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HomeMy WebLinkAbout10 086 Kincardine Scottish Festival & Highland Games Agreement By-Law• • THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY -LAW NO. 2010 — 086 BEING A BY -LAW TO ENTER INTO AN AGREEMENT WITH THE KINCARDINE SCOTTISH FESTIVAL & HIGHLAND GAMES FOR THE PROVISION OF MUNICIPAL SERVICES DURING THE SCOTTISH FESTIVAL AND HIGHLAND GAMES EVENT 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 Kincardine Scottish Festival & Highland Games (KSFHG) previously operated as a Committee of the Council of the Municipality of Kincardine; AND WHEREAS the KSFHG is now a non - profit corporation incorporated pursuant to the laws of the Province of Ontario for the purpose to educate and increase the public's understanding and appreciation of the arts; AND WHEREAS it has been deemed advantageous for the KSF &HG to organize, operate and manage the Kincardine Scottish Festival & Highland Games event; AND WHEREAS The Corporation of the Municipality of Kincardine deems it advisable to enter into an agreement with the KSF &HG for a period beginning at 12:01 a.m. the day following the KSF &HG's founding meeting and ending December 31, 2014; 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 Scottish Festival & Highland Games for the provision of municipal services during the Scottish Festival and Highland Games event and in accordance with the terms and conditions outlined in the agreement attached hereto as Schedule 'A' and forming part of this by -law. ...12 • • • 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 KSF &HG, attached hereto as Schedule `A' and to affix the corporate seal. 3. That this Agreement be in effect for a period beginning at 12:01 a.m. the day following the KSF &HG's founding meeting and ending the 31 day of December 2014. 4. That this by -law shall come into full force and effect at 12:01 a.m. the day following the KSF &HG's founding meeting. 5. That this by -law may be cited as the "KSF &HG Agreement By -law ". READ a FIRST and SECOND TIME this 16 day of June, 2010. READ a THIRD TIME and FINALLY PASSED this 16 day of June, 2010. Page 2 KSF &HG Agreement By -law" By -law No. 2010 - 086 Clerk Clerk BETWEEN: -and- KINCARDINE SCOTTISH FESTIVAL & HIGHLAND GAMES INC. AGREEMENT 1.1 1.2 1.3 The AGREEMENT made this i (p day of Jure. , 2010 THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE hereinafter called the "Municipality" of the First Part, KINCARDINE SCOTTISH FESTIVAL & HIGHLAND GAMES INC. hereinafter called the "KSFHG" of the Second Part. WHEREAS the Kincardine Scottish Festival & Highland Games previously operated as a Committee of the Council of the Municipality; AND WHEREAS the Kincardine Scottish Festival & Highland Games Inc. is now a non - profit corporation incorporated pursuant to the laws of the Province of Ontario for the purpose to educate and increase the public's understanding and appreciation of the arts by providing performances of an artistic nature in public places, senior citizens' homes, churches, community centres and educational institutions and by providing seminars on topics relating to such performances. To provide instructional seminars on topics related to the performing and visual arts. To produce performing arts festivals for the purposes of educating and advancing the public's understanding and appreciation of performing arts and to educate artists through participation in such festivals and related workshopsi AND WHEREAS Sections 8 (1) and 9 of the said Municipal Act, 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 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 it has been deemed advantageous for the KSFHG to organize, operate and manage the Kincardine Scottish Festival & Highland Games ( "the event "); NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual covenants and agreements hereinafter contained, and subject to the terms and conditions hereinafter set out, the parties agree as follows: 1. TERMS OF OPERATION The KSFHG shall organize the annual Kincardine Scottish Festival & Highland Games. The KSFHG shall control the rights of the name `Kincardine Scottish Festival', the website www .kincardinescottishfestival.ca, and the logo as depicted in Schedule `B' of this Agreement. The KSFHG assumes all responsibility for the operation of the event. 1.4 The KSFHG shall have the use of Victoria Park, including hydro service, for the first full weekend in July at no cost. Any additional hookup or disconnection costs are the responsibility of the KSFHG. 1.5 The KSFHG shall not alter Victoria Park or any feature within it and shall return the Park to the condition it was received. The KSFHG is responsible for the cost of repairing any damages to the Park or any of its features, unless caused by an act of God and /or not under the control of the festival. 1.6 The KSFHG shall have the use of the office located in the Kincardine Arts Centre, subject to a rental agreement with the Municipality. For the weekend of the Festival and other occasions as agreed between the KSFHG and the Parks and Recreation Department of the Municipality, the Scougall Gallery will be used exclusively by the KSFHG. 1.7 The KSFHG shall receive any office furniture, computers, printers, fax machines, telephones or office supplies. Note, this is an exemption to the Municipality's Surplus Goods and Equipment Policy GG.2.9. 1.8 The Municipality shall support KSFHG by providing Public Works, Parks & Recreation, and Tourism staff, subject to any municipal emergency situation which would take precedence. The municipal staff time includes items such as erecting barricades, moving picnic tables, garbage cans, recycling containers, snow fencing, grass cutting, washing the band shell, and general clean up. The Municipality will not be responsible for damage to private property excluding any required repairs to fields damaged by the "Heavy Games ". 1.9 The Municipality will dispose of 150 bags of garbage at no charge. The KSFHG will be invoiced the standard bag tag charge for any bags in excess of this volume. KSFHG agrees to abide by any future policies and regulations concerning the use of "green" products and collection and disposal of waste that the Municipality may in future bring into effect. 1.10 The Municipality shall provide promotional support for the event via the Municipality of Kincardine website and Tourist Information Centre. 1.11 The Municipality agrees to offer advance tickets for the event for sale through the Tourist Information Centre. 1.12 The KSFHG agrees to annually submit a Special Events Application to the Municipality, which covers such items as road closures, noise by -law exemptions, liquor licence requirements, and tent permits, etc., and to comply with the Special Events Policy. 1.13 The KSFHG shall accommodate the weekly Kincardine Scottish Pipe Band traditional parades. 1.14 The KSFHG shall assume the contract between the Municipality and the Scottish Festival Event Manager. 1.15 The existing inventory of other materials such as flags, trophies, t- shirts, cabinets, wristbands, extension cords, signs, table cloths and other miscellaneous items shall become the property of the KSFHG. Note this is an exemption to the Municipality's Surplus Goods and Equipment Policy GG.2.9. 1.16 The KSFHG will pay all direct costs for police services required by a By -law of the Municipality and /or a directive from the local inspector for the Alcohol and Gaming Commission of Ontario, for paid duties at Victoria Park during the festival weekend. The Municipality will continue to pay all other police services costs associated with the "Clan Parade ", and all normal policing services. 2.0 FINANCIAL 2.1 The Municipality shall transfer the current balance of the Kincardine Scottish Festival Reserve subject to the terms and conditions of the Memorandum of Understanding attached hereto as Schedule `A' and to Council's execution of this agreement. 2.2 The KSFHG shall be solely responsible for the risk of all profit/loss related to responsibilities under this agreement. 3.0 INSURANCE /INDEMNITY 4.0 TERM 3.1 The KSFHG 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. 3.2 The KSFHG 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 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; 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 KSFHG and located at the Arts Centre; and f) A thirty (30) day written notice of cancellation 2. The KSFHG shall provide the Municipality with a valid Certificate of Insurance as evidence of the above coverages upon signing the agreement. The KSFHG shall provide the Municipality with any renewal replacement certificates as may be necessary during the term of the Agreement. 3. The KSFHG shall be responsible to obtain Certificates of Insurance for the above coverages from each vendor /tenant and shall make these available to the Municipality for its review if requested. 4. Following consultation with the Municipality of Kincardine and after payment of all debts and liabilities, all remaining property, chattels and money shall be distributed or disposed of at the discretion of KSFHG subject to the provisions of the Corporations Act. This clause is in effect only if the corporation disbands. 4.1 This agreement shall commence on the and shall continue until December 31, 2014. 4.2 This agreement may be renewed for an additional period. 4.3 Either party may terminate this agreement by giving ninety days written notice to the other. 5.0 GENERAL 5.1 This agreement shall be binding on the Municipality and any successor municipal corporation, which may succeed or replace the Municipality. 5.2 This agreement shall not be assigned or transferred by the KSFHG without the expressed written consent of the Municipality. 5.3 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 the KSFHG By- law. The issue of any charitable tax receipts up to and including the date of the implementation of the By -law shall be the responsibility of the Municipality of Kincardine; any necessary tax receipts after this date are the responsibility of the KSFHG. 5.4 Any changes or amendments to this agreement may only be made by further agreement in writing and duly authorized and signed by the parties. IN WITNESS WHEREOF the parties hereto have executed this Agreement. SIGNED, SEALED AND DELIVERED In the presence of THE CORPORATION OF THE MUNICIPALITY KINCARDINE _,� —f r,� son CAO — John deRosenrbll We have the authority to bind the Corporation Kincardine Scottish Festival & Highla d Games Inc. ,r f Chairper etary We have the Ma — Larry Kraemer uthority to bind' the Corporation Schedule `A' Kincardine Scottish Festival & Highland Games Inc. Agreement Memorandum of Understanding: Transfer of the Kincardine Scottish Festival Reserve Funds 1 Eighty (80)% of the adjusted reserve balance subject to a $5,000 retention as of the date of the KSFHG by -law comes into effect is released within 3 days. 2. The adjusted balance will be determined as the balance in the KSF reserve on that day increased or decreased by the net surplus /deficit for the KSF as a committee of Council posted to the accounts as of that day. 3. If the adjusted reserve balance is a negative amount, the KSFHG will have 28 days following the date of the current year's festival or 28 days following the by- law, whichever comes later to reimburse the municipality. 4. The Municipality will pay invoices incurred and submitted to the Municipality prior to the day the by -law comes into effect from the moneys withheld. Invoices not submitted to Treasury prior to the day of the by -laws come into effect will be paid by KSFHG. no matter when they are incurred. 5. Within 28 days of the date the KSFHG by -law comes into effect a final accounting of the transactions will be determine. If there is a balance in the reserve once adjusted for the transactions between the by -law date and the intervening month, a cheque will be issued to the KSFHG. If however, there is a balance owing to the Municipality, the KSFHG will issue a cheque to the Municipality with 28 days of the final day of the current year festival or the day the by -law came into effect, whichever comes later. Schedule `B' Kincardine Scottish Festival & Highland Games Inc. Agreement