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HomeMy WebLinkAbout10 033 Kincardine Yacht Club Agreement By-Law• • • • THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY -LAW NO. 2010 — 033 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH THE KINCARDINE YACHT CLUB INC. TO MANAGE AND OPERATE THE KINCARDINE HARBOUR 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. 2000 — 056, as amended by By -law No. 2000 — 164, By -law No. 2001 — 16, By- law No. 2005 — 105 and By -law No. 2008 — 204 entered into an agreement with the Kincardine Yacht Club Inc. for the management and operation of the Kincardine Harbour. AND WHEREAS The Corporation of the Municipality of Kincardine deems it advisable to renew the said agreement with the Kincardine Yacht Club Inc. for a period of 10 years beginning the 1 day of April 2010 to the 31 day of March 2020; 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 Yacht Club Inc. for the management and operation of the Kincardine Harbour, 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 purchase of the Kincardine Yacht Club's services be subject to provisions under the Municipality's Purchasing & Procurement Policy GG.2.17, Section 6.2 — Best Value Method. 3. 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 Yacht Club Inc., attached hereto as Schedule 'A' and to affix the corporate seal. • • • Page 2 Kincardine Yacht Club Agreement By -law" By -law No. 2010 - 033 4. That this Agreement be in effect for a period of 10 years from the 1 day • of April 2010 to the 31 day of March 2020. 5. That the provisions provided herein supercede any by -laws which are inconsistent with the provisions provided in this by -law. 6. That this by -law shall come into full force and effect upon its final passage. 7. That this by -law may be cited as the "Kincardine Yacht Club Agreement By -law ". READ a FIRST and SECOND TIME this 17 day of March, 2010. ayor Clerk J READ a THIRD TIME and FINALLY PASSED this 17 day of March, 2010. D 4L 1i Clerk -D &flaw ac c This AGREEMENT made this '[ 1 day of vinte,i4 , 2010 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (Hereinafter called the "Municipality" of the First Part) - AND — KINCARDINE YACHT CLUB INC (Hereinafter called the "K.Y.C. "of the Second Part) WHEREAS this is intended to be an agreement for a period of ten years (April 1, 2010 to March 31, 2020); NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of other good and valuable consideration and in 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 owned by the Municipality (herein called the "Harbour "). Facilities shall be the lands in this schedule. SCHEDULE `B ": Harbour Management Operational Notes SCHEDULE "C ": Contractors payment schedule SCHEDULE "D ": Reunion station hours of operation and maintenance schedule SCHEDULE "E ": Rates 2.0 HARBOUR MANAGEMENT 2.1 The Municipality will appoint the K.Y.C. as contractor for the management of the Facilities. Definitions: 1) "Recreation Director" shall mean the Municipality of Kincardine's Director of Recreation; 2) "Treasurer" shall mean the Municipality of Kincardine's Municipal Treasurer; 3) "Committee" shall mean the Municipality of Kincardine's Recreation Services Committee; 4) "Council" shall mean the Council of The Corporation of the Municipality of Kincardine. 3.0 ADMINISTRATIVE SCHEDULE 3.1 The Recreation Director shall be the key contact with respect to normal operations contained in this agreement. 3.2 The Treasurer shall be the key contact with respect to any financial matters contained in this agreement. The financial operations of the marina shall be operated through the Municipality and be subject to municipal audit. 3.3 The K.Y.C. shall present a yearly business plan and financial plan to be reviewed by the Committee subject to approval by Council. 3.4 The Treasurer and the K.Y.C. shall meet and develop a financial protocol that will be followed in order to be in compliance with municipal policy. 4.0 INSURANCE 4.1 The K.Y.C. shall put into effect and maintain in its name, all the necessary insurance that would be considered appropriate for a prudent contractor undertaking this type of operation for the period during which the Agreement is in effect with insurers acceptable to the Municipality, 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) 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) The K.Y.C. coverage on a replacement cost basis for all property owned by the K.Y.C.; and e) A thirty (30) day written notice of cancellation. The K.Y.C. shall provide the Municipality with a valid Certificate of Insurance as evidence of the above coverage upon signing the agreement. 4.2 Indemnity The K.Y.C. agrees to indemnify and hold harmless the Municipality from and against all suits, judgments, claims, demands, expense 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 negligence or willful misconduct. 4.3 The Contractor shall provide to the Municipality a valid WSIB certificate and shall issue new certificates to the Municipality every 60 days. 4.4. Insurance costs will be attributed to the operations of the marina. 4.5 The Insurance Policy will be reviewed every two years. The K.Y.C. shall provide the Municipality with additional Certificates of Insurance within 15 calendar days of an annual renewal for insurance. The policy content review period shall be 120 days in advance of a renewal period. Certificates shall be provided for the entire period during which this Agreement is in effect. 5.0 MARINA RATES (See Consolidated Rates & Fees By -Law) 6.0 GENERAL NOTES 6.1 All rates will be proposed by the contractor, considering good business practices and adjacent harbour rates, for annual review and approval by the Municipality. The rates will be published annually. 6.4 The K.Y.C. will be responsible for maintaining a public marina and ensuring a well- maintained operation. 6.5 The K.Y.C. in cooperation with the Municipality shall offer free dockage to the Bluewater Rescue Unit on the North wall. 6.6 The K.Y.C. shall continue the cleaning and maintenance of the Reunion Station Building (see attached hours and duties Schedule "D "). 6.7 There is a vision to build a new Marina washroom facility in addition to a new Marina Office within the term of this agreement contingent upon a business plan being developed and suitable financial partnerships being arranged. 7.0 TERMS OF AGREEMENT 7.1 This agreement shall start April 1, 2010 and will terminate March 31, 2020. 7.2 This agreement may be terminated by either party, in writing with rationale, with a sixty (60) day notice period being utilized. 7.3 Upon expiry of this ten (10) year agreement, the K.Y.C. will have the option of extending this agreement for another five (5) year term. SIGNED, SEALED AND DELIVERED in the presence of Witness 6.2 Members of the public that join the K.Y.C. and use dock facilities may on approval by the contractor exercise a work detail option, which would be reimbursed at the approved labour rate. 6.3 The public launch ramp in the harbour basin shall not be chained or obstructed in a manner that prevents boaters from launching their craft, except for safety or maintenance requirements as determined by the K.Y.C. THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE CAO — John deRosenroll We have the Authority to bind the Corporation KINCARDINE YACHT CLUB INC. J AfII K.Y#i . Commodo ' ' PER K.Y.C. Secretary /Tre'urer F✓,3v2A N PEGG- We have the Authority to bind the Corporation Vision: The K.Y.C. Agreement SCHEDULE B Kincardine Harbour Management Operational Notes The harbour facilities will be operated in a manner which encourages boating in the Kincardine area, promoting the enjoyment and sportsmanship of recreational boating, while showing regard for the harbour's role as an important tourism attraction for the non - boating public. Principles of Operation: 1. Integrated harbour operations for all boaters (sail and power). 2. Welcome public access to areas surrounding waterfront facilities, which respects the privacy of transient and seasonal slipholders and supports the safe and efficient operation of harbour facilities. 3. Public accounting for the marina operations. 4. Continued upgrading of facilities in keeping with good business decisions. 5. Management by a clearly defined, single source with experience in harbour operations. 6. Financial benefit to owners and contractor after the operating costs. 7. Long -term arrangement with contractors to facilitate planning Methodology: 1. All rates will be proposed by the K.Y.C., considering good business practices and adjacent harbours, for annual review and approval by the Municipality. The rates will be published annually. 2. The K.Y.C. shall submit a business plan and budget to the Recreation Services Committee for the Municipality's review and approval. The business plan and budget shall cover all items of operations, improvement and maintenance. 3. The Recreation Director shall be the liaison and the administrator of this agreement on behalf of the Municipality. 4. The Treasurer shall meet with the K.Y.C. and develop a financial protocol that shall meet the requirements of the Municipality and the K.Y.C. 5. Costs of operating items not specifically outlined in the business and financial plan shall be paid from revenues of operation (upon mutual agreement by the K.Y.C. and the Municipality). All changes to the appropriate budget must be reviewed and approved by the Recreation Director prior to purchase. The net budget must stay within the approved parameters unless a Council approved budget amendment is approved. 6. Members of the public that join the K.Y.C. and use the dock facilities may, on approval by the contractor, exercise a work detail for reimbursement at the approved labour rate. 7. The public launch ramp to the harbour basin shall not be chained or obstructed in a manner that prevents boaters from launching their craft, except for safety or maintenance requirements as determined by the K.Y.C. 8. Ramp service shall be provided free to all members of the public. 9. Harbour facilities include: - Harbour basin and north wall; - Lands surrounding the basin associated with harbour operations; - Areas for winter storage owned or leased by the Municipality. 10. A portion of the docks shall be reserved for transient boats and shall not be leased for the season. A minimum of 14 slips shall be reserved with a minimum of 7 being with floating finger docks. 11. Dock slips are handed out on a first come first serve basis, assigned by the K.Y.C. The waiting list shall be kept at the marina office and will be available at all times. 11. All fees must be paid in advance of service or use of the facility. Marina fees must be paid on or before March 31 of the current year in order to be assigned a slip. Charter boats will pay the same as the seasonal rate or transient rate. 12. All harbour infrastructure is owned by the Municipality. 13. All marina staff that work at the Harbour are employed by the K.Y.C. 14. The K.Y.C. shall be solely responsible for the acquisition of goods and choice of suppliers. All fees associated with Marina operations are to be submitted to the Municipality. 15. The intention of this agreement is to maintain/replace all infrastructure in the harbour basin and facilities. (i.e. washrooms, docks, lighting, etc). Priority will be given to direct marina requirements. This agreement recognizes that amortization of assets through PSAB will be an accounting reality at the end of 2010. Cash generated from the net marina operating profit will be used first to repay any existing loan advanced from the W1 Equipment Replacement Reserve fund outstanding as of the date of this agreement and the remainder shall be transferred to the Marina Reserve Fund. Schedule C of this agreement will recognize the transition from an historic profit sharing agreement to a PSAB compliant agreement that acknowledges the amortization of harbour assets. 16. Winter Storage — the location of the boats to be confirmed by the Municipality prior to the first weekend in October. It is the intent of the Municipality to not store boats in front of the condominiums. Alternative boat storage areas will be provided along the south side of the harbour basin. 17. Terms of Proposed Agreement i) Ten Year Contract (April 1, 2010 to March 31, 2020); ii) Invoices to be paid by the Municipality; iii) Upon expiry of the ten (10) year contract, the K.Y.C. will have the option of extending this agreement for another five (5) year term. 18. All future capital investments (as defined by the Municipality's Capital Asset Policy) at the marina shall be subject to recommendation by the Committee and approval by Council. 1. For year 1 and year 2 of the agreement the cost sharing will be: - 50% of the net profit after operating expenditures to the K.Y.C. - 50% of the net profit after operating expenditures to the Municipality In the event of a net loss: The K.Y.C. Agreement SCHEDULE "C" PROFIT SHARING SCHEDULE The Municipality will absorb the financial loss and the contractor will not receive a payment. The net loss will be subsequently funded from the Marina Reserve Fund. 2. For years 3 through 10, the funding arrangement will be based on PSAB requirements with direct relevance to the amortization of the harbour assets. Both parties recognize that in year #2, a specific negotiation will take place once all PSAB information is known and an appropriate financial distribution schedule will be created in accordance with PSAB requirements, subject to recommendation by Committee, and approval by Council. COMMON ROOM - MAINTENANCE WASHROOMS — MAINTENANCE The K.Y.C. Agreement SCHEDULE `D" REUNION STATION 1. Daily cleaning of floor. 2. Daily minor repairs. Major repairs to be reported to the Recreation Director. 3. Weekly cleaning of windows, doors, walls, etc. 4. The K.Y.C. to be in charge of all bookings for Common Room. COMMON ROOM - HOURS OF OPERATION 1. Open from June 1 to Labour Day from 8 a.m. — 9 p.m daily. 2. Will be open during the Spring and Fall while the K.Y.C. staff on duty and also at any other times due to special requests. 1. Daily cleaning of washrooms including toilets, urinals, sinks, mirrors, counter tops and removal of garbage. 2. Daily cleaning of floors and showers. 3. Daily filling of soap dispensers and toilet paper dispensers. 4. Daily minor repairs. Major repairs to be reported to the Recreation Director. WASHROOMS - HOURS OF OPERATION Daily from 8 A.M. — P.M. May to October GENERAL The K.Y.C. is responsible for the above only during periods when staff are on duty for Marina operations. Activities outside these periods shall be the responsibility of the Municipality. The K.Y.C. Agreement SCHEDULE `E" RATES 1. All rates are as stated in the Consolidated Rates & Fees By -Law as approved by Council.