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99-28
i 6 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 99-28 Being a By-law to authorize a lease agreement between the Corporation of the Municipality of Clarington and the Clarington Older Adult Association Inc., in respect of a lease for the premises situated at 26 Beech Avenue, Bowmanville. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington with the Corporation Seal, a lease agreement between the Clarington Older Adult Association Inc., and said Corporation. 2. THAT the contract attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 8thday of March, 1999. By-law read a third time and finally passed this 8th day of March, 1999. C� Mayor r C16rk March 20, 1999 THIS Lease is made as of the 1 st day of October, 1998 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Landlord") OF THE FIRST PART - and- CLARINGTON OLDER ADULT ASSOCIATION,a non-profit company incorporated under the laws of the Province of Ontario (the "Tenant") OF THE SECOND PART LEASE TABLE OF CONTENT ARTICLE ONE PREMISES, TERM, OFFER AND USE I 1.1 Premises 1 1.2 Term 2 1.3 Use 2 1.4 Nuisance 2 ARTICLE TWO RENT 2 2.1 Rent and Basic Rent 2 2.2 Additional Rent 3 2.3 Community Care Office Facilities Leasehold Improvements . . . . . . . . . . . . . . . . 3 2.4 Rent Past Due 3 ARTICLE THREE REPAIRS, MAINTENANCE AND ALTERATIONS 3 3.1 Landlord's Duty to Repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3.2 Tenant's Duty to Maintain 4 3.3 Cost of Remedying Tenant's Default Additional Rent 4 3.4 Prior Approval Required of Tenant's Alteration of Premises . . . . . . . . . . . . . . . . 4 3.5 Construction Liens 5 3.6 Notice of Accidents, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE FOUR REMOVAL OF TENANT'S FIXTURES AND EQUIPMENT . . . . . . . . . . . . . . . 5 4.1 Right to Remove Fixtures, etc 5 ARTICLE FIVE ACCESS AND ENTRY 5 5.1 Access to Premises 5 5.2 Entry not Forfeiture 7 ARTICLE SIX INSURANCE AND INDEMNITY 7 6.1 Tenant's Duty to Insure 7 6.2 Terms of Policies 7 6.3 Evidence of Policies 7 6.4 Failure to Provide Insurance 8 6.5 Indemnity 8 6.6 Responsibility for Loss or Damage . . . . . . . . . . . . . . . . . . . . . 9 6.7 Benefit of Indemnity, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 6.8 Dangerous Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE SEVEN DAMAGE AND DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7.1 Damage to Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7.2 Insured Damage to or Destruction of Building . . . . . . . . . . . . . . . . . . . . . . . . . 10 7.3 Uninsured Damage to Premises 11 7.4 Termination of Lease After Destruction or Damage to Building . . . . . . . . . . . . 11 7.5 Actions Following Termination 11 7.6 Restoration of Building If Lease Not Terminated 11 11 7.7 Restoration of Building and Insurance Proceeds 11 7.8 Determination of Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 7.9 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARTICLE EIGHT ASSIGNMENT, SUB-LEASE AND LICENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8.1 Consent Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8.2 Consent Granted for Certain Sub-Leases and Licences . . . . . . . . . . . . . . 12 ARTICLE NINE DEFAULT . . . . . . . . . . . . . 9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 9.2 Right of Re-Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 9.3 Legal Expenses to Recover Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 9.4 Right of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 9.5 Right to Re-let . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 9.6 Separate Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE TEN TENNIS COURT LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 10.1 Assignment of Tennis Court Lease . . . . . . . . . . . ARTICLE ELEVEN EXTENSION OR RENEWAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 11.1 Option to Extend or Renew Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE TWELVE FINANCIAL AFFAIRS AND MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 12.1 Financial Records, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 12.2 Auditor's Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARTICLE THIRTEEN GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 13.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 13.2 Schedules Form Part of Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 13.3 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 13.4 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 . 13.5 No Partnership or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 13.6 PST and GST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 13.7 Overholding No Tacit Renewal . . . . . . . . . . . . . . . . . . 13.8 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13.9 Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13.10 Rules Regarding Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13.11 Premises to be Smoke Free . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13.12 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13.13 Set-Off and Accord and Satisfaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13.14 Authority of Landlord, etc. . . . . . . . . . . . . . . . . . . . . . . 13.15 Parties to Act in Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 13.16 Landlord's Property Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 13.17 Landlord's or Tenant's Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 13.18 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 13.19 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 . . . . . . . . . . . . . . 13.20 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 13.21 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 13.22 Enurement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 13.23 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Schedule "A" - "Description of Premises" Schedule "B" - "Floor Plans of Building" Schedule"C" - "Site Plan of Premises" Schedule "D" - "Draft Sub-Lease and Licence to the Durham Region Community Care Association" Schedule"E" - "Draft Sub-Lease and Licence to the Lions Club of Bowmanville" March 20, 1999 THIS Lease is made as of the 1 st day of October, 1998 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Landlord") OF THE FIRST PART -and - CLARINGTON OLDER ADULT ASSOCIATION (hereinafter called the "Tenant") OF THE SECOND PART WHEREAS: A. The Landlord has agreed to Lease to the Tenant and the Tenant has agreed to Lease from the Landlord the lands and premises which are particularly described in Schedule "A" hereto (the "Premises") subject to the exclusions,terms and conditions set out in this Lease; and B. This Lease is authorized by By-law No. 99-28 passed by the Council of The Corporation of the Municipality of Clarington on March 8, 1999, NOW THEREFORE THIS LEASE WITNESSES that in consideration of the rents, covenants and agreements hereinafter referred and contained on the parts of the Landlord and the Tenant hereinafter set forth, the Landlord Leases to the Tenant, subject to the reservation to the Landlord of the rights of access and entry onto the Premises set out below and subject to the provisions of the "Tennis Court Lease" (as hereafter defined), and the Tenant Leases from the Landlord,the Premises on the following terms and conditions. ARTICLE ONE PREMISES, TERM, OFFER AND USE 1.1 Premises The Premises include (1) the interior areas of the building situated on the lands demised to the Tenant by this Lease (the "Building") which interior areas are outlined in red on the floor plans contained in Schedule `B" hereto, and (2) the exterior areas outlined in green on the site plan contained in Schedule "C"hereto. The Premises do not include the structure of the Building, the exterior walls, bearing walls, fenestration and doors of the Building from their interior face, mechanical systems, the "HVAC System" (as hereafter defined), the electrical system, and the plumbing system within or serving the Building. Schedules `B"and"C"are not intended to be a representation by the Landlord shown as to the precise size or dimension of the Building or exterior area of the Premises or a representation as to any other aspect of the development of the lands demised to the Tenant by this Lease. Lease 1.2 Term The Tenn of this Lease shall commence on October 1, 1998 (the "Commencement Date") and shall terminate on the day which is ten (10) years after the Commencement Date unless the Term is extended or renewed in accordance with the provisions of Section 11.1 of this Lease. 1.3 jJ g (a) Except as otherwise permitted by a sub-lease which the Landlord has consented or which is referred to in Section 8.2 of this Lease, throughout the Term of this Lease including any extension or renewal thereof, subject to the other provisions of this Lease, the Tenant shall use, permit or suffer each part of the Premises to be used only for the purposes of a social and activity centre for older adults who are fifty-five(55)years of age or older and are residents of the Municipality of Clarington ("Older Adults"). Notwithstanding the foregoing, the Tenant may licence the kitchen, bar, dining or banquet hall, ballroom and meeting facilities shown on the floor plans contained in Schedule `B" hereto ("Social Facilities") for use by any persons for a consideration whether or not such persons are Older Adults. (b) At all times throughout the Term including any extensions or renewals thereof, the Tenant shall continuously, actively and diligently carry out, cause, or suffer the use of the 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 Premises or any part therefor for any other purpose. The Tenant shall obtain all necessary permits or licences required by applicable law in respect of any use which the Tenant or any person who claims under the Tenant, may make or permit or suffer any other person to make of any part of the Premises. (c) The Tenant acknowledges and agrees that the Landlord shall not be responsible for any of the Tenant's costs, liabilities, or responsibilities in respect of employment contracts made by the Tenant with full-time or part-time employees of the Tenant or volunteers of the Tenant. None of the full- time or part-time employees of the Tenant shall be considered or deemed to be employees of the Landlord 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 Tenant shall bring the content of this paragraph 1.3(c) to their attention. 1.4 Nuisance The Tenant shall not commit, permit or suffer (1) any waste, damage or injury to the Premises or any part thereof, including, without limitation, the improvements, installations, fixtures and equipment located thereon or therein; (ii) any nuisance in or on the Premises or any part thereof; (iii) any overloading of any HVAC system, any utility, electrical system, plumbing system, mechanical equipment, or other facilities or systems within or serving the Premises; 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 Landlord in its sole discretion, acting reasonably, may determine whether the Tenant is in breach of any provision of this Section 1.4. ARTICLE TWO RENT 2.1 Rent and Basic Rent The Rent reserved by the Landlord by this Lease comprises"Basic Rent" and "Additional Rent". The Basic Rent is the capitalized sum of two ($2.00) dollars for the Term. The Landlord hereby acknowledges receipt of the Basic Rent for the Term of this Lease and any extension or renewal thereof. Lease _3_ 2.2 Additional Rent (a) In each and every year during the Term, as Additional Rent, the Tenant shall be responsible for and pay and discharge promptly when due all municipal taxes and levies, including all general upper-tier levies, all special upper-tier levies, and all education taxes or levies if applicable, all charges for utilities, including water, gas, oil, electrical power or energy, light, heat, air conditioning, telephone, steam or hot water used upon or in respect of the Premises or for fittings, machines, apparatus, meters or other things Leased in respect thereof, and for all work services performed by any corporation or commission in connection with such utilities. Without limiting the foregoing in any way, during the Term, the Tenant shall also be responsible for and shall pay promptly as Additional Rent the aggregate of all expenses and costs of every kind, without duplication, incurred by or on behalf of the Landlord for which the Tenant is responsible under the provisions of this Lease with respect to maintenance of the Premises and all insurance relating to the Premises required to be obtained by the Tenant, forthwith after the Tenant is given written notice by the Landlord's Property Manager requiring it to do so. (b) The Tenant shall(i)provide the Landlord within thirty (30) days after receipt of same any tax bills, assessments, utility charges and other notices regarding the foregoing and (ii) promptly deliver to the Landlord receipts evidencing the payment of all of the foregoing. If received by the Landlord, the Landlord shall promptly deliver to the Tenant any such tax bills, assessments, utility charges and other notices regarding the foregoing. Should any additional charges imposed by Government orders, regulations or legislation pose an undue hardship to the operation of the Tenant the Landlord agrees to open discussions on paragraph 2.2(a) in order to arrive at a mutually satisfactory agreement respecting the payment of Additional Rent. 2.3 Commiluily-Care Office e Fa iliti s i easehold Improvements Forthwith after it receives each monthly payment of Rent under a Sub-Lease and Licences to Durham Region Community Care Association as referred to in Section 8.2 during the Term, the Tenant shall remit to the Landlord without deduction the amounts of Rent reserved by such Sub-Lease and Licence that are attributed by the Sub-Lease and Licence to the repayment of the cost to the Landlord of the construction and installation of the Leasehold Improvements described in Schedule"B" of the draft Sub-Lease and Licence contained in Schedule "D" hereto 2.4 Rent Past Du Except as otherwise provided in this Lease, if the Tenant pays the Rent reserved hereby, fully performs all of its covenants and duties under this Lease and no Event of Default has occurred, the Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the Term without interruption or interference by the Landlord or any person claiming through the Landlord. ARTICLE THREE REPAIRS, MAINTENAN E AND ALTERATIONS 3.1 Landlord's Duty to Rg air (a) Except as otherwise provided in Section 3.2 respecting the Tenant's duty to maintain the Premises, the Landlord at all times throughout the Term shall repair and keep in repair (i) the structure of the Building including without limitation, its foundations, exterior walls, sub-floor, roof, exterior walls, bearing walls, structural columns and beams of the buildings, (ii) fenestration and doors, (iii)HVAC System, the electrical system, plumbing system, fixtures and equipment, other than Tenant's fixtures or equipment, located in or serving the Premises or any part thereof, as would a prudent owner of a reasonably similar building to the Building. Lease (b) The Landlord shall not be responsible for any damage howsoever caused to the Tenant by reason of delays in the performance of any repairs for which the Landlord is responsible under this Lease. The Landlord shall have the right at any time to stop, interrupt or reduce any services, facilities, systems or utilities provided to or serving the Premises, or any part thereof, to perform repairs, replacements, improvements, alterations, restoration, adjustments, calibrations or balancing or to comply with laws or regulations, or binding requirements of its insurers, or for causes beyond the Landlord's reasonable control or as a result of the Landlord exercising its duty under this provision in cases where the Landlord determines such is prudent or reasonably required. The Landlord shall not be in breach of any covenant for quiet enjoyment or liable for any injury, loss, costs or damages whatsoever, howsoever caused, whether direct or indirect, incurred by the Tenant due to any of the foregoing, and such shall not constitute a constructive or actual eviction or a re-entry or forfeiture (except where expressed by the Landlord in writing). The Landlord shall make reasonable efforts to restore the services, facilities, utilities or systems so stopped, interrupted or reduced. 3.2 Tenant's Duty to Maintain The Tenant at all times throughout the Term shall heat the Premises between October 15th and April 1st of each year of the Term of the Lease and any extension or renewal thereof and shall maintain the Premises in a satisfactory condition as determined by the Landlord, acting reasonably. Without limiting the foregoing, the Tenant shall keep the Premises in a clean condition, obtain at its expense janitorial services, remove snow from driveways and walkways on the Premises and from the sidewalks on the road allowances which abut any one or more parts of the Premises, maintain the gardens and remove waste from the Premises. 3.3 Cost of Remedying Tenant's Default Additional Rent If the Tenant breaches its duty to maintain the Premises as provided in Section 3.2 for a period of fifteen (15) days after being given written notice by the Landlord specifying with reasonable particularity the breach(es) in question, in addition to the other remedies available to the Landlord under this Lease or under the applicable law, the Landlord may enter on the Premises and perform the maintenance in question and notify the Tenant in writing of the cost of doing so. Any such cost shall be deemed to be and shall be payable by the Tenant to the Landlord as Additional Rent. 3.4 Prior Annroval R�auired of Tenant's Alteration of Premises (a) No alteration shall be made to any part of the Premises by the Tenant or by a sub-lessee or licensee of any part of the Premises without the written approval of the Landlord's Property Manager being first obtained. The Tenant shall submit to the Landlord details of the proposed alterations, including, without limitation, plans, drawings and specifications prepared by qualified architects or engineers, if necessary, in conformity with the Landlord's then current building standards. All such alterations shall be performed (i) at the sole cost of the Tenant, (ii) by contractors and workmen designated, provided or approved by the Landlord, (iii) in a good and workmanlike manner, (iv) in accordance with plans, drawings and specifications approved in writing by the Landlord 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 Landlord, and (vii) only after there is provided to the Landlord such indemnification against construction liens and evidence of such additional Tenant's insurance as the Landlord may reasonably require. (b) K in the Landlord's opinion any alterations or maintenance would affect the structure of the building on the Premises, or any part thereof, or any of the HVAC System or electrical, plumbing or mechanical equipment, facilities or systems or other base building equipment, facilities or systems, then at the option of the Landlord, such work shall be performed by the Landlord at the Tenant's cost. On completion of such work, the Tenant shall pay to the Landlord the cost of such work, as determined by the Landlord as Additional Rent. No alteration to the Premises by or on behalf of the Tenant shall be permitted which may weaken or endanger the structure of, or adversely affect the Lease condition of the Premises or building or any part thereof located thereon in the sole opinion of the Landlord, acting reasonably. (c) The Landlord's approval of any alterations or plans, drawings or specifications with respect thereto shall not constitute a waiver by the Landlord of the Tenant's obligations herein to comply with all laws and all requirements of all authorities with respect to such alterations, nor shall the Landlord's approval constitute an acknowledgment or agreement by the Landlord that such laws and requirements have been complied with. 3.5 C"A ructi n Lien The Tenant shall promptly pay for all materials and services supplied and work done on its behalf in respect of the Premises so as to ensure that no claim for lien under the (7onstruction Lien Act is registered against any portion of the Premises or against the Landlord's or Tenant's interest therein. If a claim for lien is registered on title or filed with the Landlord's Clerk, the Tenant shall discharge it at its expense within twenty (20) days thereafter, failing which the Landlord, at its option, may discharge the lien by paying the amount claimed to be due into court or directly to the lien claimant and the amount so paid. All expenses of the Landlord including, without limitation, legal fees (on a solicitor and his client basis) shall be paid by the Tenant to the Landlord on demand as Additional Rent. 3.6 Notice of Accidents etc, The Tenant shall promptly notify the Landlord of any accident, defect, damage or deficiency (including, without limitation, any existence, discharge, spillage or leakage of any hazardous or toxic substances or any notice to-the Tenant in connection therewith) in or on any part of the Premises which comes to the attention of the Tenant, its employees or contractors notwithstanding that the Landlord may have no obligation in respect thereof. ARTICLE FOUR REMOVAL OF TENAN r,S FIXT RES AND EQUIPMENT 4.1 Right 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, the Tenant at its cost may remove Tenant's fixtures, equipment and personal property from the Premises provided that the Tenant at its cost shall restore Premises by making good any damage that has occurred to the Premises either by the installation of Tenant's fixtures, equipment or personal property or by the removal of any of them from any part of the Premises. If the Tenant does not remove its fixtures, equipment and personal property from the Premises at the expiry of the Term, they shall become the absolute property of the Landlord without prior notice being given to the Tenant or compensation therefore being paid by the Landlord to the Tenant, and the Landlord shall be free to use or to dispose of the same and to appropriate the proceeds of disposal to the Landlord's own use absolutely. The Landlord's rights and the Tenant'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 Acce to Pr mi ec (a) Without limiting any other right which the Landlord may have pursuant to this Lease or at law, the Landlord shall have the right, but not the obligation, following reasonable written notice to Lease the Tenant(except in the case of an emergency or apprehended emergency where no such notice shall be required), to enter the Premises at any time and for any of the following purposes: (i) to examine the Premises or to perform any maintenance, repairs, replacements, alterations or improvements to the 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 Premises or any part thereof, to preserve and protect the Premises, or any part thereof in respect of any construction or other work being performed in premises adjoining or in the vicinity of the Premises, or on any part of the Premises; for any purposes as determined by the Landlord in cases of emergency, (iv) to read any utility or other similar meter located in the Premises; (v) during the last twelve(12) months of the Term(or any renewal or extension Term if renewed or extended), but only during normal operating hours, to show the Premises to prospective tenants, and to permit them to make inspections, measurements and plans, (vi) to exercise any of the rights available to the Landlord pursuant to this Lease or to perform such work in respect of the Premises, or any part thereof, as the Landlord shall deem necessary. (b) The Landlord shall have the right to install, maintain, use, repair, replace, alter, calibrate, adjust, balance, check and inspect pipes, ducts, conduits, vents, wires, access panels to mechanical shafts and other installations in or leading in, through, over or under the Premises including, without limitation, other elements or equipment of any mechanical, plumbing or electrical system, the HVAC System, systems for utilities, telephone and other communications systems, and any other systems which are within or serve the Premises, or any part thereof. The Landlord shall have access to the foregoing and the right to enter the Premises for the purposes thereof and in connection therewith at any time following reasonable notice to the Tenant except in the case of an emergency or apprehended emergency for which no notice shall be required. The Tenant shall not unduly obstruct any pipes, conduits or mechanical or other electrical equipment or systems so as to prevent reasonable access thereto. (c) The Landlord shall have the right to take into the Premises all such material and equipment as it may require in connection with any of the purposes referred to in this Section 5.1. The Landlord 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 Landlord's Property Manager shall determine, and to the extent practical in the circumstances, so as to minimize interference with the Tenant's use and enjoyment of the Premises. (d) At any time that entry by the Landlord is desired in case of emergency or apprehended emergency, as determined by the Landlord's Property Manager, if no personnel of the Tenant are known by the Landlord to be present on the Premises or if such personnel fail for any reason to provide to the Landlord immediate access at the time that such entry is desired, the Landlord may forcibly enter the Premises without liability for damage caused thereby. This paragraph 5.1(d) is not intended to impose any obligations, responsibilities or liabilities on the Landlord nor is it intended to limit the rights of the Landlord or the obligations of the Tenant under any other Section of this Lease. e Lease 5.2 Entry not Forfeiture Notwithstanding anything contained in this Lease, the exercise by the Landlord of any of its rights under this Lease, including, without limitation, (i) any of its rights set out in Section 5.1, and (ii) the exercise of any right under this Lease to enter the 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 Landlord in writing), nor shall it render the Landlord liable for any injury, loss, costs or damages whatsoever, howsoever caused, whether direct or indirect, incurred as a result thereof by the Tenant, nor shall the Tenant be entitled to any compensation, diminution or abatement of Rent (except as may be otherwise expressly provided in this Lease). ARTICLE SIX INSURANCE AND INDEMNITY 6.1 Tenant's Duty to IncnrP The Tenant shall obtain and maintain throughout the Term: (i) all risk property insurance for Leasehold improvements to the Building in its own name, insuring against all perils, naming the Landlord as an additional insured, in an amount and containing terms and conditions satisfactory to the Landlord's Treasurer, acting reasonably, and general liability and property damage insurance including tenant's legal liability in the minimum amount of Five Million Dollars($5,000,000), naming the Landlord as an additional insured, and containing a cross-liability endorsement, and other terms and conditions satisfactory to the Landlord's Treasurer, acting reasonably. 6.2 Terms of Poli .Pc Each policy of insurance referred to in Section 6.1 shall be in form and substance and with insurers reasonably acceptable to the Landlord's Treasurer. Each of the insurance policies shall contain (i) an undertaking by the insurers under such policies that no material change adverse to the Landlord or Tenant 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 Landlord and the Tenant of the intended change, cancellation or termination, and (ii) a clause stating that the Tenant'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 Landlord. Each of the policies referred to in Section 6.1 shall contain a waiver, in respect of the interests of the Landlord 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. 6.3 Evidence of Policies The Tenant shall provide to the Landlord for acceptance prior to the earlier of the Commencement Date and the date it occupies the Premises for any purpose, evidence satisfactory to the Landlord's Treasurer of such insurance or, if required by the Landlord's Treasurer, 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 Landlord or upon the placement, renewal, amendment or extension of all or any part of such insurance, the Tenant shall immediately provide to the Landlord evidence of such insurance in and completed in accordance with the Landlord's standard form of certificate of insurance or, if required by the Landlord's Treasurer, 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. Lease 6.4 Failure to Provid In 'ance The cost or premium for each and every such policy shall be paid by the Tenant prior to the due date therefor. If the Tenant fails to take out or maintain such insurance or fails to provide to the Landlord such certified copies of insurance and certificates of insurance as herein required, or if any such insurance is not acceptable to the Landlord's Treasurer (and if the Tenant fails to commence to diligently rectify and thereafter proceed to diligently rectify the situation within forty-eight (48) hours after written notice by the Landlord to the Tenant (stating, if the Landlord, from time to time, does not approve of such insurance, the reasons therefor)), then the Landlord 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 Landlord under this Lease or at law, and in such event the Tenant shall repay to the Landlord the amount so paid as Additional Rent. 6.5 Indemnitv Notwithstanding any other provision of this Lease, the Tenant shall indemnify the Landlord and all of its agents, officers, employees, contractors, consultants, workers and persons for whom the Landlord is in law responsible(collectively in this Section 6.3 and in Section 6.4 called "Landlord's Employees") and shall hold them and each of them harmless from and against any and all liabilities, actions, proceeding, damages, claims, losses (including, without limitation, indirect or consequential damages that may be suffered or sustained by the Landlord or any of the Landlord's Employees and loss of Rent and all other amounts payable by the Tenant under this Lease) and expenses (including, without limitation, all legal fees and disbursements) that is not caused by the negligence of the Landlord or any person for whose acts or omissions the Landlord 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 Tenant of or under any of the provisions of this Lease; any lien under the Construction Lien Act, R.S.O. 1990, c.30 as amended from time to time respecting the Premises; any act or omission of the Tenant or any other person on or permitted on the Premises, or any use or occupancy of, or any articles in, the Premises or any part thereof, or any use or occupancy of any other part of the Building or the Lands by the Tenant or any of its agents, employees, invitees, licensees, sub-tenants, assignees, concessionaires, contractors or persons for whom the Tenant is in law responsible (collectively in this Section 6.3 and in Section 6.4 called "Tenant's Employees"); (iv) any act or omission of the Tenant or any of the Tenant's Employees on the Premises or elsewhere in, on or about the 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 Tenant or any of the Tenant's Employees or any other persons in, on or about the Building or the Lands or any part thereof by or with the invitation, licence or consent of the Tenant and/or (II) which is excluded from the Landlord's liability or responsibility under Section 6.6(b); (vi) any accident or occurrence in, on or at the 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 Landlord or an act or omission of any person for whom the Landlord is responsible in law; and/or (vii) any damage, destruction or need of repair or replacement to any part of, or otherwise relating to,the Premises or any other part of the Building, or any damages incurred by the Landlord Lease or by any occupant of the Building or any part thereof, caused by any act or omission of the Tenant or any of the Tenant's Employees, notwithstanding any other provisions,of this Lease. If the Landlord, without fault on its part, is made a party to litigation commenced by or against the Tenant, the Tenant shall indemnify and hold harmless the Landlord from and against all legal and other costs. The Landlord, 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 Tenant is required to indemnify the Landlord under this Lease. Alternatively, the Landlord may require the Tenant to assume carnage of and responsibility for all or any part of such litigation or discussions. The Tenant shall pay all legal costs incurred or paid by the Landlord in enforcing the provisions of this Lease. For greater certainty the Tenant'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 6.4 shall govern notwithstanding any other provision of this Lease. (a) Except where the Landlord or a person for whose acts or omissions the Landlord is responsible in law, is negligent, the Landlord shall not be liable for any death or injury arising from or out of any occurrence whatsoever in, upon, at or relating to the Premises, or any part thereof, or damage to property of the Tenant or of others located on the Premises, from any cause whatsoever, nor shall the Landlord be responsible for any loss of or damage to any property of the Tenant, Tenant's Employees, or others from any cause whatsoever other than the negligence of the Tenant or a person for whose acts or omissions the Tenant is responsible in law, nor shall the Landlord be responsible for any indirect or consequential damages that may be suffered or sustained by the Tenant or any others from any cause whatsoever. (b) Without limiting the generality of the foregoing, except when the Landlord or a person for whose acts or omissions the Landlord is responsible in law is negligent, the Landlord 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: (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 Premises 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 Premises or any part thereof, 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 Premises, or any part thereof, (iii)delays in the performance of any repairs, replacements, maintenance or restoration for which the Landlord is responsible under this Lease; (iv) incurred by reason of the Landlord or any of the Landlord's Employees entering upon the 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 Premises; or (vi) by reason of inconvenience, annoyance or injury to business arising from the Landlord,the Tenant or any others making or failing to diligently make, for whatever reason or cause, any repairs, alterations, additions, renovations, improvements or restorations in or to any part of the Premises. (c) The Landlord shall not be liable or responsible in any way for any such death, injury, loss or damage caused by other tenants, occupants or persons on or in the Premises, or any part thereof or by any occupants of any adjacent property thereto. (d) . All property of the Tenant or of any of the Tenant's Employees kept or stored on the Premises (including without limitation, all Leasehold Improvements Leased by the Tenant herein) shall be so kept or stored at the sole risk of the Tenant, and the Tenant releases and agrees to indemnify the Lease -10- Landlord and save it harmless from and against any claims arising out of any loss of or damage to such property, including, without limitation, any subrogation claims by the Tenant's or any others' insurers, and the Tenant 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 Tenant under this Lease. 6.7 Benefit of Indemnity etc_ Every indemnity, hold harmless provision, release and exclusion of liability herein contained for the benefit of the Landlord and every waiver of subrogation for the benefit of the Landlord contained in any insurance policy maintained by the Tenant shall survive the expiration or earlier termination of the Term and any extension or renewal thereof and shall extend to and benefit the Landlord, its officers, employees and those for whom such persons are responsible in law. Solely for such purpose, and to the extent that the Landlord expressly chooses to enforce the benefit of this Section for any or all of such persons, it is agreed that the Landlord is the agent or trustee for such persons. No such indemnity, hold harmless provision, release or exclusion of liability or waiver of subrogation for the benefit of the Landlord shall be deemed to impose or imply any obligation, responsibility or liability whatsoever on the Landlord, 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 Landlord is expressly provided for under this Lease. 6.8 Dangerous Use The Tenant shall not do, omit or permit anything which will increase the cost of the Landlord insurance or render any insurance on or relating to the Premises subject to cancellation. The Tenant shall pay to the Landlord forthwith after written notice is given of the Landlord demand for payment, the amount of any increase in the cost of insurance caused by anything so done, omitted or permitted as Additional Rent. ARTICLE SEVEN DAMAGE AND DE TRUCTION 7.1 Damage to Building If the Building or any part thereof, is damaged or destroyed, in whole or in part, by fire or any other occurrence, then(i)this Lease 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 Landlord of any insurance proceeds, and notwithstanding any provision of this Lease or obligation or requirement at law, in equity or by statute to the contrary, the obligations of the Landlord to repair or to provide services or utilities, if any, or to perform "Restoration" (as hereafter defined) under this Lease shall be subject to the provisions of this Article, and shall be limited to the extent to which the Landlord is required to be insured under this Lease or is otherwise insured. 7.2 Insured Damage to or Destruction of Building If damage to or destruction of the Building is caused by an occurrence against which, and to not more than the extent that the Landlord 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 Tenant's use and occupancy and the Restoration of the 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 Building be demolished or substantially demolished prior to any Restoration, then the Landlord may elect to terminate this Lease by giving written notice to the Tenant within sixty(60) days after such occurrence. If the Landlord does not so elect to terminate this Lease, the Landlord shall diligently perform the Restoration of the Building to the extent of its obligations pursuant to Section 7.6. 5 Lease -11- 7.3 iJninsured Damag�to Premi es If there is damage to or destruction of the Building and, in the Architect's opinion, (i) such damage or destruction is caused by an occurrence against which the Landlord is not insured or required to insure or the cost of Restoration of which would be in excess of the extent to which the Landlord is required to insure pursuant hereto or is otherwise insured or(ii) the Restoration of the Building 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 or any extension or renewal thereof and either there are no remaining rights in any party hereto to extend or renew this Lease or any party having the right to extend or renew this Lease fails to do so within fifteen(15)days after such occurrence, then the Landlord may elect to terminate this Lease by giving written notice to the Tenant within thirty (30) days after such occurrence. If the Landlord does not so elect to terminate this Lease, the Landlord shall diligently perform the Restoration of the Building to the extent of its obligations pursuant to Section 7.6. 7.4 Termination of Leacp After Destruction or Damage to Building If(i) in the Architect's opinion, Restoration of any portion of the Building which affects access or services essential to the Building 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 Building be demolished or substantially demolished prior to any Restoration following damage or destruction to the Building or any part thereof, in any such case whether such damage or destruction is a direct or indirect result of any occurrence of cause whatsoever, whether or not such occurrence or cause is insured, and whether or not there is any damage to or destruction of the Building then the Landlord may elect to terminate this Lease by giving written notice to the Tenant within sixty (60) days after such cause or occurrence. If the Landlord does not so elect to terminate this Lease, subjdct to Sections 7.2 and 7.3, the Landlord shall diligently perform the Restoration of the Building to the extent of its obligations pursuant to Section 7.6. 7.5 Actions Following Terrriinati n If the Landlord elects to terminate this Lease under this Article by giving written notice to the Tenant, then, notwithstanding the receipt by the Landlord of any insurance proceeds, (i) this Lease shall terminate on the date that such notice is given, (ii) the Tenant shall immediately vacate and surrender possession of the Premises and(iii) all Rent accrued to such termination date shall be apportioned and promptly paid without any right of the Tenant to any abatement, deduction, counterclaim, set-off, compensation or reduction whatsoever. 7.6 Restoration of Building If Lease Not Terminated If this Lease is not terminated as provided in this Article, the Landlord, to the extent of the insurance proceeds which the Landlord receives, shall proceed to perform such Restoration of the Building limited to the extent of its express obligations under this Lease. The obligation of the Landlord with respect to Restoration of the Building 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 of B gilding and In uran a Proceeds (a) If there is damage or destruction to the Building, or any part thereof, and if this Lease is not terminated pursuant to this Article, the Landlord, in performing the Restoration of the Building, or any part thereof, as required hereby, shall not be obliged to perform such Restoration in accordance with the plans, drawings or specifications for the Building, or any part thereof, as they existed prior to such damage or destruction, but the Landlord may perform such Restoration in accordance with any plans, drawings and specifications chosen by the Landlord in its sole discretion, acting reasonably. Without limiting the generality of the foregoing, the Landlord after consulting with the Tenant shall be entitled to demolish and rebuild the Building, or any part thereof. Lease -12- (b) The proceeds of insurance, which is required to be maintained by the Tenant and which insurance is required to name the Landlord as an insured person shall be and are hereby assigned and made payable to the Landlord. If the Tenant receives any such insurance proceeds, the Tenant shall receive and hold such proceeds in trust for the Landlord and shall promptly deliver them to the Landlord. If such proceeds shall have been paid to the Landlord: (A) if this Lease 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 Tenant to the extent that such surplus does not exceed the value of any Tenant'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 Tenant to the Landlord or to remedy any default of the Tenant under this Lease; and (B) if this Lease has been terminated pursuant to this Article 7 such proceeds shall be paid to the Tenant to the extent that they do not exceed the value of any Tenant's fixtures or personal property on the Premises and such proceeds are not required to discharge any debt owed by the Tenant to Landlord or to remedy any default of the Tenant under this Lease. 7.8 Determination of Matter For the purposes of this Article, the date of any damage or destruction, the determination of and extent to which any area(s) of the Building are damaged, destroyed, rendered unsafe or are not capable of being used, the times within which Restoration of the Building may be made and the date that it is completed or substantially completed shall be determined by the Architect in its sole discretion, such determination to be final and binding on the parties. 7.9 Limitation of Liabilitv Notwithstanding any other provision of this Lease, the Landlord 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 Tenant), of the Tenant or its clerks, employees, customers, suppliers, sub-tenants, licensees or other persons dealing directly or indirectly with the Tenant or for whom the Tenant is in law responsible arising out of the failure for any cause whatsoever of the Landlord or others to perform or complete Restoration of the Building, or any part thereof; within any period of time following the occurrence of damage or destruction contemplated by this Article, and the Tenant shall indemnify and save harmless the Landlord from and against all such damages. ARTICLE EIGHT ASSIGNMENT B-LEA E AND LICENCE 8.1 Consent Required Except as provided in Section 8.2, the Tenant shall not assign this Lease, or sub-let, or licence any person to use the whole or any portion of the Premises without first obtaining the consent of the Landlord, which consent may be unreasonably withheld. 8.2 ( u nt Granted for Certain Sub-Leases and Licences The Landlord hereby grants its consent to the following actions of the Tenant: (a) the Sub-Lease and Licence by the Tenant to Durham Region Community Care Association of part of the Premises in accordance with the terms and conditions of the draft Sub-Lease and Licence contained in Schedule"D" hereto; (b) the Sub-Lease and Licence by the Tenant to The Lions Club of Bowmanville if substantially in accordance with the terms and conditions of the draft Sub-Lease and Licence contained in Schedule"E" hereto; and Lease -13- (c) periodic licences of any one or more parts of the Social Facilities shown on the floor plans contained in Schedule`B" hereto, or any part thereof which are granted by the Tenant for specified events to members of non-profit groups or to individuals who are financially responsible on such terms and conditions as the Tenant may require, provided that no signs are placed on any portion of the Premises by any such licensees. 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 if and whenever.- (i) the Tenant fails to pay any Rent promptly when due, provided that the Landlord first gives the Tenant thirty (30) days written notice of any such failure and the default is not remedied on or before the end of such period; the Tenant fails to rectify any failure of the Tenant to comply with good management and accounting principles and practices in the management, use or operation of the Premises as recommended in writing by the Municipality's auditor, and such failure remains uncorrected or unremedied after thirty (30) days following the day on which such recommendation is given to the Tenant; the Tenant fails to observe or perform any other term, covenant, condition, or obligation under this Lease that is capable of remedy, other than a default in payment of Rent, and such default remains unremedied after thirty (30) days following written notice given by the Landlord to the Tenant specifying such default and requiring the Tenant to remedy the same, provided that if the Tenant 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 (1) day after the default has been remedied; (iv) the Tenant fails to observe and perform any other term, covenant, condition or obligation under this Lease that is not capable of remedy; (v) the Tenant makes an assignment for the benefit of its creditors generally, or if the Tenant is declared bankrupt or insolvent, or if a petition in bankruptcy is filed against the Tenant, or if the Tenant files an assignment in bankruptcy or takes or attempts to take the advantage of any legislation for relief of bankrupt or insolvent debtors, or if a receiver or a receiver and manager is appointed for all or a portion of the Tenant's property, or if any steps are taken or any action or proceedings are instituted by the Tenant or by any other party including, without limitation, any court or governmental body of competent jurisdiction for the dissolution, winding-up, discharged or abandoned; and (vi) the Premises become and remain vacant for a period of fourteen (14) consecutive days. 9.2 Right of Re-Enta Without derogating from the provisions of this Lease, upon a Default occurring, at the option of the Landlord,the Landlord, in addition to any other remedy or right it may have, and without notice or any form of legal process, may forthwith re-enter upon and take possession of the Premises without thereby terminating this Lease and remove and sell the Tenant's goods, chattels, equipment and Tenant's fixtures therefrom, any rule of law or equity to the contrary notwithstanding. The Landlord Lease -14- may seize and sell such goods, chattels, equipment and Tenant's fixtures of the Tenant as are in the Premises and may apply the proceeds thereof to all rent and other payments to which the Landlord is then entitled under this Lease. Any such sale may be effected in the discretion of the Landlord by public auction or otherwise, and either in bulk or by individual item, or partly by one means and partly by another, all as the Landlord in its sole discretion may decide. 9.3 Legal Expenss&tQ Recover Possession If legal action is brought for recovery of possession of the Premises, for the recovery of Rent, or any other amount due under this Lease, or because of the breach of any other terms, covenants or conditions herein contained on the part of the Tenant to be kept or performed, and a breach is established,the Tenant shall pay to the Landlord all reasonable expenses incurred therefor, 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 Landlord available to it by any provisions of this Lease or given by law to the Landlord, the Tenant agrees that upon a Default occurring, the Landlord shall have the right to terminate this Lease by giving notice in writing to the Tenant. Upon such notice being given, this Lease shall terminate immediately without the necessity of any legal proceeding whatsoever. The Tenant shall thereupon within three (3) days after the notice is given quit and surrender the Premises to the Landlord, and the Landlord, its agents, contractors and employees shall have the right to enter the Premises and dispossess the Tenant and remove any persons or property therefrom without the necessity of legal proceeding whatsoever and without being liable to the Tenant therefor in damages, or otherwise. 9.5 Right to Re-let If the Landlord re-enters pursuant to the provisions of either this Lease or any applicable law, the Landlord, without limiting its right to recover damages, may either terminate this Lease, or the Landlord may from time to time without terminating the Tenant's obligations under this Lease, make any alterations and repairs considered necessary by the Landlord to facilitate a reletting and relet the Premises or any part thereof as agent of the Tenant for such term or terms and at such rental or rentals and upon such other terms and conditions as the Landlord in its reasonable discretion considers advisable. Upon each reletting, all rent and other moneys received by the Landlord from the reletting will be applied (i) to the payment of indebtedness other than Rent due hereunder from the Tenant to the Landlord (ii) to the payment of costs and expenses of the reletting including brokerage fees, legal fees and costs of the alterations and repairs and (iii) to the payment of Rent due and unpaid hereunder. The residue, if any, will be held by the Landlord and applied in payment of future rent as it becomes due and payable. If the rent received from the reletting is less than the Rent to be paid by the Tenant, the Tenant shall pay the deficiency to the Landlord. No re-entry by the Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of that intention is given to the Tenant. Despite a reletting without termination, the Landlord may elect at any time to terminate this Lease for a previous breach. 9.6 Separate Remedie The Landlord 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 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. Lease -15- ARTICLE TEN TENNIS COURT LEASE 10.1 Assig Lease This Lease is subject to the Lease of the Tennis Court identified on the site plan of the Premises contained in Schedule "C" hereto which was made by The Lions Club of Bowmanville to the Bowmanville Tennis Club and is dated January 1, 1988 (the "Tennis Court Lease"). The Landlord hereby assigns its rights under the Tennis Court Lease to the Tenant for the Term and any extension or renewal of this Lease, and the Tenant hereby accepts such assignment. ARTICLE ELEVEN EXTENSION OR RENEWAL 11.1 Option to Extend or Renew Lease If the Tenant punctually pays the Rent reserved hereby and all other moneys required to be paid by the Tenant or to any person by this Lease, fully performs all of its covenants and duties in accordance with the provisions of this Lease, and no Default has occurred during the Term or during an extension or renewal of this Lease, not later than six (6) months prior to the date of termination of the Term or of the then current extension or renewal of this Lease, the Tenant may give the Landlord written notice that it has exercised this option to extend or renew this Lease for a further term of five (5) years on the same terms, conditions, covenants and provisions as set out in this Lease with the exception of the duration of the Term, provided that the Tenant's option under to extend or renew, under this Section shall terminate and be of no further force or effect when the Tenant has extended or renewed this Lease on not more than two (2) occasions. For the avoidance of doubt, the maximum duration of the Term and any extension or renewal of this Lease shall not exceed a total of twenty (20) years commencing on the Commencement Date. If the Tenant does not give the Landlord written notice that it has exercised its option to extend or renew this Lease as provided in this Section the Tenant shall have no further right to exercise the option to extend or renew this Lease, and the Landlord shall be under no obligation to grant a renewal or extension of this Lease. ARTICLE TWELVE FINANCIAL FFAIRS AND MANA EMNT 12.1 Financial R ord tc (1) On or before the Commencement Date and thereafter during the Term and any extension or renewal of this Lease: (a) the Tenant shall establish March 31 st and thereafter the Tenant shall maintain March 31 st as its financial year end until the termination of this Lease, (b) the Tenant shall establish and maintain in accordance with good accounting principles satisfactory to the Municipality's auditor proper bank accounts and records for all funds received by the Tenant, and all bookkeeping and accounting systems and records and supporting vouchers and documentation; (c) the Tenant shall record serially all of the Tenant's revenues and receipts and all of the Tenant's disbursements for each financial year of the Tenant; (d) not later than June 30th in each year of the Term and any extension or renewal of this Lease, the Tenant shall file with the Municipality's Treasurer financial statements which shall have Lease -16- been prepared in accordance with proper accounting principles by a qualified auditor, provided that they shall not be consolidated with the Municipality's financial statements; (e) not later than March 31 st in each year of the Term and any extension or renewal of this Lease, the Tenant shall file with the Municipality's Treasurer its capital and operating budgets for the current financial year for review but not approval by the Municipality. (2) Not later than six (6) months following the Commencement Date, the Tenant shall file with the Municipality a report prepared by the Municipality's auditor respecting compliance by the Tenant with the provisions of paragraph 12.1(1) and good management and accounting principles and practices in the management, use or operation of the Premises as well as the Municipality's auditor's recommendations to the Tenant in regard to these matters or any of them ("Initial Review"). (3) During the Term and any extension or renewal of this Lease, the Tenant shall comply with and implement all other recommendations made by the Municipality's auditor respecting any of the matters referred to in Section 12.1(1) and all written recommendations made by the Municipality's auditor respecting the management, use or operation of the Premises, forthwith after each such written recommendations are given to the Tenant. 12.2 Auditor's Authority (1) After giving the Tenant not less than twenty-four (24) hours written notice of the intention to do so, the Landlord's auditor may enter on the Premises at any time to examine the financial books, records and supporting vouchers and documentation of the Tenant and to make copies of any of them and the Tenant, its officers and employees shall cooperate with the Landlord's auditor by providing all information requested by him relating to the financial management; and (2) Forthwith after the Landlord's auditor gives the Tenant a written direction to change its bookkeeping and accounting systems or its requirements for supporting vouchers or documentation, the Tenant shall effect and maintain the changes so directed by the Landlord's auditor. ARTICLE THIRTEEN GENERAL PROVISIONS 13.1 Dt&m,Lj n� (a) "Architect"means the architect from time to time designated or employed by the Landlord. (b) "HVAC System" means the heating, ventilation, air-conditioning and other climate control equipment, facilities and systems serving the Building 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. (c) "Municipality's auditor" means either the auditor authorized by the Landlord to conduct the annual audit of the financial records of the Municipality of Clarington or an auditor designated or approved by the Landlord to undertake the audit required by Section 12.1(1) of this Lease. (d) "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 Lease -17- 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. (e) "Restoration'means the repairing, replacing, altering, demolishing or rebuilding of all or any part of the Building. 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 the Tenant 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. 13.2 Schedules Form Part of Lease Schedules "A","B", "C", "D" and "E" hereto are deemed to be contained in and form part of this Lease and to have the same effect as they would have if their provisions had been set out as covenants in the text of this Lease. 13.3 Quiet EnJovmen Except as otherwise provided in this Lease, if the Tenant pays the Rent reserved hereby, fully performs all of its covenants and duties under this Lease and no Event of Default has occurred, the Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the Term without interruption or interference by the Landlord or any person claiming through the Landlord. 13.4 Covenants Every obligation or duty of the Landlord or the Tenant expressed in this Lease although not expressed as a covenant, shall be deemed to be a covenant for all purposes. 13.5 No Partnership or Agency The Landlord does not in any way or for any purpose become a partner of the Tenant in the conduct of its business, or otherwise, or a joint venturer or a member of a joint enterprise with the Tenant, nor is the relationship of principal and agent created by this Lease. 13.6 PST and GST Without derogating from any other provision of this Lease, the Tenant 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 Tenant to the Landlord under this Lease, either of the sub- Leases referred to in Section 8.2 and the Tennis Court Lease, as well as in respect of goods and services sold by the Tenant or by a sub-lessee or licensee of the Tenant. 13.7 4verholding No Tacit Renewal If the Tenant remains in possession of the Premises after the end of the Term with the Consent of the Landlord but without having executed and delivered a new Lease, there is no tacit renewal of this Lease and the Term hereby granted, notwithstanding any 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 at a monthly Rent payable in advance on the first day of each month equal to the aggregate of the following: (a)one-twelfth(1/12th)of the amount of the Additional Rent payable by the Tenant Lease _lg_ 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 (including the payment of all Additional Rent), so far as these are applicable to a monthly tenancy. 13.8 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 Tenant'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 Tenant or if a distress is made by the Landlord or if any action is brought to test the right of the Landlord to levy upon any such goods as are so exempted, this Lease may be pleaded as an estoppel against the Tenant, the Tenant hereby waiving each and every benefit that could or might have accrued to the Tenant under and by virtue of any such statute but for this Lease. (b) Failure of the Landlord to insist upon the performance of any such covenant or condition of this Lease or to exercise any right or option contained in this Lease shall not be construed as a waiver or relinquishment of any such covenant, condition, right or option or of any subsequent breach of the same. No variation or waiver of any covenant or condition of this Lease shall be valid unless in writing and signed by duly authorized persons on behalf of the Landlord. (c) All Rent to be paid by the Tenant to the Landlord shall be paid without any deduction, abatement, set-off or compensation whatsoever. 13.9 Distress Notwithstanding any provision of this Lease or any provision of applicable legislation, none of the goods and chattels of the Tenant on the Premises at any time during the Term shall be exempt from levy by distress for Rent in arrears, and the Tenant waives any such exemption. If the Landlord makes any claim against the goods and chattels of the Tenant by way of distress, this provision may be pleaded as an estoppel against the Tenant in any action brought to test the right of the Landlord to levy such distress. 13.10 Rules Regarding-Use of Premisec The Landlord's Property Manager from time to time may give the Tenant written notice of rules regarding the use of the Premises which shall be deemed to be part of this Lease as if contained in it. The Tenant agrees to comply with such rules during the Term of this Lease and any extension or renewal thereof. 13.11 Premises to be Smoke Free The Tenant shall not permit or suffer any person to smoke a tobacco product anywhere in the Building. 13.12 Costs The Tenant shall pay to the Landlord as Additional Rent all damages and costs (including, without limitation, all legal fees on a solicitor and its client basis) incurred by the Landlord in enforcing the terms of this Lease, or with respect to any matter or thing which is the obligation of the Tenant under this Lease, or in respect of which the Tenant has agreed to insure or to indemnify the Landlord. 13.13 Set-Off and Accord and-Satisfaction The Tenant 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 and 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 Landlord of full payment, Lease -19- or an accord and satisfaction, and the Landlord may accept and cash any such cheque or payment without prejudice to the Landlord'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 Landlord may apply or allocate any sums received from or due to the Tenant against any amounts due and payable under this Lease in such manner as the Landlord, acting reasonably, sees fit. 13.14 Authority of Landlord etc (1) The Tenant acknowledges and agrees that the Landlord has authority to enter into this Agreement, that every provision hereof is authorized by the law and is fully enforceable by the parties, and that this Lease made by the Landlord in reliance on the acknowledgement and agreement of the Tenant as aforesaid. (2) The Tenant acknowledges and agrees that the Landlord shall not be responsible for any debts incurred by the Tenant or by any person for whose conduct the Tenant is responsible in law. The Tenant shall not represent or suffer or permit anyone to represent to any person that the Landlord will be responsible for payment of any debt incurred or to be incurred by the Tenant. 13.15 Parties to Act in ood Faith At all times during the Term of this Lease and any extension or renewal thereof, the Parties shall act in good faith in exercising their respective rights and in performing their respective duties under this Lease. 13.16 Landlord's Property Manager The Landlord's Property Manager, on the Landlord's behalf, shall be responsible for reviewing the Tenant's compliance or non-compliance with the provisions of this Lease and reporting on the same from time to time to the Landlord, provided that nothing contained in this paragraph 13. 16 shall be deemed to derogate from the provisions of Article Twelve of this Lease. 13.17 Landlord's or Tenant's Issues The Tenant may appear as a disputant at meetings of the Landlord's Council or its General Purpose and Administration Committee, provided that the Landlord's Rules of Procedures in that regard are complied with. The Landlord and Tenant shall act cooperatively and in good faith to resolve expeditiously issues that the Landlord, the Landlord's Property Manager or the Tenant may raise. At all times the Landlord, the Landlord's Property Manager and the Tenant shall receive complaints or suggestions respecting the Premises and their operation and use courteously and seek to address them efficiently. 13.18 Notices If any notice or other document is required to be or may be given by the Landlord or by any official of the Landlord to the Tenant or by the Tenant to the Landlord under this Lease, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: The Landlord: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Property Manager If by telecopier to: (905) 623-5717 Lease _20_ The Tenant: Clarington Older Adult Association 26 Beech Avenue Bowmanville, Ontario L1C 3A6 If by telecopier to: (905) 697-9659 or such other address of which the Landlord or the Tenant 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. 13.19 Force Maj ure Notwithstanding anything to the contrary contained in this Lease, if the Tenant is bona fide delayed or hindered in or prevented from the performance of any teen, 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 Tenant, then performance of such term, covenant or act is excused for the period of the delay and the Tenant 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 Tenant from the prompt payment of Basic Rent, Additional Rent or any other payments required by this Lease. 13.20 Time of Essence Time shall be of the essence in all respects of this Lease and every part of it. 13.21 Enforceability If any term, covenant or condition of this Lease or the application thereof to any person or circumstance is to any extent held or rendered invalid, unenforceable or illegal, the remainder of this Lease or the application of such term, covenant or 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. 13.22 Enurement This Lease 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 or a sub-tenant of any portion of the Premises unless the provisions of Section 8. 1 are complied with. 13.23 Governing Law This Lease shall be interpreted, governed and enforced in accordance with the laws of the Province of Ontario, Canada. Lease -21- IN WITNESS WHEREOF 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: Mayor By: r. Clerk 1 7 CLARINGTON OLDER ADULT ASSOCIATION By: ` Name: Title: By. .. Name: Title: SCHEDULE "A" DESCRIPTION OF PREMISES Part of Lot 23, Plan H-50079, being Part of Lot 11, Concession 1, and Part of Lots 226, 227 and 228, Block"H", Bowman Estate Plan, being Part of Lot 12, Concession 1, in the Municipality of Clarington (formerly in the Town of Bowmanville), in the Regional Municipality of Durham, now designated as Part 1 on Reference Plan 40R-14445. SAVE AND EXCEPT Parts 1 and 2 on Reference Plan 40R-17952 as previously described in Instrument Numbers 48612, 12220 and N26121. �- I me cprtnue.w e"e ata I I PA w RLIL JE ff T--J�j 1 I I I f I I II •tnNn 1100M:�Ts•. l:...s�. ewJV DCTAIL-BXT.CARA @I DASD � .a.s... 11 swr OwlC13 i I _m Q I ._ '► 1�All H All; 1 iA®IN i "em IT II ' B Z Ito fr ' -- �r :I• ;mss.or Do .. c Aaws A wca _ 1.I.I � .'.7® © ..� -- •- --- � i .M. ... .+;I, � ;� ® 4 . cores,.IVer.nnaNS „e rc. r u •+ "«.' oTee `wrr _ ""Cos BARRY+BRYAN SSbCIATES(191)UMITED iE j eO1N T MI i t r.M Ep .N.. s I rARTTTaN ecNeue � " "' p'� 1-2 Iuernlert i _ m � PROJECT: XI, OLDER ADULT 1,0 ..µ,..e+..... ......�. .. �.r....r� b0 II 9 COSBA XIM CENTRE MUNICIPALITY(Tr CLARINGI(IN pq YI.r�A�WI W��� mr"wgwra.A wnwvwr.ww M._-T.�l.._ 1 L 1 u.wl'i14i...rw� —� Arr ]e KE0 AY01LW w i .. rlwwne I ea.W1RVMli pRMMI ..._ too=[M..,......II......s.....�........s .n.....w... DRAWING: �, w roawAwwA» .w.w.I I..... .........». .-... �-I W GROUND FLOOR PLAN uww.,a ww w.w� a.n.�s u.•..M..�.,. �....�v.+..w,...« w••••••• BXIDTIW ADDITION _ .^ ------------- -—-—-— _-_.-1-.-.-.___._._--O ------------- -- -------------- ---------------f -------------------........ ........... al) ----- -------- -------- ---- • ---------- zl ------------------------------------------- BARRY•BRYAN ASSOCIATES(1991)LIMITED Tt A- ------- _-.. 7 sec'ma moom PLAN �_ : I ......... �., Idea% a!3 Im ----------- ------ PROJECT. NO OLDER ADULT M, COMMUNITY CE NTRE MUNICIP41ly�CLARINGION 26 Ktw A%ymM • a maftmMw awmm ORAVANG: NAW"W R*=PLAN BASEMENT AND SECOND FLOOR PLANS �C' r---- — ----- G O N G E 5 5 1 0 N � � -1.-�-�-�-�------------ .[wwwxw.,lw,n I ry I I I OT LS LOT I )1 I I I i i 0 ;� r I I I i 1 1 lxISTINe � + � RA7elepllp�O i Na 'i w a ae NoTL51 1 Z v1 excel Aeo w.wlAw/e..[�A.,MO,K ; �• I ; ; ro1I.y neexe[I[x.'«a coeerwx:norl Axt,,.,+» , r w l 1 d 1 1 1 w.x x.sao+.ew i g• w.. I 5 ro �J IMTO 101 x.COIY�reN l,Aq/AprO 10[p]]e. 1 • , , , I �1' I//''[ MY/RA •' ' 1 -� _ !T AMn!!e.elscp x.nxlr bIAR RAM eexr /Act a..Or�!.Gerl[4elap I.[.one rlll►Ce wort 4, IOw10I4Mxl,TOx � n•s f`-J I�IV •� �r� Rn wwe wen, I J OIw x[OP ppYl%MS r[M u[ �Cy +_ TTYY elw• �u 1 j�� I ) I�'•I SA4 ARY ; /� I m°'P• BARRY•BRYAN V] v r, ' I >•'-- H ► ---- I I ASSOCIATES(1991)LIMITED - "lerr o�wel[ a�'•+n n I i �...'S:.r I[�-'' J �„w„.°°°m )J rlsr wwa >a,art ; i a�•wl I f ► I )•ji I ) x>[K 1Y.x AA[TTpllt nyefert ; 4—L-- y PROJECT: • :.:: f f ""m w CLM AOlLT ���� r•� •.Mti la•..� ___—— __ ____ • MUNICIPAL17V Of CLARINGTON , ,L�flep/I,ee 1 wiwvx, ,rAia • e0 I � .. ;i.. DRAWING: ��I �,,,/„ [,ww:"'e'x ,• 4 „RVe i�i SITE PLAN AND DETAILS I ww.•.x e.w .rote � ; , SCHEDULE "D" DRAFT SUB-LEASE TO THE DURHAM REGION COMMUNITY CARE A O IATION M SCHEDULE "E" DRAFT SUB-LEASE AND LICENCE TO THE LIONS CLUB OF BOWMANVILLE