HomeMy WebLinkAboutCOD-008-04
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REPORT #2
CI~-!lJgron
REPORT
CORPORATE SERVICES DEPARTMENT
Meeting:
COUNCIL
Date: FEBRUARY 16, 2004
Report #: COD-008-04
File#_
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By-law #
Subject:
19 BOULTON STREET, NEWCASTLE, LEASE AGREEMENT
Recommendations:
It is respectfully recommended to Council the following:
1. THAT Report COD-008-04 be received;
2. THAT the Lease agreement Schedule "A" with Catherine Howse, in the amount of
$1200.00 per month for one (1) year term be approved; and
3. THAT the attached By-law marked Schedule "B" authorizing the Mayor and the Clerk to
execute the necessary agreement be approved.
Submitted by:
arie Marano, H.B.Sc., C.M.O.
Director of Corporate Services
70 / ci
Reviewed by: '---._ ,.47, ""',,:...." -- c) :' cA..
Frankiin Wu,
Chief Administrative Officer
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REPORT NO.: COD-OOS-Q4
PAGE 2
BACKGROUND AND COMMENT
On September 15, 2003, Council approved the following:
"Whereas the previously approved rental arrangements for 19 Boulton Street were not
successful, now therefore be it resolved:
1. THAT staff be authorized to approach and negotiate with interested established
businesses within the Municipality of Clarington for the potential leasing of 19 Boulton
Street, Newcastle;
2. THAT should there be no interest, that the services of a real estate firm be secured to
find a suitable tenant to lease the subject property;
3. THAT should recommendations #1 and #2 not be successful that staff be authorized to
publicly advertised the subject property for lease; and
4. THAT when a suitable tenant is found and upon successful negotiation of an agreement,
that the proposed lease agreement be brought forward to Council for approval."
With respect to item 1 of the resolution, letters were sent to twenty five (25) area business's
to seek interest in leasing the subject property.
As none of the firms expressed interest, the services of "Remax Cornerstone Realty"
Bowmanville were retained to find a suitable tenant. The services of the agent include:
advertising, showing of the property, reference and credit checks. The fee for the service is,
one month's rent.
The proposed tenant Catherine Howse, has offered $ 1200.00 per month to lease the
property. All utilities and property taxes are extra and payable directly by the tenant.
The proposed lease is effective, February 17, 2004, and will expire February 16, 2005. An
extension for an additional one (1) year term is subject to successful negotiation of terms
and lease amount. Any proposed extension will be brought forward to Council at that time.
The Director of Finance has reviewed the insurance clauses in the Lease Agreement.
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOW MANVILLE, ONTARIO L 1C 3A6 T(905)623-3379 F (905)623-4169
.
.
Schedule "B"
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2004-
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.
By-law read a first and second time this day of
,2004.
By-law read a third time and finally passed this
day of
,2004.
John Mutton, Mayor
Patti l. Barrie, Municipal Clerk
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THIS LEASE dated as of the _ day of
Forms of Leases Act.
, 2004, in pursuance of the Short
BETWEEN:
The Corporation of the ,Municipality of Clarin9ton
(hereinafter called the "Landlord")
,
- and-
Catherine Howse
Tenant
(hereinafter called the 'Tenanr)
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 17~, 2004 and ending February 16~, 2004 (hereinafter called the "Term"). with
the option to renew for an additional 1 year.
(b)
Neaotiations 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 parly 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.
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3.
Basic Rent
During the Term, the Tenant shall pay to the Landlord monthly minimum rent ("Basic Rent") 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 Charoes
(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 ai' 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 ResDonsibilities
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, inciuding hot and cold water, gas, eiectricity
and sewer charges; and
iii) costs of any repairs to the structural envelope/physical plant of the building.
6. Tenant's ResDonsibilities
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 iegislation.
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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 ~imilar premises (reasonable wear and tear and
damage by fire, lightning and tempest and stlJUctural defects only excepted). The Tenant shall
keep the Premises clean and in such conditionlas a prudent owner would do. If structural repairs
or replacements to the roof, foundation or lo~d 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 fumishings or addnional equipment of the
Tenanfs 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.
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9. Access to Premises
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(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, repa,irs, replacements,
alterations or improvements to the Premises or any part thereof as may be permitted
or required by this lease, or to pertonn any maintenance, repairs, replacements.
alterations or improvements to the Building, or any part thereof or to the HV AC 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 materiai 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 duty to 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 bodiiy injury, death and
damage to property including loss of use thereof.
(ii) The Commercial I Comprehensive General Liability insurance policies shall be in the name
of the Tenant and shall name the Landlord as an additional insured thereunder.
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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 notlbe cancelled or terminated, except after .not less
than thirty (30) days written notice by regist~red 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 qall 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, dedarations 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 arid 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 liabmties, 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;
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10.5 Indemnitv (cont'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 discomforl, 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 10.6(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 persdn or damage to
property or any other Joss 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 Resoonsibilitv for Loss or Damaae
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.
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10.6 Resoonsibility for Loss or Damaae (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 Iimnation, 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 piaster, 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), sprlnklers,
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 Landiord 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
cieaning 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 ariy 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 responslbie 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 shali 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 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.
10.8 Danaerous 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.
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DAMAGE AND DESTRUCTION
11.1 Damaae 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, (iii) the
following provisions of this Article shail 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 shail be
limited to the extent to which the Landlord is otherwise insured.
11.2 Insured Damaae 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 elect to terminate this Lease by giving writlen 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 U,ninsured Damaae to Premises
If there is damage to or destruction of the Premises, and, in the Architect's opinion, (i) such
dama9.8 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 Oi) the Restoration
of the Premises is not capable of being compieted 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. "the Landlord does not so elect to
terminate this Lease, the Landlord shali 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 Damaae to Premises
If (i) in the Architect's opinion, Restoration of any porlion 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 accurrence of
damage or destruction to such portions or (ii) 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. "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.
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11.5 Actions Followina 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 jf it had maintained
such insurance as is required to be maintained by the Landlord hereunder, shali 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 shali 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 shali 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 Liabiiitv
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, Joss 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 shali indemnify and save harmless the Landlord
from and against all such damages.
12. ASSIGNMENT LEASE
12.1 Consent Reauired
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.
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13, Government Reauirernents
The Tenant shall, at its sole cost and expense, during the Term:
(a) observe and comply with all applicable govemmental laws and regulations including,
without limitation, federal and provincial legislative enactments, Building by-laws and other
governmentai or municipal regulations I which relate to the Premises or the partitioning,
equipment, operation and use thereof land to the making of any repairs, repiaoements,
alterations, additions, changes, substitutions or improvements of or to the Premises. The
Tenant shall compiy with ai' polioe, fire and sanitary regulations imposed by any federal,
provincial or municipal authorities, Dr. made by insurance underwriters and shall observe all
governmental and municipal regulations' and other requirements governing the conduct of
any business conducted in the Premises;
(b) obtain all necessary permits, lioenses and approvals relating to the use and occupancy of
the Premises and the conduct of business therein; and
(c) carry out all modifications, alterations or changes to the Premises and the Tenant's
. conduct of business in or use of the Premises which are required by any such authorities.
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 in
law responsible.
14. Default
The following events ("Events of Default") shall be deemed a default (a "defauif') 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) 'f 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 the payment of Basic
Rent, and such default remains unremedied after thirty (30) days following written notioe
from the landlord to the Tenant specifying such default and requiring the Tenant to
remedy the default;
(c) If the Tenant falls to observe and perform any other term, covenant, conditions or
obiigation under this Lease that is not capable of remedy other than a default in the
payment of Basic Rent, and the Tenant receives written notice from 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 attempts to take the
advantage of any legislation for relief of bankrupt or insolvent debtors, or if a receiver or a
reoeiver 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 or liquidation of the Tenant or its assets, unless such
prooeeding be set aside, discharged or abandoned within fourteen (14) days.
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15. Riaht of Re-Entrv
Upon an Event of Default and at the opinion of the Landlord, the Landlord, in addnion 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
othelWise, 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 disposnion 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 wilhout the necessity of any legal proceeding
whatsoever. The Tenant shall thereupon within three (3) days qun 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, Riahl 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 reietting, 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 during a month is iess 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. Seoarate 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.
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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 th~ Term shall be exempt from levy by distress for rent
in arrears, and if any daim is made fet 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 \lIaiving 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 covenant, 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 sh~1I be of the essence in all respects hereunder.
22: . Enforceabilitv
If any term, covenant or condnion 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, IT delivered personally or
forwarded by registered mail and addressed in the case of the Landlord to:
40 Temperance Street, Bowmanville, Ontario, L 1C 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. Governina Law
This Lease shall be interpreted, govemed and enforced in accordance with the laws of the
Province of Ontario, Canada.
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','
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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.
I
, IN WITNESS WHEREOF the parties rave duly executed and uncondnionally delivered
this Lease as of the date first above written.
I
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By:
John Mutton, Mayor
And:
Patti L. Barrie, Clerk
Tenant
By:
And:
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