HomeMy WebLinkAbout20 047 Kincardine Yacht Club Lighthouse Agreement (2020) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY-LAW
NO. 2020 - 047
BEING A BY-LAW TO ENTER INTO A LEASE AGREEMENT WITH THE
KINCARDINE YACHT CLUB (K.Y.C) FOR THE CARE AND OPERATION OF
THE KINCARDINE LIGHTHOUSE AND ASSOCIATED GROUNDS
WHEREAS Section 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001 , c. 25, as
amended, 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;
AND WHEREAS The Corporation of the Municipality of Kincardine deems it
advisable to enter into a lease agreement with the Kincardine Yacht Club for a
period of 5 years beginning the 1st day of June 2020 to the 31st day of May 2025;
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 a lease
agreement with the Kincardine Yacht Club for the care and operation of the
Kincardine Lighthouse and associated grounds, 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 execute, on behalf of the Council of The Corporation of the Municipality
of Kincardine, the agreement with the Kincardine Yacht Club, attached
hereto as Schedule `A' and to affix the corporate seal.
3. That this by-law shall come into full force and effect upon its final passage.
4. That this by-law may be cited as the "Kincardine Yacht Club Lighthouse
Agreement (2020) By-law".
READ a FIRST and SECOND TIME this 30th day of March, 2020.
READ a THIRD TIME and FINALLY PASSED this 30th day of March, 2020.
M
1.0_111 L
Mayor Deputy C erk
S
LIGHTHOUSE LEASE AGREEMENT
This AGREEMENT made this 3(P1 _ day of C'1dcal, 2020.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
hereinafter called the "Municipality"
of the First Part,
-and-
KINCARDINE YACHT CLUB
Hereinafter called the "tenant"
Of the Second Part.
THE BASIS OF THIS AGREEMENT
It is understood that:
1. We, as landlord, own the land and building;
2. You, as tenant, wish to rent the building and we are willing to rent it to you on the
terms in this agreement.
DEFINITIONS
Meaning of Certain Terms
1. In this agreement, unless the context implies otherwise, the following words have
these meanings:
(a) "additional costs" are the items referred to in paragraph 6;
(b) "building" is the building located on the land and every addition made to it as
set out in paragraph 3;
(c) "land" is the land shown in Schedule "A";
(d) "agreement" means this document as originally executed, or as later
amended;
(e) "rented premises" are described in paragraph 3;
(f) "rent" is the money payable by the tenant, referred to in paragraph 5;
(g) "term" is the length of this agreement described in paragraph 4, and any
renewal or extension of it;
(h) "you" and "your" is each person or corporation that has signed this
agreement as the tenant;
(i) "we", "our" and "us" is the landlord and/or its delegate;
(j) "tenant plans" are your outlines of the plans, drawings, specifications and
other information for the rented premises or any revisions to these, all as
approved in writing by the landlord's Chief Administrative Officer or his/her
designate.
2
LENGTH OF AGREEMENT
What this Agreement does
2. In return for your payment of rent, and your acceptance of the terms of this
agreement, we rent the rented premises to you for the term and you rent the rented
premises from us for the term.
What We Are Renting To You
3. The rented premises are that part of the land and building, described as Instrument
4703, Plan 77, Part Lot 10, Registered Plan 3R-7165, Part 5 in the Municipality of
Kincardine (formerly the Town of Kincardine), in the County of Bruce and Province
of Ontario, outlined in red on the sketch attached as Schedule "A" and consists of;
(a) The Kincardine Lighthouse;
(b) All grounds associated with the facility.
How Lona This Agreement Is To Run
4. You may occupy the rented premises for a term of 5 (five) years, to begin June 1st,
2020 and to end March 31st, 2025 (the "term").
WHAT AMOUNTS YOU MUST PAY
Your Obligation to Pay Annual Rent
5. You will pay to us each year of the term $2.00 before the first day of May, 2020
and ending March 31, 2025.
Other Amounts You Are Required to Pay: Operating Costs
6. You will pay all of the operating costs for the land and building, including all interior
maintenance of the lighthouse. Note: Exterior maintenance shall be assumed by
the landlord.
In addition the following shall be the responsibility of the tenant:
(a) You will also pay all rates and other charges for water, electricity and other
utilities used in the land, building, and rented premises.
(b) Except as otherwise provided by this agreement, you will also pay the cost
of maintaining the land and building (interior only). This includes, without
limitation, the cost of heating, air conditioning, lighting, snow removal,
garbage disposal, sewage and waste disposal, all utilities, insurance, and
usual maintenance and minor repair that does not take the form of a major
capital expenditure or improvement. A major capital expenditure or
improvement made necessary because of our obligation to maintain and
repair will be paid by us. You will only be required to maintain the rented
premises in accordance with paragraphs 16, 17 and 18.
The Intention of This Agreement To Be A Net Agreement
7. You agree with us that this agreement shall be a completely net agreement for us,
so that this agreement shall yield, net, to us, the rent without deductions. You must
pay your expenses and obligations relating to the rented premises and you save us
harmless from them. We are responsible only for those items set out in this
agreement.
3
Interest Charged If You Fail To Make A Payment When Due
8. If you fail to make any payment due under this agreement, we will charge you
interest on any overdue portion of the amount payable until it is paid to us. The
rate of interest will be the rate of interest at the time you fail to make the payment
that is equal to the prime lending rate charged by a Canadian chartered bank
selected by us to its most creditworthy customers, plus 6% per annum.
Acceptance of Rented Premises
9. You must notify us of any defects in the rented premises that detrimentally affect
the rented premises, within 30 days after the date you are given occupancy by us.
If no such notice is given, you will be deemed to have accepted the rented
premises in their existing condition and we will not have further obligation to you for
any defects other than defects in structural elements of the rented premises.
Chances by Tenant
10. You must not change the exterior of the rented premises and must not make any
change to structural elements of the rented premises without first obtaining the
written approval of the landlord's Chief Administrative Officer or his/her designate.
Any such change will immediately become our property and will remain upon the
rented premises until the end of the term. Lastly, please refer to Section No. 30 (f)
regarding the heritage designation of the Kincardine Lighthouse.
WHAT USES YOU CAN MAKE OF THE RENTED PREMISES
Your General Obligation
11. You will only use the rented premises for those purposes permitted by the relevant
zoning by-laws and any other laws of application and only in accordance with such
laws. You will keep the rented premises in a clean, tidy and safe condition.
12. The tenant will operate the Kincardine Lighthouse as a key tourism destination by
means of a public museum. The lighthouse museum shall be open to the public in
July and August.
Note: The actual hours of the museum shall be notified each Spring, as
determined by Tourism demands.
The public may be charged a modest fee for touring the lighthouse museum.
Special tours/delegations may be arranged through the Kincardine Yacht Club.
13. The tenant shall be fully responsible for the operation and minor maintenance of
the Kincardine Rear Range Light as a private aid. All major maintenance (over
$150.00) will be the responsibility of the Municipality.
Other obligations of the tenant:
a) The tenant will be obligated to heat the Lighthouse in the winter months.
The temperature will be kept at 5°C to help maintain the interior condition of
the structure.
b) As tenant of the Lighthouse you shall not incumber the walking path located
adjacent (south of the Lighthouse) to the property. As operators of the
Municipal Marina in conjunction with the Lighthouse you will be allocated
space at the Ward #1 Landfill site to store boat cradles. This right will
ensure that the property is clutter free and available for public use.
4
Certain Things You Cannot Do
14. You will not do anything, omit to do something, or let anyone else do anything that
may;
(a) cause waste or injury to the rented premises,
(b) overload the floors of the building,
(c) cause a nuisance or annoyance to anyone occupying property adjoining
the rented premises on the land,
(d) cause the premiums for insurance on the building to be increased or
coverage to be cancelled, or violate any requirements of any insurance
policy upon the building or of any fire, health, municipal or other authority, or
(e) lessen the value of or adversely affect the building.
You Must Comply With Laws
15. You will comply at your own expense with all governmental, sanitary, fire and safety
laws relating to the rented premises.
You Must Not Put Up Skins
16. You will not permit any sign or notice to be inscribed, painted or affixed to be part
of the building or put on the land without obtaining our written consent in
advance. We will not unreasonably withhold our consent. (The intent of this
clause is to protect the historic character of the exterior of the lighthouse and
grounds.)
REPAIR AND MAINTENANCE OF RENTED PREMISES AND BUILDING
Your General Obligation To Repair and Maintain the Rented Premises
17. You assume sole responsibility for the condition, operation, minor maintenance and
management of the land, building, and rented premises, including all leasehold
improvements, trade fixtures and doors or interior of the rented premises.
Excluded from this obligation are structural elements of the rented premises and
other damage which we have covenanted to repair in paragraph 20. In particular,
you will keep the rented premises in the state of repair in which you find them at the
beginning of the term. You will comply with all insurance requirements. We may
inspect the rented premises at any reasonable time to determine whether you have
complied with this agreement. If, in our opinion, you have not so complied, we may
give written notice to you to comply. You shall comply within the reasonable time
provided for in such written notice. If you fail to do so, we can take any steps to
ensure compliance.
You Must Leave the Rented Premises in Good Repair
18. You will also, at the end of the term, leave the rented premises in a good and
reasonable state of repair in accordance with your obligations under this
agreement.
You Must Give Us Notice of Defects or Damages
19. You will notify us as soon as you become aware of any defects in, malfunction
of, or damage to, the rented premises or any equipment, service or utility in them.
Our Obliaation to Repair and Maintain
20. We will keep, in a good and reasonable state of repair the exterior structural
elements of the rented premises.
5
INSURANCE
21. The Kincardine Yacht Club 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 Kincardine Yacht Club and located at the Lighthouse; and
f) A thirty (30) day written notice of cancellation.
2. The Kincardine Yacht Club shall provide the Municipality with a valid
Certificate of Insurance as evidence of the above coverages upon signing
the agreement.
3. The Kincardine Yacht 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 requirement as set out in 3 above. Certificates shall be provided
for the entire period during which this Agreement is in effect.
4. In addition to the tenant's aforementioned insurance requirements the
Municipality of Kincardine shall include the Lighthouse in its building
insurance requirements.
5. The Municipality reserves the right to modify these requirements,
including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances.
INDEMNITY
What You Must Reimburse Us For
22. The Kincardine Yacht 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.
What We Are and Are Not Responsible For
23. We are not responsible for any loss or damage caused to any person or property
(a) except for matters arising directly from structural defects or
exterior maintenance issues in the building,
(b) resulting from the condition, arrangement, interruption in, or breakdown
of any mechanical or electrical equipment or any water, gas, sewage,
electrical power or any other utility in the building,
(c) resulting from anything done or not done by other occupants of the
building, by persons in the rented premises, by occupants of adjacent
property or by the public
6
(d) resulting from any peril which you are required to insure pursuant to
paragraphs 21 and 22.
24. We are responsible for matters arising from our acts, omissions or negligence, and
those of our officers, agents, employees or contractors.
25. Except as specifically set out in this agreement, you will not be entitled to any
abatement of rent for any loss, damage, injury, condition, failure or interruption of
services set out in paragraph 25, nor shall any of those events be considered an
eviction.
WHAT HAPPENS IF THE RENTED PREMISES ARE DAMAGED
26. If the rented premises are partially or wholly destroyed or damaged, should
demolition of the rented premises be made necessary by such destruction or
damage or should the rented premises become unfit for occupancy by you,
(a) subject to our right to terminate pursuant to paragraph 35, we will repair the
rented premises as set out in this agreement. Once we have substantially
completed our work, we will notify you and you will immediately resume your
obligations in accordance with your obligations in this agreement,
(b) rent will not be reduced unless, through no fault of yours, the rented
premises are rendered wholly or partially unfit for occupancy. In this case,
rent will be reduced, from the date of such occurrence, proportionately as to
the portion of the rented premises rendered unfit for occupancy. Rent will be
reduced until, in our reasonable opinion, repairs have been completed, and
(c) if 50% or more of the rented premises are destroyed or damaged or by
demolition made necessary by such destruction or damage, we may elect to
terminate this agreement. Rent will be adjusted as of the date of the
occurrence and you will within seven days after notification by us vacate the
rented premises and surrender them to us.
OUR RIGHT TO ENTER THE RENTED PREMISES
27. We may enter the rented premises at any reasonable time to inspect, view the state
of repair, sweep, clean, dust and do maintenance work (whether or not we are
obligated to perform any of this under this agreement), make repairs, alterations, or
improvements to the rented premises or the building or any building services, and
for any other lawful purpose. You will provide free access for these purposes.
Furthermore, we may enter the rented premises during the last 6 months of the
term to exhibit them to prospective occupants and we may place upon the rented
premises notices advertising them as being available for lease.
WHEN YOU ARE IN DEFAULT UNDER THIS AGREEMENT
28. You will be in default under this agreement if
(a) you default in paying any annual rent, any interest that may be due and
payable, or any other payment that you are obliged to pay us, and such
default continues for a period of 15 consecutive days,
(b) you do not comply with any of your obligations under this agreement and
such default continues for a period of 15 consecutive days or you fail to
diligently attempt to cure such default,
(c) any of your property on the rented premises is sold under a writ of execution,
or you become bankrupt or insolvent,
7
(d) any insurance policy is cancelled or not renewed by an insurer because of
your use or occupation of the rented premises and you fail to take the
necessary action to have the policy reinstated within 2 days after receiving
notice of cancellation or non-renewal,
(e) any lien arises which affects the rented premises or we receive written notice
of any such lien,
(f) the insurance policy on the building would be cancelled because the rented
premises are abandoned, or
(g) you abandon the rented premises.
ENFORCING OUR RIGHTS
Delay In Enforcing Our Rights
29. Any delay or extension of time granted by us to you or any other person in
exercising the enforcement of any of our rights under this agreement does not
affect our right to
(a) receive all payments you are obliged to make to us, when they are due,
(b) have you comply with all your obligations under this agreement, or
(c) exercise all of our remedies as set out in paragraph 37.
IF YOU WANT TO ALTER THE RENTED PREMISES
30. You will not erect or affix any fixture (including leasehold improvements, any trade
fixture, partitions or counters) or remove or change the location or style of any
fixture without the prior written consent of the landlord or designate, such
reasonable request not to be withheld, subject to the following provisions:
(a) you will not interfere with any windows or doors of the rented premises, or
any building services in them, and no fixtures will be attached to the rented
premises which require any change or cause any damage which is not
readily repairable upon the removal of such fixture;
(b) you will repair any damage caused to the rented premises by such
alterations, work and improvements;
(c) all such alterations, work and improvements shall be at your expense;
(d) all such alterations, work and improvements shall be performed in the
manner and by those approved by us and shall cause no personal danger or
damage while being performed or at any other time during the term; and
(e) alterations, work and improvements must comply with paragraph 14.
(f) lastly, since the Kincardine Lighthouse is a historic designated structure, all
renovations shall be consistent with appropriate historic renovations
standards. As such all renovations contemplated for this historically
designated building shall be approved in advance by the Municipality or
designate. The Municipality or designate reserves the right to consult with
Heritage Kincardine for advice as required.
31. You will not create or permit to arise any lien which affects the rented premises. If
any such lien does arise, you will promptly discharge it. If you do not, we may
discharge it at your expense.
8
IF YOU WANT TO ASSIGN THE AGREEMENT OR SUBLET
32. You will not
(a) assign or dispose of this agreement or any interest in it, or
(b) sublet all or any part of the rented premises.
33. If you request or consent to any assignment or sublease, we have the option of
(a) refusing to consent to the assignment or sublease, provided such consent is
not unreasonably withheld, or
(b) consenting to the assignment or sublease.
We will deliver notice of our decision to you within 15 days after we receive your
request for consent. If we fail to deliver notice of our decision within that period, we
will be deemed to have refused to have consented to the assignment or sublease.
34. No assignment or other disposition by you of this agreement or any interest in it will
relieve you from the performance of your obligations under this agreement.
GENERAL PROVISIONS
We May Terminate the Agreement
35. Either party may terminate this agreement upon 180 days written notice.
How Notice Should Be Given
36. Any notice required or contemplated by any term of this agreement will be in writing
and will be deemed to have been validly given if delivered at, or mailed by pre-paid
registered mail to the landlord at 1475 Concession 5, R.R. 5, Kincardine, Ontario,
N2Z 2X6, or such other place as we may designate, and to you at the rented
premises or to such other address as you have given us in writing. Any notice will
be deemed to have been received at the time it was delivered or in the case of
those given by registered mail, on the third business day following the date of
mailing, whether the party received it or not. If there is postal disruption due to
strike, lockout, or other labour dispute any notice must be delivered by personal
service.
If Something Unexpected Happens
37. If either of us is unable to fulfil, or will be delayed in fulfilling, any obligation (other
than the payment of monies) under any term of this agreement because of strikes or
work stoppages, or because of other unavoidable occurrence not caused by the
default, act or omission by such party and not avoidable by the exercise of
reasonable effort and foresight by him, then, so long as any such impediment exists,
that party will be relieved from the fulfillment of such obligation and the other party
will not be entitled to compensation for any damage, inconvenience, nuisance or
discomfort caused by such impediment.
Amendments
38. No amendment to this agreement is binding unless it is written and signed by
both of us.
Severability
39. If any part of this agreement is invalid or unenforceable, the remainder of the
agreement will not be affected by it.
9
Headings
40. Headings form no part of this agreement. They are used so that parts of the
agreement can easily be referred to.
Who is Bound By This Aareement
41. Both will be bound by all the obligations in this agreement. This agreement will
also be binding on both parties' legal or personal representatives and anyone else
to whom interest is validly transferred under this agreement. As well, it will be
binding on anyone to whom it is transferred to.
Applicable Law
42. This agreement will be governed by the laws of Ontario.
Further Assurances
43. Each party shall, at the request of the other, execute such further documents as may
be required to give effect to this agreement.
Entire Aareement
44. This agreement is the entire agreement between us dealing with the subjects
covered in it, and it supersedes any prior agreements between us.
Independent Legal Advice and Sianina The Agreement
45. You have been advised that you should obtain independent legal advice. You have
either obtained such independent legal advice or have waived your right to do so. If
you have read this agreement and you agree to its terms, sign in the spaces provided
for your signatures. Witnesses must sign in the spaces provided for the witnesses'
signatures. Necessary legal seals should be added next to your signature.
AS EVIDENCE of our agreement, we have signed below.
SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE
in the presence of ) MUNICIPALITY OF KINCARDINE
) c� •
4` __ _ _ .
) ayor—Anne Eagle
) I have . thority to bind the landlord.
)01PW; A'_.
-f Administrative Officer—
) Sharon Chambers
) I have authority to bind the landlord.
)
KINCARDINE YACHT CLUB
_(,),,,,V (-4 fe/
(Wane
4. -�.t Commodore/ Jim Cooper
�r`-ve authority to bind the tenant.
f
Wines•. reasurer/Secret —Allison Hooper
I have authority to bind the tenant.
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