THIS AGREEMENT made this 23rd day of April, 2001
NOW THEREFORE in consideration of the premises and mutual covenants and agreements contained in this Agreement, the parties covenant and agree as follows:
In this Agreement:
1.1 "City" means the City of Nanaimo;
1.2 "City Recreation Facilities" means:
1.3 "Commencement Date" means the day following the adoption of the Southern Community Recreation Local Service Area Amendment Bylaw, No. 1059.01, 2001 by the Board;
1.4 "Cost of Operation and Maintenance" means:
1.5 "District 68" means that portion of the Regional District included within the boundaries of the City of Nanaimo and Electoral Areas A, B, C and D;
1.6 "Electoral Areas" means that portion of the Regional District included within the boundaries of Electoral Areas A, B, C and D;
1.7 "Net Cost" means prior year actual expenditures for the Cost of Operation and Maintenance less cost recovery from fees and charges imposed for the use of City Recreation Facilities and Sports Fields;
1.8 "Participants" means the City of Nanaimo and Electoral Areas A, B, C and D of the Regional District of Nanaimo;
1.9 "Recreation Services" means recreation and community services offered at City Facilities to residents of the Electoral Areas;
1.10 "Regional District" means the Regional District of Nanaimo;
1.11 "Sports Field" means land developed for the playing of baseball, softball and soccer and other sport activities which is owned and operated by either the City or Regional District, within the Electoral Areas, and includes the following:
1.13 "Term" means the period of time from the Commencement Date to December 31, 2005.
2.1 A reference in this Agreement to:
2.2 The headings of paragraphs, articles and sections of this Agreement are for convenience of reference only, do not form part of this Agreement and are not to be used in the interpretation of this Agreement.
2.3 This Agreement is to be governed and construed in accordance with the laws of the Province of British Columbia.
2.4 If any paragraph, article or section of this Agreement is declared or held invalid for any reason, the paragraph, article or section may be severed from the Agreement without affecting the validity of the remainder of the Agreement.
3.1 The Participants covenant and agree with each other to provide Sports Field Services during the Term of the Agreement
3.2 The City of Nanaimo covenants and agrees to provide Recreation Services during the Term of the Agreement.
4.1 Cost Sharing Formula - Sports Field Services
4.2 Cost Sharing Formula - Recreation Services
4.3 Annual Budget
For the purpose of calculating annual contribution amounts under Sections 4.1(3) and 4.2(3), in each year during the Term of this Agreement, the City and the Regional District respectively, shall provide to each other, on or before September 30th, a statement of Costs of Operation and Maintenance for the year to date ending August 31st and a statement of projected amounts for the Costs of Operation and Maintenance for the year ending December 31st.
4.4 Payment Due Date
The City and the Regional District respectively, shall pay over to each other the amounts calculated under 4.1(3) and 4.2(3), on or before August 2nd in each year during the Term of this Agreement.
The cost of providing the Services under this Agreement is a debt owed to the party providing the Service.
5.0 NEW SPORTS FIELDS/CITY RECREATION FACILITIES
Where a new Sports Field is added, until actual costs are determined, the Cost of Operation and Maintenance for the year the Sports Field is to be added shall be the average Cost of Operation and Maintenance for all Sports Fields for the prior year.
6.1 The usage rate survey of City Recreation Facilities shall be:
7.1 Where a party to this Agreement (hereinafter called the "Supplying Party") provides Recreation Services and/or Sports Field Services to another party to this Agreement (herein after called the "Receiving Party"), the Receiving Party shall indemnify, defend and save harmless the Supplying Party and its elected and appointed officers, employees, agents, successors and assigns from all manner of actions, causes of action, suits, debts, losses, liabilities, costs, expenses, claims and demands whatsoever arising out of any wrongful act, omission or negligence on the part of the Supplying Party, its elected or appointed officers, employees, agents, successors and assigns arising out of the Recreation Services and/or Sports Field Services provided under this Agreement.
8.0 PAYMENT RATES
8.1 The Participants acknowledge and agree that payments under Section 4.1 and 4.2 represent a fair and reasonable reimbursement of the costs of the Sports Field Services and Recreation Services to be provided under this Agreement.
9.0 COVENANTS OF THE PARTICIPANTS
9.1 It is a condition precedent to the obligations of the Participants under this Agreement that:
9.2 The City and Regional District shall consult with each other with respect to the planning and co-ordination of future Sports Field and Recreation Facility development.
The failure at any time of either party to enforce any of the provisions of this Agreement or to require at any time performance by the other party of any such provision shall not constitute or be construed to constitute a waiver of such provision, nor in any way to affect the validity of this Agreement or any parts thereof, or the right of either party thereafter to enforce each and every provision of this Agreement.
10.2 Statutory Powers
Nothing in this Agreement is to be interpreted as affecting or restricting the exercise by the City or the Regional District of any statutory power, duty or function, which may be fully exercised as if this Agreement had not been executed by the parties.
No waiver, modification or amendment of any of the provisions of this Agreement shall be binding unless it is in writing and signed by the duly authorized representatives of both parties.
No assignment of this Agreement shall be made by either party without the written consent of the other. A party's consent to assign will not release or relieve the party from its obligations to perform all the terms, covenants and conditions that this Agreement requires a party to perform and the party requesting the assignment shall pay the other party's reasonable costs incurred in connection with the party's request for consent.
The articles, sections, subsections and paragraphs providing for the limitation of, waiver of, or protection against liability of the parties hereto shall survive termination, cancellation or expiration of this Agreement.
All notices and demands required or permitted to be given hereunder shall be in writing and may be delivered personally, sent by facsimile or may be mailed by first class, prepaid registered mail to the addresses set forth below. Any notice delivered or sent by facsimile shall be deemed to have been given and received at the time of delivery. Any notice mailed as aforesaid shall be deemed to have been given and received on the expiration of 5 business days after it was posted, addressed as follows:
Regional District of Nanaimo
6300 Hammond Bay Road
Nanaimo, B.C. V9T 6N2
Attention: General Manager, Corporate Services
City of Nanaimo
455 Wallace Street
Nanaimo, B.C. V9R 5J6
Attention: City Clerk
or to such other address or addresses as may from time to time be provided in writing by the parties hereto. If there shall be, between the time of mailing and the actual receipt of a notice, a mail strike, slow down or other labour dispute which might affect the delivery of that notice by the mails, then the notice shall only be affected if actually received by the person to whom it was mailed.
10.7 Independent Contractor
Where a party to this Agreement (hereinafter called the "Supplying Party") provides Sports Field Services to another party to this Agreement (herein after called the "Receiving Party"), the Supplying Party shall be deemed to be an independent contractor and not the agent of the Receiving Party. Any and all agents, servants or employees of the Supplying Party or other persons, while engaged in the performance of any work or services required to be performed by one of the under this Agreement, shall not be considered employees of the Receiving Party and any and all claims that may or might arise on behalf of the Supplying Party, their agents, servants or employees as a consequence of any act or omission on behalf of the Supplying Party, its agents, servants, employees or other person, shall not be the obligation or responsibility of the Receiving Party. The Receiving Party, their agents, servants or employees, respectively, shall be entitled to none of the rights, privileges or benefits of employees of the Supplying Party except as otherwise may be stated in this Agreement.
10.8 Entire Agreement
This Agreement shall constitute the entire agreement between the parties and shall supersede all prior written or unwritten negotiations, understandings and agreements.
All disputes arising out of or in connection with this Agreement, or in respect of any defined legal relationship associated therewith or derived therefrom, may at the instance of either party, be referred to a Court of competent jurisdiction or to arbitration by delivery of a Notice of Arbitration in writing. If the parties cannot agree on a choice of arbitrator then each party may appoint an arbitrator and the two arbitrators so appointed must appoint a third arbitrator failing which the third arbitrator must be appointed by a Judge of the Supreme Court of British Columbia. Arbitration will be governed by the Commercial Arbitration Act (British Columbia). The place of arbitration shall be Nanaimo, British Columbia, Canada and the costs shall be borne equally by the parties.
IN WITNESS WHEREOF the parties hereto have set their hands and seals as of the day and year first above written.
Costs of Sports Field Operation and Maintenance
Labour - includes wages and benefits;
Equipment - means all equipment involved in the maintenance or operation of Sports Fields, including lawnmowers and vehicles and includes costs of operating plus an amount for depreciation calculated in accordance with standard municipal accounting practices;
Materials - means all materials required to maintain and operate Sports Fields, including grass seed and fertilizer;
Field Houses - means change room and washroom facilities at each park and includes facility costs (cleaning, supplies, lighting, heating, etc.)
Water - means costs related to the irrigation of Sports Fields;
Electricity - for the operation of field lights at Sports Fields which are illuminated;
Fleet Maintenance - means the cost of repairing and maintaining vehicles used by parks staff at the facilities, which is reasonably attributable to operation and maintenance of Sports Fields, including depreciation calculated in accordance with standard municipal accounting practices;
Vandalism - means annual costs for removing the effects of vandalism or repairing vandalized property;
Garbage Collection - means collection of litter from Sports Fields;
Departmental Overhead - means the following administrative costs attributable to Sports Fields operation and maintenance:
Costs attributed to Sports Field Operation and Maintenance do not include the construction of structures or improvements.
Facilities - means all buildings, structures, swimming pools, arenas, play fields, etc. located at Bowen Park, Beban Park or the Nanaimo Aquatic Centre.
Equipment - means all equipment involved in the maintenance or operation of the Facilities, including lawnmowers and vehicles and includes costs of operating plus an amount for depreciation calculated in accordance with the City's usual accounting practices;
Materials - means all materials required to maintain and operate the Facilities;
Utilities - means all utility costs required to operate the Facilities including, but not limited to: telephones, water fees, sewer fees, electricity, gas and oil.
Building Maintenance - means all costs that are required to maintain the Facilities in good operating condition, e.g. painting, flooring, HVAC, plumbing and electrical repairs, security, janitorial supplies;
Fleet Maintenance - means the cost of repairing and maintaining vehicles used by parks staff at the facilities, which is reasonably attributable to operation and maintenance of City Recreation Facilities, including depreciation calculated in accordance with the City's usual accounting practices;
Vandalism - means costs for removing the effects of vandalism or repairing vandalized property;
Garbage Collection - means collection of garbage from the Facilities;
Program Costs - means those costs incurred for the provision of recreational programs to the public at the Facilities. Costs may include contract staff and recreation supplies.
Departmental Overhead - means the following administrative costs of the Parks and Recreation Service of the City of Nanaimo attributable to the operation and maintenance of the Facilities;
Costs of Sports Field Operation and Maintenance do not include construction of structures or improvements.