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HomeMy WebLinkAboutKIN 94 024 Agree - Yacht Club THE CORPORATION OF THE TOWN OF KINCARDINE . . 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. . 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. ~/ . ay r /)¿A 4 ;. , I ~/ It~00~ Clerk . ,.'.' . . '. e· . . . . ,. ./ 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. .../2 ; . . tÞ . . . .' page 2 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 .../3 , . . tÞ . . . Page 3 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 .../4 . . . - tþ . . J. Page 4 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 .../5 .' . . . - - . . .- , Page 5 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 .../6 .t. ; . . , - . . page 6 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. .../7 - . . ., , ., . . ~ - . . Page 7 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 ~ ÝvuJ ) ) THE CORPORATION OF THE TOWN ) OF-~HNKmmD~INE ) !~~ ~þ~' =.~ ',> r ~~~ - Maureen \.~~J~et~:'~ ) . -<--- ) ) ) ) ) ) ) ¡~ Ìiì~ - ) Secretary - Rae Mason '. . . 13U3 FR B 3 .. ::0 ~ o ... ,- ~ ¡;; ~ J .",~.;r¡..BIII. .. ¡ ~ .; i J I II . 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