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HomeMy WebLinkAbout2008-018 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-lAW 2008-018 Being a By-law to authorize the Lease Agreement Renewal between the Corporation of the Municipality of Clarington and ClOCA (Central lake Ontario Conservation Authority) for the use of the Hampton Valley lands. THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON HEREBY ENACTS AS FOllOWS: 1 , THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a contract between ClOCA (Central lake Ontario Conservation Authority), and said Corporation; and 2, THAT the contract attached hereto as Schedule "A" form part of this By-law, By-law read a first and second time this 28th day of January, 2008. By-law read a third time and finally passed this 28th day of January, 2008, -~~- , ~ - '~ - I - THIS LEASE made in duplicate as of the 3rd day of March 2008, in pursuant of the Short Form of Leases Act: BETWEEN: CENTRAL LAKE ONTARIO CONSERVATION AUTHORITY (hereinafter referred to as "CLOCA") as Landlord and THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter referred to as the "Municipality") as Tenant WHEREAS: A. CLOCA is the owner of certain lands comprising approximately 7.4 hectares comprising part of Lot 18, Concession 5 in the former Village of Hampton and Township of Darlington now in the Municipality of Clarington shown on the map contained in Schedule "A" hereto ("Hampton Conservation Area"). B. CLOCA has deemed the Hampton Conservation Area to be secondary to its requirements to perform its statutory mandate and has agreed to lease the Lands (collectively referred to as the "Lands") to the Municipality on the terms and conditions set out below. C. CLOCA has agreed to lease to the Municipality the Hampton Conservation Area in order to develop a recreational trail system, pond and wetland, and appropriate facilities and amenities on the Lands in accordance with the terms of the Lease. D. The parties have agreed that if the Municipality decides to lease additional lands from time to time from CLOCA they will be subject to the terms of this Lease. E. The execution of this lease on behalf of the Municipality is authorized by By-law No. 99-183 passed by the Municipality's Council on December 13, 1999. THIS LEASE WITNESSES THAT in consideration of the rents, covenants and agreements reserved and contained on the part of CLOCA and the Municipality, and the payment of TWO ($2.00) DOLLARS by each party to the other (the receipt and sufficiency of which is acknowledged by each of them), CLOCA demises and leases the Lands to the Municipality subject to the terms and conditions set out below. ARTICLE 1- INTERPRETATION 1.01 Definitions: Wherever a term set out below appears in the text of this Lease in capital letters, the term shall have the meaning set out for it in this Section 1.01. Wherever a term below appears in the text of this Lease in regular case, it shall be deemed to have the meaning ordinarily attributed to it in the English language. For the purposes of this Lease, the term (a) "Additional Lands" has the meaning assigned to it in Recital F of this Lease; (b) "Municipality" means The Corporation of the Municipality of Clarington and includes its successors, and where the context allows, its employees, contractors, and agents; (c) "CLOCA" means The Central Lake Ontario Conservation Authority, and its successors and, where the context allows, its employees, contractors and agents; (d) "Event of Default" means either one of the following two circumstances: - 2- (i) The Municipality is in default of any of its covenants or agreements pursuant to this Lease and the default continues for a period of thirty (30) days (or such longer period as may be reasonably necessary to cure the default considering its nature) after notice by CLOCA to the Municipality specifying with reasonable particularity the nature of the default and requiring it to he remedied. (ii) In the circumstances where the default set out in the notice given to the Municipality by CLOCA pursuant to (i) above reasonably requires more time to cure than the time period referred to in the notice, but the Municipality has not commenced remedying the default; or, in the sole opinion of CLOCA, has failed to diligently complete within a reasonable time; (e) "Easement" has the meaning assigned to it in Recital "D" of this Lease; (f) "Lands" has the meaning assigned to it in Schedule "A" of this Lease and includes the Additional Lands; (g) "Lease" means this Lease agreement, including its recitals and schedules, which form an integral part of it, as it may be amended from time to time; (h) "Taxes" means all taxes, rates, local improvement rates, impost charges, duties, assessments or levies which may be levied, rated, charged or assessed against any form of property, regardless of whom is responsible for payment, whether imposed by Federal, Provincial (including the Municipality, school board, utility commission or other authority, and whether now or in the future in existence with respect to the Lands. Without limitation, this includes any other taxes, rates, duties, assessments, fees or levies which may be imposed on CLOCA or the Municipality or anyone else on account or in lieu of taxes, whether or not they are secured against property, or of a nature similar to those taxes, and whether recurring annually, or at other intervals, or on a special or single instance basis only; (i) "Term" means the time period during which this Lease is operational, as set out in Article 2.01. Term includes the current portion of the Term and any future renewals; and, G) "Utility Services" means sewage, water, electricity, telephone and cable television services. I .02 Lel!islation. Bv-Iaws: Each reference to Provincial legislation in this Lease, unless otherwise specified, is a reference to the Revised Statutes of Ontario, 1990 edition, and, in every case, includes all applicable amendments to the legislation, including successor legislation. Each reference to a By-law in this Lease, unless otherwise specified, is a reference to a By-law of the Municipality, and, in every case, includes all applicable amendments to the By-law, including successor by-laws. I .03 Construinl! this Lease: The captions, article and section names and numbers appearing in the Lease are for convenience of reference only and in no way define, limit or describe the scope or intent of any portion of this Lease and have no effect on its interpretation. All provisions of this Lease creating obligations on either CLOCA or the Municipality shall be deemed to be and shall be construed as covenants. This Lease shall be read with all changes of gender or number required by the context. 1.04 Reasonableness: Wherever any consent, agreement or approval of the Municipality or CLOCA is required under the terms of this Lease, then unless otherwise specifically mentioned, the party will do so reasonably. 1.05 Differences of Opinion: All matters of difference ansmg between CLOCA and the Municipality in any matter connected with or arising out of this Lease, whether to interpretation or otherwise, shall be referred to a single arbitrator, if the parties agree upon its identity. Should the parties be unable to agree upon the identity of an arbitrator, then the matter shall be referred to a single arbitrator, to be appointed by a Justice of the Ontario - 3 - Superior Court of Justice. The arbitrator shall conduct this arbitration pursuant to the Arbitration Act. 1991, and every award or determination shall be final and binding on the parties and their successors and assigns, and shall not be subject to appeal. The arbitrator shall be allowed unfettered and unlimited discretion to determine in each and every case the solution which best balances the competing interests of the parties to the arbitration in accordance with this Lease, and he shall not be bound by any legal precedent in such determination. The arbitrator shall not be bound by the provisions of the Arbitration Act. 1991 in respect of its fees. The arbitrator shall be entitled to award all or part of his fees against any party in accordance with the principles which govern an award of costs against a non-successful party in a contested matter before the Ontario Superior Court of Justice. In the absence of such an award by the arbitrator, the arbitrator's costs shall be borne equally by both parties, without regard to their involvement in the arbitration. ARTICLE 2 DEMISE. TERM AND RENTAL 2.01 Demise (with Reservation): CLOCA leases to the Municipality and the Municipality leases from CLOCA the Lands on the terms and conditions set out in this Lease for a term of five (5) years, to be computed from the I" day of January 2007, subject to termination and renewal as provided in this Lease. CLOCA, however, reserves the right to grant licences, rights-of-way or privileges to others on, over, under, through or across the Lands. Subject to the provisions of this Lease, CLOCA covenants and agrees that any rights-of-way or privileges granted under this reservation will not be detrimental to the Municipality's intended use of the Lands, will not damage or disrupt permanently the physical facilities of the Municipality, will not impose any cost upon the Municipality, and will not weaken, diminish or impair the security of this Lease. 2.02 Renewals: Subject to Section 2.03, CLOCA grants to the Municipality three five (5) year rights of renewal to be computed from the 1st day of January, 2007, the 1st day of January 2012, and the 1st day of January 2017. Renewals after those set out in this section, will be the subject of negotiation between CLOCA and the Municipality at that time. 2.03 Exercisine Renewal Riehts: No notice shall be required in order for the Municipality to exercise its rights of renewal pursuant to Section 2.02 of this Lease. Provided there has been no Event of Default, this Lease shall be deemed to have been renewed for each applicable renewal portion of the Term unless the Term has been terminated in accordance with this Lease. 2.04 Rent: During the Term of this Lease, the Municipality shall pay to CLOCA a nominal amount of rent in the sum of ($2.00) dollars annually. Receipt of the capitalized amount of the rent for the Term is hereby acknowledged by CLOCA. 2.05 Sublettine: The Municipality shall not have the right to lease or to assign the Lease, sub- lease, or otherwise dispose of the Lands or to permit concessionaires thereon, without the prior approval in writing of CLOCA. 2.06 Utilitv Services: This Lease is subject to the right of CLOCA and any other person authorized by CLOCA to maintain and operate Utility Services installed on, over or across the Lands at the date of this Lease, and to the right of CLOCA to grant easements or licences, as the case may be, from time to time, during the Term for future utility services on, over or across the Lands. ARTICLE 3 - COVENANTS. WARRANTIES & ACKNOWLEDGEMENTS OF THE MUNICIPALITY 3.01 Rent: The Municipality covenants to pay Rent in the amount of Two ($2.00) Dollars per annum on the day of commencement of this Lease and thereafter on each anniversary thereof during the Term. - 4- 3.02 Uses: The parties acknowledge that a Concept Plan has been prepared by the Hampton Citizens Association (Hampton Pond Recovery Project) in association with the Municipality and CLOCA for lands which include the Hampton Conservation Area. CLOCA will co- operate with the Municipality and Hampton Citizens Association (Hampton Pond Recovery Project) in implementing the Concept Plan for the Hampton Conservation Area. 3.03 No Damal!:e: The Municipality covenants and agrees that it shall not do, suffer nor permit to be done any act or thing which may impair, damage or injure the Lands beyond the damage that may be caused by reasonable use by the Municipality or members of the public of areas of the Lands amenities as contemplated by Section 3.02. 3.04 Construction: The Municipality will not erect any new permanent buildings on the Lands without first obtaining the written consent of CLOCA, both as a location and type of building. 3.05 Watercourses and FiU: The Municipality covenants that it will not alter the course of any watercourse, or the natural topography of the Lands without fust obtaining written consent of CLOCA. The Municipality further covenants not to place, or cause or permit to be placed, any fill, sand, gravel, detritus, waste or other materials on the Lands without the written consent of CLOCA. 3.06 Public Use: The Municipality covenants that it will not interfere with the public use of the Lands during the Term. 3.07 Maintenance: During the Term, the Municipality shall maintain the Lands to a reasonable standard having regard to the uses contemplated by Section 3.02. 3.08 Laws & Rules: The Municipality covenants and agrees to abide by all applicable Federal, Provincial, and/or Municipal or local Statutes, Regulations, and By-laws. 3.09 Utility Services: The Municipality shall not do anything, or cause or permit anything to be done, which will in any way interfere with the rights granted by CLOCA pursuant to Section 2.06. All such rights granted will be subject to this Lease, and any parties obtaining such rights will be required to obtain the Municipality's consent before exercising the rights. 3.10 Taxes: The Municipality shall pay all taxes levied against the Lands forthwith after they become due and payable. 3.11 Sil!:ns: It is understood and agreed that CLOCA's name and the Ministry of Natural Resources are to be suitably displayed on any signs erected in areas where CLOCA has contributed to the Municipality's land assembly progranune. These names shall be displayed in a manner and size as agreed to by CLOCA and the Municipality. 3.12 CLOCA Proiects: The Municipality acknowledges that CLOCA reserves the right to undertake projects for recreational or outdoor educational purposes at its own expense on the Lands, provided that these projects do not interfere with the Municipality's use of the Lands as contemplated by Section 3.02, or with any of the projects affected or proposed by the Municipality on the Lands. 3.13 Liability Insurance: The Municipality will obtain and at all time during the Term maintain comprehensive general liability insurance in the minimum amount of five million ($5,000,000.00) dollars against claims for personal injury, death or damage to property arising out of any of the operations of the Municipality under this Lease, or of any of the acts or omissions of the Municipality. 3.14 Indemnity: At all times during the Term, the Municipality shall indemnify and save harmless CLOCA from any claims directly or indirectly related to the use of the Lands pursuant to this Lease. Without limitation, these claims include claims for property damage, personal injury, death, negligence, or otherwise and include, without limitation, CLOCA's reasonable legal costs. - 5 - ARTICLE 4 COVENANTS. WARRANTIES & ACKNOWLEDGEMENTS OF CLOCA 4.01 Ouiet Eniovment: Subject to the provisions of this Lease, CLOCA covenants and agrees that the Municipality shall have quiet possession of the Lands. 4.02 No Interference: CLOCA agrees that the Municipality shall have full and free access to any and every part of the Lands and hereby permits the Municipality to access the Lands from other lands retained by CLOCA. 4.03 Linkaee: CLOCA covenants that it will provide the Municipality with reasonable access to all portions of the Lands in the event that CLOCA undertakes a project on the Lands pursuant to the provisions of Section 5.05 of this Lease. 4.04 CLOCA's Jurisdiction Continues: The parties acknowledge that CLOCA has jurisdiction over all aspects of the watercourse channels, flood control and erosion control. CLOCA's cost regarding its ongoing control and jurisdiction shall be borne by CLOCA. CLOCA shall notify the Municipality, in writing, prior to undertaking any works on the Lands or on any portion thereof. ARTICLE 5 - DEFAULT AND TERMINATION 5.01 Default: Upon the occurrence of an Event of Default, at the option of CLOCA, the Term shall be forfeited and terminate, and CLOCA may, without notice or any form of legal process whatsoever, forthwith re-enter upon the Lands and repossess and enjoy the same as of its former estate, anything contained in any statute or law to the contrary notwithstanding. and the provisions of Section 5.06 shall apply. 5.02 CLOCA's Performance: Nothing in this Lease shall operate to prevent CLOCA, in the circumstances of an Event of Default, from entering upon the Lands and performing the Municipality's obligations. This work shall be contemplated at the sole cost and expense of the Municipality, in addition, CLOCA may levy any charge as may then be applicable, in accordance with its policies, for administration and overhead. It is expressly understood and agreed that CLOCA is not under any obligation to perform any of the Municipality's covenants. 5.03 Other Remedies: Forfeiture of this Lease by the Municipality shall be wholly without prejudice to the right of CLOCA to recover damages for any antecedent breach of covenant on the part of the Municipality. This clause, and the rights under it, shall survive the termination of this Lease whether by act of the parties or by operation of law. 5.04 Termination of Lease: Neither party to this Lease has the right to terminate this Lease unilaterally. The parties may. however, mutually agree in writing to terminate this Lease. 5.05 CLOCA Proiects: Notwithstanding Section 2.01, should CLOCA adopt a project pursuant to the provisions of the Conservation Act, as a result of which it shall require possession of all or part of the Lands, then it is understood and agreed that, subject to Section 4.03, possession of all or part of the Lands shall be returned to CLOCA not earlier than twelve (12) months following the date of giving of written notice by CLOCA to the Municipality. In the event of such repossession by CLOCA, CLOCA agrees to reimburse the Municipality for the improvement to the Lands in an amount equal to one hundred (100%) percent of all capital costs less five (5%) depreciation for each full year of use by the Municipality from the date of construction. 5.06 Surrender: At the expiration or sooner determination of the Term of this Lease or any renewal period, the Municipality shall peaceably surrender and yield to CLOCA, the Lands, in a well-maintained, full operating condition with all related facilities in a good state or repair (reasonable wear and tear excepted). At the expiration of the Lease or any renewal period, CLOCA will have and enjoy absolute title to all of the Lands without compensation to the Municipality and free of any claim or encumbrance. -6- ARTICLE 6 - MISCELLANEOUS 6.01 Notice: Any notice to be given under this Lease shall be sufficiently given if delivered or sent by prepaid first class mail and addressed to CLOCA at: Central Lake Ontario Conservation Authority 100 Whiting Avenue Oshawa, Ontario LlH 3T3 Attention: Chief Administrative Officer or to the Municipality at: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario LIC 3A6 Attention: Chief Administrative Officer Receipt of notice shall be deemed on the date of delivery, or five (5) days following the date of mailing of the notice, whichever is applicable. Either party may change its address for notice by giving notice of change of address pursuant to this section. 6.02 Force Maieureffime: Notwithstanding anything in this Lease, neither party shall he in default with respect to the performance of any of the terms of this Lease if any non- performance is due to any force majeure, strike, lock-out, labour dispute, civil commotion, war or similar event, invasion, the exercise of military power, act of God, government regulations or controls, inability to obtain any material or service, or any cause beyond the reasonable control of the party (unless such lack of control results from a deficiency in financial resources). Otherwise, time shall be of the essence of this Lease and all the obligations contained herein. 6.03 Successors: The rights and liabilities of the parties shall enure to the benefit of and be binding upon the parties and their respective successors and approved assigns. 6.04 Entire Aereement: This Lease contains the entire agreement between the parties with respect to the Lease of the Lands and it is agreed that there is no covenant, promise, agreement, condition precedent or subsequent, warranty or representation or understanding, whether oral or written, other than as set forth in this Lease. This Lease fully replaces and supersedes any letter, letter of intent, or other contractual arrangement between the parties related to the Lands in existence at the time of execution and delivery of this Lease. 6.05 Partial Invaliditv: If any article, section, subsection, paragraph, clause or sub-clause or any of the words contained in this Lease shall be held wholly or partially illegal, invalid or unenforceable by any court of competent jurisdiction, CLOCA and the Municipality agree that the remainder of the Lease shall not be affected by the judicial holding, but shall remain in full force and effect. The provisions of this Lease shall have effect, notwithstanding any statute to the contrary. 6.06 Relationshiu of Parties: Nothing in this Lease shall create any relationship between the parties other than that of landlord and tenant. It is specifically agreed that neither party is a partner, joint partner, agent or trustee of the other. 6.07 Waiver: No supplement, amendment or waiver of or under this Lease (excepting notice of change of address as contemplated in Section 6.01) shall be binding unless executed in writing by the party to be bound thereby and no waiver by a party of any provision of this Lease shall be deemed or shall constitute a waiver of any other provision or a continuing waiver unless otherwise expressly provided. -7 - 6.08 Governine Law: This agreement shall be construed in accordance with and governed by the laws of the Province of Ontario. IN WITNESS WHEREOF the undersigned have affixed their corporate seals attested by the hands of their properly authorized officer. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON l{vljk~ -,(~~l') Deputy' May.or ./' ~ ~ - .- ~ - -.,/ Clerk CENTRAL LAKE ONTARIO CONSERVATION ATY Gerry Emm Chairman Q Chief Administrative Officer S:\LAND\Hampton\CLOCAClarington.Lease Agreement.doc '" l'! Qj o~ o N . . €~ ~l ~'g .~ 00 ~8 ~.~ 0- ~~ -, 0 .:!~ . -- -0. 8~~ 'i Nllii' C ;loO...l_ ~ t:~ ~ {!!. ~ ~ ~ rl ~U:::l :Z ~~::: ..,; 0"'''' .c ~~~ .j ";: ~ II . rJ : :.f!! ci ~.- gO,!: ....i 0.... cJ Q o ~ II .,; 0 't: 0:::1 C ~ ~ ~~ ~ a o Q.g ~ .,g ~~i ': 5 ...l""1: ::: ~~~ tll fii';:"jjj 1! u";: a: ii: ...,,2 Q. ~ ~.!! ~ ~ >oQ.o :::I g.E~ ~ U '" Q> Ii:! ~~=Ea ~ c ~ ~ c c N . . o ~ o ~ . " . o