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HomeMy WebLinkAbout2010-101THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2010-101 Being a By-law to authorize the execution by the Mayor and Clerk of an Agreement between the Corporation of the Municipality of Clarington and the Durham Central Agricultural Society for the use of designated lands. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, an agreement with Durham Central Agricultural Society to implement the recommendations contained in Report COD-047-10; 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 12th day of July, 2010. By-law read a third time and finally passed this 12"' day of July, 2010. J •%-_iz ;/1Vluniripal Clerk LEASE AGREEMENT THIS. LEASE is made as of the 3`d day of September, 2010 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Municipality") -and - THE DURHAM CENTRAL AGRICULTURAL SOCIETY (the "Tenant") ARTICLE I -INTERPRETATION Definitions In this Lease, (a) "Commencement Date" means September 3rd, 2010; (b) "Lease" means this lease as it may be amended from time to time; (c) "Premises" means the Municipality-owned lands legally described as Part of Lots 27 and 28, Concession 5 designated as Parts 1 and 3 on Plan 10R-318, in the Municipality of Clarington, Regional Municipality of Durham; and (d) "Term" means the term of this Lease as set out in Section 10. Headings 2. The division of this Lease into articles, sections, subsections and schedules and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Lease. Severability 3. All of the provisions of this Lease are to be construed as covenants even where not expressed as such. If any such provision is held to be or rendered invalid, unenforceable or illegal, then it shall be considered separate and severable from this Lease and the remaining provisions of this Lease shall remain in force. Number 4. Wherever a word importing the singular number only is used in this Lease, such word shall include the plural. Words importing either gender or firms or corporations shall include the other gender and individuals, firms or corporation where the context so requires. z Governing Law 5. This Lease shall be governed by, and interpreted and enforced in accordance with, the laws in force in the Province of Ontario. Entire Agreement 6. This Lease constitutes the entire agreement between the parties concerning the Premises and may only be amended or supplemented by an agreement in writing signed by both parties. ARTICLE II -GRANT AND USE Grant 7. In consideration of the performance by the Tenant of its obligations under this Lease, the Municipality leases to the Tenant the Premises for the Term and covenants to observe and perform all of the covenants and obligations to be observed and performed by the Municipality under this Lease. Inconsideration of the performance by the Municipality of its obligations under this Lease, the Tenant takes the Premises on lease from the Municipality and covenants to pay the rent and to observe and perform all other covenants to be observed and performed by the Tenant under this Lease. Use of Premises 8. The Premises shall be used only for the fairground purposes and for no other purpose without the prior written consent of the Municipality. Nuisance 9. The Tenant shall not carryon any business or do or suffer any act or thing that constitutes a nuisance or which is offensive or an annoyance to the Municipality. ARTICLE III -TERM Term 10. The term of this Lease shall commence on the Commencement Date and shall expire on the same day that the term of the lease between the parties dated October 3, 1977 expires (August 31, 2012 unless renewed in accordance with its terms). Overholding 11. If the Tenant remains in possession of the Premises after the expiry of the Term, there shall be no tacit renewal of this Lease or the Term, notwithstanding statutory provisions or legal presumption to the contrary, and the Tenant shall be deemed to be occupying the Premises as a tenant from month to month and otherwise upon the same terms, covenants and conditions as are set forth in this Lease insofar as they are applicable to a monthly tenancy. 3 ARTICLE IV -RENT Rent 12. The Tenant shall pay to the Municipality as rent the sum of ONE Dollar ($1.00) per annum. 13. The Tenant shall pay all charges, impositions and outlays of every nature and kind relating to the Premises except as expressly set out in this Lease. Property Taxes 14. The Tenant shall pay all real estate taxes, general taxes, school taxes, levies, rates, duties, assessments and charges imposed against the Premises by municipal or other governmental authorities having jurisdiction. 15. The Tenant has the right to contest or review the assessment of the Premises for property taxes by legal proceedings or in such manner as the Tenant in its opinion deems advisable. Any proceedings or other steps taken by the Tenant, if instituted, shall be conducted at its own expense. ARTICLE V -MAINTENANCE, REPAIRS AND ALTERATIONS Maintenance and Repair of Premises 16. The Tenant, at its sole cost and expense, shall maintain and keep the Premises in a good and substantial state of repair. Alterationsllmprovements to Premises 17. The Tenant shall only be permitted to make alterations and improvements as are agreed to by the Municipality. The Municipality hereby agrees to allow the Tenant, at its cost, to construct a fence around the perimeter of the Premises provided that the southern boundary of the Premises remains open to allow access for the Municipality's road maintenance vehicles. 18. The Tenant must at all times .provide and maintain vehicle access to the outlet along the Hwy 35/115 fence for emergency vehicle access. Removal of Improvements 19. The Tenant shall, unless specifically requested by the Municipality not to do so, remove all improvements that it has installed on the Premises and shall restore the Premises, as nearly as possible, to the state they were in before such improvements were made. ARTICLE VI INSURANCE AND INDEMNITY Tenant's Insurance 20. The Tenant, at its sole cost and expense, shall take out and maintain, (a) insurance upon property owned by it which is located in the Premises; and (b) commercial general liability insurance pertaining to the Tenant's liability to others iri respect of injury, death or damage to property occurring upon, in or about the Premises, such insurance to be of an amount which is reasonable and sufficient having regard to the scope of the risk and the current practice of prudent owners of similar premises for the carrying on of similar businesses, but in any event in an amount not less than five million dollars ($5,000,000.00) for claims arising out of one occurrence. Such policy shall also name the Municipality as an additional insured and may not be cancelled unless prior notice by registered letter has been given to the Municipality by the insurer 30 days in advance of the expiry date. 21. Prior to the Commencement Date, the Tenant shall file with the Municipality a Certificate of Insurance in a form satisfactory to the Municipality's Treasurerverifying thatthe commercial general liability insurance policy is in effect and setting out the essential terms and conditions of the insurance. 22. The provision of the insurance policy required by this section shall not relieve the Tenant from liability for claims not covered by the policy or which exceed its limits, if any, for which the Tenant may be held responsible. Insurance Risks 23. The Tenant shall not do, omit to do, or permit to be done or omitted to be done upon the Premises anything that may contravene or be prohibited by any of the Municipality's insurance policies in force from time to time covering or relevant to any part of the Premises or which would prevent the Municipality from procuring its policies with companies acceptable to the Municipality. If the occupancy of the Premises, the conduct of business in the Premises or any acts or omissions of the Tenant on the Premises causes or results in any increase in premiums for any of the Municipality's insurance policies, the Tenant shall pay such increase to the Municipality. Indemnification 24. Each of the Municipality and the Tenant shall indemnify and save harmless the other from and against any and all actions, losses, damages, claims, costs and expenses (including solicitors' fees on a solicitor and client basis) to which the party being indemnified shall or may become liable by reason of any breach, violation or non-performance by the party so indemnifying of any covenant, term or provision of this. Lease or by reason of any damage, injury or death occasioned to or suffered by any person or persons including the Municipality or the Tenant, as the case maybe, or any property by reason of any wrongful act, neglect or default on the part of the party so indemnifying or any of those persons for whom it is in law responsible. For greater certainty, the limitation of liability set out above in this section does not extend to claims, losses or damages resulting in whole or in part from the gross negligence or wilful misconduct of the party claiming indemnification, its employees or those for whom it is in law responsible. ARTICLE VII -REMEDIES ON DEFAULT Municipality's Right to Remedy Default 25. In addition to all other remedies the Municipality may have under this Lease and in law, if the Tenant is in default of any of its obligations under this Lease, and such default has continued for a period often (10) days after receipt of notice by the Tenant (or such longer period as may be reasonably required in the circumstances to cure such default, except in an emergency where the Municipality will not be required to give notice), the Municipality, without prejudice to any other rights which it may have with respect to such default, may remedy such default and the Tenant shall be responsible for all such costs. Waiver 26. No condoning, excusing or overlooking by the Municipality of any default, breach or non-observance by the Tenant at any time or times in respect of any covenant, obligation or agreement under this Lease shall operate as a waiver of the Municipality's rights hereunder in respect of any continuing or subsequent default, breach ornon-observance, or so as to defeat or affect in any way the rights of the Municipality in respect of any such continuing or subsequent default or breach, and no waiver shall be inferred from or implied by anything done or omitted by the Tenant save only an express waiver in writing. ARTICLE VIII -MISCELLANEOUS Access 27. The Tenant acknowledges that the Municipality may wish to grant permission (on terms established by the Municipality) to the owner (currently Dave Lewis) of the property municipally known as 19 Rowe Street, Orono to travel across the Premises for the sole purpose of gaining access to the septic system located in the rear yard of such property at such time or times as may be reasonably required. The Tenant agrees not to object to the Municipality granting such permission provided it does not interfere with the Tenant's reasonable use and enjoyment of the Premises. Quiet Enjoyment 28. The Municipality shall permit the Tenant to peaceably possess and enjoy the Premises during the Term without any interference from the Municipality, or any person lawfully claiming by, from or under the Municipality provided the Tenant is not in default. Right of Entry 29. The Tenant agrees to permit the Municipality and authorized representatives of the Municipality to enter .the Premises during normal business hours for the purpose of inspecting the same on prior notice to the Tenant (except in an emergency where no notice 6 shall be required), and the Tenant shall arrange for such entry at a time convenient to both parties. The Municipality shall use its best efforts to minimize the disruption to the Tenant's business operations during any such entry. Signs 30. The Tenant may only erect signs on the Premises with the Municipality's prior approval. All such signs shall be removed from the Premises at the end of the Term. Compliance with Laws 31. The Tenant, at its sole cost and expense, shall comply with all legal requirements (including statutes, laws, by-laws, regulations, ordinances, orders, rules and regulations of every governmental authority having jurisdiction) that relate to the use or occupation of the Premises by the Tenant or the making of any improvements to the Premises by the Tenant. Notice 32. Any notice required to be given by the Tenant to the Municipality under this Lease shall be in writing and shall be delivered to: The Durham Central Agricultural Society Box 90, 2 Princess Street Orono, ON LOB 1M0 Attention: Secretary-Treasurer or such other address of which the Municipality has notified the Tenant Clerk in writing, and any such notice delivered shall be deemed good and sufficient notice underthe terms of this Lease. 33. Any notice required to be given by the Municipality to the Tenant under this Lease shall be in writing and shall be delivered to: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario Attention: Purchasing Manager or such other address of which the Tenant has notified the Municipality in writing, and any such notice delivered shall be deemed good and sufficient notice under the terms of this Lease. Assignment and Subletting 34. The Tenant shall not assign this Lease or sublet all or any portion of the Premises without the prior written consent of the Municipality. Successors and Assigns 35. This Lease shall enure to the benefit of and be binding upon the parties and their respective successors (including any successor by reason of amalgamation or statutory arrangement) and permitted assigns. IN WITNESS WHEREOF the parties have executed this Lease. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ~:-.-, PER: ~~ ~-_- ere ~ ~ayor'= _ . ~-;=` THE DURHAM CENTRAL AGRICULTURAL SOCIETY GL- _..., PER: Mathew Stephenson; Pre ' t PER: ~ t, Elaine Dillon, Past President