HomeMy WebLinkAbout2003-135
CORPORATION OF THE MUNICIPALITY OF ClARINGTON
BY-lAW NO. 2003-135
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 to continue the economic
development functions on behalf of the
Municipality
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 with the Corporation
Seal, an Agreement between the Clarington Board of Trade to continue the
economic development functions on behalf of the Municipality.
By-law read a first and second time this 15th day of September 2003.
By-law read a third time and finally passed this 15th day of September 2003,
DRAFT #3:
Sept. 4,2003
THIS AGREEMENT is made as of this 15th day of September, 2003.
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 carryon business in the Municipality of Clarington.
C. The Municipality and the Board of Trade made an Agreement dated April 12, 1999
respecting, among other matters, the delivery of services in the area of Economic Development in the
Municipality. The "Initial Term" of that Agreement expired on December 31, 2000. The "Initial
Term" was extended to expire on December 31,2003 by the First Amending Agreement between
the Parties dated February 26,2001. The agreement dated April 12, 1999 as amended by the First
Amending Agreement dated February 26, 2001 collectively are referred to hereinafter as the "Present
Board of Trade Agreement".
D. By its adoption of Report #Admin-04-03 at its meeting on June 23, 2003, Council of the
Municipality approved the making of this Agreement subject to the Regional Municipality of
Durham approving the Municipality of Clarington's continuing to deliver economic development
functions and services in the Municipality in accordance with the provisions of the Municipal Act,
2001, S.O. 2001, c.25, as amended ("Act").
E. The execution of this Agreement by the Mayor and the Municipal Clerk on behalf of the
Municipality is authorized by By-law No. 2003-_ which was passed by the Council of the
Municipality on September 15, 2003.
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:
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1.0 Term
1.1 The Parties hereto shall perform their respective duties and responsibilities under this
Agreement for three (3) years on and from January 1, 2004 ("Term"). Unless the Term ofthis
Agreement is extended in accordance with paragraph 6.1, this Agreement shall terminate and
have no further force or effect on December 31,2003.
2.0 Agreement Not to Affect Present Board of Trade Agreement
2.1 Notwithstanding the execution of this Agreement by the Parties, the Present Board of Trade
Agreement shall continue in full force and effect until it expires on December 31,2003.
3.0 Agreement Conditional on Region of Durham's Action
3.1 This Agreement shall be conditional on and have no force or effect until the Regional
Municipality of Durham has approved by way of delegation or otherwise the Municipality,
continuing to deliver economic development functions and services in the Municipality of
Clarington.
4.0 Responsibilities of Parties
4.1 In addition to providing reports to the Municipality that the Board of Trade initiates on its
own or initiates at the request of the Council, 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 Chief Administrative Officer. The Annual Report, the
Annual Work Program and the proposed budget for each 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 and if appropriate approved by Council in conjunction
with the Municipality's budget processes. (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".) The latest approved budget is referred to hereinafter as
the "Approved Annual Budget".
4.1.2 The Board of Trade shall not represent in any way to any person that its Business
Development Officer/Manager 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 Business Development
Officer/Manager.
4.1.3 During the Term of this Agreement and any extension or renewal thereof the Board of Trade
shall continue to take 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. The Board of Trade and its employees shall refrain from engaging in
actions or conduct in the opinion of Counci I may negati vely impair the relationshi p between
the Board of Trade and the Municipality.
4.1.4 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 Business Development Officer/Manager and other staff that it may employ. If
at any time funds in excess of the financial support from the Municipality set out in this
Agreement re 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
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is exclusively responsible to raise any necessary funds from persons other than the
Municipality.
4,1.5 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.
4.1.6 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 playa 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,
4.1. 7 The Board of Trad~ shall prepare a Business Directory and Vacant Land and Building
Inventory for the Municipality prior to December 31, 2004 and shall update the document on
an annual basis.
4.2 Responsibilities of the Municipalitv
4.2.1 During the Term of this Agreement, in exchange for the performance of the Board of Trade' s
duties and responsibilities provided for in this Agreement to assist it in defraying its cost, the
Municipality will make the following annual lump sum payments to the Board of Trade:
Year
Date of Payment
Amount of Payment
2004
2005
2006
March 1,2004
March 1,2005
March 1, 2006
$90,000
$95,000
$100,000
If the Term is extended or renewed until December 2007 in accordance with paragraph 6,1,
on March 1, 2007 the Municipality shall pay the Board of Trade $100,000 to assist in
defraying its costs incurred the performance of its duties and responsibilities provided for in
this Agreement
4.2.2 In addition to the payments provided for in paragraph 4.2,1, the Municipality will make a
one-time payment to the Board of Trade of $18,000 on or before April 1, 2004 to assist the
Board of Trade in defraying the cost or part of the cost of preparing the Business Directory
and Vacant Land and Building Inventory referred to in paragraph 4.1.10.
4.2.3 The Municipality shall assist and cooperate with the Board of Trade in respect of the
following matters:
(1) subject to compliance with the Municipal Freedom of lnfonnation and Protection of
Privacy Act, forwarding information received by the Municipality concerning
businesses which are interested in locating in the Municipality of Clarington;
(2) providing office 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 50% by the Board of Trade and 50% by
the Municipality and paying its share forthwith after each written invoice is given to
it by the Municipality's Manager of Communications and Tourism; 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 Web site used by the Board of
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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.
4.2.4 During the Term of this Agreement and any extension or renewal thereof, 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.
5.0 Financial Affairs and Mana2ement bv Board of Trade
5.1 During the Term of this Agreement and any extension or renewal thereof:
(a) the Board of Trade shall establish December 31 st 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 st of each year during the Term and any extension or renewal
thereof, 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 Board of Trade's financial statements shall not be
consolidated with the Municipality's financial statements.
5.1.2 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.
5.1.3 The Municipality shall have the right to terminate this Agreement after giving the Board of
Trade at least sixty (60) days written notice of termination if (1) the Board of Trade fails to
file an audit report in accordance with paragraph 5.1.1, (d) the Board of Trade does not
comply with paragraph 5.1.2, 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 Budget and
the Approved Work Program.
5.1.4 Notwithstanding paragraph 5.1.3 or any other provisions of this Agreement, 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.
6.0 Extension or Renewal of A2reement
6.1 If the Board of Trade has not defaulted in performing its duties and responsibilities in
accordance with the provisions of this Agreement, and not earlier than June 30, 2006 but not
later than September 30,2006 the Parties have given written notice to each other that they
consent to the extension or renewal of this Agreement so that it will expire on December 31,
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2007, the Term of this Agreement shall be deemed to have been extended or renewed to
expire on December 31,2007 without a formal amendment being made to this Agreement. If
it is so extended or renewed, time shall continue to be of the essence of this Agreement.
7.0 General
7.1 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,
7.2 All disputes between the Municipality and the Board of Trade respecting the interpretation of
this Agreement, Approved Work Programs and Approved Annual Budgets, shall be resolved
exclusively by the Municipality's Council, acting reasonably.
7.3 The Parties 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.
7.4 Time shall be of the essence of this Agreement.
7.5 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
Ll C 3A6
Attention: Chief Administrative Officer
If by telecopier to: (905) 623-5717
Board of Trade:
The Clarington Board of Trade
P,O. Box 434
Bowmanville, Ontario
LIC 322
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.
7.6 This Agreement shall enure to the benefit of the Parties hereto and their respective
successors. Neither the benefit nor the responsibilities of the Board of Trade under this
Agreement shall be assigned to any person without the express written approval of the
Municipality'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
DELIVERED
In the presence of:
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THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
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