Services Agreement

DISTRICT 68 SPORTSFIELD & RECREATION SERVICES AGREEMENT

THIS AGREEMENT made this 23rd day of April, 2001

BETWEEN:

AND:

W H E R E A S:

• By Agreement dated the 7th day of February, 1997 between the City and the Regional District, the City has operated recreational programs on behalf of members of the general public residing within the Regional District of Nanaimo outside of the boundaries of the City of Nanaimo and within Electoral Areas A, C and D;
• The Regional District wishes the City to continue providing access to Sports Fields and recreational services to members of the public residing outside of the boundaries of the City of Nanaimo and within Electoral Areas A, B, C and D;
• To pay for the provision of such service, the Regional District has, by Southern Community Recreation Local Service Area Bylaw No. 1059, 1996, to be amended by Southern Community Recreation Local Service Area Amendment Bylaw No. 1059.01, 2001, established a service for pleasure, recreation and other community use in which Electoral Areas A, B, C and D are participating areas and under which the Regional District operates Rollo McClay Park within Electoral Area B and Extension Sports Field within Electoral Area C;
• The Regional District and the City wish to continue to permit the Regional District to have an ongoing voice in recreation service provision through, among other things, participation by representatives of the Regional District on a Parks and Recreation Commission established by the City;

NOW THEREFORE in consideration of the premises and mutual covenants and agreements contained in this Agreement, the parties covenant and agree as follows:

1.0 DEFINITIONS

In this Agreement:

1.1 "City" means the City of Nanaimo;

1.2 "City Recreation Facilities" means:

• Beban Park;
• Bowen Park;
• Civic Arena;
• Nanaimo Aquatic Centre.

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:

• in relation to Sports Fields, the Net Costs for Sports Fields for the items set out in Schedule "A";
• in relation to City Recreation Facilities, the Net Costs for City Recreation Facilities for the items set out in Schedule "B"; but does not include the cost of capital or debt;

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:

Sports Fields

City of Nanaimo: Beban Park Bowen West McGirr Park Trofton Park May Bennett Park Caledonia Park Robins Park Gyro Park Harewood Park Pleasant Valley Park; and any Sports Field within the City or Regional District which meets the criteria to be considered a Sports Field under Section 5.0;

Regional District of Nanaimo: Rollo McClay (EA 'B') Extension Sports Field (EA 'C')

1.12 "Sports Field Services" means:

1. operation and maintenance of Sports Fields in District 68; and
2. permitting access to and use of Sports Fields by residents of the Participants to this Agreement.

1.13 "Term" means the period of time from the Commencement Date to December 31, 2005.

2.0 INTERPRETATION

2.1 A reference in this Agreement to:

1. the singular includes the plural and the plural includes the singular, unless the context otherwise requires;
2. the masculine, feminine or neuter includes a reference to the masculine, feminine or neuter, unless the context otherwise requires.

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.

3.0 SERVICES

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.

4.0 PAYMENT

4.1 Cost Sharing Formula - Sports Field Services

1. In consideration of the Sports Field Services to be provided under this Agreement, the following amounts will be contributed by each participant in 2001 towards the Cost of Operation and Maintenance of Sports Fields:
    

   Cost of Operation

   Participant	'Status Quo' Cost	New Distribution	%
   City of Nanaimo	$882,950	$764,958	85.0
   Electoral Area 'A'	--	$69,295	7.7
   Electoral Area 'B'	$8,000	$3,600	0.4
   Electoral Area 'C'	$9,000	$7,200	0.8
   Electoral Area 'D'	--	$54,897	6.1

   
   
2. Payment will be made by the Regional District to the City for 2001 in the following amount:
   

   Payment amount

   Total amount contributed by Electoral Areas	$134,992
   Less: Revenue required to meet the Cost of Operation and Maintenance of Sports Fields in the Electoral Areas	($17,000)
   Net payment due to the City of Nanaimo	$117,993

   
    
3. Subsequent to 2001, payments between the parties shall be made in accordance with the following:
   1. Beginning in 2001, the usage rate of Nanaimo and each Electoral Area shall be confirmed every three years through a statistically valid survey undertaken by the City. The survey shall use team registration statistics to identify the number of individuals from Nanaimo and each Electoral Area (using street addresses), that are registered on sports and athletic teams, which utilize District 68 Sports Fields. The usage rate shall then be applied to determine the percentage share of the City and each Electoral Area towards the overall Cost of Operation and Maintenance. Percentage share shall be based on the proportion of each party's usage rate to the combined overall Participant usage rate.
   2. To determine the annual contribution of Nanaimo and each Electoral Area, the Cost of Operation and Maintenance for Sports Fields shall be multiplied by the percentage share confirmed in 4.1(3)(a):
       

      Total amount contributed by Electoral Areas

      Total amount contributed by Electoral Areas	$xxx,xxx
      (Percentage Share x Cost of Operation & Maintenance) Less: Revenue required to meet the Cost of Operation and Maintenance of Sports Fields within the Electoral Areas	($xx,xxx)
      Net payment due to / from the Regional District	$xxx,xxx

      
      

4.2 Cost Sharing Formula - Recreation Services

1. In consideration of the Recreation Services to be provided under this Agreement, the following amounts will be contributed by each participant in 2001 towards the Cost of Operation and Maintenance of Recreation Services:
   

   Cost Sharing Formula

   Participant	'Status Quo' Cost	New Distribution	%
   City of Nanaimo	$4,771,600	$4,374,198	91.7
   Electoral Area 'A'	--	$115,793	2.4
   Electoral Area 'B'	--	$85,224	1.8
   Electoral Area 'C'	--	$14,822	0.3
   Electoral Area 'D'	--	$181,564	3.8

   
    
2. Payment will be made by the Regional District to the City for 2001 in the following amount:
    

   Total amounts contributed by Electoral Areas

   $397,403

   
    
3. Subsequent to 2001, payments between the parties shall be made in accordance with the following:
   1. Beginning in 2001, the usage rate of Nanaimo and each Electoral Area shall be confirmed every three years through a statistically valid survey undertaken by the Regional District. The survey shall monitor the usage of Nanaimo and Electoral Area residents (using street addresses), based on the number of public sessions attended at City Recreation Facilities. The usage rate shall then be applied to determine the percentage share of each Municipality and Electoral Area towards the overall Cost of Operation and Maintenance. Percentage share shall be based on the proportion of each party's usage rate to the combined overall Participant usage rate.
   2. To determine the annual contribution of Nanaimo and each Electoral Area, the Cost of Operation and Maintenance for Recreation Services shall be multiplied by the percentage share confirmed in 4.2(3)(a).

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.

4.5 Debt

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

1. The Participants shall mutually agree by November 30th of each year, which Sports Fields shall be included in the inventory of Sports Fields, which agreement shall not be unreasonably withheld.

   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.

2. Where a new City Recreation Facility is constructed, it shall not form part of this Agreement until a survey conducted pursuant to Section 4.2(3)(a) is undertaken which demonstrates that 10% or more of the population from the Electoral Areas is attending public sessions at the facility.

6.0 SURVEY

6.1 The usage rate survey of City Recreation Facilities shall be:

1. conducted by the Regional District every three (3) years, with the first survey to be completed in 2001 for use in 2002, 2003 and 2004 and the second survey to be completed in 2004 for use in 2005, 2006 and 2007;
2. based on attendance at public sessions; and
3. used to determine the City and each Electoral Area's percentage share, based on street address, of the Cost of Operation and Maintenance of Recreation Services for the three years following the year of the survey.

>7.0 INDEMNITY

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:

• during the Term, the City shall maintain a Parks and Recreation Commission established by bylaw, with a composition, procedures, duties and powers as outlined in Schedule "C"; and
• user or other rates not be charged, either directly or indirectly, for the use of Sports Fields or Recreation Services to residents of the City or Regional District in excess of rates payable by or on terms other than those offered to residents of the City or Regional District.

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.

10.0 MISCELLANEOUS

10.1 Waivers
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.

10.3 Modification
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.

10.4 Assignment
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.

10.5 Survival
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.

10.6 Notice
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.

10.9 Arbitration
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.

Witness

The Corporate Seal of the REGIONAL DISTRICT OF NANAIMO was hereto affixed in the presence of its authorized signatories: "George Holme" ------------------------------------------ Chair "Carol Mason" ------------------------------------------ Officer Responsible for Corporate Administration	}	Seal
The Corporate Seal of the CITY OF NANAIMO was hereto affixed in the presence of its authorized signatories: "Gary Korpan" ------------------------------------------ Mayor "Jim Bowden" ------------------------------------------ Officer Responsible for Corporate Administration	}	Seal

SCHEDULE "A"

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:

• salaries of parks maintenance administrative staff
• staff training
• staff meetings
• costs related to operation of parks works yard
• other miscellaneous costs incidental to Sports Fields (e.g. photocopying, office supplies, office equipment rental, advertising, bank charges, etc.)

Costs attributed to Sports Field Operation and Maintenance do not include the construction of structures or improvements.

SCHEDULE "B"

 

Beban Park, Bowen Park, Civic Arena and Nanaimo Aquatic Centre Costs of Operation and Maintenance

Facilities - means all buildings, structures, swimming pools, arenas, play fields, etc. located at Bowen Park, Beban Park or the Nanaimo Aquatic Centre.

Labour - includes wages and benefits;

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;

• Salaries of parks and recreation administrative staff
• Staff training
• Staff meetings
• Costs related to the operation of the parks works yard
• Other miscellaneous costs incidental to the City Recreation Facilities Service (e.g. photocopying, office supplies, office equipment rental, advertising, bank charges, etc.)

Costs of Sports Field Operation and Maintenance do not include construction of structures or improvements.