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Additions to Council, August 13, 2013 ADDITIONS TO COUNCIL, TUESDAY, AUGUST 13, 2013 Reports 1. CD-2013-05 - 7565 Lundy's Lane a) Letter from Ernie Morgan, Morse & Son Limited b) Letter from Lundy's Lane BIA 2. R&C-2013-14 - Artificial Turf Field Options a) Request to speak on behalf of the District School Board of Niagara Planning 1. PBD-2013-53-AM-2013-011,6218 Dorchester Road.Applicant: Mile Manojlovich,Agent: Brian Sinclair. Expansion to an Existing Apartment Building a) Correspondence from Gary & Lori Wiegand Communications 1. Chamber of Commerce - Request that Council enter a foursome into the upcoming tournament in September. RECOMMENDATION: For the Consideration of Council 2. Regional By-law to Regulate Smoking By-law - Memo from City Clerk RECOMMENDATION: For the Approval of Council RESOLUTIONS Additional Resolution 1. THEREFORE BE IT RESOLVED that the City of Niagara Falls, a willing and supportive host of a minimum of two casinos, respectfully requests the Premier and Minister of Finance to direct OLG to immediately include Niagara's two resort casinos in its' modernization plans by establishing separately managed, rebranded operations, redevelopment of the two resort casinos and allow additional gaming sites in Niagara Falls; and FURTHER BE IT RESOLVED that Niagara Falls Council respectfully request that the Request for Proposal for the operation of the Niagara casinos under the new modernization model be issued in this fiscal year. By-laws 1 2013-121 A by-law to authorize the execution of a Lease Agreement with Marineland of Canada Inc. Respecting the leasing of a specified area of Portage Road abutting the main entrance to Marineland 2. 2013-122 A by-law to authorize the execution of a Lease Agreement with Marineland of Canada Inc. Respecting the leasing of a specified area of Portage Road located at the WEGO bus stop at Marineland. MORSE&SON FUNERAL HOME ,9 MORGAN FUNERAL HOME "Canada''First Funeral Home" 5917 MAIN STREET Est. ° u' "Tour Heritage Funeral Home"Est. 415 REGENT STREET,P.O BOX 453 NIAGARA FALLS,ON I.20 5Z7 1826 1959 959 NIAGARA ON-THE-LAKE,ON LOS 110 1-905 356-3550/FACSIMILE 1-905-3569916 1-905-468 3255/FACSIMILE 1-905 356-9916 G ERNFST MORGAN CFSP,DIRECTOR MAIN A. G[CNAC,DIRECTOR MORSE&SON LIMITED August 9, 2013 Mayor Jim Diodati and Members of Council City of Niagara Falls 4310 Queen Street P. 0. Box 1023, Niagara Falls, Ontario L2E 6X5 Mayor Diodati and Councillors: Re: MW-2013-12-Cemetery Service Delivery Review As we did in our letter to the Mayor and Council dated May 16, 2006, we wish to offer our strong endorsement of the recommendation offered by both the Cemetery Services staff and your consultant, Lee & Associates, to "demolish the (former Recreation) building and use the land for columbaria and other interment options." As indicated in their detailed analysis, this option has the least risk and the greatest revenue potential for the City. I would also support the idea originally shared by the members of both the Lundy's Lane B.I.A. and the Park in the City Committee that the corner of Montrose Road and Lundy's Lane would benefit from the increased greening and beautification. As Canada's oldest funeral home (1826), and certainly Stamford Township area's first funeral home, we have been providing services to families choosing the Lundy's Lane Cemetery for many years, dating back to when it first existed as a Methodist cemetery. We have found it very difficult over the last number of years to continually disappoint City families by having to inform them there is no longer grave space available at Lundy's Lane. It is very important to succeeding generations, that they are able to arrange for final disposition of family members in the same cemetery in which many of their former relatives are interred. We estimate that our Funeral Directors and our Pre-arrangement Planner are in the position of having to inform families at least twice or more each month that they will have to make an alternate choice from Lundy's Lane Cemetery for final disposition. The staff at the Cemetery Page 1 of 2 Administration office would not be aware of most of these disappointed families, as they would have been informed by members of our staff prior to contact with their office. Further, by increasing the number of grave/columbarium spaces available for purchase, the City stands to realize increased funds for both operation and long-term trust benefit (i.e. Perpetual Care & Maintenance Funds). In closing, I again encourage you to adopt the recommendation of your Cemetery Services staff and of Lee & Associates. Respectfully submitted, e , LZ e G. Ernest Mor Presi M se & Son Limited Page 2 of 2 4C:L Lundys Lane ...... • L'J:DYSLANE . Cp•• August 8, 2013 Dean lorfida, Clerk City of Niagara Falls 4310 Queen Street Niagara Falls, Ontario L2 H Dear Mr. lorfida, On August 7, 2013, the Lundy's Lane BIA had the opportunity to meet with Cynthia Roberts and Mark Richardson to discuss plans for the redevelopment of the northeast corner of Lundy's Lane and Montrose Road. Presented to the LLBIA were plans for the demolition of the abandoned Recreation Building, creation of public green space and the addition of 250 — 300 burial plots. After lengthy discussion, the Lundy's Lane BIA has agreed in principal to support the proposed project, which would include the demolition of the abandoned Recreation Building, provided that the proposed green space: - Has a pedestrian friendly parkette, with a gazebo and seating area - Compliments the beautification theme being developed for Lundy's Lane as opposed to looking like a cemetery feature / entrance - Has an educational display / area that continues telling the historical story of the significance of Lundy's Lane - That sufficient land be set aside to accomplish the above features which would relate to a reduction in grave sites to 200 — 250 - That the grave sites not be visible from the parkette / green space The Lundy's Lane BIA looks forward to working with City Staff on this project and the overall beautification of Lundy's Lane. Best regards, David Jovanovic Project Administrator, LLBIA 905-401-8247 david.jovanovic.11bia @gmail.com Teresa Fabbro From: Joe Weinberg <Joe.Weinberg @dsbn.org> Sent: Monday, August 12, 2013 11:31 AM To: Dean Iorfida; Teresa Fabbro Subject: Report on Artificial Turf Field Options The District School Board of Niagara will want to speak to staff report R&C-2013-14 Artificial Turf Field Options. It will be myself, Joe Weinberg with the possibility of others. Please confirm. thank you Joe Joe Weinberg MBA P.Eng. Superintendent of Business DISTRICT SCHOOL BOARD OF NIAGARA 191 Carlton Street, St. Catharines ON Ph: 905-641-2929 Ext. 54125 FAX: 905-685-8511 e-mail: Joe.Weinberq(a�dsbn.orq Achieving Success Together Confidentiality Notice: The information contained in this communication, including any attachments may be confidential, is intended only for the use of the recipient(s) named above, and may be legally privileged. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, disclosure, or copying of this communication, or any of its contents, is strictly prohibited. If you have received this communication in error, please advise the sender. Clerks aL lov, City of Niagara Falls, Director of Planning, Building & Development, City Hall, 4310 Queen Street, Niagara Falls, Ontario L2E 6X5 ATT: Alex Herlovitch August 8, 2013 Dear Alex: RE: Zoning By-law Amendment Application - City File: AM-2013-01I 6218 Dorchester Road Roll No.: 2725-070-017-10300 Since 2011 we have been involved with the ongoing condo project at 6186 Dorchester Road. Now there is a zoning application for an additional building at 6218 Dorchester Road, which is approximately 100 ft south of our property at 6181 Corwin Ave. We realize that Dorchester Road is zoned for multi-unit residences, but in a 2 block area between Stokes Street & Barker Street, there are currently 7 apartment buildings and a 6 unit townhouse/condo project(this condo project is directly in our backyard). The property at 6218 Dorchester Road currently has a 2.5 storey, 9 unit apartment building and the proposal is to construct a 3 storey, 6 unit addition to this property. The existing 2.5 storey unit is located at the west end of the property and therefore does not have direct views into the neighbouring properties. The addition would be at the rear of the property and would therefore be very close to the adjacent properties. This would adversely affect approximately 10 surrounding properties, by having views directly into the neighbouring back yards. Stokes Street and Corwin Ave. are established residential areas with single family homes and we have serious concerns that this project would have a severe adverse impact on the surrounding properties. The following are a few of the neighbourhood concerns: 1) This would have a negative impact on the property values of the area. 2) The aesthetic appeal of the neighbourhood would lessen with a large 3 storey apartment building visible 3) Of most concern is the complete loss of privacy. An apartment building that is 3 stories high being constructed so close to our homes would effectively eliminate all privacy in our yards. Any attempt to restore privacy by landscaping or fencing would be ineffective against a 3 storey building. There are two large open spaces listed for sale, on Dorchester Road, that will be developed as multi-unit properties. These locations are on the west side of Dorchester Road in the Stokes Street to Lundy's Lane section. This will add additional housing in an area that is already at capacity. This project, at 6218 Dorchester Road, does not belong in our neighbourhood. By allowing this project to go forth what would stop other builders/owners from glutting the neighbourhood with higher units. We would ask that this application be denied. Yours Truly Gary & Lori Wiegand 6181 Corwin Avenue Niagara Falls, Ontario L2G 5L7 Teresa Fabbro From: Sarah Conidi Sent: Friday, August 09, 2013 3:42 PM To: Dean Iorfida Cc: Teresa Fabbro Subject: For Council Additions: Request to attend Council meeting on August 13, 2013 Dean, Please see e-mail below for Council's Additions. Sarah From: Marilena Basilone [mailto:marilena @niagarafallschamber.com] Sent: Friday, August 09, 2013 10:05 AM To: Sarah Conidi Subject: Request to attend Council meeting on August 13, 2013 Hello Sarah, I am contacting you in regards to the upcoming Council meeting that is being held on Tuesday, August 13, 2013. Anna Pierce, Chair of the Chamber of Commerce Niagara Falls would like to attend this meeting if possible. She would like to ask Council for their support in our Annual Golf Tournament once again this year. A portion of proceeds raised from our tournament will go to Autism Ontario-Niagara Region Chapter. Thank you for your time with this matter. I look forward to hearing from you. Sincerely, Marilena Basilone Executive Assistant Chamber of Commerce Niagara Falls, Canada (905) 374-3666 (905) 374-2972 - Fax 1 Clerks Department Inter-Department Memorandum TO: Mayor James M. Diodati DATE: August 13, 2013 & Members of Council FROM: Dean lorfida City Clerk Ext. 4271 RE: Regional By-law to Regulate Smoking By-law The Region is looking for official comments from municipalities in association with a proposed Region-wide by-law to regulate smoking in public places. The City of Niagara Falls already has such a by-law in place (2011-51). Our by-law is more strict (less exceptions) than the proposed Regional By-law; however, the efforts of the Regional Public Health Tobacco Prevention section should be encouraged and having standardized rules across the Region is ideal. Staff wished to have a meeting with regional staff prior to formally bringing forward the matter to City Council. The meeting just took place last week. A report is going to the Region's Public Health and Social Services Committee on September 10'h and Regional staff wish to include comments from Niagara Falls City Council. At this point, staff would recommend the following comment/motions: That Niagara Falls City Council supports any initiative that combats smoking in outdoor places; and That Niagara Falls City Council encourages other Niagara lower-tier municipalities to support or enact similar by-laws; and That Niagara Falls City Council will provide a formal response on the proposed by- law, if Regional Council directs that the matter precede. Staff will provide a more formal report at a later date. Working Together to Serve Our Community Clerks Department Inter-Department Memorandum TO: Mayor James M. Diodati DATE: August 13, 2013 & Members of Council FROM: Dean lorfida City Clerk Ext. 4271 RE: OLG Modernization Resolution The majority of the content of the attached resolution was forwarded by Serge Feicetti, Director of Business Development in consultation with the local tourism stakeholders group he regularly meets with. RECOMMENDATION: For the approval of Council. Working Together to Serve Our Community inc. , S CITY or. ' .<qxnun The City of Niagara Falls, Ontario Resolution No. Moved by Councillor Seconded by Councillor WHEREAS unlike other Ontario municipalities,the City of Niagara Falls and the Municipal Councils of the day have shown overwhelming majority support for gaming in our community; and WHEREAS Fallsview Casino and Casino Niagara have made Niagara Falls, arguably, the premier gaming destination in Canada; and WHEREAS the Niagara's two resort casinos are not included in the Ontario Lottery & Gaming Corporation's (OLG) modernization framework; and WHEREAS Niagara Falls City Council and local stakeholders are concerned Niagara's two resort casinos are at risk of falling behind due to an outdated business model that is not competitive within OLG's new modernization framework; and WHEREAS recent experience proves the significant capital and operating changes Niagara's casinos will need to survive in an era of increased domestic and New York State competition are not possible with the OLG's existing operating model; and WHEREAS recent experience shows that Niagara's two resort casinos have failed to maintain employment and investment levels; and WHEREAS Niagara Falls City Council believes the best way to ensure Niagara's two casinos retain their role as significant local/regional employers and restore their traditional role as generators of provincial revenue and tourism attractors is through the introduction of product diversification. new investment,such as a new 7000 seat theatre,and distinct and relevant branding differentiating Niagara's two resort casinos; and WHEREAS being part of the OLG's modernization framework will allow Niagara's two resort casinos to realize their true, full potential to become compelling and integral elements in attracting tourists to the City of Niagara Falls; and WHEREAS Niagara, being an iconic global brand, should be the Province's premier resort casino destination, with a goal of permitting additional resort casinos to be established in Niagara Falls; THEREFORE BE IT RESOLVED that the City of Niagara Falls, a willing and supportive host of a minimum of two casinos, respectfully requests the Premier and Minister of Finance to direct OLG to immediately include Niagara's two resort casinos in its' modernization plans by establishing separately managed. rebranded operations, redevelopment of the two resort casinos and allow additional gaming sites in Niagara Falls; and FURTHER BE IT RESOLVED that Niagara Falls Council respectfully request that the Request for Proposal for the operation of the Niagara casinos under the new modernization model be issued in this fiscal year. AND The Seal of the Corporation be hereto affixed. DEAN IORFIDA JAMES M. DIODATI CITY CLERK MAYOR CITY OF NIAGARA FALLS By-law No. 2013 - A by-law to authorize the execution of a Lease Agreement with Marineland of Canada Inc. respecting the leasing of a specified area of Portage Road abutting the main entrance to Marineland. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. A Lease Agreement made between The Corporation of the City of Niagara Falls as Landlord and Marineland of Canada Inc. as Tenant, respecting the leasing of a specified area of Portage Road abutting the main entrance to Marineland,for a term ending May 31, 2015, with an automatic renewal of successive one year terms, as attached hereto, is hereby approved and authorized. 2. The Mayor and Clerk are hereby authorized to execute the said Lease Agreement. 3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver the said Lease Agreement. Passed this thirteenth day of August, 2013. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: August 13, 2013 Second Reading: August 13, 2013 Third Reading: August 13, 2013 -1— THIS LEASE AGREEMENT made this 13th day of August, 2013. PURSUANT TO THE SHORT FORMS OF LEASES ACT,R.S.O. 1990 c. S.11 BETWEEN: THE CORPORATION OF THE CITY OF NIAGARA FALLS Hereinafter referred to as the"Landlord" OF THE FIRST PART; - and - MARINELAND OF CANADA INC. Hereinafter referred to as the"Tenant" OF THE SECOND PART. WHEREAS the Landlord is the owner of the lands described in Schedule "A" (the"Property") of this Lease Agreement; AND WHEREAS the Property is a public highway; AND WHEREAS the Council of the Landlord is of the view that the Property is not currently required for the use of the traveling public; AND WHEREAS the Council of the Landlord has restricted the common law right of passage over the Property pursuant to section 35 of the Municipal Act, 2001; AND WHEREAS the Tenant is the owner of the lands described in Schedule`B" (the "Tenant's Property") of this Lease Agreement; AND WHEREAS the Tenant's Property will benefit from the use of the Property; AND WHEREAS the Tenant desires to have exclusive use of the Property; AND WHEREAS the Landlord has determined that granting exclusive use of the Property to the Tenant, subject to the reservations set out in this Lease Agreement, is in the public interest; -2— AND WHEREAS the Mayor and Clerk of the Landlord have been granted the authority by the Council of the Landlord to enter into this Lease Agreement; NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants,conditions and agreements hereinafter contained and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the following terms: 1. Subject to the rights reserved by the Landlord within this Lease Agreement and the terms and conditions contained herein, the Landlord grants to the Tenant, the exclusive use of the Property for a term commencing on the 13th day of August,2013,and terminating on the 31g day of May, 2015. 2. Notwithstanding the foregoing, this Lease Agreement shall be deemed to be automatically extended after May 31,2015 for further successive one year terms,from year to year on each anniversary of May 31,unless at least 30 days prior to any such anniversary date,either party notifies the other in writing that it elects to terminate this Lease Agreement at the end of the then current term. 3. The Tenant shall pay the Landlord the sum of ONE HUNDRED AND FIFTY DOLLARS ($150.00), payable annually in advance, as a rental fee, upon commencement of this Lease Agreement and subsequently on each anniversary date during the term of this Lease Agreement. 4. The Tenant hereby accepts the Property in the condition existing as of the date of this Lease Agreement and will not call upon the Landlord to do or pay for any work or supply any equipment to make the Property more suitable for the proposed use by the Tenant hereunder. 5. The Tenant covenants with the Landlord: (a) to pay the rent as set out in clause 3 hereof; (b) to pay taxes(including local improvements)and all rates,lease fees and other charges imposed on or with respect to the Property as same become due; (c) to use the Property only for the purposes of decorative open space and in conjunction with the Tenant's Property, and for the purposes of landscaping the Property in accordance with a landscaping plan to be approved by the parties hereto; (d) not to build or erect any building or structure of any kind on the Property; (e) not to pave the Property; -3- (f) not to change the grade of the Property without the express written consent of the Director of Municipal Works of the Landlord; (g) not to make any improvement of any kind to the Property,other than landscaping the Property in accordance with the landscaping plan referred to in paragraph 5(c)above, without the express written consent of the Director of Municipal Works of the Landlord; (h) to ensure that no refuse,litter,garbage or loose or objectionable material accumulates in or about the Property; (i) to ensure that no trees are removed from the Property; (j) to provide and maintain comprehensive general liability insurance in the minimum amount of Five Million Dollars ($5,000,000.00) with respect to its use of the Property during the full term of this Lease Agreement and any extension thereof, naming the Landlord as an additional insured,and to provide a certificate evidencing same, prior to the execution of this Lease Agreement and as required by the Landlord. Without limiting the generality of the foregoing, such public liability insurance shall contain provisions for cross liability, severability of interests and no cancellation or alterations without the consent of the Landlord; (k) to provide evidence to the Landlord that all of its employees are covered by the provisions of the Workplace Safety&Insurance Board Act and to pay all assessments in respect thereof. (1) not to assign this Lease Agreement without the express written consent of the Landlord, which consent may be unreasonably withheld; (m) to restore the Property to substantially the same condition at the expiry of this Lease Agreement as it was at the commencement of this Lease Agreement, unless the Landlord agrees to accept the improvements made by the Tenant at the end of the term of this Lease Agreement; (n) to indemnify and hold harmless the Landlord in relation to the reasonable costs of litigation associated with or arising from a proceeding or proceedings wherein the legality of this Lease is challenged on any legal premise whatsoever; (o) to comply with all federal,provincial and municipal laws,rules,regulations and by- laws and to hold the Landlord harmless from the consequences of its failure to do so; and (p) at all times,to acknowledge and comply with the rights reserved to the Landlord and -4— the public utilities in this Lease Agreement. 6. The Tenant shall at all times indemnify and save harmless the Landlord from and against any and all claims, demands, losses, costs, charges, expenses, actions and other proceedings (including those in connections with workers' compensation or any similar or successor arrangement)made,brought against,suffered by or imposed on the Landlord or its property which result from any failure by the Tenant to fulfill any of its obligations under this Lease Agreement or in respect of any loss,damage or injury(including injury resulting in death)to any person or property(including without limiting the generality of the foregoing,employees, contractors, agents and property of the Landlord) directly or indirectly arising out of, resulting from or sustained by reason of the occupation or use of the Property by the Tenant, or any operation in connection therewith or any fixtures or chattels thereon, unless such injury, loss or damage is due to the Landlord's negligence or default or the negligence or default of those for whom the Landlord is in law responsible. 7. The Landlord shall not be liable,directly or indirectly, for any personal injuries that may be suffered or sustained by any person who may be on the Property or for any loss of or damage or injury to property belonging to the Tenant or any person unless such injury,loss or damage is due to the Landlord's negligence or default or the negligence or default of those for whom the Landlord is in law responsible, in which case the Landlord shall be fully liable and in which case the Landlord shall indemnify the Tenant from and against any and all claims, demands,losses,costs,charges,expenses,actions and other proceedings(including those in connections with workers' compensation or any similar or successor arrangement) made, brought against, suffered by or imposed on the Tenant or its property which results therefrom. 8. The Tenant shall fully indemnify and save harmless the Landlord from and against all construction liens and related costs and other claims in connection with all work performed by or for the Tenant on the Property, and shall promptly remove all registered claims from title to the Property. 9. If the Tenant defaults in performing any of its obligations,other than the obligation to pay the rental fee described in clause 3 above,under this Lease Agreement,the Landlord shall give written notice to the Tenant of such default, giving the Tenant twenty (20)days to remedy such default,failing which the Landlord may terminate this Lease and the Tenant so notified shall then forthwith remove its chattels and fixtures, if any, from the Property and shall restore the Property to the condition in which it was at the commencement of this Lease Agreement, subject to the terms hereof. 10. The rights conveyed in this Lease Agreement are subject to the express reservation in favour of the Landlord, of the following rights of entry to the Property: (a) the right to enter the Property upon reasonable notice to the Tenant to conduct any -5— maintenance in relation to the Property, provided that same does not unreasonably interfere with the Tenant's occupation and use of the Property; (b) the right to install municipal infrastructure of any description including, without limiting the generality of the foregoing, signs, but not sidewalks, and provided that same does not unreasonably interfere with the Tenant's occupation and use of the Property; and (c) the right to install,maintain and service any form of infrastructure that is situated on the Property of any utility or telecommunications entity that has statutory access to municipal lands,which right may be executed by such utility or telecommunications entity. 11. The rights reserved to the Landlord in this Lease Agreement may be exercised by the Landlord,its employees and contractors,and by any utility or telecommunications entity that has statutory access to municipals lands. 12. The Landlord grants to the Tenant throughout the term of this Lease Agreement the right to quiet enjoyment of the Property, and the exclusive use, possession and control of the Property, subject only to the rights of the Landlord as set out herein. 13. It is hereby agreed by and between the parties hereto that any notice in writing which either party may desire to give to the other with regard to any matter or thing in this Lease Agreement contained may be validly and effectually given by mailing the same by prepaid registered post or facsimile transmission, if intended for the Landlord,to: The Corporation of the City of Niagara Falls Attention: Legal Services 4310 Queen Street, P.O. Box 1023 Niagara Falls, Ontario L2E 6X5 Telephone: (905) 356-7521 Facsimile: (905) 371-2892 and if intended for the Tenant,to: Marineland of Canada Inc. 7885 Stanley Avenue Niagara Falls, Ontario L2E 6X8 and any such notice, if mailed, shall be conclusively deemed to be given to and received by the other party, three (3) business days after the mailing thereof or if sent by facsimile transmission, on the date the facsimile transmission was sent. -6- 14. This Lease Agreement and any schedules hereto constitutes the entire agreement between the parties and there is no representation,warranty,collateral agreement or condition affecting this Lease Agreement other than expressed herein. 15. Proviso for re-entry by Landlord on non-payment of rent or non-performance of covenants, subject to the provisions of the Lease: (a) If the Tenant shall fail to pay an instalment of rent payable hereunder when due and shall allow such default to continue for five (5) days or shall fail to perform any of the covenants,conditions and agreements contained and shall allow any such default to continue for twenty(20)days after written notification from the Landlord,then the Landlord may take possession of the Property herein described and this Lease Agreement shall be terminated. (b) In case suit shall be brought for recovery of possession of the Property, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach shall be established, the Tenant shall pay to the Landlord all reasonable expenses incurred therefor,including a reasonable solicitors' fees. 16. Wherever the singular or masculine is used in this Lease Agreement they shall be construed as if the plural or the feminine or the neuter has been used where the context or the party or parties hereto so require and the rest of the sentence shall be construed as if the grammatical and terminological changes thereby rendered necessary had been made and all covenants herein contained shall be construed to the several as well as joint. IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement. THE CORPORATION OF THE CITY OF NIAGARA FALLS Per: James M. Diodati,Mayor Dean Iorfida, City Clerk -7- MARINELAND OF CANADA INC. Per: to ---1-1,----Name: Jo Holer Title: President -8— SCHEDULE "A" Those lands identified as proposed lease area immediately to the east of the main entrance road,as shown on a Surveyor's Sketch prepared by Dasha Page,O.L.S.dated July 24,2013,and bearing the number LLN:39934,which lands are intended to be illustrated in a Reference Plan following Council approval of the proposal to lease the Schedule"A" lands. -9— SCHEDULE "B" Tenant's Property Parts 2 to 6, Reference Plan 59R-2878, being PIN 64256-0063(LT). CITY OF NIAGARA FALLS By-law No. 2013 - A by-law to authorize the execution of a Lease Agreement with Marineland of Canada Inc. respecting the leasing of a specified area of Portage Road located at the WEGO bus stop at Marineland. THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS ENACTS AS FOLLOWS: 1. A Lease Agreement made between The Corporation of the City of Niagara Falls as Landlord and Marineland of Canada Inc. as Tenant, respecting the leasing of a specified area of Portage Road located at the WEGO bus stop at Marineland, for a term ending May 31, 2015, with an automatic renewal of successive one year terms, as attached hereto, is hereby approved and authorized. 2. The Mayor and Clerk are hereby authorized to execute the said Lease Agreement. 3. The Clerk is hereby authorized to affix the corporate seal thereto and to deliver the said Lease Agreement. Passed this thirteenth day of August, 2013. DEAN IORFIDA, CITY CLERK JAMES M. DIODATI, MAYOR First Reading: August 13, 2013 Second Reading: August 13, 2013 Third Reading: August 13, 2013 THIS LEASE AGREEMENT made this 13'h day of August, 2013. PURSUANT TO THE SHORT FORMS OF LEASES ACT, R.S.O. 1990 c. S.11 BETWEEN: THE CORPORATION OF THE CITY OF NIAGARA FALLS Hereinafter referred to as the"Landlord" OF THE FIRST PART; - and - MARINELAND OF CANADA INC. Hereinafter referred to as the"Tenant" OF THE SECOND PART. WHEREAS the Landlord is the owner of the lands described in Schedule "A"(the"Property") of this Lease Agreement; AND WHEREAS the Property is a public highway; AND WHEREAS the Council of the Landlord is of the view that the Property is not currently required for the use of the traveling public; AND WHEREAS the Council of the Landlord has restricted the common law right of passage over the Property pursuant to section 35 of the Municipal Act, 2001; AND WHEREAS the Tenant is the owner of the lands described in Schedule`B"(the"Abutting Property") of this Lease Agreement; AND WHEREAS the Abutting Property abuts the Property; AND WHEREAS the Tenant desires to have exclusive use of the Property; AND WHEREAS the Landlord has determined that granting exclusive use of the Property to the Tenant, subject to the reservations set out in this Lease Agreement, is in the public interest; AND WHEREAS the Mayor and Clerk of the Landlord have been granted the authority by the Council of the Landlord to enter into this Lease Agreement; NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants,conditions and agreements hereinafter contained and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to the following terms: 1. Subject to the rights reserved by the Landlord within this Lease Agreement and the terms and conditions contained herein, the Landlord grants to the Tenant, the exclusive use of the Property for a term commencing on the 13th day of August,2013,and terminating on the 31' day of May, 2015. 2. Notwithstanding the foregoing,this Lease Agreement shall be deemed to be automatically extended after May 31,2015 for further successive one year terms,from year to year on each anniversary of May 31,unless at least 30 days prior to any such anniversary date,either party notifies the other in writing that it elects to terminate this Lease Agreement at the end of the then current term. 3. The Tenant shall pay the Landlord the sum of NINE HUNDRED AND NINETY-TWO DOLLARS($992.00),payable annually in advance,as a rental fee,upon commencement of this Lease Agreement and subsequently on each anniversary date during the term of this Lease Agreement. 4. The Tenant hereby accepts the Property in the condition existing as of the date of this Lease Agreement and will not call upon the Landlord to do or pay for any work or supply any equipment to make the Property more suitable for the proposed use by the Tenant hereunder. 5. The Tenant covenants with the Landlord: (a) to pay the rent as set out in clause 3 hereof; (b) to pay taxes(including local improvements)and all rates,lease fees and other charges imposed on or with respect to the Property as same become due; (c) to use the Property only for the purposes of decorative open space and in conjunction with the Abutting Property, and for the purposes of landscaping the Property in accordance with a landscaping plan to be approved by the parties hereto; (d) not to build or erect any building or structure of any kind on the Property; (e) not to pave the Property; (f) not to change the grade of the Property without the express written consent of the Director of Municipal Works of the Landlord; (g) not to make any improvement of any kind to the Property,other than landscaping the Property in accordance with the landscaping plan referred to in paragraph 5(c)above, without the express written consent of the Director of Municipal Works of the Landlord; (h) to ensure that no refuse,litter,garbage or loose or objectionable material accumulates in or about the Property; (i) to ensure that no trees are removed from the Property; (j) to provide and maintain comprehensive general liability insurance in the minimum amount of Five Million Dollars ($5,000,000.00) with respect to its use of the Property during the full term of this Lease Agreement and any extension thereof, naming the Landlord as an additional insured,and to provide a certificate evidencing same, prior to the execution of this Lease Agreement and as required by the Landlord. Without limiting the generality of the foregoing, such public liability insurance shall contain provisions for cross liability,severability of interests and no cancellation or alterations without the consent of the Landlord; (k) to provide evidence to the Landlord that all of its employees are covered by the provisions of the Workplace Safety&Insurance Board Act and to pay all assessments in respect thereof (I) not to assign this Lease Agreement without the express written consent of the Landlord,which consent may be unreasonably withheld; (m) to restore the Property to substantially the same condition at the expiry of this Lease Agreement as it was at the commencement of this Lease Agreement, unless the Landlord agrees to accept the improvements made by the Tenant at the end of the term of this Lease Agreement; (n) to indemnify and hold harmless the Landlord in relation to the reasonable costs of litigation associated with or arising from a proceeding or proceedings wherein the legality of this Lease is challenged on any legal premise whatsoever; (o) to comply with all federal,provincial and municipal laws,rules,regulations and by- laws and to hold the Landlord harmless from the consequences of its failure to do so; and (p) at all times,to acknowledge and comply with the rights reserved to the Landlord and the public utilities in this Lease Agreement. 6. The Tenant shall at all times indemnify and save harmless the Landlord from and against any and all claims, demands, losses, costs, charges, expenses, actions and other proceedings (including those in connections with workers' compensation or any similar or successor arrangement)made,brought against,suffered by or imposed on the Landlord or its property which result from any failure by the Tenant to fulfill any of its obligations under this Lease Agreement or in respect of any loss,damage or injury(including injury resulting in death)to any person or property(including without limiting the generality of the foregoing,employees, contractors, agents and property of the Landlord) directly or indirectly arising out of, resulting from or sustained by reason of the occupation or use of the Property by the Tenant, or any operation in connection therewith or any fixtures or chattels thereon, unless such injury, loss or damage is due to the Landlord's negligence or default or the negligence or default of those for whom the Landlord is in law responsible. 7. The Landlord shall not be liable,directly or indirectly,for any personal injuries that may be suffered or sustained by any person who may be on the Property or for any loss of or damage or injury to property belonging to the Tenant or any person unless such injury,loss or damage is due to the Landlord's negligence or default or the negligence or default of those for whom the Landlord is in law responsible, in which case the Landlord shall be fully liable and in which case the Landlord shall indemnify the Tenant from and against any and all claims, demands,losses,costs,charges,expenses,actions and other proceedings(including those in connections with workers' compensation or any similar or successor arrangement) made, brought against, suffered by or imposed on the Tenant or its property which results therefrom. 8. The Tenant shall fully indemnify and save harmless the Landlord from and against all construction liens and related costs and other claims in connection with all work performed by or for the Tenant on the Property,and shall promptly remove all registered claims from title to the Property. 9. If the Tenant defaults in performing any of its obligations,other than the obligation to pay the rental fee described in clause 3 above,under this Lease Agreement,the Landlord shall give written notice to the Tenant of such default, giving the Tenant twenty(20) days to remedy such default,failing which the Landlord may terminate this Lease and the Tenant so notified shall then forthwith remove its chattels and fixtures, if any, from the Property and shall restore the Property to the condition in which it was at the commencement of this Lease Agreement, subject to the terms hereof. 10. The rights conveyed in this Lease Agreement are subject to the express reservation in favour of the Landlord,of the following rights of entry to the Property: (a) the right to enter the Property upon reasonable notice to the Tenant to conduct any maintenance in relation to the Property, provided that same does not unreasonably interfere with the Tenant's occupation and use of the Property; (b) the right to install municipal infrastructure of any description including, without limiting the generality of the foregoing, signs, but not sidewalks, and provided that same does not unreasonably interfere with the Tenant's occupation and use of the Property; and (c) the right to install,maintain and service any form of infrastructure that is situated on the Property of any utility or telecommunications entity that has statutory access to municipal lands,which right may be executed by such utility or telecommunications entity. 11. The rights reserved to the Landlord in this Lease Agreement may be exercised by the Landlord,its employees and contractors,and by any utility or telecommunications entity that has statutory access to municipals lands. 12. The Landlord grants to the Tenant throughout the term of this Lease Agreement the right to quiet enjoyment of the Property, and the exclusive use, possession and control of the Property, subject only to the rights of the Landlord as set out herein. 13. It is hereby agreed by and between the parties hereto that any notice in writing which either party may desire to give to the other with regard to any matter or thing in this Lease Agreement contained may be validly and effectually given by mailing the same by prepaid registered post or facsimile transmission, if intended for the Landlord, to: The Corporation of the City of Niagara Falls Attention: Legal Services 4310 Queen Street, P.O. Box 1023 Niagara Falls, Ontario L2E 6X5 Telephone: (905) 356-7521 Facsimile: (905) 371-2892 and if intended for the Tenant,to: Marineland of Canada Inc. 7885 Stanley Avenue Niagara Falls, Ontario L2E 6X8 and any such notice,if mailed, shall be conclusively deemed to be given to and received by the other party, three (3) business days after the mailing thereof or if sent by facsimile transmission, on the date the facsimile transmission was sent. 14. This Lease Agreement and any schedules hereto constitutes the entire agreement between the parties and there is no representation,warranty, collateral agreement or condition affecting this Lease Agreement other than expressed herein. 15. Proviso for re-entry by Landlord on non-payment of rent or non-performance of covenants, subject to the provisions of the Lease: (a) If the Tenant shall fail to pay an instalment of rent payable hereunder when due and shall allow such default to continue for five (5) days or shall fail to perform any of the covenants,conditions and agreements contained and shall allow any such default to continue for twenty(20)days after written notification from the Landlord,then the Landlord may take possession of the Property herein described and this Lease Agreement shall be terminated. (b) In case suit shall be brought for recovery of possession of the Property, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant herein contained on the part of the Tenant to be kept or performed, and a breach shall be established, the Tenant shall pay to the Landlord all reasonable expenses incurred therefor,including a reasonable solicitors' fees. 16. Wherever the singular or masculine is used in this Lease Agreement they shall be construed as if the plural or the feminine or the neuter has been used where the context or the party or parties hereto so require and the rest of the sentence shall be construed as if the grammatical and terminological changes thereby rendered necessary had been made and all covenants herein contained shall be construed to the several as well as joint. IN WITNESS WHEREOF the parties hereto have hereunto executed this Agreement. THE CORPORATION OF THE CITY OF NIAGARA FALLS Per: James M. Diodati, Mayor Dean Iorfida, City Clerk MARINELAND OF CANADA INC. Per: Name: John Holer Title: President it SCHEDULE "A" Those lands identified as proposed lease area immediately to the east and west of the interlocking brick walkway, also identified as the bus stop,as shown on a Surveyor's Sketch prepared by Dasha Page,O.L.S.dated July 24,2013,and bearing the number LLN:39934, which lands are intended to be illustrated in a Reference Plan following Council approval of the proposal to lease the Schedule "A"lands. -8— SCHEDULE"B" The Abutting Property Parts 1,2 and 3, Reference Plan 59R-6159, being PIN 64256-0063 (LT).