HomeMy WebLinkAbout97-80 s
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TIIE CORPORATION OF TIIE MUNICIPALI'T'Y OF CLARING`I'ON
BY-LAW 97-8o
Being a By-law to authorize a contract between the Corporation
of the Municipality of Clarington and Janice and Randy Brown
and Diane and Bernie Labine in trust for a Company to be
incorporated, for the Lease of approximately 5,500 square feet
at the Courtice Community Complex.
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 with the Corporation Seal, a contract
between Janice and Randy Brown and Diane and Bernic Labine and said
Corporation.
2. TITAN' the Contract attached hereto as Schedule "D" form part of this By-law.
By-law read a first and second time this 28th day of April, 1997.
By-law read a third time and finally passed this 28th clay of April, 1997.
Mayor
Dep C
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THIS LEASE is made as of the Q?S day of April, 1997
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(the "Landlord")
OF THE FIRST PART
- and -
COMPANY LIMITED, a corporation
incorporated under the laws of the Province of Ontario
(the "Tenant")
OF THE SECOND PART
" LEASE AGREEMENT
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TABLE OF CONTENTS
ARTICLE I
PREMISES, TERM, OFFER AND USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Grant and Premises 1
1.2 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Offer to Lease 2
1.4 Use and Conduct of Business 2
1.5 Nuisance 2
ARTICLE II
RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Covenant to Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Net Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Payment of Estimated Taxes and Operating Costs . . . . . . . . . . . . . . . . 3
2.5 Utilities and Services 4
2.6 Additional Rent 4
2.7 Rent Past Due 5
2.8 Adjustment of Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.9 Rent Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
CONTROL Ol~ BUILDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Landlord's Services 5
3.2 . Control by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
ACCESS AND ENTRY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.1 Access to Premises 6
4.2 Entry not Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE V
MAINTENANCE, REPAIRS AND ALTERATIONS 8
5.1 Maintenance by the Landlord 8
5.2 Maintenance by Tenant, Compliance with Laws, Repair on Notice 8
5.3 Approval of Tenant's Alterations 9
5.4 Repair where Tenant at Fault . . . . . . . . . . . . . . . . . . . . 10
5.5 Removal of Fixtures and Personal Property 10
5.6 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.7 Notice by Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI
INSURANCE AND INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1 Tenant's Insurance . . . . . . . .
6.2 Form of Policies . . . . . 12
6.3 Landlord's Insurance 13
6.4 Release of Landlord 13
6.5 Tenant's Effect on Other Insurance 13
6.6 Indemnity of Landlord . . . . . . . . . . . 14
6.7 Loss or Damage . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.8 Benefit of Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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ARTICLE V11
DAMAGE AND DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.1 Damage to Premises, Building or Development . . . . . . . . . . . . . . . . . 17
7.2 Insured Damage to Premises 17
7.3 Uninsured Damage to Premises and Last Two Years . . . . . . 18
7.4 Damage to Building or Development . . . . . . . . . . . . . . . 18
7.5 Termination . . . . . . . . . . . . . . . . . . . . . . . . 18
7.6 Restoration if Lease Not Terminated . . . . . . . . . . . . . . . . . . 18
7.7 Restoration of Premises or Building and Insurance Proceeds . . . . . . . . . 19
7.8 Determination of Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.9 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII
TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.1 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2 Landlord's Right to Terminate 20
8.3 Conditions of Transfer . . . . . . . . 21
8.4 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.5 No Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.6 Assignment by Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE IX
DEFAULT . '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.1 Default and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.2 Distress
9.3 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.4 Set-Off and Accord and Satisfaction . . . . . . . . . . . . 23
9.5 Survival of Obligations . . . . . . . . . . . . . . . . . . . . . . . . 24
9.6 Lien . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9.7 Waiver and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE X `
SPECIAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.1 Parking . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.2 Negotiations for Extension or New Lease . . . . . . . . . . . 25
10.3 Operation of Licensed Day Care and Indoor Family Playground . . . . . . . 25
10.4 Physical Plant and Equipment . . . . . . . . . . . . . 26
10.5 Management and Operation of Premises . . . . 26
10.6 Disposal of Waste . . . . . . . . . . . . . . . . 26
10.7 Ground Maintenance - Outdoor Playground . . . . 26
10.8 Quality Control . . . . . . . . . . . . . . . . . . . . . . . 26
10.9 Sponsorship and Advertising Sales 27
10.11 Marketing and Advertising . . . . . . . . . . . . . . . 27
10.12 Concessions/Catering . . . . . . . . . . . . . . . . . . . . 27
10.13 Chattel Mortgage of Playground Equipment . . . . . . . . . . . . . . . . . . . 28
ARTICLE Xl
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.1 Rules and Regulations . . . . . . . . . . . . 28
11.2 Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.3 Overholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 28
11.5 Successors . . . . . . . .
11.6 Covenants and Joint and Several Liability . . . . . . . . . . . . . 29
. . . . 29
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11.7 Heading, Table of Contents, Lease Summary . . . . . . . . . . . . . . . . . . 29
11.8 Extended Meanings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.9 Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.10 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.12 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.13 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.14 No Partnership or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE X11
SPECIAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
12.1 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Schedule "A" - Legal Description of Lands
Schedule "B" - Plans Showing Premises
Schedule "C" - Definitions
Schedule "D"- Rules and Regulations
Schedule "E" - Letter From Director of Community Services
DRAFT #7
April 11, 1997
THIS LEASE is made as of the day of April, 1997
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(the "Landlord")
OF THE FIRST PART
and -
COMPANY LIMITED, a corporation
incorporated under the laws of the Province of Ontario
(the "Tenant")
OF THE SECOND PART
IN CONSIDERATION of the rents, covenants and agreements hereinafter contained,the parties
covenant and agree as follows:
ARTICLE I
PREMISES. TERM, OFFER AND USE
1.1 Grant and Premises
In consideration of the performance by the Tenant of its obligations under this lease, the
Landlord leases to the Tenant, and the Tenant leases from the Landlord, for the Term, the
Premises comprising both (1) the interior area shown outlined in red on the floor plan
contained in Schedule "B" attached hereto in the Building known as of the date of this lease
as the Courtice Community Complex, which Building is being constructed on the Lands
("Interior Area"), and (2) the exterior play area outlined in blue on the plan which also is
contained in Schedule "B" attached hereto ("Exterior Play Area"). The purpose,,of the floor
plan and the plan contained in Schedule "B" is to show the approximate location of the
interior and exterior areas which comprise the Premises. Schedule "B" is not intended to be
a representation as to the precise size or dimensions of the Premises or a representation as to
any other aspect of the Building or the development of any portion of the Lands. The
Rentable Area of the interior space within the Building is approximately 5,556 square feet,
and the area of the Exterior Play Area forming part of the Premises is approximately 2,000
square feet. The Useable Area of the interior space within the Premises is approximately
5186.5 square feet.
1.2 Term
The Term of this lease shall commence on the date to be determined by the Landlord in
accordance with the Offer to Lease (the "Commencement Date") and shall terminate on the
day which is five (5) years after the Commencement Date, provided that prior to the expiry
of the Term the Landlord's Council resolves that the Landlord wishes to lease the Premises
for a further term commencing on a day within the two (2) month period which commences
on the day following the date of expiry of the Term, the Landlord and Tenant shall use their
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Lease Agreement -2-
best efforts to settle the terms and conditions of the new lease or an extension of this lease of
the Premises.
1.3 Offer to Lease
The provisions of the agreement to lease dated April _, 1997 among the Landlord and the
Tenant, with respect to the Premises (the "Offer to Lease") shall merge upon the execution
and delivery of this lease.
1.4 Use and Conduct of Business
Throughout the Term, the Interior Area of the Premises shall be used and occupied only for
the purposes of a licensed day care facility and/or an indoor family playground. Throughout
the Term, the Exterior Play Area within the Premises shall be used and occupied only for the
purpose of an exterior play area in conjunction with the use and occupation of the Interior
Area of the Premises permitted by this lease. Throughout the Term, the Tenant shall
continuously, actively and diligently carry out the use and occupation of the Premises as
aforesaid in compliance with all applicable laws and the provisions of this lease, and shall not
use or occupy or permit or suffer the use or occupancy of the Premises or any part thereof
for any other purpose or business.
1.5 Nuisance
1
The Tenant shall not commit, permit or suffer (i) any waste, damage or injury to the
Premises or the Building or any part thereof, including, without limitation, the
improvements, installations, fixtures and equipment thereon or therein; (ii) any nuisance in or
on the Premises or Building or any part thereof; (iii) any overloading of any utility or
electrical or mechanical equipment, facilities or systems serving the Premises; (iv) any act or
thing or use of the Premises in any manner which disturbs the quiet enjoyment, annoys or
causes a hazard to the Landlord or occupant of the Building or any part thereof;,all as
determined by the Landlord in its sole discretion, acting reasonably.
ARTICLE II
RENT
2.1 Covenant to Pay
The Tenant shall pay Rent in lawful money of Canada from the Commencement Date without
prior notice or demand except as may be otherwise expressly provided in this lease. Rent
shall be considered as accruing from day to day. Where it becomes necessary for any reason
to calculate Rent for an irregular period of less than one year or less than one calendar
month, an appropriate apportionment and adjustment shall be made, pro rata on a per diem
(365 day year) basis. Except as may be otherwise expressly provided in this lease, if the
Commencement Date does not fall on the first day of a calendar month, the Tenant shall pay
Rent for such month on the Commencement Date. The Tenant agrees that its covenant to
pay Rent is an independent covenant and that all such amounts are payable without demand,
counterclaim, set-off, deduction, abatement, compensation or reduction whatsoever, except as
may be otherwise expressly provided in this lease. The Tenant shall deliver post-dated
cheques to the Landlord prior to each Rental Year for Net Rent and estimated Additional
Rent as required by the Landlord. Rent payable to the Landlord shall be paid to the Landlord
at its address for notice pursuant to Section 11.4.
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' Lease Agreement _3_
2.2 Net Rent
The Tenant shall pay to the Landlord, or to such Person as the Landlord may direct from
time to time, Net Rent of sixty six thousand six hundred and seventy two ($66,672.00)
dollars for each year of the Term in the following annual amounts, which shall be payable in
equal consecutive monthly instalments of five thousand five hundred and fixty six
($5,556.00) dollars each, in advance, on the first day of each calendar month of the Term
commencing on the Commencement Date. The Net Rent per annum of sixty six thousand six
hundred and seventy two ($66,672.00) dollars is based on twelve ($12.00) dollars p.s.f. per
m
annu of the Rentable Area of the Interior Area of the Premises, being 5,556 square feet,
plus fifteen hundred ($1,500.000) per annum for the Exterior Play Area of the Premises. If
the Commencement Date is not on the first day of a calendar year, the Net Rent for the first
month shall be prorated accordingly.
2.3 Payment of Taxes
(a) If required by the Landlord to do so by notice in writing given to the Tenant, the
Tenant shall pay to the Landlord no later than the due date therefor, as the Landlord may
direct from time to time, all Taxes allocated and attributed by the Landlord to the Leasable
Area of the Premises as Additional Rent.
(b) The Landlord shall pay all Taxes to the taxing Authorities, including to itself to the
extent that its interest in the Building and the Lands is not exempt from taxation.
(c) The Tenant shall pay to the Landlord, upon demand, as Additional Rent any increase
or amount of Taxes or other taxes which the Landlord, acting reasonably, determines to be
attributable to any act or election by the Tenant (for example declaring itself a separate
school supporter) or to be attributable to the Leasehold Improvements.
(d) The Tenant may contest any Taxes and appeal any assessments with respect to the
Premises, withdraw any such contest or appeal, and agree with the taxing Authorities on any
settlement or compromise with respect to Taxes. ,
(e) Notwithstanding the foregoing or any other provisions of this lease to the contrary,
after demand therefor is made in writing by the Landlord to the Tenant (i) the Tenant shall
pay to the Landlord an amount determined by the Landlord to be equal to or in respect of
any and all Sales Taxes, it being the intention of parties that the Landlord shall be fully paid
and reimbursed by the Tenant with respect to any and all Sales Taxes paid or payable by the
Landlord or the Tenant and/or which the Landlord is required to remit to any Authority, and,
except as may be otherwise expressly provided in this lease, the amount of such Sales Taxes
so payable by the Tenant to the Landlord shall be calculated by the Landlord in accordance
with the applicable legislation, and shall be paid to the Landlord, at the Landlord's option,
when due or at the same time as the amounts to which such Sales Taxes apply are payable to
the Landlord under the terms of this lease or upon demand or at such other time or times as
the Landlord from time to time determines and (ii) the amount of such Sales Taxes so
payable by the Tenant shall be deemed not to be Rent, but the Landlord shall have all of the
same remedies for and rights of recovery of such amount as it has for recovery of Rent
under this lease.
2.4 Payment of Estimated Taxes and Operating Costs
(a) The amount of Taxes and Sales Taxes may be estimated by the Landlord for each
Rental Year or for such shorter period as the Landlord determines from time to time. The
Tenant shall pay to the Landlord the amounts so estimated in equal instalments in advance on
the first day of each month during each such period. Notwithstanding the foregoing, when
bills for all or any portion of the amounts so estimated are received, the Landlord may bill
the Tenant for the billed amounts after crediting against such amounts any monthly payments
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Lease Agreement _4_
on account of estimated Taxes and Sales Taxes previously made by the Tenant, and the
Tenant shall pay to the Landlord the amounts so billed to the Tenant on demand.
(b) Any and all allocations, attributions and determinations of or with respect to Taxes or
Sales Taxes, Business Tax, other taxes, Utilities and special services under this lease shall be
made by the Landlord in accordance with and subject to the provisions of this lease, on such
basis as the Landlord may determine, acting reasonably, in its sole discretion from time to
time.
2.5 Utilities and Services
(a) The Tenant shall be solely responsible for payment of the cost of Utilit . If the
Tenant defaults in payment of the cost of Utilities to the Authority or Utility company which
delivers it or them, the Landlord may give the Tenant written notice requiring the Tenant to
pay and thereafter the Tenant shall pay to the Landlord, or as the Landlord may otherwise
direct from time to time, as a charge (the "charge") with respect to the Premises, the
aggregate, without duplication, of (i) the total cost of supplying Utilities used or consumed in
or with respect to the Premises, including, without limitation, the basic charge and additional
charge referred to in Section 2.6(c), and (ii)
the cost of any other charges levied or assessed in lieu of or in addition to such Utilities as
determined by the Landlord.
(b) If the notice referred to in paragraph 2.5(a) is given by the Landlord to the Tenant,
the following shall apply to a charge for Utilities: (i) the Tenant shall pay to the Landlord, as
Additional Rent, a charge for Utilities in monthly instalments in advance based on estimates
by the Landlord and subject to adjustment by the Landlord within a reasonable time after the
end of the Rental Year for which such estimate has been made; (ii) without limiting anything
contained in this Section 2.6, if the Landlord elects in its sole discretion, or is required by
any Authority or Utility supplier, to supply any or all Utilities to the Building or any part
thereof, then the Tenant, if the Landlord so directs, shall purchase and pay for such Utilities
as Additional Rent to the Landlord at rates determined by the Landlord from time to time
and (iii) in no event shall the Landlord be liable for, nor shall the Landlord have any
obligation with respect to, any interruption or cessation of, or any failure in the supply of,
any Utilities, services or systems whatsoever in, to or serving the Building or Premises, or
any part thereof, whether or not supplied by the Landlord or others.
(c) The Tenant shall pay to the Landlord, on demand, as Additional Rent, all charges as
determined, allocated and attributed by the Landlord, for all special services provided to or
for the benefit of the Tenant or the Premises. Such special services may include, without
limitation, charges for security, supervision, receiving, storing and handling materials and
articles, and moving of furniture, as determined by the Landlord from time to time. The
Tenant, from time to time, may request such special services from the Landlord and the
Landlord shall have the right to provide them. If the Landlord elects not to provide them,
then they shall be provided only by Persons approved in writing by the Landlord acting
reasonably. Unless otherwise expressly agreed to by the Landlord and Tenant to the contrary,
all work, materials and special services performed or supplied by the Landlord for the
Tenant or respecting the Premises shall be paid for by the Tenant to the Landlord upon
demand at the Landlord's cost.
2.6 Additional Rent
Except as may be otherwise expressly provided in this lease, all Additional Rent shall be
payable by the Tenant to the Landlord on demand.
' Lease Agreement _5_
2.7 Rent Past Due
All Rent and any and all other amounts payable by the Tenant under this lease unpaid and
past due shall bear interest from the due date thereof to the date of payment as a variable rate
per annum which is 3% in excess of the Prime Rate, and such interest shall be both
calculated and compounded monthly and shall be payable on demand.
2.8 Adjustment of Areas
(a) If for any reason the Architect is unable to accurately verify, on or before the
Commencement Date, any area measurement required for the determination of Rent, the
Landlord shall provide its reasonable area estimate and shall deliver to the Tenant, as soon as
reasonably possible after completion of construction, the Architect's accurate verification
certificate on which such Rent shall be based, which certificate shall be binding upon the
parties and shall form part of this lease, subject to Section 2.8(b). In the intervening period,
Rent shall be based upon the Landlord's area estimate, and any credits necessitated by
discrepancies between such estimated and verified area shall be made promptly following the
Architect's verification of such area.
(b) In the event of any dispute as to the measurement or calculation of areas relating to
(i) the Rentable Area of the Premises or (ii) the Useable Area of the Premises, such shall be
determined by the Architect. The decision, determination or opinion of the Architect,
whenever required by this lease (or requested by the Landlord) and any related certificate
shall be final and binding on the parties.
2.9 Rent Deposit
Subject to the provisions of the Offer to Lease the Premises date April 1997, the
Landlord acknowledges receipt of a deposit in the amount of$11,240.00 from the Tenant, to
be applied as a deposit against Net Rent accruing due in the first full month and second
month of the Term for which Net Rent is payable. Any interest earned on such deposit shall
be retained by the Landlord and shall not be payable to the Tenant nor applied towards Rent
payable under this lease.
ARTICLE III
CONTROL OF BUILDING
3.1 Landlord's Services
The Landlord shall provide or cause to be provided reasonable cleaning services for the
Common Facilities and snow removal from the parking area and pedestrian walkways on the
Lands.
3.2 Control by Landlord
(a) The Tenant acknowledges that the Building is at all times subject to the exclusive
control, management and operation of the Landlord who shall act reasonably in respect of the
Premises and in accordance with the letter from the Director of Community Services dated
April 11, 1997 and contained in Schedule "F" hereto. Without limiting the generality of the
foregoing, the Landlord shall have the right, but not the obligation, in its control,
management and operation of the Building or any part thereof and at all times throughout the
Term: (i) to maintain, repair, replace, complete construction of, alter, add to, subtract from,
construct improvements and replacements to, rearrange, build additional storeys on and
construct additional facilities in, on, adjoining or near, the Building or any part thereof, and
to obstruct or close off all or any part of the Building or Premises in connection therewith;
Lease Agreement -6-
(ii) to employ or retain all personnel necessary for the control, management, operation,
supervision and administration of the Building and Premises or any part thereof including,
without limitation, administrative personnel and managers (the Tenant hereby acknowledging
that the Building may be managed by any Person designated by the Landlord); (iii) to do
such things on, in or near the Building or any part thereof, as required to comply with any
laws, by-laws, regulations, orders, directives, agreements, licences, privileges, easements or
rights of way affecting the Building, or any part thereof; (iv) to obstruct, lock-up or close off
all or any part of the Building or any part thereof, for security purposes; (v) to enter into,
grant, modify, amend or terminate, on such terms and conditions as the Landlord, in its sole
discretion, may determine, any easements, rights of way, privileges, licences or agreements
with respect to any use or occupancy of, or any maintenance, repair, replacement,
Restoration or reconstruction of, or supply of any services to, or any operation of, the
Building and Premises, or any part thereof; and (vi) to do such other things on, in or near
the Building and Premises or any part thereof, as the Landlord, in any use of good business
judgment, determines to be advisable.
(b) The Tenant acknowledges and confirms the rights of the Landlord referred to in this
Section 3.2, including, without limitation, the right to expand, rearrange or add to the
Building and Premises from time to time, but such acknowledgment and confirmation shall
not be construed or deemed in any respect to be any obligation or covenant by the Landlord
to exercise such rights. The Landlord, in its sole discretion, shall determine the extent to
which it elects to exercise any of such rights, subject to its express obligations contained in
this lease.
(c) The Tenant agrees that it shall not hinder or oppose the Landlord in the exercise by
the Landlord of its rights referred to in this Section 3.2.
(d) Subject to and in compliance with the other provisions of this lease, the Rules and
Regulations and all laws and requirements of all Authorities, the Tenant shall have the non-
exclusive licence during the Term to have access through or to use in common with all
others entitled thereto and for their intended purposes such portions of the Building and the
Lands as are reasonably required for access to or the use and occupancy of the Premises for
their intended purposes during such hours as such Building and Lands are intended to be
open for such access or use, as the case may be, all as determined, designated, redesignated
and as may be changed by the Landlord from time to time.
ARTICLE IV
ACCESS AND ENTRY
4.1 Access to Premises
(a) The Landlord, without limiting any other right which the Landlord may have pursuant
to this lease or at law, shall have the right, but not the obligation, following reasonable
written notice to the Tenant (except in the case of an emergency or apprehended emergency
where no such notice shall be required), to enter the Premises at any time and for any of the
following purposes:
(i) to examine the Premises or to perform any maintenance, repairs, replacements,
alterations or improvements to the Premises or any part thereof as may be permitted
or required by this lease, or to perform any maintenance, repairs, replacements,
alterations or improvements to the Building,or any part thereof or to the HVAC
System or to any mechanical or electrical equipment or systems, or any part thereof,
located therein serving the Premises or any other part of the Building or to perform
any environmental audit or testing;
Lease Agreement -7-
(ii) to preserve and protect the Building and Premises, or any part thereof in respect of
any construction or other work being performed in premises adjoining or in the
vicinity of the Building or the Premises, or on any part of the Lands or in the vicinity
thereof;
(iii) for any purposes as determined by the Landlord in cases of emergency;
(iv) to read any Utility or other similar meters located in the Premises;
(v) during the last twelve months of the Term (or any renewal or extension Term if
renewed or extended), but only during normal operating hours, to show the Premises
to prospective tenants, and to permit them to make inspections, measurements and
plans;
(vi) to exercise any of the rights available to the Landlord pursuant to this lease or to
perform such work in respect of the Building or the Lands, or any part thereof, as the
Landlord shall deem necessary.
(b) The Landlord shall have the right to install, maintain, use, repair, replace, alter,
calibrate, adjust, balance, check and inspect pipes, ducts, conduits, vents, wires, access
panels to mechanical shafts and other installations in or leading in, through, over or under
the Premises including, without limitation, other elements of any mechanical or plumbing
systems or HVAC System or systems for Utilities, telephone and other communications
systems and any other systems which serve the Building or the Premises, or any part thereof,
and the Landlord shall have access to the foregoing and the right to enter the Premises for
the purposes thereof and in connection therewith at any time following reasonable notice to
the Tenant except in the case of an emergency or apprehended emergency for which no
notice shall be required. The Tenant shall not unduly obstruct any pipes, conduits or
mechanical or other electrical equipment or systems so as to prevent reasonable access
thereto.
(c) The Landlord shall have the right to take into the Premises all such material and
equipment as it may require in connection with any of the purposes referred to in this Section
4.1. The Landlord shall exercise its rights under this Section 4.1, to the extent reasonably
possible in the circumstances, in such manner and at such times as the Landlord, acting
reasonably but in its sole discretion, shall determine, and to the extent practical in the
circumstances, so as to minimize interference with the Tenant's use and enjoyment of the
Premises.
(d) At any time that entry by the Landlord is desired in case of emergency or
apprehended emergency, and if no personnel of the Tenant are known by the Landlord to be
present on the Premises or if such personnel fail for any reason to provide to the Landlord
immediate access at the time that such entry is desired, the Landlord may forcibly enter the
Premises without liability for damage caused thereby. This Section 4.1 is not intended to
impose any obligations, responsibilities or liabilities on the Landlord nor is it intended to
limit the rights of the Landlord or the obligations of the Tenant under any other Section of
this lease, including, without limitation, Section 3.2.
4.2 Entry not Forfeiture
Notwithstanding anything contained in this lease, the exercise by the Landlord of any of its
rights under this lease, including, without limitation, (i) its rights set out in this Section or in
Sections 3.2, 4.1, 5.1, 5.2(c) and 6.5(c) and (ii) the exercise of any right under this lease to
enter the Premises and to do anything therein, shall not constitute a breach of any covenant
for quiet enjoyment, or a constructive or actual eviction, or a re-
entry or forfeiture (except where expressed by the Landlord in writing), nor shall it render
the Landlord liable for any injury, loss, costs or damages whatsoever, howsoever caused,
Lease Agreement -g-
whether direct or indirect, incurred as a result thereof by the Tenant, nor shall the Tenant be
entitled to any compensation, diminution or abatement of Rent (except as may be otherwise
expressly provided in this lease).
ARTICLE V
MAINTENANCE, REPAIRS AND ALTERATIONS
5.1 Maintenance by the Landlord
(a) The Landlord, at all times throughout the Term, but subject to Section J.2, Article
VII and the other provisions of this lease imposing maintenance, repair or replacement
obligations or liabilities upon the Tenant, shall maintain, repair and replace or cause to be
maintained, repaired and replaced, as would a prudent owner of a reasonably similar
building, having regard to size, age and location, reasonable wear and tear excepted: (i) the
structure of the Building including, without limitation, the foundations, exterior wall
assemblies (including weather walls), subfloor, roof, bearing walls and structure columns and
beams of the Building; and (ii) the mechanical, electrical, fire alarm, HVAC System and
other base building equipment, facilities and systems and plumbing fixtures and equipment
located in or serving the Premises.
(b) The Landlord shall not be responsible for any damages howsoever caused to the
Tenant by reason of delays in the performance of any maintenance, repairs, replacements or
any other work for which the Landlord is responsible under this lease. The Landlord shall
have the right at any time to stop, interrupt or reduce any services, facilities, systems or
Utilities provided to or serving the Building, the Premises, or any part thereof, to perform
repairs, replacements, improvements, alterations, maintenance, Restoration, adjustments,
calibrations or balancing or to comply with laws or regulations, or binding requirements of
its insurers, or for causes beyond the Landlord's reasonable control or as a result of the
Landlord exercising any of its rights under this Section 5.1 or Sections 3.2, 4.1, 5.2(c),
6.5(c) or other Sections of this lease in cases where the Landlord determines such is prudent
or reasonably required. The Landlord shall not be in breach of any covenant for quiet
enjoyment or liable for any injury, loss, costs or damages whatsoever, howsoever caused,
whether direct or indirect, incurred by the Tenant due to any of the foregoing, and such shall
not constitute a constructive or actual eviction or a re-entry or forfeiture (except where
expressed by the Landlord in writing). The Landlord shall make reasonable efforts to restore
the services, facilities, Utilities or systems so stopped,
interrupted or reduced. The Tenant acknowledges and agrees that it may require one year
after the Tenant has fully occupied the Premises in order to adjust and balance the HVAC
System and the Landlord shall not be responsible for any inconvenience, discomfort,
damages, loss or claims whatsoever arising out of the process of such adjustment or
balancing.
5.2 Maintenance by Tenant. Compliance with Laws Repair on Notice
(a) The Tenant, at all times throughout the Term, at its sole expense, shall maintain and
keep the whole of the Premises, including, without limitation, all Leasehold Improvements,
equipment and appurtenances thereto, furniture, fixtures, and improvements thereto, in good
order, first-class condition and repair as a careful prudent owner would do and in a clean,
sanitary and tidy condition (which shall include, without limitation, periodic painting and
redecoration), to a standard consistent with a first-class public building, all as determined by
the Landlord, and, subject to Article VII, the Tenant shall make all needed repairs and
replacements thereto with due diligence and dispatch as a careful prudent owner would do
except only for repairs and replacements for which the Landlord is expressly responsible
under Section 5.1.
Lease Agreement -9-
(b) The Tenant, at its own expense, (i) shall promptly comply, and shall promptly
provide to the Landlord evidence, satisfactory to the Landlord of such compliance, with all
laws, by-laws, government orders and requirements of all Authorities and with all reasonable
requirements or directives of the Landlord's insurers and other Authorities affecting or
relating to the Premises or their use, maintenance, repair, replacement or Alteration or any
business conducted in or from the Premises, including, witho t limitation, obtaining all
necessary permits, licenses and approvals relating to the use d occupancy of the Premises
and the conduct of business in or from the Premises, and shall be responsible for and shall
promptly perform all necessary Alterations and changes to the Premises and contents thereof
and such business, use and occupancy to so comply and (ii) shall (I) co-operate with the
Landlord in, and comply with all laws, by-laws, regulations and orders of all Authorities
relating to, the conservation of all forms of energy in and serving the Building or the
Premises or any part thereof, and (II) comply with all reasonable requests and demands by
the Landlord made with a view to energy conservation.
(c) In addition to the obligations of the Tenant under Sections 5.2(a) and (b) and any
other similar provisions of this lease, the Tenant shall perform all maintenance, repairs,
replacements and other work referred to therein according to written notice from the
Landlord. If the Tenant fails to perform any maintenance, repairs, replacements or other
work required to be performed by it under Sections 5.2(a) or (b) or any other similar
provision,of this lease promptly and to the reasonable satisfaction of the Landlord, or if the
Tenant, after written notice from the Landlord, fails to perform any maintenance, repairs,
replacements or other work promptly as required under this lease and such notice and to the
reasonable satisfaction of the Landlord, the Landlord shall have the right, but not the
obligation, to perform such maintenance, repairs, replacements or other work and to enter
the Premises in connection therewith without any liability for any resulting damage or loss
whatsoever to the Tenant's property or business howsoever caused by reason thereof. The
cost of such maintenance, repairs, replacements and other work, representing the Landlord's
overhead, shall be paid by the Tenant to the Landlord on demand. The Landlord's failure to
give any such notice shall not (i) relieve the Tenant from its obligations to perform any such
maintenance, repairs, replacements and other work under this lease nor (ii) prejudice the
Landlord's right to perform any such maintenance, repairs, replacements or other work at the
Tenant's cost as provided above.
5.3 Approval of Tenant's Alterations
(a) No Alterations shall be made to the Premises without the Landlord's and any required
Authority's prior written approval. The Tenant shall submit to the Landlord details of the
proposed Alterations, including, without limitation, plans, drawings and specifications
prepared by qualified architects or engineers in conformity with the Landlord's alien current
Building standards. All such Alterations shall be performed: (i) at the sole cost of the
Tenant; (ii) by contractors and workmen designated, provided or approved by the Landlord;
(iii) in a good and workmanlike manner; (iv) in accordance with plans, drawings and
specifications approved in writing by the Landlord and, where required, by the Authorities;
(v) in accordance with all applicable legal and insurance requirements; (vi) subject to the
reasonable regulations, supervisor control and inspection by the Landlord; and (vii) subject to
providing, and only after there is provided, to the Landlord such indemnification against
liens and expenses and evidence of such additional Tenant's insurance as the Landlord may
reasonably require; all as determined by the Landlord.
(b) If, in the Landlord's opinion any Alterations or maintenance would affect the structure
of the Building, or any part thereof, or any of the HVAC System or electrical, plumbing or
mechanical equipment, facilities or systems or other base building equipment, facilities or
systems, then at the option of the Landlord, such work shall be performed by the Landlord at
Lease Agreement -10-
the Tenant's cost. On completion of such work, the Tenant shall pay to the Landlord, on
demand, the cost of such work, all as determined by the Landlord. No Alterations or
maintenance to the Premises by or on behalf of the Tenant shall be permitted which may
weaken or endanger the structure of, or adversely affect the condition or operation of the
Premises or Building or any part thereof.
(c) Whether or not the Landlord gives its approval to any Alterations, the Tenant shall
pay to the Landlord, on demand, as Additional Rent, all of the Landlord's reasonable costs
(including, without limitation, fees and disbursements of architects, engineers and designers)
incurred in reviewing, consulting in respect of, approving, inspecting and supervising any
and all such Alterations. The Landlord shall have the right to require the Tenant to make a
payment to the Landlord in respect of such costs as a precondition to the Landlord's granting
any necessary approval thereof. Such reasonable costs shall be deemed to include, without
limitation, all amounts paid or payable by the Landlord to third parties, and all reasonable
charges of the Landlord for its own personnel.
(d) The Landlord's approval of any alterations or plans, drawings or specifications with
respect thereto shall not constitute a waiver by the Landlord of the Tenant's obligations
herein to comply with all laws and the requirements of all Authorities with respect to such
Alterations nor any acknowledgment or agreement by the Landlord that such have been
complied with.
5.4 Repair where Tenant at Fault
Notwithstanding any other provisions of this lease including, without limitation, Article VII,
if the Building, the Premises, or any part thereof (including, without limitation all or any
part of the wiring and electrical, lighting and plumbing fixtures and equipment, the HVAC
System and any other base building equipment, facilities and systems) is damaged or
destroyed or requires repair, replacement or alteration as a result of the act or 9mission of
the Tenant, its employees, agents, invitees, licensees, contractors or others for whom it is in
law responsible, the cost of the resulting repairs, replacements or alterations plus a sum
equal to fifteen percent (15%) of such cost representing the Landlord's overhead, to the
extent required by the Landlord by written notice to the Tenant, shall be paid by the Tenant
to the Landlord on demand.
5.5 Removal of Fixtures and Personal Property
All Leasehold Improvements (other than Tenant's fixtures) shall immediately upon their
placement become the Landlord's property without compensation to the Tenant. Except as
may be otherwise agreed by the Landlord in writing, no Leasehold Improvements shall be
removed from the Premises by the Tenant either during or at the expiry or earlier
termination of the Term. The Tenant may, during the Term, in the usual course of its
business, remove its fixtures, provided that the Tenant is not in default under this lease and
provided that such fixtures have become excess to the Tenant's needs or the Tenant is
substituting new and similar fixtures therefor. The Tenant, at the expiration or earlier
termination of the Term, at its cost, (I) shall remove such of the Tenant's fixtures (excluding
Leasehold Improvements) and Tenant's personal property in the Premises as the Landlord
shall require, (II) shall restore the Premises to the Landlord's then current Building standard
(including, without limitation the removal and disposal of any and all hazardous or toxic
substances and containers therefor in accordance with all applicable laws and the
requirements of all Authorities) to the extent required by the Landlord and (III) shall
otherwise peaceably surrender and deliver up vacant Possession of the Premises to the
Landlord. The Tenant, at its cost, shall repair any damage caused to the Building or any
part thereof by such removal or restoration. If the Tenant does not remove its fixtures and
personal property at the expiry or earlier termination of the Term, then, at the option of the
Landlord and without prejudice to any other rights or remedies available to the Landlord, the
r '
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Lease Agreement -11-
fixtures and personal property shall become the absolute property of the Landlord without
payment of any compensation therefor to the Tenant and, without notice to the Tenant, may
be removed from the Premises and sold or disposed of by the Landlord in such manner as it
deems advisable, all without any liability whatsoever to the Tenant. If the Tenant fails to
repair any such damage or complete any work, removal, disposal or restoration referred to in
this Section by the expiry or earlier termination of the Term, the Tenant shall be responsible
for, and shall indemnify and save harmless the Landlord from and against, all expenses,
losses and damages caused by such failure, including, without limitation, the damages
suffered by the Landlord for loss of use of the Premises and the cost of removing and selling
or disposing of such fixtures and personal property and restoring the Premises to the
Landlord's then current Building standard. The Landlord's rights and the Tenant's
obligations under this Section shall survive the expiration or earlier termination of the Term.
5.6 Liens
The Tenant shall promptly pay for all materials and services supplied and work done in
respect of the Premises so as to ensure that no lien is registered against any portion of the
Premises or the Lands or against the Landlord's or Tenant's interest therein. If a lien is
registered or filed, the Tenant shall discharge it at its expense within 10 days thereafter,
failing which the Landlord, at its option, may discharge the lien by paying the amount
claimed to be due into court or directly to the lien claimant and the amount so paid and all
expenses of the Landlord including, without limitation, legal fees (on a solicitor and his
client basis) shall be paid by the Tenant to the Landlord on demand.
5.7 Notice by Tenant
The Tenant shall promptly notify the Landlord of any accident, defect, damage or deficiency
(including, without limitation, any existence, discharge, spillage or leakage of any hazardous
or toxic substances or any notice to the Tenant in connection therewith) in any part of the
Premises or the Building, which comes to the attention of the Tenant, its employees or
contractors notwithstanding that the Landlord may have no obligation in respect.thereof.
ARTICLE VI
INSURANCE AND INDEMNITY
6.1 Tenant's Insurance
The Tenant shall obtain and maintain in full force and effect at its sole cost, at all times
during the Term and such other times, if any, as the Tenant occupies or is in possession of
the Premises or any portion thereof:
(a) "all risks" property insurance, not less broad than the standard commercial property
floater policy with the exclusions such as, without limitation, those relating to sprinkler
leakages (where applicable), earthquake and flood removed therefrom, on all property owned
by the Tenant or for which it is legally liable or installed or affixed by or on behalf of the
Tenant and which is located in the Premises or the Building including, without limitation,
furniture, Tenant's fixtures, equipment, stock-in-trade, inventory and Leasehold
Improvements, in an amount not less than the full replacement cost thereof and with a
replacement cost endorsement, agreed amount co-insurance clause, by-law endorsement,
disputed loss provisions and with reasonable deductibles of not more than 3% of the
replacement cost of the property insured, and such insurance policies shall name as insured
the Landlord;
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Lease Agreement -12-
(b) comprehensive general liability insurance including, but not limited to, property
damage, public liability, personal injury liability, broad blanket contractual liability, products
and completed operations, non-owned automobile (including contractual) liability, employers'
liability, intentional acts to protect persons or property and owners' protective insurance
coverage, all on an occurrence basis, with respect to any use, occupancy, activities or things
of, in, on or about the Premises and with respect to any use, occupancy or activities of, in,
on or about any other part of the Building or the Lands by the Tenant or any of its servants,
agents, contractors or Persons for whom the Tenant is in law responsible, with coverage for
any one occurrence or claim of not less than Two Million Dollars ($2,000,000.00) or such
other amount as the Landlord may reasonably require upon not less than one (1) month's
notice at any time, and with provisions for cross liability and severability of interests, and
. such insurance shall name as insured the Landlord,;
(c) "all risks" tenant's legal liability insurance for the actual cash value of the Premises
including, without limitation, the loss of use of the Premises, with limits satisfactory to the
Landlord, acting reasonably, from time to time;
(d) insurance in the Tenant's own name with respect to risk of business interruption to the
extent which is sufficient in the Landlord's opinion to permit the Tenant to meet its on-going
obligations to the Landlord under this lease; and
(e) any other form of insurance that the Landlord, acting reasonably, requires from time
to time upon nbt less then 30 days written notice, in form and substance, in amounts, for
insurance risks and containing such endorsements and agreements required by and acceptable
to the Landlord.
6.2 Form of Policies
(a) Each policy required pursuant to Section 6.1 shall be in form and substance and with
insurers reasonably acceptable to the Landlord, with loss payable to the Landlord and with
insurance proceeds assigned to the landlord under the policies referred to in Sections 6.1(a)
and (b). Each of the Tenant's insurance policies shall contain (i) an undertaking by the
insurers under such policies that no material change adverse to the Landlord or Tenant will
be made and the policy will not be cancelled or terminated, except after not less than 30 days
written notice by registered mail to the Landlord and the Tenant of the intended change,
cancellation or termination and (ii) a clause stating that the Tenant's insurance policy shall be
primary insurance and shall not call into contribution and shall not be excess to any other
insurance that may be available to the Landlord. Each of the policies referred to in Section
6.1(a) and (b) shall contain (i) a waiver of any rights of subrogation or indemnity or any
other claim which the insurers of the Tenant may have against the Landlord, its agents,
officers or employees and (ii) a waiver, in respect of the interests of the Landlord of any
provision in any such insurance policies with respect to any breach or violation of any
warranties, representations, declarations or conditions contained in such policies.
(b) The Tenant shall provide to the Landlord for acceptance prior to the earlier of the
Commencement Date and the date it occupies the Premises for any purpose, evidence of such
insurance in and completed in accordance with the Landlord's standard form of certificate of
insurance or, if required by the Landlord, evidence in the form of copies of the policies
certified to be true copies by an officer of the insurer and signed by the insurer. In addition,
upon request by the Landlord or upon the placement, renewal, amendment or ex,,tension of all
or any part of such insurance, the Tenant shall immediately provide to the Landtbrd evidence
of such insurance in and completed in accordance with the Landlord's standard form of
certificate of insurance or, if required by the Landlord, evidence in the form of copies of the
policies certified to be true copies by an officer of the insurer and signed by the insurer.
Lease Agreement -13-
(c) The cost or premium for each and every such policy shall be paid by the Tenant prior
to the due date therefor. If the Tenant fails to take out or maintain such insurance or fails to
provide to the Landlord such certified copies of insurance and certificates of insurance as
herein required, or if any such insurance is not acceptable to the Landlord (and',
and if the Tenant
fails to commence to diligently rectify and thereafter proceed to diligently rectify the
situation within 48 hours after written notice by the Landlord to the Tenant (stating, if the
Landlord, from time to time, does not approve of such insurance, the reasons therefor)), then
the Landlord shall have the right, but not the obligation, to do so, and to pay the cost or
premium therefor, without prejudice to any other rights or remedies of the Landlord under
this lease or at law, and in such event the Tenant shall repay to the Landlord, as Additional
Rent, on demand the amount so paid.
6.3 Landlord's Insurance
(a) The Landlord shall maintain during the Term, in those reasonable amounts, and with
those reasonable terms, conditions and deductions that a prudent owner of a building similar
to the Building would maintain, having regard to size, age and location, (i) "all risks"
property insurance and boiler and machinery insurance on the Building (except property that
the Tenant or other tenants are required to insure), (ii) rental income insurance with such
period of indemnity as the Landlord may determine, (iii) public liability insurance with
respect to the Landlord's operations and (iv) such other form of insurance as the Landlord
reasonably considers advisable, from time to time.
I
(b) Notwithstanding the Landlord's covenant to insure and the Tenant's payment of or
contribution to the Landlord's costs and premiums respecting such insurance pursuant to the
provisions of this lease, except to the extent, if any, expressly set forth in this lease or in any
such policy of insurance obtained by the Landlord, (i) the Tenant shall not be relieved of any
liability arising from or contributed by its negligence or its wilful acts or omissions, (ii) no
insurable interest or other interest or benefit (including, without limitation, an implied waiver
of subrogation from the Landlord's insurers is or shall be conferred upon the Tenant under
the Landlord's insurance policies and (iii) the Tenant has and shall have no interest in or
right to receive proceeds under any of the Landlord's insurance policies.
6.4 Release of Landlord
The acquisition and maintenance by the Tenant of the insurance policies as required pursuant
to this Article shall not limit or restrict the liability of the Tenant under this lease. Without
limiting any exclusion of liability, release or indemnity or other provision herein, the Tenant
hereby releases the Landlord and its agents, officers, employees, contractors, workers and
those for whom each is in law responsible from any and all liability for losses, damages and
claims of any kind to the extent of all insurance proceeds paid under (i) the policies of
insurance maintained by the Tenant as required under this lease or which would have been
paid if the. Tenant had maintained the insurance it is required to maintain under this lease and
had diligently processed any claims thereunder and (ii) any policies of insurance and
insurance coverage otherwise maintained by the Tenant.
6.5 Tenant's Effect on Other Insurance
(a) The Tenant shall promptly comply with all reasonable requirements of any insurer
now or hereafter in effect relating to or affecting the Premises or the Building, or any part
thereof. The Tenant shall not do and shall not cause, suffer or permit to be done or omitted
to be done by any of its employees, agents, contractors or Persons for whom the Tenant is in
law responsible anywhere in the Premises or the Building or by any Person in, on or about
the Premises and shall not permit there to be on the Premises anything which, whether or not
the Landlord has consented thereto, might (i) result in any increase in the cost of any
insurance policies of the Landlord on or related to the Building or the Lands or any part or
' Lease Agreement -14-
contents thereof, (ii) result in an actual or threatened cancellation of, reduction in coverage
under, or adverse change in any policy of insurance of the Landlord or others on or related
to the Building or the Lands or any part or contents thereof or (iii) be prohibited by any
policy of insurance of the Landlord or any others in force from time to time in respect of the
Building or the Lands or any part or contents thereof.
(b) If the cost of any insurance policies of the Landlord related to the Building or the
Lands or any part or contents thereof shall be increased as a result of (i) the use or
occupancy of the Premises by the Tenant or any other Person on the Premises, or (ii)
anything kept or permitted to be kept by the Tenant or by any Person anywhere on the
Premises or by the Tenant or any of its employees, customers, contractors, suppliers
or Persons for whom the Tenant is in law responsible (any of which are in this Section 6.5
referred to as "Employees") on any part of the Premises, the Building or the Lands, or (iii)
any act or omission of the Tenant or any Person on the Premises, or of the Tenant or any of
its Employees in any part of the Building or the Lands, the Tenant shall pay the full amount
of such increase in cost to the Landlord forthwith upon demand as Additional Rent. In
determining the Tenant's responsibility for any increased cost of insurance as aforesaid, a
statement issued by the organization, company or insurer establishing the insurance premiums
or rates for the relevant policy shall be conclusive evidence of the various components of
such premiums or rates and the factors giving rise to any increase therein.
(c) In the event of an actual or threatened cancellation of or adverse change in any policy
of insurance of the Landlord or any others on or related to the Building or the Lands or any
part or contents thereof by reason of (i) the use or occupancy of the Premises by the Tenant
or any other Person permitted by the Tenant on the Premises, (ii) anything placed on or
permitted by the Tenant or any Person on the Premises or by the Tenant or any of its
employees or invitees on any part of the Building or the Lands or (iii) any act or omission of
the Tenant or any Person in the Premises or by the Tenant or any of its employees, invitees
or customers on any part of the Building or the Lands and if the Tenant fails to,remedy the
situation, condition, use, occupancy or other factor giving rise to such actual or'threatened
cancellation or change within three (3) days after notice thereof by the Landlord, the
Landlord, in addition to any other right or remedy it may have, at its option may either (i)
terminate this lease forthwith by written notice or (ii) remedy the situation, condition, use,
occupancy or other factor giving rise to such actual or threatened cancellation or change, all
at the cost of the Tenant to be paid to the Landlord forthwith upon demand as Additional
Rent. For any or all of such purposes as set forth in this Section the Landlord shall have the
right to enter upon the Premises without further notice.
6.6 Indemnity of Landlord
Notwithstanding any other provision of this tease, the Tenant shall indemnify the Landlord
and all of its agents, managers, officers, employees, contractors, consultants, workers and
Persons for whom the Landlord is in law responsible (collectively in this Section 6.6 and in
Section 6.7 called "Landlord's Employees") and shall hold them and each of them harmless
from and against any and all liabilities, actions, proceeding, damages, claims, losses
(inducing, without limitation, indirect or consequential damages that may be suffered or
sustained by the Landlord or any of the Landlord's Employees and loss of Rent and other
amounts payable by the Tenant under this lease) and expenses (inducing, without limitation,
all legal fees and disbursements) whatsoever, howsoever arising from or out of this lease,
and/or, without limiting the generality of the foregoing, howsoever caused by, due to, arising
from or to the extent contributed to by any of the following:
Lease Agreement -15-
(i) any breach or default by the Tenant of or under any of the provisions of this lease;
(ii) any lien under the Construction Lien Act, R.S.O. 1990, c.30 respecting the Premises;
(iii) any breach by the Tenant of the terms of any encumbrance affecting the Premises;
(iv) any act or omission of the Tenant or any other Person on or permitted on the
Premises, or any use or occupancy of, or any articles in, the Premises or any part
thereof, or any use or occupancy of any other part of the Building or the Lands by the
Tenant or any of its agents, employees, invitees, licensees, sub-tenants,
assignees,concessionaires, contractors or Persons for whom the Tenant is in law
responsible (collectively in this Section 6.6 and in Section 6.7 called "Tenant's
Employees");
(v) any act or omission of the Tenant or any of the Tenant's Employees on the Premises
or elsewhere in, on or about the Building or the Lands or any part thereof;
(vi) any injury, personal discomfort, illness, death or loss, costs, expenses or damages
whatsoever, direct or indirect or consequential, however caused or arising (I) to
Persons or property of the Tenant or any of the Tenant's Employees or any other
Persons in, on or about the Building or the Lands or any part thereof by or with the
invitation, licence or consent of the Tenant and/or (II) which is excluded from the
Landlord's liability or responsibility under Section 6.7(b);
(vii) any accident or occurrence in, on or at the Premises including, without limitation, any
such accident or occurrence causing injury or death to any Person or damage to
property or any other loss or injury whatsoever; and/or
(viii) any damage, destruction or need of repair or replacement to any part of, or otherwise
relating to, the Premises or any other part of the Building, or any damages incurred
by the Landlord or by any occupant of the Building or any part thereof, caused by
any act or omission of the Tenant or any of the Tenant's Employees, notwithstanding
any other provisions of this lease including, without limitation, the provisions
regarding the Landlord's repair obligations and Article VII;
and, for greater certainty, whether or not any of the foregoing is caused, arising or
contributed to by the negligence or fault of the Landlord or any of the Landlord's
Employees. If the Landlord, without fault on its part, is made a party to litigation
commenced by or against the Tenant, the Tenant shall indemnify and hold harmless the
Landlord from and against all legal and other costs. The Landlord, at its option, may
participate in, or assume carriage of, any litigation or settlement discussions relating to the
foregoing, or any other matter for which the Tenant is required to indemnify the Landlord
under this lease. Alternatively, the Landlord may require the Tenant to assume carriage of
and responsibility for all or any part of such litigation or discussions.
The Tenant shall pay all legal costs incurred or paid by the Landlord in enforcing the
provisions of this lease. For greater certainty the Tenant's obligations contained in this
Section shall survive the expiration or earlier termination of the Term.
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Lease Agreement -16-
6.7 Loss or Damage
ii
The provisions of this Section 6.7 shall govern notwithstanding any other provision of this
lease.
(a) The Landlord shall not be liable for any death or injury arising from or out of any
occurrence whatsoever in, upon, at or relating to the Premises, the Building on the Lands, or
any part thereof, or damage to property of the Tenant or of others located on the Premises,
the Building or the Lands from any cause whatsoever, nor shall the Landlord be responsible
for any loss of or damage to any property of the Tenant or others from any cause
whatsoever, whether or not such property is entrusted to the care or control of the Landlord
or any of the Landlord's Employees, nor shall the Landlord be responsible for any indirect
or consequential damages that may be suffered or sustained by the Tenant or any others from
any cause whatsoever, and in each case whether or not any such death, injury, loss, damage
or damages results from the negligence or fault of the Tenant, the Landlord or any of the
Landlord's Employees.
(b) Without limiting the generality of the foregoing, the Landlord shall not be liable or
responsible in any way for any death, injury (including, without limitation, personal
discomfort or illness) loss, damage or damages of or to Persons or property resulting,
directly or indirectly, from any of the following, whether or not such results from the
negligence or fault of the Landlord or any of the Landlord's Employees: (i) fire, explosion,
theft, breakage, falling plaster, falling ceiling tile, falling fixtures, steam, gas, electricity,
water, rain, flood, ice, snow or leaks into, in or from any part of the Premises or Building
or from any pipes (including, without limitation, water, steam, sprinkler and drainage pipes),
sprinklers, appliances, drainage or plumbing works, roof, windows or exterior walls or
subsurface of any floor or ceiling of the Premises or Building, or any part thereof, or from
the street or any other source or place whatsoever, or by dampness, or by the existence,
discharge, spillage or leakage of hazardous or toxic substances, or by any other cause
whatsoever; (ii) any suspension, non-operation, failure, reduction, interruption or failure to
supply or perform, for any reason or for any period of time, of or in any of the services,
equipment, facilities, systems (such as, without limitation, the HVAC System) or Utilities or
any public Utilities or any services serving the Premises, or the Building, or any part
thereof; (iii) delays in the performance of any repairs, replacements, maintenance or
Restoration for which the Landlord is responsible under this lease; (iv) incurred by reason of
the Landlord or any of the Landlord's Employees entering upon the Premises to undertake
any examination thereof or any work or cleaning or performance of other services therein;
(v) incurred by reason of the supply or performance of any dealing, janitorial, pest
extermination or security obligations or services in any part of the Premises or the Building;
or (vi) by reason of inconvenience, annoyance or injury to business arising from the
Landlord, the Tenant or any others making or failing to diligently make, for whatever reason
or cause, any repairs, alterations, additions, renovations, improvements or Restorations in or
to any part of the Premises, the Building, or the Lands.
(c) The Landlord shall not be liable or responsible in any way for any such&ath, injury,
loss or damage caused by other tenants, occupants or Persons on or in the Premises, the
Building or the Lands, or any part thereof or by any occupants of any adjacent property
thereto.
(d) All property of the Tenant or of any of the Tenant's Employees kept or stored on the
Premises (including without limitation, all Leasehold Improvements leased by the Tenant
herein) shall be so kept or stored at the sole risk of the Tenant, and the Tenant releases and
agrees to indemnify the Landlord and save it harmless from and against any claims arising
out of any loss of or damage to such property, including, without limitation, any subrogation
claims by the Tenant's or any others' insurers, and the Tenant shall make all claims for loss,
damage or destruction of or to any such property against the policies of insurance required to
be maintained by the Tenant under this lease.
M
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Lease Agreement -17_
6.8 Benefit of Releases
Every indemnity, hold harmless provision, release and exclusion of liability herein contained
for the benefit of the Landlord and every waiver of subrogation for the benefit of the
Landlord contained in any insurance policy maintained by the Tenant shall survive the
expiration or earlier termination of the Term and shall extend to and benefit all of the
Landlord, its officers, employees and those for whom any of the Landlord, such manager(s)
and such agents, respectively, is in law responsible. Solely for such purpose, and to the
extent that the Landlord expressly chooses to enforce the benefits of this Section for any or
all of such Persons, it is agreed that the Landlord is the agent or trustee for such Persons.
No such indemnity, hold harmless provision, release or exclusion of liability or waiver of
subrogation for the benefit of the Landlord shall be deemed to impose or imply any
obligation, responsibility or liability whatsoever on the Landlord, including, without
limitation, any obligation to perform or do any act or thing, except to the extent any such
obligation, responsibility or liability of the Landlord is expressly provided for under this
lease.
ARTICLE V11
DAMAGE AND DESTRUCTION
7.1 Damage to Premises. Building or Development
If the Premises or Building, or any part thereof, are damaged or destroyed, in whole or in
part, by fire or any other occurrence, then (i) this lease shall nonetheless continue in full
force and effect, (ii) there shall be no abatement of any Rent except to the extent expressly
provided in this Article, (iii) the following provisions of this Article shall apply and (iv)
notwithstanding any receipt by the Landlord of any insurance proceeds, and notwithstanding
any provision of this lease or obligation or requirement at law, in equity or by statute to the
contrary, the obligations of the Landlord to maintain, repair and replace or to provide
services or Utilities, if any, or to perform Restoration under this lease shall be subject to the
provisions of this Article and limited to the extent to which the Landlord is required to be
insured under this lease or is otherwise insured.
7.2 Insured Damage to Premises
If there is damage or destruction to the Premises caused by an occurrence against which, and
to not more than the extent that, the Landlord either is required to insure pursuant to this
lease or is otherwise insured (in this Article VII called "Insured Damage"), and Jf (i) in the
Architect's opinion, such Insured Damage is such as to render the whole or any part of the
Premises unusable or unsafe for the purpose of the Tenant's use and occupancy and the
Restoration of the Premises is not capable of being completed with reasonable diligence
within 180 days following such occurrence or (ii) any Authority, requires that the Building or
the Residential Building be demolished or substantially demolished prior to any Restoration,
then the Landlord may elect to terminate this lease by giving written notice to the Tenant
within sixty (60) days after such occurrence. If the Landlord does not so elect to terminate
this lease, the parties shall diligently perform the Restoration of the Premises pursuant to
Section 7.6.
VIC
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Lease Agreement -18-
7.3 Vninsured Damage to Premises and Last Two Years
If there is damage or destruction to the Premises and, in the Architect's opinion, (i) such
damage or destruction is caused by an occurrence against which the Landlord is not insured
or required to insure or the cost of Restoration of which would be in excess of the extent to
which the Landlord is required to insure pursuant hereto or is otherwise insured or (ii) the
Restoration of the Premises is not capable of being completed within sixty (60) days
following the occurrence of such damage or destruction and such damage or destruction
occurs within two (2) years prior to the expiry of the stated Term or any extension or
renewal thereof and either there are no remaining rights in any party hereto to extend or
renew this lease or any party having the right to extend or renew this lease fails to do so
within fifteen (15) days after such occurrence, then, in either event, the Landlord may elect
to terminate this lease by giving written notice to the Tenant within thirty (30) days after
such occurrence. If the Landlord does not so elect to terminate this lease, the parties shall
diligently perform the Restoration of the Premises pursuant to Section 7.6.
7.4 Damage to Building or Development
If (i) in the Architect's opinion, Restoration of portions of the Building which affect access
or services essential to the Building or Premises is not capable of being completed with
reasonable diligence within one hundred and eighty (180) days following the occurrence of
damage or destruction to such portions or (ii) any Authority requires that the Building be
demolished or substantially demolished prior to any Restoration following damage or
destruction to the Building or any part thereof, in any such case whether such damage or
destruction is a direct or indirect result of any occurrence of cause whatsoever, whether or
not such occurrence or cause is insured, and whether or not there is any damage or
destruction to the Premises, then the Landlord may elect to terminate this lease by giving
written notice to the Tenant within sixty (60) days after such cause or occurrence. If the
Landlord does not so elect to terminate this lease, the parties shall diligently perform the
Restoration of the Premises and Building to the extent of their obligations pursuant to Section
7.6 (subject to Sections 7.2 and 7.3).
7.5 Termination
If the Landlord elects to terminate this lease under this Article by giving written notice to the
Tenant, then, notwithstanding the receipt by the Landlord of any insurance proceeds, (i) this
lease shall terminate on the date that such notice is given, (ii) the Tenant shall immediately
vacate and surrender possession of the Premises and (iii) all Rent accrued to such termination
date shall be apportioned and promptly paid without any right of the
Tenant to any abatement, deduction, counterclaim, set-off, compensation or reduction
whatsoever.
7.6 Restoration if Lease Not Terminated
If this lease is not terminated as provided in this Article, the Landlord, to the extent of
insurance proceeds which the Landlord receives or would have received if it had maintained
such insurance as is required to be maintained by the Landlord hereunder, shall proceed to
perform such Restoration to the Premises and Building limited to the extent of its express
obligations under this lease (which exclude, without limitation, the Restoration of all
Leasehold Improvements) and to the extent of which it is not the Tenant's obligation to
perform Restoration under any Article of this lease, and subject to the provisions of this
Article and the Tenant's obligations under this lease. The Tenant, commencing on the
seventh (7th) day following the Landlord's written notice to the Tenant of the date of the
Landlord's substantial completion of its Restoration to the Premises, without interfering with
the Landlord's Restoration, shall re-occupy the Premises and during the thirty (30) day
0
Lease Agreement -19-
period commencing on such date (in this Section called the "Tenant's Restoration Period")
shall proceed to perform such Restoration as is the Tenant's responsibility under this lease,
including, without limitation, the Restoration of all Leasehold Improvements. The respective
obligations of the Landlord and the Tenant with respect to Restoration of the Premises
following any damage or destruction under this Article shall be performed in accordance with
all applicable obligations to perform Restoration contained herein (including, without
limitation, Section 5.3) with due diligence and dispatch. The Tenant's obligations to perform
Restoration to the Premises after such damage or destruction shall be performed''at the
Tenant's sole cost and without any contribution thereto by the Landlord (save and except to
the extent as may otherwise be specifically provided in this lease) whether or not (i) the
Landlord had at any time made any contribution to the cost of supply, installation or
construction of any Leasehold Improvements in the Premises (including, without limitation,
any inducement, allowance or loan), (ii) the Landlord had constructed or provided all or part
of such Leasehold Improvements at the Landlord's sole cost, (iii) the Landlord, the Tenant or
both maintain insurance with respect to such Leasehold Improvements or (iv) the damage or
destruction was caused by the Landlord's fault or negligence. In any event, within the
Tenant's Restoration Period, the Tenant shall complete its Restoration to the Premises and
shall fully fixture and staff the Premises and recommence the operation of the Tenant's use
of the Premises as permitted and required pursuant to this lease. If the damage or
destruction is such as to render the whole or any part of the Premises unusable in whole or
in part for the purpose of the Tenant's use and occupancy as permitted under this lease, then
Net Rent payable hereunder shall abate to the extent that the Tenant's use and occupancy of
the Premises is`in fact thereby diminished, as determined by the Architect in its sole
discretion, from the date of such damage or destruction until the earlier of (i) the expiry of
the Tenant's Restoration Period and (ii) the date on which the Tenant first commences the
use and occupancy as required by this lease of any part of the Premises which had been so
damaged or destroyed, and then only to the extent that the damage or destruction to the
Premises is Insured Damage.
7.7 Restoration of Premises or Building and Insurance Proceeds
If there is damage or destruction to the Premises or the Building, or any part thereof, and if
this lease is not terminated pursuant hereto, the Landlord, in performing the Restoration of
the Premises or Building, or any part thereof, as required hereby, shall not be obliged to
perform such Restoration in accordance with the plans, drawings or specifications for the
Premises or the Building, or any part thereof, as they existed prior to such damage or
destruction but the Landlord may perform such Restoration in accordance with any plans,
drawings and specifications chosen by the Landlord in its sole discretion. Without limiting
the generality of the foregoing, the Landlord shall be entitled to demolish and rebuild the
Premises or Building, or any part thereof. The proceeds of insurance, which is required to
• be maintained by the Tenant and which insurance is required to name the Landlord and any
others as insureds with loss payable to the Landlord and with insurance proceeds assigned to
the Landlord, shall be and are hereby assigned and made payable to the Landlord. If the
Tenant receives any such insurance proceeds, the Tenant shall receive and hold such
proceeds in trust for the Landlord and shall promptly deliver them to the Landlord. To the
extent that such proceeds shall have been paid to the Landlord, they shall be released to the
Tenant (provided the Tenant is not then in default hereunder) as follows: (i) if this lease is
not terminated pursuant hereto, (I) following the Tenant's written request, (II) in accordance
with all applicable laws, (III) in progress payments, but on a "cost to complete" basis, at
stages determined by the Architect, (IV) following receipt by the Landlord of a certificate
from the Architect, in substance and form satisfactory to the Landlord, inter alia, that
Restoration to each stage has been satisfactorily completed by the Tenant, (V) provided that,
to the Landlord's satisfaction, such Restoration is completed free of liens and without notice
or registration of liens, provided that, if the Tenant defaults in making such Restoration or
any part thereof and if the Landlord shall perform such Restoration or part thereof, the
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Lease Agreement -20-
proceeds may be applied by the Landlord to the costs thereof; or (ii) if this lease is
terminated pursuant hereto, but only to the extent of the value of any Tenant's fixtures or
personal property of the Tenant (to the extent that the Tenant is not indebted to the Landlord
or in default under the provisions of this lease) but not to the extent of the value of any
Leasehold Improvements made by, on behalf of or for the benefit of the Tenant to the
Premises.
7.8 Determination of Matters
For the purposes of this Article, the date of any damage or destruction, the determination of
and extent to which any area(s) of the Premises of the Building are damaged, destroyed,
rendered unsafe or are not capable of being used, the times within which Restoration may be
made and the date that it is completed or substantially completed shall be determined by the
Architect in its sole discretion, such determination to be final and binding on the parties.
7.9 Limitation of Liability
Notwithstanding any other provision of this lease, the Landlord shall not be liable for any
damages, direct, indirect or consequential, of any nature whatsoever, (including, without
limitation, loss of business income or other economic loss to the Tenant), of the Tenant or its
clerks, employees, customers, suppliers or other Persons dealing directly or indirectly with
the Tenant or for whom the Tenant is in law responsible arising out of the failure for any
cause whatsoever of the Landlord or others to perform or complete Restoration of the
Premises or Building, or any part thereof, within any period of time following the occurrence
of damage or destruction contemplated by this Article, and the Tenant shall indemnify and
save harmless the Landlord from and against all such damages.
ARTICLE VIII
TRANSFERS
8.1 Transfers
The Tenant shall not enter into, consent to or permit any Transfer without the prior written
consent of the Landlord in each instance, which consent shall not be unreasonably withheld
but shall be subject to the Landlord's rights under Section 8.2. Notwithstanding any statutory
provision to the contrary, it shall not be considered unreasonable for the Landlord to
withhold its consent in the Landlord's sole discretion, for any reason or for no reason. Any
consent by the Landlord to any Transfer shall not constitute a waiver of the necessity for
such consent to any subsequent Transfer. This prohibition against any Transfer shall include
a prohibition against any Transfer by operation of law. No Transfer shall take place by
reason of the failure of the Landlord to give notice to the Tenant within the 30 days required
by Section 8.2.
8.2 Landlord's Right to Terminate
(a) If the Tenant intends to effect a Transfer, the Tenant shall give prior written notice to
the Landlord of such intent specifying the identity of the Transferee, the type of Transfer
contemplated, the portion of the Premises affected thereby and the financial and other terms
of the Transfer, and shall provide such financial, business or other information relating to the
proposed Transferee and its principals as the Landlord requires, together with copies of any
documents which record the particulars of the proposed Transfer.
` Lease Agreement -21-
(b) The Landlord, within thirty (30) days after having received such notice and all
requested information and copies of documents, shall give written notice to the Tenant either
that (i) it consents or does not consent to the Transfer in accordance with the provisions and
qualifications of this Article VIII or (ii) it elects to cancel this lease as to the whole or part,
as the case may be, of the Premises affected by the proposed Transfer, in preference to
giving such consent.
(c) If the Landlord elects to terminate this lease, (i) it shall stipulate in its notice the
termination date of this lease, which date shall be no earlier than thirty (30) days and no later
than ninety (90) days following the giving of such notice of termination and(ii) the Tenant,
within ten (10) days after the Landlord's notice of termination is given, shall give written
notice to the Landlord either to refrain from such Transfer or to accept termination of this
lease.
(d) If the Tenant either fails to give such notice within such ten (10) days or gives such
notice within such ten (10) days agreeing to accept the Landlord's termination, this lease, as
to the whole or affected part of the Premises, as the case may be, shall terminate on the date
of the termination stipulated by the Landlord in its notice of termination. If the Tenant gives
such notice to the Landlord within such ten (10) days agreeing to refrain from such Transfer,
then the Landlord's election to terminate this lease shall become void.
8.3 Conditions of Transfer
(a) If there is a Transfer, the Landlord may collect rent from the Transferee and apply
the amount collected to the Rent payable under this lease, but no acceptance by the Landlord
of any payments by a Transferee shall be deemed to be a waiver of the Tenant's covenants or
the provisions of Article VIII nor any acceptance of the Transferee as tenant nor a release of
the Tenant from its liabilities or the further performance by the Tenant of its obligations
under this lease. Any consent by the Landlord shall be subject to the Tenant and Transferee
executing and delivering an agreement with the Landlord, in substance and form satisfactory
to the Landlord, agreeing, inter alia: (i) that the Transferee will be bound by all of the terms,
covenants and conditions of this lease, including, without limitation, the terms, covenants and
conditions contained in Section 1.4, as if such Transferee had originally executed this lease
as Tenant.
(b) Notwithstanding any Transfers (whether or not permitted or consented to by the
Landlord or otherwise), subsequent amendments to this lease or Alterations, the Tenant shall
be jointly and severally liable with the Transferee under this lease and the Tenant shall
remain bound by this lease and shall not be released from performing and observing all of
the terms, covenants and conditions of this lease, in each case throughout the Term and any
and all renewals or extensions thereof provided for herein.
(c) Any and all Transfers (whether or not permitted or consented to by the Landlord or
otherwise) and the Landlord's consent to any Transfer shall be subject to but not limited to
the condition that the rent and additional rent payable by the Transferee shall not be less than
the Net Rent and Additional Rent, respectively, payable by the Tenant under this lease as at
the effective date of the Transfer.
(d) Notwithstanding the effective date of any Transfer, all Net Rent and Additional Rent
for the month in which such effective date occurs shall be paid in advance by the Tenant so
that the Landlord will not be required to accept partial payments of Net Rent and Additional
Rent for such month from either the Tenant or Transferee.
(e) Any document evidencing or consenting to any Transfer permitted or consented to by
the Landlord, or setting out any terms or conditions applicable to such Transfer or the rights
and obligations of the Tenant or Transferee thereunder, shall be subject to the Landlord's
prior written approval and, at the option of the Landlord, shall be prepared by the Landlord
Lease Agreement _22_
or its solicitors. All associated legal costs shall be paid by the Tenant to the Landlord, as
Additional Rent, on demand and as a condition to the Landlord's consent to any Transfer.
8.4 Change of Control
If the Tenant is at any time a corporation or partnership, any actual or proposed Change of
Control in such corporation or partnership shall be deemed to be a Transfer or proposed
Transfer, respectively, and subject to all of the provisions of this Article VIII. The Tenant
shall make available to the Landlord or its representatives all of its corporate or partnership
records, as the case may be, for inspection at all reasonable times, in order to ascertain
whether any Change of Control has occurred.
8.5 No Advertising
The Tenant shall not advertise that the whole or any part of the Premises are available for a
Transfer and shall not permit any broker or other Person to do so unless the text and format
of such advertisement is in writing by the Landlord before it is published.
8.6 Assignment by Landlord
The Landlord shall have the unrestricted right to lease all or any parts of the Building and
this lease or any interest of the Landlord in this lease. To the extent that the lessee from the
Landlord assumes the obligations of the Landlord under this lease, the Landlord shall
thereupon and without further agreement be released of all obligations and liabilities under
this Lease.
ARTICLE IX
DEFAULT
9.1 Default and Remedies
If and whenever an Event of Default occurs, the Tenant shall be deemed to be in default
under this lease and, without prejudice to any other rights or remedies which the Landlord
may have under this lease or at law, in equity or by statute, the Landlord shall have the
following rights and remedies, which are cumulative and not alternative:
(i) to terminate this lease by written notice to the Tenant;
(ii) to enter the Premises as agent of the Tenant and as such agent to relet the Premises
for whatever term and on whatever terms and conditions as the Landlord in its
discretion may determine and to receive the rent therefor and, as agent of the Tenant,
to take possession of any property on the Premises, to store such property at the
expense and risk of the Tenant or to sell or otherwise dispose of such property in
such manner as the Landlord may see fit without notice to the Tenant; to make such
alterations to the Premises as the Landlord may see fit to facilitate their reletting; and
to apply the net proceeds of any such sale or reletting first, to the payment of any
expenses incurred by the Landlord with respect to any such reletting, alterations or
sale, second to the payment of any indebtedness of the Tenant to the Landlord other
than Rent and third, to the payment of Rent in arrears, with the residue to be held by
the Landlord and applied in payment of future Rent as it becomes due and payable.
The Tenant shall remain liable for any deficiency to the Landlord. No such entering,
taking possession, storing, selling, disposing, alterations or reletting shall constitute a
termination of this lease unless written notice is given by the Landlord to that effect;
Lease Agreement -23-
(iii) to remedy or attempt to remedy any default of the Tenant under this lease, at the
Tenant's sole cost and expense, and to enter upon the Premises for such purposes. No
notice of the Landlord's intention to perform such covenants need be given to the
Tenant unless expressly required by this lease. The Landlord shall not be liable to
the Tenant for any loss, injury or damage whatsoever, howsoever caused by any acts
or omissions of the Landlord in remedying or attempting to remedy such default nor
shall such entry, remedying or attempting to remedy constitute (I) a termination of
this lease (unless written notice is given to that effect), (II) a breach of any covenant
for quiet enjoyment or other Landlord's covenant or (III) a constructive or actual
eviction or other infringement of any other of the Tenant's rights, and the Tenant
shall pay to the Landlord all expenses in connection with remedying or attempting to
remedy such default; and
(iv) to recover from the Tenant all damages and expenses incurred by the Landlord as a
result of any Event of Default or any breach of the Tenant including, without
limitation, if the Landlord terminates this lease, the cost of recovering toe Premises,
solicitor's fees (on a solicitor and his client basis) and including, withoutjimitation,
the worth at the time of such termination of the excess, if any, of the amount of Rent
and other charges required to be paid pursuant to this lease for the remainder of the
Term over the then reasonable rental value of the Premises for the remainder of the
Term, all of which amounts shall be immediately due and payable by the Tenant to
the Landlord. In determining the Additional Rent which would be payable by the
Tenant'after such termination or re-entry for an Event of Default, the annual
Additional Rent for each year of the unexpired Term shall be considered to be equal
to twelve (12) times the average monthly payments of Additional Rent paid and/or
payable by the Tenant.
9.2 Distress
Notwithstanding any provision of this lease or any provision of applicable legislation, none of
the goods and chattels of the Tenant on the Premises at any time during the Term shall be
exempt from levy by distress for Rent in arrears, and the Tenant waives any such exemption.
If the Landlord makes any claim against the goods and chattels of the Tenant by way of
distress, this provision may be pleaded as an estoppel against the Tenant in any action
brought to test the right of the Landlord to levy such distress.
9.3 Costs
The Tenant shall pay to the Landlord on demand all damages and costs (including, without
limitation, all legal fees on a solicitor and its client basis) incurred by the Landlord in
enforcing the terms of this lease, or with respect to any matter or thing which is the
obligation of the Tenant under this lease, or in respect of which the Tenant has agreed to
insure or to indemnify the Landlord.
9.4 Set-Off and Accord and Satisfaction
The Tenant hereby waives the benefit of any statutory or other rights in respect of
abatement, reduction, set-off, counterclaim, demand, deduction or compensation in its favour
at the time hereof and at any future time. No endorsement or statement on any cheque or
any letter accompanying any cheque or payment as Rent shall be deemed an
acknowledgement by the Landlord of full payment, or an accord and satisfaction, and the
Landlord may accept and cash any such cheque or payment without prejudice to the
Landlord's right to recover the balance of such Rent or pursue any other right or remedy
provided in this lease or at law, in equity or by statute. The Landlord may apply or allocate
any sums received from or due to the Tenant against any amounts due and payable under this
lease in such manner as the Landlord sees fit.
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Lease Agreement -24-
9.5 Survival of Obligations
If the Tenant has failed to fulfil any of its obligations under this lease with respect to the
maintenance, repair, replacement or Alteration of the Premises or Building, or any part
thereof, or removal of Leasehold Improvements or its fixtures or personal prop�If"ty from the
Premises during or at the expiration or earlier termination of the Term, such obligations, and
the Tenant's liabilities and the Landlord's rights with respect thereto, shall survive the
expiration or earlier termination of the Term.
9.6 Lien
If the Tenant, at any time prior to or during the Term or at the expiration or earlier
termination thereof, is in breach of performing or observing any provision of this lease, the
Landlord has a lien on all fixtures, equipment and facilities and other personal property of
the Tenant as security for the performance and observance of such provision and as security
against loss, costs or damages resulting from any such breach by the Tenant and such
fixtures, inventory, equipment and facilities and other personal property shall not be removed
by the Tenant until such breach is cured, unless otherwise permitted in writing by the
Landlord. The provisions of this Section shall survive the expiration or earlier termination
of the Term.
9.7 Waiver'and Remedies Cumulative
The waiver by the Landlord of any breach of any provision herein shall not be deemed to be
a waiver of such provision or of any subsequent breach thereof or of any other provision in
this lease. The subsequent acceptance of any Rent or other amount herein by the Landlord
shall not be deemed to be a waiver of any provision herein or of any preceding breach by the
Tenant of any provision herein, even if the Landlord had knowledge of such preceding
breach. The Landlord's acceptance of performance of any provision herein by any Person
other than the Tenant shall not be deemed to be an acceptance or admission by the Landlord
of any rights, title or interest of such Person as Transferee unless in accordance with Article
VIII. No provision in this lease nor any breach of any such provision (whether or not
continuing or recurring) shall be deemed to have been waived by the Landlord unless such
waiver is expressly set out in writing and signed by the Landlord. All rights and remedies of
the Landlord under this lease, at law, in equity and/or by statute shall be cumulative and not
alternative. Whenever the Tenant seeks a remedy to enforce the observance or performance
of any provision in this lease on the Landlord's part to be observed or performed, the
Tenant's only remedy shall be for direct damages (but not indirect or consequential damages)
that the Tenant shall be able to prove in a court of competent jurisdiction that it has suffered
as a direct result of a breach by the Landlord in the observance or performance of any such
provision. The right of the Tenant to seek a remedy is, however, expressly subject to the
provisions of this lease.
4 \
Lease Agreement -25-
ARTICLE X
SPECIAL PROVISIONS
10.1 Pa_r king
The Tenant acknowledges that parking available on the Lands shall be available to the
Tenants, its agents, employees, invitees and customers and to the Landlord, its agents,
officers, employees, invitees and members of the public who use any part of the Building, on
a first come, first serve basis. If either the Landlord or the Tenant considers that too few
parking spaces are available on the Lands, the Landlord and the Tenant will cooperate in
achieving an agreement between them to provide for an increase in the number of parking
spaces. The Tenant acknowledges that in the case of the Landlord such an agreement would
be made in the context of the annual budget process of the Landlord.
10.2 Negotiations for Extension or New Lease
Without derogating from the other provisions of this lease, at least nine (9) months prior to
the termination of the Term, either the Landlord or the Tenant may give the other written
notice that the party giving the notice wishes to negotiate an extension of the Term of this
lease or a new lease of the Premises on terms and conditions set out in the notice. The party
to which such written notice is given shall forthwith give the other party written notice
indicating whether it wishes to engage in such negotiations or has no interest in doing so. If
negotiations occur and they do not result in the making of an extension agreement or new
lease prior to the day which is not later than one hundred and sixty (160) days before the
termination of the Term, the Landlord's Director of Community Services shall report to the
Landlord's Council on the status of the negotiations. Not later than the expiry of six (6)
months prior to the expiry of the Term, if an extension agreement or a new lease has not
been made the Landlord shall be deemed to have terminated negotiations with the Tenant for
an extension of the Term of this lease or the making of a new lease of the Premises. During
the negotiations, if any, the Landlord and the Tenant will act in good faith to attempt to ,
settle the terms and conditions of an extension agreement or the making of a new lease, as
the case may be. The Tenant acknowledges that the Landlord is free to take vacant
possession of the Premises or to lease them to a person other than the Tenant for a term
commencing after the expiry of this lease on terms and conditions that the Landlord in its
sole discretion considers to be expedient, without any liability to the Tenant as a consequence
• of any of such actions or decisions by the Landlord.
10.3 Operation of Licensed Dav Care and Indoor Family Playground
Without derogating from the other provisions of this lease, the Tenant shall comply with all
applicable laws, the terms and conditions of licences or permits issued to the Tenant by any
Authority, the Landlord's Parks By-law (By-law No. 91-20) as it may be amended or
replaced from time to time and the Canadian "Guidelines on Children's Playspaces and
Equipment" CSA Standard (Can/CSA-Z614-M90), as it may be amended or replaced from
time to time. The Tenant shall ensure that the Premises are managed and operated in a safe
manner at all times so as to protect the health, safety and well-being of its staff, customers
and visitors. The Tenant shall display warning signs as may be directed by the Landlord in
its sole discretion to ensure public safety. Forthwith after each incident occurs involving the
fatality of or life-threatening injury to any person using or occupying the Premises or any
part thereof, the Tenant shall notify the Authorized Officer of the same and the
circumstances and cause of the incident. If the Authorized Officer considers it appropriate to
do so the Landlord may enter on the Premises and examine the records of the Tenant in
order to conduct the Landlord's own investigation of the circumstances and cause of the
incident.
,w
f
Lease Agreement -26-
10.4 Physical Plant and Equipment
The Tenant throughout the Term shall maintain a properly documented system of quality
control designed to ensure the Premises are properly maintained. Monitoring shall be
undertaken by the Tenant in accordance with all manufacturers' or legal requirements. The
Tenant shall not carry out any structural alterations to the Premises without the approval of
the Authorized Officer. The Tenant will not permit the disconnection of any electricity, gas
or water supply to any part of the Premises without permission of the Authorized Officer.
The Landlord will conduct and pay for the annual fire inspection of the fire alarm system and
note appropriate repairs in the Inspection Report. The Tenant is responsible to ensure that
the system is operational at all times and to immediately advise the Authorized Officer of any
deficiencies. The cost of inspections will be borne by the Landlord. The Tenant is
responsible to pay for and furnish the designated area with sufficient fire extinguishers.
10.5 Management and Operation of Premises
The Tenant throughout the Term shall undertake (i) the management and operation of the
Premises; (ii) the supervision of the activities which take place both indoors and outdoors on
the Premises; ensuring the well-being and safety of anyone entering onto the Premises (i.e.
staff, public); (iii) the cleaning and proper maintenance of internal and external areas of the
Premises; (iv) the provision of equipment for the purposes of cleaning the Premises; (v) the
provision of security in and about the Premises; (vi) if a monitoring security system is in
place on the Premises, the payment of the costs of normal upkeep and maintenance; (vii)
providing the Authorized Officer, the Landlord's Property Manager and the Fire Department
of the Landlord with keyed access to the Premises; (viii) providing the Authorized Officer
with a list of names and telephone numbers of those having keyed access and update the
same from time to time; (ix) the payment and supply all day-to-day costs of the Premises
including, but not limited to, hydro, heat, water and sewer, waste collection and disposal,
cleaning supplies and operating supplies; and (x) the payment and obtaining of appropriate
current licenses, approvals and certificates as required to use and operate the premises in
accordance with this lease.
10.6 Disposal of Waste
The Tenant shall make proper arrangements for the storage and disposal of all effluent, waste
and refuse from all parts of the Premises from the Commencement Date until the day after
the day of termination of the lease. The Tenant shall ensure that all waste and refuse is
stored, awaiting collection, in industry standard containers used for normal disposal of
domestic and commercial waste and refuse and in all cases, is to be disposed of
appropriately. The Tenant shall ensure that the volume of any effluent, waste or refuse at
the leased space does not exceed the capacity of the storage containers provided. The Tenant
shall not dispose of any waste or refuse at the Facility by burning the same.
10.7 Ground Maintenance-- Outdoor Playground
The Tenant shall maintain all aspects of the outdoor playground area associated with the
Premises. The outdoor playground will be constructed by the Tenant and must meet all
applicable safety and design standards. The playground design and site plan must be
approved by the Landlord in its sole discretion prior to installation.
10.8 Quality Control
The Authorized Officer shall oversee contract compliance on behalf of the Landlord and will
have the right at any time to inspect the Premises and to meet with the Tenant to discuss the
J
Lease Agreement _27_
L
compliance with this lease. In the event of a breakdown of communication, the Tenant may
appear as a delegate to Council of the Landlord. The Tenant shall:
(a) provide services to a standard which is to the reasonable satisfaction of the Landlord
and to comply in all respects with this lease;
(b) deal with any complaints and suggestions received in a prompt, courteous and
efficient manner;
(c) maintain an accurate record of complaints that will be available for inspection by and
discussion with the Authorized Officer.
The Tenant shall throughout the Term maintain a properly documented system of quality
control designed to ensure that the Premises are clean and properly maintained. The Tenant
may be invited to meet with the Authorized Officer, and any other appropriate parties on a
regular basis to discuss any shared issues relating to the Premises and shall attend such
meetings. The Authorized Officer may mediate any differences which may arise and to
ensure open communication among all the users of the Premises.
10.9 Sponsorship and Advertising Sales
The Tenant is encouraged to seek sponsorship and advertising sales for its activities subject
to formal permission in writing being received from the Landlord in advance of completion
of negotiations with potential sponsors. The Tenant will only enter into sponsorship or
advertising sales agreements with companies agreed to by the Landlord, not to be
unreasonably withheld. The Tenant shall not enter any agreement with sponsors or
advertising sales agreements which extend beyond the Term except with the prior approval of
the Landlord. The Landlord and the Tenant may enter into joint agreements with sponsors
or for advertising sales, where it is mutually beneficial to do so. These agreements will be
negotiated at the time and will not form part of this lease. At the commencement of the
contract, the Authorized Officer will provide the Tenant with a list of applicable sponsorship
and advertising agreements currently in force with the Landlord. In order to avoid
competition or duplication, the Tenant shall not contact the latter organizations or companies
directly, but only through the Landlord.
10.11 Marketing and Advertising
All marketing and advertising of the Premises and associated events will be the responsibility
of the Tenant and will be carried out at its expense. The Tenant shall comply with
regulations and standards set by the Canadian Advertising Council and display advertising
that is of an acceptable, high moral standard, non-political and in good taste. The
Authorized Officer retains the right to prohibit at any time material which the Authorized
Officer deems may offend the public or embarrass the Landlord, or detract from the
aesthetics of the building. The Landlord may provide the Tenant with information which
may be posted in the Premises. Approval must be given by the Authorized Officer for any
external signage required by the Tenant provided that such approval shall not be
unreasonably withheld.
10.12 Concessions/Catering
The Landlord reserves the right to install and operate all concession/snack/bar sales/vending
machines sales within the Complex. Special event catering, day care meals and snacks may
be permitted with the prior written consent of the Authorized Officer who shall have the
power to approve or refuse to approve any catering or food suppliers, in his sole discretion.
Lease Agreement -28-
10.13 Chattel Mortgage of Playground Equipment
The rights of the Landlord respecting playground equipment and furniture owned by the
Tenant and installed or located in or on the Premises under this lease shall be subordinate in
priority to the rights of the Bank of Montreal under a Chattel Mortgage of such furniture and
equipment made by the Tenant as mortgagor, which is registered pursuant to the Personal
Property Security Act, 1990 c.P.10, as amended from time to time.
ARTICLE Xl
GENERAL PROVISIONS
11.1 Rules and Regulations
The Tenant shall comply with, and shall cause its agents, employees, invitees, licensees,
contractors, sub-tenants and assignees to comply with, all Rules and Regulations, and
amendments thereto, established by the Landlord from time to time including, without
limitation, those set out in Schedule "D" attached hereto. The Landlord shall have no
obligation to enforce any of the Rules and Regulations or the provisions of any other release
or agreement against any other tenant or occupant of the Building, and the Landlord shall
have no liability to the Tenant howsoever caused with respect thereto.
11.2 Delav
Except as may be otherwise expressly provided in this lease, whenever and to the extent that
the Landlord or Tenant is delayed or restricted in or prevented from the fulfilment of any
obligation under this lease (other than the obligation to pay any sum of money and to
surrender the Premises on the expiry or earlier termination of the Term) by reason of strikes,
lock-outs, acts of God, restrictive laws or regulations of any Authority, unavailability of
materials or services or other occurrences or matters which are not its fault or not within its
reasonable control, then the performance of such obligation shall be excused during the
period in which such circumstances operate to delay or restrict or prevent the fulfilment of
such obligation and the party so delayed shall be entitled to perform and fulfil such obligation
within an equivalent time period thereafter.
11.3 Overholding
If the Tenant remains in possession of the Premises after the end of the Term with the
consent of the Landlord but without the parties having executed and delivered a new lease or
an agreement extending or renewing the Term, there shall be no tacit renewal of this lease or
extension or renewal of the Term, and the Tenant shall be deemed to be occupying the
Premises as a tenant from month to month on the same terms and conditions as are set forth
in this lease (including, without limitation, those regarding the payment of Rent), so far as
they are applicable to a monthly tenancy, except that Net Rent shall be monthly, payable in
advance on the first day of each month, in an amount equal to twice the monthly amount of
Net Rent payable during the last full month of the Term or any extension or renewal term, as
the case may be.
11.4 Notices
Any notice, demand, request, consent or other instrument ("Notice") which may be or is
required to be given under this lease shall be in writing and shall be delivered in person or
sent by registered mail postage prepaid addressed (i) if to the Landlord, Municipality of
Clarington, 40 Temperance Street, Bowmanville, Ontario, L1C 3A6, Attention: Director of
Lease Agreement -29-
Community Services and (ii) if to the Tenant, at the Premises. Any such Notice shall be
deemed to have been given and received on the day upon which personal delivery is made
or, if so mailed, then 48 hours following the date of mailing. Either party may give Notice to
the other of any change of address (other than the Premises) whereupon the address therein
specified shall be deemed to be the address of such party for Notice. If postal service is
interrupted or substantially delayed, all Notices shall be delivered in person as provided
above.
11.5 Successors
The rights, obligations and liabilities created by this lease shall enure to the benefit of and
shall bind the successors and assigns of the Landlord and the heirs, executors, administrators
and permitted successors and assigns of the Tenant. No rights, however, shall enure to the
benefit of any Transferee unless the provisions of Article VIII are complied with.
11.6 Covenants and Joint and Several Liability
Every obligation of the Landlord or the Tenant expressed in this lease, even though not
expressed as a covenant, shall be deemed to be a covenant for all purposes. The word
"Tenant" shall be deemed to mean each and every Person or party mentioned as Tenant
herein. If, at any time, there is more than one Tenant or more than one Person constituting
the Tenant, their covenants shall be considered to be joint and several and shall apply to each
and every one of them, and each of them acknowledges that it shall have no right to any
benefit of division or discussion. If the Tenant is or becomes a partnership, each Person
who is or shall become a member of such partnership or its successors shall be and continue
to be jointly and severally liable for the performance of all covenants of the Tenant pursuant
to this lease, notwithstanding the dissolution of such partnership or its successors and
whether or not such Person ceases to be a member of such partnership or its successors.
11.7 Heading. Table of Contents. Lease Summa
The Article and Section headings, table of contents and lease summary, if any, appearing in
this lease are inserted only as a matter of convenience, are of no force or effect and in no
way affect the substance or interpretation of this lease or constitute a representation of any
kind.
11.8 Extended Meanings
The words "herein", "hereof", "hereunder" and similar expressions used in this lease relate
to the whole of this lease and not only to the provisions in which such expressions appear.
This lease shall be read with all changes in number and gender as may be appropriate or
required by the context. Any reference to the Tenant includes, in relation to a provision to
be performed or observed by the Tenant and where the context allows, the employees,
agents, invitees, visitors, customers, contractors and licensees of the Tenant and all others
over whom the Tenant might reasonably be expected to exercise control and the Tenant shall
cause such Persons to perform and observe such provisions including, without limitation, the
Rules and Regulations.
11.9 Partial Invalidity
If all or any part of any provision is held to be or rendered illegal or unenforceable it shall
be considered separate and severable from this lease and the remaining parts of this lease
shall remain in force and effect and shall bind the parties as though the illegal or
unenforceable provision or part thereof had never been included in this lease.
M
Lease Agreement -30-
11.10 Entire Agreement
This lease and the Schedules attached hereto set forth the entire agreement between the
Landlord and Tenant concerning the Premises, Building and the Lands and there are no
covenants, representations, agreements, warranties, conditions or understandings in any way
relating to the Premises, the Building or the Lands, or any part thereof, or the subject matter
of this lease or the Offer to Lease, whether expressed or implied, collateral or otherwise,
either oral or written, whether by the Landlord or any agent or representative, their
respective shareholders, directors, officers, employees or rental agents or by any others,
except those set forth in this lease or deemed to form part of and to be included in this lease
pursuant to Section 1.3. This lease and its Schedules may not be modified except by
agreement in writing, executed and delivered by the Landlord and Tenant.
11.11 Governing Law
This lease shall be construed in accordance with and governed by the laws of the Province of
Ontario.
11.12 Time of the Essence
Time shall be of the essence of this lease and every part hereof.
11.13 Quiet Enjoyment
Subject to Section 4.2, if the Tenant pays Rent, fully performs all of its obligations under
this lease, and there has been no Event of Default, the Tenant shall be entitled to peaceful
and quiet enjoyment of the Premises for the Term without interruption or interference by the
Landlord or any Person claiming through the Landlord.
11.14 No Partnership or Agency
The Landlord does not in any way or for any purpose become a partner of the Tenant in the
conduct of its business, or otherwise, or a joint venturer, or a member of a joint enterprise
both the Tenant, nor is the relationship of principal and agent created as a result of the
catering into of this lease or the Offer to Lease.
ARTICLE X11
SPECIAL PROVISIONS
12.1 Schedules
Schedules "A" to "E" inclusive, form part of and are included in this lease.
1 . 1
v v
Lease Agreement -31-
IN WITNESS WHEREOF the Landlord and Tenant have executed this lease under seal.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINOTON
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By:
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COMPANY LIMITED
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SCHEDULE "A"
LEGAL DESCRIPTION OF LANDS
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SCHEDULE "B"
(Insert Plans Showing Premises)
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Schedule "B" _2_
PLAN
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Draft #7
April 15, 1997
OFFER TO LEASE
TO: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
We, Janice Brown and Randy Brown and Diane Labine and Bernie Labine in trust for
a company to be incorporated by us having the floor plans of the building (the "Building") under
construction on the lands shown for municipal purposes as 2950 Courtice Road, Courtice,
Ontario, and to be known as the Courtice Community Complex and the plan of the Lands on
which it is to be located, offer to lease from you on those certain premises (the "Premises") part
of which comprise an area within the Building of about 5,556 square feet on the ground floor
and a part of which comprises an exterior play area on the Lands of about 2,000 square feet,
which parts of the Premises are outlined in red and blue, respectively, on the plan contained in
Schedule "A" attached hereto.
The term of the lease shall be five years commencing on whichever of the days shall
occur first:
(1) July 1, 1997, and
(2) the day upon which possession of the Premises is given to us following
completion of the Leasehold Improvements (the "Commencement Date").
Within 14 days following the execution of this Offer to Lease by you we will engage a
qualified Architect and Engineer to prepare detailed floor plans and shop drawings for the
improvement of the Premises ("Leasehold Improvements") and submit the same for the approval
of your Property Manager whose approval shall not be unreasonably withheld. The Leasehold
Improvements if required by you or by a responsible authority shall include but not be limited
to: (i) security; (ii) lighting-interior/exterior; (iii) fire alarm system; (iv) fire extinguishers; (v)
door modification; (vi) plumbing, electrical; (vii) window alterations; (viii) sprinkler systems;
and (ix) acoustical baffling. Forthwith after this Offer to Lease becomes unconditional we shall
reimburse you for any Architect/Engineering fees incurred by the Municipality respecting the
Leasehold Improvements including reviewing and approving of the detailed floor plans of the
Premises and the shop drawings for the Leasehold Improvements.
You shall allow us to enter on the Premises at least 3 months prior to the Commencement
Date without charge for the purpose of constructing and installing thereon at our cost Leasehold
Improvements which shall be constructed or installed in accordance with the shop drawings
approved by your Property Manager, provided that we will pay all suppliers of services and
materials in a timely manner, so that claims for construction liens will not be registered on title.
Prior to permitting any supplier to deliver materials or equipment to be used in and prior
to commencing the construction or installation of the Leasehold Improvements, we shall provide
you with documentation ineluding but not litnited to a seeerity in a form, with a eonfent and in
an amett satisfactory to your Property Manager and your Treasurer to assure you that all
suppliers of services and materials used in the construction of Leasehold Improvements will be A . L.. L
paid in full therefor. Forthwith after each occasion on which you request the same by notice
in writing to us, we will provide you with proof satisfactory to you that all suppliers have been
paid, or if that is not the case, the names, addresses, and particulars of the claims of suppliers.
If any construction lien claim is registered on title we will indemnify you against your costs, n�
including your reasonable legal costs, of having the same extinguished or satisfied. s'
Offer to Lease -2-
Prior to the Commencement Date and the delivery of possession to us of the Premises,
we shall execute and deliver a Lease of the Premises in the form and with the content of the
lease contained in Schedule "B" hereto and forming part of Offer to Lease. A certified cheque
for $11,240.00 payable to you is delivered herewith as a deposit to be applied against: (i) the
claims, if any, of unpaid suppliers of materials or services respecting the Leasehold
Improvements; and (ii) either the completion of the approved Leasehold Improvements by you
if we fail to complete them in accordance with the approved shop drawings or the restoration
of the Premises to a condition satisfactory to the Municipality's Property Manager as he may
determine to be appropriate and if any balance remains unexpended, to apply the balance against
the "Net Rent" (as defined in the draft lease) accruing due in the period immediately following
the earlier of the Commencement Date and the date on which either you give us written notice
that you are satisfied with the proof' with which we provide you that there are no unpaid
suppliers or you give us written notice that you have completed the Leasehold Improvements or
restored the Premises to a satisfactory condition. The deposit shall be refunded without interest
or deduction to us if this Offer to Lease is not accepted by you or if it terminates because any
of the conditions set out below are not satisfied as provided herein.
The Premises are to be used only for the purpose of an indoor family playground and
licensed day care centre. It is understood that the Building is presently under construction. The
landlord shall make all reasonable effort to have the Premises ready for occupancy on the first
day of July, 1997; provided that if, because construction of the Building is not completed, or
the services which you are obligated by the lease to furnish are not made available, the Premises
or any part thereof are not ready for occupancy on the first day of July, 1997, no part of the
rent, or only the proportionate part thereof in the event that we shall occupy a part of the
Premises, is payable for the period prior to the date when the whole of the Premises are ready
for occupancy, and the full rent accrues only after such last mentioned date, and we agree to
accept the abatement of rent in full settlement of all claims which we might otherwise have by
reason of the Premises not being ready for occupancy on the first day of July, 1997; provided
further, that when you have completed construction of the Premises and made available the
services, we shall not be entitled to any abatement of rent for delay in occupancy due to our
failure to complete the installations and other work required for our purposes or for any other
reason. A certificate of your Architect that the construction of the Premises is complete and the
services to be furnished by you are available shall be conclusive.
You agree to do the work at your cost described in the outline specifications set out in
Schedule "C" attached hereto.
This Offer to Lease is conditional on you determining the location of the Premises to our
satisfaction within 14 days after the execution of this Offer to Lease by you.
This Offer to Lease is conditional for a period of 14 days commencing on the date of
execution of it by you on us at our expense arranging financing in an amount and upon terms
which are satisfactory to us, failing which this Offer to Lease shall become null and void and
the deposit being held by you shall be returned to us without interest or deduction, provided that
if we do not notify you in writing on or prior to the expiry of the aforesaid 14 day period that
we have not be able to arrange such financing, this condition shall be deemed to have been
waived by us and shall have no further effect.
This Offer to Lease is conditional on the incorporation of the Company by us within the
period of 21 days commencing on the date of execution of it by you provided that the Articles
of Incorporation and the proposed shareholders, directors and officers shall first have been
approved in writing by your Property Manager.
This Offer to Lease is conditional on the payment by us to you prior to the
Commencement Date of an amount equal to the total cost of all the Associated Leasehold
Improvements provided that such are constructed or installed by you. The Associated Leasehold
R
Offer to Lease _3_
Improvements are the following: Plumbing and electrical, currently estimated to cost$9,000.00;
exterior door modifications, currently estimated at $6,000.00; acoustic treatment on wall,
currently estimated to cost $5,000.00 and professional consulting fees, currently estimated to
cost $2,500.00.
It is agreed there are no covenants, representations, agreements, warranties or conditions
expressed or implied, collateral or otherwise, except as expressly set out in this agreement and
as expressly set out in the letter from your Director of Community Services to us dated April
11, 1997, a copy of which is contained in Schedule "D" hereto. This letter forms part of this
Agreement.
In our personal capacities and not as trustees for a company to be incorporated, we
guarantee to indemnify you against any loss or cost, including your reasonable legal fees, which
you may incur if the company to be incorporated to lease the Premises fails to pay to suppliers
of services or materials the cost of Leasehold Improvements, or fails to pay to you the cost of
the Associated Leasehold Improvements in accordance with this Offer to Lease.
This offer is irrevocable until [time] on the day of April, 1997, after which time
if not accepted this offer is void, and the deposit will be returned to us.
DATED this aU774 day of April, 1997.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By:
Mayor
By:
DE P uTy r
Janice Brown fMstee fora company to be
incorporated
Janice Brown h pers capacity
Randy Br wn s trust or company to be
incorporate
an Br 6w pe capacity
Diane Lab me as trustee for a company to be
incorporated
Offer to Lease -4-
Diane La ine in h r persona capacity
La me as trustee for a company to e
incorporated /
Bernie Labme in his personal capacity
IV
}
1
1
' Offer to Lease _5_
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON accepts this offer to
lease.
DATED this ;?97W day of April, 1997.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By:
Mayor
By:
D E P uACler
SCHEDULE "A"
(Insert Plan showing Premises)
• 1
SCHEDULE "B"
(Insert Lease)
M
SCHEDULE "C"
Landlord's Work
Provide dedicated HVAC with main duct branch to serve Premises.
Provide electrical and plumbing service feeds to the Premises.
Provide fire alarm and sprinkler system for the Building including the Premises as
required by the Ontario Building Code.
Redesign of main entry area into the Premises to accommodate floor plans for library and
Premises.
Metering of all utility services to Premises.
r
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SCHEDULE "C"
DEFINITIONS
In this lease and in the Schedules to this lease:
"Additional Rent" means all sums of money required to be paid by the Tenant under this
lease (except Net Rent and except as may otherwise be expressly provided in this lease)
whether or not designated "Additional Rent" or payable to the Landlord or otherwise.
"Alterations" means all repairs, replacements, improvements, additions or alterations to the
Premises by the Tenant.
"Architect" means the architect from time to time named or employed by the Landlord.
"Authorities" means the municipal and regional, provincial and federal government
including, without limitation, their agencies, commissions, authorities, branches or
departments and any other governmental body or corporate authority having or claiming
jurisdiction over the Building or the Premises, or any part thereof, or over the operations of
the Landlord or the Tenant. Any reference to the term "Authority" shall include, without
limitation, the insurance companies writing the insurance policies covering the Building or
Premises, or any part thereof, the Insurers Advisory Organization of the Landlord or
Owner(s) or any other body hereafter constituted exercising similar functions, and the police
and fire departments having or claiming jurisdiction over the Building or Premises, or any
part thereof, unless there is something in the context inconsistent therewith.
"Authorized Officer" means the Director of the Landlord's Department of Community
Services or his designate.
"BOMA" means the "Standard Method for Measuring Floor Area in Office Buildings
(American National Standard Z 65.1-1980) prescribed by Building Owners and Managers
Association International, reprinted May, 1981.
"Building" means the Lands and the building known municipally as of the date of this lease
as the Courtice Community Complex and which is known for municipal purposes as 2950
Courtice Road, Courtice, and is located on a portion of the Lands.
"Business Tax" means (i) all taxes, rates, duties, assessments and other charges that are
levied, rated, charged or assessed by any Authority against or in respect of all Leasehold
Improvements, Trade Fixtures and Tenant's personal property on or in the Premises or any
parts thereof, or the Landlord or Owner(s) on account of its ownership thereof or interest
therein and (ii) every tax and license fee which is levied, rated, charged or
assessed against or in respect of any and every business carried on in the Premises or in
respect of the use or occupancy thereof or any other part of the Building by the Tenant and
every subtenant or licensee or permitted occupant of the Tenant or against the Landlord or
Owner(s) on account of its ownership thereof or interest therein.
"Change of Control" means, the case of any corporation or partnership, the transfer or issue
by sale, assignment, disposition, subscription, transmission on death, mortgage, charge,
security interest, operation of law or otherwise, of any shares, voting rights or interest which
would result in any change in the effective control of such corporation or partnership.
"Commencement Date" means the date on which the Term shall commence under Section
1.2.
"Common Facilities" means the lobbies, public entrances and washrooms within the
Building.
Schedule "C" -2-
"Construction Area of the Building" is measured in accordance with BOMA, subject to the
terms hereof, and means the "Construction Area" of the Building, all as determined by the
Architect. The Construction Area of the Building may be adjusted by the Architect from time
to time to take account of any structural, functional or other change affecting the same.
An "Event of Default" shall occur whenever: (i) the Tenant fails to pay any Rent or other
sums due under this lease on the day or dates appointed for the payment thereof, whether or
not any notice of such failure is given to the Tenant or any demand for payment has been
made by the Landlord; (ii) the Tenant fails to observe or perform any of the terms,
covenants or conditions of this lease to be observed or performed by the Tenant (other than
the payment of Rent and the terms, covenants and conditions set out below under (iii) to (xi),
inclusive, of this paragraph, for which no notice is required) and (I) fails to remedy such
failure within fifteen (15) days (or such shorter period as may be provided in this lease) or
(II) if such failure cannot reasonably be remedied within fifteen (15) days or such shorter
period and the Tenant fails to commence to remedy such failure within such fifteen (15) days
or shorter period or thereafter fails to proceed diligently to remedy such failure, in either
case after notice in writing from the Landlord to the Tenant; (iii) the Tenant or Indemnifier
becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent
debtors or makes any proposal, assignment, arrangement or compromise with its creditors, or
if a petition in bankruptcy is filed against the Tenant or Indemnifier or any steps are taken or
proceedings commenced by anyone or any court or governmental body for the dissolution,
winding-up or other termination of the Tenant's or Indemnifier's existence or the liquidation
of its assets; (iv) a trustee, receiver, receiver/manager or like Person is appointed with
respect to the business or assets of the Tenant or Indemnifier; (v) this lease or any of the
Tenant's assets are seized or taken under any writ of execution or similar process or if any
encumbrancer of this lease or the Tenant's assets shall take any action to enforce its security,
(vi) the Tenant purports to make or makes any Transfer or the Premises or any part thereof
is occupied or used by any Person or for any business or purpose other than in compliance
with the provisions of this lease or if the Tenant suffers to exist, creates or incurs any
charge, privilege, pledge, security interest or other encumbrance whatsoever on any of its
moveable effects or chattels situated in the Premises; (vii) the Tenant abandons or attempts to
abandon the Premises or sells or disposes of its goods or chattels or removes them from the
Premises so that there would not in the event of such sale, disposal or removal be sufficient
goods and chattels of the Tenant on the Premises subject to distress to satisfy all Rent
payable for at least twelve (12) months, or the Premises or any part thereof becomes vacant
or unoccupied for a period of 10 consecutive days or more without the prior written consent
of the Landlord, or if the Tenant fails to continuously. actively and diligently conduct its
business in the whole of the Premises, fully fixtured and staffed and otherwise in compliance
with Section 1.4; (viii) an Event of Default as defined in this paragraph occurs with respect
to any lease or agreement under which the Tenant occupies or has the right to use other
premises or space in the Building, (ix) a report, statement, certificate or opinion required to
be provided by or from the Tenant or any of its officers or agents under this lease is false or
misleading in any respect except for a misstatement that is the result of an innocent clerical
error; or (x) re-entry or the right to terminate by the Landlord is permitted under any other "
provision of this lease or at law or by statute.
"HVAC System" means the heating, ventilation, air-conditioning and other climate control
equipment, facilities and systems serving the Building or any part thereof, including, without
limitation, any and all (i) equipment, improvements and installation, (ii) duct work, diffusers,
distribution piping, air handling units and ventilation units and (iii) monitoring, Conservation
and control systems.
"Indemnifier" means the Party of the Third Part and includes their respective heirs,
executors, administrators and assigns.
Schedule "C" _3_
"Landlord" means the party of the First Part and includes the Landlord and its,,duly
authorized representatives, agents and managers, and without limiting the generality of any
provision of this lease, where the context permits, such as, without limitation, in Sections 4.1
and 4.2, "Landlord" includes, without limitation, the Landlord and its agents and managers,
the respective employees, contractors and workmen of each of them, and the respective
heirs, executors, administrators, successors and assigns of each of the foregoing.
"Leasable Area" means the Interior Area of part of the Building and the exterior area
comprising part of the Lands to the extent designated or intended from time to time by the
Landlord in its sole discretion to be leased to tenant but excluding the following: (i) parking
areas and facilities; (ii) Storage Areas and (iii) Common Facilities.
"Leasehold Improvements" means leasehold improvements in the Premises determined
according to common law, but shall include, without limitation, all improvements,
installation alterations and additions from time to time made, erected or installed in, to or on
the Premises by or on behalf of the Tenant or any previous occupant of the Premises,
including, without limitation, signs and lettering, partitions, doors and
hardware, however affixed and whether or not movable, all mechanical, electrical and Utility
installations and all carpeting and drapes.
"Net Rent" means the unpaid minimal rent payable by the Tenant under Section 2.2.
"Offer to Lease" means the Offer to Lease referred to in Section 1.3.
"Person" means any person, firm, partnership or corporation (including, without limitation, f
a trust company), or any group or combination of persons, firms, partnerships or
corporations.
"Premises" means the interior area and the exterior play area of the premises leased to the
Tenant described in Section 1.1 and includes, without limitation, Leasehold Improvements,
and means the premises as relocated pursuant to Section 3.3, and includes, without
limitation, Leasehold Improvements in such premises as relocated. The interior area of the
Premises shall extend from the upper surface of the structural subfloor to the lower surface
of the suspended ceiling within the boundaries of the Premises determined as provided in the
definition of "Useable Area" contained herein. The interior area of the Premises shall
exclude the exterior faces of (i) the Building and (ii) all exterior and demising interior walls
and windows, notwithstanding the manner in which the Useable Area is measured.
"Prime Rate" means the variable annual rate of interest (which is calculated daily)
established from time to time by the head office in Toronto of any Canadian chartered bank
designated by the Landlord, from time to time, as the reference rate it will use to determine
rates of interest payable by the most preferred commercial borrowers of such bank on
unsecured loans to such borrowers in Canada (as distinct from the rate of interest chargeable
for small business loans sometimes referred to as the "prime small business loans interest
rate"), current during the applicable period that any amount bears interest under this lease.
"Rent" means the aggregate of Net Rent and Additional Rent.
"Rentable Area" is measured in accordance with BOMA, subject to the terms hereof, and
means (i) in the case of premises (whether leased or not) consisting of an entire floor, the
floor area measured to the inside finished surface of the dominant portion of the permanent
outer building walls, including, without limitation, washrooms, telephone, electrical and
janitorial closets and elevator lobbies, and no deductions shall be made for columns and
projections necessary for the Building and (ii) in the case of the Premises consisting of part
of a floor, the area computed by multiplying the Useable Area of such premises by a factor
Schedule "C" -4-
of 1. The Landlord, for the purpose of calculating the Net Rent may change
the factor referred to in (ii) from time to time to reflect the actual ratio of the aggregate floor
area of the floor on which the Premises are located (using the measurement method set out in
(i)) to the aggregate Useable Area of all premises (whether leased or not) on such floor.
"Rental Year" means the twelve 12) month period ending on (June 30). If, however, the
Landlord considers it necessary or convenient for the Landlord's accounting purposes, the
Landlord may at any time and from time to time, by written notice to the Tenant, specify an
annual date from which each subsequent Rental Year shall commence, and, in that event, the
then current Rental Year shall terminate on the day preceding the commencement of the new
Rental Year. The first Rental Year of the Term shall be deemed to commence on the
Commencement Date and to expire on the last day of April next ensuing or upon the earlier
termination of the Term. The last Rental Year of the Term shall be deemed to end upon the
expiration or earlier termination of the Term.
"Restoration" means the repairing, replacing, altering, demolishing or rebuilding of all or
any part of the Premises or Building.
"Rules and Regulations" means the rules and regulations established by the Landlord from
time to time in accordance with the provisions of this lease. The Rules and Regulations
established as at the Commencement Date are those set out in Schedule "D".
"Sales Taxes" means any and all goods and services taxes, sales taxes, multi-stage sales
taxes, value added taxes, business transfer taxes, use taxes, consumption taxes or any other
taxes imposed by any Authority on the Tenant or on the Landlord or which the Landlord is
required to remit to any Authority with respect to Rent paid or payable by the Tenant under
this lease, or imposed by any Authority in respect of this lease or the rental or any licensing
or use of space under this lease, or in respect of the payments made or payable by the
Tenant under this lease, or in respect of the goods and services purchased by or provided by
the Landlord under this lease, including, without limitation, the provision of administrative
services to the Tenant under this lease, whether characterized as goods and services taxes,
sales taxes, multi-stage sales taxes, value added taxes, business transfer taxes, use taxes,
consumption taxes or otherwise.
"Taxes" means all taxes, rates, duties, levies, fees, charges, local improvement rates and
assessments whatsoever now or in the future imposed, levied, rated, assessed or charged
against the Building, the Premises or any part thereof by any lawful taxing Authority or
allocated or attributed by the Landlord to the Premises and including, without limitation, any
amounts assessed, imposed, levied, rated or charged in substitution for or in lieu of or in
addition to any of the foregoing whether of the foregoing character or not or in existence at
the Commencement Date or not, but excluding only such taxes as capital gains taxes, or
corporate, income, profit or excess profit taxes to the extent such taxes are not so levied in
lieu of any of the foregoing and to the extent such taxes are not expressly included in this
Section or in any other Section of this lease.
"Tenant" means the party of the Second Part and is deemed to include the word lessee and
includes every Person mentioned as Tenant in this lease.
"Term" means the period of time as provided in Section 1.2.
R
"Transfer" means an assignment of this lease in whole or in part, a sublease of all or any
part of the Premises, any transaction whereby the rights, title or interest of the Tenant under
this lease or in or to the Premises are transferred to another, any transaction whereby any
right of use or occupancy of all or any part of the Premises is conferred upon anyone, any
parting with or sharing the occupation or possession on or of the whole or any part of the
Premises, any mortgage, charge or encumbrance of this lease or the Premises or any part
1S
Schedule "C" -5-
thereof or other arrangement under which either this lease or the Premises become security
for any indebtedness or other obligations and includes, without limitation, any transaction or
occurrence whatsoever (including, but not limited to, expropriation, receivership
proceedings, seizure by legal process and transfer by operation of law), which changes or
might exchange the identity of the Persons having lawful use or occupancy of any part of the
Premises.
"Transferee" means the Person or Persons to whom a Transfer is or is to be made.
"Useable Area" is measured in accordance with BOMA, subject to the terms hereof, and
means in the case of the Premises, the floor area measured to the finished surface of the
Library side of corridor and other permanent walls, to the centre of partitions that separate
the premises from the adjoining Library and to the inside finished surface of the dominant
portion of the permanent outer building walls, without deductions for columns or projections
necessary to the Building.
"Utilities" means, collectively, water, fuel, electricity, sewage, waste collection and disposal
and other utilities and "Utility" means any of them. The terms do not include the cost of
water, gas or electricity meters which may be installed to serve the Premises at the
Landlord's expense.
SCHEDULE "D"
RULES AND REGULATION
1. Removal of Refuse
The Tenant shall not (i) place or leave or permit to be placed or left any debris, garbage,
trash or refuse in or upon any part of the Building outside of the Premises except in
locations, at times, in the manner and in containers designated from time to time by the
Landlord for such purposes or (ii) permit undue accumulations of debris, garbage, trash or
refuse within the Premises or (iii) cause or permit undesirable odours, vapours, steam, water,
vibrations, noises or other undesirable effects to emanate or to be dispelled from the
Premises which the Landlord, in its sole discretion, acting reasonably, determines to
be undue, undesirable, objectionable or unsafe. The Tenant, at its expense, shall comply
with such recycling and waste management programs as the Landlord may establish from
time to time.
2. Securitv
At times other than during normal operating hours, the Tenant and all others, including,
without limitation, Persons lawfully requiring communication with the Tenant, shall comply
with any and all security and restricted access requirements as established from time to time
by the Landlord for the Building in accordance with the Landlord's then current security and
operating procedures. If such requirements are not observed or complied with, or if
identification of Persons is not satisfactory to the Landlord, the Landlord shall be entitled to
prevent access to the Building and to the Premises.
3. Locks
The Tenant shall not place or permit any additional locks upon any doors of the Premises
without the prior written approval of the Landlord, which approval may be subject to the
Landlord's reasonable conditions. A reasonable number of keys shall be supplied to the
Landlord for each entrance door to the Premises and all locks shall be Building standard to
permit access by the Landlord's master key. If additional keys are required, they shall be
obtained from the Landlord at the Tenant's expense. Keys or other means of access for
entrance doors to the Building shall not be issued without the prior written authority of the
Landlord. The Tenant shall indemnity the Landlord from and against any expense resulting
from any forced entry to the Premises which may be required in case of emergency or
apprehended emergency, as determined by the Landlord, whether or not entrance keys have
been provided to or used by the Landlord. At the expiration or earlier termination of the
Term, the Tenant, at the Landlord's request, shall remove any and all additional;locks at the
Tenant's expense and, in any event, shall return to the Landlord all keys to the Premises and
Building and all security and restricted access passes and identification cards. The Tenant
shall obtain all such cards and all keys from its employees and other Persons to whom such
cards and keys have been issued, upon the termination of their employment, association or
retainer, and shall promptly return them to the Landlord.
4. Obstructions
The Tenant shall not do, nor permit to be done, any act in, on or about the Building and the
Lands, including without limitation the sidewalks, streets or passageways adjacent or near the
Buildings, which, in the Landlord's opinion, hinders or interrupts the flow of traffic to, in or
from the Building, or any part thereof. Without limiting the foregoing, (i) the Tenant shall
not park or leave, nor permit to be parked or left, any of its vehicles or the vehicles of any
of its agents, employees, invitees, licensees, visitors, customers, clients, contractors, sub-
tenants, assignees or Persons lawfully requiring communication with the Tenant in such a
manner or in such a place as to obstruct access to any part of the Building, but not limited
- .
Schedule "D" -2-
to, the driveway, fire zone, delivery zone, loading dock or garbage pick-up area and (ii) the
sidewalks, entries, passages, escalators, elevators and staircases (if any) shall not be
obstructed, and shall not be used by the Tenant or others, for any purpose other than for
ingress and egress from the Premises.
5. Receiving, Shipping and Movement of Articles
The Tenant shall not bring in or take out, position, construct, install or move any furniture,
fixtures, improvements, safes, business machinery or other equipment or anything liable to
damage or destroy any part of the Premises or Building, nor permit any of the foregoing,
without first obtaining the prior written consent of the Landlord. In giving such consent, the
Landlord shall have the right, in its sole discretion, to prescribe the weight permitted and the
position thereof, and the use and design of planks, skids or platforms to distribute the weight
thereof. All damage done to the Premises or Development by moving or using any such
heavy equipment or other equipment, furniture or other article shall be repaired at the
expense of the Tenant. The moving of all equipment, fixtures, furniture and other articles
shall occur only upon prior arrangement with and under the supervision of the Landlord.
The Tenant shall not receive or ship, load or unload articles of any kind except through
facilities and designated doors and at hours designated by and under the supervision of the
Landlord. No Tenant shall employ anyone to do its moving in the Building other than
Persons prior approved in writing by the Landlord. The cost of such moving shall be paid
by the Tenant. Safes and other heavy equipment and machinery shall be moved through the
halls and corridors only upon steel bearing plates. No freight or building matter of any
description shall be received into the Building or carried in the elevators except during hours
prior approved in writing by the Landlord. Any hand trucks, carryalls or similar equipment
used in the Building shall be used only with the prior written consent of the Landlord and
shall be equipped with rubber tires, slide guards and such other safeguards as the Landlord
may require.
6. Washrooms
The washrooms and other water and plumbing fixtures and facilities shall not be used for any
purpose other than those for which they are constructed. No sweepings, rubbish, rags, ashes
or other substances shall be thrown therein. Any damage resulting from misuse by the
Tenant or any of its agents, employees, invitees, visitors, customers, clients, contractors or
licensees shall be borne by the Tenant. No water shall be permitted to run unless it is in
actual use for its intended purposes. The Tenant and its employees and customers shall use
only those washrooms forming part of the Common Facilities directed by the landlord from
time to time.
7. Use of Premises
The Premises shall not be used for any illegal purpose or for sleeping apartments or
residential purposes or for the storage of personal effects or articles other than those personal
effects and personal articles required for the Tenant's business purposes.
8. Solicitation
No canvassing, solicitation, peddling or distribution of handbills or other advertising matter
nor any displaying of any merchandise shall be permitted in or about the Building unless
otherwise prior approved in writing by the Landlord.
9. Injury Prevention
The Tenant shall assist and co-operate with the Landlord in preventing bodily injury within
or damage to the Premises and the Building. Except with the prior written consent of the
Landlord, the Tenant shall not deface or mark any part of the Building or Premises nor drive
nails, spikes, hooks or screws into, nor bore, drill or cut into, the walls, floors, ceilings,
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Schedule "D" -3-
woodwork or any other part of the Building or the Premises in any manner or for any reason
or purpose. The Tenant shall perform Tenant's maintenance and Alterations in the Premises
only during the times prior approved in writing by the Landlord and only in such manner as
will not interfere with the rights of other tenants or occupants of the Building. The Tenant
shall not use or permit any use of the Premises, or any part thereof, which involves the
danger of injury to any Person or for any dangerous, noxious or offensive trade or business,
all as determined by the Landlord in its sole discretion, acting reasonably.
10. Inflammable Materials
No inflammable oils or other inflammable, combustible, dangerous, explosive, hazardous or
toxic materials or substances, save those prior approved in writing by the Landlord and its
insurers, shall be kept or permitted to be kept by the Tenant in any part of the Premises.
Without limiting the foregoing, no propane or natural gas powered vehicles nor any vehicles
containing or carrying compressed inflammable gases shall be permitted entry or shall be
parked in any part of the Lands.
11. Bicycles and Animals
No bicycles or vehicles and no animals, birds, reptiles or insects shall be brought within any
part of the Building without the prior written consent of the Landlord.
12. Dispensing Machines
The Tenant shall not (i) install or permit the installation or use of any machine dispensing
food, liquid or goods for sale or rental, rendering services or providing entertainment in the
Premises or the Building and (ii) permit the delivery of any food or liquid to the Premises,
other than for the consumption by its employees, in each case without the prior written
approval of the Landlord or in contravention of any Rules and Regulations. Only Persons
prior approved in writing by the Landlord from time to time shall be permitted to prepare,
solicit orders for, sell, serve, distribute or deliver food or liquid in or to any part of the
Building or Premises, or to use the elevators, corridors or other Common Facilities for any
such purpose, except as otherwise expressly provided herein.
13. Cable and Communications
If the Tenant desires telegraphic, facsimile, cable or telephonic connections, the Landlord
will direct the electricians as to where and how the wires are to be introduced, and without
such directions no boring or cutting for wires shall be permitted. No gas pipe or electric
wire shall be permitted which has not been ordered or authorized in writing by the Landlord.
No aerials or radio, television or other receiving, transmitting or audio-visual device shall be
allowed on the Premises, on the exterior walls of the Premises or in or on the Building or
the Lands, or any part thereof, without prior written authorization by the Landlord.
14. Smoking
No smoking shall be permitted in the Premises or the Building.
15. Structural Alterations
The Tenant shall not undertake to the Premises without the prior written approval of the
Authorized Officer.
J �
Schedule "D" -4-
16. Complaints
The Tenant shall maintain a written record of complaints that may be made to the satisfaction
of the Authorized Officer and make the same available to and discuss the complaints with the
Authorized Officer when requested to do so by the Authorized Officer. The Tenant shall
respond to all complaints and suggestions by its customers including parents in a prompt,
courteous and efficient manner.
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SCHEDULE "E"
LETTER FROM DIRECTOR OF COMMUNITY SERVICES
SCHEDULE "D"
MUNICIPALITY OF
_ larin ton
ONTARIO
April 11, 1997
Mr. Randy Brown
Mrs. Janice Brown
Mr. Bernie Labine
Mrs. Diane Labine
Dear Mr. and Mrs. Brown/ Mr. & Mrs. Labine:
RE: YOUR OFFER TO LEASE SPACE IN COURTICE COMMUNITY
COMPLEX("COMPLEX") FOR DAYCAREAND OTHER USES FROM THE
MUNICIPALITY OF CLARINGTON
This is to confirm that the following matters currently are being or have been negotiated
by you and the Municipality. Certain issues have been conditionally resolved as set out
below. The Kitchen Facilities, Babysitting Facilities and Concession referred to below
in this letter are located in the Complex but are not included in the Premises which you
are offering to lease for a daycare.
Kitchen Facilities
You have expressed a desire to utilize the Municipality's Kitchen Facilities in the Complex
to provide meals and snacks for staff and patrons of your daycare operation from 8:30
a.m. to 1 :30 p.m. Monday through Fridays. You have also expressed a need for a
locked refrigerator within the Kitchen Facilities for your use which is to be supplied at
your cost.
Conditional on the payment by the Tennant of the fee referred to below as Additional
Rent, the Municipality will permit you to use the Kitchen Facilities during the hours of
8:30 a.m. and 1 :30 p.m. Monday through Friday provided that at various times in its
discretion, the Director of Community Services may require exclusive use of same area
by giving reasonable notice to you and providing other accommodation for the
preparation of light meals.
../2
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET• SOWMANVILLE -ONTARIO•LIC 3A6• (905) 623-3379 • FAX 623-4169 RECYCLED PAPER
f = y
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The Municipality will not provide you with dishwashing/drying equipment, dishes or
utensils in the Kitchen Facilities. Cupboard space may be provided for your use in the
discretion of the Director of Community Services. It is further understood that the
kitchen, all equipment, dishes and utensils will be cleaned and organized after each use.
The Municipality will permit you to install a refrigerator and/or dishwasher at your cost
in the Kitchen Facilities if the Director of Community Services determines in his discretion
that space will be available in the Kitchen Facilities having regard to the planned kitchen
layout.
Bab sy itting Room
You have expressed a need for the use of the space in the Complex known as the
Babysitting Room shown on the plan attached to this letter. Conditional on the payment
by the Tennant of the fee referred to below as Additional Rent, the Municipality in
accordance with an agreement to be settled by us, the Municipality will permit you to
use the Babysitting Room provided that:
a) You first obtain the approval by the Director of Community Services of the
babysitting services to be provided by you for patrons of programs offered
at the Complex by the Director including the fee to be paid by the patrons
to you.
b) Any alteration either in the quality of the babysitting service or fee shall be
conditional on prior written approval of the Director of Community Services.
c) Your use of the Babysitting Room shall be limited to the hours from 8:00
a.m. to 6:00 p.m. Monday through Friday.
d) The Director of Community Services may from time-to-time in his discretion
require the use of the Babysitting Room for special events such as swim
meets and the room will be made available by you for these events
provided that the Director first gives you reasonable written notice that the
Babysitting Room will be required by the Municipality for a special event.
e) The Babysitting Room will be left cleaned and orderly after each day's use.
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Food and Beverage Concession
You have indicated that if the operation of the food and beverage Concession in the
Complex is not satisfactory for the patrons of your operations in the Premises that you
are offering to lease from the Municipality, you would want to have the right to operate
your own food and beverage concession.
It is the Municipality's position that exclusive food and beverage Concession services will
be provided by and for the Municipality in the Complex as long as there is a need for
the services, and the expenses of the Concession do not exceed the revenues generated
by it.
Subject to the prior written approval of Director of Community Services, during those
periods when the food and beverage Concession in the Complex is not open for
business, you will be permitted to provide coffee and those cold drinks which have been
approved in writing by the Director to your patrons only, at prices not less than those
charged to patrons of the Concession in the Complex.
Hours of Operation
With regard to the hours of operation of the portion of the Complex to which you, your
staff and your patrons may enter in order to gain access to the Premises you are offering
to lease,the principle that will be followed by the Municipality in settling an arrangement
with you to permit you, your staff and patrons to enter the portion of the Complex
necessary to gain access to the Premises is that Municipal Staff must be on duty at all
times when the building is accessible to your patrons or members of the public.
Specifically, should you require the daycare/playground operation in the Premises to be
open at such time that the remainder of the Complex is not open to the public, in order
to ensure that adequate supervision is available and the Municipality's interests are
protected, it will be your responsibility to pay as Additional Rent all related staff expenses
of the Municipality, incurred when the Complex is not open to the public forthwith, after
being invoiced for the amount of expense.
It is further understood that the Municipality intends to implement the following operating
schedule and as such all staff expenses incurred by the Municipality as a result of your
request to open beyond the following schedule will be your responsibility to pay.
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Monday - Friday 6:30 a.m. - 10:00 p.m.
Saturday _ 9:00 a.m. - 9:00 p.m.
Sunday 10:00 a.m. - 9:00 p.m.
Holidays AS FOLLOWS:
New Years Day CLOSED
Good Friday CLOSED
Easter Monday CLOSED
Victoria Day CLOSED
Canada Day CLOSED
Civic Holiday CLOSED
Labour Day CLOSED
Thanksgiving Day CLOSED
Christmas Eve CLOSED AT NOON
Christmas Day CLOSED
Boxing Day CLOSED
New Years Eve CLOSED AT NOON
Fee
The Tenant shall pay to the Landlord or as such person as the Landlord may direct from
time-to-time as Additional Rent, $7,440.00 for the first year of the term of the offer to
lease in the following annual amount which shall be payable in equal- consecutive
monthly instalments of $620.00 each in advance of the first day of each calender month
of the term commencing on the Commencement Date as stipulated in the lease. If the
Commencement Date is not the first day of a month, the first monthly instalment
payment shall be pro-rated.
The net rate per annum for the first year of the term of $7,440.00 is based on twelve
dollars ($12.00) per square foot per annum for the Kitchen and Babysitting Room
comprising a total of 620 sq. ft.
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In each of the years following the first year of the Term of the lease the fee shall increase
by fifty cents (.50¢)_per sq. ft. as follows:
First Year - 12.00 per sq. ft.
Second Year - 12.50 per sq. ft.
Third Year - 13.00 per sq. ft.
Fourth Year - 13.50 per sq. ft.
Fifth Year - 14.00 per sq. ft.
Yo r truly,
oseph P. Caruana, Director
Community Services Department
JPC:dm
cc: Dennis C. Hefferon, Barrister & Solicitor
Lou Ann Birkett, Purchasing Manager
Fred Horvath, Property Manager
Carol Gonder, Manager of Fitness Centre
CS5097