.
All revenues from the sale of Retail VTS Tickets sold by the NPC shall belong to
12.1.6 Discounted VTS Tickets shall be offered for sale by the NPC to a Member of a
BIA and to any of the BIAs who agree with the NPC:
(a) to pay the price per ticket of Two Dollars, Fifty Cents ($2.50) in the First Year,
and for every subsequent year of this Agreement, Two Dollars, Fifty Cents
($2.50) plus an amount equal to two and one -half percent (2.5 %) of the previous
year's price; and
(b) not re -sell any such ticket it to any person; and
(c) to package any such ticket with the sale of a product or service available in the
City of Niagara Falls of a value of not less than Forty Dollars ($40.00).
For greater certainty, the CCNF may not give away a Retail VTS Ticket for no consideration or
sell a Retail VTS Ticket at less than the applicable purchase price, such applicable purchase price
being Ten Dollars (510.00) during the First Year and the applicable New Retail Price in any
subsequent year.
12.1.7 Subject to the terms of this Agreement, NPC shall be entitled to all revenues from
the sale of Discounted VTS Tickets to a Member of a BIA and to any of the BIAS.
12.1.8 Retail VTS Tickets may only be sold by the CCNF to passengers at:
(a) each of the CCNF VTS Kiosks; and
(b) on board CCNF VTS Buses on the Blue Line and Red Line; and
(c) at the GO VTS Kiosk; and
(d) at the Union VTS Kiosk; and
(e) at any other location mutually agreed to by the NPC and the CCNF.
12.1.9 The price of each Retail VTS Ticket sold by the CCNF or the NPC shall be Ten
(S 10.00) Dollars during the First Year. On or before sixty (60) days of the end of the First Year
and every year thereafter during the Term, the Parties shall together decide on the sale price of
the Retail VTS tickets for the next year (each a New Retail Price ") and shall sell each Retail
VTS Ticket in such next year at the applicable New Retail Price.
12.1.10 All revenues from the sale of the Retail VTS Tickets pursuant to Sections
12.1.8(a), (b) and (e) shall be allocated as follows in the First Year and each subsequent year of
the Term:
(a) until such time in such First Year or subsequent year, as the case may be, as the
revenues from the sale of:
(1)
- 18-
Retail VTS Tickets pursuant to Sections 12.1.8(a), (b) and (e),
(ii) Retail VTS Tickets at NPC VTS Kiosks. and
(iii) all Discounted VTS Tickets sold to any Member of a BI.A and to any of
the BIAS,
less the amount of the applicable operating and maintenance costs of the CCNF
VTS Kiosks for such First Year or subsequent year equals, the amount of the then
applicable Annual Grant, one hundred percent (100 %) to the NPC; and
(b) thereafter. fifty percent (50 %) to each of the CCNF and the NPC.
12.1.11 The NPC and the CCNF will share equally the revenues from the sale of the
Retail VTS Tickets at the Union VTS Kiosk, after first deducting all operating and maintenance
costs for the Union VTS Kiosk from such revenues.
- 19-
12.1.12 The NPC and the CCNF will share equally the revenues from the sale of Retail
VTS Tickets from the GO VTS Kiosk, after first deducting all operating costs incurred by the
CCNF to operate a Queen Street Service with CCNF VTS Buses (exclusive of the Queen Street
Service operating costs for that portion of the Blue Line located west of Chrysler Avenue and
extending to Great Wolf Lodge along Victoria Avenue in the City of Niagara Falls) and all
operating and maintenance costs for the GO VTS Kiosk from such revenues.
12.1.13 The CCNF shall provide the NPC with audited annual statements of all VTS
Ticket revenues received for such year and with audited annual statements of the operating and
maintenance costs for the CCNF VTS Kiosks, the Union VTS Kiosk. the GO VTS Kiosk and the
Queen Street Service incurred and expensed for such year. The CCNF will also provide the NPC
with quarterly cash flows reconciliation for all moneys collected by the CCNF from the VTS
Tickets and expenses for its VTS operations.
12.1.14 The NPC shall provide the CCNF with audited annual statements of VTS Ticket
revenues received for such year from the NPC VTS Kiosks and the Discounted VTS Tickets sold
to a Member of a BIA or to any of the BIAs for such year.
12.1.15 For the purposes of Sections 12,1.10 to 12.1.13, "operating and maintenance
costs" shall not include the capital acquisition costs of the applicable VTS Kiosks, replacement
costs due to the negligence or other actions or omissions, or other like costs but rather means the
day -to -day operational expenses and maintenance costs for normal wear and tear. Provided that
for the CCNF VTS Kiosks, the GO VTS Kiosk and the Union VTS Kiosk, if insurance for such
Kiosks is included in the CCNF's blanket insurance policy, no payment or allocation for
insurance will be included in the calculation of the operating and maintenance costs for these
Kiosks: and if any specific or special premium is levied for these Kiosks that is directly
attributable to such Kiosks, the cost of any such specific or special premium will be included in
the calculation of the operating and maintenance costs on these Kiosks.
13.1 Indemnity by the CCNF
13. INDEMNIFICATION
The CCNF will, from time to time and at times hereafter, save, defend, and keep
harmless and fully indemnify the NPC and each of its commissioners, officers,_ directors,
employees and agents (herein called the "NPC Indemnitees") from and against all manner of
actions, proceedings, suits, claims, losses, costs, damages, executions and demands, whatsoever
suffered or incurred by any of the NPC Indemnitees in any manner based upon, arising out of,
related to, occasioned by or attributable to:
(a) a default or breach by the CCNF of its obligations hereunder; or
(b) by reason of any fraud, negligence or wilful default of the CCNF. its councilors,
officers. employees, agents or persons for whom it is responsible in law in
connection with the performance of the Agreement or the CCNF's obligations
hereunder, except to the extent that the same are caused by the NPC or persons for
whom the NPC is responsible by law.
13.2 Indemnity by the NPC
- 20 -
The NPC will. from time to time and at times hereafter, save, defend and keep
harmless and fully indemnify the CCNF and each of its councilors, officers, directors, employees
and agents (herein called the "CCNF Indemnitees ") from and against all manner of actions,
proceedings, suits. claims, losses, costs, damages, executions and demands, whatsoever suffered
or incurred by any of the CCNF Indemnitees in any manner based upon, arising out of, related to,
occasioned by or attributed to:
(a) a default or breach by the NPC of its obligations hereunder: or
(b) by reason of any fraud, negligence or wilful default of the NPC. its officers,
commissioners, employees, agents, or persons for whom it is responsible in law in
connection with the performance of the Agreement or the NPC's obligations
hereunder, except to the extent that the same are caused by the CCNF or persons
for Thorn the CCNF is responsible by law.
13.3 Additional Indemnity
In addition to the general indemnity clauses in the Agreement. the Parties agree as
follows: VTS Bus orders and VTS Bus delivery and CCNF run building projects (including the
VTS Facility and VTS Kiosks) contemplated b■' and funded through this Agreement and the
Contribution Agreements shall be the sole responsibility of the CCNF, and the CCNF shall not
look to the NPC for indemnity for such orders, delivery and building projects.
13.4 Notwithstanding the foregoing in this Article 13, the Parties acknowledge that
their indemnification obligations hereunder are subject to Applicable Laws including the
limitation placed on the Parties' ability to grant an indemnity under the Financial Administration
Act (Ontario).
14. REPRESENTATIONS AND WARRANTIES
14.1 Representations and Warranties of the CCNF
14. L 1 The CCNF makes the following representations and warranties to the NPC and
acknowledges that the NPC is relying upon such representations and warranties:
(a) It has taken all necessary action to authorize the execution. delivery and
performance of this A and to observe and perform the provisions hereof
in accordance with the terms of this Agreement;
(b) This Agreement constitutes a valid and legally binding obligations of the CCNF
enforceable against it in accordance with its terms, subject only to applicable
bankruptcy, insolvency and other similar laws affecting the enforceability of the
rights of creditors generally, the general principles of equity and that equitable
remedies, such as specific performance and injunction, are available only in the
discretion of a court;
(c) None of the authorization, execution and delivery of this Agreement, no
compliance with or performance of the terms and conditions of this Agreement:
(i) Has resulted or will result in the violation of the constating documents or
by -laws of the CCNF, or any resolutions passed by the CCNF, or a breach
or violation of any Applicable Laws; or
(ii) Has resulted or will, with the passage of time or giving of notice, or both,
or otherwise. result in a breach of, or constitute a default under, any
agreement, undertaking or instrument to which the CCNF is a party or by
which it or its property or assets is bound;
(d) Except as disclosed to the NPC in writing, there is no suit, action, dispute, civil or
criminal litigation, claim. arbitration or legal, administrative or other proceeding
or governmental investigation, including appeals and applications for review
(collectively, "Suits ") pending or to the best of its knowledge, information and
belief. after due enquiry, threatened against it or relating to this Agreement which
would have a material and adverse effect on its ability to carry out its obligations
hereunder; and
(e) To the best of its knowledge, information and belief, after due enquiry, there are
no facts known to it which are likely to give rise to any such Suits which would
have a material and adverse effect or its ability to carry out its obligations
hereunder, except as disclosed to the NPC in writing.
(t) The CCNF acknowledges that the NPC is a Provincial Crown Agency and a
corporation incorporated by an Act of the Provincial Legislature of Ontario on the
23rd of April 1887 and continued under the Niagara Parks :lct, R.S.O. 1990,
Chapter N.3. The CCNF has read and is familiar with such Act and the statutory
jurisdiction of the NPC to control activities in the Park through such Act and
R.R.O. 1990, Regulation 829 (collectively, "NPC Legislation "), including the
conduct of persons using the Park, permissions, advertising and signage, licences.
traffic rules and the control of transportation in the Park.
The CCNF has read and is familiar with the NPC's code of conduct Located at
www.niagaraparks.com./files/Code-of-Conduct.pdf (the "NPC Code of
Conduct ").
( g)
-21 -
14.2 Representations and Warranties of the NPC
142.1 The NPC makes the following representations and warranties to the CCNF and
acknowledges that the CCNF is relying upon such representations and warranties:
(a) It has taken all necessary action to authorize the execution. delivery and
performance of this :Agreement and to observe and perform the provisions hereof
in accordance with the terms of this Agreement;
-22-
(b) This Agreement constitutes a valid and legally binding obligation of the NPC
enforceable against it in accordance with its terms. subject only to applicable
bankruptcy, insolvency and other similar laws affecting the enforceability of the
rights of creditors generally, the general principles of equity and that equitable
remedies, such as specific performance and injunction, are available only in the
discretion of a court:
(c) None of the authorization, execution and delivery of this Agreement, no
compliance with or performance of the terms and conditions of this Agreement:
(i) Has resulted or will result in the violation of the constating documents or
by -laws of the NPC, or any resolutions passed by the NPC, or a breach or
violation of any Applicable Laws: or
(ii) Has resulted or will, with the passage of time or giving of notice. or both,
or otherwise. result in a breach of, or constitute a default under, any
agreement, undertaking or instrument to which the NPC is a party or by
which it or its property or assets is bound:
(d) Except as disclosed to the NPC in writing. there is no Suit pending or to the best
of its knowledge, information and belief, after due enquiry, threatened against it
or relating to this Agreement which would have a material and adverse effect on
its ability to carry out its obligations hereunder: and
(e) To the best of its knowledge, information and belief, after due enquiry, there are
no facts known to it which are likely to give rise to any such Suits which would
have a material and adverse effect or its ability to carry out its obligations
hereunder, except as disclosed to the CCNF in writing.
15.1 Resolution by Negotiations
15. DISPUTE RESOLUTION
If any dispute arises between the CCNT and the NPC as to whether a Party has
complied with its obligations under this Agreement or if any dispute or controversy arises
between the Parties with respect to the interpretation or implementation of any of the provisions
of this Agreement, including the VTS as defined in Section 1.1 (any and all disputes and
controversies described in this Article are hereinafter collectively referred to as a "Dispute" or
"Disputes "), a Notice of a Dispute by a Party must be delivered to the other Party. The Parties
shall make all reasonable efforts to resolve any and all Disputes by amicable negotiations within
thirty (30) days of a Notice of a Dispute being delivered (the "Negotiation Period "), including
meeting at mutually acceptable times and places as often as they consider necessary, and
providing each other, on a without prejudice basis, full, frank, candid and timely disclosure of
rele% ant facts, information and documents in order to facilitate such negotiations, provided that
in so doing the Parties are bound to comply with all Applicable Laws respecting such disclosure.
If either of the Parties refuses or neglects to participate in such amicable negotiations, the other
Party may refer the Dispute immediately to mediation under Section 15.2. No Party shall be
required to participate in the negotiations specified by this Section 15.1 if a limitation period
relating to a right of such Party which is the subject matter of or is related to the Dispute, would
expire during the Negotiation Period or within ten (10) days thereafter.
15.2 Notice to Mediate
If a Dispute remains unresolved after the Negotiation
upon ten (10) days prior written Notice to the other Party, require that
a 'Mediator for mandatory mediation. The mediator shall be selected
Notice is given under this Section 15.2 within five (5) Business Days
such notice, from a list of three (3) mediators identified in the written
requiring the mediation.
15.3 Terms of Mediation
Period, either Party may,
the Dispute be referred to
by the Party to whom the
of such Party's receipt of
Notice given by the Party
The purpose of any mediation that takes place pursuant to Section 15.2 shall be to
assist the Parties in reaching a voluntary agreement respecting the Dispute. The Parties will,
within five (5) Business Days of the selection of the mediator, use commercially reasonable
efforts to schedule the mediation date(s). The format and timing of any such mediation shall be
as agreed upon by the Parties, acting commercially reasonable, and the mediator, and the costs of
the mediator shall be borne equally by the Parties.
15.4
Parties' Representatives
Each Party will be entitled to invite its legal counsel and no more than three (3) of
its employees or other representatives to attend any such mediation sessions. The inclusion of
any other persons, other than the mediator, in the mediation sessions, will require the prior
written consent of both Parties.
15.5 Termination of Mediation
In the event that any Dispute referred to mediation pursuant to Section 15.2 has
not been resolved within ten (10) Business Days of the first mediation session of such mediation,
or such further period as may be agreed upon by both Parties in writing, the Parties will instruct
the mediator to terminate the mediation by giving written notice of termination of the mediation
to both Parties.
15.6 Binding Arbitration
En the event that a Dispute has not been resolved by mediation as set out in this
Article 15, then either Party may, within ten (10) days of the date of the notice of termination
sent by the mediator under Section 15.5, by giving written Notice of its desire for binding
arbitration to the other Party, require that the Dispute be resolved through binding arbitration. If
such Notice is delivered, the Dispute shall be determined by arbitration by a single arbitrator (the
"Arbitrator") to be selected by the Party to whom such notice of binding arbitration is given,
and failing such selection, the Arbitrator shall be appointed pursuant to the Arbitration Act, 1991
(Ontario).
15.7 Terms Arbitration
- 24 -
15.7.1 Any arbitration hereunder shall be held at Niagara Falls, Ontario or Toronto,
Ontario unless the Parties otherwise agree.
15.7.2 The laws to be applied in connection with the arbitration shall be the laws of
Ontario and the laws of Canada applicable therein. but including its conflict of law rules.
15.7.3 The procedure to be followed for any arbitration that takes place under this
Article 15 shall be as agreed upon by the Parties or, in the event the Parties are unable to reach
agreement. as may be determined by the Arbitrator.
15.7.4 Any arbitration may include any other person substantially involved in a common
question of fact or law whose presence is required if complete relief is to be accorded in
arbitration. provided that such other person has agreed to be bound by such arbitration.
15.7.5 The Arbitrator shall have the power to proceed with the arbitration and to deliver
his or her award notwithstanding the default by either Party in respect of any procedural order
made by the Arbitrator.
15.7.6 The decision of the Arbitrator will be final and binding upon the Parties.
15.7.7 The Arbitrator shall have the authority to assess the costs of the arbitration against
either or both of the Parties.
15.8 Confidentiality
All negotiations, mediation and arbitration conducted pursuant to this Article 15,
and all information and documents (whether in tangible, electronic or digital form) exchanged by
the Parties in connection therewith are confidential. Such information and documents shall not
be disclosed to any person other than:
(a) the Parties. their legal counsel and any of their representatives, consultants and
advisors who need to know such information and documents for the purposes of
such negotiations, mediation or arbitration; and
(b) the mediator or Arbitrator,
except as may be required by Applicable Law or except in the course of any judicial proceeding
relating to any arbitration conducted pursuant to the arbitration rules imposed by the Arbitrator.
If either Party fails to comply with the provisions of this Section 15.8 before or after the
completion of any arbitration, the Arbitrator may enjoin further breaches by such Party of this
provision and award damages or other relief against such Party. On completion of any
negotiations, mediation or arbitration conducted under this Article 15, each Party shall return to
the other Party all copies of such information or documents, whether in tangible, electronic or
digital form.
15.9 Continuing Performance
15.9.1 At all times, notwithstanding the existence of any Dispute, the Parties shall
continue to perform their respective obligations in accordance with the provisions of this
Agreement without prejudice to the right to contest, dispute and challenge the relevant matter in
accordance with the provisions of this Agreement, provided that this Section 15.9 shall not apply
to a Party where the other Party has repudiated, terminated or abandoned performance of this
Agreement or where the first Party asserts claims in fraud or misappropriation. No Partv shall
exercise any remedy with respect to an alleged default by another Party under this Agreement if
a Dispute with respect to such alleged default has been submitted for resolution pursuant to this
Article, until either (i) the Parties have settled the Dispute; or (ii) the Arbitrator has made an
award with respect to the Dispute.
15.9.2 Subject to the express provisions of this Agrreement. where there is any Dispute as
to the amount of monies owing hereunder by any Partv hereto to any other Party hereto, the
portion of the amount owing that is not contested, disputed or challenged, if any, shall be paid
when due hereunder. but without prejudice to the rights of the other Party to contest, dispute or
challenge the disposition of the remaining portion of the monies claimed.
15.10 Survival
The provisions of this Article 15 shall survive any expiration of the Term or other
termination of this Agreement. The provisions of this Article 15 shall continue in full force and
effect notwithstanding any determination by the Arbitrator or the Parties that one or more other
provisions of this Agreement are invalid, contrary to law or unenforceable.
16.1 Waiver
16.2 Further Acts
16. GENERAL AND MISCELLANEOUS
Save as expressly set out herein, no waiver of any provision of this Agreement
shall be binding unless it is in writing. No indulgence or forbearance by a Party shall constitute a
waiver of such Party's right to insist on performance in full and in a timely manner of all
covenants in this Agreement. Waiver of any provision shall not be deemed to be a waiver of the
same provision thereafter or any other provision of this Agreement at any time.
The Parties shall do or cause to be done all such further acts and things as may be
reasonably necessary or desirable to give full effect to this Agreement. Without limiting the
foregoing, each of the Parties will at any time and from time to time execute and deliver or cause
to be executed and delivered such further instruments and such further actions as may be
reasonably requested by the other Party to cure any defect in the execution or delivery of this
Agreement or to give effect to the provisions of this Agreement.
16.3 Freedom of Information
The Parties acknowledge that the terms of this Agreement are subject to the
Municipal Freedom of Information and Protection of Privacy Act (Ontario) and the Freedom of
Information and Protection of Privacy Act (Ontario).
16.4 Remedies
No remedy herein conferred upon or reserved in favour of a Party shall exclude
any other remedy herein or existing at law or in equity, but each shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter existing.
16.5 Support of Agreement
16.6 Notice
16.7 Counterparts
- 7 6_
Each of the Parties agrees that they shall publicly support this Agreement and the
VTS in any statements. reports or communications such Party makes to the public. In addition,
any press releases of either or both Parties in connection with or relating to this Agreement
andor the VTS in any way shall be jointly agreed to in writing prior to its release.
Any and all notices required to be sent pursuant to the terms of this Agreement
(each a "Notice ") shall be in wri ting and shall be sent by mail, or personally delivered, or by
overnight courier, or by facsimile or e -mail (each a "Transmission "), to the Parties at their
addresses as set out in Schedule H or to any other address that a Party designates. Any Notice
(a) sent by mail. shall be deemed to have been received ten (10) Business Days after mailing; (b)
delivered personally or sent by overnight courier, shall be deemed to have been griven when
actually received; (c) sent by a Transmission before 3:00 p.m. (Toronto time) on a Business
Day. shall be deemed to have been given on that Business Day. or (d) if sent by a Transmission
after 3:00 p.m. (Toronto time) on a Business Day or at any time on a day that is not a Business
Day, shall be deemed to have been given on the Business Day after the date of the Transmission.
Any Notice given by one Party to the other under this Agreement shall be given in writing at the
address of the other Party as set forth below or at such other address as may have been furnished
in writing for such purpose.
This Agreement may be executed in any number of counterparts. each of which
shall be deemed to be an original, and all of which together shall be deemed to be one and the
same instrument and receipt of a facsimile or portable document format (.pdf) version of an
executed signature page of this Agreement by a Party shall constitute satisfactory evidence of
execution of this Agreement by such Party.
- 27 -
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
first written above.
THE CORPORATION OF THE CITY OF
NIAGARA FALLS
Per:
James M. Diodati, Mayor
Per:
Dean Iorfida, City Clerk
I/We have authority to bind the corporation.
THE NIAGARA PARKS COMIMISSION
Per:
Fay Booker, General Manager
I have authority to bind the corporation.
See attached.
Schedule A
VTS FACILITY LOCATION
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See attached.
- 28 -
Schedule B
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- 29 -
Schedule C
GREEN LINE
See attached.
- 30 -
Schedule D
RED LINE
See attached.
-31 -
Schedule E
VTS BUS LEASE
RECITALS:
BETWEEN:
ff *o ,',i f,n
VEHICLE LEASE
THIS VEHICLE LEASE made and entered into 25`" day of August. 2011.
THE CORPORATION OF THE CITY OF NIAGARA FALLS
( "Lessor "),
-and -
THE NIAGARA PARKS COMMISSION
( "Lessee ").
WHEREAS Lessee and Lessor entered an agreement on the date hereof pursuant
to which Lessee and Lessor agreed to, inter alia, establish a visitor transportation system
( "VTS ") that results in people having improved convenient transportation to and from certain
areas within the Park and the City of Niagara Falls by coordinating bus service operations among
and between their respective bus lines through integrated and coordinated practices in areas such
as scheduling, traffic patterns, bus specifications, branding and operational terms, and by
providing the opportunity for passengers to conveniently transfer between such bus lines without
additional payment (the "VTS Agreement ");
AND WHEREAS Lessor shall enter into an agreement with each of the
Government of Canada and the Government of the Province of Ontario pursuant to which each
such Government will provide Lessor with Twenty -Five Million Dollars ($25,000,000) to fund
the capital costs of the VTS, subject to certain terms (the "Contribution Agreements ");
AND WHEREAS Lessor has agreed to use certain of such funds received from
the Government of Canada and the Government of the Province of Ontario to acquire twenty
(20) clean diesel articulated sixty (60) foot buses and seven (7) clean diesel forty (40) foot buses
(collectively, the "VTS Bus Fleet "), and each such bus will have installed on it intelligent
transportation system hardware and software ("ITS ") and will be used for the operation of the
VTS:
AND WHEREAS Lessee wishes to lease from Lessor nine (9) clean diesel
articulated sixty (60) foot buses and two (2) clean diesel forty (40) foot including all equipment,
attachments and accessions thereto and all substitutions and replacements thereof, all as more
fully described in Schedule A attached hereto, (collectively, the "Vehicles ") and Lessor is
prepared to acquire the VTS Bus Fleet that will include nine (9) clean diesel articulated sixty
(60) foot buses and two (2) clean diesel forty (40) foot buses with the specifications set out
described in Schedule A and lease the Vehicles to Lessee on the terms and conditions of this
Lease.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration
of the rental payments, the mutual covenants and agreements hereinafter contained and other
good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged
by each of the Parties hereto), the Parties agree as follows:
1.1 Definitions
In this Lease, unless there is something in the subject matter that is inconsistent
therewith, the following terms have the following meanings:
"Applicable Law" means (i) any domestic or foreign statute, law (including the
common and civil law and equity), constitution, code, ordinance, rule, regulation,
restriction, regulatory policy or guideline having the force of law, by -law (zoning
or otherwise) or order, (ii) any consent, exemption, approval or licence of any
Governmental Authority, and (iii) any policy, practice or guideline of, or contract
with, any Governmental Authority which, although not actually having the force
of law, is considered by such Governmental Authority as if having the force of
law;
L)M FQt'208195- 00018;4914665.6B
2
ARTICLE 1
INTERPRETATION
"Billing Period" means the twelve (12) month period beginning thirty (30) days
following Lessee's acceptance of the Vehicles in accordance with Section 2.4;
"Business Day" means Monday through Friday except for any statutory or civic
holidays observed in the City of Niagara Falls;
"Contribution Agreements" has the meaning given to it in the second Recital to
this Lease;
"Governmental Authority" means (i) any court, judicial body or arbitral body,
(ii) any domestic or foreign government whether multinational, national, federal,
provincial, territorial, state, municipal or local and any governmental agency,
governmental authority, governmental tribunal or governmental commission of
any kind whatever, (iii) any subdivision or authority of any of the foregoing, (iv)
any quasi - governmental or private body exercising any regulatory, expropriation
or taxing authority under or for the account of any of the above, (v) any
supranational or regional body such as the World Trade Organization, and (vi)
any stock exchange;
"HST" has the meaning given to it in Section 9.1;
"including" means "including without limitation ";
1.2 Binding Effect
Dht FOR-20S (95-0001 `.t 4914665.68
3
"ITS" has the meaning given to it in the third Recital to this Lease;
"Lease" means this vehicle lease and all attached schedules, as the same may be
supplemented, amended, restated or replaced from time to time;
"Lessee Default" has the meaning given to it in Section 13.1;
"Notice" has the meaning given to it in Section 14.8;
"Operational Date" has the meaning ascribed thereto in the VTS Agreement;
"Ownership Documents and Tools" means all ownership, instruction and
maintenance manuals, certificates of ownership, warranty documentation, spare
parts and tools relating to the Vehicles and any and all equipment and fixtures
installed in or on the Vehicles, including the ITS, and related warranty
documentation, delivered with the Vehicles before or at the time of the acceptance
of the Vehicles by Lessee in accordance with Section 2.4, or delivered by the
manufacturer of the Vehicles to either Lessor or Lessee subsequent to such
acceptance;
"Park" has the meaning given to it in the Niagara Parks Act (Ontario);
"Parties" means, collectively, each of the signatories to this Lease, and "Party"
means either of them;
"Rent" has the meaning given to such term in Section 4.1;
"Sales Taxes" has the meaning given to such term in Section 4.4;
"Term" has the meaning given to it in Section 3.1;
"Vehicles" has the meaning given to it in the fourth Recital to this Lease, and
"Vehicle" means any one of them;
"VTS" has the meaning given to it in the first Recital to this Lease;
"VTS Agreement" has the meaning given to it in the first Recital to this Lease;
"VTS Bus Fleet" has the meaning given to it in the third Recital to this Lease;
and
"Warranty Rights" means the full benefit of all warranties, warranty rights,
guarantees, indemnities, undertakings and similar covenants (implied, express or
otherwise) against manufacturers or sellers which apply to any of the Vehicles.
This Lease shall be binding upon and shall enure to the benefit of the Parties and
their respective successors and permitted assigns.
4
1.3 Construction
(a) Each obligation or agreement of Lessor or Lessee expressed in this Lease, even
though not expressed as a covenant, is considered to be a covenant for all
purposes.
(b) The division of this Lease into Articles and Sections and the insertion of headings
are for convenience of reference only and do not affect the construction or
interpretation of this Lease.
(c) The terms "hereof', "herein ", "hereby ", "hereunder ", "hereto ", "hereinafter" and
similar expressions refer to this Lease and the Schedules and not to any particular
Article, Section, Schedule or other portion hereof. Unless something in the
subject matter or context is inconsistent therewith, references herein to Articles,
Sections and Schedules are to articles and sections of and schedules to this Lease.
(d) The provisions of this Lease shall be deemed severable, and the termination,
invalidity or unenforceability of any one or more of the provisions hereof shall
not affect the validity or enforceability of the other provisions hereof.
(e) Words importing the singular number include the plural and vice versa, words
importing any gender include all genders and words importing persons include
individuals, corporations, limited and unlimited liability companies, general and
limited partnerships, associations, trusts, unincorporated organizations, joint
ventures and Governmental Authorities.
(f) Time is of the essence of this Lease and of every part hereof.
(g) No amendment to this Lease will be valid or binding unless set forth in writing
and duly executed by both of the Parties.
(h) All references to currency herein are to lawful money of Canada.
(i) Unless otherwise provided herein, each reference to an enactment is deemed to be
a reference to that enactment, and to the regulations made under that enactment,
as amended or re- enacted from time to time. Similarly, unless otherwise provided
herein, each reference to an agreement is deemed to be a reference to that
agreement, as it may be supplemented, amended or restated from time to time.
(j) If any action is required to be taken pursuant to this Lease on or by a specified
date which is not a Business Day, then such action shall be valid if taken on or by
the next succeeding Business Day.
(k) The provisions of this Lease shall not affect the rights of the Parties which may
subsist from time to time to any other agreements between them dated
concurrently with or subsequently to this Lease nor relieve the Parties of any
obligations they may have pursuant to such agreements.
DM I OR 20`i S 4414665.6B
1.4 Schedules
1.5 Governing Jurisdiction and Attornment
The Parties hereby agree that this Lease and the provisions hereof shall be
construed in accordance with the laws of the Province of Ontario and the laws of Canada and the
Parties attorn to the jurisdiction of the Courts of the Province of Ontario.
1.6 Entire Agreement
This Lease constitutes the entire agreement and understanding by and between the
Parties, except as herein otherwise expressly provided. There are no representations, warranties,
promises, terms, conditions, undertakings or collateral agreements or understanding, written or
oral, express or implied between the Parties pertaining to the subject matter hereof other than as
expressly set forth in this Lease.
2.1 Lease
(a) Lessor does hereby lease to Lessee, and Lessee does hereby hire for rent from
Lessor the Vehicles described in Schedule A hereto which Schedule is
incorporated into and forms a part of this Lease. This Lease is expressly made
subject to the terms, conditions, and agreements contained in this Lease.
(b) Lessor does hereby confirm receipt from Lessee, prior to August 15, 2011, of all
Vehicle specifications necessary to place the order for purchase of the Vehicles as
part of Lessor's order for purchase of the VTS Bus Fleet. Lessor does hereby
further confirm that the initial order requirements for the purchase of the VTS Bus
Fleet, including the Vehicles, ( "Purchase Order ") has been completed. Lessor
will not, without the prior written consent of Lessee, cancel, supplement or alter
the Purchase Order in respect of, or in any way relating to, the Vehicles.
(c) Lessor will use its best efforts to consult with Lessee and take into consideration
any of Lessee's requests and suggestions for the specifications for the buses in the
VTS Bus Fleet, and to coordinate with and include Lessee in all manufacturer site
visits scheduled for design and manufacture specification inspections of the VTS
Bus Fleet. Further, Lessor will ensure that Lessee is given an opportunity to
inspect one Vehicle of each type of model identified in Schedule A following
such Vehicle's manufacture but prior to its road test in order to assess compliance
with specifications set out in Schedule A.
DN1 TOR- 'O5195 - 000184914665 6B
5
The following attached schedules are attached to and form part of this Lease:
Schedule A Vehicles
Schedule B - Notice Details
ARTICLE 2
LEASE
(d) Lessor will consult with Lessee and ensure that all design, manufacture and other
order specifications for the Vehicles to be submitted to the manufacturer of the
Vehicles following the date hereof, which such specifications will be added to
Schedule A in accordance with Section 10.1, will be as determined by Lessee
provided that any such specifications are unique to the Vehicles alone and in
addition to the specifications on the remainder of the buses in the VTS Bus Fleet;
which result in the Vehicles being more expensive that the remainder of the buses
in the VTS Bus Fleet of similar size, Lessee will be responsible for the additional
costs resulting from such unique and additional specifications where such
additional costs are not covered by the NPC Allocated Capital (as such term is
defined in the VTS Agreement) in accordance with section 10 of the VTS
Agreement.
2.2 Grant of Security Interest
Lessee grants to Lessor a security interest in the Vehicles, and all parts,
components, accessories, accessions, replacements, substitutions, additions and improvements to
the Vehicles, and the proceeds therefrom or any other goods or intangibles received as a result of
the Vehicles being sold, dealt with, or otherwise disposed of, as general continuing security for
the payment of all indebtedness and liabilities of Lessee to Lessor arising under and pursuant to
this Lease.
2.3 Lease Characterization
Lessor and Lessee characterize this Lease as a lease for accounting, income and
sales tax purposes. Lessor and Lessee agree that Lessor is the only party entitled to claim
income tax deductions for capital cost allowance with respect to the Vehicles under the Income
Tw. Act (Canada) and Provincial income tax legislation.
2.4 Acceptance
At least ten (10) days prior to delivery of a Vehicle to Lessee, Lessor will ensure
Lessee is given an opportunity to inspect such Vehicle to assess compliance with specifications
set out in Schedule A. Acceptance of delivery of a Vehicle by Lessee, or its representative, shall
constitute Lessee's acknowledgement and approval that the Vehicle is of the make and model,
and is equipped, as specified by Lessee, is in satisfactory condition and is leased under this
Lease; such acknowledgement and approval not to be unreasonably withheld.
2.5 Quiet Enjoyment
Lessee may retain possession and quiet enjoyment of each Vehicle until the end
of the Term as long as (i) Lessee makes due and timely payment of all monthly invoices and
other amounts due under this Lease, and (ii) Lessee performs all of its other covenants and
obligations under this Lease in all material respects.
DM 10R2U81
6
DM JOR 208195- 00018; 4914.665.66
- 7 -
2.6 Option to Purchase on Expiration/Termination
Lessee shall have the option to purchase all, but not less than all, Vehicles
together with their respective Ownership Documents and Tools as at the expiry of the Term or
termination of this Lease pursuant to Section 3.2(b)(i); such purchase to be on an "as is, where
is" basis, without recourse, representation or warranty other than (i) good and marketable title to
the Vehicles and their respective Ownership Documents and Tools, and (ii) the Vehicles and
their respective Ownership Documents and Tools are free and clear of liens and encumbrances;
at a purchase price equal to One Dollar ($1.00) per Vehicle as of the date of expiry or such
termination, plus any applicable Sales Taxes thereon required to transfer the Vehicles to the
Lessee (including the costs of certificates of mechanical fitness and emissions certificates to the
extent required under Applicable Laws). To exercise the option, Lessee shall give written notice
to Lessor, on or before thirty (30) days of the expiration of the Term or if otherwise terminated,
within ten (10) days of the effective termination date, specifying a closing date which is between
the thirtieth (30` and sixtieth (60 day following the expiration date or effective date of the
termination, as the case maybe. The Parties shall conclude the sale and purchase of the Vehicles
on or before the specified closing date or such other date as may be mutually agreed. At closing
Lessee shall pay Lessor against transfer of title to the Vehicles by cash, certified cheque or by
any other method acceptable to Lessor the aggregate purchase price of such Vehicles including
applicable Sales Taxes.
2.7 Lesse's Purchase on Termination
Lessee shall purchase all, but not less than all, Vehicles together with their
respective Ownership Documents and Tools as at termination of this Lease pursuant to Section
3.2(b)(ii); such purchase to be on an "as is, where is" basis, without recourse, representation or
warranty other than (i) good and marketable title to the Vehicles and their respective Ownership
Documents and Tools, and (ii) the Vehicles and their respective Ownership Documents and
Tools are free and clear of liens and encumbrances; at a purchase price equal to the sum of:
(a) One Dollar ($1.00) per Vehicle, and
(b) the aggregate amount of moneys that Lessor paid to acquire the Vehicles less the
aggregate amount of moneys that Lessor has been reimbursed under the
Contribution Agreements, and
(c) any claw back of funds under the Contribution Agreements that pertains to, is
connected to or relates to the Vehicles specifically if any such claw backs are
made of Lessor,
as of the date of such termination, plus any applicable Sales Taxes thereon required to transfer
the Vehicles to the Lessee (including the costs of certificates of mechanical fitness and emissions
certificates to the extent required under Applicable Laws). The closing date for such purchase
shall be, and the Parties shall conclude the sale and purchase of the Vehicles, on the effective
termination date set out in the notice delivered pursuant to Section 3.2(b)(ii). At such closing
Lessee shall pay Lessor against transfer of title to the Vehicles by cash, certified cheque or by
- 8 -
any other method acceptable to Lessor the aggregate purchase price of such Vehicles plus
applicable Sales Taxes.
ARTICLE 3
TERM AND TERMINATION
3.1 Term of Lease
(a) This Lease shall become effective on the date hereof and shall remain in effect
until the tenth (10` anniversary of the Operational Date, unless earlier terminated
as provided herein (the "Term ").
(b) Notwithstanding any other provision in this Lease, if the Operational Date does
not occur on or before the 30` day of March, 2013 (or such other date as the
March 30, 2013 date is extended under the Contribution Agreements), this Lease
shall be null and void and of no force and effect.
3.2 Termination
(a) Lessor shall have the right to terminate this Lease immediately, in the event of
Lessee's bankruptcy or insolvency, or any initiation, voluntary or involuntary
(made in good faith), of bankruptcy or insolvency of Lessee. If Lessor terminates
this Lease pursuant to this Section 3.2(a), Lessee shall forthwith return the
Vehicles in their original condition, normal wear and tear excepted.
(b) Lessee shall have the right to terminate this Lease:
(i) immediately, in the event of Lessor's bankruptcy or insolvency, or any
initiation, voluntary or involuntary (made in good faith), of bankruptcy or
insolvency of Lessor; and
(ii) at anytime during the Term by giving Lessor not less than on ninety (90)
days prior written notice of its intent to terminate this Lease and purchase
the Vehicles pursuant to Section 2.7.
(c) For greater certainty,
(i) a termination of the VTS Agreement in accordance with its terms shall not
result in a termination of this Lease; and
3.3 Rights and Obligations on Expiry/Termination
Upon expiry of the Term or other termination of this Lease, all rights and
obligations of Lessor and Lessee under this Lease shall cease except those which are stated
DM FOR 00018;4
(ii) a termination of this Lease pursuant to this Section 3.2 shall not result in a
termination of the VTS Agreement.
herein to survive termination, and except for the obligation to pay any monies owing at the time
of expiration or other termination.
4.1 Rental
For the use of each Vehicle, Lessee shall pay to Lessor the amount of One Dollar
(S1.00) per year (or part thereof), during the period commencing on the first day of the month
immediately following the Operational Date and ending on the expiration of the Term or earlier
termination of this Lease ( "Rent ").
4.2 Invoicing
Lessor will render to Lessee an annual invoice for each Billing Period, which will
be dated the first of the first month of such Billing Period and payable within thirty (30) days of
the invoice date, showing the total annual rental payable for such Billing Period for all of
Vehicles, any applicable Sales Taxes and all other details required for Lessee to claim input tax
credits. Lessor shall deliver such invoice to Lessee not later than the first day of each Billing
Period to which it relates in order to facilitate Lessee processing payment on a timely basis.
Lessee shall, upon receipt of each such invoice, pay Lessor the total amount shown by cheque or
pre - authorized debit, electronic funds transfer or other agreed mode of payment, payable in
Canadian funds. Cheques must be mailed or delivered to Lessor at its address shown in Schedule
B or to such other address as shall be given to Lessee by Notice from time -to -time by Lessor.
4.3 Late Payment Charge
If any Rent is not paid by its due date or if any other amount payable under this
Lease by Lessee to Lessor (including interest) is not paid when due, interest shall accrue and be
payable on demand on such unpaid amount both before and after judgement, from the due date
until paid, at a rate of one percent (1%) o) per annum.
4.4 Sales Taxes
Except as otherwise specified in this Lease, all amounts payable pursuant to this
Lease do not include any sales, use or value -added taxes, including HST, (collectively, "Sales
Taxes "). The Parties agree that they will cooperate to collect, remit, report and pay all
applicable Sales Taxes as required by, and in accordance with, the applicable legislation and
regulations made thereunder.
4.5 Set - off
Lessee's obligations to pay Rent and any other amounts payable hereunder and to
perform its other obligations hereunder are subject to any right of set -off.
I)M 1'(1R 208 5 -0001 8.4914665.h13
-9
ARTICLE 4
RENTAL
5.1 Maintenance and Use
Lessee shall only use the Vehicles or permit their use for lawful purposes, within
Ontario, in accordance with all Applicable Laws relating to the registration, leasing, insurance,
possession, use or operation of the Vehicle, and shall use the Vehicles in accordance with all
conditions of any applicable insurance policies and in accordance with the terms of the VTS
Agreement. No Vehicle shall be used for the transportation for hire of goods or passengers or for
towing any property other than in accordance with the Vehicle manufacturer's specifications.
Lessee shall maintain, at its expense, each Vehicle in good condition and repair at all times,
ordinary wear and tear excepted. Lessee shall comply, and cause all persons operating the
Vehicles to comply, with (i) all Applicable Laws relating to the registration, leasing, insurance,
possession, use and operation of the Vehicles, including operators' licensing requirements, and
(ii) all conditions of the policies of insurance on the Vehicles.
5.2 Decal & Painting
Lessee may. at Lessee's sole expense, decal and paint the interior and exterior of
the Vehicles for the duration of the Tenn provided, however, that Lessee will also be responsible
for removing the decal and returning the Vehicles in their original condition at the expiration of
the Term or earlier termination of this Lease if the Lessee does not exercise its option to
purchase the Vehicles pursuant to Section 2.6. Lessee shall be solely responsible for all matters
related to such decal and painting, and shall ensure that such decal and painting are in
compliance with the bus branding terms set out in the VTS Agreement, and otherwise does not
infringe any rights of any third party whatsoever.
6.1 Insurance
(a) Lessee, at its own expense, shall at all times during the Term obtain and keep
effective, the following insurance coverage issued by insurers licensed to write
business in Ontario:
(i) Automobile insurance per statutory requirements in Ontario, Ontario
Automobile Policy (OAP1) Owner's Policy section 3 and 4, auto liability
for a limit of not less than Ten Million Dollars ($10,000,000.00) per
occurrence including accident benefit, section 7, loss or damage coverage
— all perils, and OPCF 5 — Permission to Rent or Lease Automobiles and
Extending Coverage to the Specified Lessee(s), subject to a maximum Ten
Thousand Dollars ($10,000.00) deductible. Lessee agrees to immediately
pay the deductible hereunder.
(b) Each of the foregoing policies of insurance shall name Lessor as an additional
insured as its interests as registered owner of the Vehicles may appear.
DM TOR :20$195 - 00018 4914 6 ^.6B
- 10-
ARTICLE 5
MAINTENANCE, USE AND REPAIRS
ARTICLE 6
INSURANCE
6.2 Compliance with Laws
6.3 Certificates of Insurance
7.1 Risk and Liability
7.2 Responsibility
7.3 Obligation to Indemnify
DM I OR, '_ rioo1 8 4914665 6B
Notwithstanding anything herein contained to the contrary, in the event that
Lessee is required by provincial or other local laws to have in place certain insurance coverage,
Lessee shall ensure that the insurance obtained and maintained is in compliance with the
requirements of all such Applicable Laws.
Prior to and as condition to the delivery of any Vehicle to Lessee, Lessee shall
provide Lessor with a current certificate of insurance from the insurance company indicating that
the insurance described in this Article has been obtained and will be maintained for the Term.
Lessee shall notify Lessor of any change to such insurance no less than thirty (30) days prior to
the effective date of such change indicating the nature of such change.
ARTICLE 7
RISK OF LOSS & LIABILITY
Upon delivery, Lessee shall assume all risk and liability for any loss, theft,
destruction and damage to the Vehicles from whatever cause, including, without limitation, the
use and operation of the Vehicles, and Lessee shall indemnify and save Lessor harmless from
and against all claims, actions, causes of action, suits, demands, losses, damages, costs, expenses
(including, without limitation, attorneys' and experts' fees and expenses), fines and penalties,
including (without limitation) bodily injury and death and property damage (including, without
limitation, damage to any Vehicle), relating to, arising out of or contributed to by:
(a) any failure, breach of or default under any provision of this Lease by Lessee;
(b) any negligence, recklessness or wilful misconduct of Lessee or any of its owners,
operators, agents, representatives or passengers, servants or employees;
(c) the use, condition or operation of the Vehicle during the Term; and
(d) any failure to strictly comply with any Applicable Laws relating to the operation,
use or possession of the Vehicles during the Term and with any insurance
policies.
Lessee shall be responsible for any acts or omissions of Lessee, its owners,
operators, agents, representatives, passengers, servants or employees.
Notwithstanding any other provision of this Lease or the availability, existence or
collectibility of any insurance, Lessee shall indemnify and save harmless Lessor from and
7.4 Accessions to Vehicles
7.5 Limitation of Liability
8.1 Warranty Disclaimer
DRt TOR 2081a5_0001 4814605
- 12-
against any and all losses, costs, damages, claims and liabilities of whatever kind or nature,
including, without limitation, reasonable legal fees and disbursements on a solicitor and client
basis incurred or suffered by Lessor and relating in any way whatsoever to any Vehicle or the
possession, use. or operation of a Vehicle by Lessee. Lessee irrevocably waives in favour of
Lessor the benefit of all applicable limitation periods, including, without limitation, any arising
under highway traffic legislation with respect to claims relating to motor vehicles.
Notwithstanding the foregoing: (i) Lessee is not responsible for any damage caused to a Vehicle
or theft or loss of a Vehicle, which occurs due to the fault or neglect of Lessor while a Vehicle is
in Lessor's possession: and (ii) in no event will Lessee be liable to Lessor for loss of profits, loss
of a business opportunity or any other consequential loss, even if Lessee has been notified in
advance of the possibility of such loss. Notwithstanding the foregoing in this Section 7.3, the
Parties acknowledge that Lessee's indemnification obligations hereunder are subject to
Applicable Laws, including the limitation placed on Lessee's ability to grant an indemnity under
the Financial Administration Act (Ontario).
Any and all repairs, replacements, substitutions of parts on any Vehicle shall be
deemed accessions to the Vehicle and, during the Term. title thereto shall vest and remain in
Lessor. regardless of who pays for such repairs, replacements, substitutions of parts.
Lessor shall not be responsible to Lessee, its owners, operators, agents,
representatives or passengers, servants or employees, for any indirect, incidental, consequential
or special damages, howsoever arising, whether in contract, tort or otherwise, including, without
limitation, any loss of business or profits, or other damage as the result of any accident or failure
involving the Vehicle while in Lessee's care, custody or control, or for the time lost in the
repairing or replacing of the Vehicle.
ARTICLE 8
WARRANTY DISCLAIMER
Lessee acknowledges that each Vehicle is selected by it and Lessor has no
liability whatsoever to Lessee for any loss or damage of any kind whatsoever suffered by Lessee,
whether directly or indirectly, as a result of any defect in a Vehicle, failure of a Vehicle to
perform properly or any other matter whatsoever relating to a Vehicle. LESSEE EXPRESSLY
WAIVES ANY AND ALL CLAIMS AGAINST LESSOR FOR SUCH LOSSES OR
DAMAGES, AND ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET OUT IN THIS
LEASE. THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR
OTHER AGREEMENTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ON
THE PART OF LESSOR UNDER THIS LEASE OR OTHERWISE, EXCEPT AS MAY BE
SET FORTH IN WRITING DATED CONCURRENTLY WITH OR SUBSEQUENT TO THIS
LEASE.
8.2 Rights Against Manufacturers
- 13 -
Lessor will ensure that any and all Warranty Rights in each Vehicle are either in
the name of the Lessee or are fully assignable to the Lessee so that the Lessee gets full benefit
under all such Warranty Rights. During the Term, Lessor will assign or otherwise make
available to Lessee all of Lessor's rights, if any, under any Warranty Rights in each Vehicle. If
at any time during the Term, Lessee determines that there is a defect in a Vehicle or a Vehicle
does not operate as represented or warranted by the manufacturer or is otherwise unsatisfactory
for any reason, Lessor will fully cooperate with Lessee to make any reasonable complaint or
claim against the applicable manufacturer in respect thereof.
8.3 Actions of Dealer
Lessee acknowledges that no dealer, salesman or agent of a dealer is authorized to
waive or alter any term or condition of this Lease, or to add any provision, condition,
representation or warranty to this Lease.
9.1 Additional Fee
ARTICLE 9
ADDITIONAL FEE AND EXPENSES
In addition to the Rent, Lessee shall pay to Lessor an additional fee in the amount
equal to the tax exigible pursuant to Part IX of the Excise Tax Act (Canada) ( "HST ") that Lessor
is required to pay on its acquisition of the of the Vehicles but is not legally entitled to recover by
way of rebate, input tax credit, or other form of refund ( "Unrecoverable HST "). Lessor shall
properly claim all such available rebates, input tax credits. or other form of refunds, but in any
event, Lessee shall not be required to pay Lessor any amount of Unrecoverable HST that is
unrecoverable due to any failure by Lessor, including any failure to properly claim a rebate,
input tax credit or refund. In the event that the HST is replaced by a substantially similar tax, the
additional fee payable by Lessee shall be equal to the unrecoverable portion of such tax, subject
to restrictions similar to those described above in this Section.
9.2 Expenses
(a) Lessee shall pay directly all costs, expenses, fees, and charges, plus any HST
exigible thereon, incurred in connection with the titling and registration of the
Vehicles and the use and operation of the Vehicles during the Term, including,
but not limited to, fuel, lubricants, replacement parts and accessories, repairs,
maintenance, storage, parking, tolls, fines, registration fees, license fees, and tags.
(b) If Lessee fails to make any payment required or fails to perform or comply with
any of its obligations hereunder, Lessor may make such payment or perform such
obligations as agent for and on behalf of Lessee, and the amount of such payment,
including reasonable expenses, shall be payable by Lessee on demand. If Lessor
makes payment of any HST pursuant to this Section on behalf of Lessee, Lessor
agrees not to claim any rebates, input tax credits or other forms of refund in
respect of such HST.
DAt 1 0Po208195 -00018 49140)5.6B
10.1 Amendments to Vehicles Schedule
11.1 Title and Registration
11.2 Security Registrations
DM TOR 2081
- 14 -
ARTICLE 10
AMENDMENTS TO VEHICLES SCHEDULE
The Parties acknowledge and agree that the Vehicle details listed on Schedule A
hereto must be amended, added to, or otherwise modified (each, a "Vehicle Schedule
Supplement ") from time to time to more clearly identify the Vehicles and to incorporate further
manufacturing specifications of the Vehicles, including the addition of the Vehicles' vehicle
identification numbers, other equipment identification numbers and licence plate numbers. Each
Vehicle Schedule Supplement shall be signed and dated by the Parties and the terms and
conditions of this Lease shall be effective in respect of the vehicle details listed on such Schedule
A Supplements as of the effective date of such Vehicle Schedule Supplements. The Parties
hereby undertake to add to Schedule A, on or before the Operational Date, in a Vehicle Schedule
Supplement. the Vehicles vehicle identification numbers and licence plate numbers.
ARTICLE 11
TITLE AND REGISTRATION
Title and ownership of the Vehicles shall at all times during the Term remain
vested in Lessor and Lessee shall not do anything prejudicial thereto. Lessee shall not pledge,
grant a security interest in or encumber the Vehicles in any manner whatsoever or permit any
lien or security interest to be placed thereon. Each Vehicle which requires licensing or
registration shall be licensed and registered in Ontario, Canada in the name of Lessor, unless
otherwise required by Applicable Law, in which case such registration will indicate that Lessor
is Lessor of the Vehicle. Renewal of any license or registration of a Vehicle shall be the sole
responsibility of Lessee.
Lessee acknowledges (i) that any registration by Lessor under the Personal
Property Security Act (Ontario) in respect of this Lease is made out of an abundance of caution
and without thereby diminishing Lessor's retention of title or other rights hereunder or thereby
acknowledging the applicability of such legislation, (ii) Lessor shall bear its own costs and
expenses for registration under the Personal Property Security Act (Ontario) at the time of
delivery of each Vehicle leased hereunder, (iii) receipt of a fully executed copy of this Lease and
(iv) that, without limitation, for purposes of registration under such legislation each security
agreement made by Lessee with or in favour of Lessor (whether before, on or after the date of
this Lease) is connected with each other such security agreement.
12.1 Assignment
13.1 Default
13.2 Rights on Default
14.1 Waiver
D:N1 FOR 2i3S 145- p0O18 4914665.613
- 15 -
ARTICLE 12
ASSIGNMENT
Neither this Lease nor any interest herein may be assigned by either Party without
the prior written consent of the other Party. Any subleasing or reletting of the Vehicles is
prohibited.
ARTICLE 13
DEFAULT
If Lessee fails to pay when due any rent or other amount payable under this Lease,
or fails to perform or observe any of its other obligations under this Lease, and such failure
continues for a period of fifteen (15) days after written notice by Lessor to Lessee to cure such
failure (a "Lessee Default "), Lessor may declare Lessee to be in default under this Lease.
(a) Upon declaration by Lessor that Lessee is in default under this Lease, and
notwithstanding any other provision of this Lease, and, subject always to all
Applicable Laws, Lessor shall have the following remedies: (i) collect all moneys
from Lessee due to Lessor hereunder as at the date of such termination, and (ii)
collect all moneys from Lessee that would have been paid to Lessor on account of
monthly Rent for the Term if the Lease had not been terminated early.
(b) The foregoing rights and remedies on a Lessee Default are cumulative and not
alternative. are in addition to and not in substitution for any and all other rights
and remedies otherwise available to Lessor including, without limitation, its right
of set -off, and may be exercised separately or together, whether before or after
any termination of this Lease. Lessor may refrain from exercising any one or
more of its rights or remedies without incurring any liability to Lessee and the
exercise of any right or remedy shall not preclude its further exercise.
ARTICLE 14
GENERAL AND MISCELLANEOUS
Save as expressly set out herein, no waiver of any provision of this Lease shall be
binding unless it is in writing. No indulgence or forbearance by a Party shall constitute a waiver
of such Party's right to insist on performance in full and in a timely manner of all covenants in
this Lease. Waiver of any provision shall not be deemed to be a waiver of the same provision
thereafter or any other provision of this Lease at any time.
14.2 Lessee Governing Legislation and Code of Conduct
(a) Lessee is a Provincial Crown Agency and a corporation incorporated by an Act of
the Provincial Legislature of Ontario on the 23rd of April 1887 and continued
under the Niagara Parks Act, R.S.O. 1990, Chapter N.3. Lessor has read and is
familiar with such Act and the statutory jurisdiction of Lessee to control activities
in the Park through such Act and R.R.O. 1990, Regulation 829 (collectively,
"NPC Legislation "), including the conduct of persons using the Park,
permissions, advertising and signage, licences, traffic rules and the control of
transportation in the Park. Lessor will cause each of its current and future
directors, officers, employees and members to adhere to the NPC Legislation and
any written directives from Lessee to ensure compliance with NPC Legislation
and hereby assumes all responsibility for any failure to comply with the terms of
this Section.
(b) Lessor has read and is familiar with Lessee's Code of Conduct located at
www.niagaraparks.comifiles /Code -of- Conduct.pdf and hereby agrees to adhere to
the principles and all provisions of such Code of Conduct applicable to Lessor.
Lessor will cause each of its current and future directors, officers, employees and
members to read and adhere to such Code of Conduct and hereby assumes all
responsibility for any failure to comply with the terms of such Code of Conduct
on the part of Lessor and such persons.
14.3 Further Acts
14.4 Freedom of Information
- 16-
The Parties shall do or cause to be done all such further acts and things as may be
reasonably necessary or desirable to give full effect to this Lease. Without limiting the
foregoing, each of the Parties will at any time and from time to time execute and deliver or cause
to be executed and delivered such further instruments and such further actions as may be
reasonably requested by the other Party to cure any defect in the execution or delivery of this
Lease or to give effect to the provisions of this Lease.
The Parties acknowledge that the terms of this Lease are subject to the Municipal
Freedom of Information and Protection of Privacy Act (Ontario) and the Freedom of Information
and Protection of Privacy Act (Ontario).
143 Remedies
No remedy herein conferred upon or reserved in favour of a Party shall exclude
any other remedy herein or existing at law or in equity, but each shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter existing.
14.6 Support of Lease
Each of the Parties agree that they shall publicly support this Lease and the VTS
in any statements, reports or communications such Party makes to the public. In addition, any
DM TOR 208 I 5- 00018'4914665 6[
press releases of either or both Parties in connection with or relating to this Lease and/or the VTS
in any way shall be jointly agreed to in writing prior to its release.
14.7 Dispute Resolution
(a) Resolution by Negotiations
If any dispute arises between the CCNF and the NPC as to whether a Party has complied
with its obligations under this Agreement or if any dispute or controversy arises between
the Parties with respect to the interpretation or implementation of any of the provisions of
this Agreement (any and all disputes and controversies described in this Article are
hereinafter collectively referred to as a "Dispute" or "Disputes "), a Notice of a Dispute
by a Party must be delivered to the other Party. The Parties shall make all reasonable
efforts to resolve any and all Disputes by amicable negotiations within thirty (30) days of
a Notice of a Dispute being delivered (the "Negotiation Period "), including meeting at
mutually acceptable times and places as often as they consider necessary, and providing
each other, on a without prejudice basis, full, frank, candid and timely disclosure of
relevant facts, information and documents in order to facilitate such negotiations,
provided that in so doing the Parties are bound to comply with all Applicable Laws
respecting such disclosure. if either of the Parties refuses or neglects to participate in
such amicable negotiations, the other Party may refer the Dispute immediately to
mediation under Section 14.7(b). No Party shall be required to participate in the
negotiations specified by this Section 14.7(a) if a limitation period relating to a right of
such Party which is the subject matter of or is related to the Dispute, would expire during
the Negotiation Period or within ten (10) days thereafter.
(b) Notice to Mediate
If a Dispute remains unresolved after the Negotiation Period, either Party may, upon ten
(10) days prior written Notice to the other Party, require that the Dispute be referred to a
mediator for mandatory mediation. The mediator shall be selected by the Party to whom
the Notice is given under this Section 14.7(b) within five (5) Business Days of such
Party's receipt of such notice, from a list of three (3) mediators identified in the written
Notice given by the Party requiring the mediation.
(c) Terms of Mediation
(d) Parties' Representatives
I)N4 FOR- ,osia.- onoi 491466>.6B
- 17 -
The purpose of any mediation that takes place pursuant to Section 14.7(b) shall be to
assist the Parties in reaching a voluntary agreement respecting the Dispute. The Parties
will, within five (5) Business Days of the selection of the mediator, use commercially
reasonable efforts to schedule the mediation date(s). The format and timing of any such
mediation shall be as agreed upon by the Parties, acting commercially reasonable, and the
mediator, and the costs of the mediator shall be borne equally by the Parties.
Each Party will be entitled to invite its legal counsel and no more than three (3) of its
employees or other representatives to attend any such mediation sessions. The inclusion
of any other persons, other than the mediator, in the mediation sessions, will require the
prior written consent of both Parties.
(e) Termination of Mediation
In the event that any Dispute referred to mediation pursuant to Section 14.7(b) has not
been resolved within ten (10) Business Days of the first mediation session of such
mediation, or such further period as may be agreed upon by both Parties in writing, the
Parties will instruct the mediator to terminate the mediation by giving written notice of
termination of the mediation to both Parties.
(t) Binding Arbitration
In the event that a Dispute has not been resolved by mediation as set out in this Section
14.7, then either Party may, within ten (10) days of the date of the notice of termination
sent by the mediator under Section 14.7(e), by giving written Notice of its desire for
binding arbitration to the other Party, require that the Dispute be resolved through
binding arbitration. If such notice is delivered, the Dispute shall be deterniined by
arbitration by a single arbitrator (the "Arbitrator ") to be selected by the Party to whom
such notice of binding arbitration is given, and failing such selection, the Arbitrator shall
be appointed pursuant to the Arbitration Act, 1991 (Ontario).
(g) Terms Arbitration
(i)
(ii) The laws to be applied in connection with the arbitration shall be the laws
of Ontario and the laws of Canada applicable therein, but including its
conflict of law rules.
(iii) The procedure to be followed for any arbitration that takes place under this
Section 14.7 shall be as agreed upon by the Parties or, in the event the
Parties are unable to reach agreement, as may be determined by the
Arbitrator.
(iv) Any arbitration may include any other person substantially involved in a
common question of fact or law whose presence is required if complete
relief is to be accorded in arbitration, provided that such other person has
agreed to be bound by such arbitration.
(v )
DM( TOR. '_0 81g5-0O(1?i -49l 4
- 18 -
Any arbitration hereunder shall be held at Niagara Falls, Ontario or
Toronto, Ontario unless the Parties otherwise agree.
The Arbitrator shall have the power to proceed with the arbitration and to
deliver his or her award notwithstanding the default by either Party in
respect of any procedural order made by the Arbitrator.
(vi) The decision of the Arbitrator will be final and binding upon the Parties.
DRt TOR20x195-0601'4Q1-1665 6B
- 19-
(vii) The Arbitrator shall have the authority to assess the costs of the arbitration
against either or both of the Parties.
(h) Confidentiality
All negotiations, mediation and arbitration conducted pursuant to this Section
14.7, and all information and documents (whether in tangible, electronic or digital
form) exchanged by the Parties in connection therewith are confidential. Such
information and documents shall not be disclosed to any person other than:
(i) the Parties, their legal counsel and any of their representatives, consultants
and advisors who need to know such information and documents for the
purposes of such negotiations, mediation or arbitration; and
(ii) the mediator or Arbitrator,
except as may be required by Applicable Law or except in the course of any
judicial proceeding relating to any arbitration conducted pursuant to the
arbitration rules imposed by the Arbitrator. If either Party fails to comply with
the provisions of this Section 14.7(h) before or after the completion of any
arbitration, the Arbitrator may enjoin further breaches by such Party of this
provision and award damages or other relief against such Party. On completion of
any negotiations, mediation or arbitration conducted under this Section 14.7, each
Party shall return to the other Party all copies of such information or documents,
whether in tangible, electronic or digital form.
(i) Continuing Performance
(i) At all times, notwithstanding the existence of any Dispute, the Parties
shall continue to perform their respective obligations in accordance with
the provisions of this Agreement without prejudice to the right to contest,
dispute and challenge the relevant matter in accordance with the
provisions of this Agreement, provided that this Section 14.7(i) shall not
apply to a Party where the other Party has repudiated, terminated or
abandoned performance of this Agreement or where the first Party asserts
claims in fraud or misappropriation. No Party shall exercise any remedy
with respect to an alleged default by another Party under this Agreement if
a Dispute with respect to such alleged default has been submitted for
resolution pursuant to this Article, until either (i) the Parties have settled
the Dispute; or (ii) the Arbitrator has made an award with respect to the
Dispute.
(ii) Subject to the express provisions of this Agreement, where there is any
Dispute as to the amount of monies owing hereunder by any Party hereto
to any other Party hereto, the portion of the amount owing that is not
contested, disputed or challenged, if any, shall be paid when due
hereunder, but without prejudice to the rights of the other Party to contest,
(j) Survival
- 20 -
14.8 Notice
dispute or challenge the disposition of the remaining portion of the monies
claimed.
The provisions of this Section 14.7 shall survive any expiration of the Term or other
termination of this Agreement. The provisions of this Section 14.7 shall continue in full
force and effect notwithstanding any determination by an arbitrator, a court or the Parties
that one or more other provisions of this Agreement are invalid, contrary to law or
unenforceable.
Any and all notices required to be sent pursuant to the terms of this Lease (each a
"Notice ") shall be in writing and shall be sent by mail, or personally delivered, or by overnight
courier, or by facsimile or e -mail (each a "Transmission "), to the Parties at their addresses as set
out in Schedule B or to any other address that a Party designates. Any Notice (a) sent by mail,
shall be deemed to have been received ten (10) Business Days after mailing; (b) delivered
personally or sent by overnight courier, shall be deemed to have been given when actually
received; (c) sent by a Transmission before 3:00 p.m. (Toronto time) on a Business Day, shall be
deemed to have been given on that Business Day, or (d) if sent by a Transmission after 3:00 p.m.
(Toronto time) on a Business Day or at any time on a day that is not a Business Day, shall be
deemed to have been given on the Business Day after the date of the Transmission. Any Notice
given by one Party to the other under this Lease shall be given in writing at the address of the
other Party as set forth below or at such other address as may have been furnished in writing for
such purpose.
14.9 Counterparts
This Lease may be executed in any number of counterparts, each of which shall
be deemed to be an original, and all of which together shall be deemed to be one and the same
instrument and receipt of a facsimile or portable document format (.pdf) version of an executed
signature page of this Lease by a Party shall constitute satisfactory evidence of execution of this
Lease by such Party.
IN WITNESS WHEREOF, the Parties hereto have executed this Lease on the date first
written above.
D' 1 l OR, 20, 68
THE CORPORATION OF THE CITY OF
NIAGARA FALLS
Per:
James M. Diodati, Mayor
Per:
DM IOR 2 -0001• 491466
- 21 -
Dean Iorfida, City Clerk
I /We have authority to bind the corporation.
THE NIAGARA PARKS COMMISSION
Per:
Fay Booker, General Manager
I have authority to bind the corporation.
Schedule A
VEHICLES
nine (9) clean diesel articulated sixty (60) foot buses as per 13:17:51, 2011/08/05, Nova
Bus Usine St- Eustache, Quote Number: L685DBK; and
two (20) clean diesel articulated forty (40) foot buses as per 13:17:10, 2011/08'05, Nova
Bus Usine St- Eustache, Quote Number: L656DBK.
t) \ I■ Il u�
Lessor
The Corporation of the City of Niagara Falls
4310 Queen St.
P.O. Box 1023
Niagara Falls, ON
1.2E 6X5
Attention:
Tel Number:
Fax Number:
Email Address:
Attention:
Tel Number:
Fax Number:
Email Address:
Lessee
The Niagara Parks Commission
Box 150
7400 Portage Road South
Niagara Falls, ON L2G 6T2
Attention:
Tel Number:
Fax Number:
Email Address:
Attention:
Tel Number:
Fax Number:
Email Address:
General Manager
(905) 356 -2241, ext 225
(905) 354-6041
tbooker cuniagaraparks.com
Chief Administrative Officer
(905) 356 -7521, ext. 5100
(905) 374 -3557
ktoddAniagarafalls.ca
Schedule B
NOTICE DETAILS
Director of Business Development
(905) 356 -7521, ext. 5102
(905) 357 9293
sfelicettiainiagarafalls.ca
Senior Director, Infrastructure & Guest Services Support
(905) 356 -2241, ext 240
(905) 356-7262
mgruossok niagaraparks. com
See attached.
- 32 -
Schedule F
VTS BUS STORAGE BAY LICENCE
THIS VTS BUS STORAGE SPACE LICENCE made and entered into 25 day of
:August, 2011.
BETWEE
RECITALS:
- and -
VTS BUS STORAGE SPACE LICENCE
THE CORPORATION OF THE CITY OF NIAGARA FALLS
( "Licensor "),
THE NIAGARA PARKS COMMISSION
( "Licensee ").
WHEREAS Licensee and Licensor entered an agreement on the date hereof
pursuant to which Licensee and Licensor weed to, inter alia, establish a visitor transportation
system (` ") that results in people having improved convenient transportation to and from
certain areas within the Park and the City of Niagara Falls by coordinating bus service operations
among and between their respective bus lines through integ and coordinated practices in
areas such as scheduling, traffic patterns, bus specifications, branding and operational terms, and
by providing the opportunity for passengers to conveniently transfer between such bus lines
without additional payment (the "VTS Agreement "):
AND WHEREAS Licensor shall enter into an agreement with each of the
Government of Canada and the Government of the Province of Ontario pursuant to which each
such Government will provide Licensor with Twenty -Five Million Dollars (S25,000,000)
(collectively, "Funding') to fund the capital costs of the VTS, subject to certain terms (the
"Contribution Agreements ");
AND WHEREAS Licensor has agreed to use certain of the Funding to acquire
twenty (20) clean diesel articulated sixty (60) foot buses and seven (7) clean diesel forty (40)
toot buses (each a "VTS Bus ", and collectively, the "VTS Bus Fleet "), and each such bus will
have installed on it intelligent transportation system hardware and software and will be used for
the operation of the VTS;
AND WHEREAS Licensee and Licensor entered an agreement on the date hereof
pursuant to which Licensor agreed to lease to the Licensee eleven (1 1) VTS Buses (the "NPC
VTS Buses "):
1.1 Definitions
ll�t fOP.2I I''5-0001S 4914- : ii. - :A
AND WHEREAS Licensor intends to use certain of the Funding for the design,
construction and completion of a VTS bus maintenance and storage facility to be located in the
City of Niagara Falls ("VTS Facility
AND WHEREAS Licensee wishes to license from Licensor an area for bus
storage in the VTS Facility for the purpose of storing the NPC VTS Buses;
AND WHEREAS it is the Licensor's intention that the VTS Facility will be
sufficiently large enough to accommodate the storage of all VTS Buses in the VTS Bus Fleet in a
separate bus storage area in the VTS Facility, the Parties acknowledge that the VTS Facility may
not be large enough to accommodate the storage of all of the VTS Buses:
AND WHEREAS Licensee wishes to license from Licensor its pro -rata share of
the bus storage area in the VTS Facility up to a maximum amount of square footage to
accommodate the safe storage of eight (8) of the NPC VTS Buses and Licensor is prepared to
license the bus storage area to Licensee on the terms and conditions of this Licence.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration
of the rental payments, the mutual covenants and agreements hereinafter contained and other
good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged
by each of the Parties hereto), the Parties agree as follows:
ARTICLE 1
INTERPRETATION
In this Licence, unless there is something in the subject matter that is inconsistent
therewith. the following terms have the following meanings:
"Additional Fees" has the meaning given to such term in Section 3.2:
"Alterations" means any repairs, alterations, replacements, decorations,
installations or improvements to the Licensed Area;
"Applicable Law" means (i) any domestic or foreign statute, law (including the
common and civil law and equity), constitution, code, ordinance, rule, regulation,
restriction, regulatory policy or guideline having the force of law, by -law (zoning
or otherwise) or order, (ii) any consent, exemption, approval or licence of any
Governmental Authority, and (iii) any policy, practice or guideline of, or contract
with, any Governmental Authority which. although not actually having the force
of iaw, is considered by such Governmental Authority as if having the force of
law:
"Billing Period" means the twelve (12) month period beginning on the first day
on which Licensee stores a NPC VTS Bus in the Licensed Area under the terms
of this Licence;
Dkl 1 ( )R,ux 4c+1-1
- 3 -
"Business Day" means Monday through Friday except for any statutory or civic
holidays observed in the City of Niagara Falls;
"Bus Storage Area" means the area in the VTS Facility to be used exclusively
for the storage of the VTS Buses in the VTS Bus Fleet. which such area will be
separate from all other areas in the VTS Facility to be used for maintenance,
repairs and other activities, and which such area will be clearly identified as a
separate bus storage area and will be separately metered for Utilities supplied to
or used or consumed in such bus storage area;
"Contribution Agreements" has the meaning given to it in the second Recital to
this Licence;
"Effective Operational Date" means the date upon which Licensor opens the
VTS Facility for operations, including the Bus Storage Area in the Licensed .Area
being fully constructed and operational, following Licensor obtaining all required
building, construction. occupancy and business permits, approvals and licences
for the VTS Facility. which date will be evidenced by written correspondence
from Licensor to Licensee advising that the VTS Facility is open for operations;
"Expert" means any architect, engineer, chartered accountant. quantity surveyor,
or other professional consultant. in any case appointed by Licensor and, in the
reasonable opinion of Licensor, qualified to perform the function for which he is
retained;
"Fees" means collectively the Licence Fee and Additional Fees;
"Funding" has the meaning given to it in the second Recital to this Licence;
"Governmental Authority" means (i) any court, judicial body or arbitral body.
(ii) any domestic or foreign government whether multinational, national, federal,
provincial, territorial, state, municipal or local and any governmental agency,
governmental authority, governmental tribunal or governmental commission of
any kind whatever, (iii) any subdivision or authority of any of the foregoing, (iv)
any quasi - govemmental or private body exercising any regulatory, expropriation
or taxing authority under or for the account of any of the above, (v) any
supranational or regional body such as the World Trade Organization, and (vi)
any stock exchange;
"including" means "including without limitation ";
"Licence' means this licence and all attached schedules, as the same may be
supplemented, amended, restated or replaced from time to time;
"Licensee Default" has the meaning given to it in Section 8.1;
"Notice" has the meaning given to it in Section 13.8;
DM DA X195.1;oU17 4
-4-
"NPC VTS Buses" has the meaning given to it in fourth Recital to this Licence,
"Licensed Area" has the meaning given to such term in Section 2.1;
"Licence Fee' has the meaning given to such term in Section 4.1;
"Mortgage" means any mortgage, charge or security instrument (including a deed
of trust or a mortgage securing bonds) and all extensions, modifications and
renewals thereof which may now or hereafter affect the VTS Facility or any
portion thereof or any greater legally described area of which the VTS Facility
forms a part thereof;
"Mortgagee" means the mortgagee, chargee, secured party or trustee for
bondholders, as the case may be, who from time to time holds a Mortgage:
"Operational Term" means the period of time commencing on the Effective
Operational Date and ending on the date that is the tenth (10 anniversary of the
Operational Date (as such term is defined in the VTS Agreement);
"Overhead Costs" means Utilities supplied to or used or consumed in the Bus
Storage Area and maintenance and repair costs and expenses for the Bus Storage
Area incurred in the ordinary course;
"Parties" means, collectively. each of the signatories to this Licence. and "Party"
means either of them;
"Permitted Use" the Licensed Area shall only be used and occupied for the
purpose of accessing and storing the NPC VTS Buses and all repair and
maintenance to the NPC VTS Buses as is necessary to place the NPC VTS Buses
into, or to take the NPC VTS Buses, out of storage;
"Pro Rata Share" means, at any particular time, the ratio of the aggregate
number of NPC VTS Buses to the aggregate number of VTS Buses in the VTS
Bus Fleet:
"Rules and Regulations means the rules and regulations pertaining to the VTS
Facility made by Licensor from time to time pursuant to Article 12 hereof; the
Rules and Regulations existing as at the Effective Operational Date will be
delivered by the Licensor to the Licensee on or before the Effective Operational
Date;
"Sales Taxes" has the meaning given to it in Section 6.2;
"Storage Month" has the meaning given to it in Section 3.2;
"Taxes" means all real property taxes, rates, duties and assessments (including
local improvement taxes), impost charges or levies, whether general or special,
that are levied, rated, charged or assessed against the VTS Facility and the lands
1.3 Construction
DM MR 2,1.'7 .;;
on which the VTS Facility is built or any part thereof from time to time by any
lawful Taxing Authority, whether federal, provincial, municipal, school or
otherwise, and any taxes or other amounts which are imposed in lieu of, in
substitution for, or in addition to any such real property taxes whether of the
foregoing character or not and whether in existence at the commencement of the
Term or not, and any such real property taxes levied or assessed against Licensor
or the owners of the VTS Facility and the lands on which the VTS Facility is
built. on account of its or their interest in the VTS Facility and such lands or any
part thereof, or their ownership thereof, as the case may be. "Taxes" shall also
include any and all interest penalties or like charges payable as a result of failure
to pay all Taxes promptly when due;
"Taxing Authority" means the Canada Revenue Agency or any other taxing
authority that has responsibility for receiving income tax on behalf of the
Government of Canada, the Province of Ontario or any municipality or school
board therein:
"Term" has the meaning given to it in Section 4.1;
"Utilities" means water, sewers, gas, electricity, and other private and public
services provided to commercial or industrial buildings in the Citv of Niagara
Falls;
"VTS" has the meaning given to it in the first Recital to this Licence;
"VTS Agreement" has the meaning given to it in the first Recital to this Licence;
"NTS Bus" has the meaning given to it in the third Recital to this Licence;
"VTS Bus Fleet" has the meaning given to it in the third Recital to this Licence;
and
"VTS Facility" has the meaning given to it in the fifth Recital to this Licence.
1.2 Binding Effect
This Licence shall be binding upon and shall enure to the benefit of the Parties
and their respective successors and permitted assigns.
(a) Each obligation or agreement of Licensor or Licensee expressed in this Licence,
even though not expressed as a covenant. is considered to be a covenant for all
purposes.
(b) The division of this Licence into Articles and Sections and the insertion of
headings are for convenience of reference only and do not affect the construction
or interpretation of this Licence.
'0-t
(c) The terms "hereof', "herein ", "hereby ", "hereunder ", "hereto ", "hereinafter" and
similar expressions refer to this Licence and the Schedules and not to any
particular Article, Section, Schedule or other portion hereof. Unless something in
the subject matter or context is inconsistent therewith, references herein to
Articles. Sections and Schedules are to articles and sections of and schedules to
this Licence.
(d) The provisions of this Licence shall be deemed severable, and the termination,
invalidity or unenforceability of any one or more of the provisions hereof shall
not affect the validity or enforceability of the other provisions hereof.
Words importing the singular number include the plural and vice versa. words
importing any `ender include all genders and words importing persons include
individuals, corporations, limited and unlimited liability companies, general and
limited partnerships, associations, trusts, unincorporated organizations, joint
ventures and Governmental Authorities.
(e)
- 6 -
(f) Time is of the essence of this Licence and of every part hereof.
(g) No amendment to this Licence will be valid or binding unless set forth in writing
and duly executed by both of the Parties.
(h) All references to currency herein are to lawful money of Canada.
(i) Unless otherwise provided herein, each reference to an enactment is deemed to be
a reference to that enactment, and to the regulations made under that enactment,
as amended or re- enacted from time to time. Similarly, unless otherwise provided
herein, each reference to an ageement is deemed to be a reference to that
agreement. as it may be supplemented, amended or restated from time to time.
(j) If any action is required to be taken pursuant to this Licence on or by a specified
date which is not a Business Day, then such action shall be valid if taken on or by
the next succeeding Business Day.
(k) The provisions of this Licence shall not affect the rights of the Parties which may
subsist from time to time to any other agreements between them dated
concurrently with or subsequently to this Licence nor relieve the Parties of any
obligations they may have pursuant to such agreements.
1.4 Schedules
DM Mk _ ,1 S 1Q!4
The following attached schedules are attached to and form part of this Licence:
Schedule A
Schedule B
Notice Details
Licensed Area
1.5 Governing Jurisdiction and Attornment
The Parties hereby agree that this Licence and the provisions hereof shall be
construed in accordance with the laws of the Province of Ontario and the laws of Canada and the
Parties attorn to the jurisdiction of the Courts of the Province of Ontario.
1.6 Entire Agreement
"This Licence constitutes the entire agreement and understanding by and between
the Parties, except as herein otherwise expressly provided. There are no representations,
w arranties, promises, terms, conditions, undertakings or collateral agreements or understanding,
written or oral, express or implied between the Parties pertaining to the subject matter hereof
other than as expressly set forth in this Licence.
2.1 Licence
(a) In consideration of the Licence Fee and Additional Fees, covenants and
agreements hereinafter reserved and contained on the part of Licensee to be paid,
kept. observed and performed, Licensor hereby agrees to license to Licensee and
Licensee hereby agrees to license from Licensor for the use of Licensee, the lesser
of:
(1)
(b) Except as set out herein, the Licensed Area is licensed to Licensee in an "as is,
where is" condition. Occupation of the Licensed Area by Licensee shall constitute
D1.1 101;2(1N 491472U \
- 7 -
ARTICLE 2
LICENCE
Licensee's Pro Rata Share of the bus storage space; and
(ii) bus storage space equal to the maximum amount of square footage to
accommodate the safe storage of eight (8) of the NPC VTS Buses,
(such bus storage space shall be large enough to accommodate the length, width
and height of the VTS Buses and the ability to safely walk around the NPC VTS
Buses to enable inspection of them) in the Bus Storage Area, together with right
of access through the VTS Facility from public roads to such bus storage space
use area (and such access shall be fully maintained and repaired by the Licensor)
(such bus storage space use area being the "Licensed Area ") for the Term. The
Parties acknowledge and agree that the specific details of the Licensed Area will
not be known in certainty until the completion of the design and construction of
the VTS Facility. The Parties hereby undertake to prepare, sign, date and attach
to this Licence, on or before the Effective Operational Date, a Schedule B to this
Licence setting out a detailed description of the Bus Storage Area and the
Licensed Area, and the terms and conditions of this Licence shall be effective in
respect of the Licensed Area described in such Schedule B as of the effective date
listed on such Schedule B.
3.1 Licence Fee
3.2 Additional Fees
[)A FOR.,201Q
1(0 4l4\
-8
an acknowledgement by Licensee that the Licensed Area is in a condition
acceptable to Licensee.
2.2 Quiet Enjoyment
If the Licensee performs its obligations under this Licence, the Licensee shall be
entitled, subject to the terms of this Licence, to quiet enjoyment and use of the Licensed Area
without interference by the Licensor or any person claiming through the Licensor.
ARTICLE 3
LICENCE FEES
For the license of the Licensed Area. Licensee shall pay to Licensor the amount
equal to One Dollar (81.00) per year (or part thereof) for each NPC VTS Bus stored in the
Licensed Area during such year, during the period commencing on the first day of the month
immediately following the Effective Operational Date until the expiration of the Term or earlier
termination of this Licence ("Licence Fee
Subject to Section 3.3, for each month (or part thereof) in which NPC stores one
or more of the NPC VTS Buses in the VTS Facility during the Term (each a "Storage Month ").
Licensee shall also pay to Licensor. an additional amount equal to the aggregate of Licensee's
pro rata portion of the Overhead Costs allocated to the Licensed Area in accordance with Article
6 (collectively. the "Additional Fees "). For the purposes of this Section. "pro rata portion"
means, at any particular time. the ratio of the square footage of the Licensed Area to the square
footage of the whole Bus Storage Area.
3.3 Payment of Additional Fees.
(a) Prior to the Effective Operational Date for the first Billing Period (or part thereon
and prior to the first day of each Billing Period for each Billing Period thereafter,
Licensor shall deliver to Licensee a bona fide estimate of the Additional Fees for
the applicable Billing Period and, without further notice, Licensee shall pay to
Licensor in monthly instalments, in advance, for each Storage Month, one - twelfth
(1 :12) of such estimate, during the period commencing on the first day of the
month immediately following the Effective Operational Date until the expiration
of the Term or earlier termination of this Licence.
(b) Licensor shall deliver to Licensee within ninety (90) days after the end of each
Billing Period a written statement (the "Statement ") setting out in reasonable
detail, the amount of Additional Fees for such Billing Period. if the total of the
monthly instalments paid by Licensee in respect of such Additional Fees for the
Storage Months in such Billing Period is less than the amount payable by
Licensee for the Storage Months in such Billing Period as shown on such
Statement, Licensee shall pay the difference to Licensor within forty -five (45)
(c) Neither Party may claim a readjustment in respect of Additional Fees for a Billing
Period if based upon any error of computation or allocation except by Notice
delivered to the other Party within twelve (12) months after the date of delivery of
the Statement.
3.4 Invoicing
(a) Licensor will render to Licensee an annual Licence Fee invoice for each Billing
Period, which will be dated the first of the first month of such Billing Period and
payable within thirty (30) days of the invoice date, showing the annual Licence
Fees, any applicable Sales Taxes and all other details required for Licensee to
claim any available input tax credits. Licensor shall deliver such invoice to
Licensee not later than the first day of each Billing Period to which it relates in
order to facilitate Licensee processing payment on a timely basis. Licensee shall,
thirty (30) days after receipt of each such invoice, pay the total amount shown by
cheque or pre - authorized debit, electronic funds transfer or other agreed mode of
payment, payable in Canadian funds. Cheques must be mailed or delivered to
Licensor at its address shown in Schedule B or to such other address as shall be
given to Licensee by Notice from time -to -time by Licensor.
[)1] ( q)1' 4
- 9 -
days of the date of the Statement. If such total monthly instalments paid is greater
than the amount of such Additional Fees payable by Licensee for the Storage
Months in such Billing Period. the difference shall be repaid to Licensee with
such Statement. All Sales Taxes relating to such adjusted amounts shall be paid
or refunded. as applicable. in accordance with Section 6.2.
(b) Licensor will render to Licensee a monthly invoice for the Additional Fees, which
will be dated the first of the month of the applicable Billing Period and payable
within thirty (30) days of the invoice date, showing one - twelfth (1;12) of the
estimate of the Additional Fees for the applicable Billing Period, any applicable
Sales Taxes and all other details required for Licensee to claim any available
input tax credits. Licensor shall deliver such invoice not later than the first day of
the month to which it relates in order to facilitate Licensee processing payment on
a timely basis. Licensee shall, thirty (30) days after receipt of each such invoice.
pay Licensor the total amount shown by cheque or pre - authorized debit, electronic
funds transfer or other agreed mode of payment, payable in Canadian funds.
Cheques must be mailed or delivered to Licensor at its address shown in Schedule
B or to such other address as shall be given to Licensee by Notice from time -to-
time by Licensor.
3.5 Late Payment Charge
If any Fees is not paid by its due date or if any other amount payable under this
Licence by Licensee to Licensor (including interest) is not paid when due, interest shall accrue
and be payable on demand on such unpaid amount both before and after judgement, from the due
date until paid, at a rate of one percent (1%) per annum (calculated and payable monthly).
3.6 Set -off
Licensee shall be entitled to set -off the amount of any Fees or any other amounts
payable by Licensee to Licensor hereunder against any amounts payable by Licensor to
Licensee, whether under this Licence or otherwise.
4.1 Term of Licence
(a) This Licence shall become effective on the date hereof and shall remain in effect
until the expiry of the Operational Term, unless earlier terminated as provided
herein (the "Term").
(b) Notwithstanding any other provision in this Licence, if the Effective Operational
Date does not occur on or before the 30` day of March, 2013 (or such other date
as the March 30, 2013 date is extended under the Contribution Agreements), this
Licence shall be null and void and of no force and effect.
4.2 Termination
(a) Licensor shall have the right to terminate this Licence:
(i)
(i)
I? \I FOR 4914- 2i = ':a
- 10 -
ARTICLE 4
TERM
immediately, in the event of Licensee's bankruptcy or insolvency. or an
initiation, voluntary or involuntary (made in good faith), of bankruptcy or
insolvency of Licensee. or
(ii) on the event of a Licensee Default pursuant to Article 8,
and Licensee shall forthwith vacate and surrender the Licensed Area.
(h) Licensee shall have the right to terminate this Licence:
immediately, in the event of Licensor's bankruptcy or insolvency, or any
initiation, voluntary or involuntary (made in good faith), of bankruptcy or
insolvency of Licensor; or
(ii) at anytime during the Term, by giving Licensor not less than sixty (60)
days prior written notice of its intent to terminate this Licence after the
first ( 1st) anniversary of the Effective Operational Date,
in which case, on the effective termination date set out in such notice, this Licence
shall terminate and Licensee shall forthwith vacate and surrender the Licensed
Area.
4.3 Obligations and Rights on Expirations or Termination
Lpon expiry of the Terre or other termination of this Licence. all rights and
obligations of Licensor and Licensee under this Licence shall cease except those which are stated
herein to survive termination, and except for the obligation to pay any monies owing at the time
of expiration or other termination.
5.1 Permitted Use
ARTICLE 5
USE OF LICENSED AREA
Licensee will use the Licensed Area solely for the Permitted Use and Licensee
will not use or permit. or suffer the use of the Licensed Area or any part thereof for any other
business or purpose.
5.2 Signs and Advertising
Licensee will not cause or permit any sign. picture, advertisement, notice,
lettering or decoration to be painted. affixed or displayed in or on the VTS Facility without, in
each instance. the prior written approval of Licensor, acting reasonably. Licensee will erect an
identification sign or signs of a type or types approved by Licensor and in a location or locations
specified in writing by Licensor. All such signs will remain the property of Licensee and will be
maintained by Licensee at its sole cost and expense. At the expiration of the Term or earlier
termination of this Licence, Licensee will remove its sign(s) from the Licensed Area and will
promptly repair all damage caused by such remoN al.
5.3 Condition and Repair of Licensed Area
(a) Licensor shall be responsible for the maintenance and repair of the Licensed Area
and shall keep the Licensed Area in good repair and condition.
(b)
For Neater certainty, Licensee shall not be responsible for:
(i) cleaning, maintenance or repair of the Licensed Area. or
(ii) any structural repairs or replacements to the Licensed Area or to the VTS
Facility except to the extent that such repairs or replacement are required
as a result of the acts or omissions of Licensee.
(c) In each year of the Term, prior to NPC storing each of the NPC VTS Buses into
storage in the first Storage Month of the year, Licensor and Licensee shall
together inspect the applicable storage space in the Licensed Area for such NPC
VTS Bus and record in writing, what, if any, damage to or repairs are required to
such storage space (each an "Opening Damage Record "). Immediately
following the removal of such NPC VTS Bus from storage in the immediate next
year, Licensor and License shall together inspect the such storage space in the
Licensed Area for such NPC VTS Bus and record in writing, what, if any. damage
5.4 Notice b: Licensee.
5.5 Parking
6.1 Taxes Payable by Licensor
- 12 -
to or repairs are required to such storage space (each a "Closing Damage
Record "). Licensor and Licensee shall together compare the applicable Opening
Damage Record and the applicable Closing Damage Record for such VPC VTS
Bus and if the Closing Damage Record shows damages or repairs in addition to
those set out in the Opening Damage Record and such damages and required
repairs are a result of an act or omission of Licensee, Licensee shall be
responsible for the costs of fixing the damages and making the necessary repairs.
(d) Licensee shall not make Alterations to the Licensed Area.
Licensee shall promptly notify Licensor of any accident. detect, damage, or
deficiency which occurs or exists in any part of the Licensed Area and which comes to the
attention of Licensee.
Licensee shall be entitled to the non - exclusive right to use up to eight (8) un-
reserved parking spaces in the parking lot for the VTS Facility at no charge for use by its staff
and agents.
ARTICLE 6
TAXES
Licensor shall pay all Taxes but it may defer such payments or compliance to the
fullest extent permitted by law so long as it pursues any contest or appeal of any such Taxes with
reasonable diligence.
6.2 Sales Taxes
Except as otherwise specified in this Licence, all amounts payable pursuant to this
Licence do not include any sales, use or value -added taxes (collectively, "Sales Taxes "). The
Parties agree that they will cooperate to collect. remit, refund, credit. report and pay all
applicable Sales Taxes as required by, and in accordance with. the applicable legislation and
regulations made thereunder.
7.1 Insurance
Licensee. at its own expense, shall at all times during the Term and during such
time as Licensee occupies the Licensed Area or any part thereof, obtain and keep effective, the
following insurance coverage policies issued by insurers licensed to write business in Ontario:
UA1 1 )R Iq;
ARTICLE 7
INSURANCE
- 13 -
(a) "All risks" insurance upon property of every description and kind owned by
Licensee. or for which Licensee is legally liable, and which is located in, at or on
the Licensed Area (and across the access component described in Section 2.1)
including trade fixtures and equipment, furniture, fittings and stock -in -trade in an
amount not less than the full replacement cost thereof.
(h) Commercial general liability insurance for third party bodily injury including
death. personal injury and property damage, legal liability, contractual liability,
contingent employer's liability, non -owned automobile liability and owners' and
contractors' protective insurance coverage with respect to the Licensed Area (and
across the access component described in Section 2.1) and Licensee's use of any
part thereof or of any part of the VTS Facility, including the activities, operations
and work conducted or performed by Licensee, by any other person on behalf of
Licensee, by those for whom Licensee is in law responsible and by any other
person on the Licensed Area (including the access component described in
Section 2.1; such policy or policies shall be written with inclusive limits of not
less than Ten Nlillion Dollars (510,000,000).
(c) Each of the foregoing policies of insurance shall. to the extent reasonable and
standard for such properties in the marketplace:
(i) for the insurance coverage policies set out in Section 7.1(b). name
Licensor as an additional insured as its interests may appear so as to
protect and indemnify Licensor;
(ii) for the insurance coverage policies set out in Section 7.1(b), contain cross -
liability and severability of interests provisions as between Licensor and
Licensee. including a provision that any breach of a condition of the
policy by the insured shall not adversely affect the rights of the other
insured to protection under the policy;
(iii) for the insurance coverage policies set out in Section 7.1(a), contain a
waiver in favour of Licensor of any breach of warranty clause to the effect
that such insurance policy shall not be invalidated in respect of Licensor's
interests by reason of any breach or violation of any warranties,
representations, declarations or conditions contained in such policy:
(iv) contain a clause stating that such insurance policy will be considered as
primary insurance and shall not call into contribution any other insurance
that may be available to Licensor; and
(v) contain an undertaking by the insurer to notify Licensor in writing not less
than thirty (30) days prior to any cancellation, non - renewal or termination
thereof.
(d) Licensee shall deliver to Licensor certificates of such insurance or, if requested by
Licensor, a certified copy of each such policy of insurance prior to the Effective
av14 - 2l 1 ' \
Operational Date and renewal certificates at least thirty (30) days prior to the
renewal date annually.
7.2 Licensee's Failure to Ensure
7.3 Indemnification of Licensor
- 14 -
If Licensee fails to take out or to keep in force any such insurance referred to in
Section 7.1 and should Licensee not rectify the situation within forty -eight (48) hours after
written notice thereof Licensor may, but shall not be obligated to, effect such insurance and
Licensee shall pay to Licensor forthwith on demand all premiums, costs, charges and expenses
incurred by Licensor in effecting such insurance.
Except if and to the extent Licensee is released from liability to Licensor pursuant
to the provisions of Section 7.7 and subject to the provisions of Section 7.8, notwithstanding any
other terms, covenants and conditions contained in this Licence, Licensee shall indemnify
Licensor and save it harmless from and against any and all loss (including loss of Fees payable
by Licensee pursuant to this Licence), 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 or related to this Licence, or any occurrence in, upon or at the
Licensed Area or the occupancy or use by Licensee of the Licensed Area or any part thereof. or
occasioned wholly or in part by any act or omission of Licensee or by anyone permitted to be on
the Licensed Area by Licensee whether on the Licensed Area or elsewhere in the VTS Facility.
If Licensor shall. without fault on its part, be made a party to any litigation commenced by or
against Licensee. then Licensee shall protect, indemnify and hold Licensor harmless and shall
pay all costs, expenses and reasonable legal fees incurred or paid by Licensor in connection with
such litigation. Licensee shall also pay all costs, expenses and legal fees that may be incurred or
paid by Licensor in enforcing the terms, covenants and conditions in this Licence, unless a court
shall decide otherwise. Notwithstanding the foregoing in this Section 7.3, the Parties
acknowledge that Licensee's indemnification obligations hereunder are subject to Applicable
Laws, including the limitation placed on Licensee's ability to grant an indemnity under the
Financial Administration Act (Ontario).
7.4 Licensor's Insurance
Licensor, at its own expense, shall at all times during the Term and during such
time as Licensee occupies the Licensed Area or any part thereof, obtain and keep effective the
following insurance coverage policies issued by insurers licensed to write business in Ontario:
(a) "All risks" insurance on the VTS Facility (excluding any property which Licensee
and other tenants or Licensees are obliged to insure pursuant to Section 7.1 or
similar provisions in their respective licensees) in such reasonable amounts and
with such reasonable deductions as would be carried by a prudent owner of
reasonably similar facilitv.
(h) Commercial general liability insurance including third party bodily injury
including death, personal injury and property damage. and legal liability with
respect to Licensor's operations in the VTS Facility in such reasonable amounts
I)Nj EOR.= ijv1Q:_i)ii01`? 4' 1
(c) Each of the foregoing policies of insurance shall. to the extent reasonable and
standard for such properties in the marketplace:
(i) for the insurance coverage policies set out in Section 7.4(b), name
Licensee as an additional insured as its interests may appear so as to
protect and indemnify Licensee;
o\i_1(fFe .3914 ?0':A
- 15 -
and with such reasonable deductions as would be carried by a prudent owner of
reasonably similar facility.
(ii) for the insurance coverage policies set out in Section 7.4(b). contain cross -
liability and severability of interests provisions as between Licensor and
Licensee, including a provision that any breach of a condition of the
policy by the insured shall not adversely affect the rights of the other
insured to protection under the policy;
(iii) for the insurance coverage policies set out in Section 7.4(a), contain a
waiver in favour of Licensee of any breach of warranty clause to the effect
that such insurance policy shall not be invalidated in respect of Licensee's
interests by reason of any breach or violation of any warranties,
representations, declarations or conditions contained in such policy;
(iv) contain a clause stating that such insurance policy will be considered as
primary insurance and shall not call into contribution any other insurance
that may be available to Licensee; and
(v) contain an undertaking by the insurer to notify Licensee in writing not less
than thirty (30) days prior to any material change. cancellation. non -
renewal or termination thereof.
(d) Licensor shall deliver to Licensee certificates of such insurance or, if requested by
Licensee. a certified copy of each such policy of insurance prior to the Effective
Operational Date and renewal certificates at least thirty (30) days prior to the
renewal date annually.
7.5 Licensor's Failure to Insure
If Licensor fails to take out or to keep in force any such insurance referred to in
Section 7.4, and should Licensor not rectify the situation within forty -eight (48) hours after
written notice thereof. Licensee may, but shall not be obligated to, effect such insurance and
Licensor shall pay to Licensee forthwith on demand all premiums, costs, charges and expenses
incurred by Licensee in effecting such insurance.
7.6 Indemnification of Licensee
Except if and to the extent Licensor is released from liability to Licensee pursuant
to Section 7.7 and subject to the provisions of Section 7.8, notwithstanding any other terms,
covenants and conditions contained in this Licence, Licensor shall indemnify Licensee and save
- 16-
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 the negligent or wilful act or omission of Licensor. its officers,
employees. agents or contractors as they relate to this Licence. or any occurrence in, upon or at
the Licensed Area or any part thereof.
7.7 Waiver of Recover
Neither Licensor nor Licensee shall be liable to the other or to any insurance
company insuring the other Party (by way of subrogation or otherwise) for any loss or damage to
any structure. building, or other tangible property, or any resulting loss of income, even though
such damage or loss might have been occasioned by the negligence of Licensor or Licensee or
any of officers, directors. employees or agents. if any such loss or damage is covered by
insurance benefiting the party suffering such loss or damage or was required of such Party to be
covered by insurance pursuant to this Licence.
7.8 Limitations of Liability
Neither Party will be liable to the other or any other indemnified party hereunder,
whether as a result of breach of contract, indemnity, warranty, condition. tort (including
negligence). strict or absolute civil liability or otherwise for any indirect, punitive, incidental,
exemplary, special or consequential damages, in connection with their respective obligations
under this Licence except
(a) as a result of third party claims; and
(b) in respect of intentional wilful or fraudulent misconducts on the part of the Party
seeking to enforce such limitations.
8.1 Default
ARTICLE 8
DEFAULT
If Licensee fails to pay when due any Fees or other amount payable under this
Licence, or fails to perform or observe any of its other obligations under this Licence, and such
failure continues for a period of fifteen (15) days after written notice by Licensor to Licensee to
cure such failure (a "Licensee Default "). Licensor may declare Licensee to be in default under
this Licence.
8? Rights on Default
(a) Upon declaration by Licensor that Licensee is in default under this Licence, and
notwithstanding any other provision of this Licence, and, subject always to all
Applicable Laws, Licensor shall have the following remedies: (i) Licensor may
terminate this Licence by written notice to Licensee that this Licence is
terminated due to a Licensee Default, (ii) collect all moneys from Licensee due to
Licensor hereunder as at the date of such termination, and (iii) collect all moneys
U\1 rilR =[iv I v5_, I Y 4U 14"_( \
-17-
from Licensee that would have been paid to Licensor on account of Licence Fees
only for the Term if this Licence had not been terminated early.
(b) The tbregoing rights and remedies are cumulative and not alternative. are in
addition to and not in substitution for any and all other rights and remedies
otherwise available to Licensor including. tivithout limitation, its right of set -off,
and may be exercised separately or together, whether before or after any
termination of this Licence. Licensor may refrain from exercising any one or
more of its rights or remedies without incurring any liability to Licensee and the
exercise of any right or remedy shall not preclude its further exercise.
9.1 Possession
ARTICLE 9
SURRENDER
Upon the expiration of the Tenn or other termination of this Licence. Licensee
shall immediately quit and surrender possession of the Licensed Area. Upon such surrender, all
right. title and interest of Licensee in the Licensed Area shall cease.
9.2 Payments after Termination
No payments of money by Licensee to Licensor after the expiration of the Term
or other termination of this Licence or after the giving of any notice (other than a demand for
payment of money) by Licensor to Licensee. shall reinstate, continue or extend the Term or
make ineffective any notice given to Licensee prior to the payment of such money. After the
service of notice or the commencement of a suit, or after final judgment granting Licensor
possession of the Licensed Area, Licensor may receive and collect any sums of Fees due under
this Licence and the payment thereof shall not make ineffective any notice or in any manner
aftect any pending suit or any judgment theretofore obtained.
10.1 Observance
Licensee shall at all times comply with, and shall cause its employees, agents,
licensees and invitees to comply with, the Rules and Regulations from time to time in effect.
10.2 Modifications
DNI ruk io<_„.),i
ARTICLE 10
RULES AND REGULATIONS
Licensor may from time to time, amend, delete from, or add to the Rules and
Regulations, provided that any such modification shall be bona fide, reasonable and shall be
effective only upon delivery of a copy thereof to Licensee at its address set out in Schedule A.
- 18 -
ARTICLE 11
DAMAGE BY FIRE OR OTHER CASUALTY'
11.1 Limited Damage to Licensed Area
If all or part of the Licensed Area is rendered unleaseable by damage from any
cause for cvhich Licensor is insured and. in the reasonable opinion of the Expert. can be
substantially repaired under Applicable Laws within one hundred and eighty (180) days from the
date of such damage (employing normal construction methods vwithout overtime or other
premium). Licensor shall forthwith at its own expense repair such damage.
11.2 Major Damage to Licensed Area
If all or part of the Bus Storage Area. including the Licensed Area. are rendered
unleaseable by damage from any cause for which Licensor is insured and, m the reasonable
opinion of the Expert, cannot be substantially repaired under Applicable Laws vvithin one
hundred and eighty (180) days from the date of such damage (employing normal construction
methods without overtime or other premium), then either Licensor or Licensee may elect to
terminate this Licence as of the date of such damage by written Notice delivered to the other not
more than thirty (30) days after receipt of such Expert's opinion, failing which Licensor shall
forthwith at its ov.n expense repair.
11.3 Abatement
There shall be no abatement or reduction of Fees where Licensor "s repairs to the
Bus Storage Area. including the Licensed Area, take less than ten (10) days to complete after the
damage occurs. If Licensor's repairs take ten (10) or more days to complete. then the Fees
payable under Article 3 shall be proportionately reduced in the proportion that the area of the
part of the Licensed Area thereby rendered unfit for use by Licensee in the storage of the NPC
\'TS Buses and not in fact so used bears to the area of the Licensed Area from the date of such
damage until the earlier of:
(a) thirty (30) days or such lesser period of time as may be reasonable after
substantial completion by Licensor of its necessary repairs to the Bus Storage
Area, including the Licensed Area, (or the part thereof rendered unfit for use)
during which period of time Licensee shall with reasonable diligence make such
repairs as are necessary for Licensee to again use the Bus Storage Area. including
the Licensed Area, (or the relevant part thereof) in its business; and
(b) the day on which Licensee again uses the Licensed Area for the relevant part
thereof) for the storage of the NPC VTS Buses (with abatement continuing as
aforesaid in respect of the parts remaining unfit for use and not actually used).
Notwithstanding anything contained herein, Fees payable by Licensee hereunder
shall not be abated if the damage is caused by any act or omission of Licensee. its agents,
servants or employees.
UA1 T OR ^, n niii
1 1.4 Certificate of Expert
The certificate of the Expert shall be binding upon Licensor and Licensee as to
whether or not the Bus Storage Area, including the Licensed Area, are unleaseable or unfit for
use, the percentage of the Licensed Area, rendered unfit for use, the date upon which the Bus
Storage Area. including the Licensed Area, or relevant part thereof became unfit for use and the
state of completion of any work or repair of either Licensor or Licensee.
11.5 Licensor's Rights on Rebuilding
In repairing or rebuilding the Bus Storage Area. including Licensed Area,
Licensor may use drawings. designs, plans and specification other than those used in the original
construction and may alter the Bus Storage Area, including the Licensed Area, provided that the
Bus Storage Area, including the Licensed Area as altered shall have substantially the same
attributes as the original Bus Storage Area, including the Licensed Area.
12.1 Sale, Conveyance and Assignment
Nothing in this Licence shall restrict the right of Licensor to sell, convey, assign
or otherwise deal with the Licensed Area or any part thereof (or both), subject to the rights of
Licensee under this Licence and this Licence shall not be affected by any such sale, conveyance
or assignment, and Licensee shall attorn to Licensor's successor in interest thereunder and such
successor shall assume the Licensor's obligations hereunder. Any such sale, conveyance or
assignment shall operate to release Licensor from liability from and after the effective date
thereof for all of the covenants, terms and conditions of this Licence. express or implied, except
as such may relate to the period prior to such effective date, and Licensee shall thereafter look
solely to Licensor's successor in interest in and to this Licence in respect of events occurring
from and after the effective date.
12.2 Subordination and Attornment
This Licence and the rights of Licensee hereunder shall be subject and
subordinate to all existing and future Mortgages and to all renewals, modifications,
consolidations, replacements and extensions thereof. Whenever requested by Licensor or a
Mortgagee. Licensee shall. within ten (10) days after such request, enter into an agreement with
the Mortgagee whereby Licensee postpones or subordinates this Licence to the interest of any
stipulated Mortgagee and agrees that whenever requested by such Mortgagee it shall attorn to
and become Licensee of such Mortgagee, or of any purchaser from such Mortgagee in the event
of the exercise by the Mortgagee of its power of sale, for the then unexpired residue of the Term
upon all the terms and conditions of this Licence, provided that it receives, for each future
Mortgage, the non - disturbance agreement referred to in Section 12.3.
1311 1(rk 4914 "0 '.1
- 19 -
ARTICLE 12
TRANSFERS BY LICENSOR
17,3 Non- Disturbance Agreement
Upon the written request and at the sole expense of Licensee. Licensor shall use
reasonable efforts to obtain written assurances from any 'Mortgagee with an interest in the
Licensed Area prior to that of Licensee to the effect that so long as Licensee is not in default
under this Licence such Mortgagee will recognize Licensee's rights under this Licence and not
disturb Licensee's occupancy of the Licensed Area.
12.4 Non- Assignment
Neither this Licence nor any interest herein may be assigned by Licensee without
the prior written consent of Licensor. Any subleasing or sublicensing of the Licensed Area is
prohibited.
13.1 \% aiver
-
ARTICLE 13
GENERAL AND MISCELLANEOUS
Save as expressly set out herein, no waiver of any provision of this Licence shall
be binding unless it is in writing. No indulgence or forbearance by a Party shall constitute a
waiver of such Party's right to insist on performance in full and in a timely manner of all
covenants in this Licence. Waiver of any provision shall not be deemed to be a waiver of the
same provision thereafter or any other provision of this Licence at any time.
13.2 Licensee Governing Legislation and Code of Conduct
(a) Licensee is a Provincial Crown Agency and a corporation incorporated by an Act
of the Provincial Legislature of Ontario on the 23rd of April 1887 and continued
under the Niagara Parks Act, R.S.O. 1990, Chapter N.3. Licensor has read and is
familiar with such Act and the statutory jurisdiction of Licensee to control
activities in the Park through such Act and R.R.O. 1990, Regulation 829
(collectively, "NPC Legislation including the conduct of persons using the
Park, permissions, advertising and signage, licences, traffic rules and the control
of transportation in the Park. Licensor will cause each of its current and future
directors, officers, employees and members to adhere to the NPC Legislation and
any written directives from Licensee to ensure compliance with NPC Legislation
and hereby assumes all responsibility for any failure to comply with the terms of
this Section.
(b) Licensor has read and is familiar with Licensee's Code of Conduct located at
www. niagaraparks .comtfilesfCode- of- Conduct.pdf and hereby agrees to adhere to
the principles and all provisions of such Code of Conduct applicable to Licensor.
Licensor will cause each of its current and future directors, officers, employees
and members to read and adhere to such Code of Conduct and hereby assumes all
responsibility for any failure to comply with the terms of such Code of Conduct
on the part of Licensor and such persons.
4
13.3 Further Acts
The Parties shall do or cause to be done all such further acts and things as may be
reasonably necessary or desirable to give full effect to this Licence. Without limiting the
foregoing, each of the Parties will at any time and from time to time execute and deliver or cause
to be executed and delivered such further instruments and such further actions as may be
reasonably requested by the other Party to cure any defect in the execution or delivery of this
Licence or to give effect to the provisions of this Licence.
13.4 Freedom of Information
The Parties acknowledge that the terms of this Licence are subject to the
Municipal Freedom of Information and Protection of Privacv Act (Ontario) and the Freedom of
Information and Protection of Privacy Act (Ontario).
13.5 Remedies
-2 1 -
No remedy herein conferred upon or reserved in favour of a Party shall exclude
any other remedy herein or existing at law or in equity, but each shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter existing.
13.6 Support of Licence
Each of the Parties agree that they shall publicly support this Licence and the VTS
in any statements, reports or communications such Party makes to the public. In addition. any
press releases of either or both Parties in connection with or relating to this Licence andor the
VTS in any way shall be jointly agreed to in writing prior to its release.
13.7 Dispute Resolution
(a) Resolution by Negotiations
If any dispute arises between the CCNF and the NPC as to whether a Party has complied
with its obligations under this Agreement or if any dispute or controversy arises between
the Parties with respect to the interpretation or implementation of any of the provisions of
this Agreement (any and all disputes and controversies described in this Article are
hereinafter collectively referred to as a "Dispute" or "Disputes "). a Notice of a Dispute
by a Party must be delivered to the other Party. The Parties shall make all reasonable
efforts to resolve any and all Disputes by amicable negotiations within thirty (30) days of
a Notice of a Dispute being delivered (the "Negotiation Period "), including meeting at
mutually acceptable times and places as often as they consider necessary, and providing
each other. on a without prejudice basis, full, frank, candid and timely disclosure of
relevant facts, information and documents in order to facilitate such negotiations.
provided that in so doing the Parties are bound to comply with all Applicable Laws
respecting such disclosure. If either of the Parties refuses or neglects to participate in
such amicable negotiations, the other Party may refer the Dispute immediately to
mediation under Section 13.7(b). No Party shall be required to participate in the
negotiations specified by this Section 13.7(a) if a limitation period relating to a right of
DRl f�iR 2(} 4 ,414' ^_t;'.3
such Party which is the subject matter of or is related to the Dispute, would expire during
the Negotiation Period or within ten (10) days thereafter.
(b) Notice to 'Mediate
If a Dispute remains unresolved after the Negotiation Period, either Party may, upon ten
(1 0) days prior written Notice to the other Party, require that the Dispute be referred to a
mediator for mandatory mediation. The mediator shall be selected by the Party to whom
the Notice is given under this Section 13_7(b) within five (5) Business Days of such
Party's receipt of such notice. from a list of three (3) mediators identified in the written
Notice given by the Party requiring the mediation.
(c) Terms of Mediation
The purpose of any mediation that takes place pursuant to Section 13.7(b) shall be to
assist the Parties in reaching a voluntary agreement respecting the Dispute. The Parties
will. within five (5) Business Days of the selection of the mediator. use commercially
reasonable efforts to schedule the mediation date(s). The format and timing of any such
mediation shall be as agreed upon by the Parties, acting commercially reasonable. and the
mediator, and the costs of the mediator shall be borne equally by the Parties.
(d) Parties` Representatives
Each Party will be entitled to invite its legal counsel and no more than three (3) of its
employees or other representatives to attend any such mediation sessions. The inclusion
of any other persons, other than the mediator, in the mediation sessions, will require the
prior written consent of both Parties.
(e) Termination of Mediation
In the event that any Dispute referred to mediation pursuant to Section 13.7(b) has not
been resolved within ten (1 0) Business Days of the first mediation session of such
mediation. or such further period as may be agreed upon by both Parties in writing, the
Parties will instruct the mediator to terminate the mediation by giving written notice of
termination of the mediation to both Parties.
(f) Binding Arbitration
In the event that a Dispute has not been resolved by mediation as set out in this Section
13.7, then either Party may, within ten (10) days of the date of the notice of termination
sent by the mediator under Section 13.7(e), by giving written Notice of its desire for
binding arbitration to the other Party, require that the Dispute be resolved through
binding arbitration. If such notice is delivered. the Dispute shall be determined by
arbitration by a single arbitrator (the "Arbitrator ") to be selected by the Party to whom
such notice of binding arbitration is given, and failing such selection, the Arbitrator shall
be appointed pursuant to the Arbitration Act, 1991 (Ontario).
(g) Terms Arbitration
DAi f t l fZ 1'I }- 211 -:A
0 %1 Ir1R_'.i i`;`_i:0". 4 -%
-23-
(1) Any arbitration hereunder shall be held at Niagara Falls, Ontario or
Toronto, Ontario unless the Parties otherwise agree.
(ii) The laws to be applied in connection with the arbitration shall be the laws
of Ontario and the laws of Canada applicable therein. but including its
conflict of law rules.
(iii) The procedure to be followed for any arbitration that takes place under this
Section 13.7 shall be as agreed upon by the Parties or, in the event the
Parties are unable to reach agreement, as may be determined by the
Arbitrator.
(i v)
(v)
(1)
Any arbitration may include any other person substantially involved in a
common question of fact or law whose presence is required if complete
relief is to be accorded in arbitration, provided that such other person has
agreed to be bound by such arbitration.
The Arbitrator shall have the power to proceed with the arbitration and to
deliver his or her award notwithstanding the default by either Party in
respect of any procedural order made by the Arbitrator.
(vi) The decision of the Arbitrator kvill be final and binding upon the Parties.
(vii) The Arbitrator shall have the authority to assess the costs of the arbitration
against either or both of the Parties.
(h) Confidentiality
All negotiations, mediation and arbitration conducted pursuant to this Section
13.7. and all information and documents (whether in tangible, electronic or digital
form) exchanged by the Parties in connection therewith are confidential. Such
information and documents shall not be disclosed to any person other than:
the Parties, their legal counsel and any of their representatives, consultants
and advisors who need to know such information and documents for the
purposes of such negotiations, mediation or arbitration: and
(11) the mediator or Arbitrator,
except as may be required by Applicable Law or except in the course of any
judicial proceeding relating to any arbitration conducted pursuant to the
arbitration rules imposed by the Arbitrator. If either Party fails to comply with
the provisions of this Section 13.7(h) before or aver the completion of any
arbitration, the Arbitrator may enjoin further breaches by such Party of this
provision and award damages or other relief against such Party. On completion of
any negotiations, mediation or arbitration conducted under this Section 13.7. each
Party shall return to the other Party all copies of such information or documents,
whether in tangible, electronic or digital form.
(i)
Surviv
The provisions of this Section 13.7 shall survive any expiration of the Term or other
termination of this Agreement. The provisions of this Section 13.7 shall continue in full
force and effect notwithstanding any determination by an arbitrator, a court or the Parties
that one or more other provisions of this Agreement are invalid, contrary to law or
unenforceable.
13.8 Notice
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Continuing Performance
(1) At all times, notwithstanding the existence of any Dispute, the Parties
shall continue to perform their respective obligations in accordance with
the provisions of this Agreement without prejudice to the right to contest,
dispute and challenge the relevant matter in accordance with the
provisions of this Agreement, provided that this Section 13.7(i) shall not
apply to a Party where the other Party has repudiated, terminated or
abandoned performance of this Agreement or where the first Party asserts
claims in fraud or misappropriation. No Party shall exercise any remedy
with respect to an alleged default by another Party under this :agreement if
a Dispute with respect to such alleged default has been submitted for
resolution pursuant to this Article, until either (i) the Parties have settled
the Dispute; or (ii) the Arbitrator has made an award with respect to the
Dispute.
Ln Subject to the express provisions of this Agreement, where there is any
Dispute as to the amount of monies owing hereunder by any Party hereto
to any other Party hereto, the portion of the amount owing that is not
contested, disputed or challenged, if anv, shall be paid when due
hereunder, but without prejudice to the rights of the other Party to contest,
dispute or challenge the disposition of the remaining portion of the monies
claimed.
Any and all notices required to be sent pursuant to the terms of this Licence (each
a "Notice ") shall be in writing and shall be sent by mail, or personally delivered, or by overnight
courier, or by facsimile or e -mail (each a "Transmission to the Parties at their addresses as set
out in Schedule A or to any other address that a Party designates. Any Notice (a) sent by mail,
shall be deemed to have been received ten (10) Business Days after mailing; (b) delivered
personally or sent by overnight courier, shall be deemed to have been given when actually
received: (c) sent by a Transmission before 3:00 p.m. (Toronto time) on a Business Day, shall be
deemed to have been given on that Business Day, or (d) if sent by a Transmission after 3:00 p.m.
(Toronto time) on a Business Day or at any time on a day that is not a Business Day, shall be
deemed to have been given on the Business Day after the date of the Transmission. Any Notice
given by one Party to the other under this Licence shall be given in writing at the address of the
other Party as set forth below or at such other address as may have been furnished in writing for
such purpose.
I)11 rc■R .!"_u' A
13.9 Counterparts
This Licence may be executed in any number of counterparts, each of which shall
be deemed to be an original. and all of which together shall be deemed to be one and the same
instrument and receipt of a facsimile or portable document format (pdf) version of an executed
signature page of this Licence by a Party shall constitute satisfactory evidence of execution of
this Licence by such Party.
IN NVITNESS WHEREOF, the Parties hereto have executed this Licence on the date
first written above.
DAI Fi)fZ 4u14 -2
_25_
THE CORPORATION OF THE CITY OF
NIAGARA FALLS
Per:
James M. Diodati, Mayor
Per:
Dean Iorfida, City Clerk
II We have authority to bind the corporation.
THE NIAGARA PARKS COMMISSION
Per:
Fay Booker, General Manager
I have authority to bind the corporation.
Schedule B
LICENSED %ARE:A
To be completed in accordance with Section 2.1.
Licensor
The Corporation of the City of Niagara Falls
4310 Queen St.
P.O. Box l'323
Niagara Falls, ON
L2E 6X5
Attention:
Tel Number:
Fax Number:
Email Address:
Attention:
Tel Number:
Fax Number:
Email Address:
Licensee
The Niagara Parks Commission
Box 150
7400 Portaue Road South
Niagara Falls, ON L2G 6T2
Attention:
Tel Number:
Fax Number:
Email Address:
Attention:
Tel Number:
Fax Number:
Email Address:
Chief Administrative Officer
(9115) 356 -7521, ext. 5100
(905) 357 9293
ktodd! L niauarafalls.ca
Schedule A
NOTICE DETAILS
Director of Business Development
(905) 356 -7521, ext. 5102
(905) 3i7 9293
sfel icetti!�i niagarafal ls.ca
General Manager
(905) 356 -2241, ext 225
(905) 354 -6041
(booker @niagaraparks.com
Senior Director. Infrastructure & Guest Services Support
(905) 356 -2241. ext 240
(905) 356 -7262
mgruosso4 niagaraparks.com
See attached.
_13_
Schedule G
PAYMENT SCHEDULE OF ANNUAL GRANTS
CCNF
The Corporation of the City of Niagara Falls
4310 Queen St.
P.O. Box 1023
Nia2ara Falls. ON
L2E 6X5
Attention:
Tel Number:
Fax Number:
Email Address:
Attention:
Tel Number:
Fax Number:
Email Address:
N PC
The Niagara Parks Commission
Box 150
7400 Portage Road South
Niagara Falls, ON L2G 6T2
Attention:
Tel Number:
Fax Number:
Email Address:
Attention:
Tel Number:
Fax Number:
Email Address:
Chief Administrative Officer
(905) 356-7521. ext. 5100
(905) 374 -3557
ktoddsaniagarafalls.ca
-31 -
Schedule 11
NOTICE DETAILS
Director of Business Development
(905) 356 -7521. ext 5102
(905) 357 -9293
sfelicetti( iniagarafalls.ca
General Manager
(905) 356 -2241, ext 225
(905) 354-6041
tbooker6i niagaraparks.com
Senior Director, Infrastructure and Guest Support Services
(905) 356 -2241, ext 240
(905) 356-7262
mgruosso(L niagaraparks.corn
CITY OF NIAGARA FALLS
By -law No. 2011 -
A by -law to designate Block 119, Registered Plan 59M -379. not be subject to part-lot control.
WHEREAS subsection 50(7) of the Planning Act, R.S.O. 1990, provides, in part, that the council
of a local municipality may by by -law designate lands that would otherwise be subject to part-lot
control, not be subject to such part-lot control;
AND WHEREAS such by -laws are required under subsection 50(7.1) of the Planning Act to be
approved by the appropriate approval authority, that being The Regional Municipality of Niagara as
per subsection 51(5) of the Planning Act, subsequently delegated to the City' of Niagara Falls by
Regional Municipality of Niagara By -law No. 8819 -97;
AND WHEREAS the said land is zoned by By -law No. 2008 -99 to permit the erection of on- street
townhouse dwellings thereon;
AND WHEREAS the owner of the said lands proposes to create property lines between the on- street
townhouse dwelling units in order to permit each unit to be sold separately;
AND WHEREAS the Council of The Corporation of the City of Niagara Falls deems it expedient
to designate that the said land not be subject to part-lot control.
THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS
AS FOLLOWS:
1. That subsection 50(5) of the Planning Act, R.S.O. 1990, not apply to Block 119, Registered
Plan 59M -379, described as Parts 1 to 6 (inclusive) on Reference Plan 59R- 14499, in the City of
Niagara Falls, in the Regional Municipality of Niagara.
2. This by -law shall remain in full force and effect for two years from the date of passage of this
by -law, after which time this by -law shall expire and be deemed to be repealed and of no effect.
Passed this twenty -fifth day of August, 2011.
DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR
First Reading:
Second Reading:
Third Reading:
August 25, 2011
August 25, 2011
August 25, 2011
S \PAR I L01 CONTROL\201 1 \PLC -001 \Block 119 PLC By- law .wpd
CITY OF NIAGARA FALLS
By -law No. 2011 -
A by -law to designate the whole of the City of Niagara Falls as a site plan control area, to define the
classes of development that may be undertaken without the approval of plans and drawings, and to
delegate to an appointed officer of the municipality the powers or authority of council permitted
under section 41 of the Planning Act, R.S.O. 1990, c.P.13.
WHEREAS the Official Plan of the City of Niagara Falls states that the whole of the area of the City
of Niagara Falls shall be a site plan control area;
AND WHEREAS the Council of the Corporation of the City of Niagara Falls deems it desirable to
designate the whole of the area of the City of Niagara Falls as a site plan control area as established
by the Official Plan of the Regional Municipality of Niagara and the City of Niagara Falls, pursuant
to section 41 of the Planning Act, R.S.O. 1990, c.P.13;
AND WHEREAS the Council of the Corporation of the City of Niagara Falls deems it desirable to
define certain class or classes of development that may be undertaken in the site plan control area
without the approval of plans and drawings otherwise required under subsections 41(4) or 41(5) of
the Planning Act, R.S.O. 1990, c.P. 13 pursuant to clause 41(13)(a) of the said Act;
AND WHEREAS the Council of the Corporation of the City of Niagara Falls deems it desirable to
streamline and expedite the approval of plans and drawings;
AND WHEREAS clause 41(13)(b) of the Planning Act, R.S.O. 1990, c.P.13 states that the council
may by by -law delegate to either a committee of the council or to an appointed officer of the
municipality identified in the by -law either by name or position occupied, any of the council's
powers and authority under section 41 of the said Act, except the authority to define any class or
classes of development as mentioned in clause 41(13)(a) of the said Act;
AND WHEREAS the Council of The Corporation of the City of Niagara Falls deems it desirable
to delegate its powers and authority under section 41 of the Planning Act, R.S.O. 1990, c.P.13 to the
Director of Planning, Building and Development or his or her designate, when the Director of
Planning, Building and Development is unable to conduct his or her duties pursuant to this by -law
through illness or otherwise.
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF
NIAGARA FALLS ENACTS AS FOLLOWS:
1. In this by -law,
"development" means the construction, erection, or placing of one or more buildings or
structures on land or the making of an addition or alteration to a building or structure that has
the effect of substantially increasing the size or usability thereof, or the laying out and
establishment of a commercial parking lot or of sites for the location of three or more trailers
as defined in subsection 164 (4) of the Municipal Act or of sites for the location of three or
more mobile homes as defined in subsection 46(1) of the Planning Act or of sites for the
(d)
(g)
- 2 -
location of three or more community homes as defined in subsection 46(1) of the Planning
Act, but does not include the placement of a portable classroom on a school site of a district
school board if the school site was in existence on January 1, 2007.
2. All the lands lying within the limits of the City of Niagara Falls are hereby designated as a
site plan control area.
3. The class or classes of development that may be undertaken in the site plan control area
without the approval of plans and drawings otherwise required under subsections 41(4) or
41(5) of the Planning Act, R.S.O., 1990, c.P.13 are hereby defined as follows:
(a) Any residential development that is proceeding by plan of vacant land condominium
and any residential building containing less than three dwelling units, and buildings
and structures accessory thereto.
(b) An addition or alteration to a building or structure mentioned in clause (a) above.
(c) Any building or structure located on a parcel of land owned and operated by the City
of Niagara Falls, the Niagara Peninsula Conservation Authority, the Government of
Ontario, or any Authority, Board or Ministry of the Province of Ontario or the
Government of Canada.
Any structure erected for the purposes of flood or erosion control by the Niagara
Peninsula Conservation Authority.
(e) Any building or structure permitted under the OS 6 zone.
(f) Any agricultural building or structure, save and except for greenhouses greater than
2000 square metres.
Any building or structure permitted as part of any extractive industrial use licensed
under the Aggregate Resources Act, R.S.O. 1990, c.A.8.
4. Notwithstanding any clause contained in paragraph 3 above, the Council of the Corporation
of the City of Niagara Falls may impose, as condition of a zoning by -law amendment, site
plan control on any use otherwise exempt from site plan control, without amendment to this
by -law.
5. Notwithstanding any clause contained in paragraph 3 above, the Committee of Adjustment
may impose, as condition of a minor variance or a consent, site plan control on any use
otherwise exempt from site plan control, without amendment to this by -law.
6. Notwithstanding any of the provisions of section 3 of this by -law, the approval by Council
of the plans and drawings referred to in subsections 4 and 5 of Section 41 of the Planning
Act, R.S.O. 1990, c.P.13 shall be required for any non farm residential development on the
lands located within Special Policy Area "37" in the City's Official Plan.
- 3 -
7. All applications submitted to the Corporation of the City of Niagara Falls shall conform to
the policies within the Site Plan Control Policy.
8. The Corporation of the City of Niagara Falls may regulate, through site plan control, matters
relating to exterior design, including without limitation, the character, scale, appearance and
design features of buildings and their sustainable design in accordance with Official Plan
policies which have been adopted.
9. The Corporation of the City of Niagara Falls may regulate, through site plan control, matters
relating to sustainable design elements on any adjoining highway under the City's
jurisdiction or the Region of Niagara's jurisdiction, including without limitation, trees,
shrubs, hedges, plantings or other ground cover, permeable paving materials, street furniture,
curb ramps, waste and recycling containers and bicycle parking facilities in accordance with
Official Plan policies which have been adopted by Council.
10. The approval of the drawings that make up the site plan may be subject to a requirement that
the applicant/owner enter into one or more agreements with the City which agreements may,
at the sole discretion of the City, require the applicant to post such security of performance
as the City, in its sole discretion, considers appropriate.
11. The Council of the Corporation of the City of Niagara Falls hereby delegates to and appoints
the Director of Planning, Building and Development or his or her designate when the
Director of Planning, Building and Development is unable to conduct his or her duties
pursuant to this by -law through illness or otherwise, to execute any of the powers and
authority of Council under section 41 of the Planning Act, R.S.O. 1990, c.P.13 except the
authority to define any class or classes of development as stated in clause 41(13)(a) of the
said Act.
12. Any approval granted in accordance with this by -law shall be deemed to be subject to the
terms of any agreement required as a condition of that approval. Failure to adhere to the
terms of any agreement required as a condition of an approval, including, without limiting
the generality of the foregoing, failure to post or maintain any required securities, shall
nullify that approval. In the event an approval is nullified due to a failure to adhere to the
terms of an agreement, any and all development that has been undertaken in purported
reliance upon the nullified approval shall be deemed to have been undertaken without the
approval of Council.
13. Notwithstanding any clause contained in this by -law, the Director of Planning, Building and
Development, or his or her designate, may amend an approved site plan drawing and/or site
plan agreement with a redline revision to facilitate a change, alteration or modification that
is considered minor in the opinion of the Director of Planning, Building and Development
or his or her designate.
14. The Mayor and Clerk are hereby authorized to execute on behalf of and under the seal of The
Corporation of the City of Niagara Falls any agreement made pursuant to Section 41 of the
Planning Act, R.S.O. 1990, c.P.13 and provided for by this by -law.
- 4 -
15. By -laws No. 2001 -103, 2003 -28 and 2004 -152 are hereby repealed.
Passed this twenty -fifth day of August, 2011.
DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR
First Reading:
Second Reading:
Third Reading:
August 25, 2011
August 25, 2011
August 25, 2011
S:\SITEPLAN\GENERAL\2011\SPC By -law (Council Aug 25- 2011).wpd
CITY OF NIAGARA FALLS
By -law No. 2011 -
A by -law to appoint Councillor Vince Kerrio as Acting Mayor.
WHEREAS Section 242 of the Municipal Act. 2001 provides that a municipality may by by -law or
resolution appoint a member of the Council to act in the place of the head of Council when the head
of Council is absent or refuses to act or the office is vacant and while so acting such member has all
the power and duties of the head of Council; and
WHEREAS the office of Mayor of the City of Niagara Falls will be vacant as a result of James M.
Diodati being absent from the City from September 3, 2011 to and including September 10, 2011;
and
WHEREAS the said Council deems it desirable to appoint an Acting Mayor until the return of
James M. Diodati.
THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS
AS FOLLOWS:
1. Councillor Vince Kerrio is hereby appointed Acting Mayor from September 3, 2011 to and
including September 10. 2011.
At the conclusion of the period described in paragraph 1, James M. Diodati shall resume his
appointment as Mayor, together with all powers and duties associated with that office.
Passed this twenty -fifth day of August, 2011 .
DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR
First Reading:
Second Reading:
Third Reading:
August 25. 2011.
August 25, 2011.
August 25, 2011.
Passed this twenty -fifth day of August, 2011.
First Reading:
Second Reading:
Third Reading:
August 25, 2011
August 25, 2011
August 25. 2011
CITY OF NIAGARA FALLS
By -law No. 2011 -
A by -law to adopt, ratify and confirm the actions of City Council at its special meeting held on the
25 day of August. 2011.
WHEREAS it is deemed desirable and expedient that the actions and proceedings of Council as
herein set forth be adopted, ratified and confirmed by by -law.
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF
NIAGARA FALLS ENACTS AS FOLLOWS:
1. The actions of the Council at special its meeting held on the 25` day of August. 2011
including all motions, resolutions and other actions taken by the Council at its said meeting.
are hereby adopted. ratified and confirmed as if they were expressly embodied in this by -law.
except where the prior approval of the Ontario Municipal Board or other authority is by law
required or any action required by law to be taken by resolution.
Where no individual by -law has been or is passed with respect to the taking of any action
authorized in or with respect to the exercise of any powers by the Council, then this by -law
shall be deemed for all purposes to be the by -law required for approving. authorizing and
taking of any action authorized therein or thereby, or required for the exercise of any powers
thereon by the Council.
3. The Mayor and the proper officers of the Corporation of the City of Niagara Falls are hereby
authorized and directed to do all things necessary to give effect to the said actions of the
Council or to obtain approvals where required, and. except where otherwise provided. the
Mayor and the Clerk are hereby authorized and directed to execute all documents arising
therefrom and necessary on behalf of the Corporation of the City of Niagara Falls and to affix
thereto the corporate seal of the Corporation of the City of Niagara Falls.
DEAN IORFIDA, CITY CLERK JAMES M. DIODATI. MAYOR