HomeMy WebLinkAbout07 289 The Kincardine Pavilion Operating Agreement
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2007-289
BEING A BY-LAW TO AITHORIZE THE SIGNING IF AN AGREEMENT WITH
KINCARDINE PAVILION INC. TO OPERATE AND MANAGE THE
KINCARDINE PAVILION
WHEREAS the Municipality is the owner of lands and premises located at 156
Durham Street, Kincardine and known as the Kincardine Pavilion Facility;
AND WHEREAS Kincardine Pavilion Jnc. is a non-profit corporation incorporated
pursuant 10 the laws of the Province of Ontario for the purposes of preserving,
restoring and promotlng the operations of the Kincardine Pavilion to the benefit of
the area;
AND WHEREAS the Municipal Act, RS. O. 1990, C.M. 45, Section 19 (16)
authorizes the council of every municipality to pass by-laws providing for the use
by the public of the lands of which the corporatIon is the owner and for the
regulation of such lands and the protection of such lands;
AND WHEREAS the Council for The Corporation of the Municipalfty of
Kincardine deems it advisable to enter into an operating agreement with
Kincardine Pavilion Inc.;
NOW THEREFORE the Council for The CorporatIon of the Municipality of
Kincardine ENACTS as follows:
1. That The Corporation of the MunicipalIty of Kincardine enter into an
operating agreement with Kincardine Pavilion Inc.
2. That this agreement be subject to the provision of an Occupancy
Certificate by the Municipality of Kincardine and further terms and
conditions noted in the attached Schedule 'A'
3. That the Mayor and CAO be authorized to sign, on behalf of the
Corporation of the Municipality of Kincardine, the agreement with
Kincardine Pavilion Inc. which is attached hereto as Schedule "A".
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The Kincardine Pavilion Operating Agreement (2007) By-law
By-law No. 2007 - 289
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4. This by-Jaw shall come into full force and effect upon its final passage.
5. This by-law may be cited as the 'The Kincardine Pavilion Oper<l.ting
Agreement (2007) By-law'.
READ a FIRST and SECOND TIME this 3m day of October, 2007.
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Mayor
e READ a THIRD TIME and FINALLY PASSED this 3m day of October, 2007.
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ayor
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Clerk
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'Ibis is Schedule w:zt" to By.,Law
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Agreement made this insert date, 2007
BETWEEN THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(Hereinafter called the "Municipality")
OF THE FIRST PART
-AND-
KINCARDINE PAVILION INC.
(Hereinafter called "The Kincardine Pavilion)
OF THE SECOND PART
WHEREAS the Municipality is the owner of lands and premises located at 156 Durham
Street, Kincardine, Ontario and known as the Kincardine Pavilion Facility, and which is
referred to throughout this agreement as the "Kincardine Pavilion",
AND WHEREAS the Kincardine Pavilion Inc. is a non-profit corporation incorporated
pursuant to the laws of the Province of Ontario for the purpose of preserving, restoring
and promoting the operations of the Kincardine Pavilion to the benefit of the area.
AND WHEREA5 the Municipal Act, R.S.O. 1990, C.M. 45, Section 19 (16) authorizes the
council of every municipality to pass by-laws providing for the use by the public of the
lands of which the corporation is the owner and for the regulation of such lands and the
protection of such lands.
AND WHEREA5 it bas been deemed desirous by the council of the Municipality of
Kincardine to allow the Kincardine Pavilion Inc. to operate and manage the facility for the
benefit of the public.
NOW THEREFORE, in consideration or the sum of $1.00 and other good and valuable
consideration, the parties hereto agree as follows:
1. U5E OF PREMISES
(a) The Municipality hereby grants and sets over to the Kincardine Pavillon Inc. the use of
the Kincardine Pavilion facility on and subject to the terms and conditions of this
agreement.
(b) Such use shall include exclusive possession of the premises and its fixtures and
chattels provided \he Klncardine Pavil"ion Inc. rema.lns in existence and continues to
actively pursue its program of restoring and operating the Kincardine Pavilion to the
benefit of the area.
2. TERM
(a) This agreement shall commence on the 15th day of September, 2007 and shall
continue until the last day of October, 2012. Please note that this Agreement is subject to
the provision of an Occupancy Certificate by the Municipality of Kincardine.
(b) The Kincardine Pavilion Inc. may renew this agreement for a further five years subject
to municipal approval.
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3. TERMINATION
(a) This agreement may be tennlnated by either party giving one year's written notice of
tennination to the other.
(b) This agreement may be tennlnated without notice at the discretion of either party upon
any act of default of the terms of thIs agreement, by either party or upon the Kincardine
Pavilion Inc. ceasing to exist, or in the case of insolvency or bankruptcy of Kincardine
Pavilion Inc.
4. TERMS OF OPERATION
The Kincardine Pavilion Inc. shall operate the facility on the following terms and
conditions.
(a) The operation of the facility must at all times be under the direction, supervision and
control of the executive and staff or designated members of the Kincardine Pavilion Inc.
They shall appoint a representative as a designated liaison person to meet with the
Director of Recreation regarding the tenns of this agreement. At no time may the
Kincardine Pavilion Inc. hereunder assign this agreement or any rights to any other party.
(b) Any chattels purchased with a Trillium Grant from the Province must be treated in
accordance with the terms of the trillium grant agreement
(c) The Kincardine Pavilion Inc. shall make the building available for use by individuals,
business and communlly groups for activities deemed sullable and at rental rates
established by the Kincardine Pavilion Inc. from time to time. These rates shall reflect the
local market rental rates and be reviewed by the Director of Recreation
5. INSURANCE/INDEMNITY
The parties agree that the cost of operating the facility shall be based on the following
terms and conditions:
Indemnity
The Kincardine Pavilion Inc. agrees to indemnIfy and hold harmless the Municipality from
and against all suits, judgments, claims, demands, expenses actions, causes of action
and losses and for any and all liability for damages to property and injury to persons
(including death) which the Municipality may incur, otherwise than by reason of their own
negligence or willful misconduct, as a result of or arising out of or in relation to any breach
of the terms of this Agreement, or the Municipality's own negl1gence or willful misconduct.
Insurance
The Kincardine Pavilion Inc. 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 Municipality, including:
1. Commercial Genera! Liabllity Insurance, for third party bodily injury, personal injury
and property damage to an inclusive limit of not less than Two Million Dollars
($2,000,000.00) per occurrence. The policy shall include:
a) The Corporation of the Municipality of Kincardine as an additional insured;
b) Cross liabilIty
c) Contractual liability;
d) Tenanl's Legal Liability
e) Contents coverage on a replacement cost basis for all property owned by
the Kincardine Pavilion Inc. and located at the Pavilion;
f) Non-Owned automobile coverage with blanket contractual and physical
damage coverage for hired automobiles; and
g) A thirty (30) day written notice of cancellation
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2. The Kincardine Pavilion Inc. shall provide the Municipality with a valid Certificate of
Insurance as evidence of the above coverages upon signing the agreement. The
Kincardine Pavilion Inc. shall provide the Municipality with any renewal
replacement certificates as may be necessary during the tenn of the Agreement.
3. The Kincardine Pavilion Inc. shall be responsible to obtaIn Certlficates of Insurance
for the above coverage's from each tenant and shall make these available to the
Municipality for its review If requested.
6. SERVICES
(a) The Municipality agrees to supply water and sewage servlces to the facility free of
charge.
(b) The Municipality agrees to provide snow removal and grass cutting to the facility and
associated lands free of charge.
(c) The Kincardine Pavilion Inc. shall provide at its cost all other servlces required to
operate the facility including but not Iimlted to electricity, telephone, heat and regular
garbage removal.
(d) This community owned facility is subject to the decisions of the Municipal Property
Assessment Corporation.
7. OPERATING COSTS
(a) The costs of operating the facility induding regular maintenance of the facility shall be
administered/funded by the Kincardine Pavilion Inc.
(b) All surplus remaining from the annual operation of the facility shall be put in a
dedicated reserve fund and be carried forward by the Kincardine Pavilion Inc. for
purposes of future operations, debt reduction, capital work, continued renovations and
promotion of the facility.
(c) All deficits from the operation of the Pavilion shall be the sole responsibility of the
KincardfnePavilion Inc.
8. FINANCIAL REPORTING
(a) It is agreed that the financial year-end of the facility shall be September 1st, in each
year throughout the tenn of this agreement.
(b) The Kincardine Pavilion Inc. shall cause annual financial statements to be prepared
which accurately reflect the financial state of affairs of the operation of the faciiity and shall
deliver such statements to the Municipal Treasurer prior to the end of December following
each year end throughout the tenn of this agreement. In addition, prior to September 1st
of each year, the Kincardine Pavilion Inc. shall provide an updated Business Plan for the
nexlyearofoperations.
9. REPAIRS AND IMPROVEMENTS
(a) It is acknowledged by the Kincardine Pavilion Inc. that the facility will be used by the
public and must be maintained at all limes In a safe condition for those using it.
(b) The Kincardine Pavilion Inc. acknowledge and agree to maintain the facility in such a
manner to meet the standards of the Ontario Occupier's liability Act
(e) The Kincardine Pavilion Inc. undertakes to maintain in good and operating condition
the facility, including making capital and/or repair investments from revenues and/or its
designated reserves deemed needed or advisable to safeguard and secure the facility for
the future.
(d) All capital Improvements to the facility shall accrue to the benefit of the Municipality
and shall remain with the Municipality upon the tennination ofthis agreement.
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(e) The Municipality shall have the right to retain a key to the facility and the right to enter
the premises upon reasonable notice to the Kincardine Pavilion Inc. for the purpose of
conducting inspections of the condition and state of repair of the facility.
(f) The Kincardine Pavilion Inc. agrees that upon termination of this agreement they will
surrender the possession of the facility to the Municipality and shall leave it in as good a
condition as when this agreement commenced, subject to normal wear and tear given that
the facility was re-built and restored by the Kincardine Pavilion Inc. Prior to such
termination, there shall be a complete inspection of the premises and inventory taken of
all contents which are the property of the Municipality.
10. GENERAL
(a) This agreement shall be binding on the Municipality of Kincardine and any successor
municipal corporation, which may succeed or replace the Municipality.
(b) This agreement shall not be assigned or transferred by the Kincardine Pavilion Inc.
without the expressed written consent of the Municipality.
(c) This agreement shall become in force and effect only upon its authorization by a by-
law of the Council of the Municipality of Kincardine, submission of proof of liability
insurance and proof of an Occupancy Permit.
(d) Any changes or other amendments to this agreement may only be made by further
agreement in writing and duly authorized and signed by the parties.
(e) The Kincardine Pavllion Inc. shall provide a list of Us officers and directors to the
Municipality on a once yeartybasls.
(f) The Kincardine Pavilion Inc agree to fulfill the terms and obligations of the Municipality
of Kincardine loans as detailed in by-law # 2009-19.
(f) Lastly, the Municipality of Kincardine agrees to supply surplus fill and topsoll to
remediate the property on which the Pavilion is located.
KINCARDINE PAVILION INC.
w.......(President)
. (Secretary)
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