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HomeMy WebLinkAbout98-128 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 98-128 Being a By-law to authorize the execution of a Leasing Agreement between the Corporation of the Municipality of Clarington and Bethesda House of Mercy in respect of a lease for premises situated at 150 Port Darlington Road, Bowmanville. 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 Leasing Agreement with Bethesda House of Mercy and said Corporation. 2. THAT this agreement attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 13 day of July , 1998. By-law read a third time and finally passed this 13day of July , 1998. yo, ( ting) t,. �Cler THIS LEASE dated as of thejLl'—day of � � 1998, in pursuance of the Short Forms of Leases Act. BETWEEN: The Corporation of the Municipality of Clarington (hereinafter called the"Landlord") -and- Bethesda House of Mercy (hereinafter called the "Tenant") WHEREAS the Landlord has agreed to lease to the Tenant and the Tenant has agreed to lease from the Landlord the designated space located in the building known as the Harbourmaster's House, 150 Port Darlington Road,Bowmanville,Municipality of Clarington, Regional Municipality of Durham (the "Premises"). NOW THEREFORE THIS LEASE WITNESSES that in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the Landlord and the Tenant, the Landlord leases to the Tenant, and the Tenant leases from the Landlord, the Premises on the following terms and conditions: 1. Term (a) The Tenant shall have and hold as tenant for a period of one (1) year commencing October 1, 1998 and ending September 30, 1999(hereinafter called the "Term"). (b) Negotiations for extension or new lease At least two (2) 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. 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. 2. Use The Tenant shall continuously occupy the Premises throughout the Term, subject to and in accordance with the provisions of this Lease, solely for uses permitted by law and for no other use or purpose. The Tenant shall not commit or suffer or permit to be committed (i) any waste or damage, disfiguration or injury to the Premises or the improvements, installations, fixtures and equipment thereon and(ii)any nuisance in,at or on the Premises. The Tenant shall not do or permit anything to be done that results in the cancellation or threatened cancellation or the reduction of coverage under or threatened reduction of coverage under any insurance policy on the Premises or any part of it. -2 - 3. Basic Rent During the Term, the Tenant shall pay to the Landlord annual minimum rent ("Basic Rent") in an amount equal to (i) Two Hundred Dollars($200.00),plus G.S.T.,per month. Basic Rent shall be payable in monthly instalments, each payable on the first day of each month, provided that should the Term commence or terminate on a date other than the first day of a month, the Tenant shall pay to the Landlord for that month a pro rata portion of said monthly payment. Basic Rent shall be considered as accruing from day to day and 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. 4. Lessor's Responsibilities The Lessor acknowledges covenants and agrees to: i) maintain annually and when required,the oil furnace; ii) to provide all utilities to the designated area, including hot and cold water, gas, electricity and sewer charges; and iii) costs of any repairs to the structural envelope/physical plant of the building. 5. Tenant's Responsibilities i) to pay for all operating expenses including, but not limited to, heat, hydro, water, waste removal, grass cutting, snow removal,etc. music noise and related activities must be kept to reasonable levels in respect of the quiet of the community; and all parties will respect all municipal and provincial legislation, and in particular By-law #91-20. -3 - 6. Repairs and Maintenance The Tenant hereby accepts the Premises on an "as is" basis on or before October 1, 1998, after the Owner completes renovations outlined. The Tenant, at its own expense, shall maintain and keep the Premises and every part thereof, in good working order and condition and promptly make all needed maintenance, repairs and replacements as would a prudent owner of similar premises (reasonable wear and tear and damage by fire, lightning and tempest and structural defects only excepted). The Tenant shall keep the Premises clean and in such condition as a prudent owner would do. If structural repairs or replacements to the roof, foundation or load bearing walls or the heating equipment of the Premises are required during the Term, then the Landlord shall be obligated, at its expense, to effect such repairs or replacements. The Tenant covenants with the Landlord to leave the Premises in as good repair as the Premises were at the commencement of the Term. 7. Alterations (a) If the Tenant, during the Terms of this Lease or any renewal of it, desires to make any alterations or additions to the Premises, including but not limited to: erecting partitions, attaching equipment, and installing necessary furnishings or additional equipment of the Tenant's business, the Tenant may do so at his own expense, at any time and from time to time, if the following conditions are met: (i) before undertaking any alteration or addition that the Tenant may require, the Tenant shall submit to the Landlord a plan showing the proposed alterations or additions and the Tenant shall not proceed to make any alteration or addition unless the Landlord has approved the plan, and the Landlord shall not unreasonably or arbitrarily withhold its approval and items included in the plan; and (ii) any and all alterations or additions to the Premises made by the Tenant must comply with all applicable building code standards and by-laws of the municipality in which the Premises are located. (b) The Tenant shall be responsible for and pay the cost of any of their alterations, additions, installations or improvements that any governing authority, municipal, provincial or otherwise,may require to be made in, on or to the Premises. (c) No sign, advertisement or notice shall be inscribed,painted or affixed by the Tenant, or any other person on the Tenant's behalf, on any part of the inside or outside of the building in which the Premises are located unless the sign, advertisement or notice has been approved in every respect by the Landlord. (d) All alterations and additions to the Premises made by or on behalf of the Tenant, other than the Tenant's Trade Fixtures, shall immediately become the property of the Landlord without compensation to the Tenant. (e) The Tenant agrees, at his own expense and by whatever means may be necessary, immediately to obtain the release or discharge of any encumbrance that may be registered against the Landlord's property in connection with any additions or alterations to the Premises made by the Tenant or in connection with any other activity of the Tenant. -4- 8. Insurance and Indemnification (a) The Tenant covenants to keep the Landlord indemnified against all claims and demands whatsoever by any person, whether in respect of damage to person or property, arising out of or occasioned by the maintenance, use or occupancy of the Premises or the subletting or assignment of same or any part thereof. And the Tenant further covenants to indemnify the Landlord with respect to any encumbrance on or damage to the Premises occasioned by or arising from the act, default, or negligence of the Tenant, its officers, agents, servants, employees, contractors, customers, invitees or licensees and the Tenant agrees that the foregoing indemnity shall survive the termination of this Lease notwithstanding any provisions of this Lease to the contrary. (b) The Tenant shall carry: (i) insurance in his own name to provide coverage with respect to the risk of business interruption to an extend sufficient to allow the Tenant to meet his ongoing obligations to the Landlord and to protect the Tenant against loss of revenues: (ii) insurance in his own name insuring against the risk of damage to the Tenant's property within the Premises caused by fire or other perils and the policy shall provide for coverage on a replacement cost basis to protect the Tenant's stock-in- trade,equipment, Trade Fixtures,decorations and improvement; and (iii) public liability and property damage insurance in the amount of Two Million Dollars ($2,000,000.00) in which policy the Landlord shall be a named insured and the policy shall include a cross-liability endorsement; and the Tenant shall provide the Landlord with a copy of the policy certified by the insurer. 9. Damage and Destruction If the Premises are destroyed or damaged by fire, lightning, tempest or other casualty, then and in every such event if, the damage or destruction of such Building renders the whole or any substantial part of the said Building unfit for occupancy or impossible or unsafe for use and occupancy or impossible for the Tenant to continue to carry on its business, either the Landlord or the Tenant may at its option, terminate this Lease by giving to the other notice in writing of such termination, in which event, this Lease and the Term shall cease and be at an end as of the date of such destruction or damage, and the rent and all other payments for which the Tenant is liable under the terms of this Lease shall be apportioned and paid in full to the date of such destruction or damage; 10. Quiet Enjoyment The Landlord covenants with the Tenant for quiet enjoyment. - 5 - 11. Government Requirements The Tenant shall, at its sole cost and expense,during the Term: (a) observe and comply with all applicable governmental laws and regulations including, without limitation, federal and provincial legislative enactments, Building by-laws and other governmental or municipal regulations which relate to the Premises or the partitioning, equipment, operation and use thereof and to the making of any repairs, replacements, alterations, additions, changes, substitutions or improvements of or to the Premises. The Tenant shall comply with all police,fire and sanitary regulations imposed by any federal, provincial or municipal authorities, or made by insurance underwriters and shall observe all governmental and municipal regulations and other requirements governing the conduct of any business conducted in the Premises; (b) obtain all necessary permits, licenses and approvals relating to the use and occupancy of the Premises and the conduct of business therein; and (c) carry out all modifications, alterations or changes to the Premises and the Tenant's conduct of business in or use of the Premises which are required by any such authorities. The Tenant shall indemnify and hold the Landlord harmless against any penalty or fine imposed for any violation of any law, by-law or regulation by the Tenant or those for whom the Tenant is in law responsible. 12. Default The following events ("Events of Default")shall be deemed a default(a"default")under this Lease: (a) If the Tenant fails to pay any instalment of Basic Rent promptly when due, no later than five(5)days following the respective due date; (b) If the Tenant fails to observe or perform any other term, covenant, condition or obligation under this Lease that is capable of remedy other than a default in the payment of Basic Rent, and such default remains unremedied after thirty (30) days following written notice from the Landlord to the Tenant specifying such default and requiring the Tenant to remedy the default; (c) If the Tenant fails to observe and perform any other term, covenant, conditions or obligation under this Lease that is not capable of remedy other than a default in the payment of Basic Rent, and the Tenant receives written notice from the Landlord specifying such default; (d) If the Tenant makes an assignment for the benefit of its creditors generally, or if the Tenant is declared bankrupt or insolvent, or if a petition in bankruptcy is filed against the Tenant, or if the Tenant files an assignment in bankruptcy or takes or attempts to take the advantage of any legislation for relief of bankrupt or insolvent debtors, or if a receiver or a receiver and manager is appointed for all or a portion of the Tenant's property, or if any steps are taken or any action or proceedings are instituted by the Tenant or by any other party including, without limitation, any court or governmental body of competent jurisdiction for the dissolution, winding-up or liquidation of the Tenant or its assets, unless such proceeding be set aside, discharged or abandoned within fourteen (14) days. For the purposes of this Subsection, "Tenant" shall mean the Tenant and any person carrying on business in or occupying the whole or any part of the Premises. -6- 13. Right of Re-Entry Upon an Event of Default and at the opinion of the Landlord,the Landlord, in addition to any other remedy or right it may have, and without notice or any form of legal process, may forthwith re- enter upon and take possession of the Premises without thereby terminating this Lease and remove and sell the Tenant's goods, chattels, equipment and trade fixtures therefrom, any rule of law or equity to the contrary notwithstanding. The Landlord may seize and sell such goods, chattels, equipment and trade fixtures of the Tenant as are in the Premises and may apply the proceeds thereof to all rent and other payments to which the Landlord is then entitled under this Lease. Any such sale may be effected in the discretion of the Landlord by public auction or otherwise, and either in bulk or by individual item, or partly by one means and party by another, all as the Landlord in its sole discretion may decide. If any of the Tenant's property is disposed of as provided in this Section, ten (10) days prior notice to the Tenant of disposition shall be deemed to be commercially reasonable. 14. Right of Termination In addition to all rights and remedies of the Landlord available to it by any provision of this Lease or given by law to the Landlord, the Tenant agrees that upon an Event of Default the Landlord shall have the right to terminate this Lease upon notice in writing to the Tenant. Upon such notice, this Lease shall terminate immediately without the necessity of any legal proceeding whatsoever. The Tenant shall thereupon within three (3) days quit and surrender the Premises to the Landlord, or if not yet in possession, the Tenant shall no longer have any right to possession of the Premises, and the Landlord, its agents and servants, shall have the right to enter the Premises and dispossess the Tenant and remove any persons or property therefrom without the necessity of legal proceeding whatsoever and without being liable to the Tenant therefor in damages, or otherwise. Either party shall have the right to cancel this Lease at any time during the term by giving the other party no less than three (3)month prior written notice of termination. 15. Right to Re-let etc. If the Landlord re-enters pursuant to the provisions of either this Lease or any applicable law, the Landlord, without limiting its right to recover damages, may either terminate this Lease under this section or it may from time to time without terminating the Tenant's obligations under this Lease, make any alterations and repairs considered necessary by the Landlord to facilitate a reletting, and relet the Premises or any part thereof as agent of the Tenant for such term or terms and at such rental or rentals and upon such other terms and conditions as the Landlord in its reasonable discretion considers advisable. Upon each reletting, all rent and other moneys received by the Landlord from the reletting will be applied (i) to the payment of indebtedness other than rent due hereunder from the Tenant to the Landlord(ii)to the payment of costs and expenses of the reletting including brokerage fees, legal fees and costs of the alterations and repairs and (iii) to the payment of rent due and unpaid hereunder. The residue, if any, will be held by the Landlord and applied in payment of future rent as it becomes due and payable. If the rent received from the reletting during a month is less than the rent to be paid during that month by the Tenant, the Tenant shall pay the deficiency to the Landlord. The deficiency shall be calculated by the Landlord and paid monthly in advance on or before the first day of every month by the Tenant. No re-entry by the Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of that intention is given to the Tenant. Despite a reletting without termination, the Landlord may elect at any time to terminate this Lease for a previous breach. - 7- 16. Damages If the Landlord shall terminate this Lease as provided herein, the Tenant shall pay to the Landlord on demand, rent hereunder up to the time of re-entry or termination,whichever shall be the later. 17. Separate Remedies The Landlord may from time to time resort to any or all of the rights and remedies available to it upon an Event of Default, either by any provision of this Lease or by statute or the general law, all of which rights and remedies are intended to be cumulative and not alternative and may be exercised generally or in combination. 18. Waiver (a) Notwithstanding anything contained in any statute now or hereafter in force limiting or abrogating the right of distress,none of the goods,chattels or trade fixtures of the Tenant on the Premises at any time during the Term shall be exempt from levy by distress for rent in arrears, and if any claim is made for such exemption by the Tenant or if a distress is made by the Landlord of if any action is brought to test the right of the Landlord to levy upon any such goods as are so exempted, this Lease may be pleaded as an estoppel against the Tenant, the Tenant hereby waiving each and every benefit that could or might have accrued to the Tenant under and by virtue of any such statute by for this Lease. (b) Failure of the Landlord to insist upon the performance of any covenant or condition of this Lease or to exercise any right or option contained in this Lease shall not be construed as a waiver or relinquishment of any such covenant, conditions, right or option or of any subsequent breach of the same. No variation or waiver of any covenant or condition of this Lease shall be valid unless in writing and signed by duly authorized persons on behalf of the Landlord. 19. Covenants Every obligation of the Landlord or the Tenant expressed in this Lease, even though not expressed as a covenant, shall be a covenant for all purposes. The Tenant acknowledges that it shall have no right to any benefit of division or discussion. 20. Time of Essence Time shall be of the essence in all respects hereunder. 21. Enforceability If any term, covenant or condition of this Lease or the application thereof to any person or circumstance is to any extent held or rendered invalid, unenforceable or illegal, the remainder of this Lease or the application of such term, covenant or conditions to persons or circumstances other than those with respect to which it is held invalid, unenforceable or illegal is not affected thereby and continues to be applicable and enforceable to the fullest extent permitted by law. Y 22. Notices Any notice that one party hereto may desire or be required to give to the other party hereto shall for all purposes be deemed to have been sufficiently and properly given, if delivered personally or forwarded by registered mail and addressed.in the case of the Landlord to: 40 Temperance Street,Bowmanville, Ontario,L 1 C 3A6 and in the case of the Tenant to the Premises and shall be presumed to have been received on the date of delivery, if delivered personally,or if forwarded by registered mail on the third business day following such mailing. Any notice shall be in writing, except as expressly otherwise provided herein, and shall be given only by delivery as aforesaid in the event of post interruption. 23.. Enurement This Lease and everything herein contained shall enure to the benefit of and be binding upon the parties hereto their successors and permitted assigns respectively, IN WITNESS WHEREOF the parties have duly executed and unconditionally delivered this Lease as of the date first above written. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: D' e H re, Mayor And: arrie, Clerk BETHESDA HOUSE OF MERCY ASSOCIATION And: