PRIVATE USE GARDEN AGREEMENT (DRAFT)
Formal agreement document outlining terms and conditions for private use garden plots in Game Nature Park.
THIS AGREEMENT dated for reference the 23 day of April, 2015
BETWEEN:
The Owners, Strata Plan 3076 14 Erskine Lane Victoria, B.C.
(hereinafter referred to as “Strata Plan 3076”) OF THE FIRST PART
AND:
Town of View Royal 45 View Royal Avenue Victoria, B.C. V9B 1A6
(hereinafter referred to as the “Town”) OF THE SECOND PART
both of whom are sometimes herein referred to as the “Parties” and each of whom is a party to this Agreement.
WHEREAS:
A. The Town owns a parcel of land known as Game Nature Park, and legally described as Lot A, Section 93, Esquimalt District, Plan 26648 Except parts in Plans VIP62666 and VIP71918 (the “Property”) which is immediately adjacent to Strata Plan 3076.
B. Strata Plan 3076 wishes to operate a private garden in a designed area of the Property which is defined on the Site Plan which is attached as “Schedule A” and which is defined as the “Designated Garden Area”.
C. The Town is prepared to allow Strata Plan 3076 the right to operate a private garden in the Designated Garden Area on the terms and conditions set out in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the premises and mutual covenants hereinafter contained, the parties agree and covenant as follows:
1. Recitals
1.1 The parties acknowledge and agree that the recitals to this Agreement are true and correct.
2. Terms of Agreement
2.1 Strata Plan 3076 may exclusively operate the private garden in the Designated Garden Area for a two year term commencing April 1, 2015 and ending March 31, 2017, subject only to the right and restrictions set out herein.
2.2 Strata Plan 3076 shall pay to the Town of fee of $20.00 per individual garden plot created in the Designated Garden Area, and such fee is payable by Strata Plan 3076 to the Town on March 31st of each year, in an amount equal to $20 for each individual plot that operated in the Designated Garden Area for all or any portion of the preceding one year period.
2.3 Strata Plan 3076 understands and agrees that only 2-8 individual garden plots shall be permitted within the Designated Garden Area, depending on the location and size of each plot.
2.4 The parties agree that the individual gardeners of Strata Plan 3076 may only access the Designated Garden Area between 8:00 a.m. and 8:00 pm. every day of the week.
2.5 The parties agree that there shall be no composting permitted within the Designated Garden Area without the prior written consent of the Town.
2.6 Either party has the right to terminate this Agreement for any reason, upon giving the other party ninety (90) days written notice of termination.
2.7 In the event that Strata Plan 3076 is in breach of any of the terms of this Agreement, then the Town shall give Strata Plan 3076 written notice of such breach, setting out the specific breach and the remedy expected. If such breach continues or remains unremedied for more than fourteen (14) days after receiving written notice from the Town of such breach, then the Town shall be permitted to terminate this Agreement immediately. In such an instance, the Town shall give written notice to Strata Plan 3076 and Strata Plan 3076 must immediately discontinue use of the Designated Garden Area and then has a further fourteen (14) days from the date of such termination notice to remove the gardens and fencing, if any, and must return the Designated Garden Area to the same condition it was in prior to its use as a private garden.
2.8 Following the end of the initial term of this Agreement as set out in paragraph 2.1, and provided that Strata Plan 3076 is not in breach of any term of this Agreement, then Strata Plan 3076 may enter into an extension of this Agreement for a mutually agreed upon length of time on the same terms and conditions as set out herein, provided however, that each and every member of Strata Plan 3076 who operates a garden within the Designated Garden Area must relinquish their use of any existing cooperative garden plots in all other cooperative gardens operated within the boundaries of the Town of View Royal, including the View Royal Park Community Garden. The extension of this Agreement shall be evidenced by both party executing a further Agreement on the same terms and conditions as this Agreement, with only the dates of the term amended. The parties may amend other provisions of this Agreement, but only by mutual agreement.
3. Responsibilities of Strata Plan 3076
3.1 Strata Plan 3076 shall, at its own expense, construct the individual plots within the Designated Garden Area, but the location of such plots must be approved by the Director of Engineering for the Town. Each plot must be no larger than 6' by 12' and Strata Plan 3076 must submit to the Director of Engineering a hand drawn plan showing the size, dimensions and location of the plot, and must not commence operating the garden plot until the written approval of the Director or Engineering has been received.
3.2 Strata Plan 3076 shall be fully responsible for the maintenance, repair and removal of the individual plots, at the expense of Strata Plan 3076. In the event that the Town is required to complete any of the work relating to the maintenance, repair or removal of the plots, then the Town shall invoice Strata Plan 3076 for such work, and Strata Plan 3076 shall pay such invoice immediately upon receipt. In the event that payment is not received within fourteen (14) days of issuance of the invoice, then the Town shall be at liberty to split the cost of the invoice equally among the registered owners of all of the individual strata lots of Strata Plan 3076 and shall add such cost to the individual tax accounts of each individual registered strata lot owner.
3.3 The parties agree that Strata Plan 3076 may install individual fencing around the Designated Garden Area or the individual plots within the Designated Garden Area at their own expense, however, such fencing must be removed by Strata Plan 3076 at the expense of Strata Plan 3076 at the termination of this Agreement, and in the event that the Town is forced to remove the fencing, then the Town shall invoice Strata Plan 3076 for the cost of such removal, and if the invoice is not paid within fourteen (14) days of issuance, then the Town shall be at liberty to split the cost of the invoice equally among all of the registered owners of all of the individual strata lots of Strata Plan 3076 and shall add such cost to the individual tax accounts of each individual registered strata lot owner.
3.4 Strata Plan 3076 shall be responsible to provide all of its own tools and equipment for the installation, operation and ultimate removal of the private gardens within the Designated Garden Area.
3.5 Strata Plan 3076 must provide all of its own water, at the sole expense of Strata Plan 3076, to be used for the private gardens.
3.6 Strata Plan 3076 must provide written proof of full liability insurance, with a minimum of $2,000,000.00 per occurrence, to the Town prior to commencing to operate the private garden, and such liability insurance must name the Town as an additional insured. Strata Plan 3076 must provide such written proof at the commencement of each year of the term, or whenever requested to provide the same by the Town.
3.7 Strata Plan 3076 shall be responsible for ensuring that individuals utilizing the Designated Garden Area do not park in any location which may block the fire lane access.
3.8 Strata Plan 3076 shall be responsible for ensuring that the Designated Garden Area is kept in a neat and tidy manner, and that no garbage or debris is left within the Designated Garden Area or on the Property.
3.9 Strata Plan 3076 has agreed that it shall be responsible for cutting back and maintaining the blackberry bushes on the Property which surround the Designated Garden Area and to keep the entire area neat and tidy, clear of bramble and blackberry bushes, and well maintained.
4. Rights of the Town
4.1 The Town shall have the right at all times to enter the Designated Garden Area for the purpose of inspecting the area, and if necessary, for the purpose of constructing, maintaining or removing the garden plots, as required by the terms of this Agreement.
5. Notices
5.1 Any notice or invoice required or permitted to be given to either party must be delivered personally, or by commercial courier, to the other party as follows, and will be deemed to be received on the date of personal delivery:
To Strata Plan 3076
Strata Plan 3076 Proline Management Ltd. 20 Burnside Rd. West Victoria BC V9A 1B3 Fax: 250 475 6442
To the Town
Chief Administrative Officer (pursuant to any provision except 3.1 herein) Town of View Royal 45 View Royal Avenue Victoria, B.C. V9B 1A6 Fax: 250-727-9551
To the Town (pursuant to paragraph 3.1 herein):
Director of Engineering Town of View Royal 45 View Royal Avenue Victoria, B.C. V9B 1A6 Fax 250-727-9551
6. Liability and Indemnity
6.1 Strata Plan 3076 shall at all times and does hereby indemnify, save harmless, release and forever discharge the Town from and against all manner of actions, causes of action, claims, debts, suits, damages, demands and promises, at law or in equity, whether known or unknown, including without limitation for injury to persons or property including death, of any person directly or indirectly arising or resulting from, or attributable to, any act, omission, negligence or default of Strata Plan 3076 in connection with or in consequence of this Agreement.
7. No Interest in Land
7.1 No part of the title in fee simple in the Property shall pass to or be vested in Strata Plan 3076 under or by virtue of this Agreement and the Town and any other permitted user may fully use and enjoy all of the remainder of the Property subject only to the rights and restrictions contained in this Agreement.
8. Amendment to this Agreement
8.1 No change or modification of this Agreement is valid unless it is in writing and signed by all parties.
9. Arbitration in the event of Dispute
9.1 Should there be a disagreement or dispute between the parties hereto with respect to this Agreement or the interpretation thereof, the same shall be referred to a single arbitrator pursuant to the Arbitration Act of British Columbia, and the determination of such arbitrator shall be final and binding upon the parties hereto.
10. General Provisions
10.1 This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, successors and assigns as the case may be.
10.2 The provisions herein constitute the entire agreement between the parties, and supersedes all previous expectations, understandings, communications, representations and agreements whether verbal or written between the parties with respect to the subject matter herein.
10.3 If any provision of this Agreement is unenforceable or invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement and such provision shall be severable from the remainder of this Agreement.
10.4 Time shall be of the essence hereof.
10.5 This Agreement shall be governed by, and construed in accordance with, the law of the Province of British Columbia.
10.6 The headings in this Agreement form no part of this Agreement and shall be deemed to have been inserted for convenience only.
10.7 The parties agree to execute such further assurances and other documents and instruments and do such further and other things as may be necessary to implement and carry out the intent of this Agreement.
IN WITNESS WHEREOF the Parties have hereunto affixed their hands and seals on the day and year first above written.
STRATA PLAN 3076 by its authorized signator(ies):
TOWN OF VIEW ROYAL by its authorized signator(ies):
Document Images
(9)
