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HomeMy WebLinkAbout99-151 MUNICIPALITY OF CLARINGTON BY-LAW NO. 99-151 being a by-law to authorize entering into a Contribution Agreement with the Minister of Fisheries and Oceans and the Corporation of the Municipality of Clarington. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the corporation seal, a Contribution Agreement with the Minister of Fisheries and Oceans; 2. THAT the Contribution Agreement attached hereto as Schedule "A" form part of this By-law; By-law read a first and second time this 12th day of October 1999. By-law read a third time and finally passed this 12th day of October 1999. ,f MAYOR CLERK f CONTRIBUTION AGREEMENT THIS AGREEMENT,made this 12 day of October, 1999 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA ("Her Majesty"), as represented by the Minister of Fisheries and Oceans (the "Minister") AND: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the"Recipient") RECITALS: WHEREAS the Minister wishes to reduce the number of its fishing and recreational harbours pursuant to departmental objectives and the Recreational Harbours Divestiture Program WHEREAS the Recipient wishes to assume ownership of Her Majesty's property as described in Appendix"A" WHEREAS the Recipient agrees to ensure public access to the federal real property at Newcastle for a minimum of five years WHEREAS should the Recipient cease to operate the federal real property as a public harbour as provided herein, or dispose of all or part of the federal real property within the covenant period or should the Recipient wish to have the restrictions removed from the transfer before the expiration of the covenant period,the Recipient shall pay the sum of $200,000. AND WHEREAS the Minister and the Recipient wish to enter into this Agreement for a contribution towards the effort to transfer this property NOW THEREFORE in consideration of the mutual covenants contained herein and other good and valuable consideration(the receipt and sufficiency of which is hereby acknowledged)the parties hereto agree as follows: Page 1 i e i SECTION 1: DEFINITIONS The following definitions apply to the present agreement: 1.1 "Agreement" means this Contribution Agreement and Appendix"A"; 1.2 "Audit" means an examination of a Recipient's accounts, records, or other evidence deemed necessary in the circumstances by a certified Accountant; 1.3 "Business Day" means a day other than Saturday, Sunday or a statutory holiday in the Province of Ontario; 1.4 "Contribution" means any payment,which is the subject of this Agreement; 1.5 "Department" means the Department of Fisheries and Oceans Canada; 1.6 "Harbour" means the property and facilities described in Appendix"A"; 1.7 "Transfer Agreement" means the document, which transfers title of the Harbour to the Recipient; 1.8 "Year" means a period of 12 consecutive months commencing on April 1 st unless otherwise specified herein. Page 2 SECTION 2: INTERPRETATION 2.1 Number and Gender Words importing the singular shall include the plural and vice versa and words importing a particular gender shall include all genders. The necessary grammatical changes required to make the provisions of this Agreement apply shall, in all instances,be assumed as though fully expressed in each case. 2.2 Headings The division of this Agreement into Sections, Subsections, Clauses, Subclauses, Paragraphs and Subparagraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 2.3 Accounting Terms and Principles All accounting and financial terms used in this Agreement shall, except where otherwise provided either expressly or by necessary implication in this Agreement, be interpreted and applied in accordance with generally accepted accounting principles and generally accepted auditing standards in Canada, as determined by the Canadian Institute of Chartered Accountants or any successor. 2.4 Business Day If the day on which any act or payment is required to be done or made under this Agreement is a day which is not a Business Day,then such act or payment shall be duly performed or made if done on the next following Business Day. 2.5 Appendix Any document attached hereto as an Appendix forms part of this Agreement. 2.6 Statutes,Regulations and Rules Any reference in this Agreement to all or any part of any statute, regulation or rule shall, unless otherwise stated, be a reference to that statute, regulation or rule as amended, substituted, replaced or re-enacted from time to time. 2.7 Governing Law This Agreement shall be interpreted in accordance with the laws in force in the Province of Ontario, subject to any paramount or applicable Federal laws. Nothing in this Agreement is intended to or shall be construed as limiting,waiving or derogating from any Federal Crown prerogative. Page 3 SECTION 3: APPROPRIATION Nothing herein contained shall obligate the Minister to make any payment under this Agreement unless and until the necessary funds have been voted by Parliament in that behalf. SECTION 4: TERM OF AGREEMENT This Agreement shall come into effect on the date of the property transfer, as determined by the Transfer Agreement, and shall terminate five years from this date, unless terminated earlier in accordance with the provisions of this Agreement. SECTION 5: PAYMENT OF CONTRIBUTION Subject to the provisions of this Agreement, the Minister agrees to pay to the Recipient a contribution of$ 10,000,payable, without interest, upon completion of the transfer and the Recipient agrees to accept such contribution. This payment will be a full and final acquittance of the amount due the Recipient. SECTION 6: SPECIAL CONDITIONS The present Agreement is made pursuant to the recipient's acceptance of the following conditions: 6.1 Acceptance of ownership of the Harbour"as is" and covenant to sign the Transfer Agreement; 6.2 Agreement to operate the Harbour and to ensure public access to the Harbour for a period of five years beginning from the date of the property transfer, as indicated in the Transfer Agreement. 6.3 Agreement to pay the sum of$200,000 should public operation of the harbour be ceased or the harbour be disposed of, in part or whole,within the covenant period. Page 4 SECTION 7: ACCOUNTING RECORDS, FINANCIAL SETTLEMENT AND AUDIT 7.1 The Minister may, at his discretion, conduct an audit and inspection prior to or after any payment on account of the Contribution is made. 7.2 The Recipient shall, during the term of this Agreement, keep records of costs and revenues for the Harbour in accordance with generally accepted accounting principles and shall keep such records separately from any other accounts and records. 7.3 The requirements referred to in Subsections 7.1 and 7.2 shall continue to be met for six (6)months after the date of the termination of this Agreement. SECTION 8: DEFAULT AND REMEDY 8.1 The following constitutes an Event or Default: 8.1.1 the Recipient fails to comply with any of the terms and conditions of this Agreement or of the Transfer Agreement including the above-noted SPECIAL CONDITIONS of ensuring public access to the Harbour for the required period; 8.1.2 the Recipient becomes bankrupt or insolvent, goes into receivership or takes the benefit of any statute from time to time relating to bankrupt or insolvent debtors, or is required to wind up or dissolve by any order or resolution, or is unable to meet its liabilities as they becomes due; 8.1.3 the Recipient is convicted of any offence against the law, order or regulation, the conditions of any licence, or of being an accessory to any such offence, if such offence is committed in connection with the operation of the Harbour; 8.1.4 in the opinion of the Minister the Recipient has ceased carrying on business; or 8.1.5 the Recipient has submitted false or misleading information to the Minister. 8.2 If an event of default has occurred, or in the opinion of the Minister is likely to occur, the Minister may, in addition to any other remedies available to him, require the Recipient to repay, forthwith, all of the Contribution to the Minister. This amount would be a debt due to the Crown and may be recovered as such. Page 5 SECTION 9: NO PARTNERSHIP,JOINT VENTURE OR AGENCY 9.1 Her Majesty and the Recipient expressly disclaim any intention to create a partnership,joint venture or agency. It is understood, acknowledged and agreed that nothing contained in this Agreement nor any acts of Her Majesty or of the Recipient shall constitute or be deemed to constitute Her Majesty and the Recipient as partners,joint ventures or principal and agent in any way or for any purpose. The Recipient shall not represent or hold itself out to be an agent of Her Majesty. No party hereto shall have any authority to act for or to assume any obligations or responsibility on behalf of the other party hereto. 9.2 The Recipient agrees to indemnify Her Majesty for any liability that Her Majesty incurs by virtue of being found to be liable with the Recipient as a partner of, party to a joint venture with,principal, or agent of the Recipient. For greater certainty, the foregoing indemnity shall not apply to any claim or liability arising as a result of the act or omission of Her Majesty or Her agent other than those specific acts or omissions that are the basis for the finding that Her Majesty or Her agent is a partner of, party to a joint venture with,principal, or agent of the Recipient. SECTION 10: ARBITRATION a) Any claim or dispute arising out of or in connection with this Agreement, other than any claim or dispute pertaining to a question of Public Law, that cannot be resolved by negotiation or mediation shall be submitted by the parties hereto to binding arbitration pursuant to the federal Commercial Arbitration Act. The party requesting arbitration shall do so by written notice to the other party. The costs of the arbitration, including the fees of the arbitrator shall be borne equally by the parties. The arbitration shall take place in the City of Toronto, Province of Ontario before an arbitrator to be chosen by the parties. If the parties cannot agree upon the choice of arbitrator within thirty (30) days of the written notice to submit to arbitration, then each party shall choose an arbitrator who in turn will then select a third arbitrator. b) The arbitrator shall determine the procedure to be followed and shall issue a written decision within thirty(30) days of completion of the hearing. The decision shall be in a form enabling it to be entered for judgement in any court having jurisdiction. Page 6 SECTION 11: GENERAL PROVISIONS 11.1 This Agreement sets forth the entire agreement between the parties hereto concerning the subject matter hereof and supersedes and revokes all negotiations, arrangements or communications, of any nature whatsoever whether they be verbally or in writing, between the parties hereto or their authorized representatives or any other person purporting to represent the Minister or the Recipient. No expression or warranty expressed, implied or otherwise is made by Her Majesty to the Recipient or by the Recipient to Her Majesty except as expressly set out in this Agreement. The Parties each agree that: 11.1.1 it has not been induced to or coerced to enter into this Agreement nor relied upon any representations not set out in this Agreement; and 11.1.2 it has conducted its own due diligence examinations in order to satisfy itself of the full, true and accurate disclosure of facts. 11.2 The Recipient consents to public announcements of its receipt of the Contribution and related information, subject to the Access to Information Act and the Privacy Act, in a manner and at a time(s)to be determined by the Minister at his sole discretion. 11.3 The Recipient will conform to the requirements of all applicable Federal and Provincial government regulatory bodies and agencies. SECTION 12: HOUSE OF COMMONS No member of the House of Commons shall be admitted to any share or part of this Agreement or to any benefit to arise therefrom. SECTION 13: NOTICE 13.1 All notices or other communications necessary for the purposes of this Agreement shall be in writing and shall be delivered personally or by courier, or shall be sent by registered mail or by prepaid post or facsimile to the following addresses: 13.1.1 in the case of the Minister, to: Regional Director, Small Craft Harbours Department of Fisheries and Oceans P.O. Box 85120, Suite 304 3027 Harvester Road Burlington, Ontario L7R 4K3 Attention: Mr. D.G. Blanchard Page 7 Or to such other address, facsimile or person as the Minister may designate in writing to the Recipient; and 13.1.2 in the case of the Recipient, to: Chief Administrative Officer Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L I C 3A6 Attention: Mr. Franklin Wu Or to such other address, facsimile or person as the Recipient may designate, in writing to the Minister. 13.2 Any notice or other communication will be considered to have been received: 13.2.1 in the case of a facsimile, on actual receipt; and 13.2.2 in all other cases, on the date of delivery. 13.3 If postal service is interrupted, or threatened to be interrupted, or is substantially delayed, any notice shall be delivered personally or by facsimile transmission. SECTION 14: AMENDMENT This Agreement may only be amended by a written agreement signed by the Minister and the Recipient. SECTION 15: WAIVER The failure by any party to insist upon the strict performance by the other party of any one or more of its obligations under this Agreement shall not constitute a waiver or relinquishment of any such obligation or obligations. SECTION 16: SEVERABILITY If any provision of this Agreement is rendered invalid,void, illegal or unenforceable for any reason whatsoever,then that particular provision shall be deemed to be independent of and severed from the remainder of this Agreement and all other provisions of this Agreement shall continue in full force and effect. Page 8 SECTION 17: ASSIGNMENT 17.1 The Recipient shall not assign its rights or obligations hereunder to any person other than a mortgagee without the express written consent of Her Majesty. 17.2 If the Recipient assigns its right or obligations pursuant to subsection 17.1, the Recipient shall be and remain liable for all obligations to Her Majesty notwithstanding any assignment. SECTION 18 SUCCESSORS AND ASSIGNS 18.1 This Agreement shall be binding upon and shall ensure to the benefit of Her Majesty and Her successors, and assigns, and the Recipient and its successors and assigns. 18.2 No rights shall ensure to the benefit of any successor or assignee of the Recipient unless the transfer or assignment is consented to by Her Majesty. 18.3 Nothing expressed or implied in this Agreement is intended to or shall be construed as conferring on or giving to any person, other than the parties hereto, and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement or any other agreement Page 9 IN WITNESS WHEREOF,the parties hereto have executed this Agreement at the City of , in the Province of Ontario this day of , 199_. HER MAJESTY THE QUEEN IN RIGHT OF CANADA per: ness Regional Director, Small Craft Harbours Department of Fish erie and Oceans Date: 2' MUNICIPALITY OF CLARINGTON G3 �� per: fitness ignature of Authorized Signing Officer Date: Oct er 1 1999 per: Witness Sign of thorized Signing Officer Date: October 12, 1999 Pagel 0 1 APPENDIX A DESCRIPTION OF SUBJECT PROPERTY NEWCASTLE Waterlot DT 62, part of bed of Lake Ontario in front of part of Lots 27 and 28, Broken Front Concession,Town of Newcastle (formerly Township of Clarke) Parts 1 and 2,Plan 1011-191. See attached Title Documents. Pagell