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HomeMy WebLinkAbout09 164 FOTP Kincardine Beach Pavilion Operating Agreement By-Law e e e e THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2009 -164 A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH THE FRIENDS OF THE KINCARDINE BEACH PAVILION COMMUNITY CENTRE TO OPERATE AND MANAGE THE KINCARDINE PAVILION AND WHEREAS pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as amended, Section 8 (1) and 9 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; WHEREAS the Municipality is the owner of lands and premises located at 156 Durham Street, Kincardine and known as the Kincardine Beach Pavilion Facility (the Pavilion); AND WHEREAS Council entered into an agreement with the Friends of the Pavilion, authorized by By-law No. 2007-289, to operate and maintain the Pavilion; AND WHEREAS the Friends of the Pavilion incorporated as the Friends of the Kincardine Beach Pavilion Community Centre; AND WHEREAS the Friends of the Kincardine Beach Pavilion Community Centre is a non-profit corporation incorporated pursuant to the laws of the Province of Ontario for the purposes of preserving, restoring and promoting the operations of the Kincardine Pavilion to the benefit of the area; AND WHEREAS Council deems it appropriate to enter into an Operating Agreement with the Friends of the Kincardine Beach Pavilion Community Centre to allow the corporation to operate and manage the facility for the benefit of the public; NOW THEREFORE 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 Operating Agreement with the Friends of the Kincardine Beach Pavilion Community Centre for the operation and management of the Kincardine Beach Pavilion Facility. 2. That the Mayor and Chief Administrative Officer be authorized and directed to sign and execute, on behalf of The Corporation of the Municipality of Kincardine, the Operating Agreement with the Friends of the Kincardine Beach Pavilion Community Centre which is attached hereto as Schedule "A" and forms part of the By-law. e e e e Page 2 FOTP Kincardine Beach Pavilion Operating Agreement By-law By-law No. 2009 - 164 3. That By-law No. 2007-289 be hereby repealed. 4. This by-law shall come into full force and effect upon its final passage. 5. This by-law may be cited as the "FOTP Kincardine Beach Pavilion Operating Agreement By-law". READ a FIRST and SECOND TIME this 11th day of November, 2009. \jm~~~OQ.Or\ HIRD TIME and FINALLY PASSED this 11th day of November, 2009. v:J\\IQ lO/i\ J.- Q ~2(")D .0 (\ ~Clerk Sdledule 'AI -I-'D \6~low No. cito9- \L?Lt FRIENDS OF THE KINCARDINE BEACH PAVILION COMMUNITY CENTRE OPERATING AGREEMENT Agreement made this --L1- day Of~, 2009 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (Hereinafter called "Kincardine") OF THE FIRST PART - AND- FRIENDS OF THE KINCARDINE BEACH PAVILION COMMUNITY CENTRE (Hereinafter called "Friends") And who are Successors to Friends of the Pavilion and Gary Gurbin, Trustee for Kincardine Pavilion Inc. OF THE SECOND PART WHEREAS Kincardine is the owner of lands and the building situated on them located at 156 Durham Street, Kincardine, Ontario and known as the Kincardine Beach Pavilion Facility, (hereafter called the "Pavilion), AND WHEREAS the Friends 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 Pavilion to the benefit of the area. AND WHEREAS 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 WHEREAS it has been deemed desirous by the Council of the Municipality of Kincardine to allow Friends 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. USE OF PREMISES (a) Kincardine hereby grants and sets over to Friends the use of the Pavilion on and subject to the terms and conditions of this agreement. Page 1 of8 (b) Such use shall include exclusive possession of the premises and its fixtures and chattels provided the Friends remains in existence and continues to actively pursue its program of restoring and operating the Pavilion to the benefit of the area. 2. TERM (a) This agreement shall commence on the same day as the loan is advanced and shall continue until the last day of November, 2019. Please note that this Agreement replaces and supersedes the previous operating agreement dated October 3rd, 2007. (b) Friends may renew this agreement for a further ten years subject to Kincardine's approval. 3. TERMS OF OPERATION Friends shall operate the Pavilion on the following terms and conditions. (a) The operation of the Pavilion must at all times be under the direction, supervision and control of the Board of Directors, Executive and staff or designated members thereof. They shall appoint a representative as a designated liaison person to meet with the Director of Recreation regarding the terms of this agreement. (b) The Friends shall take no action which would result in the Pavilion or any of the attached fixtures or chattels associated with it, being sold, transferred or in any way encumbered. (c) Friends shall make the building available for use by individuals, business and community groups for activities deemed suitable and at rental rates established by Friends from time to time. These rates shall reflect the local market rental rates and be reviewed by the Director of Recreation prior to being put into effect and at a minimum on a yearly basis. 4. INSURANCE/INDEMNITY Insurance Friends 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 Kincardine, including: Commercial General Liability 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; Page 2 of 8 b) Cross liability c) Contractual liability; d) Tenant's Legal Liability e) Contents coverage on a replacement cost basis for all property owned by FRIENDS; and f) A thirty (30) day written notice of cancellation Friends shall provide Kincardine with a valid Certificate of Insurance as evidence of the above coverages upon signing the agreement. Kincardine 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 at the latest of: - 4 months from the date of notice Or - upon the next renewal date of the Friends' existing policy at the date notice is provided. Friends will maintain this insurance at its expense. Friends shall provide the Municipality with additional Certificates of Insurance within 15 calendar days of either an annual renewal for insurance coverage as set out in 1 above or the date of the written insurance requirement in 3 above. Certificates shall be provided for the entire period during which this Agreement is in effect. Friends shall be responsible to obtain Certificates of Insurance for the above coverage's from each tenant and shall make these available to Kincardine for its review if requested. Indemnity Friends agrees to indemnify and hold harmless Kincardine 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 Kincardine 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 Kincardine's own negligence or willful misconduct. 5. SERVICES (a) Kincardine agrees to supply water and sewage services to the Pavilion free of charge. (b) Kincardine agrees to provide grounds maintenance including but not limited to, snow removal, parking lot grading and grass cutting to the Pavilion and associated lands free of charge. (c) Kincardine agrees to provide and pay for insurance for the Pavilion including all chattels owned by Kincardine. Page 3 of8 (d) Friends shall provide at its cost all other services required to operate the Pavilion including but not limited to electricity, telephone, heat and regular garbage removal. (e) Friends agrees to provide and pay for property insurance for all items owned by it as set out in 4 (e) above. 6. OPERATING COSTS (a) The costs of operating the Pavilion including regular maintenance of the Pavilion shall be administered/funded by Friends. (b) This community owned facility is subject to the decisions of the Municipal Property Assessment Corporation (MPAC). In the event that MPAC assesses the Pavilion as taxable, Kincardine and Friends will negotiate who shall be responsible to pay to Kincardine any property taxes resulting from such assessment. (c) Friends agrees to fulfill the terms and obligations of its loan in the principle amount of $350,000 to Kincardine including but not limited to repayment of principle plus interest and documentation. (d) All surplus remaining from the annual operation of the Pavilion shall be put in a dedicated reserve fund and be carried forward by Friends for purposes of future operations, debt reduction, capital work, continued renovations and promotion of the facility. (e) All deficits from the operation of the Pavilion shall be the sole responsibility of Friends. 7. FINANCIAL REPORTING AND ADMINISTRATION (a) It is agreed that the financial year-end of Friends shall be September 30th, in each year throughout the term of this agreement. (b) Friends shall prepare or cause to have prepared, for the year ending September 30th of each year this Agreement is in force, annual Financial Statements in accordance with Canadian GAAP consistently applied together with a Review Engagement Report prepared by an independent accountant holding a current membership with a recognized accounting body in the Province of Ontario. A supporting schedule detailing the restoration costs and revenues, if any, shall accompany these statements. The Financial Statements and supporting schedule shall be delivered to the Director of Recreation no later than May 31st in the following year. (c) Friends shall deliver to the Director of Recreation any other documents or information as the Director of Recreation may request in writing from time to time in relation to the financial activity of Friends within 30 calendar days of the date of the written request. (d) Friends shall provide to Kincardine by November 1st of each year, a written Friends Business Plan for the next year of operations. Page4of8 (e)Friends shall provide to Kincardine by November 1st of each year, a list of its officers and members. (f) Friends shall attend the Recreation Services meeting in November of each year to present the written Business Plan set out in (d) above. If no such meeting is held, they shall attend a November Council meeting. (g) The administration of this agreement on behalf of Kincardine shall be conducted by the Director of Recreation. Friends shall report to and deliver all reports and certificates and make all requests of Kincardine for Services in accordance with Section 5 to the Director of Recreation. 8. REPAIRS AND IMPROVEMENTS (a) It is acknowledged by Friends that the Pavilion will be used by the public and must be maintained at all times in a safe condition for those using it. (b) Friends acknowledges and agrees to maintain the Pavilion in such a manner to meet the standards of the Ontario Occupier's Liability Act (c) Friends undertakes to maintain in good and operating condition the Pavilion, including making capital and/or repair investments from revenues and/or its designated reserves deemed needed or advisable to safeguard and secure the Pavilion for the future. (d) All capital improvements to the Pavilion shall accrue to the benefit of Kincardine and shall remain with Kincardine upon the termination of this agreement. (e) Kincardine shall have the right to retain a key to the Pavilion and the right to enter the premises upon reasonable notice to Friends for the purpose of conducting inspections of the condition and state of repair of the Pavilion. (f) Friends agrees that upon termination of this agreement they will surrender the possession of the Pavilion to Kincardine and shall leave it in as good a condition as when this agreement commenced, subject to normal wear and tear given that the Pavilion was re-built and restored by Friends. Prior to such termination, there shall be a complete inspection of the Pavilion and inventory taken of all contents which are the property of Kincardine. 9. REPRESENTATIONS AND WARRANTIES 9.1 There are no actions, suits or proceedings, including appeals or applications for review, or any knowledge of pending actions, suits, or proceedings against Friends before any court or administrative agency which would result in any material adverse change in the property, assets, financial condition, business or operations of Friends except as disclosed in writing to Kincardine prior to advance of the funds. 9.2 Friends will inform Kincardine of any future actual or probable litigation and furnish Kincardine with copies of details of any litigation or other proceedings Page 5 of8 which might materially affect the financial condition, business, operations, or prospects of Friends within 5 Business Days of becoming aware of such litigation. 9.3 Friends will advise Kincardine within 5 Business Days after the happening of any event which will result in material adverse change in the financial conditions, business, operations or prospects of Friends or the occurrence of any Event of Default or default under this Agreement or any other agreement. 9.4 The Financial statements delivered to Kincardine fairly present the present financial position of Friends, and have been prepared by Friends in accordance with Canadian GAAP consistently applied and reviewed by an independent accountant holding a current membership with a recognized accounting body in the Province of Ontario 10. EVENT OF DEFAULT (a) Where the Friends is in default of any section of this agreement including, but not limited to: . Late or missing documentation · a breach or non-performance or non-observance of any term or condition of this Agreement and, if such default is capable of being remedied, the default continues un-remedied for 5 Business Days after the occurrence · If any judgment for the payment of monies is made against Friends and it is not discharged within 30 calendar days from the imposition of such judgment, then the following process shall be followed by Kincardine: 1. Telephone and/or e-mail contact will be made once the default is 30 calendar days past due 2. A letter shall be sent once the default is 60 calendar days past due 3. The Director of Recreation will provide a written report of the default to Committee of the Whole (COW). Friends agrees that in the event of a default, a representative of the Friends Board will appear as a delegation at the same meeting the Director of Recreation's report is presented to COW to explain the reasons for the default to Council and answer any questions that Council may have relating to the status of the operations of the Pavilion. 4. Council will provide direction to staff in the form of a motion as to how the default is to be managed. 5. In the event that a satisfactory arrangement cannot be worked out between Kincardine and Friends to remedy the default, subject to any other rights it may have under this agreement, or at law, Kincardine may terminate this agreement and any licenses of occupation or other rights that the Friends might have shall be terminated forthwith and Kincardine shall have the right to go into possession and fully administer and operate the Pavilion at its sole discretion. 11. TERMINATION Page 6 of8 (a) This agreement may be terminated by either party giving one year's written notice of termination to the other. (b) This agreement may be terminated without notice at the discretion of either party upon any act of default of the terms of this agreement, by either party subject to the process set out in Section 9 above or upon Friends ceasing to exist. 12. BENEFIT (a) This Agreement shall enure to the benefit and be binding on Friends and Kincardine and their respective successors. 13. ASSIGNMENT (a) This agreement shall not be assigned by Friends without the expressed written consent of Kincardine having been first obtained as authorized by by-law. 14. NOTIFICATION (a) Notification is deemed to be given to each of the respective parties if delivered to : Friends of the Kincardine Beach Pavilion Community Centre 156 Durham St P.O. Box 714 Kincardine, Ontario N2Z 2X9 Attention: Barb Fisher 519-386-9933 The Corporation of the Municipality of Kincardine 1475 5th Concession RR#5 Kincardine, Ontario N2Z 2X6 519-396-3468 (b) Any change in notification address by one party shall be provided to the other party within 10 calendar days of the change. 15. GENERAL (a) This agreement shall become in force and effect only upon its authorization by a by- law of the Council of the Municipality of Kincardine and submission of proof of liability insurance. (b) 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. Page 7 of8 FRIENDS OF THE KINCARDINE BEACH PAVILION COMMUNITY CENTRE C -G -:> . Gv.... ..... ...... ? (President) (" ,... '\ ...A........ ",",. \.:7 0 ~e. , o..J 1~1-4J (Secretary) We have the authority to bind the corporation. THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE ~, ~2 ~~ . ^^, (f::.. John deRosenroll . We have the authority to bind the corporation. Page 8 of8