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HomeMy WebLinkAbout2008-145THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2008 - 145 Being a By-law to authorize an agreement between the Corporation of the Municipality of Clarington and the Bowmanville Tennis Club, Bowmanville, Ontario to enter into agreement for the lease space at the Clarington Beech Centre, 26 Beech Avenue, Bowmanville, Ontario. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are authorized as per report COD-047-08 to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a contract between, Bowmanville Tennis Club, of Bowmanville, Ontario, 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 14th day of July, 2008. By-law read a third time and finally passed this 14th day of July, 2008. J ~_ rn~ ayar_ C nne eentree, Deputy Clerk THIS INDENTURE made in triplicate as of the 15` day of January, 2008. PURSUANT TO THE SHORT FORMS OF LEASES ACT BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Lessor"): OF THE FIRST PART - and - THE BOWMANVILLE TENNIS CLUB (hereinafter called the "Lessee") OF THE SECOND PART WITNESSETH that in consideration of the rents, covenants and agreements hereinafter reserved and contained on the part of the said Lessee, to be paid, observed and performed, the said Lessor has demised and leased and by these presents doth demise and lease unto the said Lessee, ALL THOSE CERTAIN LANDS described as The Bowmanville Tennis Club Courts and the immediately surrounding fence as located on this date on the property owned by the Municipality of Clarington at 26 Beech Avenue, Bowmanville, Ontario ("Demised Premises"). TO HAVE AND TO HOLD the said demised premises for and during the term to be computed from the first day of January 1n, 2008 and from thenceforth ensuing and to be fully completed and ended on the last day of December 31~`, 2011 (°Term"), provided that the Lessor may terminate the Lease by giving the Lessee written notice of at least twelve (12) months specifying the date on which the Lease will terminate. 1.0 Rent 1.1 The said Lessee covenants with the said Lessor to pay rent as follows: YIELDING AND PAYING DURING the said Term hereby granted unto the said Lessor the following sums payable in advance on January 1 of each year of the Term increased by any applicable Goods and Services Tax (`GST"): On January 1, 2008, the amount of One Thousand Three Hundred and Fifty ($1,350.00) Dollars ("Rent"). 1.2 On January 1, 2009 the Rent of One Thousand Three Hundred and Fifty ($1,350.00) Dollars shall be increased pro rata with the increase in the Consumer Price Index (CPI} (all items) for Toronto with November 1st of 2007 as the base date and the increase for 2009 to be based on the increase, if any, in the CPI from November 1.2007 to November 1.2008. 1.3 On January 1, 2010, the Rent due and payable in advance on that date shall be not less than the amount of Rent due and payable by the Lessee to the Lessor on January 1, 2009 and shall be increased pro rata with the CPI with November 1~` of 2008 as the base date. The increase for 2010 shall be based on the increase, if any, on the CPI from November 1, 2008 to November 1, 2009. 1.4 On January 1, 2011, the Rent due and payable in advance on that date shall not be less than the amount of Rent due and payable by the Lessee to the Lessor on January 1, 2010, and shall be increased pro rata with the CPI with November 1, -2- 2009 as the base date. The increase for 2011 shall be based on the increase, if any, in the CPI from November 1, 2009 to November 1, 2010. 2.0 Repair 2.1 AND to repair (reasonable wear and tear, and damage by fire, lighting and tempest only excepted); AND that the said Lessor may enter and view state of repair; AND that the said Lessee will repair according to notice in writing (reasonable wear and tear and damage by fire, lighting and tempest excepted); AND that they will leave the Demised Premises in good repair (reasonable wear and tear and damage by fire, lighting and tempest excepted). 3.0 Assisanment 3.1 AND will not assign or sub-let the whole or, any part of the Demised Premises without leave of the Lessor; AND the said Lessee further covenants with the said Lessor, its successors and assigns: 4.0 Lessee's Further Covenants 4.1 (a) THAT the said Demised Premises will not, during the Term, be at any time used for any other purpose than that of tennis courts that are open to the sky and used by members of the Lessee and their guests. (b) THE Lessee hereby covenants to pay all charges for electric energy (for light and power) used by the Lessee on the Demised Premises forthwith following receipt of each invoice given to the Lessee either by Veridian Corporation or by the Lessor. (c) THAT, at the expiration of the Term or any renewal thereof, all fixtures belonging to the Lessee shall remain upon the Demised Premises until taken down by the Lessor, and the Lessee shall forthwith, upon the same being taken down, remove the same from the Demised Premises first paying to the Lessor the expense of such taking down and making good all damage occasioned to the Demised Premises by the taking down or removal thereof.; (d) THAT, if during the Term any goods and chattels of the Lessee or any assignee or sub-tenant shall be at any time seized or taken in execution or attachment, or if the Lessee or any such assignee orsub-tenant shall make an assignment for the benefit of creditors or shall become bankrupt or insolvent, or make a proposal to its creditors, the Term shall immediately become forfeited and void, and an amount equivalent to three months' Rent (including GST) for the current year of the Term, shall be at once due and payable. 5.0 Distress 5.1 AND the Lessee further covenants, promises and agrees with the Lessor that notwithstanding any present or future Act of the Legislature of the Province of Ontario, none of the goods or chattels of the Lessee at any time during the continuance of the term hereby created on the Demised Premises shall be exempt from levy by distress for rent in arrears by the Lessee, and that upon any claim being made for such exemption by the Lessee or on distress being made by the Lessor, this covenant and agreement may be pleaded as an estoppel against the Lessee in any action brought to test the right to the levying upon any such goods as are named, the Lessee waiving as he hereby does all and every benefit that could or might have accrued to him under and by virtue of any applicable legislation.. 5.2 The Lessor covenants with the Lessee for quiet enjoyment. -3- 6.0 Lessor's Further Covenants 6.1 The Lessor further covenants with the Lessee as follows: (a) To give the Lessee, its employees, invitees, contractors and agents, in common with other persons, the right to enter the Demised Premises by means of the main entrance on and free use of the Beech Avenue passages from the street to the Demised Premises at all reasonable times; and (b) PROVISO for re-entry by the said Lessor on non-payment of rent or non- performance of covenants. 7.0 Taxes 7.1 The Lessee covenants and agrees to pay all taxes levied against the Demised Premises on the account of the Lessor or Lessee, and to pay any taxes on income of the Lessee, License fees, or other charges or taxes imposed upon the Demised Premises, or income of the Lessee forthwith after they become due, all as determined by the Lessor's Treasurer, acting reasonably. 8.0 Voidance of Lease 8.1 It is further declared and agreed that in case the Demised Premises or any part thereof be used by any other person or persons, or for any other purpose than as above provided, without the prior written consent of the Lessor, this Lease shall, at the option of the Lessor, cease and be void, and the Term hereby created expire and be at an end, anything hereinbefore to the contrary notwithstanding, and the Lessor may re-enter and take possession of the Demised Premises as though the Lessee or other occupant or occupants of Demised Premises were holding over after the expiration of the Term. 9.0 Limitation of Lessor's Liability 9.1 tt is further declared and agreed that the Lessor shall not be liable for any damage to any property at any time upon the Demised Premises arising from water, rain or snow, which may leak into, issue or flow from any part of the Demised Premises or from the water or drainage pipes or plumbing works of the same or from any other place or quarter or for any damage caused by or attributable to the condition or arrangement of any electric or other wires in, on or over the Demised Premises or any part thereof. 9.2 AND the Lessor shall not be responsible for any personal injury which shall be sustained by the Lessee or any employee, invitee, contractor or agent who may be upon the Demised Premises. All risks of any such injury are hereby assumed by the Lessee, who shall hold the Lessor harmless and indemnified therefrom. 10.0 Notice of Accident or Defect 10.1 THE Lessee shall give the Lessor prompt written notice of any accident or other defect in the electric system or other wires which serve or are located on any part of the Demised Premises. 11.0 Insurance 11.1 Lessee's Dutv to Insure The Lessee at their cost shall obtain and maintain throughout the Term, any extension or renewal thereof and any overholding of the Demised Premises by the Leaee: (i) all risk insurance on all property of every description, nature and kind owned by the Lessee or for which the Lessee is legally liable located on the Demised Premises in its own name, naming the Lessor as an additional insured, in an amount not less than the full replacement cost thereof without deduction for depreciation; such insurance shall be -4- subject to a replacement cost endorsement; any dispute as to the amount of the replacement cost shall be settled by the Lessor or by a consultant appointed by the Lessor at the Lessee's cost; (ii) general liability and property damage insurance including Lessee's legal liability in the minimum amount of Three Million Dollars ($3,000,000), naming the Lessor as an additional insured, and containing across- liability endorsement, and other terms and conditions satisfactory to the Lessor's Treasurer, acting reasonably. 11.2 Terms of Insurance Each policy of insurance referred to in Section 11.1 shall be in form and substance and with insurers reasonably acceptable to the Lessor's Treasurer. Each insurance policy shall contain (i) an undertaking by the insurers under such policies that no material change adverse to the Lessor or Lessee will be made, and the policy will not be cancelled or terminated, except after not less than thirty (30) days written notice by registered mail to the Lessor and the Lessee of the intended change, cancellation or termination, and (ii) a clause stating that the Lessee'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 Lessor. Each of the policies referred to in Section 11.1 shall contain a waiver, in respect of the interests of the Lessor 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. 11.3 Evidence of Policv of Insurance Upon request by the Lessor or upon the placement, renewal, amendment or extension of all or any part of a policy of insurance referred to in section 11.1, the Lessee shall immediately provide to the Lessor evidence of such insurance in and completed in accordance with the Lessor's standard form of certificate of insurance or, if required by the Lessor's Treasurer, evidence in the form of a copy of the policy certified to be a true copy by an officer of the insurer and signed by the insurer. 11.4 Failure to Provide Insurance and Cost The cost or premium for each and every such policy shall be paid by the Lessee prior to the due date therefor. If the Lessee fails to take out or maintain such insurance or fails to provide to the Lessor such certified copies of insurance and certificates of insurance as herein required, or if any such insurance is not acceptable to the Lessor's Treasurer, and if the Lessee fails to commence to diligently rectify and thereafter proceed to diligently rectify the situation within forty-eight (48) hours after written notice by the Lessor to the Lessee (stating, if the Lessor, from time to time, does not approve of such insurance, the reasons therefor, then the Lessor shall have the right, but not the obligation, to do so, to pay the cost or premium therefor, without prejudice to any other rights or remedies of the Lessor under this Lease or at law, and in such event the Lessee shall repay to the Lessor, on demand, the amount so paid. 12.0 Notice 12.1 If any notice or other document is required to be or may be given by the Lessor or by any official of the Lessor to the Lessee or by the Lessee to the Lessor under this Lease such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: The Lessor: Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1 C 3A6 Attention: Purchasing Manager If by telecopier to: (905) 623-3330 -5- The Lessee: The Bowmanville Tennis Club 21 Beech Avenue Bowmanville, Ontario L1C 3A1 Attention: President or such other address of which the Lessor or the Lessee has notified the other in writing. Any such notice so mailed or delivered shall be deemed good and sufficient notice under the terms of this Lease and shall be effective from the date which it is so mailed or delivered. Any notice transmitted by telefax shall be effective from the date that it is telefaxed. 13.0 Overholdina 13.1 PROVIDED further and it is hereby agreed that should the Lessee hold over after the expiration of this Lease and the Lessor thereafter accepts Rent for the Demised Premises, the Lessee shall hold the Demised Premises as a monthly tenant only of the Lessor but subject in all other respects to the terms and conditions of this Lease. 14.0 Interoretation 14.1 The words importing the singular number only shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine gender. 14.2 Unless the context otherwise required the word "Lessor" and the word "Lessee" wherever used herein shall be construed to in include and shall mean the successors and/or assigns of the Lessor and the executors, administrators, successors and/or assigns of the Lessee, and when there are two or more Lessees bound by the same covenants herein contained, their obligations shall be joint and several. IN WITNESS WHEREOF the parties hereto have executed these presents. SIGNED, SEALED and DELIVERD )THE CORPORATION OF THE In the presence of )MUNICIPALITY OF-CLARIyGTON - -- ._ We have the authority to bind the Corporation. ) ) )THE BOWMANVILLE TENNIS CLUB Witness: ) ~~ti ~~ Name: )Per: I. Address: ) Kem Majid, President Per: (~~~-_~- Witness: ~~ ) Ellen Logan, Treasurer Name: ) Address: ) We have the authority to bind the Corporation