HomeMy WebLinkAbout2009-043THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2009-043
Being a By-law to authorize a contract between the
Corporation of the Municipality of Clarington and Community
Care Durham, Bowmanville, Ontario, to enter into agreement
for the leased space at 26 Beech Avenue, Bowmanville, ON.
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, an
agreement between Community Care Durham, Bowmanville, Ontario, and said
Corporation; and
2. THAT the agreement attached hereto as Schedule "A" form part of this By-law.
By-law read a first and second time this 6w day of April, 2009.
By-law read a third time and finally passed this 6`h day of April, 2009.
THIS LEASE AND LICENCE is made as of the first day of April, 2009.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(hereinafter called the "Landlord")
OF THE FIRST PART
-and-
COMMUNITY CARE DURHAM
a company incorporated under the laws of the Province of Ontario
(hereinafter called the "Lessee")
OF THE SECOND PART
LEASE AND LICENCE AGREEMENT
^
TABLE OF CONTENTS
ARTICLE I: DEMISED PREMISES, TERM AND USE
1.1 Demised Premises .............................................
1.2 Licenced Areas ...................................................
1.3 Term ...................................................................
1.4 Use .....................................................................
1.5 Nuisance .............................................................
ARTICLE II: RENT AND OTHER CHARGES
2.1 Rent ............:........................................................ .....................................................6
2.2 Rent Past Due ..................................................... .....................................................6
2.3 Other Charges ..................................................... .....................................................7
ARTICLE III: REPAIRS, MAINTENANCE AND ALTERATIONS
3.1 Lessor's Duty to Repair, to Heat and to Provide Utilities ..........................................7
3.2 Prior Approval Required of Lessee's Alteration of Premises ............................. 7 & 8
3.3 Construction Liens ....................................................................................................8
ARTICLE IV: REMOVAL OF LESSEE'S FIXTURES AND EQUIPMENT
4.1 Right to Remove Fixtures, etc ..................................................................................8
ARTICLE V: ACCESS AND ENTRY
5.1 Access to Premises .........................................
5.2 Entry not Forfeiture ..........................................
ARTICLE VI: INSURANCEjAND INDEMNITY
6.1 Lessee's Duky to Insure ...................................
6.2 Terms of Policies .............................................
6.3 Evidence of Policies ........................................
6.4 Failure to Provide Insurance ............................
6.5 Indemnity .........................................................
6.6 Responsibility for Loss or Damage ..................
6.7 Benefit of Indemnity, etc ..................................
6.8 Dangerous use ................................................
ARTICLE VII: DAMAGE AND DESTRUCTION
....................................................5
....................................................5
....................................................5
............................................. 5 & 6
....................................................6
.................................... 5 & 9
...........................................9
7.1 Damage to Demised Premises or Licenced Area ..................................................13
7.2 Insured Dannage to or Destruction of Demised Premises or Licenced Area..........13
7.3 Uninsured Damage to Demised Premises or Licenced Area ........................13 & 14
7.4 Termination of Lease and Licence After Destruction or Damage to
Demised Premises .................................................................................................14
7.5 Actions Following Termination ................................................................................14
7.6 Restoration of Demised Premises and Licenced Areas If Lease not
Terminated .............................................................................................................14
7.7 Restoration and Insurance Proceeds ............................................................14 8< 15
7.8 Determination of Matters ........................................................................................15
7.9 Limitation of Liability ...............................................................................................15
ARTICLE VIII: ASSIGNMENT, SUB-LEASE AND LICENCE
8.1 Consent Required .....................................................
ARTICLE IX: DEFAULT
9.1 Events of Default ...............................................
9.2 Right of Re-Entry ..............................................
9.3 Legal Expenses to Recover Possession ..........
9.4 Right of Termination .........................................
9.5 Right to Re-let ...................................................
9.6 Separate Remedies ..........................................
ARTICLE X: EXTENSION OR RENEWAL
10.1 .Option to Extend or Renew Lease and Licence ..............
ARTICLE XI: GENERAL PROVISIONS
..........:..................15
.......................17
11.1 Definitions ................................................................................................... ...17 & 18
11.2 Schedules Form Part of Lease and Licence ............................................... ............18
11.3 Quiet Enjoyment ......................................................................................... ...18 & 19
11.4 Covenants .................................................................................................. ........... 19
11.5 No Partnership or Agency .......................................................................... ...........
11.6
PST and GST ............................................................................................. 19
...........
11.7 Overholding No Tracit Renewal .................................................................: ........... 19
11.8 Waiver ..............................................................................:......................... .. 19 & 20
11.9 Distress ....................................................................................................... ...........20
11.10 Costs .......................................................................................................... ........... 20
11.11 Set-Off and j4ccord and Satisfaction ......................................................... ............ 20
11.12 Authority of Lessor, etc .............................................................................. ............ 20
11.13 Rules Regarding Operation of Demised Premises and Licensed Areas ... ............ 20
11.14 Demised Premises and Areas to be Smoke-Free ..................................... ............20
11.15 Use of Additional Areas by the Lessee ...................................................... .... 20 & 21
11.16 Lease Subject to Lease .......................:..................................................... .............21
11.17 Notices ....................................................................................................... ......:.....21
11.18 Force Majeure ..:........................................................................................ ............ 21
11.19 Time of Essence ........................................................................................ ............ 21
11.20 Enforceability ............................................................................................. ............
11.21
Enurement .:............................................................................................... 22
............
11.22 Governing Law .......................................................................................... ............ 22
Schedule "A" -Floor Plans
April 27, 2009
THIS LEASE AND LICENCE is made as of the first day of April, 2009.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(hereinafter called the "Landlord")
OF THE FIRST PART
-and-
COMMUNITY CARE DURHAM
a company incorporated under the laws of the Province of Ontario
(hereinafter called the "Lessee")
OF THE SECOND PART
NOW THEREFORE THIS LEASE AND LICENCE WITNESSES THAT in consideration
of the rents, covenants and agreements hereinafter referred to and contained, the
leases to the Lessee, subject to the rights of access and entry set out below and the
Lessee leases from the Lessor, the Demised Premises on the terms and conditions set
out below. The Lessor also licences the Lessee to use the Licenced Areas on the terms
and conditions set out below.
Lease and Licence
Lease and Licence
ARTICLE ONE
DEMISED PREMISES. TERM AND USE
1.1 Demised Premises
The Demised Premises comprise approximately one thousand three hundred and eighty-six
(1,386) square feet of office space located on the first floor of the Building which are
identified as the Community Care Office Facilities and outlined in blue on the floor plans
contained in Schedule "A" hereto, together with anon-exclusive easement which maybe
exercised by the Lessee, its employees, licensees, invitees and guests to use the main
entrance identified on the floor plans contained in Schedule "A" hereto, and the walkways,
driveways and grounds of the Premises for the purpose of ingress to and egress from the
aforesaid Community Care Office Facilities and parking motor vehicles in the designated
parking area during the hours of 8:00 a.m. and 5:00 p.m. from Monday to Friday of each
week of each year or part of a year of this Lease and Licence and any extension or renewal.
1.2 Licenced Areas
The Licenced Areas include non-exclusive use of the Board Room on the first floor of the
Building which is identified on the floor plans contained in Schedule "A" together with the
non-exclusive right to use the entrances, exits, stairs, elevators, corridors and washrooms of
the aforesaid Building provided that notice is first given by the Lessee to the Clarington
Older Adults Association Administrator of the proposed time of use of the Board Room and
it is not otherwise engaged. The Lessee may also use on anon-exclusive basis the lunch
room on the first floor of the aforesaid Building provided that (I) the Lessee keeps the lunch
room in a clean and tidy condition at its cost on each occasion on which it is used by its
employees, and (2) garbage is placed by the Lessee in suitable containers and in locations
approved by the Lessor's Administrator for removal from the Premises.
1.3 Term
The term of this Lease and Licence shall commence on April 1, 2009 (the "Commencement
Date") and shall terminate on March 31st, 2010 provided that either the Lessor or Lessee
may terminate the Term of the Lease by giving the other party at least thirty (30) days
written notice of terminatQ ending the last day of the month on which such termination is to
have affect.
1.4 Use
a) Throughout the Term of this Lease and Licence and any extension or renewal
thereof, the Lessee shall use, permit or suffer the Community Care Office Facilities to be
used only for its purposes. Throughout the Term of this Lease and Licence and any
extension or renewal thereof, the Lessee shall use, permit or suffer the Licenced Areas only
for the purposes intended by and during the times set out in this Lease and Licence.
b) At all times throughout the Term of this Lease and Licence and any extension or
renewal thereof, the Lessee shall continuously, actively and diligently carry out, cause, or
suffer the use of the Demised Premises and every part thereof 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 Demised Premises or any part therefore for any other
purpose. The Lessee at its cost shall obtain all necessary permits or licences required by
applicable law in respect of any use which the Lessee or any person who claims under the
Lessee, may make or permit or suffer any other person to make of any part of the Demised
Premises.
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Lease and Licence
c) The Lessee acknowledges and agrees that the Municipality of Clarington shall not be
responsible for any of the Lessee's costs, liabilities, or responsibilities in respect of
employment contracts made by the Lessee with full-time or part-time employees of the
Lessee or volunteers of the Lessee. None of the full-time or part-time employees of the
Lessee shall be considered or deemed to be employees of the Municipality of Clarington for
any purpose, and none of them shall be or be considered to be required or to be eligible to
participate in the Ontario Municipal Employees Retirement System. Prior to hiring
employees, the Lessee shall bring the content of this paragraph 1.4 (c) to their attention.
1.5 Nuisance
The Lessee shall not commit, permit or suffer (i) any waste, damage or injury to the
Demised Premises or any area which is part of the Licensed Areas, including, without
limitation, .the improvements, installations, fixtures and equipment located thereon or
therein; (ii) any nuisance in or on the Demised Premises or in or on any area which is part
of the Licensed Areas; (iii) any overloading of any HVAC system, any utility, electrical
system, plumbing system, mechanical equipment, or other facilities or systems within or
serving the Demised Premises or any area which is part of the Licensed Areas; and (iv) any
waste, damage or injury of the Premises or any part thereof or of any other systems serving
the Premises or any part thereof. The Lessor in its sole discretion may determine whether
the Lessee is in breach of any provision of this Section 1.5.
ARTICLE TWO
RENT AND OTHER CHARGES
2.1 Rent
(1) The Rent reserved by the Lessor by this Lease and Licence is Sixteen Thousand
Eight Hundred and Fifty'. Three Dollars and Seventy Six Cents ($16,853.76) per annum
payable in equal monthly installments of One Thousand Four Hundred and Forty Eight
Cents ($1,404.48) Dollars each in advance with the first installment being due and payable
on the Commencement Date. The Basic Rent includes all expenses for heat, electricity,
water and snow removal which are the responsibility of the Lessor.
(2) Notwithstanding paragraph 2.1(1) the Lessee shall pay to the Lessor during the
Term of this Lease and Licence forthwith after being given a written notice of demand, any
increase in charges for electricity and water above the charges therefore that are made by
the responsible provide of the service after the date as of which the Lease and Licence is
made.
2.2 .Rent Past Due
Except as otherwise provided in this Lease and Licence, if the Lessee pays the Rent
reserved hereby, fully performs all of its covenants and duties under this Lease and no
Event of Default has occurred, the Lessee shall be entitled to peaceful and quiet enjoyment
of the Demised Premise for the Term without interruption or interference by the Lessor or
any person claiming through the Lessor.
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Lease and Licence
2.3 Other Charges
(a) In each and every year during the Term of this Lease and Licence and any renewal
or extension thereof, the Lessee shall be responsible for and pay and discharge promptly
when due all charges for telephone used upon or in respect of the Demised Premises or for
fittings, machines, apparatus, meters or other things leased in respect thereof:. Without
limiting the foregoing in any way, during th.e Term, the Lessee shall also be responsible for
and shall pay promptly as,Additional Rent the aggregate of all costs of every kind incurred
by or on behalf of the Lessor for which the Lessee is responsible under the provisions of
this Lease and Licence with respect to insurance relating to the Demised Premises required
to be obtained by the Lessee, forthwith after the Lessee is given written notice by the
Lessor's Administrator requiring it to do so.
(b) The Lessee shall provide the Lessor within ten (10) days after receipt of same any
tax bills, assessments, utility charges and other notices regarding the foregoing.
ARTICLE THREE
REPAIRS. MAINTENANCE AND ALTERATIONS
3.7 Lessor's Dutv to Repair to Heat and to Provide Utilities
The Lessor at all times throughout the Term of this Lease and Licence and any extension or
renewal thereof shall repair, keep in repair and maintain the Demised Premises and the
Licenced Areas. The Lessor shall also repair and keep in repair and maintain those portions
of the Premises which may be used by the Lessee as provided in this Lease including all
exterior areas of the Premises. The Lessor at its cost shall heat the Demised Premises
between October 15~" and April Ist of each year and provide electricity and water services to
the Demised Premises and the areas which are part of the Licenced Areas according to
their functions and shall remove snow from the walkways, driveways and parking area on
the Premises.
3.2 Prior Approval Required of Lessee's Alteration of Premises
(a) No alteration shall be made to any part of the Demised Premises or the Premises by
the Lessee without the written approval of the Lessor's Administrator being first obtained.
The Lessee shall submit to the Lessor details of the proposed alterations, including, without
limitation, plans, drawings and specifications prepared by qualified architects or engineers in
conformity with the Lessor's then current building standards. All such alterations shall be
performed (i) at the sole cost of the Lessee, (ii) by contractors and workmen designated,
provided or approved by the Lessor, (iii) in a good and workmanlike manner, (iv) in
accordance with plans, drawings and specifications approved in writing by the Lessor and,
where required, by other. authorities having jurisdiction, (v) in satisfaction of all applicable
legal and insurance requirements, (vi) subject to reasonable regulation, supervision, control
and inspection by the Lessor, and (vii) only after there is provided to the Lessor such
indemnification against construction liens and evidence of such additional Lessee's
insurance as the Lessor may reasonably require.
(b) Whether or not the Lessor gives its approval to a proposed alteration, the Lessee
shall pay to the Lessor, do demand, all of the Lessor'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 Lessor shall have the right to require the Lessee to make a payment to the
Lessor in respect of such costs as a precondition to the Lessor's granting any necessary
approval thereof. Such reasonable costs shall be deemed to include, without limitation, all
amounts paid or payable by the Lessor to third parties, and all reasonable charges of the
Lessor for the cost of providing its own personnel:
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Lease and Licence
(c) The Lessor's approval of any alterations or plans, drawings or specifications with respect
thereto shall not constitute a waiver by the Lessor of the Lessee's obligations herein to
comply with all laws and all requirements of all authorities with respect to such alterations,
nor shall the Lessor's approval constitute an acknowledgment or agreement by the Lessor
that such laws and requirements have been complied with.
The Licenced Areas include non-exclusive use of the Board Room on the first floor of
the Building which is identified on the floor plans contained in Schedule "A" together
with the non-exclusive right to use the entrances, exits, stairs, elevators, corridors and
washrooms of the aforesaid Building provided that notice is first given by the Sub-
lessee to the Lessor's Administrator of the proposed time of use of the Board Room
and it is not otherwise engaged. The Lessee may also use on an on-exclusive basis the
lunch room on the first floor of the aforesaid Building provided that (1) the Lessee keeps
the lunch room in a clean and tidy condition at its cost on each occasion on which it is
used by its employees, and (2) garbage is placed by the Lessee in suitable containers
and in locations approved by the Lessor's Administrator for removal from the Premises.
3.3 Construction Liens
The Lessee shall promptly pay for all materials and services supplied and work done on its
behalf in respect of the Demised Premises or the Premises so as to ensure that no claim for
lien under the Construction Lien Act is registered against any portion of the Demised
Premises, an area which is part of the Licenced Areas, or the lands which comprise part of
the Premises. If a claim of a lien is registered on title, the Lessee shall discharge it at its
expense within ten (10) days thereafter, failing which the Lessor, at its option, may
discharge the lien by paying the amount claimed to be due into Court or directly to the lien
claimant. All expenses of the Lessor including, without limitation, legal fees (on a solicitor
and his client basis) shall be paid by the Lessee to the Lessor forthwith after the Lessor's
Administrator gives the Lessee written notice requiring it to do so as Additional Rent.
ARTICLE FOUR
REMOVAL OF TENANT'S FIXTURES AND EQUIPMENT
4.1 Rislht to Remove fixtures, etc.
During the Term or on its expiration, when it is not in default of performance of any of its
covenants under this Lease and Licence, the Lessee at its cost may remove Lessee's
fixtures, equipment and personal property from the Demised Premises and from any area
that is part of the Licenced Areas, provided that the Lessee at its cost shall restore Demised
Premises or area by making good any damage that has occurred either by the installation of
Lessee's fixtures, equipment or personal property or by the removal of any of them from
any part of the Demised Premises or area. If the Lessee does not remove its fixtures,
equipment and personal property from the Demised Premises or area that is part of the
Licenced Areas at the expiry of the Term, they shall become the absolute property of the
Lessor without prior notice being given to the Lessee or compensation therefore being paid
by the Lessor to the Lessee, and the Lessor shall be free to use or to dispose of the same
and to appropriate the proceeds of disposal to the Lessor's own use absolutely. The
Lessor's rights and the Lessee's duties under this Section 4.1 shall survive the expiry or
earlier termination of the Term and any extension or renewal thereof.
ARTICLE FIVE
ACCESS AND ENTRY
5.1 Access to Demised Premises
(a) Without limiting any other right which the Lessor may have pursuant to this Lease
and Licence or at law, the Lessor shall have the right, but not the obligation, following
reasonable written notice to the Lessee (except in the case of an emergency or
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Lease and Licence
apprehended emergency where no such notice shall be required), to enter the Demised
Premises at any time and for any of the following purposes:
(i) to examine the Demised Premises or to perform any maintenance, repairs,
replacements, alterations or improvements to the Demised 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,
electrical or plumbing equipment or systems, or any part thereof, within or
serving the Demised Premises or any part thereof;
(ii) to preserve and protect the Demised Premises, or any part thereof in respect
of any construction or other work being performed in Demised Premises
adjoining or in the vicinity of the Demised Premises, or on any part of the
Demised Premises;
(iii) for any purposes as determined by the Lessor in cases of emergency;
(iv) to read any utility or other similar meter located in the Demised Premises;
(v) during the last six (6) months of the Term (or any renewal or extension Term
if renewed or extended), but only during normal operating hours, to show the
Demised Premises to prospective Lessees, and to permit them to make
inspections,:. measurements and plans;
(vi) to exercise any of the rights available to the Lessor pursuant to this lease or
to perform such work in respect of the Demised Premises, or any part
thereof, as the Lessor shall deem necessary.
(b) The Lessor shall have the right to take into the Demised Premises all such material
and equipment as it magi require in connection with any of the purposes referred to in this
Section
The Lessor shall exercise its rights under this Section 5.1, to the extent reasonably possible
in the circumstances, in such manner and at such times as the Lessor's Administrator shall
determine, and to the extent practical in the circumstances, so as to minimize interference
with the Lessee's use and enjoyment of the Demised Premises.
5.2 Entrv not Forfeiture
Notwithstanding anything.contained in this Lease and Licence, the exercise by the Lessor of
any of its rights under this Lease and Licence, including, without limitation, (i) any of its
rights set out in Section 5. 1, and (ii) the exercise of any right under this Lease and Licence
to enter the Demised 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 Lessor in writing), nor shall it render the Lessor
liable for any injury, loss,. costs or damages whatsoever, howsoever caused, whether direct
or indirect, incurred. as a, result thereof by the Lessee, nor shall the Lessee be entitled to
any compensation, diminution or abatement of Rent (except as may be otherwise expressly
provided in this Lease and Licence).
ARTICLE SIX
INSURANCE AND INDEMNITY
6.1 Lessee's Dutv to Insure
The Lessee shall obtain and maintain throughout the Term of this Lease and Licence and
any extension or renewal. thereof:
(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 within the Demised Premises
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or within any part of the Licensed Areas 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 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 Two Million Dollars ($2,000,000.00), naming the Lessor as
an additional insured, and containing across-liability endorsement, and other terms
and conditions satisfactory to the Lessor's Administrator acting reasonably.
6.2 Terms of Policies
Each policy of insurance referred to in Section 6.1 shall be in form and substance and with
insurers reasonably acceptable to the Lessor's Administrator. Each of the insurance policies
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 npt 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 6.1 shall contain. a waiver, in respect of
the interests of the Lessar of any provision in any such insurance policies with respect to
any breach or violation of any warranties, representations, deGarations or conditions
contained in such policies:
6.3 Evidence of Policies
The Lessee shall provide to the Lessor for acceptance prior to the earlier of the
Commencement Date and the date it occupies the Demised Premises for any purpose,
evidence satisfactory to the Lessor's Administrator of such insurance or, if required by the
Lessor's Administrator, 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 Lessor or upon the placement, renewal, amendment or extension of all or any part of
such insurance, the Lessee shall immediately provide to the Lessor evidence of such
insurance in and completed in accordance with the Lessor standard form of certificate of
insurance or, if required by the Lessor's Administrator, 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.
6.4 Failure to Provide Insurance
The cost or premium for each and every such policy shall be paid by the Lessee prior to the
due date therefore. 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 Administrator
(and if the Lessee fails td 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 therefore, then the Lessor shall have the right, but not the obligation, to do so, to
pay the cost or premium therefore, 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 as Additional Rent.
6.5 Indemnity
Notwithstanding any other provision of this Lease and Licence, the Lessee shall indemnify
the Lessor and all of its agents, officers, employees, contractors, consultants, workers and
persons for whom the Lessor is in law responsible (collectively in this Section 6.5 and in
Section 6.6 called "Lessor's Employees") and shall hold them and each of them harmless
from and against any and all liabilities, actions, proceeding, damages, claims, losses
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(including, without limitation, indirect or consequential damages that may be suffered or
sustained by the Lessor or any of the Lessor's Employees and loss of Rent and all other
amounts payable by thee. Lessee under this Lease) and expenses (including, without
limitation, all legal fees and disbursements) that is not caused by the negligence of the
Lessor or any person fq!r whose acts or omissions the Lessor is responsible in law,
whatsoever, howsoever arising from or out of this Lease, and 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:
(i) any breach or default by the Lessee of or under any of the provisions of this Lease;
(ii) any lien under the Construction Lien Act, R.S.O. 1990, c.30 as amended from time
to time respecting the Demised Premises or an area which is part of the Licenced
Areas or the lands included in the Premises;
(iii) any act or omission of the Lessee or any other person on or permitted on the
Demised Premises, or any use or occupancy of, or any articles in, the Demised
Premises or any part thereof, or any use or occupancy of any other part of the
Building or the Lands by the Lessee or any of its agents, employees, invitees,
licensees, sub-Lessees, assignees, concessionaires, contractors or persons for
whom the Lessee is in law responsible (collectively in this Section 6.3 and in Section
6.4 called "Lessee's Employees");
(iv) any act or omission of the Lessee or any of the Lessee's Employees on the Demised
Premises or elsewhere in, on or about the Demised Premises or any part thereof;
(v) 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 Lessee or any of the Lessee's employees or any other
persons in, on or about the Building or the Premises or any part thereof by or with
the invitation, licence or consent of the Lessee and or (II) which is excluded from the
Lessor's liability' or responsibility under Section 6.6(b);
(vi) any accident or occurrence in, on or at the Demised 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 provided that the accident
or occurrence does not result from the negligence of the Lessor or an act or
omission by any person for whom the Lessor is responsible in law; and/or
(vii) any damage, destrjuction or need of repair or replacement to any part of, or .otherwise
relating to, the Demised Premises or any other part of the Building, or any damages
incurred by the. Lessor or by any occupant of the Building or any part thereof, caused
by any act or omission of the Lessee or any of the Lessee's Employees,
notwithstanding any other provisions of this Lease.
If the Lessor, without fault on its part, is made a party to litigation commenced by or against
the Lessee, the Lessee Shall indemnify and hold harmless the Lessor from and against all
legal and other costs. Thle Lessor, 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 Lessee is required to indemnify the Lessor under this lease. Alternatively, the
Lessor may require the Lessee to assume carriage of and responsibility for all or any part of
such litigation or discussions. The Lessee shall pay all legal costs incurred or paid by the
Lessor in enforcing the provisions of this lease. For greater certainty the Lessee's
obligations contained in this Section 6.5 shall survive the expiration or earlier termination of
the Term and any extension or renewal thereof.
6.6 Responsibility for Loss or Damage
The provisions of this Section 6.6 shall govern notwithstanding any other provision of this -
Lease and Licence.
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Lease and Licence
(a) Except where the Lessor or a person for whose acts or omissions he is responsible
in law is negligent, the Lessor shall not be liable for any death or injury arising from or out of
any occurrence whatsoever in, upon, at or relating to the Demised Premises, or the
Premises, or damage to property of the Lessee or of others located on the Demised
Premises or the Premise, from any cause whatsoever other than the negligence of the
Lessor or a person for whoose acts or omissions the Lessor is responsible in law, nor shall
the Lessor be responsibl'~ for any loss of or damage to any property of the Lessee,
Lessee's Employees; or others from any cause whatsoever, nor shall the Lessor be
responsible for any indirect or consequential damages that may be suffered or sustained by
the Lessee or any others from any cause whatsoever.
(b) Without limiting the generality of the foregoing, the Lessor. 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, except where it is caused by the Lessor's
negligence or the negligence of any person for whose acts or omissions the Lessor is
responsible in law: (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 Demised Premises or area which is part of the Licenced Areas 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 Demised Premises or any area which is part of the Licenced
Areas, 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, the electrical system, the plumbing system, the HVAC
System, utilities or any services within or serving the Demised Premises or any area which
is part of the Licenced Areas, Equipment and Equipment; (iii) delays in the performance of
any repairs, replacements, maintenance or restoration for which the Lessor is responsible
under this Lease and Licence; (iv) incurred by reason of the Lessor or any of the Lessor's
Employees entering upon the Demised 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 janitorial, pest extermination or security obligations or
services in any part of the Demised Premises; or (vi) by reason of inconvenience,
annoyance or injury to business arising from the Lessor, the Lessee or any others making
or failing to diligently make, for whatever reason or cause, any repairs, alterations,
additions, renovations, irttprovements or restorations in or to any part of the Demised
Premises or any area which is part of the Licenced Areas.
(c) .The Lessor shall not be liable or responsible in any way for any such death, injury,
loss or damage caused 'by other Lessees, occupants or persons on or in the Demised
Premises, the Premises, or .any area which is part of the Licenced Areas or by any
occupants of any adjacent property thereto.
(d) All property of the Lessee or of any of the Lessee's Employees kept or stored on the
Demised Premises shall be so kept or stored at the sole risk of the Lessee, and the Lessee
releases and agrees to indemnify the Lessor and save it harmless from and against any
claims arising out of anyl loss of or damage to such property, including, without limitation,
any subrogation claims by the Lessee's or any others' insurers, and the Lessee 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 Lessee under this Lease and Licence.
6.T Benefit of Indemnity. etc.
Every indemnity, hold harmless provision, release and exclusion of liability herein contained
for the benefit of the Lessor and every waiver of subrogation for the benefit of the Lessor
contained in any insurance policy maintained by the Lessee shall survive the expiration or
earlier termination of the Term and any extension or renewal thereof and shall extend to
and benefit the Lessor, its officers, employees and those for whom such persons are
responsible in law. Solely for such purpose, and to the extent that the Lessor expressly
chooses to enforce the benefit of this Section for any or all of such persons, it is agreed that
the Lessor is the agent. or trustee for such persons. No such indemnity, hold harmless
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Lease and Licence
provision, release or exclusion of liability or waiver of subrogation for the benefit of the
Lessor shall be deemed to impose or imply any obligation, responsibility or liability
whatsoever on the Lessor, 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 Lessor
is expressly provided for udder this Lease.
6.8 Dangerous Use
The Lessee shall not do, omit or permit anything which will increase the cost of the Lessor's
insurance or render any insurance on or relating to the Premises subject to cancellation.
The Lessee shall pay to the Lessor forthwith after written notice is given of the Lessor's
demand for payment, the amount of any increase in the cost of insurance caused by
anything so done, omitted or permitted.
ARTICLE SEVEN
DAMAGE AND DESTRUCTION
7.1 Damaae to Demised Premises or Licenced Area
If the Demised Premises or the Licenced Areas or any part thereof is damaged or
destroyed, in whole or in part, by fire or any other occurrence, then (i) this Lease and
Licence 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 Lessor of any
insurance proceeds, and notwithstanding any provision of this Lease and Licence or
obligation or requirement at law, in equity or by statute to the contrary, the obligations of the
Lessor to repair or to provide services or utilities, if any, or to perform "Restoration" (as
hereafter defined) under this Lease and Licence shall be subject to the provisions of this
Article, and shall be limited to the extent to which the Lessor is required to be insured under
this Lease and Licence or is otherwise insured.
7.2 Insured Damage to or Destruction of Demised Premises or Licenced Area
If damage to or destruction of the Demised Premises or any area which is part of the
Licenced Areas is caused by an occurrence against which, and to not more than the extent
that the Lessor is otherwise insured (the "Insured Damage"), and if (i) in the "Architect's" (as
hereafter defined) 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 Lessee's use and occupancy and
the Restoration of the Demised Premises is not capable of being completed with reasonable
diligence within one hundred and eighty (180) days following such occurrence, or (ii) any
authority, requires that the Demised Premises be demolished or substantially demolished
prior to any Restoration, then the Lessor may elect to terminate this Lease and Licence by
giving written notice to the Lessee within sixty (60) days after such occurrence. If the Lessor
does not so elect to terminate this Lease and Licence, the Lessor shall diligently perform
the Restoration of the Demised Premises to the extent of its obligations pursuant to Section
7.6.
7.3 Uninsured Damaae to Demised Premises or Licenced Area
If there is damage to or destruction of the Demised Premises or any area which is part of
the Licenced Areas, and, in the Architect's opinion, (i) such damage or destruction is
caused by an occurrence against which the Lessor is not insured or required to insure or
the cost of Restoration of which would be in excess of the extent to which the Lessor is
required to insure pursuant hereto or is otherwise insured or (ii) the Restoration of the
Demised 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 Term of this Lease and Licence or any extension or
renewal thereof and either there are no remaining rights in any party hereto to extend or
renew this Lease and Licence or any party having the right to extend or renew this Lease
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Lease and Licence
and Licence fails to do so within fifteen (15) days after such occurrence, then the Lessor
may elect to terminate this Lease and Licence by giving written notice to the Lessee within
thirty (30) days after such occurrence. If the Lessor does not so elect to terminate this
Lease and Licence, the Lessor shall diligently perform the Restoration of the Demised
Premises to the extent of its obligations pursuant to Section 7.6.
7.4 Termination of Lease and Licence After Destruction or Damage to Demised
Premises
If (i) in the Architect's opinion, Restoration of any portion of the Demised Premises or any
area which is part of the Licenced Areas which affects access or services essential to any of
them 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 Demised Premises or any area which is part of the Licenced
Areas be demolished or substantially demolished prior to any Restoration following damage
or destruction to the Demised Premises or any area which is part of the Licenced Areas or
any part thereof, in any succh case whether such damage or destruction is a director in direct
result of any occurrence cff cause whatsoever, whether or not such occurrence or cause is
insured, and whether or not there is any damage to or destruction of the Demised Premises
or any area which is part of the Licenced Areas then the Lessor may elect to terminate this
Lease and Licence by giving written notice to the Lessee within sixty (60) days after such
cause or occurrence. If the Lessor does not so elect to terminate this Lease and Licence,
subject to Sections 7.2 and 7.3, the Lessor shall diligently perform the Restoration of the
Demised Premises and area which is part of the Licenced Areas to the extent of its
obligations pursuant to Suction 7.6.
7.5 Actions Following Termination
If the Lessor elects to terminate this Lease and Licence under this Article by giving written
notice to the Lessee, then, notwithstanding the receipt by the Lessor of any insurance
proceeds, (i) this Lease and Licence shall terminate on the date that such notice is given,
(ii) the Lessee shall immediately vacate and surrender possession of the Demised
Premises and (iii) all Rent accrued to such termination date shall be apportioned and
promptly paid without any right of the Lessee to any abatement, deduction, counterclaim,
set-off, compensation or reduction whatsoever
7.6 Restoration of Demised Premises and Licenced Areas If lease Not Terminated
If this Lease and Licenc$ is not terminated as provided in this Article, the Lessor, to the
extent of the insurance proceeds which the Lessor receives or would have received if it had
maintained such insurance as is required to be maintained by the Lessor hereunder, shall
proceed to perform such Restoration of the Demised Premises and any area which is part
of the Licenced Areas limited to the extent of its express obligations under this Lease and
Licence.
The obligation of the Lessor with respect to Restoration following any damage or destruction
under this Article shall be performed in accordance with all applicable obligations contained
herein with reasonable diligence.
7.7 Restoration and Insurance Proceeds
(a) If there is damage or destruction to the Demised Premises, to any area which is part
of the Licenced Areas, and if this Lease and Licence is not terminated pursuant to this
Article, the Lessor, in performing the restoration of the same, or any part thereof, as
required hereby, shall not be obliged to perform such Restoration in accordance with the
plans, drawings or specfications for the Building as defined in the Lease, or any part
thereof, as they existed prior to such damage or destruction, but the Less or may perform
such Restoration in accordance with any plans, drawings and specifications chosen by the
Municipality of Clarington under the Lease in its sole discretion. Without limiting the
generality of the foregoing, the Lessee agrees that the Lessor shall be entitled to demolish
and rebuild the Building, or any part thereof.
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Lease and Licence
(b) The proceeds of insurance, which is required to be maintained by the Lessee and
which insurance is required to name the Lessor as an additional insured shall be and are
hereby assigned and made payable to the Lessor. If the Lessee receives any such
insurance proceeds, the Lessee shall receive and hold such proceeds in trust for the Lessor
and shall promptly deliver, them to the Lessor. If such proceeds shall have been paid to the
Lessor: (A) if this Lease find Licence has not been terminated pursuant to this Article 7, any
surplus remaining after the costs of completion of the Restoration of the Building has been
paid, shall be paid to the Lessee to the extent that such surplus does not exceed the value
of any Lessee's fixtures or personal property on the Premises and to the extent that such
surplus is not required to discharge any debt owed by the Lessee to the Lessor or to
remedy any default of the Lessee under this Lease and Licence; .and (B) if this Lease and
Licence has been terminated pursuant to this Article 7 such proceeds shall be paid to the
Lessee to the extent that they do not exceed the value of any Lessee's fixtures or personal
property on the Premises and such proceeds are not required to discharge any debt owed
by the Lessee to Lessor or to remedy any default of the Lessee under this Lease and
Licence.
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 portion of the Demised Premises or area which is part of the
Licenced Areas is 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 his sole discretion, such
determination to be final and binding on the parties hereto.
7.9 Limitation of Liability
Notwithstanding any othef provision of this Lease and Licence, the Lessor 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 Lessee), of the
Lessee or its employees, customers, suppliers, sub-Lessees, licensees or other persons
dealing directly or indirectly with the Lessee or for whom the Lessee is in law responsible
arising out of the failure for any cause whatsoever of the Lessor or others to pertorm or
complete Restoration, or any part thereof, within any period of time following the occurrence
of damage or destruction: contemplated by this Article, and the Lessee shall. indemnify and
save harmless the Lessor from and against all such damages.
ARTICLE EIGHT
ASSIGNMENT. LEASE AND LICENCE
8.1 Consent Required
The Lessee shall not assign this Lease and Licence, or sub-let, or licence any person to
use the whole or any portion of the Demised Premises or any area which is part of the
Licenced Areas without ~irst obtaining the consent of the Lessor, which consent may be
unreasonably withheld.
ARTICLE NINE
DEFAULT
9.1 Events of Default
(a) The occurrence of any of the following events ("Events of Default") shall be deemed a
default ("Default') under this Lease and Licence if and whenever:
(i) the Lessee fails to pay any Rent promptly when due, provided that the Lessor first
gives the Lessee thirty (30) days written notice of any such failure and the
default is not remedied on or before the end of such period;
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Lease and Licence
(ii) the Lessee fails to observe or perform any other term, covenant, condition, or
obligation under this Lease and Licence that is capable of remedy, other than
a default in payment of Rent, and such default remains unremedied after
thirty (30) days following written notice given by the Lessor to the Lessee
specifying such default and requiring the Lessee to remedy the same,
provided that if the Lessee has taken substantive steps to remedy the default
within such thirty (30) day period and is proceeding in good faith to complete
remedying the default as quickly as is reasonably practicable, such period
shall be deemed to expire one (I) day after the default has been remedied;
(iii) the Lessee fails to observe and perform any other term, covenant, condition
or obligation under this Lease and Licence that is not capable of remedy;
(iv) the Lessee makes an assignment for the benefit of its creditors generally, or if
the Lessee is declared bankrupt or insolvent, or if a petition in bankruptcy is
filed against the Lessee, or if the Lessee 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 Lessee's property, or if any steps are
taken or any action or proceedings are instituted by the Lessee or by any
other party including, without limitation, any court or governmental body of
competent jurisdiction for the dissolution: winding-up, discharged or
abandoned; and
(v) the Demised Premises become and remain vacant for a period of fourteen
(14) consecutive days.
9.2 Right of Re-Entry
Without derogating from the provisions of this Lease and Licence, upon a Default occurring,
at the option of the Lessor, the Lessor, 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 Demised Premises without thereby terminating this Lease and Licence
and remove and sell the Lessee's goods, chattels, equipment and Lessee's fixtures there
from, any rule of law or equity to the contrary notwithstanding. The Lessor may seize and
sell such. goods, chattels, equipment and Lessee's fixtures of the Lessee as are in the
Demised Premises and may apply the proceeds thereof to all rent and other payments to
which the Lessor is then entitled under this Lease and Licence, Any such sale may be
effected in the discretion',of the Lessor by public auction or otherwise, and either in bulk or
by individual item, or partly by one means and partly by another, all as the Lessor in its sole
discretion may decide.
9.3 Leaal Exaenses to Recover Possession
If legal action is brought for recovery of possession of the Demised Premises, for the
recovery of Rent, or any other amount due under this Lease and Licence, or because of the
breach of any other terrtis, covenants or conditions herein contained on the part of the
Lessee to be kept or performed, and a breach is established, the Lessee shall pay to the
Lessor all reasonable expenses incurred therefore, including a solicitor's fee (on a solicitor
and his client basis), unless a Court shall otherwise award.
9.4 Right of Termination
In addition to all rights and remedies of the Lessor available to it by any provisions of this
Lease and Licence or given by law to the Lessor, the Lessee agrees that upon a Default
occurring, the Lessor shall have the right to terminate this Lease and Licence by giving
notice in writing to the Lessee. Upon such notice being given, this Lease and Licence shall
terminate immediately without the necessity of any legal proceeding whatsoever. The
Lessee shall thereupon within three (3) days after the notice is given quit and surrender the
Demised Premises and the areas which are part of the Licensed Areas to the Lessor, and
the Lessor, its agents, contractors and employees shall have the right to enter the Demised
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Lease and Licence
Premises and dispossess the Lessee and remove any persons or property therefrom
without the necessity of legal proceeding whatsoever and without being liable to the Lessee
therefore in damages, or otherwise.
9.5 Right to Re-let
If the Lessor re-enters pursuant to the provisions of either his Lease and Licence or any
applicable law, the Lessor, without limiting its right to recover damages, may either
terminate this Lease and Licence, or the Lessor may from time to time without terminating
the Lessee's obligations .under this Lease and Licence, make any alterations and repairs
considered necessary by the Lessor to facilitate a reletting and relet the Demised Premises
or any part thereof as agent of the Lessee for such term or terms and at such rental or
rentals and upon such other terms and conditions as the Lessor in its reasonable discretion
considers advisable. Upon each reletting, all rent and other moneys received by the Lessor
from the reletting will be applied (i) to the payment of indebtedness other than Rent due
hereunder from the Lessee to the Lessor (ii) to the payment of costs and expenses of there
letting including brokerage fees, legal fees and costs of the alterations and repairs and (iii)
to the payment of Rent dwe and unpaid hereunder. The residue, if any, will be held by the
Lessor and applied in payment of future rent as it becomes due and payable. If the rent
received from the reletting is less than the Rent to be paid by the Lessee, the Lessee shall
pay the deficiency to the Lessor. No re-entry by the Lessor shall be construed as an election
on its part to terminate this Lease and Licence unless a written notice of that intention is
given to the Lessee. Despite a reletting without termination, the Lessor may elect at any
time to terminate this Lease and Licence for a previous breach:
9.6 Separate Remedies
The Lessor may from time to time resort to any or all of the rights and remedies available to
it upon a Default occurring, either by any provision of this Lease and. Licence or by statute
or by the general law, each of such rights and remedies being intended to be cumulative
and not alternative and each may be exercised generally or in combination.
ARTICLE TEN
EXTENSION OR RENEWAL
10.1 Option to Extend pr Renew Lease and Licence
If the Lessee punctually pays the Rent reserved hereby and all other moneys required to be
paid by the Lessee or to any person by this Lease and Licence, fully performs all of its
covenants and duties in accordance with the provisions of this Lease and Licence, and no
Default has occurred during the Term, not later than two (2) months prior to the date of
termination of this Lease and Licence, the Lessee and the Lessor may negotiate an
extension or renewal of this Lease and Licence for a further term.
ARTICLE ELEVEN
GENERAL PROVISIONS
11.1 Definitions
(a) "Architect" means the architect from time to time designated or employed by the
Municipality under the Lease.
(b) "Building" has the meaning assigned to it in Recital "A "of this Lease and Licence.
(c) "Commencement Date" has the meaning assigned to it in Section 1.3 of this Lease
and Licence.
(d) "Demised Premises" has the meaning assigned to it in Recital "E" of this Lease and
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Licence.
(e) "HVAC System" means the heating, ventilation, air-conditioning and other climate
control equipment, facilities and systems serving the Building as defined in the Lease
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.
(f) "Insured Damage" has the meaning assigned to it in Section 7.2 of this Lease and
Licence.
(g) "Lease" has the meaning assigned to it in Recital "A" of this Lease and Licence.
(h) "Licenced Areas" has the meaning assigned to it in Recital "C" of this Lease and
Licence.
(i) "Municipality" means The Corporation of the Municipality of Clarington.
Q) "Premises" has the'meaning assigned to it in Recital "A" of this Lease and Licence.
(k) "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.
(I) "Restoration" means the repairing, replacing, altering, demolishing or rebuilding of all
or any part of the Demised Premises and areas included in the Licenced Areas.
(m) "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 theTenant 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.
(n) "Term" has the meaning assigned to it in Section 1.3 of this Lease and Licence.
(o) "Lessor's EmployeBs" has the meaning assigned to it by Section 6.5 of the Lease
and Licence.
11.2 Schedules Form Part of Lease and Licence
Schedule "A" is deemed to be contained in and form part of this Lease and Licence to have
the same effect as it would have if their provisions had been set out as covenants in the text
of this Lease and Licence.
11.3 Quiet Eniovment
Except as otherwise provided in this Lease and Licence, if the Lessee pays the Rent
reserved hereby, fully performs all of its covenants and duties under this Lease and Licence
and no Event of Default has occurred, the Lessee shall be entitled to peaceful and quiet
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enjoyment of the Demised Premises for the Term of this Lease and Licence or any
extension or renewal thereof, without interruption or interference by the Lessor or any
person claiming through the Lessor.
11.4 Covenants
Every obligation or duty of the Lessor or the Lessee expressed in this Lease and Licence
although not expressed as a covenant, shall be deemed to be a covenant for all purposes.
11.5 No Partnership or Agency
The Lessor does not in any way or for any purpose become a partner of the Lessee in the
conduct of its business, or othewise, or a joint venturer or a member of a joint enterprise
with the Lessee, nor is the relationship of principal and agent created by this Lease and
Licence.
11.6 PST and GST
Without derogating from any other provision of this Lease and Licence, the Lessee shall be
responsible for the payment of Sales Taxes and Goods and Services Tax where applicable
in respect of and in addition to the Rent required to be paid by the Lessee to the Lessor
under this Lease and Licence, as well as in respect of goods and services sold by the
Lessee or any person claiming or acting through, under or with the permission of the
Lessee.
11.7 Overholdinp No Tacit Renewal
If the Lessee remains in possession of the Premises after the end of the Term with the
Consent of the Lessor but!without having executed and delivered a new Lease and Licence,
there is no tacit renewal of this Lease and Licence and the Term hereby granted,
notwithstanding any statutory provisions or legal presumption to the contrary, and the
Lessee shall be deemed to be occupying the Demised Premises as a Lessee from month to
month at a monthly Rent payable in advance on the first day of each month equal to the
aggregate of the following: (a) one-twelfth (1112 th) of the amount of the Rent payable by
the Lessee in the last full twelve (12) month Rental Year of the Term; and otherwise, upon
the same terms, covenants and conditions as are set forth in this Lease and Licence, so far
as these are applicable to a monthly tenancy.
11.8 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 Lessee's fixtures 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 Lessee or if a
distress is made bey the Lessor or if any action is brought to test the right of the
Lessor to levy upon any such goods as are so exempted, this Lease and Licence
may be pleaded as' an estoppel against the Lessee, the Lessee hereby waiving each
and every benefit that could or might have accrued to the Lessee under and by virtue
of any such statute but for this Lease and Licence.
(b) Failure of the Lessor to insist upon the performance of any such covenant or
condition of this Lease and Licence or to exercise any right or option contained in
this Lease and Licence shall not be construed as a waiver or relinquishment of any
such covenant, condition, right or option or of any subsequent breach of the same.
No variation' or waiver of any covenant or condition of this Lease and Licence shall
be valid unless in writing and signed by duly authorized persons on behalf of the
Lessor.
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(c) All Rent to be paid by the Lessee to the Lessor shall be paid without any deduction,
abatement, set-off or compensation whatsoever.
11.9 Distress
Notwithstanding any provision of this lease or any provision of applicable legislation, none of
the goods and chattels of the Lessee on the Premises at any time during the Term of this
Lease and Licence and any extension or renewal thereof shall be exempt from levy by
distress for Rent in arrears, and the Lessee waives any such exemption. If the Lessor
makes any claim against the goods and chattels of the Lessee by way of distress, this
provision may be pleaded as an estoppel against the Lessee in any action brought to test
the right of the Lessor to levy such distress.
11.10 Costs
The Lessee shall .pay to the Lessor all damages and costs (including, without limitation, all
legal fees on a solicitor and its client basis) incurred by the Lessor in enforcing the terms of
this Lease, or with respect to any matter or thing which is the obligation of the Lessee under
this Lease, or in respect of which the Lessee has agreed to insure or to indemnify the
Lessor as Additional Rent.
11.11 Set-Off and Accord, and Satisfaction
The Lessee 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 ahd 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 Lessor of full payment, or an accord and satisfaction, and the
Lessor may accept and cash any such cheque or payment without prejudice to the Lessor'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 Lessor may apply or allocate any sums
received from or due to the Lessee against any amounts due and payable under this Lease
and Licence in such manner as the Lessor sees fit.
11.12 Authority of Lessor, etc.
The Lessee acknowledges and agrees that the Lessor shall not be responsible for any
debts incurred by the Lessee or by any person for whose conduct the Lessee is responsible
in law. The Lessee shall not represent or suffer or permit anyone to represent to any person
that either Lease and Licence -19 the Lessor or the Municipality of Clarington will be
responsible for payment of any debt incurred or to be incurred by the Lessee.
11.13 Rules Reparding Oaeration of Demised Premises and Licenced Areas
The Municipality's Property Manager from time to time may give the Lessor and the Lessee
written notice of rules regarding the operation of the Demised Premises and Licenced Areas
which rules shall be deemed to be part of this Lease and Licence. Such rules shall be
complied with by the Lessee during the Term of this Lease and Licence and any extension
or renewal thereof.
11.14 Demised Premises and Areas to be Smoke-Free
The Lessee shall not permit or suffer any person to smoke a tobacco product anywhere in
the Building.
11.15 Use of Additional Areas by the Lessee
The parties acknowledge and agree that if the Lessee desires to licence any other area,
facilities and equipment than that included in the Licenced Areas, any such licence shall be
PAGE 20
Lease and Licence
Lease and Licence
in the discretion of the Lessor and the Lessee shall be required to pay to the Lessor the
Lessor's then current charges to any other person who licences the same from the Lessor.
11.16 Lease Subject to Lease
Notwithstanding any provision of this Lease and Licence, the parties acknowledge and
agree that this Lease and Licence shall terminate on the termination of the Lease.
11.17 Notices
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 and
Licence such notice shall be transmitted by telefax, mailed by first class prepaid post or
delivered to:
The Lessor: The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario
LIC 3A6
Attention: Purchasing Manager
If by telecopier to: (905) 623-3379
The Lessee: Community Care ~oil..n+ '~ ~'
26 Beech Avenue ~ r~
Bowmanville, Ontario
LIC 3A6
Attention: Administrator
If by telecopier to: (905) 623-2604
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 Licence 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.
11.18 Force Maieure
Notwithstanding anything to the contrary contained in this Lease and Licence, if the Lessee
is bona fide delayed or hindered in or prevented from the performance of any term,
covenant or act required hereunder by reason of strikes; labour troubles; inability to procure
materials or services; power failure; restrictive governmental laws or regulations; riots;
insurrection; sabotage; rebellion; war; act of God; or other reason whether of a like nature or
not which is not the fault of the Lessee, then performance of such term, covenant or act is
excused for the period of the delay. and the Lessee shall be entitled to perform such term,
covenant or act within the appropriate time period after the expiration of the period of such
delay. However, the provisions of this paragraph do not operate to excuse the Lessee from
the prompt payment of Re~ht or any other payments required by this Lease and Licence.
11.19 Time of Essence
Time shall be of the essence in all respects of this Lease and Licence and every part
hereof.
PAGE 21
Lease and Licence
Lease and Licence
11.20 Enforceability
If any term, covenant or condition of this Lease and Licence or the application thereof to any
person or circumstance is to any extent held or rendered invalid, unenforceable or illegal,
the remainder of this Luse and Licence or the application of such term, covenant or
condition 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.
11.21 Enurement
This Lease and Licence shall enure to the benefit of and be binding upon the parties hereto,
their successors and assigns, provided that no rights shall enure to the benefit of an
assignee of this Lease and Licence or a Lessee of any portion of the Premises unless the
provisions of Section 8.1 are complied with.
11.22 Governing Law
This Lease and Licence shall be interpreted, governed and enforced in accordance with the
laws of the Province of Ontario, Canada.
IN WITNESS WHEREOI= the Landlord and the Tenant have duly executed and
unconditionally delivered this Lease as of the date first above written.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By:
And:
COMMUNITY CARE DURHAM
By: ~-
Bre Farr, Executive Director
And: ~'O' _ ./~"~'
Barbara Murcott, irector
Finance & Administrations
PAGE 22
Lease and Licence
Lease and Licence
SCHEDULE "A"
PAGE 23
.,
Lease and Licence
Lease and Licence
"FLOOR PLANS"
PAGE 24
. Lease and Licence
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Lease and Licence
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PAGE 24