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HomeMy WebLinkAbout2004-048 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2004- 048 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Catherine Howse, to enter into agreement for the lease of 19 Boulton Street, Newcastle. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a contract between, Catherine Howse, Ontario, and said Corporation; and 2. THAT the contract attached hereto as Schedule "A" form part of this By-law. 16 February By-law read a first and second time this day of , 2004. 16 February By-law read a third time and finally passed this day of , 20u4. .~ ':-- i Municipality of Clarington EXECUTED CONTRACT L!~m~Wl1 Municipality of Clarington EXECUTED CONTRACT , 2004, in pu-':suanceof the Short , , THIS LEASE dated as of the \~~y of "\==.h Forms of Leases Act. BETWEEN: The Corporation of the Municipality of Clarington (hereinafter called the "Landlord") - and - Catherine Howse Tenant (hereinafter called the "Tenant") WHEREAS the Landlord has agreed to lease to the Tenant and the Tenant has agreed to lease from the Landlord the designated space located in the building known as 19 Boulton Street, Newcastle, Municipality of Clarington, Regional Municipality of Durham (the "Premises"). 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 leases to the Tenant, and the Tenant leases from the Landlord, the Premises on the following terms and conditions: 1. Term (a) The Tenant shall have and hold as tenant for a period of one (1) year commencing February 1ih, 2004 and ending February 16th, 2004 (hereinafter called the "Term"), with the option to renew for an additional 1 year. (b) Neootiations for extension or new lease At least two (2) months prior to the termination of the Term, either the Landlord or the Tenant may give the other written notice that the party giving the notice wishes to negotiate an extension of the Term of this lease. During the negotiations, if any, the Landlord and the Tenant will act in good faith to attempt to settle the terms and conditions of an extension agreement or the making of a new lease, as the case may be. 2. Use The Tenant shall continuously utilize the Premises throughout the Term, subject to and in accordance with the provisions of this Lease, for the sole purpose of housing accommodation. For the purpose of this lease the Tenant is defined as "Catherine Howse", The Tenant shall not commit or suffer or permit to be committed (i) any waste or damage, disfiguration or injury to the Premises or the improvements, installations, fixtures and equipment thereon and (ii) any nuisance in, at or on the Premises. The Tenant shall not do or permit anything to be done that results in the cancellation or threatened cancellation or the reduction of coverage under or threatened reduction of coverage under any insurance policy on the Premises or any part of it. Page 1 of 13 H:ILEASESILS-19BOUL TONST-2004.DOC -2- 3. Basic Rent During the Term, the Tenant shall pay to the Landlord monthly minimum rent ("Basic Renf') in an amount equal to (i) Twelve Hundred Dollars ($1200,00), plus G.S.T. if applicable, per month and to provide post dated cheques for the term of the agreement. Basic Rent shall be payable in monthly instalments, each payable on the first day of each month, provided that should the Term commence or terminate on a date other than the first day of a month, the Tenant shall pay to the Landlord for that month a pro rata portion of said monthly payment. Basic Rent shall be considered as accruing from day to day and where it becomes necessary for any reason to calculate rent for an irregular period of less than one year or less than one calendar month, an appropriate apportionment and adjustment shall be made, The Tenant shall charge to their employees no more than the amount stipulated in this lease, nor are they to realize any financial gain from the provision of the premises to their employees. 4. Other Charqes (a) In each and every year during the Term of this Lease and any renewal or extension thereof, 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 telephone used upon or in respect of the Premises or for fittings, machines, apparatus, meters or other things leased in respect thereof, and all work and 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 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, 5, Landlord's Responsibilities The Landlord acknowledges covenants and agrees to: i) maintain annually and when required, the oil furnace; ii) to provide all utilities to the designated area, including hot and cold water, gas, electricity and sewer charges; and Iii) costs of any repairs to the structural envelope/physical plant of the building. 6. Tenant's Responsibilities i) to pay for all operating expenses including, but not limited to, heat, hydro, water, waste removal, grass cutting, snow removal, etc. ii) music noise and related activities must be kept to reasonable levels in respect of the quiet of the community; and Iii) all parties will respect all municipal and provincial legislation. Page 2 of 13 H:\LEASES\LS-19BOUL TONST-2004.DOC - 3- 7. Reoairs and Maintenance The Tenant, at its own expense, shall maintain and keep the Premises and every part thereof, in good working order and condition and promptly make all needed maintenance, repairs and replacements as would a prudent owner of similar premises (reasonable wear and tear and damage by fire, lightning and tempest and structural defects only excepted). The Tenant shall keep the Premises clean and in such condition as a prudent owner would do, If structural repairs or replacements to the roof, foundation or load bearing walls or the heating equipment of the Premises are required during the Term, then the Landlord shall be obligated, at its expense, to effect such repairs or replacements. The Tenant covenants with the Landlord to leave the Premises in as good repair as the Premises were at the commencement of the Term. 8. Alterations (a) If the Tenant, during the Terms of this Lease or any renewal of it, desires to make any alterations or additions to the Premises, including but not limited to: erecting partitions, attaching equipment, and installing necessary furnishings or additional equipment of the Tenant's business, the Tenant may do so at his own expense, at any time and from time to time, if the following conditions are met: (i) before undertaking any alteration or addition that the Tenant may require, the Tenant shall submit to the Landlord a plan showing the proposed alterations or additions and the Tenant shall not proceed to make any alteration or addition unless the Landlord has approved the plan, and the Landlord shall not unreasonably or arbitrarily withhold its approval and items included in the plan; and (ii) any and all alterations or additions to the Premises made by the Tenant must comply with all applicable building code standards and by-laws of the municipality in which the Premises are located. (b) The Tenant shall be responsible for and pay the cost of any of their alterations, additions, installations or improvements that any governing authority, municipal, provincial or otherwise, may require to be made in, on or to the Premises. (c) No sign, advertisement or notice shall be inscribed, painted or affixed by the Tenant, or any other person on the Tenant's behalf, on any part of the inside or outside of the building in which the Premises are located unless the sign, advertisement or notice has been approved in every respect by the Landlord. (d) All alterations and additions to the Premises made by or on behalf of the Tenant, other than the Tenant's Trade Fixtures, shall immediately become the property of the Landlord without compensation to the Tenant. (e) The Tenant agrees, at his own expense and by whatever means may be necessary, immediately to obtain the release or discharge of any encumbrance that may be registered against the Landlord's property in connection with any additions or alterations to the Premises made by the Tenant or in connection with any other activity of the Tenant. Page 3 of 13 H:\LEASES\LS-19BOUL TONST-2004.DOC -4- 9. Access to Premises (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 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; (Ii) 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; (iii) to read any utility or other similar meter located in the Premises; (iv) during the last three (3) 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; (v) to exercise any of the rights available to the Landlord pursuant to this lease or to perform such work in respect to the Premises, or any part thereof, as the Landlord shall deem necessary. (b) 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 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. 10. Insurance 10.1 Tenant's dutvto Insure The tenant shall obtain and maintain throughout the term of this lease and any extension renewal thereof. (i) The Tenant shall provide and maintain during the term of the lease Commercial / Comprehensive General Liability insurance acceptable to the Municipality and subject to limits of not less than $3,000,000.00 inclusive per occurrence for bodily injury, death and damage to property including loss of use thereof, (ii) The Commercial/Comprehensive General Liability insurance policies shall be in the name of the Tenant and shall name the Landlord as an additional insured thereunder, Page 4 of 13 H :\LEASES\LS-19BOUL TONST -2004.DOC 10.2 Terms of Policies Each policy of insurance referred to in Section 10.1, shall be in form and substance and with insurers 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 10.1 shall contain a waiver, in respect of the interests of the landlord of any policies with respect to any breach or violation of any warranties, representations, declarations or conditions contained in such policies. 10.3 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. 10.4 Failure to Provide Insurance The cost or premium for each and every such policy shall be paid by the Tenant prior to the due date thereof. 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 (and if the Tenant fails to commence 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 therefore), then the landlord shall have the right, but not the obligation, to do so, to pay the cost or premium therefore, without prejudice to any other rights or remedies of the Landlord under this leases or at law, and in such event the Tenant shall repay to the landlord on demand, the amount so paid, 10,5 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 10.5 and in Section 10.6 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 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) 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; Page 5 of 13 H :\LEASES\LS-19BOUL TONST ,2004. DOC 10,5 Indemnitv (oont'd) (ii) 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, Tenants, assignees, concessionaires, contractors or persons for whom the Tenant is in law responsible (collectively in this Section 10.3 and in Section 10.4 called "Tenant's Employees"); (iii) 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; (iv) 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 Premises 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 1 0.6(b); (v) 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; and/or (vi) 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 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 carriage 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, 10,6 Responsibilitv for loss or Damaqe The provisions of this Section 10.6 shall govern notwithstanding any other provision of this Lease. (a) Except where the landlord or a person for whose acts or omissions he 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 the Premises, or damage to the property of the Tenant or of others located on the Premises or the Premises, from any cause whatsoever other than the negligence of the landlord or a person for who acts or omissions the Landlord is responsible in law, 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, 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. Page 6 of 13 H:\LEASES\LS-1980UL TONST-2004.DOC 10.6 ResDonsibilitv for loss or Damaqe (cont'dl (b) Without limiting the generality of the foregoing, 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, except where it is caused by the landlord's negligence or the negligence of any person for whose acts or omissions the landlord is responsible in law: (i) fire, explosion, theft, breakage, falling plaster, falling ceiling tile, falling fixtures, steam, gas, electricity, water, rain, flood, ice, snow or leaks into, in or from any part of the 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 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; (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, the Premises, 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 shall be so kept or stored at the sole risk of the Tenant, and the Tenant releases and agrees to indemnify the 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, 10.7 Benefit of Indemnitv. 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, 10.8 Danqerous Use The Tenant shall not do, omit or permit anything which will increase the cost of the landlord's 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's demand for payment, the amount of any increase in the cost of insurance caused by anything so done, omitted or permitted. Page 7 of 13 H:ILEASESILS,19BOUL TONST-2004.DOC DAMAGE AND DESTRUCTION 11.1 Damaqe to Premises If the Premises 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, (Hi) 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 otherwise insured. 11.2 Insured Damaqe to or Destruction of Premises If damage to or destruction of the Premises 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 Premises be demolished or substantially demolished prior to any Restoration, then the landlord may eiect 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 Premises to the extent of its obligations pursuant to Section 11,6. 11.3 Uninsured Damaqe to Premises If there is damage to or destruction of the Premises, 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 (H) the Restoration of the Premises is not capable of being completed within sixty (60) days following the occurrence of such damage or destruction and such damage or destruction occurs within two (2) years prior to the expiry of the Term of this lease 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 Premises to the extent of its obligations pursuant to Section 11.6, 11.4 Termination of lease After Destruction or Damaqe to Premises If (i) in the Architect's opinion, Restoration of any portion of the Premises, and Equipment which affects access or services essential to any of them is not capable of being completed with reasonable diligence within one hundred and eighty (180) days following the occurrence of damage or destruction to such portions or (H) any authority requires that the Premises, be demolished or substantially demolished prior to any Restoration following damage or destruction to the Premises, 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 Premises, 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, subject to Sections 11.2 and 11.3, the landlord shall diligently perform the Restoration of the Premises, to the extent of its obligations pursuant to Section 11,6. Page 8 of 13 H:\LEASES\LS-19BOUL TONST-2004.DOC 11.5 Actions Followinq Termination 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, 11.6 Restoration of Premises If this lease is not terminated as provided in this Article, the landlord, to the extent of the insurance proceeds which the landlord receives or would have received if it had maintained such insurance as is required to be maintained by the landlord hereunder, shall proceed to perform such Restoration of the Premises, limited to the extent of its express obligations under this lease. The obligation of the landlord with respect to Restoration following any damage or destruction under this Article shall be performed in accordance with all applicable obligations contained herein with reasonable diligence. 11.7 Restoration and Insurance Proceeds (a) If there is damage or destruction to the Premises, and if this lease is not terminated pursuant to this Article, the landlord, in performing the restoration of the same, or any part thereof, as required hereby, shall not be obliged to perform such Restoration in accordance with the plans, drawings or specifications for the Building as defined in the lease, 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 Municipality of Clarington under the Lease in its sole discretion. Without limiting the generality of the foregoing, the Tenant agrees that the landlord shall be entitled to demolish and rebuild the Building, or any part thereof. (b) The insurance, which is required to be maintained by the Tenant and which insurance is required to name the Municipality of Clarington as an additional insured parties. 11.8 Determination of Matters For the purposes of this Article, the date of any damage or destruction, the determination of and extent to which any portion of the Premises is damaged, destroyed, rendered unsafe or are not capable of being used, the times within which Restoration may be made and the date that it is completed or substantially completed shall be determined by the Architect in his sole discretion, such determination to be final and binding on the parties hereto. 11.9 Limitation of Liability 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 employees, customers, suppliers, 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, 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. 12. ASSIGNMENT. lEASE 12.1 Consent Required The Tenant shall not assign this lease, or let, or licence any person to use the whole or any portion of the Premises for any other purpose that expressly provided within this lease agreement. Page 9 of 13 H:\LEASES\LS-19BOUL TONST ,2004.DOC , 13. Government Reauirements The Tenant shall, at its sole cost and expense, during the Term: (a) observe and comply with all applicable govemmental laws and reg~lations including, without limitation, federal and provincial legislative enactments, Building,by-Iaws and other governmental or municipal regulations which relate to the Premises 4lr the partitioning, equipment, operation and use thereof and to the making of any repClirs, replacements, alterations, additions, changes, substitutions or improvements of or to t~e Premises, The Tenant shall comply with all police, fire and sanitary regulations impos~d by any federal, provincial or municipal authorities, or made by insurance underwriters a~d shall observe all governmental and municipal regulations and other requirements gover~ing the conduct of any business conducted in the Premises; (b) obtain all necessary permits, licenses and approvals relating to the usetand occupancy of the Premises and the conduct of business therein; and (c) carry out all modifications, alterations or changes to the Premises iand the Tenant's conduct of business in or use of the Premises which are required by anyjsuch authorities. The Tenant shall indemnify and hold the Landlord harmless against any penaJY or fine imposed for any violation of any law, by-law or regulation by the Tenant or those for whQlTl the Tenant is in law responsible. 14. Default The following events ("Events of Default") shall be deemed a default (a "d~fault") under this lease: (a) If the Tenant fails to pay any instalment of Basic Rent promptly when due, no later than five (5) days following the respective due date; (b) If the Tenant fails to observe or perform any other term, covenant, con(:lition or obligation under this Lease that is capable of remedy other than a default in thelpayment of Basic Rent, and such default remains unremedied after thirty (30) days follo'tling written notice from the landlord to the Tenant specifying such default and requir'-'g the Tenant to remedy the default; (c) If the Tenant fails to observe and perform any other term, covenflnt, conditions or obligation under this lease that is not capable of remedy other tha(1 a default in the payment of Basic Rent, and the Tenant receives written notice f~om the Landlord specifying such default; (d) If 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 a'empts to take the advantage of any legislation for relief of bankrupt or insolvent debtors, Qr 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 T en~nt or by any other party including. without limitation, any court or governmental body of cOr(1petent jurisdiction for the dissolution, winding-up or liquidation of the Tenant or its asi>ets, unless such proceeding be set aside, discharged or abandoned within fourteen (14) ~ays. Page 10 of 13 H:ILEASESILS-19BOUL TONST-2004.DOC 15, Riaht of Re-Entrv Upon an Event of Default and at the opinion 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 trade fixtures therefrom, any rule of law or equity to the contrary notwithstanding. The Landlord may seize and sell such goods, chattels, equipment and trade 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 party by another, all as the Landlord in its sole discretion may decide, If any of the Tenant's property is disposed of as provided in this Section, ten (10) days prior notice to the Tenant of disposition shall be deemed to be commercially reasonable. 16, Riaht of Termination In addition to all rights and remedies of the Landlord available to it by any provision of this Lease or given by law to the Landlord, the Tenant agrees that upon an Event of Default the Landlord shall have the right to terminate this Lease upon notice in writing to the Tenant. Upon such notice, this Lease shall terminate immediately without the necessity of any legal proceeding whatsoever. The Tenant shall thereupon within three (3) days quit and surrender the Premises to the Landlord, or if not yet in possession, the Tenant shall no longer have any right to possession of the Premises, and the Landlord, its agents and servants, 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, 17. Riaht to Re-Iet etc, 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 under this section or it 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 (Hi) 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 during a month is less than the rent to be paid during that month by the Tenant, the Tenant shall pay the deficiency to the Landlord. The deficiency shall be calculated by the Landlord and paid monthly in advance on or before the first day of every month by the Tenant. 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. 18. Separate Remedies The Landlord may from time to time resort to any or all of the rights and remedies available to it upon an Event of Default, either by any provision of this Lease or by statute or the general law, all of which rights and remedies are intended to be cumulative and not alternative and may be exercised generally or in combination. Page 11 of 13 H:\LEASES\LS-19BOUL TONST-2004.DOC , ". , 19. 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 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 of 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 by for this Lease. (b) 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 coitenant, conditions, 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. 20. Covenants 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. The Tenant acknowledges that it shall have no right to any benefit of division or discussion. 21, Time of Essence Time shall be of the essence in all respects hereunder. 22. Enforceabilitv 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 conditions 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. 23. Notices Any notice that one party hereto may desire or be required to give to the other party hereto shall for all purposes be deemed to have been sufficiently and properly given, if delivered personally or forwarded by registered mail and addressed in the case of the Landlord to: 40 Temperance Street, Bowmanville, Ontario, L 1 C 3A6 Attention: Lou Ann Birkett, Purchasing Manager and in the case of the Tenant to the Premises and shall be presumed to have been received on the date of delivery, if delivered personally, or if forwarded by registered mail on the third business day following such mailing. Any notice shall be in writing, except as expressly otherwise provided herein, and shall be given only by delivery as aforesaid in the event of post interruption. 24. Governino Law This Lease shall be interpreted, govemed and enforced in accordance with the laws of the Province of Ontario, Canada. Page 12 of 13 H:\LEASES\LS,19BOUL TONST-2004.DOC . .,. . 25. Enurement 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 first above written. THE CORPORATION OF THE ,,' MUNICIPALITY OF CL TOO- - -- By: And: am L.:Barrie, Clerk (' ~~ T'~~ '~~ And: Page 13 of 13 H:ILEASESILS,19BOUL TONST-2004.00C