HomeMy WebLinkAbout23 082 The Kincardine Farmers Market Agreement (2023) By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2023 – 082
Being a By-law to Authorize an Agreement with The Kincardine Farmers
Market Association for the Rental of Space at Connaught Park
Whereas Section 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended, provide that the powers of a municipality under this or any other Act shall
be interpreted broadly so as to confer broad authority on the municipality to enable
the municipality to govern its affairs as it considers appropriate and to enhance the
municipality’s ability to respond to municipal issues and has the capacity, rights,
powers and privileges of a natural person for the purpose of exercising its authority
under this or any other Act; and
Whereas the Corporation of The Municipality owns Connaught Park located at 133
Broadway Street, Municipality of Kincardine; and
Whereas Council of The Corporation of the Municipality of Kincardine deems it
advisable to enter into an Agreement with The Kincardine Farmers Market
Association for the rental of space to operate a Farmer’s Market; now therefore be
it
Resolved that the Council of The Corporation of the Municipality of Kincardine
Enacts as follows:
1. That The Corporation of the Municipality of Kincardine enter into an
Agreement with The Kincardine Farmers Market Association, for the rental
of space at Connaught Park, 133 Broadway Street, Municipality of
Kincardine, in accordance with the terms and conditions outlined in the
Agreement attached hereto as Schedule ‘A’ and forming part of this By-law.
2. That the Mayor and CAO be authorized to sign and execute, on behalf of
The Corporation of the Municipality of Kincardine, the Agreement with The
Kincardine Farmers Market Association.
3. That this By-law shall come into full force and effect upon its final passage .
4. That this By-law be cited as “The Kincardine Farmers Market Agreement
(2023) By-law”.
Read a First and Second Time this 15th day of May, 2023.
Read a Third Time and Finally Passed this 15th day of May, 2023.
Mayor Clerk
LEASE AGREEMENT
THIS LEASE AGREEMENT(this "Agreement") made this 15th day of May , 2023.
(the "Effective Date")
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(the "Landlord")
-AND—
THE KINCARDINE FARMERS MARKET ASSOCIATION
(the "Tenant")
(each a "Party", and together, the "Parties")
WHEREAS the Landlord is the owner of Connaught Park, which is municipally known as 133
Broadway Street (the "Property"), and wishes to lease the space marked in red as more
particularly described in Schedule A(the "Premises") and subject to the terms of this Agreement;
AND WHEREAS the Tenant operates a farmer's market (the "Farmer's Market") and is desirous
of entering into this Agreement with the Landlord for the use of the Premises;
NOW THEREFORE in consideration of the sum of $1.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree, and covenant as follows:
1. TERMS OF LEASE
Premises
1.1. The Tenant agrees to rent and the Landlord agrees to lease the Premises.
Term
1.2. The Tenant shall have the exclusive right to possess and use the Premises for five (5)
years commencing on May 20, 2023, and ending on October 14, 2028 (the "Term").
1.3. The Parties agree that the Tenant can operate a Farmer's Market (the "Permitted
Use") from the Saturday of the weekend of the Victoria Day Statutory Holiday in May
to the second Saturday in October, inclusive (the "Operating Months").
Renewal
1.4. Provided that the Tenant is not in breach of any of provisions of this Agreement, the
Tenant shall have the option to renew the Term for an additional five (5) years
("Renewal Term") upon giving written notice to the Landlord not less than three (3)
months' prior to the expiration of the Term. The Renewal Term shall be on the same
terms and conditions as set forth herein, unless otherwise mutually agreed upon by
the parties in writing.
Right of Termination
1.5. Either Party shall have the right to terminate this Agreement, without penalty, upon
giving written notice to the other Party not less than sixty (60) days prior.
2. COVENANTS OF THE TENANT
The Tenant hereby agrees to comply with all of the covenants set out below:
Pay Rent
2.1. The Tenant shall use the Premises at no cost.
Use of Premises
2.2. The Landlord hereby grants and sets over to the Tenant the use of the Premises on
and subject to the terms and conditions of this Agreement solely for the Permitted
Use.
2.3. The Tenant agrees that booths for vendors can only be set up on the Premises. The
vendors' access to the Premises will be granted at 8:OOAM for such vendors to set up.
2.4. The sound or noise from or created by any radio or phonograph or any musical or
sound producing instrument of whatsoever kind will not be permitted before 9:OOAM.
All vendors are required to have their booths cleared from the Premises no later than
1:OOPM.
2.5. The Tenant agrees that no booths for vendors can be established in other areas within
the Municipality of Kincardine without prior approval from the Landlord.
2.6. The Tenant shall be allowed to rent spaces for up to fifteen (15) vendors.
2.7. The Tenant agrees that if it should come to their knowledge that any vendor
participating in the Tenant's activities is selling any illegal goods or is otherwise
carrying on any illegal activities, they will immediately report such offences to the
legal authorities and the vendor shall no longer be permitted to occupy the Premises
indefinitely.
2.8. Except as expressly authorized in this Agreement, the Tenant shall not do or permit
to be done at the Premises anything, which may:
(a) Constitute a nuisance;
(b) Cause damage to the Premises;
(c) Cause injury or annoyance to occupants of neighbouring premises;
(d) Make void or voidable any insurance upon the Premises;
(e) Constitute a breach of any by-law, statute, order or regulation of any
municipal, provincial, federal and/or other authority relating to the Premises;
(f) Obstruct the general public's use of Connaught Park adjoining the Premises
hereby leased.
Maintenance
2.9. The Tenant is responsible for maintaining the Premises in a neat, clean and orderly
condition at all times. Any debris cardboard, recyclables or garbage in the Premises
must be promptly removed by the Tenant on a daily basis, unless alternative
arrangements have been expressly agreed upon by the Landlord. It is the Tenant's
responsibility to ensure that the Premises remain free of clutter, and that all waste
and recyclables are disposed of in an appropriate manner. Failure to comply with this
clause may result in additional cleaning or disposal fees, which shall be borne by the
Tenant.
Return of Premises on Termination
2.10. At the end of the Term, unless otherwise agreed upon in writing by the Landlord, the
Tenant shall peacefully surrender the Premises to the Landlord in a good and
substantial condition, except for reasonable wear and tear. The Tenant shall be
responsible for any repairs or restorations required due to damage caused by the
Tenant, their vendors, invitees, or anyone else on the Premises with the Tenant's
permission. The Tenant shall return all keys and other access devices to the Premises
to the Landlord on or before the expiration of the Term.
Comply with all Laws
2.11. The Tenant shall comply with the requirements of all applicable laws, by-laws,
regulations, and orders at any time in force during the term hereof and affecting the
condition, equipment, maintenance, use or occupation of the Premises.
Indemnity
2.12. The Tenant shall defend, indemnify and save harmless the Landlord, its elected
officials, officers, employees and agents from and against any and all claims of any
nature, actions, causes of action, losses, expenses, fines, costs (including legal costs
and other professional fees), interest or damages of every nature and kind
whatsoever, including but not limited to bodily injury, sickness, disease or death or to
damage to or destruction of tangible property, including loss of revenue or incurred
expense resulting from disruption of service, arising out of or allegedly attributable to
the negligence, acts, errors, omissions, misfeasance, nonfeasance, fraud or willful
misconduct of the Tenant, its directors, officers, employees, agents, contractors and
subcontractors, or any of them, in connection with or in any way related to the
delivery or performance of this Agreement. This indemnity shall be in addition to and
not in lieu of any insurance to be provided by the Tenant in accordance with this
Agreement, and shall survive the expiration or earlier termination of this Agreement.
2.13. The Tenant agrees to defend, indemnify and save harmless the Landlord from and
against any and all claims of any nature, actions, causes of action, losses, expenses,
fines, costs (including legal costs and other professional fees), interest or damages of
every nature and kind whatsoever arising out of or related to the Tenant's status with
WSIB.This indemnity shall be in addition to and not in lieu of any proof of WSIB status
and compliance to be provided by the Tenant in accordance with this this Agreement,
and shall survive the expiration or earlier termination of this Agreement.
Insurance
2.14. The Tenant shall put in effect and maintain in its name, at its expense, all the
necessary insurance that would be considered appropriate for a prudent tenant
undertaking this type of operation for the period during which the Agreement is in
effect with insurers acceptable to the Landlord, including:
1. All Risks Property Insurance: All Risks (including sewer damage, flood and
earthquake) property insurance in an amount equal to the full replacement
cost of property of every description and kind owned by the Tenant or for
which the Tenant is legally responsible, and which is located on or about the
Premises, including, without limitation, anything in the nature of a leasehold
improvement.
2. Commercial General Liability Insurance: The Tenant shall, at their expense
obtain and keep in force during the term of the Agreement, Commercial
General Liability Insurance satisfactory to the Landlord and underwritten by
an insurer licensed to conduct business in the Province of Ontario. The policy
shall provide coverage for Bodily Injury, Property Damage and Personal Injury
and shall include but not be limited to:
(a) A limit of liability of not less than $2,000,000/occurrence with an
aggregate of not less than $2,000,000
(b) Add the Landlord as an additional insured with respect to the
operations of the Named Insured
(c) The policy shall contain a provision for cross liability and severability
of interest in respect of the Named Insured
(d) Non-owned automobile coverage with a limit not less than
$2,000,000 and shall include contractual non-owned coverage (SEF
96)
(e) Products and completed operations coverage
(f) Contractual Liability
(g) Hostile fire
(h) The policy shall provide thirty (30) days' prior notice of cancellation.
3. Tenant's Legal Liability Insurance: Tenant's legal liability insurance for the
actual cash value of the building and structures on the Premises, including loss
of use thereof.
4. Each policy will provide that the insurer will not have any right of subrogation
against the Landlord on account of any loss or damage covered by such
insurance or on account of payments made to discharge claims against or
liabilities of the Landlord or Tenant covered by such insurance. The cost or
premium for each and every such policy will be paid by the Tenant.
5. Primary Coverage: The Tenant's insurance shall be primary coverage and not
additional to and shall not seek contribution from any other insurance policies
available to the Landlord.
6. Certificate of Insurance: The Tenant shall provide a Certificate of Insurance
evidencing coverage in force at least ten (10) days' prior to the
commencement of the Term and at any other time as reasonably requested
by the Landlord.
7. The Landlord at its sole discretion may in writing change the insurance
required under this Agreement including, but not limited to, the limit of
insurance. The revised insurance requirements will come into effect upon the
next renewal date of the Tenant's existing policy.
Increase of Landlord Premiums
2.15. If the occupancy of the Premises, the conduct of business in the Premises, or any acts
or omissions of the Tenant in the Premises or any part thereof, causes or results in
any increase in premiums for the insurance carried from time to time by the Landlord
with respect to the Premises, the Tenant will pay such increase in premiums.
Damages
2.16. The Tenant shall not do or permit any waste, damage, or injury to the Premises or the
fixtures and equipment thereof and shall take every reasonable precaution to protect
the Premises from danger of fire, vandalism, water damage or the elements.
2.17. Idling of Vehicles is prohibited to prevent unnecessary pollution and disturbance
caused to neighbouring residents.The Tenant will inform its vendors and invitees that
idling of Vehicles is prohibited.
Insolvency or Abandonment
2.18. If the Tenant makes assignment for the benefit of creditors or takes the benefit of any
Act for bankrupt or insolvent debtors, or if a receiving order is made against the
Tenant, or an order is made for the winding up of the Tenant, or any insurance policy
is cancelled or not renewed by reason of the use or occupation of the Premises or by
reason of non-payment of premiums, or if the Premises shall become vacant for a
period of thirty (30) consecutive days, or be used by any other persons than such as
are entitled to use them under the terms of this Agreement, then the Landlord may
re-enter and take possession of the Premises and, upon immediate notice, terminate
this Agreement.
Remedies of the Landlord
2.19. If the Tenant fails to perform or observe any covenants herein, which failure
continues for fifteen (15) days after the Tenant's receipt of written notice thereof,
the Landlord shall have the following remedies, which are cumulative and not in
the alternative and which are without prejudice to any other rights or remedies it
may have:
(a) The Landlord may enter the Premises and perform the Tenant's obligation
on behalf of the Tenant, without liability for any loss or damage to the
Tenant's goods, chattels or business caused in so doing. Any reasonable
expenses incurred by the Landlord thereby shall be paid by the Tenant
forthwith and shall be recoverable in the same manner as rent; and
(b) The Landlord may by written notice terminate this Agreement, in which case
rent and any other payments for which the Tenant is liable shall be
apportioned and paid in full to the date of termination, together with the
expenses of the Landlord attributable to the termination, and the Tenant
shall immediately deliver up possession of the Premises.
3. COVENANTS OF THE LANDLORD
The Landlord hereby agrees to the covenants as set out below:
Quiet Enjoyment
3.1. Provided the Tenant performs all its covenants in this Agreement, the Tenant shall
have quiet enjoyment of the Premises.
Insurance
3.2. The Landlord shall provide and maintain insurance on the Premises against loss,
damage or destruction caused by fire and extended perils under a standard extended
form of fire insurance policy in such amounts and on such terms and conditions as
would be carried by a prudent owner of a similar building, having regard to the size,
age and location of the Premises. The amount of insurance to be obtained shall be
determined at the sole discretion of the Landlord. The Landlord may maintain such
other insurance in respect of the Premises and its operation and management as the
Landlord determines, acting reasonably.The Tenant shall not be an insured under the
policies with respect to the Landlord's insurance, nor shall it be deemed to have any
insurable interest in the property covered by such policies, or any other right or
interest in such policies or their proceeds.
Damage or Destruction
3.3. If the Premises or any portion thereof are damaged or destroyed by fire or by other
casualty, the rent shall abate in proportion to the area of that portion of the Premises
which, in the opinion of the Landlord's architect or professional engineer, is thereby
rendered unfit for the purposes of the Tenant until the Premises are repaired or
rebuilt to the Landlord's satisfaction, and the Landlord shall repair or rebuild the
Premises. Rent shall recommence to be payable one(1)day after the Landlord notifies
the Tenant that the Premises are repaired or rebuilt; provided, however, that the
Landlord and tenant's right of termination in section 1.6 continues to apply and either
party may terminate this Agreement,without penalty, upon giving the other party not
less than sixty (60) days' notice in writing.
Repairs/Maintenance
3.4. The Landlord agrees to prepare the Premises for the Tenant prior to the start of each
Operating Months to ensure that the grounds are maintained to a safe standard
acceptable to and agreed upon by both the Tenant and the Landlord.
3.5. The Landlord shall at all times and at its own cost and expense maintain and repair
the Premises to ensure that they are kept in a condition similar to when they were
first built or renovated.
3.6. The Landlord shall give the Tenant at least five (5) business days' prior notice of any
repairs or replacements to, or which would otherwise affect the normal conduct of
any business operations in, the Premises (except in the case of an emergency posing
imminent risk of material harm to persons or property, in which event the Landlord
shall only be required to give such notice as is reasonable under the circumstances).
3.7. If, in the Tenant's reasonable judgment, the Landlord's repairs would materially
interfere with or disrupt the normal conduct of any business operations in the
Premises, the Landlord shall perform such repairs only after the regular hours of
operation of Tenant. The Landlord shall take such measures in this regard as are
reasonable in its opinion to minimize disruption to the Tenant's activities but shall not
be responsible for loss or harm occasioned thereby.
4. GENERAL PROVISIONS
Notices
4.1. The Landlord's representative for administration of this Agreement and all decisions
related thereto is set forth herein. All notice given or required to be given under
this Agreement shall be in writing, signed by the party giving notice and personally
delivered or transmitted by facsimile transmission or by electronic transmission:
to the Landlord at:
The Corporation of the Municipality of Kincardine
ATTN: Director of Community Services (or designate)
1475 Concession 5, RR#5
Kincardine, ON N2Z 2X6
(519) 396-3468
..� �WI�-�n✓sku�� ��c:a��: u
and to the Tenant at:
Kincardine Farmers Market Association
ATTN: Manager of KFSM
985 Concession 9,
Kincardine, ON N2Z 2X6
Any notice or document so given shall be deemed to have been received on the date of
personal delivery or electronic transmission or on the next business day if transmitted by
facsimile transmission.Any party mayfrom time to time by notice given as provided above
change its address for the purposes of this clause.
Assignment or Subletting
4.2. The Tenant shall not be entitled to assign this Agreement or sublet the whole or any
part of the Premises to another party without the prior written consent of the
Landlord and without the assignee and/or subletter agreeing in writing to be bound
by the terms of this Agreement.The Tenant hereby waives and renounces the benefit
of any present orfuture act of the Legislature of Ontario which would allow the Tenant
to assign or sublet this Agreement without the written consent of the Landlord.
Severability
4.3. If any clause or parts thereof in this Agreement are determined to be unenforceable,
they shall be considered separate and severable from the Agreement and the
remaining provisions of the Agreement shall remain in full force and effect.
Successors
4.4. This Agreement shall be binding upon and enure to the benefit of the parties hereto
and their heirs, successors and permitted assigns (as limited by the provisions of this
Agreement).
Remedies Cumulative
4.5. Notwithstanding any other provision of this Agreement, the Landlord may from time
to time resort to any or all of the rights and remedies available to it in the event of
any default hereunder by the Tenant, either by any provision of this Agreement, by
statute, or common law, all of which rights and remedies are intended to be
cumulative and not alternative. The express provisions contained in this Agreement
as to certain rights and remedies are not to be interpreted as excluding any other or
additional rights and remedies available to the Landlord by statute or common law.
Effect of Waiver or Forbearance
4.6. No waiver by any party of any breach by any other party of any of its covenants,
agreements or obligations contained in this Agreement shall be or be deemed to be a
waiver of any subsequent breach thereof or the breach of any other covenants,
agreements or obligations, nor shall any forbearance by any party to seek a remedy
for any breach by any other party be a waiver by the party so forbearing of its rights
and remedies with respect to such breach or any subsequent breach.The subsequent
acceptance of Rent by the Landlord shall not be deemed a waiver of any preceding
breach by the Tenant of any term, covenant or condition regardless of the Landlord's
knowledge of such preceding breach at the time of the acceptance of such Rent. All
Rent and other charges payable by the Tenant to the Landlord hereunder shall be paid
without any deduction, set-off or abatement whatsoever, and the Tenant waives the
benefit of any statutory or other right in respect of abatement or set-off in its favour
at the time hereof or at any future time.
Entire Agreement
4.7. There are no covenants, representations, warranties, agreements or other conditions
expressed or implied, collateral or otherwise, forming part of or in any way affecting
or relating to this Agreement, save as expressly set out or incorporated by reference
herein, and this Agreement constitutes the entire agreement duly executed by the
parties, and no amendment, variation or change to this Agreement shall be binding
unless the same shall be in writing and signed by the parties.
Governing Law
4.8. This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein. The parties agree
that any disputes arising under or in connection with this Agreement shall be resolved
by the courts of the Province of Ontario, and the parties hereby submit to the
exclusive jurisdiction of those courts.
Amendment
4.9. This Agreement may only be amended by written instrument executed by both
parties.
Counterparts
4.10. The parties may execute this Agreement in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
agreement.
Electronic Signature
4.11. The parties agree that electronic signatures may be used to execute this Agreement
and any amendments to this Agreement, and that such electronic signatures shall
have the same legal effect as original signatures.
[remainder of the page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF the parties hereto have executed this indenture by their personal hands
or by the hands of their proper signing officers duly authorized in that regard as at the Effective
Date.
KINCARDINE FARMERS
MARKET ASSOCIATION
Susie Stoeeklilllllllllllll�l' "�''°II'°'
Ier ed wifh Consignd Cloud(zo23/os/z9) IIIIIIII'ml Iml'liil
Slg ify with ve riflamm or Ado be Reader.
Susie Stoeckli, Manager
I have the authority to bind the Tenant.
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Kenneth Cram
Signed with Consign0 Cloud(2023/05 9)
Verify with verifio—m or Adobe Reader. IIII
Kenneth Craig, Mayor
]!Ilene Bellchamber-Glazier
llium lio dll umlu
Signed with Consign0 Cloud(2023/05/30)
Verify with verifio—m or Adobe Reader.
Jillene Bel lchamber-Glazier, CAO
We have the authority to bind the Landlord.
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