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HomeMy WebLinkAbout10 020 Rotary Park Agreement By-Law• • THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY -LAW NO. 2010 — 020 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH THE KINCARDINE ROTARY CLUB FOR THE OPERATION OF THE CONCESSION BOOTH AT REUNION PARK WHEREAS Section 8 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides 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 WHEREAS pursuant to the said Municipal Act, Section 9 provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS the Municipality of Kincardine with the passage of By -law No. 1999 -19 entered into an agreement with the Kincardine Rotary Club for the operation of a concession booth on the lands commonly known as `Reunion Park'. AND WHEREAS The Corporation of the Municipality of Kincardine deems it advisable to renew the said agreement with the Kincardine Rotary Club for a 10 year period beginning the 1 day of January 2010 to the 31 day of December 2019; 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 agreement with the Kincardine Rotary Club for the operation of a concession booth at Reunion Park, in accordance with the terms and conditions outlined in the agreement attached hereto as Schedule `A' and forming part of this by -law. 2. That the Mayor and Chief Administrative Officer be authorized and directed to sign and execute, on behalf of the Council of The Corporation of the Municipality of Kincardine, the agreement with the Kincardine Rotary Club, attached hereto as Schedule 'A' and to affix the corporate seal. 3. That this Agreement be in effect for a period of 10 years from the 1 day Ill of January 2010 to the 31 day of December 2019. ...12 • • • • a§or Page 2 Rotary Park Agreement By -law" By -law No. 2010 - 020 4. That this by -law shall come into full force and effect upon its final passage. 5. That this by -law may be cited as the "Rotary Park Agreement By -law ". READ a FIRST and SECOND TIME this 3rd day of March, 2010. 2 Clerk READ a THIRD TIME and FINALLY PASSED this 3rd day of March, 2010. ai2O Clerk U cckectuk At - Ig k w 4D. aO 1 D OQD This AGREEMENT made this 3 of ale 2010 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (Hereinafter called the "Municipality" of the First Part) - AND — KINCARDINE ROTARY CLUB (Hereinafter called the "Club" of the Second Part) WHEREAS the Club has leased Municipal lands and operated a concession booth on the lands commonly known as Reunion Park and harbor area in the in the Municipality of Kincardine under Agreement dated March 9, 1999. AND WHEREAS both parties wish to renew the said agreement for a further period of ten years, among other considerations; NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises and mutual promises and covenants hereinafter contained, the parties hereby agree as follows: 1. TO HAVE AND TO HOLD the said premises for and during the term of January 1, 2010 to Dec 31, 2019 2. YIELDING AND PAYING THEREFORE the sum of $1.00 with rent of $5,000.00 over the subsequent 10 years or term of the agreement. The donation is to go towards park improvements at Reunion Park. The $5,000 rent will be broken down into 10 yearly payments of $500 each, due to the Municipality by September 30 of each year. 3. The Club covenants to repair all buildings and equipment and leave the premises in good repair, as well as ensure the area is clean and garbage properly disposed of. The Rotary Club agrees to have the building painted prior to the 2011 season and every three years after that at their expense. 4. The Club agrees that no additions will be added to the booth without first having obtained the permission of the Municipality. The Club agrees to submit a plan for any additions to the booth for the Municipality's approval and to comply with any requirements established by the Municipality with respect to permits, lighting, colour and style of the building. 5. The Club agrees that all signage for the facility will be professionally produced. 6. The Club covenants that the Municipality, through its authorized agents, may enter and view the state of repair during all reasonable hours, on reasonable notice. 7. The Club covenants that the demised premises will not, during the said term, be at any time used for any other purpose that that of a seasonal take -out food concession booth, to operate during the months of May, June, July, August, September and October. 8. If for any valid reason the Municipality requires the use of the lands upon which the booth sits, then the Club agrees to negotiate with the Municipality for a mutually acceptable site within Reunion Park which will have all present facilities (eg. , water, hydro, sewer, parking) supplied by the Municipality at no cost to the Club within 90 days. 9. The Club covenants to pay all charges for hydro and water used by the Club in the demised premises. 10. The Club covenants to maintain meters for water and hydro service in order that actual costs for these services can be directly billed to the Club. 11. The Club covenants to keep the lands surrounding the booth free from litter, debris and other garbage created as a result of the food concession operation. 12. The Club covenants to dispose of all refuse in accordance with the Municipality's applicable by -laws. 13. The Club agrees that the operation of this activity by the Club is not exclusive, and the Municipality may, at any time, grant further concession rights to any other person or group as the Municipality feels is appropriate in its absolute discretion. 14. The Municipality covenants with the Club for quiet enjoyment. 15. The Municipality covenants to give the Club, their agents, clerks, servants and all persons transacting business with the Club, in common with other persons, the right to enter the demised premises by means of the main entrance on Huron Terrace and free use of the Russell Street passages from the streets to the said premises at all reasonable times. 16. And it is further declared and agreed that the Municipality shall not be liable for any damage to any property at any time upon the demised premises arising from steam, water, rain or snow, which may leak into, issue or flow from any part of the said lands or from the water, steam or drainage pipes or plumbing works of the same or from any other place or quarter for any damage caused by or attributable to the condition or arrangements of electric or other wires on the said demised premises. 17. Indemnity —The Kincardine Rotary Club agrees to fully indemnify and hold harmless the Municipality from and against all suits, judgments, claims, demands, expenses, actions, causes of action and losses of any kind and for any and all liability for damages to property and injury to persons (including death) which the Municipality may incur, sustain or suffer as a result of, arising out of or in any way related to the matters addressed in this Agreement, unless such losses are caused solely by the Municipality's own gross negligence or willful misconduct. 18. Insurance — The Kincardine Rotary Club shall put into effect or ensure that, 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 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) 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) Tenant's Legal Liability e) Contents coverage on a replacement cost basis for all property owned by the Rotary Club f) A thirty (30) day written notice of cancellation 2. The Rotary Club shall provide the Municipality with a valid Certificate of Insurance as evidence of the above coverage upon signing the agreement. 3. 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 Kincardine Rotary Club's existing policy at the date notice is provided. 4. The Kincardine Rotary Club 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 requirements as set out in 3 above. Certificates shall be provided for the entire period during which this Agreement is in effect. 19. Provided that the Club will not do or permit anything to be done on the said premises or permit or keep anything therein which may be annoying to the Municipality or other occupants of the said premises or which the said Municipality may deem to be a nuisance and that no machinery shall be used therein which shall cause any undue vibration in or to the said premises and that in case of the Municipality or any other occupants of the said premises reasonably complaining that any machinery or operation of process is a nuisance to it or them of which causes any undue vibration or noise on the said premises, that upon receiving notice thereof, the said Club will immediately abate such nuisance. The said Club covenants not to obstruct or interfere with the rights of the Municipality or other occupants of the said premises or in any way injure or annoy them or conflict with any of the rules and regulations of the Board of Health or with any Statute or Municipal By -Law. 20. There shall be no abatement from or reduction of the rent due hereunder, nor shall the Club be entitled to damages, losses, costs or disbursements from the Municipality during the term hereby created on, caused by or on account of fire, water, sprinkler systems, partial or temporary failure or stoppage of heat, light or plumbing services in or to the said premises or buildings, whether due to acts of God, strikes, accidents, the making of alterations, repairs, renewals, improvements, structural changes to the said premises or buildings or the equipment or systems supplying the said services, or from any cause whatsoever; provided that the said failure or stoppage be remedied within a reasonable time. 21. That any notice which either of the parties is required or permitted to give pursuant to any provision of this lease may, if intended for the Club be given, in writing, to the President or Secretary of the Club, or mailed by registered mail addressed to the Club at P.O. Box 113, Kincardine, ON, N2Z 2X6, and if intended for the Municipality by a writing left at the office of the Clerk, RR # 5, Kincardine, ON N2Z 2X6, or mailed by registered mail by registered mail addressed to the Municipality of Kincardine at the Municipality's said premises and such notice shall be deemed to have been given at the time it was delivered or mailed, as the case may be. 22. Provided further and it is hereby agreed that should the Club hold over after the expiration of this lease and the Municipality thereafter accept rent for the said premises the Club shall hold the said premises as a monthly tenant only of the Municipality but subject in all other respects to the terms and conditions of this lease. 23. The Club shall have the right to renegotiate this lease for a further period on terms and with terms acceptable to the Municipality, first option to renegotiate. 24. The Club agrees that upon expiration of this lease or any subsequent negotiated renewals, the booth shall be removed from the said lands and the area returned to its original state. 25. The words importing the singular number only shall include the plural and vice versa, and words importing the masculine gender shall include the feminine gender, and words importing persons shall include firms and corporations and vice versa. 26. This lease is not assignable without the written permission of the Municipality. 27. This Agreement shall inure to the benefit of and be binding on the respective heirs, executors, administrators, successors and assigns of the parties hereto (and shall run with the said land owned by the parties). 28. This agreement may be terminated by either party, in writing, with a sixty (60) day notice period being utilized. 29. In the event that the Rotary Club is unable to lease the snack booth, both parties agree to meet and discuss options on a go forward basis. SIGNED, SEALED AND DELIVERED In the presence of THE CORPORATION OF T UNICIP 7 0 INCARDINE KINCARDINE ROTARY CLUB Mayor — . Kraemer CAO —John deRosenroll We have the authority to bind the Corporation President —John Hill a 4 t 9 6 Ar- 4 ' it Secretary — Caroline Young