HomeMy WebLinkAboutKIN 94 024 Agree - Yacht Club
THE CORPORATION OF THE TOWN OF KINCARDINE
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BY-LAW
BY-LAW NO. 1994-24
A BY-LAW TO AUTHORIZE THE SIGNING OF A MANAGEMENT
AGREEMENT WITH THE KINCARDINE YACHT CLUB
4It WHEREAS the Council for The Corporation of the Town of
Kincardine deems it advisable to enter into an agreement with
the Kincardine Yacht Club in order to allow the Club to provide
the management service for the harbour;
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
an agreement with the Kincardine Yacht Club to provide
management service for the 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 Kincardine Yacht club 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.
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4.
This by-law may be cited as the "Kincardine Yacht Club
Harbour Management Agreement By-law".
READ a FIRST and SECOND time this 7th day of April, 1994.
READ a THIRD time and FINALLY PASSED this 21st day of April,
1994.
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This AGREEMENT made this 21st day of April, 1994.
BETWEEN:
THE CORPORATION OF THE TOWN OF KINCARDINE
hereinafter called the "Town"
of the First Part.
-and-
KINCARDINE YACHT CLUB
hereinafter called the "Club,
of the Second Part.
WHEREAS the Club currently holds a lease with the Small
Craft Harbours Branch of the Federal Department of
Fisheries and Oceans which runs until March 31, 1996 and as
described in Schedule "A" to this agreement (hereinafter
called the "Lease");
AND WHEREAS the Club will abandon the Lease in order for
said Lease to be assumed by the Town;
AND WHEREAS execution of this agreement is a condition for
abandonment of such Lease by the Club;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in
consideration of other good and valuable consideration and
the sum of TWO DOLLARS ($2.00) of lawful money of canada,
now paid by each of the two parties hereto, (the receipt
whereof is hereby acknowledged) the parties hereto
covenant, promise and agree with each other as follows:
1. 0 LIST OF SCHEDULES ATTACHED
The following schedules are attached and form part of
this agreement:
Schedule -A-: Description of the land currently
leased by the Club (herein called the "Harbour").
Schedule -B-: Description of the lands on the North
Pier of the basin and currently leased by the Town.
For the purposes of this agreement "Facilities" shall
mean the lands included in Schedules "A" and "B".
2.0 EXISTING LEASE
2.1 The Club agrees to surrender its existing Lease of the
lands covered in Schedule "A" with the Small Craft
Harbours Branch of the Department of Fisheries and
Oceans of the Government of Canada (hereinafter called
"S.C.H.") on the condition that a replacement lease
for the same is granted to the Town by S.C.H.
2.2 The Club will support the Town in its application to
assume the Lease currently held by the Club.
3.0 HARBOUR MANAGEMENT
3.1 Once the Town has assumed the Lease, the Town will
appoint the Club as managers for the Facilities.
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Town of Kincardine/KYC Agreement
3.2 Both parties agree to establish a joint liaison
committee comprised of two representatives from each
of the parties to this agreement. This committee will
be responsible for the following:
3.2.1 The mediation of disputes or concerns and,
where agreement is not achieved, referral of
these disputes to Town Council for
resolution.
3.2.2
The establishment and review of policies and
principles for the facility operation.
Recommendation of rates and fees associated
with the facility operation outside of the
guidelines in section 3.8.1.
Report to both parties on the operation of
the facilities.
3.2.3
3.2.4
3.2.5
prop?sed significant
pr~or to their
approval;
The review of any
facility improvements
submission to Council for
3.2.6 The review of insurance coverage to
its adequacy.
3.3 The Club will support commercial use in
designated by the Lakefront Development Plan
April 1991, as part of the Facility operation.
Town may amend this plan from time to time.
3.4 Both parties agree that the Club will remain as
manager for the duration of the existing Lease held ~y
the Club. This Agreement shall continue and be ~n
effect for a further period of five years provided
that the Club is not in default of this Agreement.
Negotiations between the parties, with the intent to
renew and provide SHsñffieiènplpmBmn~ngohmzmB9~s~ha~&ll
commence a minimum of two years prior to the end of
the existing agreement.
ensure
areas
dated
The
3.4.1
If the agreement is not renewed the Town will
have the option to either negotiate for the
reimbursement of the capital assets,
purchased prior to this agreement, or to have
the Club remove such assets within one year
of the termination of the lease otherwise
such assets will become vested in the Town.
3.5 This Agreement may be cancelled with the mutual
agreement of both Parties and executed by a release
setting out the condition of cancellation, signed by
the proper signing officers of both Parties.
3.5.1
This agreement may also
either party on default of
the other party.
be cancelled by
this agreement by
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Town of Kincardine/KYC Agreement
3.5.2
In the event the Town is in default or wishes
to rid itself of the leases for the
facilities prior to the termination of this
agreement, the Town shall support the Club in
its application to Small Craft Harbours, or
any other body having jurisdiction, to assume
the leases.
3.5.3 In the event the Club is in default of this
agreement, the Club shall assign title of the
assets used to operate the facilities to the
Town.
3.6 The Club shall manage the facilities on behalf of the
Town in accordance with the rules and regulations of
S.C.H., other agencies having jurisdiction, this
agreement and the by-laws and policies of the Town
(such by-laws and policies shall not conflict with
this Agreement).
3.7 The Town will consult with the Club regarding any
expansion or modification of the existing Facilities
or the immediate surrounding area. The final decision
shall rest with the Town.
3.8 The Town grants the following privileges to the Club
under this agreement:
To recommend to the Town, through the joint
liaison committee, all fees concerning the
operation of the Facilities, subject to the
Fishing and Recreational Harbours
regulations.
To select all suppliers of goods and services
except those involving the expenditure of
public money, in which case the Town will
undertake the purchasing responsibility under
the supervision of its duly appointed agents;
That the Club may appoint and pay employees
to operate the facility from its share of the
revenues from the operation of the
Facilities. The employees shall be the full
responsibility of the Club.
3.9 The Club shall keep a minimum of 10% of the total
number of slips in the facilities or not less than 15
slips available for transient boaters. This amount
may be amended by agreement of both parties. The Club
shall also provide an adequate and convenient slip
available for the Water Rescue Vessel while it is in
operation.
3.8.1
3.8.2
3.8.3
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Town of Kincardine/KYC Agreement
3.10 All costs of maintenance and operation of the
Facilities shall be paid for by the club. The Club
shall provide the Town with an annual statement for
the operation of the Facilities for each fiscal year,
January to December of each year, by February 28 of
the following year. The Club shall undertake
leasehold improvements only upon approval of the Town
and the Club may make application to the Town to share
in the costs, but such funding shall be completely
dependent upon on budget approval by the Town. Other-
wise leasehold improvements must come from the
revenues resulting from the operation of the
Facilities.
3.11 It is the intent that this Agreement shall be revenue
neutral for both parties. The Town shall make all
lease payments to S.C.H. The club shall provide
yearly payments to the Town for any loss of revenue
resulting from any loss in property or business taxes,
any costs for lease payments, and any lost revenue
from boat storage on the north pier based on 1993/94
winter storage season, less any lease payment costs
and taxes which would be payable based on the
assessment for the north pier.
3.12 The Club affirms that it is a non-profit corporation
and all revenues and profit it realizes from the
operation of the facilities shall be used for the
benefit of the facilities operation and improvement of
the facilities.
3.13 It is agreed that the Club shall be solely responsible
for any current or future debts incurred by the Club
as a result of the operation of the facilities. The
Club shall not undertake any debt using the Facilities
or properties not held by the Club as security.
4.0 HARBOUR EXPANSION
4.1 The Club acknowledges and supports the Town's efforts
to provide additional harbour facilities in the Town
of Kincardine.
4.2 In the event the Town is successful in its application
to expand the harbour facilities, both parties will
negotiate an amended agreement for the new harbour
both existing and expanded.
5.0 ADMINISTRATION
5.1
The Club
hereto or
ti tle of
Town.
agrees that this agreement and the schedules
any parts thereof may be registered upon the
the lands, at the sole discretion of the
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Town of Kincardine/KYC Agreement
5.2
Unless otherwise specified in this Agreement, any
notices required under the provisions of this
Agreement shall be given by prepaid registered mail or
by personal delivery to the following persons at the
following addresses:
TO THE TOWN:
Clerk
Town of Kincardine
707 Queen street
Kincardine, Ontario
N2Z lZ9
TO THE CLUB
The Secretary,
Kincardine Yacht Club
236 Harbour street
Kincardine, ontario
N2Z 2X9
5.3 The Club will provide liability insurance for the
operation of the facilities as a cost of operation.
The Town shall insure the property and buildings
covered by this agreement. The Town will be included
as a "named insured" party on the Club policy.
5.4 It is declared and agreed that this agreement and the
covenants, provisos, and conditions herein shall enure
to the benefit of and be binding upon the respective
heirs, executors, administrators, successors and
assigns of the property of the parties hereto.
5.5 The words, "Town" or "Club", or the words "he" or
"his" where used in this agreement, in addition to
their accepted meanings, shall mean and include an
individual, an associate, a partnership or an
incorporated company. Wherever the singular is used
herein, it shall be construed as including the plural,
and wherever the masculine is used herein, it shall be
construed as including the feminine, and vice versa in
all cases.
5.6 Notwithstanding anything hereinafter set out, it is
mutually understood and agreed by the Club with the
Town that this Agreement and all the terms and
conditions hereof, with respect to any contractual or
any other liability on the part of the said Town as
herein set forth shall be conditional upon the Town
being legally permitted to enter into the
arrangements, financially or otherwise, as herein set
forth, and if at any time during the currency of this
Agreement, it is found by any court of competent
jurisdiction, or the ontario Municipal Board, or the
Ministry of Municipal Affairs, or any other government
department that this agreement and/or all its terms
are void insofar as the Town is empowered to enter
into this agreement, then no obligation, liability or
duty of any nature or kind whatsoever, whether in law
or equity, shall be imposed upon the said Town to
carry out any of the provisions of this Agreement.
Therefor, it is understood and agreed by the Club that
any contractual liability or any other liability on
the part of the Town as herein set forth is
conditional upon the said Town receiving the approval
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Town of Kincardine/KYC Agreement
5.6 (continued)
and authorization of the aforementioned government
bodies or any of them. No obligation, liability or
duty of any nature or kind whatsoever, whether in law
or in equity shall be imposed on the said Town to
carry any of the provisions under this agreement,
except those defined in section 3.5, failing receipt
of any such approval. In this event, the Town may
cancel this agreement and return to the Club any money
it holds for or on behalf of the Club after deducting
therefrom all moneys, costs, payments and expenses
spent, paid or incurred by the Town in carrying out
this agreement or providing Town services to the
Lands.
5.7 The failure of either the Town or the club to insist
upon the strict performance of the terms and
conditions hereof shall not constitute or be construed
as a waiver or relinquishment of either Parties'
rights to thereafter enforce the same in accordance
with this agreement in the event of a continuing or
subsequent default on the part of either Party.
5.8 It is mutually agreed that in the event that any
clause or provision of this agreement or any part
thereof shall be declared invalid, void or
unenforceable by any court having jurisdiction, such
invalidity shall not affect the validity or
enforceability of the remaining portions of this
agreement unless the result would be manifestly
inequitable or unconscionable.
5.9 This agreement is not assignable without the written
permission of the Town, the Club and S.C.H.
5.10 It is agreed between the Parties hereto that no Party
shall be held responsible for damages caused by delay
or failure to perform its obligations hereunder when
such delay or failure is due to fires, strikes,
floods, acts of God, lawful acts of public
authorities, or delays which cannot reasonably be
foreseen or provided against.
5.11 This Agreement when executed together with all
schedules attached hereto as provided for in this
agreement shall constitute the entire agreement
between both Parties and this agreement may not be
amended, modified or terminated except in writing and
signed by the Parties hereto.
5.12 The Parties shall execute and deliver all documents
and perform all further actions that may be reasonably
necessary under the provisions of this agreement.
5.13 The club shall perform its obligations hereunder in
compliance with any and all applicable federal,
provincial and local laws, rules and regulations.
Furthermore, any capital works involving the
expenditure of public funds shall be constructed by
the Town or its duly appointed agents in accordance
with sound engineering and safety practices, and in
compliance with any and all reasonable rules of the
Town relative to the Facilities and in consultation
with the Club.
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Town of Kincardine/KYC Agreement
IN WITNESS WHEREOF the Town has hereto affixed its
corporate seal attested by the hands of its mayor and clerk
this ~ day of f\~' , 1994. The C~b has hereunto set
its hand and sea ~sJJJi-day of ~~~ , 1994.
SIGNED, SEALED AND DELIVERED
in the presence of
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) THE CORPORATION OF THE TOWN
) OF-~HNKmmD~INE
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