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HomeMy WebLinkAbout99-48 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 99-48 Being a by-law to authorize the execution of An agreement between the Corporation of the Municipality of Clarington and the Clarington Board of Trade THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Municipal Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington, and seal with the Corporate Seal, an agreement between The Corporation of the Municipality of Clarington and The Clarington Board of Trade. 2. THAT this agreement attached hereto as Schedule"A" form part of this by-law. By-law read a first and second time this 12th day of April 1999 By-law read a third time and finally passed this 12th day of April 1999 MA O UNICIPAL CLERK THIS AGREEMENT is made as of this 12th day of April, 1999. BETWEEN: THE CLARINGTON BOARD OF TRADE (hereinafter called the `Board of Trade") OF THE FIRST PART THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE SECOND PART AGREEMENT WHEREAS: A. The Board of Trade is incorporated under the laws of the Province of Ontario to promote and improve access to commercial/industrial development opportunities in the Municipality of Clarington and to strive to improve commerce and the economic well-being of the Municipality; B. The members of the Board of Trade include,among others,corporations,partnerships,firms and associations that carry on business in the Municipality of Clarington; C. Prior to the incorporation of the Board of Trade, the Clarington Board of Trade Steering Committee ("Steering Committee") was formed to assist in the dissemination of information and in the initial development of the Board of Trade concept and its incorporation; D. Report#Admin-56-97 was approved by the Municipality's Council at its meeting of December 8, 1997. The Report recommended that: - Council endorse the establishment of an independent Board of Trade"in partnership with the representatives of the Clarington Business Community"; - Council enter into a three year agreement with the Board of Trade to provide financial support up to the following amounts: Year Amount of Financial Support 1998 - $35,000 1999 - $50,000 2000 - $75,000, based on the presentation by the Board of Trade to and approval by Council of an annual work program and operating budget by February 15th of each year; - the Board of Trade be responsible for the delivery of services in the area of Economic Development commencing in the year 2000; E. In 1998, since the Board of Trade had not been incorporated, the Municipality paid appropriate invoices submitted by the Steering Committee to the Municipality for certain operating expenses incurred by the Committee. These payments did not exceed in total the sum of$35,000.00. The Municipality intends to continue to administer Municipality funds for the Board of Trade on the same basis as in 1998 until the Municipality has approved the Board of Trade's business plan,work program and operating budget; F. In 1998, the Steering Committee employed a Membership Coordinator on a part-time basis; G. The Parties acknowledge that the principal components of a successful economic development program in the Municipality are business attraction and business retention, and that team work and cooperation between the Municipality and the business community represented by the Board of Trade is essential; H. The Parties have agreed to enter into this Agreement in order to implement to the extent possible the recommendations contained in Report#Admin-56-97 for the year 1999 and 2000; and I. This Agreement is authorized by By-law No. 99-48 passed by the Municipality's Council at its meeting on April 12, 1999. NOW THEREFORE WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of Canada now paid by each Party to the others (the receipt whereof by each Party is hereby acknowledged), the Parties hereto covenant and agree to and with each other as follows: 1.0 Term 1.1 This Agreement shall commence on the day on which it is made and shall terminate on December 31, 2000 (the "Initial Term"),unless the Term is extended or renewed by written agreement of the Parties made at the request of the Board of Trade and approved by the Municipality's Council. Subsequently, the Parties may in the same manner by written agreement further extend or renew the Term of this Agreement from time to time. 2.0 Responsibilities of Parties 2.1 Responsibilities of Board of Trade 2.1.1 If it has not done so by then, forthwith after the date of this Agreement, the Board of Trade shall prepare a business plan at least for the unexpired portion of the Initial Term and shall submit the same to the Municipality. The Municipality may approve it with or without modifications. After approval, the Business Plan shall be the "Approved Business Plan" for the purposes of this Agreement. 2.1.2 A new three year business plan shall be prepared by the Board of Trade and submitted to the Municipality for its consideration and if appropriate its approval with or without modifications no later than December 1, 2000 if the Initial Term of this Agreement is extended or renewed pursuant to paragraph 1.1. Similarly, if from time to time further extension or renewal of the Term of this Agreement is made, a new three year business plan shall be prepared by the Board of Trade and submitted to the Municipality by December 1 st of the year immediately preceding such extension or renewal for its consideration, and if appropriate,its approval with or without modifications. The latest business plan to be so approved is the "Approved Business Plan" for the purposes of this Agreement. The Approved Business Plan may be amended from time to time with the approval of the Municipality's Council. 2.1.3 In each year of the Term of this Agreement and any extension or renewal thereof, the Board of Trade shall prepare a report of its activities for the previous year ("Annual Report") and a work program for the current calendar year (the "Annual Work Program"), as well as a proposed budget for the current year in a form satisfactory to the Municipality's Treasurer. Each Annual Work Program and proposed budget shall demonstrate to the satisfaction of the Municipality how the Board of Trade intends to implement the Approved Business Plan and this Agreement in the year in question. Each Annual Work Plan shall also set out what -3- amendments, if any, should be made to that Approved Business Plan. The Annual Report, the Annual Work Program and the proposed budget for the then current year shall be submitted to the Municipality by February 15th of each year of the Term or any extension or renewal thereof, so that they can be considered by Municipality in conjunction with the Municipality's budget processed with the Board of Trade's then current application for financial support from the Municipality, provided that such support shall not exceed Fifty Thousand ($50,000.00) Dollars for 1999 and Seventy-Five Thousand ($75,000.00) Dollars for 2000. (The approved Annual Work Program for each year of this Agreement and any extension or renewal thereof is referred to hereinafter as the "Approved Annual Work Program".) 2.1.4 Notwithstanding paragraph 2.1.5 hereof, the Board of Trade will not enter into a contract of employment with any person who is to be the Board of Trade's Economic Development Officer until this Agreement has been executed by the Board of Trade and by the Municipality and is in force. The duties and responsibilities of the Economic Development Officer shall be consistent with the Approved Business Plan and the Approved Annual Work Program for 1999. 2.1.5 Subject to (1) compliance with paragraph 2.1.1 hereof, (2) the approval by the Municipality of the Board of Trade's Annual Work Program and operating budget for 1999 and (3) authorization of financial support of up to fifty Thousand ($50,000.00) Dollars to the Board of Trade by the Municipality for expenditure in 1999, the Parties record their intention that in 1999, after consultation with the Municipality's Chief Administrative Officer, the Board of Trade will advertise for, interview and employ a suitable, qualified person as the Board of Trade's Economic Development Officer to take office by July 1, 1999. The Board of Trade shall not represent in any way to any person that its Economic Development Officer will be either a full-time or a part-time employee of the Municipality, or will be entitled to any of the benefits of an employee of the Municipality, including without limitation, the right to participate in the Ontario Municipal Employees Retirement System plan. The Board of Trade shall provide a copy of this Agreement to each candidate who is interviewed for employment as the Economic Development Officer. 2.1.6 As soon as the Board of Trade gives written notice that it is able to do so following the employment by the Board of Trade of an Economic Development Officer, the Board of Trade shall undertake primary responsibility in the areas of business attraction and business retention in the Municipality of Clarington. All actions undertaken by the Board of Trade and its employees shall be consistent with the ethical practices of the Municipality and its staff, and shall promote the Municipality to businesses in manner agreeable to the Municipality's Council. 2.1.7 For the avoidance of doubt, the Parties acknowledge and agree that the Board of Trade is exclusively responsible for the payment of any and all compensation and benefits to its staff full-time and part-time employees,including but not limited to the Membership Co-ordinator, the Economic Development Officer and other staff that it may employ. If at any time funds in excess of the financial support referred to in Recital"D"are required by the Board of Trade for the payment of such compensation and benefits or for any other of its purposes,the Board of Trade acknowledges and agrees that it is exclusively responsible to raise any necessary funds from persons other than the Municipality. 2.1.8 The Board of Trade shall satisfy the requirements of all applicable laws in respect of its employees and in respect of the workplace for its activities. 2.1.9 Notwithstanding the Board of Trade's assumption of primary responsibility in the areas of business attraction and business retention in the Municipality of Clarington, the Parties acknowledge that the Municipality will continue to play a supporting role in those areas as more particularly described hereafter in this Agreement. The common goals of business attraction and business retention shall be a priority for the Board of Trade throughout the Term of this Agreement and any extension or renewal thereof. 2.1.10 It is understood that the Board of Trade shall be responsible for determining the trade shows, -4- if any, that will be attended by the members or by its employee(s), provided that all costs associated therewith shall be the responsibility of the Board of Trade 2.2 Responsibilities of the Municipality 2.2.1 Until the employment of an Economic Development Officer by the Board of Trade, the Municipality shall assist and cooperate with the Board of Trade in respect of those matters as provided for in this Agreement as follows: (1) subject to compliance with the Municipal Freedom oflnformation and Protection of Privacy Ac4 forwarding information received by the Municipality concerning businesses which are interested in locating in the Municipality of Clarington; (2) providing temporary space for the Board of Trade being the "north wing" of the Tourism Office at 181 Liberty Street South, Bowmanville, for the duration of this Agreement; (3) sharing with the Municipality responsibility of the operating costs of the new Tourism Office including electricity, water and heating charges, cleaning and maintenance expenses in the proportions of 15% by the Board of Trade and 85% by the Municipality and paying its share forthwith after each written invoice is given to it by the Municipality; and (4) permitting use by the Board of Trade of telephone and telefax equipment located in the Tourism Office which are dedicated to its use,provided that all telephone,telefax and Internet charges including connection charges for services used by the Board of Trade, its officers and employees, and the cost of a Website used by the Board of Trade, shall be paid by the Board of Trade either directly to the service provider or forthwith after each written invoice is given to it by the Municipality. 2.2.2 After the Board of Trade assumes primary responsibility in respect of business retention activities in the Municipality of Clarington,the Municipality will direct or copy all enquiries that it may receive from businesses located in the Municipality of Clarington who indicate that they may relocate out of the Municipality, so that such businesses may be contacted by the Board of Trade. The Board of Trade will use its best efforts to persuade such businesses to continue their location in the Municipality of Clarington. 2.2.3 During the Term of this Agreement and any extension or renewal thereof,the Municipality shall: (1) work with the Board of Trade to develop business oriented brochures, provided that the printing and publication costs of brochures that the Municipality does not decide to produce and publish for its purposes shall be the responsibility of the Board of Trade, and provided further that brochures that are to be produced and published by the Board of Trade shall first have been reviewed by the Municipality's Liaison Officer; (2) sell advertising in brochures that the Municipality publishes and appropriate the revenue therefrom; (3) continue to publish Clarington Community Profile and generic promotional brochures for the Municipality; and (4) assist in the compilation and up-dating of a Clarington business directory. 3.0 Financial Affairs and Management 3.1.1 Forthwith after the day on which this Agreement is made and thereafter during the Term of this Agreement and any extension or renewal thereof: -5- (a) the Board of Trade shall establish December 31st and thereafter maintain December 31st as its financial year end until the expiry of the Term of this Agreement and any extension or renewal thereof, (b) the Board of Trade shall establish and maintain in accordance with good accounting principles satisfactory to the Municipality's auditor proper bank accounts and records for all funds received by the Board of Trade, and all bookkeeping and accounting systems and records and supporting vouchers and documentation; (c) the Board of Trade shall record serially all of the Board of Trade's revenues and receipts and all of the Board of Trade's disbursements for each financial year of the Board of Trade; (d) not later than March 31, 1999 and thereafter not later than February 15th in each year of the Term and any extension or renewal thereof, the Board of Trade shall file with the Municipality's Treasurer financial statements which shall have been audited by a qualified auditor and prepared in accordance with proper accounting and audit principles and standards, but which shall not be consolidated with the Municipality's financial statements; (e) not later than March 31, 1999 and thereafter not later than February 15th in each year of the Term of this Agreement and any extension or renewal thereof, the Board of Trade shall submit to the Municipality's Treasurer its proposed capital and operating budgets for the next financial year for review by the Municipality's Council. 3.1.2 Without derogating from section 3.1.1 in any way,not later than six (6) months after the date of this Agreement and thereafter semi-annually during the Term of this Agreement,the Board of Trade shall file with the Municipality's Treasurer an audit report prepared in accordance with proper accounting and audit principles and standards by a qualified auditor respecting the financial affairs of the Board of Trade for the preceding period. The first reporting period shall commence on the date of incorporation of the Board of Trade. 3.1.3 The Board of Trade shall expend funds received from the Municipality pursuant to this Agreement or otherwise only for the purpose of defraying the Board of Trade's operating expenses and not for the purpose of acquiring property or other fixed assets. 3.1.4 The Municipality shall have the right to terminate this Agreement after giving the Board of Trade at least sixty days written notice of termination if(1) the Board of Trade fails to file an audit report in accordance with paragraph 3.1.2, (2) the Board of Trade does not comply with paragraph 3.1.3, or (3) the Municipality's Council,acting reasonably,is of the opinion that the financial affairs of the Board of Trade are not being managed in accordance with proper accounting principles and in accordance with the approved annual budgets for 1999 and future years and the Approved Work Programs for 1999 and future years. 3.1.5 Notwithstanding paragraph 3.1.4 this Agreement may be terminated by the Municipality at any time without prior notice to the Board of Trade if the Municipality's Council, acting reasonably, suspects inappropriate conduct, inappropriate use of funds provided by the Municipality, or ineffective or false portrayal of the economy or the image of the Municipality, by the Board of Trade, its officers or its employees. 4.0 General 4.1 The copyright in all written material, discs,audio tapes and video tapes prepared or published by the Board of Trade which advertises the Municipality and its advantages,is hereby assigned to the Municipality which shall be deemed to be the exclusive owner of such copyright material, discs, audio tapes and video tapes. 4.2 All disputes between the Municipality and the Board of Trade respecting the interpretation -6- of this Agreement, the Approved Business Plan, Approved Official Work Programs and approved budgets, shall be resolved exclusively by the Municipality's Council, acting reasonably. 4.3 Without fettering the Council of the Municipality or a successor Council in the exercise of its legislative discretion in any way, the Parties hereto acknowledge that it is the intention of the present Council of the Municipality to allow the Board of Trade to continue its role in economic development now and after December 31, 2000 provided that the Board of Trade performs each of its duties hereunder in accordance with this Agreement and provided further that any financial support for the Board of Trade and its operations or any of them after December 31, 2000 shall be determined by the successor Council of the Municipality in its discretion following timely application to the Municipality by the Board of Trade for such financial support in accordance with the practices of the Municipality. 4.4 The Parties hereto acknowledge and agree that nothing contained in this Agreement is intended to or shall be deemed to establish a partnership or joint venture between the Parties, or to constitute either Party the agent of the other Party for any purpose. 4.5 Time shall be of the essence of this Agreement. 4.6 If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to the Board of Trade or by the Board of Trade to the Municipality under this Lease, such notice shall be transmitted by telefax,mailed by first class prepaid post or delivered to: Municipality: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Chief Administrative Officer If by telecopier to: (905) 623-5717 -7- Board of Trade: The Clarington Board of Trade P. O.Box 434 Bowmanville, Ontario Ll C 3Z2 If by telecopier to: (905) 623-0733 or such other address of which the Municipality or the Board of Trade has notified the other in writing. Any such notice so mailed or delivered shall be deemed good and sufficient notice under the terms of this Lease and shall be effective from the date which it is so mailed or delivered. Any notice transmitted by telefax shall be effective from the date that it is telefaxed. 4.7 This Agreement shall enure to the benefit of the Parties hereto and their respective successors. Neither the benefit or the responsibilities of the Board of Trade under this Agreement shall be assigned to any person without the express written approval of the Municipalit,/s Council. IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day and year first above written and the Parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DELIVERED ) In the presence of: ) Mayo By: Jerk THE CLARINGTON BOARD OF TRADE ) By: Z2 ame: Title: By: ° Name: Title: V( CC- SCHEDULE "A" OFFICE EQUIPMENT THAT MAY BE USED BY THE BOARD OF TRADE 1. One,workstation comprising a desk, chair and filing cabinet. 2. One computer station, software and modem, provided that it shall not be linked to the Municipality's data bank or to its information processing network. 3. Internet connections shared with the Municipality's Tourism Office staff, subject to compliance with the provisions of this Agreement concerning Internet use and Website and telephone charges.