HomeMy WebLinkAbout2003-187
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 2003- 187
being a By-law to authorize the execution of a Lease Agreement between the
Corporation of the Municipality of Clarington and the Directors of Valleys 2000
(Bowmanville) .
WHEREAS at its meeting of December 15, 2003, the Council of the Corporation of the
Municipality of Clarington adopted the recommendation contained in Report PD-149-03;
NOW THEREFORE BE IT RESOLVED THAT, the Council of the Municipality of Clarington
enacts as follows:
1 . THAT the Mayor and Clerk be authorized to execute on behalf of the Corporation of the
Municipality of Clarington a lease agreement between the Corporation of the
Municipality of Clarington and the Directors of Valley 2000 (Bowmanville).
2. Schedule "A" attached hereto shall form part of this By-law.
BY-LAW read a first time this 15th
day of
December
2003
BY-LAW read a second time this 15th
day of
December
2003
BY-LAW read a third time and finally passed this 15thdayof
December
2003
..;;;;;~. .
- . .~ VfiitK
ton, Mavor- -
- - - ./-~.-
February 24, 2004
THIS LEASE dated as of the 1 s` day of January, 2004.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY-
OF CLARINGTON
(hereinafter called the "Landlord")
-and-
VALLEYS 2000(BOWMANVILLE) INC.
(hereinafter called the "Tenant")
WHEREAS:
OF THE FIRST PART
OF THE SECOND PART
A. The Landlord is the owner in fee simple of the lands more particularly described in Schedule
"A" hereto. They are identified on the map contained in Schedule "B" hereto as "Lands Owned by
Municipality of Clarington, to be Leased to Valleys 2000"; and
B. At its meeting on December 15, 2003, the Council ofthe landlord enacted.By-law No. 2003-
187 which authorizes this Lease to be executed on behalf of the Landlord.
NOW THEREFORE THIS LEASE WITNESSES that in consideration of the rents,
covenants and agreements hereinafter reserved and contained on the part of the Landlord and the
Tenant, the Landlord hereby leases to the Tenant, and the Tenant hereby leases from the Landlord
the "Premises" (as hereinafter defined), on and subject to the following terms and conditions.
Definitions
In this Lease the term
(i) "Additional Rent" means the portion of the Rent referred to as Additional Rent in
paragraph 4. L
(ii) "Applicable Law" means any statute or regulation of Canada or the Province of
Ontario which applies in respect of the provisions of this Lease.
(iii) "Applicable Part of Bowmanville Creek" means that part of the Bowmanville
Creek and its Valley running through the Premises which is identified as such on the
plan attached hereto as Schedule "B".
(iv) "Audit" has the meaning assigned to it in pazagraph 30.3.
(v) "Basic Rent" means the Rent referred to as Basic Rent in pazagraph 3.1.
2
(vi) "Bowmanville Creek" means the watercourse running through part of the
Municipality of Clarington which generally is known as the Bowmanville Creek.
(vii) "Bowmanville Creek Valley Project" means improvements located on the Premises
for the protection of natural heritage features in the Bowmanville Creek and
valleylands and physical enhancements for passive recreational uses for general
public such as pedestrian trails, access to areas of interest and vistas of the
Bowmanville Creek and valley, and new areas of interest resulting from
improvements which are intended to be generally consistent with a conceptual plan,
prepared by Schollen and Company, Landscape Architects and approved by Council
of the Landlord on February 21, 2000 as it may be amended or revised from time to
time with the prior written approval of the Council of the Landlord.
(viii) "Business Day" means each day of every week other than Saturdays, Sundays,
statutory holidays and public holidays.
(ix) "Certificate of Completion" has the meaning assigned to it in paragraph 11.3.
(x) "Commencement Date" has the meaning assigned to it in pazagraph 2.1.
(xi) "Contractor Works" has the meaning assigned to it in pazagraph 11.1.
(xii) "Default" has the meaning assigned to it paragraph 20.1.
(xiii) "Environmental Laws" means all statutes, laws, ordinances, codes, rules,
regulations, orders, notices and directives, now or at any time hereafter in effect,
made or issued by any municipal, provincial or federal government, or by any
department, agency, board or office thereof, or by any board of fire insurance
underwriters or any other agency or source whatsoever, regulating, relating to or
imposing liability or standazds of conduct concerning any matter which may be
relevant to the use or occupancy of the Premises or any part thereof or the conduct of
any business or activity in, on, under or about the Premises or any part thereof, or any
material, substance or thing which may at any time be in, on, under or about the
Premises or any part thereof or emanate therefrom or which relate to environmental
matters or the use, treatment, clean-up and disposal of Hazardous Substances.
(xiv) "Environmental Records" has the meaning assigned to in paragraph 27.4.
(xv) "Events of Default" has the meaning assigned to it in pazagraph 20.1.
(xvi) "Hazardous Substance" means any contaminant, pollutant, dangerous or potentially
dangerous substance, noxious substance, toxic substance, hazardous waste or
material, flammable or explosive substance, radioactive material, or any other waste,
substance or material whatsoever deemed to be, defined to be, listed or referred to as,
covered by or regulated under any Environmental Laws or which may cause an
adverse effect as defined in any Environmental Laws.
(xvii) "Memorandum of Understanding" means the Memorandum of Understanding
dated June 10, 1999 between the Landlord and Frank Wallace Lockhart, Robert
Leslie Simpson, Iain John Craven McIver, Arthur Alan Harvey Strike, David
Lawrence Douglas Lawson and William John Huether, Trustees for Valleys 2000
(Bowmanville) Inc. to be incorporated.
(xviii) "Permitted Improvements" has the meaning assigned to it in Section 11.
(xix) "Premises" means the lands and premises more particularly described in Schedule
"A" attached hereto.
(xx) "Prime Rate" means the floating annual rate of interest (which is calculated daily)
established from time to time by the head office in Toronto of the Canadian Imperial
Bank of Commerce as the reference rate it will use to determine rates of interest
payable by the most preferred commercial borrowers of the Canadian Imperial Bank
of Commerce on unsecured loans to such borrowers in Canada.
(xxi) "Rent" means the aggregate of the Basic Rent and Additional Rent.
(xxii) "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 for
which the Landlord is required to remit to any authority with respect to the Rent, or
imposed by any authority in respect of (i) this Lease or the rental or any licensing or
use of space under this Lease; (ii) the payments made or payable by the Tenant under
this Lease; or (iii) the goods and services purchased by or provided by the Landlord
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.
(xxiii) "Tender Call" has the meaning assigned to it in paragraph 11.2.
(xxiv) "Term" has the meaning assigned to it in paragraph 2.1.
(xxv) "Volunteer Works" has the meaning assigned to it in paragraph 11.5.
2. Term
2.1 Subject to the other terms and conditions of this Lease, the Tenant shall have and hold the
Premises as tenant for a term of five (5) years (the "Term") commencing on January 1, 2004(the
"Commencement Date") and expiring on December 31st, 2009.
3. Rent
3.1 During the Term, the Tenant shall pay to the Landlord rent in the capitalized amount of ONE
($1.00) DOLLAR as Basic Rent per annum and sums described as Additional Rent as hereinafter
provided for. The Landlord hereby acknowledges receipt of the payment by the Tenant. to the
Landlord of the sum of FNE ($5.00) DOLLARS as the capitalized amount of the Basic Rent for the
entire Term.
4. Net, Net Lease
4.1 The Tenant acknowledges, covenants and agrees that (i) it is intended that this Lease and the
Rent herein provided to be paid shall be completely net and carefree to the Landlord; (ii) the
Landlord is not responsible during the Term for any costs, obligations, charges, expenses and outlays
of any nature whatsoever arising from or relating to the use or occupancy of the Premises, any
Volunteer Works or for the remuneration or expenses of any volunteers of the Tenant; and (iii) the
Tenant shall pay as Additional Rent all charges, impositions and taxes, costs, outlays and expenses of
every nature and kind relating to or affecting the Premises and the use or occupancy thereof by the
Tenant in the manner and at the times as provided for in this Lease.
4.2 All amounts required to be paid by the Tenant hereunder (whether to the Landlord or third
parties) shall be Additional Rent. Additional Rent shall be payable and recoverable as rent in the
manner and at the times herein provided. The Landlord shall have all rights against the Tenant for
Default in any payment of Additional Rent as a landlord has in the case of arrears of rent. The
Tenant on the request of the Landlord shall, as soon as possible, provide to the Landlord proof in
writing of the payment by or on behalf of the Tenant of Additional Rent to a third party.
4.3 The Tenant shall pay to the Landlord an amount determined by the Landlord to be equal to or
in respect of any and all Sales Taxes, it being the intention of the Parties that the Landlord shall be
fully paid and reimbursed by the Tenant with respect to any and all Sales Taxes paid or payable by
the Landlord or the Tenant and which the Landlord is required to remit to any authority, and the
amount of Sales Taxes so payable by the Tenant to the Landlord shall be calculated by the Landlord
in accordance with the applicable legislation and shall be paid to the Landlord, at the Landlord's
option, when due or at the same time as the amounts to which such Sales Taxes apply are payable to
the Landlord under the terms of this Lease or upon demand or at such other time or times as the
Landlord from time to time determines, and. the amount of such Sales Taxes so payable by the
Tenant shall be deemed not to be rent, but the Landlord shall have all of the same remedies for and
rights of recovery of such amount as it has for recovery of rent under this Lease.
5. Payment of Additional Rent
5.1 If the Tenant is in default in the payment when due of any amounts or chazges required to be
paid pursuant to this Lease to persons other than the Landlord, such amount or charge shall on the
giving of notice in writing by the Landlord to the Tenant be paid to the Landlord or as the Landlord
may direct and be collectible as Additional Rent, but nothing in this Section shall be deemed to
suspend or delay the payment of any amount or charges at the time same becomes due and payable
hereunder, or limit any other remedy of the Landlord. The Tenant agrees that the Landlord may, at
its option, apply or allocate any sums received from or due to the Tenant against any amounts due
and payable hereunder in such manner as the Landlord sees fit.
5.2 If the Tenant fails to pay when due any amount of Additional Rent, the unpaid amount shall
beaz interest, from the date such amount is due and payable, compounded monthly at a variable rate
per annum which is two percent (2%) over the Prime Rate.
6. Certain Other Obligations to be Additional Rent
6.1 Without limiting the foregoing obligations of the Tenant under this Lease, during the Term
the Tenant shall be responsible for and shall pay promptly when due to the supplier of services and
materials to the Tenant as Additional Rent. Unless otherwise directed by the Landlord, the Tenant
shall be responsible for and shall pay promptly when due all costs with respect to insurance required
to be carried by the Tenant pursuant to this Lease as Additional Rent.
Adjustments at End of Term
7.1 Immediately prior to the termination of the Term, the parties shall adjust on a pro rata basis
for all of the charges and other amounts referred to in Sections 4, 5 and 6 which shall have accrued
during the Term but are not then paid. The pro rata portions of monthly payments shall be made on a
thirty (30) day basis.
8. Use of Premises
8.1 Without derogating from Section 11 of this Lease, the Tenant shall use the Premises
throughout the Term only for pazkland, open space, and public recreational purposes including trails
and lookouts by members of the public, provided that, subject to pazagraph 11.5, the Tenant may
construct or install on the Premises at its sole cost any one or more of the Volunteer Works.
8.2 The Tenant shall not permit or suffer any person to use asnowmobile, anal]-terrain vehicle
or a dirt bike on the Premises.
8.3 The Tenant shall not permit or suffer any of the Tenant's invitees, employees, contractors or
any member of the public to use the Premises otherwise than in accordance with the provisions of
this Lease.
9. Waste
9.1 The Tenant shall not do or suffer any waste to or on the Premises and shall not permit or
suffer any person to do any waste to the Premises.
10. Ouiet Enioyment
10. I Except as otherwise expressly provided in this Lease, including, without limitation, section
12 and section 13 of this Lease, and subject to the Tenant's compliance with all the provisions of this
Lease, the Tenant may peaceably possess and enjoy the Premises without interruption by the
Landlord or by any person claiming by, through or under the Landlord. Notwithstanding the
foregoing provisions of this paragraph 10.1, the Landlord, its employees, agents and contt-actors may
enter on the Premises at any time and from time to time for the purpose of maintaining the Premises
and keeping them in repair as considered necessary by the Landlord in its discretion.
11. Permitted Improvements
11.1 The Landlord, its employees, agents and contractors may enter on the Premises at any time to
plan, coordinate, design, tender, construct, install, supervise the construction and installation of, and
maintain all or any of the improvements which comprise the Bowmanville Creek Valley Project
("Permitted Improvements"). The Permitted Improvements comprise Contractor Works and
Volunteer Works. "Contractor Works" are the Permitted Improvements referred to in paragraph 11.2
and include Works which comprise part of the Bowmanville Creek Valley Project and other works
considered to be appropriate by the Municipality. "Volunteer Works" aze defined in pazagraph 11.5
of this Lease.
11.2 Upon receipt from the Tenant of one hundred (100%) per cent of either the funds required
for Contractor Works which comprise part of the Bowmanville Creek Valley Project as
determined by the Landlord's Director of Engineering Services, acting reasonably, or an
unconditional and irrevocable Letter of Credit issued by a bank listed in Schedule 1 of the Bank
Act, in a form and containing terms acceptable to the Landlord's Director of Finance and
Treasurer, acting reasonably, which secures payment of such funds by the Tenant, the Landlord
will prepare all necessary plans, drawings and specifications for the Contractor Works in
question and shall retain an appropriate person to provide consulting, design and engineering
services. The Landlord shall call for the tender of bids ("Tender Call") to construct and install the
Works. The Tender Call shall be made to persons whom the Landlord's Director of Engineering
Services considers to be experienced, qualified and with sufficient resources to undertake and
complete such Contractor Works, provided that the Tender Call shall not include consulting,
design and engineering services respecting the Contractor Works. A Tender Call shall not be
made unless the Tenant has approved the design and specifications for the Contractor Works in
question in writing. Notwithstanding the foregoing, the Tenant will remit to the Landlord the
funds paid to the Tenant by the Trillium Foundation for consulting, design and engineering
services respecting Contractor Works forthwith after they are received by the Tenant and the
Landlord covenants to use such funds for such purposes only. The Contractor Works shall be
undertaken in accordance with the Landlord's standard practices at that time and completed to
the satisfaction of the Landlord's Director of Engineering Services.
11.3 On completion of any one or more of the Contractor Works as provided in pazagraph
11.2, the Landlord's Director of Engineering Services shall issue a certificate that the Contractor
Works in question have been completed ("Certificate of Completion") to the contractor and shall
give a copy of the Certificate to the Tenant.
11.4 During the construction, installation and maintenance of Contractor Works, the
Landlord's Director of Engineering Services may give written notice to the Tenant requiring that
the Premises or identified parts thereof be closed to the Tenant, Tenant volunteers and members
of the public for the reason and for the period specified in the notice. The Tenant shall comply
with each such notice forthwith after it is given by the Landlord to the Tenant.
6
11.5 Works which comprise part of the Bowmanville Creek Valley Project maybe undertaken
and completed on that Premises by volunteers working for or on behalf of the Tenant ("Volunteer
Works"), provided that:
(a) Any volunteer working for or on behalf of the Tenant will not be a full- or part-
time employee of the Landlord and will not have or enjoy any of the rights and
privileges of a full-time or part-time employee of the Landlord;
(b) The Tenant provides safety equipment and training to all volunteers and complies
with all applicable legislation, regulations and by-laws;
(c) The Tenant provides first aid and communications equipment and written safety
procedures manual that is appropriate in the opinion of the Landlord's Director of
Operations for use in any activity in which volunteers construct or install
Volunteer Works, maintain or repair any one or more portions of the Premises;
(d) All buildings, structures, equipment, trails and other infrastructure shall be
constructed and installed in compliance with the Landlord's standazds at the time
of construction or installation, incompliance with Canadian Standards
Association standards, and in compliance with all applicable safety standards; and
(e) All costs incurred by the Tenant for volunteers and for Volunteer Works aze paid
by the Tenant from its own funds.
11.6 No improvements including signs and fencing which aze not Permitted Improvements
may be constructed or installed on the Premises without the Landlord's prior written consent, not
to be unreasonably withheld. All work shall be undertaken and completed by the Tenant in a
good and workmanlike manner. Prior to the termination of this Lease, the Landlord may give the
Tenant written notice requiring the Tenant to remove any or all of the Tenant's Permitted
Improvements as specified in the notice forthwith after the termination ofthe Lease at the
Tenant's sole cost and the Tenant covenants to do so forthwith after such notice is given.
12. Repairs and Maintenance
12.1 The Tenant hereby accepts the Premises on an "as is" basis without any representation or
warranty from the Landlord as to the suitability of the Premises for any purpose, the
environmental condition of the Premises, or any matter whatsoever.
12.2 The Landlord shall maintain the Premises and keep them in repair at the Landlord's cost.
12.3 The Landlord and its agents, employees and contractors, at any time and from time to
time and without any liability to the Tenant, may enter the Premises to examine same.
13. Government Requirements
13.1 The Tenant at its sole cost during the Term shall:
{i) observe and comply with all applicable governmental laws and regulations
including, without limitation, federal and provincial legislative enactments, and
governmental or municipal regulations which relate to the Premises or the
operation and use thereof and to the making of any repairs, to the Premises. The
Tenant shall comply with all police, fire and sanitary regulations imposed by any
federal, provincial or municipal authorities, or made by insurance underwriters
and shall observe all governmental and municipal regulations and other
requirements governing the use by the Tenant, its employees, agents and
contractors, Tenant's volunteers and members of the public who use any part of
the Premises;
(ii) obtain all necessary permits, licenses and approvals relating to the use and
occupancy of the Premises; and
(iii) carry out all modifications, alterations or changes to the Premises which are
required by any such authorities.
13.2 The Tenant shall indemnify and hold the Landlord harmless against any penalty or fine
imposed for any violation of any law, by-law or regulation by the Tenant or those for whom the
Tenant is responsible in law.
14. Assienment and Sublettine by Tenant
14:1 The Tenant shall not effect or permit an assignment, transfer, mortgage, chazge,
debenture, encumbrance or sublease of the Lease.
15. Insurance
15.1 The Tenant at its sole expense shall obtain and maintain throughout the Term
comprehensive all-risk general liability insurance in respect of its occupancy and use of the
Premises, and the use of the Premises by the public, as a prudent commercial owner would obtain
and maintain, in an amount not less than FIVE MILLION ($5,000,000.00) DOLLARS for each
loss. The Landlord shall be named as an additional insured in the policy of insurance. The policy
shall contain a waiver of subrogation clause in favour of the Landlord satisfactory to the
Landlord, acting reasonably and shall require the Landlord's prior written release before the
policy maybe amended to delete the waiver of subrogation clause. Forthwith after the Landlord
gives the Tenant written notice requiring the Tenant to do so, the Tenant shall provide the
Landlord with a copy of the policy of insurance.
16. Construction Liens
16.1 The Tenant shall promptly pay for all materials and services supplied and work done on
its behalf by suppliers retained by the Tenant, Tenant Volunteers or as undertaken as Volunteer
Works; in respect of the Premises or on the Landlord's Lands so as to ensure that no lien claim
under the Construction Lien Act will be registered against any portion of the Premises, the
Landlord's reversionary interest in the Premises, or the Landlord's Lands. If a lien claim is
registered on the title to the Premises, the Landlord's reversionary interest in the Premises, or the
Landlord's Lands, the Tenant shall dischazge the lien at i[s sole expense within ten (10) days
thereafter, failing which the Landlord, at its option, may dischazge the lien by paying the amount
claimed to be due into Court or directly to the lien claimant. All expenses of the Landlord
including, without limitation, legal fees (on a solicitor and client basis) and interest at five (5%)
percent above the Prime Rate plus fifteen (15%) percent as the Landlord's administrative fee
shall be paid as Additional Rent by the Tenant to the Landlord forthwith after the Landlord gives
the Tenant written demand requiring the Tenant to make such payment.
17. Indemnity
17.1 Notwithstanding any other provision of this Lease, the Tenant shall indemnify the
Landlord and all of its servants, agents, employees, contractors and persons for whom the
Landlord is in law responsible and shall hold them and each of them harmless from and against
any and all liabilities, claims, actions, proceedings, damages, losses and expenses, including,
without limitation, all legal fees and disbursements, due to, arising from or to the extent
contributed to by any of the following:
(i) any breach by the Tenant of any of the provisions of this Lease;
(ii) any act or omission of members of the public or of the Tenant or of any of its
employees, agents, invitees, licensees, contractors or persons for whom the Tenant
is in law responsible relating to the use or occupancy of the Premises by any of the
foregoing persons;
8
(iii) any injury, death or damage to any person including members of the public, or
damage to property of the Tenant or its employees, agents, contractors or any
other person on the Premises by or with the invitation, licence, or consent of the
Tenant;
(iv) any accident or occurrence in, at or about the Premises causing injury or death to
any person or damage to property or any other loss or injury whatsoever;
(v) any need of repair to any part of the Premises caused by any act or omission or the
Tenant or its employees, agents, contractors or persons for whom the Tenant is in
law responsible; and
(vi) environmental contamination or pollution from any cause whatsoever to or
escaping from the Premises to adjacent lands.
17.2 The rights of the Landlord and the obligations of the Tenant under this Section shall
survive the termination of this Lease.
17.3 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.
17.4 It is agreed that every indemnity, exclusion or release of liability and waiver of
subrogation herein contained for the benefit of the Landlord shall extend to and benefit all of the
Landlord's servants, agents, employees and those for whom the Landlord is in law responsible.
Solely for such purpose, and to the extent that the Landlord expressly chooses to enforce the
benefits of this Section for the benefit of those for whom the Landlord is in law responsible, it is
agreed that the Landlord is their agent or trustee.
18. Ri¢ht to Remove Fixtures, etc.
18.1 During the Term or on its expiration, when it is not in "Default" (as hereafter defined),
the Tenant at its sole cost may remove Tenant's Fixtures, equipment and personal property from
the Premises provided that the Tenant at its cost shall restore the Premises by making good any
damage that has occurred by the removal of the Tenant's Fixtures, equipment or personal
property or by any of them from any part of the Premises or area. If the Tenant does not remove
its Tenants Fixtures, equipment and personal property from the Premises at the expiry of the
Term, they shall, at the option of the Landlord, become the absolute property of the Landlord
without prior notice being given to the Tenant or compensation therefor 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 shall survive the expiry or earlier termination of the
Term.
19. Damaees
19.1 The Landlord shall terminate this Lease as provided herein, in addition to any other
remedies it may have, the Landlord may recover from [he Tenant all costs and expenses incurred
by the Landlord by reasons of the Tenant's Default together with all Rent and Additional Rent
which would have been payable if this Lease had not been terminated.
20. Events of Default
20.1 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 ten (10) days written notice of any such failure and the
Default is not remedied on or before the end of such period;
(ii) 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; and
(iii) the Tenant fails to observe and perform any other term, covenant, condition or
obligation under this Lease that is not capable of remedy.
21. Rieht to Remedv Tenant's Default
21.1 In addition to all rights and remedies of the Landlord available to it by any provision of
this Lease or any applicable law, upon a Default of the Tenant occurring, the Landlord shall have
the right at all times to remedy or attempt to remedy the Default, and in so doing may make any
payments due or alleged to be due by the Tenant to third parties and may enter upon the Premises
to do any work or other things thereon on not less than five (5) Business Days notice to the
Tenant or without notice in the event of an emergency. All expenses of the Landlord in
remedying or attempting to remedy such default plus interest at five (5%) percent above the
Prime Rate plus a sum equal to fifteen per cent (15%) of the cost thereof representing the
Landlord's overhead shall be paid by the Tenant to the Landlord as Additional Rent forthwith
upon demand.
22. Rieht of Re-Entry
22.1 Without derogating from the other 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 may seize and sell such goods, chattels, equipment and Tenant's
Fixtures of the Tenant as are on, in or under the Premises and may apply the proceeds thereof to
all Rent and any other payments to which the Landlord is then entitled under this Lease. Any
such sale maybe 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.
23. Leal Expenses to Recover Possession
24.1 If legal action is brought for the 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.
24. Separate Remedies
24.1 The Landlord may from time to time resort to any or all of the rights and remedies
available to it upon a Default occurring, by any provision of this Lease or by statute or by the
general law, each such right and remedies being intended to be cumulative and not alternative
and each may be exercised generally or in combination.
10
25. Waiver
25.1 Notwithstanding anything contained in any statute now or hereafter in force limiting or
abrogating the right of distress, none of the goods, chattels or trade fixtures of the Tenant on the
Premises at any time during the Term shall be exempt from levy by distress for rent in arrears,
and if any claim is made for such exemption by the Tenant or if a distress is made by the
Landlord 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.
25.2 Failure of the Landlord to insist upon the performance of any covenant or condition of
this Lease or to exercise any right or option contained in this Lease shall not be construed as a
waiver or relinquishment of any such covenant, 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 a duly authorized person on behalf of the Landlord. The
acceptance of Rent from or the performance of any obligation by (i) a person other than the
Tenant shall not be construed as an admission by the Landlord of any right, title or interest of
such person assub-tenant, assignee, transferee or otherwise in the place of the Tenant, or (ii) the
Tenant shall not be construed to be a waiver of any preceding breach by the Tenant of any term,
covenant or condition of this Lease regardless of the Landlord's knowledge of such preceding
breach at the time of acceptance of such Rent.
26. Covenants
26.1 Every obligation of the Landlord or the Tenant expressed in this Lease, even though not
expressed as a covenant, shall be a covenant for all purposes.
27. Environmental Matters
27.1 The Tenant covenants with Landlord that:
(i) It shall not knowingly use or permit or suffer the use of the Premises or any part
thereof to treat, transport, store, handle, dispose of, transfer or produce any
Hazardous Substance except in strict compliance with all Environmental Laws
including, without limitation, the Environmental Protectiori Act, R. S. O. 1990, c.
E-19 and all other Environmental Laws in respect of environmental, land use,
occupation, or health and safety matters nor cause or contribute to any adverse
environmental effect upon the Premises, or the environment. In the event the
Tenant fails to comply with any such Environmental Laws, the Landlord may, but
shall not be obligated to, do such things as necessary to effect such compliance,
and all costs and expenses incurred by the Landlord in so doing, together with an
administration charge equal to ten percent (10%) of such costs and expenses, shall
be payable forthwith by the Tenant to the Landlord as Additional Rent;
(ii) It shall forthwith notify the Landlord upon receipt of any order, directive, notice or
other communication whatsoever received from any governmental or other
authority relating to any Environmental Laws, which notice shall be accompanied
by a copy of such order, directive, notice or other communication and the Tenant
shall keep the Landlord advised on a regular and timely basis of the Tenant's
progress in complying with same;
(iii) The Landlord shall be entitled at any time or times during the Term and at the
expiration of the Term to inspect the Premises and to conduct such other
investigations as in its sole discretion it deems necessary for the purpose of
satisfying itself as to compliance by the Tenant with all Environmental Laws and
with all provisions of this Lease. Without limiting the generality of the foregoing,
the Landlord shall have the right to conduct such physical inspections of the
11
Premises and examination of documentation relating to the Premises, as it may
deem necessary (including but not limited any and all forms of environmental
audits ("Audit") and for such purpose the Tenant shall produce, at the offices of
the Landlord, all of its relevant files, books, records, statements, plans and other
written information in the Tenant's possession relating to the Premises and the
operations of Tenant thereon, provided that all of such information shall be used
by the Landlord solely for the purpose of ensuring compliance by the Tenant with
the provisions of this Lease and shall otherwise be kept strictly confidential save
and except with respect to any court proceedings, or if the information otherwise
becomes part of the public domain. The reasonable costs and expenses of any
Audit which reveals the presence of a Hazardous Substance which is the
responsibility of the Tenant under this Lease shall be paid for by the Tenant
forthwith upon request as Additional Rent;
(iv) It shall in a timely manner but in any event on written request from the Landlord
or as required by Environmental Laws take all required remedial action to clean
up, remove or otherwise deal with any Hazardous Substances in, on, under or
about the Premises or emanating therefrom, including, without limitation, any
repairs or replacements to the Premises or any Permitted Improvements in, on or
under the Premises and the removal, treatment, disposal, restoration and
replacement of the soil or any other part of the Premises. The said obligations
herein shall survive the expiration or earlier termination of this Lease;
(v) It shall not permit any person to engage in any activity on the Premises that may
reasonably be anticipated to lead to a violation of Environmental Laws; and
(vi) It will notify the Landlord immediately of the existence of any Hazardous
Substance on or under the Premises of which it becomes aware.
27.2 If any such clean-up or remediation is required, the Tenant shall, at its sole cost, prepare
all necessary studies, plans and proposals and submit them to the Landlord for approval, provide
all bonds and other security required by any lawful authorities and carry out the work required.
In carrying out such work, the Tenant shall keep the Landlord fully informed of the progress of
the work. The Landlord may, in its sole discretion, elect to carry out all such work, or any part of
it, and, if the Landlord does so, the Tenant shall pay for all costs in connection therewith,
together with an administrative fee equal to Fifteen (15%) per cent of such costs, within fifteen
(15) days of written demand being made by the Landlord.
27.3 All Hazardous Substances brought or allowed onto the Premises during the Term by the
Tenant, the Tenant's employees and volunteers but excluding members of the public who are not
either Tenant's employees or volunteers shall, despite any other provision of this Lease to the
contrary and any expiry, termination or disclaimer of this Lease, be and remain the property and
sole responsibility of the Tenant regardless of the degree or manner of affixation of such
Hazardous Substances to the Premises. In addition, and at the option of the Landlord, anything
contaminated by such Hazardous Substance shall become the property of the Tenant.
27.4 If the Tenant is required by any applicable Environmental Laws to maintain
environmental and operating documents and records, including, without limitation, permits and
licenses (collectively, "Environmental Records"), the Tenant shall maintain all requisite
Environmental Records in accordance with all applicable Environmental Laws. The Landlord
may inspect all Environmental Records at any time during the Term on twenty-four (24) hours'
prior written notice, but no prior notice shall be required in the case of an emergency, real or
apprehended.
28. Surrender of Premises
28.1 At the expiration or sooner termination of the Term, the Tenant shall peaceably surrender
and yield up vacant possession of the Premises to the Landlord in as good condition and repair as
the Tenant is required to maintain the Premises throughout the Term.
12
29. Holdins? Over
29.1 Upon the expiration of this Lease by the passage of time and the Tenant remaining in
possession of the Premises:
(a) there shall be no implied renewal or extension of this Lease;
(b) if the Landlord consents in writing to the Tenant remaining in possession, the
Tenant shall be deemed, notwithstanding any statutory provision or legal
assumption to the contrary, to be occupying the Premises as a monthly tenant,
which monthly tenancy maybe terminated by either party on thirty (30) days
written notice to the other, which thirty (30) day period need not end on the first
day of a calendar month;
(c) if the Landlord does not consent in writing to the Tenant remaining in possession,
the Tenant shall be deemed, notwithstanding any statutory provision or legal
assumption to the contrary, to be occupying the Premises as a tenant at the will of
the Landlord, which tenancy may be terminated at any time by the Landlord
without the necessity of any notice to the Tenant; and
(d) the Tenant shall occupy the Premises on the same terms and conditions as are
contained in this Lease (including, without limitation, the obligation to pay
Additional Rent), save and except that;
(i) the Term and the nature of the tenancy shall be as set out in paragraphs (b)
or (c) of this Section as the case maybe;
(ii) the Minimum Rent payable by the Tenant shall be paid monthly at a rate
equal to $2.00 per month; and
(iii) the Tenant shall not be entitled to take the benefit of any rights or renewal
or rights to extend, rights of first refusal, options to purchase, or any other
rights personal to the Tenant and which maybe contained in this Lease.
The Tenant shall be estopped and forever barred from claiming any right to occupy the Premises
on terms other than as set out in this Section and the Landlord may plead this Section in any
court proceedings. The Tenant shall indemnify and save harmless the Landlord from all claims
incurred by the Landlord as a result of the Tenant remaining in possession of all or any part of [he
Premises following the expiry of the Term. Nothing in this Section shall be interpreted as
permitting or giving the Tenant an option to stay in possession of the Premises following the
expiry of the Term and the Tenant shall surrender the Premises to the Landlord on the expiry of
the Term.
30. Financial Records
30.1 The Tenant shall establish and maintain, in accordance with good accounting principles
satisfactory to the Landlord's auditor, proper bank accounts and records for all funds received
and disbursed by the Tenant, and all bookkeeping and accounting systems and supporting
vouchers and documentations.
30.2 The Tenant shall serially record all receipts and revenues and all disbursements for each
financial year and will use serial, prenumbered receipts for all donations collected.
30.3 No later than March 31S`, each year, the Tenant shall file with the Landlord's Director of
Finance/Treasurer, areport from a qualified accountant for all expenditures, receipts and their
financial status. Council may request an auditor's report at any point in time to be paid for by the
Municipality and in such a case, the Tenant will provide the auditor with immediate access to all
records and persons he/she are required to fulfill the Report.
13
31. Lease to Prevail if in Conflict with Memorandum of Understanding
31.1 Except as otherwise provided in this Lease, nothing contained herein shall derogate from
the rights and obligations of the Landlord and Tenant, only the Memorandum of Understanding
dated June 10, 1999. In the case of any conflict between the provisions of this Lease and the
Memorandum of Understanding as it may be amended from time to time, the provisions of this
Lease shall prevail.
32 PartialInvalidity
32.1 If for any reason whatsoever any term, covenant or condition of this Lease, or the
application thereof to any Person, firm or corporation or circumstance, is to any extend held or
rendered invalid, unenforceable or illegal, then such term, covenant or condition:
(a) is deemed to be independent of the remainder of the Lease and to be severable and
divisible therefrom, and its validity, unenforceability orillegality does not affect,
impair or invalidate the remainder of the Lease or any part thereof; and
(b) continues to be applicable to and enforceable to the fullest extent permitted by law
against any Person and circumstance other than those as to which it has been held
or rendered invalid, unenforceable or illegal.
33. Time of Essence
33.1 shall be of the essence in all respects hereunder.
34. Enforceability
34.1 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.
35. Entire Agreement
35.1 This Lease is the entire agreement between the parties with respect to the lease to the
Tenant of the Premises. There is no representation, warranty, collateral agreement or condition
affection this Lease other than is expressed herein in writing. No subsequent alteration,
amendment, change or addition to this Lease shall be binding upon the Landlord or the Tenant
unless in writing and signed by each of them.
36. Laws of Ontario
36.1 This provisions of this Lease and its interpretation shall be governed by the laws of the
Province of Ontario.
37. Notice
37.1 If any notice or other document is required to be or may be given by 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:
14
The Landlord:. The Corporation of the Municipality
of Clarington
40 Temperance Street
Bowmanville, Ontario L1C 3A6
Attention: Director of Planning Services
If by telecopier: (905) 623-0830
The Tenant: Valleys 2000 (Bowmanville) Inc.
38 King Street West
Bowmanville, Ontario LIC 3K8
Attention: Secretary
If by telecopier: (905)
or such other address of which the Landlord or the Tenant has notified the other in writing. Any
such notice so mailed by prepaid mail or delivered shall be deemed good and sufficient notice
under the terms of this Lease, and the notice if sent. by prepaid mail shall be effective five (5)
days after the date on which it is so mailed. Any notice transmitted by telefax shall be effective
from the date that it is telefaxed.
38. Enurement
38.1 This Lease and everything herein contained shall enure to the benefit of and be binding
upon the parties hereto their successors and permitted assigns respectively.
IN WITNESS WHEREOF the parties have duly executed and unconditionally delivered
this Lease as of the date above written.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
Per:
Mayor: John Mutton
Per:
Municipal Clerk: Patti L. Barrie
UWe have authority to bind the Corporation.
VALLEYS 2000 (BOWMANVILLE)
INC.
Per:
Name: Frank Wallace Lockhart
Title: Chair
Per:
Name: William John Huether
Title: Treasurer
I/We have authority to bind the Corporation.
SCHEDULE '°A"
Premises
Part Lot 11 and 12, Concession 1
40R-19709, Pts 1 -4 Pin 269320375
40R-21286 Parts 1-5, 8
Part Road Allowance between Lots 12 and 13 Pin 269320372
SCHEDULE "13"
Lands Owned by Municiaality of Clarin ton
To be Leased to Valleys 2000
Lands Owned by Municipality of Clarington, to be Leased to Valleys 2000
® Other Lands Owned by Municipality of Clarington
® Lands Owned by CLOC, Leased by Municipality of Clarington
Lands Owned by Goodyear, Leased by Municipality of Clarington
Valley Lands Owned/Leased by the Municipality of Clarington