HomeMy WebLinkAboutKIN 98 055 Lease-Fisher/Oceans
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THE CORPORATION OF THE TOWN OF KINCARDINE
BY-LAW
BY-LAW NUMBER 1998 - 55
OF THE CORPORATION OF
THE TOWN OF KINCARDINE
A BYLAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT
WITH THE DEPARTMENT OF FISHERIES AND OCEANS, SMALL
CRAFT HARBOURS BRANCH
WHEREAS the Council for the Corporation of The Town of Kincardine deems it
advisable to enter into a lease agreement with the Government of Canada;
NOW THEREFORE the Council for The Corporation of The Town of Kincardine
ENACTS as follows:
1. That The Corporation of the Town of Kincardine enter into and agreement with
the Government of Canada, Department of Fisheries and Oceans, Small Craft
Harbours Branch, to lease those lands covered by the waters of Kincardine
harbour.
2.
That the mayor and clerk be authorized to sign, on behalf of The Corporation of
The Town of Kincardine, the agreement with the Government of Canada,
Department of Fisheries and Oceans, Small Craft Harbours Branch to which is
attached to this by-law and to affix the Town's Corporate Seal as and when
required.
3. This by-law shall come into full force and effect upon its final passage.
4. This by-law may be cited as the "Small Craft Harbours Lease Agreement By-
Law" .
READ a FIRST, SECOND and THIRD time and FINALLY PASSED this 17th day of
September, 1998.
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Fisheries
and Oceans
Pêches
et Océans
Small Craft Harbours
Central and Arctic Region
Ports pour petite bateaux
Région du Centre et
du I'Arctique
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8.P. ¡¡eJBB
Burlington (Ontario)
b."~ I.,é
Bg-:, Lahul III ii<1utl
P.~. Eh... DOM
Burlington, Ontario
Li'A 1',f:!
P.O. Box 85120
3027 Harvester Road
Burlington, Ontario
L7R 4K3
(905) 639-5377
September 29, 1998.
Ms. Rosaline M. Graham
Clerk
Corporation of the Town of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z 1Z9
Dear Ms. Graham:
re: Management Agreement 9809 00 001
Small Craft Harbours' facilities
Kincardine. Ontario
Your file: 713-5mall Craft Harbours
Your ffle Volre reference
Our fHe Notre refèrence
5882-70/K274
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Thank you for your letter of September 25. 1998 with enclosures, including
your cheque in the amount of $799.32.
Enclosed is the Duplicate Original of the above-noted Agreement, duly
executed on behalf of the Minister, for your retention.
Yours truly,
~ß·ak6.
Fred H. Shipley
Chief, Regional Property and Operations
Small Craft Harbours Branch
Central and Arctic Region
Ene.
Canada
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DescriDtion
Habendum
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Reddendum
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THIS AGREEIIEffT made thi s 28th day of September.
One thousand nine hundred and ninety-eight;
BET WEE N -
HER MAJESTY THE QUEEN, represented herein
by the Minister of Fisheries and Oceans
(herei nafter called "the Mi ni ster"),
OF THE FIRST PART;
-and-
THE CORPORATION OF THE TOWN OF KINCARDINE.
Province of Ontario
(herei nafter called "the Agent"),
OF THE SECOND PART;
WITNESSETH that the Mi ni ster, in consi derati on of the rents,
covenants, provisoes and conditions hereinafter contained, hereby leases unto
the Agent:-
ALL AND SINGULAR those certain parcels or tracts of land and land
covered by the waters of Kincardine Harbour, TOGETHER WITH the breakwaters,
harbour basin walls and other marine-related facilities located thereon
(hereinafter referred to as "the said premises") situate, lying and being in
the Town of Kincardine in the County of Bruce and Province of Ontario, being
more particularly shown outlined in red on the Plan hereto annexed and
designated Schedule "A".
TO HAVE AND TO HOLD the said premises unto the Agent from and after
the fifteenth day of September, One thousand nine hundred and ninety-eight for
a term or period of three (3) years and then fully to be complete and ended.
YIELDING AND PAYING therefor, during the currency of this
Agreement, unto the Minister, to the Receiver General of Canada, in lawful
money of Canada, the following rent or sum, namely:-
(a) FIVE HUNDRED DOLLARS ($500.00) per annum, payable each year in
advance, or
(b) TWENTY PER CENT (20%) of all gross revenue derived by the Agent
from the management and operation of the said premises, whichever
is the greater amount, and the difference between the $500.00 paid
in advance and the 20% of gross revenue is payable within sixty
days of the end of each agreement-year.
L::
pretation
Purpose
.
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, 2.
IN THIS agreement;
(i)
"Minister" means the Minister of Fisheries and Oceans and any person
he has delegated to act on his behalf.
(ii)
"Regional Director" means the Regional Director of Small Craft
Harbours Branch of the Department of Fisheries and Oceans and any
person he has delegated to act on his behalf.
It is agreed by and between the said parties hereto that these
Presents are made and executed upon and subject to the covenants, provisoes,
conditions and reservations hereinafter set forth and contained, namely:
1.
a) The Agent shall use and occupy the said premises and carry out
the management and operati on of the sai d premi ses in accordance with
the Fishing and Recreational Harbours Act and the Fishing and
Recreational Harbours Regulations as amended from time to time, or
any other applicable act or regulations enacted or made during the
currency of this Agreement.
b) Nothing in Clause No, 1a) hereof, shall relieve the Minister
from discharging any of his duties under the said Fishing and
Recreational Harbours Act and the said Fishing and Recreational
Harbours Regulations.
c) That the Minister shall supply to the Agent, one copy of the
said Act and Regulations, as amended from time to time.
To Pav Rent 2. That the Agent will pay all annual rental fees herein reserved at
the time and in the manner in these Presents set forth. without any abatement
or deduction whatever.
Taxes 3. That the Agent will payor cause to be paid all rates, taxes and
assessments, of whatsoever descri pti on, that may at any ti me duri ng the
existence of these Presents be imposed, or become due and payable upon, or in
respect of the said premises.
COIIPliance
with Law
"UbliC Use
Access
Assi!mment
.
4. The Agent shall in all respects abide by and comply with all rules,
regulations and by-laws of municipalities and other governing bodies, in any
manner affecting the said premises,
5. Subject to Clause No. 19 hereof, the Agent shall not interfere with
the public use of the said premises during the currency of this Agreement; it
being expressly understood and agreed, however, that the Agent may refuse the
use of the said premises to any vessel on which tolls and dues are outstanding
and the Agent may take all lawful action through Small Debts Court or otherwise
to obtain payment of outstanding or overdue accounts.
6.
a) That the Minister, his servants or agents shall, at all times
and for the purpose of inspecting the said premises, have full and
free access to any and every part of the said premises.
b) The Minister shall, upon reasonable notice to the Agent, except
in the case of an emergency, have full and free access to the said
premi ses for the purposes of repai ri ng and mai ntai ni ng the sai d
premises.
7. That the Agent shall not make any assignment of these Presents, nor
any transfer or sub-lease of any of the premises, rights or privileges demised
or leased hereunder, without obtaining the prior consent in writing of the
Minister to such assignment, transfer or sub-lease. The Agent shall pay to the
Mi ni ster a reasonabl e charge for the preparati on of any consent thereto
expressed in writing, and shall be responsible for any costs incurred by the
Minister in addressing the request for consent, provided that such costs are
reasonable.
1
.
Repair and
Maintenance
Care of
Property
Improve-
ments
4tonstruc-
tion of
Buildings or
Structures
Annovance
Nuisance
and
Disturbance
Title
.aims and
amaaes
Indemni-
fication
.
,
3.
"
B. That the Agent shall not, during the currency of this Agreement, do,
suffer or permit to be done any act or thing which may impair, damage or injure
the said premises beyond the damage occasioned by reasonable use, and shall,
at the Agent's own cost and expense, maintain and repair all portions of the
said premises which may at any time become damaged, due to the negligence of
the Agent, it's servants or agents.
9. That the Agent shall, at its own cost and expense, at all times
during the currency of this Agreement, keep the said premises in a neat and
tidy condition, removing or causing to be removed therefrom all papers, refuse,
litter, waste or rubbish arising out of the operations of the Agent under this
Agreement, all to the satisfaction of the Regional Director.
10. That any improvements made to the said premises by the Agent at any
time during the term of this Agreement, to make the said premises suitable for
the purposes referred to in Clause No.1 hereof. shall be at the risk, cost and
expense of the Agent and to the satisfaction of the Regional Director.
11. That the Agent shall not construct or erect any buildings or other
structures on the said premises without obtaining the approval of the Regional
Director, of plans showing the design and nature of construction of such
buildings or structures and their proposed locations.
12. That the Agent shall not, at any time during the currency of this
Agreement do, cause or permit to be done, any act or thing in or upon the said
premises which shall, or may be, or might become, an annoyance, nuisance or
di sturbance to the occupi ers of any lands or premi ses adjoi ni ng or in the
vicinity of the said premises.
13. That it is hereby declared, and this Agreement is accepted by the
Agent, upon the express condition that the Agent shall have no recourse against
the Minister, should the Minister's title to the said premises be found to be
defective, or should these Presents prove ineffectual by reason of any defect
in such title.
14. That the Agent shall not have any claim or demand against the
Minister for loss, damage or injury of any nature whatsoever, or howsoever
caused to the said premises or to any person or property, at any time brought,
placed, made or being on the said premises unless such damage or injury is due
to the negligence of any officer, servant, agent, contractor or sub-contractor
of Her Majesty the Queen in right of Canada while acting within the scope of
his duties.
15. That the Agent shall at all times indemnify and save harmless the
Minister from and against all claims and demands, loss, costs, damages,
actions, suits or other proceedings by whomsoever made, brought or prosecuted,
in any manner based upon, occasioned by or attributable to the execution of
these Presents, or any action taken or things done or maintained by virtue
hereof, or the exercise in any manner of rights arising hereunder, except
claims for damage resulting from the negligence of any officer, servant, agent,
contractor or sub-contractor of Her Majesty the Queen in right of Canada while
acting within the scope of his duties.
emination
.
Default
.
Hold over
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16.
That this Agreement may be terminated at any time:
(a) By the Agent upon sixty days' notice in writing, such
notice to be signed by the Agent and delivered to or
mailed addressed to the Regional Director, Small Craft
Harbours Branch, Department of Fi sheri es and Oceans,
P.O. Box B5120, 3027 Harvester Road, Burlington,
Ontario, L7R 4K3, or
(b) By the Minister upon sixty days' notice in writing,
si gned by the Mi ni ster, and ei ther del i vered to the
Agent or any officer of the Agent, or mailed addressed
to the last known place of business or office of the
Agent
and thereupon, after the expiration of such period of notification, these
Presents shall be determi ned and ended, and the Agent sha 11 thereupon, and a 1 so
in the event of the determination of this Agreement in any other manner, except
re-entry under Clause No. 17 hereof, forthwith remove from the said premises
all things at any time brought or placed thereon by the Agent and shall also
to the satisfaction of the Regional Director repair all and every damage and
injury occasioned to the said premises by reason of such removal or in the
performance thereof, but the Agent shall not, by reason of any action taken or
things performed or required under this clause, be entitled to any compensation
whatever, provided that, unless required by the Minister no goods, chattels,
materials, effects or things shall be removed from the said premises until all
rent due or to become due under this Agreement is fully paid.
17. That, notwithstanding anything in this Agreement contained, if the
rent above reserved or any part thereof, shall be in arrears or unpaid, whether
or not the same shall have been in any manner demanded, or in case default,
breach or non-observance be made or suffered by the Agent at any time or times,
in, or in respect of any of the covenants, provisoes, conditions, and
reservations herein contained, which on the part of the Agent ought to be
observed and performed, then, and in every such case, provided such nonpayment
of rent, default, breach or non-observance is not cured within thirty (30) days
from the date of notice thereof in writing from the Minister to the Agent, the
Mi ni ster may termi nate thi s Agreement by gi vi ng to the Agent a noti ce in
writing signed by the Minister, and either delivered to the Agent or any
officer of the Agent, mailed addressed to the last known place of business or
office of the Agent, and thereupon after the delivery or mailing of such
written notification, this Agreement shall be determined and ended, and in that
event, it shall be lawful for the Minister, his servants or agents, to re-enter
and thereafter to have, possess and enjoy the said premises and all
improvements thereon.
And no acceptance of rent subsequent to any breach or default, other than non-
payment of rent, nor any condoning, excusing or overlooking by the Minister on
previous occasions of breaches or defaults similar to that for which re-entry
is made shall be taken to operate as a waiver of this condition nor in any way
defeat or affect the rights of the Minister hereunder.
The Agent shall pay in addition to any other provisions hereof the reasonable
fees and disbursements of counsel to the Minister in connection with the
enforcement of this Agreement, or in the event of default hereunder.
18. Provided always and that it is hereby agreed by and between the
parties hereto that if the said Agent shall hold over after the expiration of
the term hereby granted, and the Minister shall accept rent, the new tenancy
thereby created shall be a tenancy at will and not a tenancy from year to year,
and the Agent shall pay as rent during the time of such occupancy a rental to
be determined at the discretion of the Minister, and shall be subject to the
covenants and conditions herein contained so far as the same are applicable to
tenancy at will.
·1S. Dues
, harlles
Accountinll
Records
Audit
InsDection
Polluti on
.
Environ-
mental
Protection
Service
,servation
Concession
Use by Allent
a;re
~ention
Navillab1e
Waters'
Protection
Act
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19. That the Agent shall, during the currency of this Agreement, charge
tolls or dues established under the authority of the Fishing and Recreational
Harbours Act by regulations approved from time to time by the Governor in
Council respecting the said premises. The Agent may collect additional
reasonable charges for services such as electrical power outlets, water
outlets, watchman services, etc., provided at the Agent's expense for the
benefit and use of the boating public using the said premises.
20. That during the currency of this Agreement, the Agent shall cause
to be kept records of its ope rat ions hereunder, such records to be kept
according to accepted principles of accounting, and the Agent shall supply to
the Regional Director a certified statement for each accounting period during
the currency of the Agreement.
21. That the books of the Agent concerning the operation and management
of the said premises, shall be open for audit and inspection at all times
during business hours, by the accredited officers of the Minister,
22. That the Agent shall not place or deposit, or cause or permit to be
placed or deposited, any fill, sand, gravel, detritus, waste, debris or other
materials, articles or things on the said premises which may form a deposit
thereon or therein without the prior consent, in writing, of the Regional
Director.
23. (i) The Agent agrees to abide by and comply with all federal
environmental legislation, including the relevant provisions of the Canadian
Environmental Protection Act, affecting the said premises, as well as with the
regulations and guidelines made and established under it, and all applicable
Provincial, Territorial and municipal environmental legislation, regulations,
rules or guidelines affecting the said premises.
(ii) The Agent shall not process, use, deposit or store on the said
premises or in its subsoil any toxic substance, as defined in the Canadian
Environmental Protection Act, nor any other substance that constitutes or may
constitute a danger to the environment or to human life or health.
(i i i) The Agent agrees to clean up, at its expense, to then current
federal and provincial standards, any part or all of the said premises
contaminated during the term of this Lease or any renewal of it immediately
upon becoming aware of the contamination.
24. That this Agreement is granted strictly subject to the right of the
Mi ni ster and Lessees and Licensees of the Mi ni ster to mai ntai n and operate
services installed on the said premises at the date of this Agreement, and to
the right of the Minister to grant leases or licences, as the case may be, at
any time during the currency of this Agreement, covering the right and
privilege or permission to install, lay, maintain and use services on, over or
across the said premises and the agent shall not, at any time during the
currency hereof, do anything or cause or permit anything to be done which will
in any way interfere with the rights and privileges or permissions thereby
granted, provided however, that such leases or licences will be granted subject
to this Agreement and provided that the Lessees or Licensees thereunder shall
not commence to exerci se the ri ghts and pri vi 1 eges or permi ssi ons thereby
granted unless and until the consent in writing is first obtained from the
Agent, and which consent shall not be unreasonably withheld.
25.
kind shall
Director.
That no applications for permission to establish concessions of any
be granted without the prior approval in writing of the Regional
26.
for
such
That in the event that any portions of the said premises are used
the purposes of the Agent, the Agent shall establish a market rental for
use and the Reddendum Clause shall be applied to such rental.
27. That the Agent shall take all necessary precautions against fi re
occurring in or on the said premises.
28. That the Agent shall fulfill in all respects the requirements of Part
1 of the Navigable Waters' Protection Act, Chapter N-19 of the Revised Statutes
of Canada 1970.
Î
Members of
eliament
Discrim-
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Sale or
Transfer
.
Financial
Admin-
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29. No Member of the House of Commons shall be admitted to any share or
part of this Agreement or to any benefit to arise therefrom.
30. That the Agent and any Sub-lessees shall not discriminate against
any person by reason of race, colour or creed, in any manner whatsoever,
pertaining to the operation and use of the said premises.
31. {i} Notwithstanding any other provision of this Agreement, in the event
that the Minister disposes of its interest in the leased premises, or any part
thereof, by way of sale, transfer or other conveyance, including a transfer of
administration and control to Her Majesty the Queen in right of the Province
of Ontario, the Minister shall be entitled at their sole option to assign this
Agreement, or such portion thereof, to the transferee, or to terminate this
Agreement, and the Agreement shall upon notice thereof be terminated forthwith.
{ii} In the event of notice of termination being given by the Minister
to the Agent, the Agent agrees that it shall forthwith vacate the said
premises, and remove any chattels from the said premises in accordance with the
provisions of this Agreement. The Agent further agrees and acknowledges that
it shall have no cause of action against the Crown arising out of early
termination of the Agreement, and hereby releases the Minister from any
1 i abi 1 i ty or otherwi se that may be sai d to flow from the aforesai d earl y
termination of this Agreement.
32. If the Agent defaults in the payment of any amount due under this
Lease the Agent shall be responsible for and pay interest on such defaulted
payment {to the extent permitted by the Financial Administrative Act R.S.C. 1985
Chapter F-11 and the Interest and Administrative Charges Regulations SOR/96-188
{the Regulations} or any amendments thereto} up to the date payment is received
by or on behalf of Her Majesty. For 9reater certainty and until such time as
the Regulations are amended, in the case of default in respect of any monetary
amounts due, interest on the amount in default shall be calculated and
compounded monthly at the average bank rate plus three per cent and accrue from
the due date of the payment, until paid. Furthermore, in the event that any
instrument is tendered in payment or settlement of any amount due to Her
Majesty hereunder which for any reason is dishonoured, the Agent shall be
responsible and pay an administrative charge of $15.00 to Her Majesty, or any
amount prescribed therefor by the Regulations will be applicable and in
addition to the outstanding amounts due.
IN WITNESS WHEREOF the parties hereto have executed these Presents
the day and year first above written.
SIGNED, SEALED, AND DELIVERED BY
the Agent in the presence of:
}THE CORPORATION OF THE TOlIN OF KINCARDINE
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Witness 0 ~ For the Minister
SIGNED, SEALED, AND DELIVERED BY
the Minister in the presence of:
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Fisheries and Oceans
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INQUIRIES: QUOTe: AU OF THE INFORMATION ON THIS STUB.
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CONTROL NO.
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_- THE CORPORATIOIli- OF THE
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TOWN OF KINCARDINE
STATEMENT OF REVENUES AND EXPENDITURES
NORm PIER
1997
REVENUES
$
FOR YEAR 1997
2,313.60
·
EXPENDITURES
dLEASEFEEFOR 1997 100.00
CROWN'S SHARE 247.03
(15% x 2313.60 LESS 100.00 PAID IN ADVANCE)
347.03
NET REVENUE (DEFICIT)
1.966,57
·