HomeMy WebLinkAboutMay 6, 2024 - Special CouncilSpecial Council Meeting Agenda
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Planning & Development Committee Meeting
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Page 1.Call to Order/Roll Call
2.Disclosure of Interest
3.Delegations
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4.Matters for Consideration
4.1 Director, Community Services, Report CS 13-24 1
Lease Agreement for Office Space -Duffins Point Shopping Centre: 2460 Brock Road
Recommendation:
1.That the Lease Agreement between the City and OxfordDevelopments Inc. for approximately 4,435 square feet of officespace at 2460 Brock Road (Attachment 1) be approved;
2.That the Mayor and City Clerk be authorized to execute the Lease
Agreement, as set out in Attachment 1, subject to such minorrevisions as may be required by the Director, Community Services,and the Director, Corporate Services & City Solicitor; and,
Special Council Meeting Agenda
May 6, 2024 Hybrid Electronic Meeting Council Chambers Immediately Following the
Planning & Development Committee Meeting
For information related to accessibility requirements please contact: Council & Committee Coordinator
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3.That the appropriate City officials be authorized to take the actionsnecessary to give effect to this Report.
4.1 Director, City Development & CBO, Report PLN 13-24 82 Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, ERO 019-8462 Bill 185 and Revisions to Draft Provincial Planning Statement -City of Pickering Comments on ERO Postings
Staff Delegation
Paul Wirch, Principal Planner, Policy (In Person)
Recommendation:
1.That Council endorse the comments contained in Report PLN 13-24,as the City of Pickering Detailed Comments on the ERO PostingsERO 019-8366, ERO 019-8369, ERO 019-8371, and ERO 019-8462;
and,
2.That Council authorize the Chief Administrative Officer to submit theCouncil endorsed comments on the identified ERO postings to theMinistry of Municipal Affairs and Housing website by the May 10,
2024 deadline.
5.Confirmatory By-law
6.Adjournment
Report to Council
Report Number: CS 13-24
Date: May 6, 2024
From: Laura Gibbs Director, Community Services
Subject: Lease Agreement for Office Space -Duffins Point Shopping Centre: 2460 Brock Road
-File: A-1440-001
Recommendation:
1.That the Lease Agreement between the City and Oxford Developments Inc. forapproximately 4,435 square feet of office space at 2460 Brock Road (Attachment 1) be
approved;
2.That the Mayor and City Clerk be authorized to execute the Lease Agreement, as set outin Attachment 1, subject to such minor revisions as may be required by the Director,Community Services, and the Director, Corporate Services & City Solicitor; and,
3.That the appropriate City officials be authorized to take the actions necessary to giveeffect to this Report.
Executive Summary: The purpose of this Report is to seek Council approval for a ten-year lease of office space at 2460 Brock Road, Pickering for Community Services Department
staff currently working at leased space located at 1101 Kingston Road and at the Chestnut Hill
Developments Recreation Complex.
Relationship to the Pickering Strategic Plan: The Recommendations in this Report respond to the Pickering Strategic Plan Corporate Key to Deliver on Good Governance (Organizational Efficiency & Effectiveness).
Financial Implications: The attached Lease provides for a ten-year Term with two, five-
year renewal terms, with a Possession Date of August 6, 2024. For the first 120 days, the City is not be responsible for the payment of Basic Rent, Realty Taxes or Operating Costs but is responsible for the cost of all utilities consumed on the Premises. Basic Rent for years one to
five is $18.50 per square foot, being $82,047.50 per year ($6,837.29 per month) plus HST, and
for years six to ten is $20.25 per square foot, being $89,808.75 per year ($7,484.06 per
month). Operating Costs are estimated to be $14.50 per square foot per year in year one ($5,358.95 per month), subject to inflationary, actual increases in each successive year, plus HST.
In the 2024 Current Budget, $227,500 was provided for leasing and related operating costs at a satellite facility in the 10200 – Culture & Recreation – Administration cost centre. The table
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CS 13-24 May 6, 2024
Subject: Lease Agreement for Office Space – Duffins Point Shopping Centre Page 2
below provides a breakdown of the expected costs for the partial year in 2024 and for a full year in 2025. There is no Basic Rent due in 2024 through the rent-free fixturing period and
one-month rent-free provisions in the lease agreement. However, the City would be responsible for one month’s Operating Costs in 2024 as well as other facility-related costs
outside of the rental agreement for security, cleaning and IT connectivity.
Facility and Related Costs Estimated Costs 2024 - Partial Year
(Possession Date
August 6, 2024)
Estimated Costs 2025 - Full Year
Basic Rent $ - $83,500
Operating Costs * 5,500 65,400
Insurance 550 1,100
Building Maintenance 400 5,000
Fire Alarm & Security Monitoring 1,250 2,500
Facility Cleaning 2,900 35,000
IT Connectivity 6,000 12,000
Total $16,600 $204,500
2024 Budget $227,500
Under Budget ($210,900)
* Operating Costs (referred to as “Additional Rent” in the lease agreement) are the proportionate share of the Landlord’s costs to operate, maintain and manage the shopping
plaza and building, as well as certain costs associated with the leased premises, including
hydro, water and realty taxes. The amounts presented are estimates and will be subject to annual inflationary increases.
The City is also responsible for various one-time capital costs associated with leasehold
improvements, furniture and equipment. In the 2023 Capital Budget, $1,100,000 was approved
for this work under Capital Project C10240.2307 – Satellite Office Leasehold Improvements. In April 2024, Council approved a change to the scope of this project and set aside $300,000 of the funds for a municipal space needs study (FIN-06-24 / Resolution #440/24). As a result, the remaining uncommitted project budget is $800,000.
The estimated costs of the capital works are $771,824. A breakdown is shown in the table below.
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CS 13-24 May 6, 2024
Subject: Lease Agreement for Office Space – Duffins Point Shopping Centre Page 3
Table 1 – Breakdown of Capital Costs
Capital Costs Estimated Cost
Leasehold Improvements (including construction of washrooms,
kitchen, offices, meeting and related rooms, as well as all finishes and existing systems required for a building code compliant suite)
$465,000
Furniture, Fixtures and Equipment 200,000
IT Connectivity Costs
(Including switches, data racks & cabling, UPS, WIFI, Smart TV etc.)
80,000
Less: Tenant Inducement ($15 / square foot x 4,435 square feet of Rentable Area of Premises)
(66,525)
Subtotal $678,475
Contingency (12%, rounded down) 80,000
Subtotal $758,475
HST (net rebate) 13,349
Total Net Cost of Leasehold Improvements and Furniture, Fixtures & Equipment $771,824
Uncommitted Capital Project Budget - C10240.2307 $800,000
Under Budget ($28,176)
The capital costs above have been estimated pending the approval of the lease and
subsequent completion of detailed design works. Approval for specific costs and work will be sought, in accordance with the City’s procurement policies and procedures, as the project progresses. As required by Report FIN 030 Financial Control Policy - Section 07.06, a detailed
budget for leasehold improvements and furniture, fixtures & equipment will be provided to the
Treasurer upon completion of the design of the leased premises.
Discussion: The purpose of this Report is to seek Council approval for a ten-year lease (the “Lease”) of office space at 2460 Brock Road, Pickering. The Lease is Attachment 1 to this
Report.
Since 2011, the City has leased staff office space. From 2011 to 2016, the City leased spaced
in the historic Bentley Gibson House, located in the hamlet of Brougham. The Bentley Gibson
House was occupied by eight Community Services staff. That location presented several
challenges including unreliable internet, inconvenient location, and insufficient space for the growing staff complement. It therefore became necessary to move from this location.
The City then entered into a lease agreement with Emix Ltd. at 1101 Kingston Road, Pickering, starting January 1, 2016. The office space at 1101 Kingston Road includes 2,853 square feet of rentable office space on the 2nd floor of a commercial office tower with five enclosed offices,
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CS 13-24 May 6, 2024
Subject: Lease Agreement for Office Space – Duffins Point Shopping Centre Page 4
open space for multiple workstations, a meeting room, reception area, photocopy area, kitchenette and storage room. Since 2016, the Community Services – Cultural Services staff
complement, that was based out of 1101 Kingston Road, has increased. Additional workstations have been added to the space. There are currently 12 workstations in the space
at 1101 Kingston Road, serving 15 staff. The office space is no longer large enough to accommodate the Cultural Services team.
At the same time, the Operations Services division staff complement has grown to ten, and can no longer be accommodated at the Operations Centre. It is proposed that Community
Services Department staff move to the new premises at 2460 Brock Road, and that the Operations Services division team move into the existing leased space at 1101 Kingston Road.
The office space located at 2460 Brock Road is on the second floor of a retail/commercial
building. The office is located in the Duffins Point Shopping Centre. It has ample parking and is
located close to transit and shops. The office space area is approximately 4,435 square feet. It
will allow for up to 23 workstations, serving up to 30 staff with shared workstations, a staff kitchen, washrooms, a photocopy room and meeting rooms.
The key provisions of the Lease are as follows:
Premises: 4,435 square feet of office space on second floor, accessible by elevator;
Term: Ten years with two, five-year renewal terms;
Possession Date: Tuesday, August 6, 2024;
Fixturing Period: One hundred and Twenty (120) days during which the City is not
responsible for the payment of Basic Rent, Realty Taxes or Operating Costs but is responsible for the cost of all utilities consumed in the Premises;
Basic Rent:
Years 1 to 5: $18.50 per square foot, being $82,047.50 per year ($6,837.29 per month);
Years 6 to 10: $20.25 per square foot, being $89,808.75 per year ($7,484.06 per month);
Additional Rent: Estimated to be $14.50 per square foot per year in Year 1, subject to inflationary, actual increases in each successive year.
This office space will provide adequate space for the Community Services staff team until
additional office space becomes available in the Seaton Recreation Complex & Library.
Attachment:
1. Lease from Oxford Developments Inc. to The Corporation of the City of Pickering.
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CS 13-24 May 6, 2024
Subject: Lease Agreement for Office Space – Duffins Point Shopping Centre Page 5
Prepared/Approved/Endorsed By: Approved/Endorsed By:
Laura Gibbs MBA, MSc. Brian Duffield
Director, Community Services Director, Operations
LG:snc
Recommended for the consideration of Pickering City Council
Marisa Carpino, M.A.
Chief Administrative Officer
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Attachment 1 to Report CS 13-24
DUFFIN’S POINT INC. o/a SEATON CENTRE (LANDLORD)
-and –
CITY OF PICKERING
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Attachment 1 to Report CS 13-24
TABLE OF CONTENTS
Section
1.LEASE SUMMARY .................................................................................................... 1
2.DEFINITIONS............................................................................................................. 2
3.INTENT OF LEASE .................................................................................................... 9 3.1 Net Lease ............................................................................................................... 9
4.LEASE OF PREMISES................................................................................................ 9
4.1 Premises................................................................................................................. 9
4.2 Term ...................................................................................................................... 9 4.3 Licence to Use Common Facilities .......................................................................... 9 4.4 Quiet Enjoyment .................................................................................................... 9
4.5 Fixturing of Premises............................................................................................ 10 4.6 Shopping Centre Development.............................................................................. 10
5.RENT ........................................................................................................................ 10 5.1 Tenant to Pay ....................................................................................................... 10
5.2 Basic Rent ............................................................................................................ 10 5.3 Additional Rent and Management Fee ................................................................... 10
5.4 Deemed Rent and Allocation ................................................................................ 11 5.5 Monthly Payments of Additional Rent................................................................... 11
5.6 Rental Deposit...................................................................................................... 11
6.TAXES ...................................................................................................................... 12 6.1 Payment of Taxes ................................................................................................. 12 6.2 Taxes Payable by Tenant ...................................................................................... 12
6.3 Determination of Tenant’s Taxes .......................................................................... 13 6.4 Business Taxes and Sales Taxes ............................................................................ 13 6.5 Tax Bills and Assessment Notices ......................................................................... 13
6.6 Contest of Realty Taxes ........................................................................................ 14
6.7 Adjustments ......................................................................................................... 14
7.OPERATION OF SHOPPING CENTRE .................................................................... 14 7.1 Operation of Shopping Centre by Landlord ........................................................... 14 7.2 Tenant’s Payment of Operating Costs.................................................................... 14
7.3 Adjustments to Operating Costs ............................................................................ 15
8.USE OF PREMISES .................................................................................................. 15 8.1 Use of Premises .................................................................................................... 15 8.2 Name of Business ................................................................................................. 15
8.3 Conduct of Business ............................................................................................. 16 8.4 Tenant’s Fixtures .................................................................................................. 16
8.5 Intentionally Deleted. ........................................................................................... 16 8.6 Signs .................................................................................................................... 16
8.7 Prohibited Uses .................................................................................................... 16 8.8 Waste Removal .................................................................................................... 17 8.9 Pest Control ......................................................................................................... 17 8.10 No Storage ........................................................................................................... 17
8.11 Waste and Nuisance.............................................................................................. 18 8.12 Compliance with Laws ......................................................................................... 18 8.13 Deliveries............................................................................................................. 19
8.14 Environmental ...................................................................................................... 19
8.15 Use of Shopping Centre Name .............................................................................. 19
8.16 Exclusivities ......................................................................................................... 20
9.SERVICES AND UTILITIES .................................................................................... 20 9.1 Utilities ................................................................................................................ 20
9.2 Heating and Air Conditioning ............................................................................... 21 9.3 Landlord’s Suspension of Utilities, Etc. ................................................................. 21
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9.4 Landlord’s Services .............................................................................................. 21 9.5 Landlord’s Charges for Services ........................................................................... 22
10.MAINTENANCE, REPAIRS AND ALTERATIONS ................................................. 22
10.1 Maintenance and Repairs of Premises ................................................................... 22 10.2 Approval of Repairs and Alterations...................................................................... 22 10.3 Repair According to Landlord’s Notice ................................................................. 23
10.4 Notice by Tenant .................................................................................................. 23
10.5 Ownership of Leasehold Improvements................................................................. 24
10.6 Construction Liens ............................................................................................... 24 10.7 Landlord’s Repairs ............................................................................................... 24
11.END OF TERM ......................................................................................................... 25
11.1 Vacating of Possession ......................................................................................... 25 11.2 Removal of Trade Fixtures.................................................................................... 25 11.3 Removal of Leasehold Improvements.................................................................... 25 11.4 Overholding by Tenant ......................................................................................... 25
12.DAMAGE AND DESTRUCTION ............................................................................. 25 12.1 Damage to Premises or Shopping Centre ............................................................... 25
12.2 Damage to Shopping Centre.................................................................................. 25 12.3 Restoration of Premises or Shopping Centre .......................................................... 26
12.4 Determination of Matters ...................................................................................... 26
13.INSURANCE AND INDEMNITY ............................................................................. 26 13.1 Landlord’s Insurance ............................................................................................ 26 13.2 Tenant’s Effect on Other Insurance ....................................................................... 27
13.3 Tenant’s Insurance ............................................................................................... 28 13.4 Landlord’s Right to Place Tenant’s Insurance ........................................................ 29 13.5 Landlord’s Non-Liability ......................................... Error! Bookmark not defined.
13.6 Indemnity of Landlord .......................................................................................... 30
13.7 Landlord’s Employees .......................................................................................... 30
14.ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL............................... 30 14.1 Consent Required ................................................................................................. 30 14.2 Obtaining Consent ................................................................................................ 31
14.3 Landlord’s Option ................................................................................................ 32 14.4 Terms of Transfer ................................................................................................. 32 14.5 Effect of Transfer ................................................................................................. 33 14.6 No Advertising of Premises .................................................................................. 34
14.7 Mortgage of Lease ................................................................................................ 34 14.8 Corporate Tenant/Indemnifier ............................................................................... 34
14.9 Assignment by Landlord ....................................................................................... 34
15.STATUS AND SUBORDINATION OF LEASE......................................................... 35
15.1 Status Statement ................................................................................................... 35 15.2 Subordination ....................................................................................................... 35 15.3 Tenant’s Failure to Comply................................................................................... 36 15.4 Registration .......................................................................................................... 36
16.DEFAULT AND REMEDIES .................................................................................... 36 16.1 Default and Remedies ........................................................................................... 36 16.2 Tenant’s Failure to Conduct Business.................................................................... 39
16.3 Interest and Costs ................................................................................................. 39
16.4 Bankruptcy and Insolvency ................................................................................... 40
16.5 Allocation of Payments......................................................................................... 40 16.6 Landlord’s Right of Distress ................................................................................. 40 16.7 Tenant to Inform Landlord .................................................................................... 40
16.8 Remedies to Subsist.............................................................................................. 41 16.9 Impossibility of Performance ................................................................................ 41 16.10 Tenant’s Licences................................................................................................. 42
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17.CONTROL OF SHOPPING CENTRE........................................................................ 42 17.1 Landlord’s Control ............................................................................................... 42 17.2 Alterations of the Shopping Centre........................................................................ 43
17.3 Use of Common Facilities..................................................................................... 43 17.4 Rules and Regulations .......................................................................................... 43 17.5 Access to Premises ............................................................................................... 44
17.6 Expropriation ....................................................................................................... 45
17.7 Landlord’s Consent .............................................................................................. 45
17.8 Demolition or Substantial Alterations .................................................................... 46
18.MISCELLANEOUS................................................................................................... 4618.1 Notices................................................................................................................. 46
18.2 Complete Agreement ............................................................................................ 46 18.3 Use Prior to Commencement Date ........................................................................ 46 18.4 Acceptance of Premises ........................................................................................ 46 18.5 Time of the Essence.............................................................................................. 47
18.6 Applicable Law .................................................................................................... 47 18.7 Severability .......................................................................................................... 47
18.8 Section Numbers and Headings............................................................................. 47 18.9 Interpretation........................................................................................................ 47
18.10 Successors............................................................................................................ 47 18.11 Monetary Amounts ............................................................................................... 47 18.12 Planning Act ........................................................................................................ 47
19.INDEPENDENT LEGAL ADVICE............................................................................ 48
20.SCHEDULES ............................................................................................................ 48
21.FAX AND COUNTERPARTS ................................................................................... 48
22.INDEMNITY AGREEMENT..................................................................................... 48
4.PYLON SIGN ........................................................................................................ 3
Schedules
Schedule “A” Legal Description of Shopping Centre Schedule “B” Outline Plan of Premises
Schedule “C” Intentionally deleted Schedule “D” Rules and Regulations Schedule “E” Exclusive Covenants Schedule “F” Landlord’s and Tenant’s Work
Schedule “G” Special Provisions, if any Schedule “H” Site Plan showing designated parking spaces.
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OFFICE BUILDING
THIS LEASE dated the _______ day of ________, 2024.
B E T W E E N:
DUFFIN’S POINT INC. o/a SEATON CENTRE (LANDLORD)
(hereinafter called “Landlord”)
OF THE FIRST PART
-and -
CITY OF PICKERING
(hereinafter called “Tenant”)
OF THE SECOND PART
1.LEASE SUMMARY
The following is a summary of some of the basic terms of this Lease, which are elaboratedupon in the balance of this Lease. For details of the terms referred to below, recourse should be had to the balance of this Lease. This Section 1 is for convenience and if a conflict occurs between the provisions of this Section 1 and any other provisions of this Lease, the other provisions of this
Lease shall govern.
(a)Premises: a portion of the building shown outlined on Schedule “B”, located on
the Lands and known as Unit F- 100;
(b)Term:10 years and nil months;
(c)Possession Date: Tuesday, August 6, 2024, subject to the Lease being approvedby Council;
(d)Fixturing Period: One hundred and Twenty (120) days (“Fixturing Period”)after Landlord has delivered vacant possession of the Premises to Tenant
notwithstanding that Landlord may still, during the Fixturing Period, becompleting its work, provided that if Landlord has not performed any Landlord’sWork or delivered vacant possession of the Premises to Tenant as a result of any
Tenant’s failure to deliver any plans or documentation contemplated hereunder
or comply with any other provision hereof (“Tenant Delays”), then the Fixturing
Period shall commence the date Landlord would have delivered possession of thePremises to Tenant had Tenant completed its obligations hereunder and Tenantshall not be entitled to any abatement or reduction of rent or payments or any
other rights by reason of any delay in its occupancy.
For greater certainty, during the Fixturing Period Tenant shall not be responsiblefor the payment of Basic Rent, Realty Taxes or Operating Costs but, for greatercertainty, Tenant shall be responsible for the cost of all utilities consumed in the
Premises during the Fixturing Period and otherwise bound by all of the terms andconditions contained in this Lease.
(e)Commencement Date: the earlier of:
(i)the expiry of the Fixturing Period; or
(ii)the opening of Tenant to the public of its business in the Premises.
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Landlord shall make every reasonable effort to have any work which is Landlord’s responsibility to perform, if any, (“Landlord’s Work”) sufficiently complete to the point where Tenant may complete Tenant’s Work, if any (“Sufficiently
Complete”), by the Commencement Date, but if Landlord is unable to do so, then to the extent Tenant is entitled to but unable to occupy the Premises as a result of Landlord’s failure to Sufficiently Complete Landlord’s Work, unless such delay is
caused by any act or omission of Tenant, the Commencement Date shall be deferred
by Landlord. If such deferral occurs, this Lease shall not be void or voidable and
Landlord shall not be liable for any loss or damages whatsoever, resulting therefrom.
(f) Basic Rent:
Lease Years 1 to 5: $82,047.50 per annum, $6,837.29 per month ($18.50) per sq. ft. for each square foot of the Rentable Area of the Premises per annum);
Lease Years 6 to 10: $89,808.75 per annum, $7,484.06 per month
($20.25) per sq. ft. for each square foot of the Rentable Area of the Premises per annum);
(g) Rentable Area of Premises: approximately 4,435 square feet, subject to determination in accordance with this Lease. It is agreed that the Useable Area of the Premises, based upon final measurement, as defined by the Landlord's Architect, may be increased or decreased by up to five percent (5%).
(h) Rent Deposit: $28,642.70 to be first applied against the Tenant’s gross Rent first due and owing by the Tenant and with the balance in accordance with the terms of Section 5.6 of this Lease;
(i) Type of Premises: office
(j) Use of Premises: governmental office;
(k) Business Name: n/a;
(l) Address for Service of Notice on Tenant and/or Indemnifier (if any):
at the Premises;
Address for Service of Notice on Landlord:
9140 Leslie Street, Suite 210, Richmond Hill, Ontario, L4B 0A9
(m) Special Provisions, if any: See Schedule “G”.
2. DEFINITIONS
Where used in this Lease, the following words or phrases shall have the meanings set forth in the balance of this Article.
2.1 “Additional Rent” shall have the meaning ascribed to it in Section 5.3.
2.2 “Architect” means a duly qualified independent architect, engineer, surveyor or quantity
surveyor or other qualified person appointed or employed by the Landlord from time to time.
2.3 “Basic Rent” shall have the meaning ascribed to it in Section 5.2.
2.4 “Building” means the building in which the Premises are located.
2.5 “Business Hours” means such business hours for the Shopping Centre, as determined by
Landlord from time to time and which, unless otherwise determined by Landlord, shall be from
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8:00 a.m. to 6:00 p.m. Monday through Saturday, excluding holidays and subject to applicable Laws.
2.6 “Capital Taxes” means the amount determined by multiplying each of the “Applicable
Rates” by the “Shopping Centre Capital” and totalling the products. “Shopping Centre Capital” is the amount of capital which Landlord determines, without duplication, is invested from time to time by Landlord, the owners or all of them, in doing all or any of the following: acquiring,
developing, expanding, redeveloping and improving the Shopping Centre. Shopping Centre
Capital will not be increased by any financing or refinancing (except to the extent that the proceeds
are invested directly as Shopping Centre Capital). An “Applicable Rate” is the capital tax rate specified from time to time under any statute of Canada and any statute of the Province which imposes a tax in respect of the capital of corporations. Each Applicable Rate will be considered
to be the rate that would apply if none of Landlord or owners employed capital outside of the Province in which the Shopping Centre is situate.
2.7 “Commencement Date” shall have the meaning ascribed to it in subsection 1(e).
2.8 “Common Facilities” means: (a) the Shopping Centre, excluding only Leasable Areas, and
including, without limitation: (i) all areas, facilities, structures, systems, improvements, furniture, fixtures and equipment forming part of or located on the Shopping Centre that from time to time,
are not intended to be leased to tenants of the Shopping Centre or are designated from time to time as Common Facilities by the Landlord; (ii) the lands forming part of the Shopping Centre; (iii)
Parking Facilities, and other service areas and facilities, if any; (iv) Landlord’s management offices and facilities to the extent used for the management of the Shopping Centre; (iv) the Common Facilities include, but are not limited to, the roofs, exterior wall assemblies including weather walls, exterior and interior structural components and bearing walls in the buildings and
improvements in the Shopping Centre, lobbies, service corridors, stairways, indoor and outdoor walkways and public washrooms, access roads, driveways, entrances and exits, sidewalks, ramps, truck ways, delivery passages, drive-thrus, ring roads, bus kiosks, roadways and stops, curbs,
landscaped and planted areas, pylon and other common Shopping Centre signature (such as
Shopping Centre directional signs), light standards, equipment, furniture, furnishings and fixtures,
electronic systems such as music, fire prevention, security and communication systems, pipes and electrical, plumbing, drainage, sewer, mechanical and other installations, equipment or services in or on the Shopping Centre or related to it, as well as the structures housing them and (b) all lands,
areas, facilities, systems, improvements, structures, furniture, fixtures and equipment serving or benefiting the Shopping Centre, whether or not located within the Shopping Centre, to the extent that the same are designated or intended by Landlord to be part of the Common Facilities from time to time. Landlord shall have the right to designate, amend and redesignate the Common
Facilities from time to time.
2.9 “CPI” means the Consumer Price Index for all items for Canada published by Statistics
Canada or by any successor thereof or any other governmental agency whose responsibility it is to publish such statistics, or, if such index is at any time not published, such other index or numerical
factor as designated or determined by Landlord, acting reasonably, reflecting the relative purchasing power of the Canadian dollar from time to time. In case of any required comparison of the CPI for any period of time with the CPI of any other period of time, Landlord shall be entitled to make such adjustments or conversions as shall be determined by Landlord to be appropriate,
including any adjustments for the calculation of the CPI in respect of different base years from time to time.
2.10 “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 standards of conduct concerning any matter which may be relevant to the use or occupancy of the Shopping Centre or any part thereof or the conduct
of any business or activity in, on, under or about the Shopping Centre or any part thereof, or any material, substance or thing which may at any time be in, on, under or about the Shopping Centre or any part thereof or emanate therefrom.
2.11 “Excess Costs” shall have the meaning ascribed to it in Section 7.3 below.
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2.12 “Fiscal Year” means the period used by Landlord for fiscal purposes in respect of the Shopping Centre. Unless otherwise determined by Landlord by written notice to Tenant at any time or times, each Fiscal Year shall be a calendar year. In the event of a change in the Fiscal
Year, or with respect to a partial Fiscal Year at the beginning or end of the Term, all appropriate adjustments resulting from a Fiscal Year being shorter or longer than twelve (12) months shall be made.
2.13 “Hazardous Substances” means any contaminant, pollutant, dangerous substance,
potentially dangerous substance, noxious substance, toxic substance, hazardous waste, flammable,
explosive or radioactive materials, urea formaldehyde foam insulation, asbestos, PCB’s, mould, mildew, microbial growths and any associated mycotoxins and includes any other waste, substance or material whatsoever, which may be covered by or regulated under any Environmental Laws,
and any structure housing such items, including for clarification but without limitation, any “contaminants” as defined in the Environmental Protection Act (Ontario) as same shall be amended from time to time or any replacement legislation and shall include, without limitation, storage tanks.
2.14 “Insured Damage” shall mean that part of any damage or destruction occurring to the Premises or the Shopping Centre (as the case may be) to the extent to which the cost of repair is
actually recovered or recoverable pursuant to policies of insurance which Landlord has maintained pursuant hereto or which Landlord otherwise maintains, to the extent that the premiums for which
are included in Operating Costs.
2.15 “Landlord’s Work” means the work, if any, expressly stipulated to be the responsibility of Landlord to perform as set out on Schedule “F”.
2.16 “Lands” means the lands described in Schedule “A” and the hydro lands.
2.17 “Laws” means all statutes, regulations, by-laws, orders, rules, requirements and directions of all federal, provincial, municipal and other governmental and other authorities having jurisdiction.
2.18 “Leasable Areas” means all areas and spaces of the Shopping Centre to the extent
designated or intended from time to time by Landlord to be leased to tenants, whether leased or
not, but excluding the following, to the extent the same may exist from time to time and whether or not the same are leased from time to time or all of the time all of which form part of the Common Facilities: Storage Areas, Parking Facilities and areas, all below grade areas and other service areas
and facilities which may be leased or licensed from time to time and temporary, moveable units such as booths, pushcarts and the like, patios, garden centres used for the display of merchandise, drive through areas, and any similar parts of the Common Facilities utilized by tenants of the Shopping Centre for which no Base Rent is payable and all of which shall be deemed to be included
as part of the Common Facilities.
2.19 “Lease” means this Lease, including all of the schedules attached hereto.
2.20 “Leasehold Improvements” where used in this Lease includes, without limitation, all fixtures, improvements, installations, alterations and additions from time to time made, erected or
installed in or about the Premises, and includes all the following, whether or not any of the same are in fact Tenant’s or trade fixtures and whether or not they are easily disconnected and moveable: doors, partitions and hardware; mechanical, electrical and utility installations; carpeting, drapes, other floor and window coverings and drapery hardware; decorations; heating,
ventilating, air conditioning and humidity control equipment; lighting fixtures; built-in furniture and furnishings; counters in any way connected to the Premises or to any utility services located therein. The only exclusions from “Leasehold Improvements” are free-standing furniture, trade fixtures and equipment, including computers and communication equipment, not in any way
connected to the Premises or to any utility systems located therein.
2.21 “Lease Year” means each consecutive period of three hundred sixty-five (365) days (or three hundred sixty-six (366) days in the case of a Lease Year which includes the month of February in a leap year), the first Lease Year commencing on the Commencement Date and ending
on the day before the anniversary of the first day of the first full month of the Term, and each successive Lease Year commencing on the anniversary of the first day of first full month of the Term.
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2.22 “Management Company” means a company or other entity, if any, arm’s length or not arm’s length, retained by the Landlord from time to time to operate or manage the Shopping Centre. In sections that contain a release or other exculpatory provision or an indemnity in favour
of Landlord it shall include any Management Company, and its servants, employees, agents and invitees, its officers, directors, employees.
2.23 (a) “Operating Costs” means the aggregate of all expenses and costs of every kind
determined and for each fiscal period designated by Landlord, on an accrual basis,
without duplication, incurred by or on behalf of Landlord with respect to and for
the operation, maintenance, repair, replacement, administration and management of the Shopping Centre, and all insurance relating to the Shopping Centre. For clarification, Landlord shall be entitled to adjust upward only those amounts which
may vary depending on occupancy. Without in any way limiting the generality of the foregoing, Operating Costs shall include all costs in respect of the following:
(i) all remuneration, including wages and fringe benefits, of employees to the extent employed or engaged in the operation, maintenance, repair,
replacement and management of the Shopping Centre, including contributions and premiums towards unemployment and Workers
Compensation insurance, pension plan contributions and similar premiums and contributions;
(ii) heating, ventilating, air conditioning and humidity control and fire sprinkler maintenance and monitoring, if any, of the Shopping Centre; (iii) cleaning, janitorial services, window cleaning and waste removal; (iv) operation, maintenance, repair and replacements in respect of any
elevators, escalators and other transportation equipment, if any; (v) the provision of all utilities supplied to the Shopping Centre and the cost of consumption of all utilities consumed on the Shopping Centre
(vi) landscaping and maintenance of all outside areas, including snow and ice
clearing and removal and salting of sidewalks, driveways and Parking
Facilities; (vii) window cleaning and waste removal; (viii) pest control and pest extermination;
(ix) amortization of the costs of such items including structures, improvements, furnishings, fixtures, equipment, machinery, facilities, systems and property which is part of or installed in or used in connection with the Shopping Centre (except to the extent that the costs are charged
fully in the year in which they are incurred) (for clarification, including the costs, as determined by Landlord, acting reasonably, of those
components in existence at the date hereof) which, by their nature, require periodic or substantial repair or replacement (including, for clarification,
periodic upgrades to the Common Facilities), amortized over Landlord’s reasonable estimate of the economic life thereof (but at Landlord’s option such shorter period, to be not less than fifteen (15) years), and interest on the unamortized cost of such items in respect of which amortization is
included herein at two (2%) percent in excess of the prime rate of interest charged by Landlord’s bank from time to time; (x) machinery, equipment, facilities, systems and property installed in or used in connection with the Shopping Centre if the principal purpose or intent
of the same or such use or installation was to reduce the cost or consumption of other items included in Operating Costs, whether or not such other costs are in fact reduced; (xi) all insurance which Landlord is obliged to obtain and/or which Landlord
otherwise obtains and the cost of any deductible amounts payable by Landlord in respect of any insured risk or claim; (xii) policing, supervision, security and traffic control; (xiii) all maintenance, repairs and replacements in respect of the Shopping
Centre and all machinery, equipment, facilities, systems and fixtures located therein; (xiv) office expenses including telephone, stationery and supplies;
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(xv) engineering, accounting, audit, legal and other consulting and professional services, including the cost of preparing statements respecting Operating Costs;
(xvi) the purchase, maintenance, repair and replacement of holiday or other special decorations for the Shopping Centre; (xvii) signs including, without limitation, the cost of all repairs, maintenance
and rental charges in respect thereof;
(xviii) communications, sound, visual, lighting and other systems;
(xix) business taxes, if any, on the Common Facilities; (xx) decoration of Common Facilities; (xxi) contribution, as determined by Landlord, acting reasonably and bona fide,
but in Landlord’s sole discretion, on account of all costs in the nature of those included in Operating Costs in respect of all shared facilities and services including, without limitation, roads, loading areas and docks, parking ramps, driveways and exterior areas, which will be shared by
users of the Shopping Centre and the users of any other property, and all costs to the extent Landlord is required to contribute to the same in respect
of the Shopping Centre or Landlord’s ownership of the same, whether or not such costs are incurred directly in respect of the Shopping Centre;
(xxii) Intentionally deleted; (xxiii) all costs in the nature of Operating Costs incurred by Landlord in consequence of its interest in the Shopping Centre such as landscaping of municipal areas, maintaining, cleaning, and clearing of ice and snow from
municipal sidewalks, adjacent property and the like; (xxiv) Sales Taxes payable by Landlord on the purchase of goods and services included in Operating Costs (excluding any such Sales Taxes which are
available to and claimed by Landlord as a credit or refund in determining
Landlord’s net tax liability on account of Sales Taxes, but only to the
extent that such Sales Taxes are included in Operating Costs); (xxv) the fair rental value (having regard to rentals prevailing from time to time for similar space) of space occupied by Landlord for management,
supervisory or administrative purposes relating to the Shopping Centre; (xxvi) intentionally deleted; (xxvii) Realty Taxes and other taxes incurred by Landlord or allocated by Landlord in respect of the Common Facilities, and the portion allocable
to the Leaseable Areas, of the amount, if any, of Realty Taxes charged against the Shopping Centre in excess of the amount of Realty Taxes, in
the aggregate, charged against the Leaseable Areas in the Shopping Centre;
(xxviii)all costs incurred by Landlord for the purpose or intent of reducing any Realty Taxes or other taxes, including, without limitation, costs incurred by Landlord as contemplated in the Lease whether or not realty Taxes are in fact reduced;
(xxix) intentionally deleted; and (xxx) an administration fee of fifteen (15%) percent of Tenant’s Proportionate Share of Operating Costs.
(b) Operating Costs, however, shall be reduced by the following to the extent actually received by Landlord:
proceeds of insurance and damages paid by third parties in respect of and to the extent of costs included in Operating Costs as set forth above;
contributions from parties other than tenants of the Shopping Centre, if any, in respect of Operating Costs, such as contributions made by parties in respect of their sharing the use of Common Facilities, but not including in such contributions rent or fees charged directly for the use of any
Common Facilities such as parking fees (if any) and rent for Storage Areas;
amounts, if any, received by Landlord on account of Excess Costs as provided in Section 7.3 below; and
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contributions, if any, received in respect of Operating Costs from occupants of any areas excluded from the denominator when calculating Tenant’s Proportionate Share of such Operating Costs.
(c) Operating Costs, however, shall exclude the following:
Realty Taxes except to the extent included as set forth above (the intent being not to duplicate Tenant’s obligations in respect thereof pursuant to other
provisions of this Lease);
expenses incurred by Landlord in respect of other tenants’ leasehold
improvements;
repairs or replacements to the extent that the cost of the same is recovered by Landlord pursuant to original construction warranties;
Utilities consumed in respect of Leaseable Areas to be determined by separate meters where practicable or by Landlord acting reasonably (the intent being not to duplicate the amounts included in Operating Costs with amounts charged pursuant to Article 7 of this Lease and comparable
provisions in other leases of premises in the Shopping Centre).
(d) Landlord, acting reasonably but in its sole discretion, shall have the right to allocate
Operating Costs or any portion or portions thereof to such portion or portions of the Building or the Shopping Centre as Landlord shall determine.
2.24 “Parking Facilities” means the parking areas and facilities, whether inside or outside the Shopping Centre, if any, and all other similar service areas and facilities whether or not leased, owned or licensed from time to time and includes the Hydro Lands described in Schedule “A”.
2.25 “Premises” shall have the meaning ascribed to it in Section 4.1.
2.26 “Shopping Centre” means the Lands and all buildings, structures, improvements, equipment and Common Facilities of any kind erected or located thereon from time to time, as such lands, buildings, structures, improvements, equipment and facilities may be expanded,
reduced or otherwise altered by Landlord in its sole discretion from time to time and such other
lands, areas, buildings, structures, improvements, equipment and facilities designated by Landlord
to be part of the Shopping Centre from time to time. Tenant agrees that it has no interest in any lands now or in the future excluded from the Shopping Centre as aforesaid and Tenant agrees to execute and deliver forthwith upon the request of Landlord all documents reasonably requested by
Landlord to confirm Tenant has no interest in any lands now or in the future excluded from the Shopping Centre; in default of Tenant executing or delivering any such documents within ten (10) days after request of Landlord, Landlord shall be and is hereby appointed attorney for Tenant to execute such documents for and on behalf of Tenant and in its name, such appointment being
hereby made pursuant to the Powers of Attorney Act (Ontario) and shall survive and may be exercised during any subsequent legal incapacity of Tenant. Without limiting the above definition
of Shopping Centre the Tenant acknowledges and agrees that the Shopping Centre shall include the hydro lands forming part of the Parking Facilities legally described in Schedule “A”.
2.27 “Proportionate Share” means a fraction which has as its numerator the Rentable Area of the Premises and which has as its denominator the aggregate Rentable Area of Leasable Areas within the Shopping Centre such items of which Tenant is required to pay its Proportionate Share, subject to Landlord’s right to make adjustments to the Proportionate Share pursuant to Section 7.3
(“Adjustments to Operating Costs”) but excluding from the denominator the following to the extent the same may exist from time to time, and whether or not the same are leased from time to time or all the time: kiosks, storage areas, Parking Facilities, premises at or below grade, and other service areas and facilities which may be leased or licensed from time to time, and temporary and
moveable retail units such as booths, pushcarts and the like, theatre, cinemas, mezzanine areas inside Leasable Areas.
2.28 "Office Component of the Building": that portion of the Building which is designated by the Landlord from time to time for office use purposes, including Leasable Premises to be leased
for office purposes and Common Facilities serving the Office Component of the Building as designated by the Landlord from time to time. Without limitation, the Tenant acknowledges and
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agrees that the Proportionate Share may be adjusted by the Landlord, in its sole and unfettered discretion to account for those expenses that may be attributable to the office component of the Shopping Centre.
2.29 “Realty Taxes” means all taxes, rates, duties, levies, fees, charges, local improvement rates, impost charges, levies and assessments whatever (including school taxes, water and sewer taxes, extraordinary and special assessments and all rates, charges, excises or levies, whether or not of
the foregoing nature) (“Taxes”), and whether municipal, provincial, federal or otherwise, which
may be levied, confirmed, imposed, assessed, charged or rated against the Shopping Centre or any
part thereof or any furniture, fixtures, equipment or improvements therein, or against Landlord in respect of any of the same or in respect of any rental or other compensation receivable by Landlord in respect of the same, excluding only Landlord’s income taxes thereon, but including all of such
Taxes which may be incurred by or imposed upon Landlord or the Shopping Centre in lieu of or in addition to the foregoing including, without limitation, any Taxes on real property rents or receipts as such (as opposed to a tax on such rents as part of the income of Landlord), any Taxes based, in whole or in part, upon the value of the Shopping Centre, including Capital Taxes, any
commercial concentration or similar levy in respect of the Shopping Centre, and any licence fee measured by rents payable by occupants of space in the Shopping Centre. Taxes shall, in every
instance be calculated on the basis of the Shopping Centre being fully assessed and taxed at prevailing commercial rates for occupied space for the period for which Taxes are being calculated.
2.30 “Rent” shall have the meaning ascribed to it in Section 5.1.
2.31 (a) “Rentable Area of Premises” shall be the Useable Area of such premises plus the relevant proportion, as determined by Landlord, of all areas not leased to any one tenant such as, without limitation, hallways, elevator lobbies, ground floor lobbies,
washrooms, mechanical and service rooms.
(b) Every Rentable Area shall be as determined by Landlord from time to time and each such determination shall be binding upon the parties hereto and the cost of
which determination shall be included in Operating Costs.
2.32 “Rental Year” means a period of twelve (12) consecutive calendar months, except:
(a) the first Rental Year in the Term shall commence on the Commencement Date and expire on the next succeeding December 31; and
(b) the last Rental Year in the Term shall terminate upon the expiration or earlier
termination of this Lease.
2.33 “Sales Taxes” means all business transfer, multi-stage sales, sales, use, consumption, value-added or other similar taxes imposed by any federal, provincial or municipal government upon Landlord, or Tenant, or in respect of this Lease, or the payments made by Tenant hereunder
or the goods and services provided by Landlord hereunder including, without limitation, the rental of the Premises and the provision of administrative services to Tenant hereunder.
2.34 “Storage Areas” means all areas, if any, designated by Landlord from time to time to be used by tenants exclusively or primarily for storage purposes.
2.35 “Tenant’s Work” means all work to be performed to construct the Premises and commence business operations thereon, including all work which is not Landlord’s responsibility under Schedule “F”.
2.36 “Term” shall have the meaning given to it in Section 4.2.
2.37 “Termination Date” means the date on which this Lease is terminated, disclaimed or repudiated prior to the Expiry Date.
2.38 “Useable Area” when applied to the Premises or any Leasable Areas means the area measured from the exterior face of glass in exterior walls, doors and windows, from the exterior
face of all walls, doors and windows dividing any Leasable Areas from Common Facilities, and from the centre line of all interior walls separating any Leasable Areas from other Leasable Areas, all without deduction for any space occupied by structures, columns, beams, conduits, ducts of any
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kind, and all without deduction for the recessing of any entrance way, or boundary wall from the lease line, vestibules or other recesses inside the Building line.
3. INTENT OF LEASE
3.1 Net Lease
It is the intent of the parties hereto that, except as expressly herein set out, this Lease be a lease that is absolutely net to Landlord and that Landlord shall not be responsible for any expenses
or obligations of any kind whatsoever in respect of or attributable to the Premises or the Shopping
Centre.
4. LEASE OF PREMISES
4.1 Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord those certain
premises (the “Premises”) now or hereafter to be constructed as part of the Shopping Centre, which Premises are identified and shown on the plan attached hereto as Schedule “B”. The purpose of Schedule “B” is to show the approximate location of the Premises and the contents thereof are not intended as a representation of any kind as to the precise size or dimensions of the Premises or
any other aspects of the Shopping Centre. The Premises shall extend from the upper surface of the structural subfloor to the lower surface of the structural ceiling within the boundaries of the
Useable Area of the Premises. Subject to Section 10.1 (“Maintenance and Repairs of Premises”), the Premises shall exclude the exterior faces of all perimeter walls, windows and doors of the
Premises, and any portions of the Common Facilities the area of which is included in Rentable Area of the Premises, notwithstanding the manner in which Rentable Area is measured. The Tenant acknowledges and agrees that: (i) the Premises are located in a multi-story building, the ground floor of which may be utilized for uses other than offices, including without limitation, retail uses,
and (ii) the Shopping Centre currently contains or may hereafter contain a mix of retail, office and/or other uses. The Premises may be situated both adjacent to and above or below premises occupied by other tenants. The Tenant shall not do or permit anything to be done or omit or permit
any omission in the Premises which will result in a nuisance or adversely affect the quiet
possession and enjoyment of any other tenant or occupant in the Building. The Landlord shall
utilize the latest BOMA for Office Building standards in measuring Premises.
4.2 Term
The term of this Lease (the “Term”) shall be for the period described as the Term in Section
1(b) hereof, commencing on the Commencement Date as described in Section 1(e) hereof and if the Tenant exercises an Extension Term in accordance with this Lease, Term shall be deemed to include such Extension Term.
4.3 Licence to Use Common Facilities
Subject to all other relevant provisions of this Lease, Landlord grants to Tenant the non-exclusive licence during the Term to use for their intended purposes, in common with others
entitled thereto, such portions of the Common Facilities as are reasonably required for the use and occupancy of the Premises for their intended purpose during Business Hours and such other hours,
if any, as the Common Facilities are open for use, as determined by Landlord from time to time. Notwithstanding, the Tenant acknowledges and agrees that it shall not interfere with or have any rights to use those parts of the Common Facilities including, Storage Areas, Parking Facilities and areas specifically set aside for a particular tenant of the Shopping Centre, all below grade areas
and other service areas and facilities which may be leased or licensed from time to time to other tenants and temporary, moveable units such as booths, pushcarts and the like, patios, garden centres used for the display of merchandise, drive through areas, play areas for the nursery tenancy and any similar parts of the Common Facilities utilized by tenants of the Shopping Centre for
which no Base Rent is payable but which shall be deemed to be included as part of the Common Facilities.
4.4 Quiet Enjoyment
Subject to all of the terms of this Lease and subject to Tenant’s paying all Rent and
performing all obligations whatsoever as and when the same are due to be paid and performed by
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Tenant, Tenant shall peaceably possess and enjoy the Premises for the Term without interruption by Landlord or any person claiming by, from or under Landlord.
4.5 Fixturing of Premises
By the Commencement Date, Tenant shall fully finish, furnish, fixture, stock and staff, and commence business upon, the whole of the Premises as permitted and required pursuant to the terms hereof.
4.6 Shopping Centre Development
Tenant acknowledges that Landlord’s initial intent is to develop the Shopping Centre, as
shown on Schedule “B” hereto. Tenant acknowledges that this depiction is not intended to be a representation of any kind and Tenant acknowledges that Landlord reserves the right to make changes to the area, level, location, arrangement or use of the Shopping Centre, expand, reduce or
alter any part thereof, including the Common Facilities, construct buildings, structures, installations, systems, utilities, services, equipment, improvement and facilities or any of them, in, under, above, adjoining or which serve the Shopping Centre or any part thereof, including the Common Facilities and construct additional buildings or facilities adjoining or near the Shopping
Centre. The Tenant also acknowledges that Landlord reserves the right to make changes to the site plan which Landlord may deem desirable as long as same does not interfere with the Tenant’s
use and quiet enjoyment.
5. RENT
5.1 Tenant to Pay
Tenant shall pay in lawful money of Canada at par at such address as shall be designated from time to time by Landlord Basic Rent and Additional Rent (all of which is herein sometimes referred to collectively as “Rent”) as herein provided without any deduction, set-off or abatement
whatsoever, Tenant hereby agreeing to waive any rights it may have pursuant to the provisions of Section 35 of the Commercial Tenancies Act (Ontario) or any other statutory provision to the same or similar effect and any other rights it may have at law to set-off. 30 days prior to the
Commencement Date and 30 days prior to the first day of each rental year thereafter, the City will
deliver 12 postdated cheques in respect of rent to the Landlord’s office.
5.2 Basic Rent
Commencing on the Commencement Date, Tenant shall pay to Landlord a fixed minimum annual rent (“Basic Rent”) in the amount(s), to be paid in equal monthly instalments, as described
as Basic Rent in subsection 5.2, in advance on the first day of each month during the Term. If the first day on which Basic Rent is payable is other than the first day of a calendar month, Tenant shall pay upon such date Basic Rent from such date to the end of such month calculated at a daily rate of 1/365th of the annual Basic Rent. If an amount per square foot is specified in the description
of Basic Rent in Section 1(f), then the Basic Rent is intended to be such amount per square foot of Rentable Area of the Premises per annum, and the Basic Rent shall be subject to adjustment based
upon the Rentable Area of the Premises determined. Within thirty (30) days after such adjustment, if any, being made, Tenant shall pay to Landlord any deficiency in previous payments of Basic
Rent and Additional Rent, and if Tenant is not in default under the terms of this Lease, the amount of any overpayment by Tenant of Basic Rent and Additional Rent shall be paid to Tenant or credited to the account of Tenant.
5.3 Additional Rent and Management Fee
a) In addition to Basic Rent, Tenant shall pay to Landlord as additional rent: (i) all other amounts as and when the same shall be due and payable pursuant to the provisions of this Lease all of which shall be deemed to accrue on a per diem basis;
and (ii) all other amounts as and when the same shall be due and payable pursuant
to any agreement or other obligation, whether or not related to the Premises,
between Landlord and Tenant; all of such amounts other than Sales Taxes payable pursuant hereto, whether originally payable pursuant to this Lease or otherwise, being herein sometimes referred to as “Additional Rent”. Tenant shall promptly
deliver to Landlord upon request evidence of due payment of all payments of Additional Rent required to be paid by Tenant hereunder.
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b) It is estimated that additional rent will be approximately $14.50 per sq. ft. per annum plus applicable Sales Tax for 2024.
5.4 Deemed Rent and Allocation
If Tenant defaults in payment of any Rent (whether to Landlord or otherwise) or any Sales Taxes as and when the same is due and payable hereunder, Landlord shall have the same rights and remedies against Tenant (including rights of distress and the right to accelerate Rent in
accordance with Article 16) upon such default as if such sum or sums were rent in arrears under
this Lease. All Rent and Sales Taxes shall, as between the parties hereto, be deemed to be rent due
or Sales Taxes due on the dates upon which such sum or sums were originally payable pursuant to this Lease and shall be paid in accordance with this Lease without any deduction, abatement or set-off whatsoever.
Landlord may, at its option from time to time, apply or allocate or re-apply or re-allocate any sums received from or payable by Tenant to Landlord on account of any amounts payable by Tenant hereunder in such manner as Landlord determines in its sole and absolute discretion, without regard to and notwithstanding any instructions given by or allocations in respect of such
amounts made by Tenant.
No payment by Tenant or acceptance of payment by Landlord of any amount less than the
full amount payable to Landlord, and no endorsement, direction or note on any cheque or other written instruction or statement respecting any payment by Tenant shall be deemed to constitute
payment in full or an accord and satisfaction of any obligation of Tenant and Landlord may receive any such lesser amount and any such endorsement, direction, note, instruction or statement without prejudice to any of Landlord’s other rights under this Lease or at law, whether or not Landlord notifies Tenant of any disagreement with or non-acceptance of any amount paid or any
endorsement, direction, note, instruction or statement received.
5.5 Monthly Payments of Additional Rent
Landlord may from time to time estimate any amount(s) payable by Tenant pursuant to any
provisions of this Lease including, without limitation, Sections 5.3, 6.2, 6.3, 7.2 and 9.1 for the
then current or the next following fiscal period, provided that Landlord may, in respect of any
particular item, shorten such fiscal period to correspond to a shorter period within any fiscal period, where such item, for example Realty Taxes, is payable in full by Landlord over such shorter period, and may notify Tenant in writing of the estimated amounts thus payable by Tenant, which
notification need not include particulars. The amounts so estimated shall be payable by Tenant in advance in equal monthly instalments over the fiscal period, such monthly instalments being payable on the same day as the monthly payments of Basic Rent. Landlord may, from time to time, designate or alter the fiscal period selected in each case. As soon as practicable after the
expiration of each fiscal period, Landlord shall make a final determination of the amounts payable by Tenant pursuant to Sections 5.3, 6.2, 6.3, 7.2 and 9.1 and any other relevant provisions hereof
for such fiscal period and shall furnish to Tenant, showing in reasonable detail the method by which the same has been calculated, a statement of the actual Operating Costs and Realty Taxes
for such fiscal period (“Final Statement”). If the amount determined to be payable by Tenant as aforesaid shall be greater or less than the payments on account thereof made by Tenant prior to the date of such determination, then the appropriate adjustments will be made and Tenant shall pay any deficiency to Landlord within thirty (30) days after delivery of such Statement and final
determination and if Tenant is not in default under the terms of the Lease, the amount of any overpayment shall be paid to or credited to the account of Tenant within thirty (30) days after the delivery of such Statement; Tenant agrees that it shall not be entitled to make any claim, including the commencing of an action against Landlord, with respect to any Additional Rent charges
payable hereunder for any fiscal period unless such claim is made within six (6) months after the date on which Landlord has delivered to Tenant a Final Statement for such fiscal period; subject to any claim being made within the time as aforesaid, each Final Statement shall be final and binding on Tenant.
5.6 Rental Deposit
The Rental Deposit shall be held by the Landlord without interest until applied in accordance with this Article 5.6. Any part of the Rental Deposit (the “Security Deposit”) held by the Landlord and not applied by the Landlord in accordance with the terms of this Lease shall be held by the
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Landlord as security for the faithful performance by the Tenant of all terms, covenants and conditions of this Lease to be kept, observed and performed by the Tenant and irrespective of the unenforceability of this Lease against the Tenant, the termination of any obligations of the Tenant under this Lease by
operation of law or otherwise; or the bankruptcy, insolvency, dissolution or other liquidation of the Tenant, including, without limitation, any surrender or disclaimer of this Lease by a trustee-in-bankruptcy of the Tenant, any disclaimer of this Lease by the Tenant pursuant to a proposal made by
the Tenant under the Bankruptcy and Insolvency Act (Canada) or any termination of the Lease under
the Companies’ Creditors Arrangement Act (Canada). In addition to its other rights and remedies
under the Lease or at law, upon the occurrence of an event of default by the Tenant, the Landlord may draw upon the Security Deposit for such amounts as are recoverable by the Landlord under the terms of this Lease or at law to compensate the Landlord for loss or damage sustained or suffered by the
Landlord as a result of the event of default. In addition, in the event that this Lease is terminated, disclaimed or surrendered (other than a voluntary surrender pursuant to a written agreement between the Landlord and the Tenant) prior to the expiry of the Term (or then current renewal or extension term, as applicable), including, without limitation, any termination of this Lease by the Landlord as a
result of the default by the Tenant, any termination of this Lease by operation of law, any surrender or disclaimer of this Lease by a trustee-in-bankruptcy of the Tenant, any disclaimer of this Lease by
the Tenant pursuant to a proposal made by the Tenant under the Bankruptcy and Insolvency Act (Canada) or any termination of this Lease under the Companies’ Creditors Arrangement Act
(Canada), then the Landlord may draw upon the Security Deposit for the amount of the loss or damage sustained or suffered by the Landlord as a result of the loss of the benefit of this Lease (including, without limitation, all amounts which the Tenant would be required to pay under this Lease if this Lease had not been so surrendered, terminated or disclaimed but had remained in full force and effect
for the balance of the Term (or then current renewal or extension term, as applicable). If all or any part of the amount available to the Landlord as a Security Deposit is paid to the Landlord at any time the Tenant shall immediately restore the Security Deposit to the amount set out herein. In the event
that the Tenant fails to restore the amount of the Security Deposit, the Landlord shall have the same
rights and remedies for the payment of the deficiency in the amount of the Security Deposit as it has
for the payment of Rent in arrears. The Security Deposit shall be held by the Landlord without liability for interest and without prejudice to any other rights or remedies which the Landlord may have under this Lease or at law. If the Landlord sells its interest in the Premises, it may deliver the Security
Deposit to the purchaser and the Landlord will be released from any further liability with respect to the Security Deposit or its return to the Tenant. The Landlord will surrender the unapplied portion of the Security Deposit to the Tenant ninety (90) days after the expiry of the Term (or then current renewal or extension term, as applicable), provided that: (i) the Tenant is not in default under the
Lease; and (ii) the Tenant either has (A) renewed or extended the Lease and the renewal or extension agreement does not require a Security Deposit, or (B) delivered vacant possession of the Premises in
accordance with terms of this Lease including, without limitation, leaving the Premises in the state of repair required by the Lease.
6. TAXES
6.1 Payment of Taxes
Subject to the extent that the municipality is exempt from paying taxes as a result of
provisions in the Municipal Act, 2001, the Landlord shall have the right to require Tenant to pay such Realty Taxes and any other taxes which are Tenant’s responsibility as set out herein to the relevant taxing authority or Landlord shall have the right to pay any such Realty Taxes or other taxes directly to such taxing authority without thereby affecting Tenant’s obligation to pay or
contribute to such Realty Taxes or other taxes. To the extent of Realty Taxes received by Landlord from Tenant, Landlord shall pay same to the relevant taxing authority.
6.2 Taxes Payable by Tenant
Subject to the extent that the municipality is exempt from paying taxes as a result of
provisions in the Municipal Act, 2001, then Commencing on the Commencement Date and thereafter at all times throughout the Term, Tenant shall pay to Landlord or the relevant taxing authority, as required by Landlord, not later than the time when they fall due all Realty Taxes levied, confirmed, imposed, assessed or charged (herein collectively or individually referred to as
“charged”) against or in respect of the Premises and all buildings, furnishings, fixtures, equipment, improvements and alterations in or forming part of the Premises, and including, without limiting the generality of the foregoing, any such Realty Taxes charged against the Premises in respect of:
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(i) the land on which the Premises is situate; and
(ii) any Common Facilities.
In addition, Tenant shall pay, in the same manner as it is required to pay or contribute to
Operating Costs pursuant to Section 7.2 hereof, the Proportionate Share of Realty Taxes charged against or in respect of Common Facilities, and the amount, if any, of Realty Taxes charged against the Shopping Centre in excess of the amount of Realty Taxes in the aggregate, charged against
Leaseable Areas.
6.3 Determination of Tenant’s Taxes
In the event there is no separate bill for Realty Taxes charged against the Premises or a separate assessment, the Realty Taxes charged against the Premises shall be determined by Landlord, acting reasonably, the cost of making such determination to be included in Operating
Costs; in making such determination Landlord shall have the right, without limiting its right to do otherwise, to establish separate assessments for the Premises and all other portions of the Shopping Centre by using such criteria as Landlord, acting reasonably, shall determine to be relevant including, without limitation:
(a) the then current established principles of assessment used by the relevant assessing authorities and on the same basis as the assessment actually obtained
for the Shopping Centre as a whole or the part thereof in which the Premises are located;
(b) assessments of the Premises and any other portions of the Shopping Centre in previous periods of time;
(c) the Proportionate Share of Realty Taxes reasonably allocated by Landlord to the retail component of the Shopping Centre or such portion of the Shopping Centre
in which the Premises are located;
(d) any act, religion or election of Tenant or any other occupant of the Shopping Centre which results in an increase or decrease in the amount of Realty Taxes
which would otherwise have been charged against the Shopping Centre or any
portion thereof; and
(e) the quality of construction, use, location within the Shopping Centre or income generated by the Premises and/or the assessor’s valuation of the Premises or Shopping Centre.
Notwithstanding any other contrary provisions of this Lease, if, at any time during a Rental Year, any part of the Shopping Centre is not one hundred (100%) percent occupied, the Taxes shall be allocated by Landlord to the Building(s), the Common Facilities and the other components of the Shopping Centre without regard to any credits or rebates which may be received or receivable
by Landlord in respect of any vacant premises within the Shopping Centre and without regard to any reduced tax rate for such vacant premises. Landlord may use an expert to assist it in making
such allocation and the cost of making such allocation shall be included in Operating Costs.
6.4 Business Taxes and Sales Taxes
(a) Tenant shall pay as and when the same are due and payable all business taxes including all taxes charged in respect of any business conducted on the Premises or in respect of any use or occupancy of the Premises, whether or not charged against Landlord or the Premises.
(b) Tenant shall pay to Landlord when due all Sales Taxes imposed on Landlord or Tenant.
6.5 Tax Bills and Assessment Notices
Tenant shall promptly deliver to Landlord forthwith upon Tenant’s receiving the same:
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(a) copies of all assessment notices, tax bills and any other documents received by Tenant related to Realty Taxes chargeable against or in respect of the Premises or the Shopping Centre; and
(b) receipts for payment of Realty Taxes and business taxes payable by Tenant pursuant hereto.
On or before the expiry of each calendar year, Tenant shall provide to Landlord evidence
satisfactory to Landlord that all Realty Taxes and business taxes payable by Tenant pursuant to
the terms hereof up to the expiry of such calendar year, including all penalties and interest resulting
from late payment of Realty Taxes and business taxes, have been duly paid.
6.6 Contest of Realty Taxes
Realty Taxes, or the assessments in respect of Realty Taxes which are the subject of any
contest by Landlord or Tenant, shall nonetheless be payable in accordance with the foregoing provisions hereof, provided, however, that in the event Tenant shall have paid any amount in respect of Realty Taxes in excess of the amount ultimately found payable as a result of the disposition of any such contest, and Landlord receives a refund in respect thereof, if Tenant is not
in default hereunder, the appropriate amount of such refund shall be refunded to or, at the option of Landlord, credited to the account of Tenant.
Landlord may contest any Realty Taxes with respect to the Premises or any part or all of the Shopping Centre and appeal any assessments related thereto and may withdraw any such
contest or appeal or may agree with the relevant authorities on any settlement, compromise or conclusion in respect thereof and Tenant consents to Landlord’s so doing. Tenant will co-operate with Landlord in respect of any such contest and appeal and shall make available to Landlord such information in respect thereof as Landlord requests. Tenant will execute forthwith on request all
consents, authorizations or other documents as Landlord requests to give full effect to the foregoing.
Tenant will not contest any Realty Taxes or appeal any assessments related to the Premises
or the Shopping Centre.
Tenant shall pay to Landlord forthwith upon demand the Proportionate Share or such
reasonable share as allocated by Landlord in its sole discretion of all costs and expenses of any kind incurred by Landlord bona fide and acting reasonably in obtaining or attempting to obtain information in respect of or a reduction or re-allocation in respect of Realty Taxes and any
assessments related thereto including, without limitation, legal, appraisal, administration and overhead costs.
6.7 Adjustments
Any amounts payable by Tenant on account of Realty Taxes shall be adjusted on a per
diem basis in respect of any period not falling wholly within the Term for which Realty Taxes are payable.
7. OPERATION OF SHOPPING CENTRE
7.1 Operation of Shopping Centre by Landlord
Landlord shall repair, maintain and operate the Shopping Centre other than Leasable Areas in a reasonable manner, having regard to its size, age, location and character.
7.2 Tenant’s Payment of Operating Costs
(a) Commencing on the earlier of: (i) the Commencement Date; and (ii) the date on
which Tenant first uses any part of the Premises for the conduct of business, and thereafter at all times throughout the Term, Tenant shall pay to Landlord the Proportionate Share of Operating Costs.
(b) The amounts payable by Tenant pursuant to this Section 7.2 may be computed on
the basis of such periods of time as Landlord shall determine from time to time and shall be paid by Tenant to Landlord without deduction, abatement or set-off
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whatsoever within ten (10) days after the receipt of a statement submitted to Tenant showing the amount payable by Tenant from time to time.
(c) All amounts payable under this Article 7 in respect of any period not falling
entirely within the Term shall be adjusted between Landlord and Tenant on a per diem basis.
7.3 Adjustments to Operating Costs
(a) If: (i) by reason of the conduct of business on the Premises outside Business
Hours (which is not permitted without Landlord’s prior written consent); or (ii)
by reason of the particular use or occupancy of the Premises or any of the Common Facilities by Tenant, its employees, agents or persons having business with Tenant; or (iii) Tenant requires any services in respect of the Building
beyond building standard services, such as, without limitation, additional security or special procedures for waste disposal (whether relating to quantity or the nature of the waste) additional costs in the nature of Operating Costs, such as, without limitation, utility charges, security costs, and costs of heating, ventilating and air-
conditioning, costs of waste disposal, are incurred in excess of the costs which would otherwise have been incurred for such items, then Landlord shall have the
right, but not the obligation, to determine such excess costs plus fifteen (15%) percent of the amount thereof (“Excess Costs”) on a reasonable basis and require
Tenant to pay such Excess Costs.
(b) If Tenant or any other tenant of the Shopping Centre, pursuant to its lease or otherwise by arrangement with Landlord, provides at its cost any goods or services the cost of which would otherwise be included in Operating Costs, or if
any goods or services the cost of which is included in Operating Costs benefit any portion of the Shopping Centre to a materially greater or lesser extent than any other portion of the Shopping Centre, then either the denominator for determining
a Proportionate Share, or alternatively the amount of Operating Costs, may be
adjusted as determined by Landlord acting reasonably to provide for the equitable
allocation of the cost of such goods and services among the tenants of the Shopping Centre.
(c) Tenant acknowledges that Operating Costs may be allocated or attributed by
Landlord directly or between the various components of the Shopping Centre, including the retail, office and storage areas, as well as to the enclosed malls and free-standing buildings, if any, comprising part of the Shopping Centre and that Landlord may adjust Operating Costs or Tenant’s Proportionate Share fraction in
accordance with practices relevant to multi-use commercial developments on a basis consistent with the benefits derived by the tenants of each component of the
Shopping Centre and having regard to the nature of the particular cost and expense being allocated.
8. USE OF PREMISES
8.1 Use of Premises
To the intent that this covenant shall run with the Premises for the benefit of the Shopping Centre, excluding the Premises, Tenant covenants that it shall not use and shall not cause, suffer
or permit the Premises to be used for any purpose other than as described as Use of Premises in subsection 1(j) hereof (“Permitted Use”). Tenant covenants, represents and warrants to Landlord that its use is permitted under all applicable Laws and that Tenant will be able to obtain an occupancy permit.
8.2 Name of Business
Tenant shall conduct its business in the Premises and shall advertise such business by the name described as Business Name in Section 1(k) hereof and by no other name whatsoever.
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8.3 Conduct of Business
(a) At all times throughout the Term, Tenant shall continuously, actively and diligently conduct its business in the whole of the Premises in an up to date, first
class and reputable manner. Furthermore, if the Premises are Retail Premises, Tenant shall conduct such business during all Business Hours and not otherwise, with an adequate staff and full stock of new, up-to-date merchandise, provided
that nothing herein contained shall require Tenant to carry on business during any
period prohibited by Laws regulating the days or hours when such business may
be conducted. Tenant shall conduct its business in the Premises and shall advertise such business by the name described as Business Name in Section 1 hereof and by no other name whatsoever. Tenant shall at all times keep in place
and lowered, closed or otherwise as required by Landlord such building standard blinds or other window covering as determined by Landlord from time to time.
8.4 Tenant’s Fixtures
Tenant shall install and maintain in the Premises at all times during the Term first-class
trade fixtures including furnishings and equipment adequate and appropriate for the business to be conducted on the Premises and of no less a quality or quantity than whatever is usual for such type
of business, all of which shall be kept in good order and condition. Tenant shall not remove any trade fixtures or other contents from the Premises during the Term, except, with the prior written
consent of Landlord, in the ordinary course of business or for the purpose of replacing them with others at least equal in value and function to those being removed.
8.5 Intentionally Deleted.
8.6 Signs
Tenant shall not erect, install or display any sign or display on or visible from the exterior of the Premises without Tenant having first obtained Landlord’s written approval as to the size, design, location and specifications of such sign, which approval may be arbitrarily withheld. Any
signs shall be completed in accordance with the foregoing provisions herein and comply with all
applicable governmental laws, by-laws, ordinances, rules and regulations. Tenant shall also obtain
any and all required governmental approvals and shall deliver a copy of same to Landlord. Other than as herein provided, Tenant shall not erect, install or otherwise permit any sign on or visible from the exterior of the Premises. All signs shall be installed by Tenant, or at Landlord’s option,
by Landlord, at Tenant’s sole cost and expense. Notwithstanding the above, the Tenant acknowledges that no signage, posters, window stickers/vinyl application shall be placed on the windows facing out onto the parking lot and roadways, particularly Brock Road.
8.7 Prohibited Uses
Tenant shall not cause, suffer or permit the Premises or any part thereof to be used at any time during the Term for any of the following sales, businesses or activities:
(a) the sale of second-hand goods, surplus articles, insurance salvage stock, fire sale stock, any damaged or defective merchandise, liquidation stock, bankruptcy stock
or other distress or “end-of-line” stock;
(b) the sale of out-of-style, job lot, low quality or any inferior merchandise;
(c) any auction;
(d) a liquidation sale, bankruptcy sale, “going-out-of-business” sale, “moving” sale,
“lease expiry” sale or any other similar sale;
(e) any “fire” sale, “smoke damage” sale, or any other type of sale following or referring to any type of damage;
(f) any other special sale or sales other than occasional seasonal sales in the normal
routine of Tenant’s business with its regular customers;
(g) an order office or mail order office;
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(h) a store for the sale of merchandise through catalogue;
(i) any vending machines or other coin operated machines, entertainment or games machines or any other mechanical or electrical serving or dispensing machines or
devices whatsoever or the sale or supply of any food or beverages (except, in the case of office premises only, food or beverages such as are routinely served to employees and visitors in work places such as coffee and soft drinks) unless
expressly permitted in writing by Landlord, in its sole discretion;
(j) any sale of tickets for theatre or other entertainment events or lottery tickets;
(k) any business which would result in people waiting in Common Facilities to enter the Premises;
(l) any deceptive, misleading or fraudulent advertising or selling procedures or
practices or any unethical or dishonest procedures or practices;
(m) in any office premises, any retail or wholesale sales activities;
(n) any use which in any way contravenes any restrictive covenants or exclusivities in leases granted by Landlord as set out in Schedule “E” attached hereto; Tenant
covenants and agrees that it will not carry on in the Premises any business which will in any way place Landlord in breach of any such restrictive covenants and
Tenant will indemnify and save Landlord harmless from and against all actions, claims, demands and costs with respect thereto; this subsection (n) shall not be
interpreted to prevent Tenant from carrying on in the Premises any business to the extent expressly permitted pursuant to Section 8.1 (“Use of Premises”) hereof; or
(o) any business or activity not in compliance with all Laws.
The inclusion of the foregoing provisions of this Section 8.7 shall not be deemed to be a representation or warranty of Landlord that any of the foregoing activities will not be authorized by Landlord to be conducted on any part of the Shopping Centre. Tenant shall forthwith, upon the
request of Landlord, discontinue any business, conduct or practice carried on or maintained in or
about the Premises which, in Landlord’s sole opinion, may damage or reflect unfavourably upon
Landlord, the Shopping Centre, or any other tenants or occupants thereof. If, in the opinion of Landlord, Tenant is in breach of any of the provisions of this Section 8.7, Tenant shall immediately discontinue such use upon Landlord’s written request.
8.8 Waste Removal
Tenant shall not allow any refuse, garbage or any loose, objectionable material to accumulate in or about the Premises or the Shopping Centre and will at all times keep the Premises in a clean and neat condition. The Tenant shall be responsible, at its cost, for the removal of any
garbage from the Premises and will not leave any garbage on the shopping centre site.
8.9 Pest Control
Tenant shall co-operate with Landlord and with any contractor(s) engaged by Landlord in respect of pest control and extermination in the Premises and the Shopping Centre.
Tenant shall be responsible for pest control and pest extermination in respect of the Premises and shall engage, for such purpose, such contractors at such intervals as Landlord may require. Tenant shall not bring or permit to be brought onto the Premises or the Shopping Centre any animals or birds of any kind.
8.10 No Storage
Tenant shall not use any portion of the Premises for any storage purposes other than such minor parts as are reasonably required for the conduct on the Premises of the business permitted and required to be carried on pursuant to this Lease.
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8.11 Waste and Nuisance
(a) Tenant shall not cause, suffer or permit any waste or damage to the Premises or leasehold improvements, fixtures or equipment therein nor permit any
overloading of the floors thereof and shall not use or permit to be used any part of the Premises for any dangerous, noxious or offensive activity or goods and shall not do or bring anything or permit anything to be done or brought on or
about the Premises or the Shopping Centre which results in undue noise or
vibration or which Landlord may reasonably deem to be hazardous or a nuisance
or annoyance to any other tenants or any other persons permitted to be on the Shopping Centre, including without limitation any objectionable odours emanating from the Premises. Tenant shall immediately take steps to remedy,
remove or desist from any activity, equipment, goods or condition on or emanating from the Premises to which Landlord objects on a reasonable basis. Tenant shall take every reasonable precaution to protect the Premises and the Shopping Centre from risk of damage by fire, water or the elements or any other
cause.
(b) Tenant shall not itself, and shall not permit any of its employees, servants, agents,
contractors or persons having business with Tenant, to obstruct any Common Facilities except as expressly permitted by Landlord in writing nor use or permit
to be used any Common Facilities for other than their intended purposes. Without limiting the foregoing, Tenant shall not permit any equipment, goods or material whatsoever to be placed or stored anywhere in or on the Common Facilities, including without limitation on the loading docks and other outside areas adjacent
to the Premises. Tenant shall not, and shall not permit anyone else to, place anything on the roof of the Building or go on to the roof of the Building for any purpose whatsoever, without Landlord’s prior written approval, which may be
arbitrarily withheld in Landlord’s sole discretion.
(c) Tenant shall not use any advertising, transmitting or other media or devices which
can be heard, seen, or received outside the Premises, or which could interfere with any communications or other systems outside the Premises.
(d) Tenant shall conduct its business on the Premises in keeping with a first-class
centre. To that end, Tenant covenants and agrees that it shall not cause, suffer or permit any fumes, odours, noise or other element, any of which is determined by Landlord to be a nuisance or disturbance to Landlord or any other occupant of the Shopping Centre, to emanate from the Premises; if Landlord determines that any
such fumes, odours, noise or other element is emanating from the Premises in such manner as to cause any nuisance or disturbance to Landlord or any other
occupant of the Shopping Centre, Tenant shall forthwith, upon notice from Landlord, cause the same to be rectified.
(e) Tenant shall be solely responsible for any contaminant, pollutant or toxic substance at any time affecting the Premises resulting from any act or omission of Tenant or any other person on the Premises or any activity or substance on the Premises during the Term, and any period prior to the Term during which the
Premises were used or occupied by or under the control of Tenant, and shall be responsible for the clean-up and removal of any of the same and any damages caused by the occurrence, clean-up or removal of any of the same, and Tenant shall indemnify Landlord in respect thereof.
8.12 Compliance with Laws
(a) Tenant shall be solely responsible for obtaining from all authorities having jurisdiction all necessary permits, licences and approvals as may be necessary to permit Tenant to hold this Lease and to occupy the Premises and conduct its
business thereon, as required by all applicable Laws, including, without limiting the generality of the foregoing, any necessary extra-provincial licence, any necessary licence under applicable legislation and any necessary approvals under the Investment Canada Act, or any similar legislation.
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(b) Tenant shall be responsible for and shall comply at its own expense with all applicable Laws respecting the use, condition and occupation of the Premises, and all leasehold improvements, trade fixtures, furniture, fixtures, equipment and
contents thereof (collectively called “Contents”) and Tenant shall promptly perform all necessary repairs, alterations, changes and improvements to the Premises and Tenant’s business, use, or occupancy thereon and the Contents in
order to comply with all of such Laws.
(c) Tenant shall provide Landlord on request with evidence satisfactory to Landlord
acting reasonably that Tenant has obtained and is complying with the terms of all applicable licenses, approvals and permits from time to time.
8.13 Deliveries
All deliveries to and from the Premises, and loading and unloading of goods, merchandise, refuse, materials and any other items, shall be made only by way of such driveways, access routes, doorways, corridors and loading docks as Landlord may from time to time designate and shall be subject to all applicable rules and regulations made by Landlord from time to time pursuant to
Section 17.5 (“Rules and Regulations”).
8.14 Environmental
(a) Tenant covenants and agrees to utilise the Premises and operate its business in a manner so that no part of the Premises or the surrounding lands are used to
generate, manufacture, refine, treat, transport, store, handle, dispose of, transfer, produce or process any Hazardous Substances, except in strict compliance with all applicable federal, provincial and municipal statutes, by-laws and regulations, including, without limitation, environmental, land use and occupational and
health and safety laws, regulations, requirements, permits, statutes, by-laws and regulations. Further, Tenant hereby covenants and agrees to indemnify and save harmless Landlord and those for whom Landlord is in law responsible from any
and all losses, costs, claims, damages, liabilities, expenses or injuries caused or
contributed to by any Hazardous Substances which are at any time located,
generated, stored or incorporated in, on or from any part of the Premises.
(b) Tenant hereby agrees that Landlord or its authorized representatives shall have the right at Tenant's expense, payable as Additional Rent within fifteen (15) days
of receipt of an invoice therefore, to conduct such environmental site reviews and investigations as it may deem necessary for the purposes of ensuring compliance with this Section 8.14. Tenant's obligations pursuant to this provision shall survive the expiration or earlier termination of the Term.
(c) Tenant shall be solely responsible for: (i) any Hazardous Substances at any time affecting the Premises resulting from any act or omission of Tenant or any other
person on the Premises or any activity or substance on the Premises during the Term and any renewal or extension of the Term and any period prior to the Term
during which the Premises were used or occupied by or under the control of Tenant; and (ii) any Hazardous Substances on the Shopping Centre or at any time affecting the Shopping Centre resulting from any act or omission of Tenant, its employees, agents, servants, contractors or any other person for whom Tenant is
at law responsible; and Tenant shall be responsible for the clean-up and removal of any of the same and any damages caused by the occurrence, clean-up or removal of any of the same, and Tenant shall indemnify Landlord with respect thereto.
(d) Tenant acknowledges that Landlord may elect to obtain and maintain environmental impairment insurance at Tenant’s sole cost, and Tenant shall reimburse Landlord for same, forthwith as Additional Rent.
8.15 Use of Shopping Centre Name
Tenant does not have nor will it acquire any rights in such names, marks or insignia and at the option of Landlord Tenant will abandon or assign to Landlord any such rights which Tenant
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may acquire by operation of law and will promptly execute such documents as in the opinion of Landlord are or may be necessary to give effect to this Section 8.15.
8.16 Exclusivities
Tenant acknowledges that Landlord has granted exclusive covenants and may grant other exclusive covenants to tenants of the Shopping Centre and accordingly Tenant covenants that it shall carry on the business permitted to be carried on in the Premises in such manner as the business
is generally recognized to be conducted in the Province of Ontario at the time of entering into this
Lease, and in no other manner. Without limiting the generality of the foregoing, Tenant covenants
and agrees that it shall not introduce new product lines, or other new services to its customers without first obtaining the written consent of Landlord, which consent may be unreasonably withheld by Landlord if the introduction by Tenant of such product line or service would infringe
on exclusive covenants already granted by Landlord. Tenant also agrees that it shall not be permitted at any time during the Term (or any renewal or extension thereof) to carry on business in the Premises in such a manner as to infringe upon any future exclusive uses of which Landlord notifies Tenant by amendments from time to time to Schedule “E” or of which Tenant becomes
aware or, with reasonable efforts, would have become aware. Without limiting the generality of the foregoing, Tenant acknowledges that Landlord has granted those exclusive covenants set out
on Schedule “E” and Tenant covenants and agrees not to do or permit anything to be done which may render Landlord in breach of any exclusive covenants and shall indemnify and save Landlord
harmless from and against all actions, claims, demands and costs with respect thereto. If, in the opinion of Landlord, Tenant is in breach of this provision, Tenant shall immediately discontinue such use upon written request of Landlord. Tenant acknowledges that any breach by the Tenant of this provision will constitute a breach of this Lease for which the Landlord is entitled to exercise
such rights and remedies available to it pursuant to this Lease or at law, including the right to terminate this Lease without prejudice to any of its other rights or remedies as the Landlord may have hereunder this Lease or at law. The Tenant acknowledges that any obligation of the Landlord
to provide its approval or consent under this Lease shall be subject to such restrictive covenants.
9. SERVICES AND UTILITIES
9.1 Utilities
(a) Tenant shall be solely responsible for and shall promptly pay for, as and when they fall due, to Landlord or as Landlord shall from time to time direct, all costs
of utilities consumed in the Premises and the cost of providing and supplying such utilities including, without limitation, water, electricity, gas, steam and any other utilities which are available and supplied to or in respect of the Premises, and all costs for all fittings, connections and meters and all work performed in connection
with any services or utilities provided to the Premises. Tenant shall promptly execute and deliver any agreements required by Landlord or by utilities suppliers
in respect of the supply of any utilities to the Premises. The Tenant shall be required to take over all utility accounts which are separately metered. Tenant’s
use of any such utilities shall not exceed the available capacity of the existing systems from time to time.
(b) Subject to Landlord’s ability to do so, Landlord shall provide and supply or cause to be provided and supplied to the Shopping Centre, reasonable utilities, the cost
to Landlord of which shall be included in Operating Costs.
(c) If Tenant desires at any time to obtain any such utilities in excess of such available capacity, Tenant may supply and install at its expense any special wires, conduits or other equipment necessary to provide such additional capacity subject to the
prior written consent of Landlord.
(d) Should there be no individual meters or apparatus for the measurement of the consumption of any or all utilities supplied to the Premises not be installed at any time then utilities shall be charged on the basis of an equitable allocation as
determined by Landlord, acting reasonably, plus Landlord’s cost of determining Tenant’s share of the costs of all utilities including, but not limited to, professional, engineering and consulting fees, and an administration fee of fifteen (15%) percent of all such costs. Any such allocation by Landlord shall be final
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and binding upon Tenant. If required by Landlord, Tenant shall install at its expense a separate meter or meters to measure the consumption of any or all utilities in the Premises, the type of meter and location to be as determined by
Landlord.
(e) The amounts payable by Tenant under this Section 9.1 shall be payable to Landlord or as Landlord shall from time to time designate.
9.2 Heating and Air Conditioning
(a) Tenant shall be responsible for and promptly pay for as and when due, to
Landlord or as Landlord shall from time to time direct, all costs of heating, ventilating, air conditioning and humidity control (“HVAC”) in the Premises. The said costs payable by Tenant shall be as determined by separate meters, if
any, and otherwise as determined by Landlord acting reasonably. Tenant shall install at its expense such meters and in such locations as shall be required by Landlord to measure the supply of or costs to be charged for HVAC in the Premises.
(b) Tenant shall operate the HVAC equipment within or serving the Premises in such manner as to maintain such reasonable conditions of temperature, air circulation
and humidity within the Premises as determined by Landlord and, in any event, in such manner that there shall be no direct or indirect use of HVAC from the
Common Facilities for the Premises. Tenant shall comply with all rules and regulations as Landlord shall make from time to time respecting the maintenance, repair and operation of all such HVAC equipment.
(c) Landlord shall be responsible at Tenant’s expense for all maintenance, repairs
and replacements to any HVAC equipment within or serving exclusively the Premises and shall maintain a service contract for any such HVAC equipment within or serving exclusively the Premises. All of the costs thereof plus fifteen
(15%) percent of such amount for Landlord’s inspection, supervision and
overhead, shall be included in Operating Costs or charged directly to Tenant, as
determined by Landlord, acting reasonably.
(d) Landlord shall not be responsible for the inadequacy of any heating or cooling of the Premises if: (i) the use or occupancy of the Premises; or (ii) the electrical or
other power consumed on the Premises; or (iii) the configuration of partitions or other items on the Premises; or (iv) the failure of Tenant to shade windows, interferes with or impairs the functioning of or places a higher demand on equipment or heating or cooling of the Premises.
9.3 Landlord’s Suspension of Utilities, Etc.
In order to effect any maintenance, repairs, replacements, alterations or improvements to
any of such utilities, HVAC equipment or systems, or any other part of the Shopping Centre, Landlord shall have the right, without any liability and without thereby constituting an interference
with Tenant’s rights under this Lease or a breach by Landlord of this Lease, and without thereby entitling Tenant to any rights in respect thereof, to discontinue, suspend or modify any utilities, HVAC equipment or systems at such time or times and from time to time as Landlord shall deem desirable.
9.4 Landlord’s Services
(a) Tenant shall pay Landlord forthwith on demand all charges as determined and allocated by Landlord acting reasonably in respect of all special services provided to or for the benefit of Tenant beyond building standard services the costs for
which are included in Operating Costs, such special services including, without limitation, charges for security, hoisting, supervision, waste removal, and receiving, storing and handling materials and articles.
(b) Landlord shall have the right, to be exercised by written notice to Tenant, to
require that Landlord be the exclusive supplier, at Tenant’s expense, of such materials or services for Tenant in respect of the Premises and the Shopping
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Centre not otherwise expressly provided for in this Lease as Landlord may designate from time to time (“Services”) including, without limitation, replacement of tubes, bulbs and ballasts; cleaning of carpeting, drapes and
curtains; waste removal; any services requiring drilling or otherwise penetrating floors, walls and ceilings; and locksmithing and security arrangements. If Landlord does not require that it be the supplier of Services, only persons
approved by Landlord acting reasonably may supply Services to Tenant but
subject to reasonable rules and regulations established by Landlord.
(c) Landlord shall not be liable for any damages caused in performance of any maintenance or cleaning provided hereunder, unless caused by negligence
9.5 Landlord’s Charges for Services
Unless otherwise expressly agreed between Landlord and Tenant to the contrary in respect of any specific matter from time to time, all work performed and materials supplied by Landlord for Tenant or otherwise respecting the Premises pursuant to the provisions hereof or otherwise shall be paid for by Tenant to Landlord forthwith upon demand at Landlord’s cost for the same
plus ten (10%) percent for inspection and supervision.
10. MAINTENANCE, REPAIRS AND ALTERATIONS
10.1 Maintenance and Repairs of Premises
(a) At all times throughout the Term, Tenant, at its sole expense, shall perform such
maintenance (including painting and repair or replacement of any interior finishings), repairs and redecorating and upgrading and replacements as required to keep the Premises, all contents thereof and all services, equipment and systems located in or primarily serving the Premises, at all times in first-class appearance
and condition, and in accordance with all Laws and Landlord’s reasonable requirements, but excluding only the obligations of Landlord expressly provided in Section 10.7 (“Landlord’s Repairs”). For purposes of this Section 10.1, but
without affecting the interpretation of any other provision of this Lease, Premises
shall include all leasehold improvements to the Premises, the entranceway to the
Premises, and all areas and facilities adjacent or proximate to and serving exclusively the Premises.
(b) Notwithstanding anything contained in this Lease to the contrary, Landlord shall
be entitled upon extension of this Lease, or when renovating the Shopping Centre, to require Tenant to perform cosmetic (i.e. painting) renovations to the Premises, if in Landlord’s sole and unfettered discretion, such renovations are essential to maintain the Shopping Centre and the Premises in an up-to-date first class
condition. Such renovations shall be performed at the sole cost of Tenant, to a standard consistent with the maintenance of the Shopping Centre and the
Premises in an up-to-date first class condition and in accordance with the provisions of Article 10 of this Lease.
10.2 Approval of Repairs and Alterations
(a) Tenant shall not make any material repairs, replacements, changes, additions, improvements or alterations (hereinafter referred to as “Alterations”) to the Premises without Landlord’s prior written consent, which consent shall not be
unreasonably withheld unless such proposed Alterations might in any way affect the demising walls or entrances of the Premises or the structure or mechanical or electrical services of the Premises or the Shopping Centre or the coverage of the Shopping Centre for zoning purposes, or the parking requirements for the
Shopping Centre, or impair the value or usefulness of the Premises or the portion of the Shopping Centre in which the Premises are located, or impair the value or usefulness of the Shopping Centre or reduce the amount of Gross Revenue, or, in the opinion of Landlord, detrimentally affect the appearance or quality of the
Premises or the Shopping Centre or impair the value or the usefulness of the Premises or the Shopping Centre, in any of which cases Landlord’s consent may be unreasonably withheld in Landlord’s sole discretion.
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(b) With its request for Landlord’s consent, Tenant shall submit to Landlord details of the proposed Alterations including plans and specifications prepared by qualified architects or engineers, and such Alterations shall be completed in
accordance with the plans and specifications approved in writing by Landlord.
(c) All Alterations shall be planned and completed in compliance with all Laws and Tenant shall, prior to commencing any Alterations, obtain at its expense all
necessary permits and licences. Prior to the commencement of any such
Alterations, Tenant shall furnish to Landlord such evidence as reasonably
required by Landlord of the Shopping Centre as to the cost of Alterations and Tenant’s ability to pay for same, together with such indemnification against costs, liens and damages as Landlord shall reasonably require including, if required by
Landlord, a performance, completion and labour and materials bond acceptable to Landlord, in its sole discretion, in an amount at least equal to the estimated cost of such Alterations, guaranteeing completion within a reasonable time of such Alterations, free and clear of any liens or encumbrances.
(d) All Alterations shall be performed at Tenant’s cost, promptly and in a good and workmanlike manner and in compliance with Landlord’s rules and regulations,
by competent contractors or workmen If any Alterations affect the structure or any mechanical, electrical, utility, sprinkler, communications or other similar
systems within the Premises or the Shopping Centre, they shall, at Landlord’s option, be performed at Tenant’s expense by Landlord or by contractors designated by Landlord and under Landlord’s supervision. For all Alterations performed by Landlord or at Landlord’s expense or under Landlord’s supervision,
Tenant shall pay forthwith upon request all amounts paid or payable by Landlord to third parties and all reasonable charges of Landlord for its own personnel plus ten (10%) percent of the costs of such Alterations for Landlord’s inspection and
supervision.. All Alterations, the making of which might disrupt other tenants or
occupants of the Shopping Centre or the public, shall be performed outside
Business Hours.
(e) If Tenant performs any such Alterations without compliance with all of the foregoing provisions of this Article 10, Landlord, without prejudice to and
without limiting Landlord’s rights pursuant to this Lease and at law, shall have the right to require Tenant to remove such Alterations forthwith and either restore the Premises to their condition prior to such Alterations or perform such Alterations in compliance with the foregoing provisions of this Article 10.
(f) Tenant shall pay to Landlord forthwith upon request all of Landlord’s reasonable costs including, without limitation, fees of architects, engineers and designers,
incurred in dealing with Tenant’s request for Landlord’s consent to any Alterations, whether or not such consent is granted, and in inspecting and
supervising any such Alterations and Landlord shall have the right to require Tenant to pay Landlord a deposit on account of such costs as a precondition to Landlord’s granting any necessary consent hereunder.
10.3 Repair According to Landlord’s Notice
Landlord or any persons designated by it shall have the right to enter the Premises at any time to view the state of repair, condition and use thereof and Tenant shall promptly perform any maintenance (including painting, decorating and repair or replacement of any interior finishings), repairs, replacements or Alterations according to written notice from Landlord.
10.4 Notice by Tenant
Tenant shall give immediate written notice to Landlord of any accident, defect, damage or deficiency in any part of the Premises or the Shopping Centre which comes to the attention of Tenant or any of its employees or contractors notwithstanding the fact that Landlord may have no
obligation in respect of the same. The provisions of this Section 10.4 shall not be interpreted so as to imply or impose any obligation whatsoever upon Landlord. Tenant shall exercise all due diligence to become aware of any such situation.
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10.5 Ownership of Leasehold Improvements
All Leasehold Improvements installed in the Premises by Tenant, or by Landlord on Tenant’s behalf, shall forthwith upon the installation thereof become the absolute property of
Landlord without compensation therefore but without Landlord’s having or thereby accepting any responsibility in respect of the maintenance, repair or replacement thereof, all of which shall be Tenant’s responsibility.
10.6 Construction Liens
Tenant shall make all such payments and take all such steps as may be necessary to ensure
that no lien or other charge or claim therefore or certificate of action in respect thereof (any of which is herein referred to as “Lien”) is registered against the Shopping Centre or any portion thereof or against either Landlord’s or Tenant’s interest therein as a result of any work done for or
services or material supplied to Tenant or in respect of the Premises. Tenant shall cause any such registrations to be discharged or vacated immediately after notice from Landlord, or within ten (10) days after registration, whichever is earlier.
Tenant shall indemnify and save harmless Landlord from and against any liabilities, claims,
liens, damages, costs or expenses, including legal expenses, arising in connection with any work done for or services or materials supplied to Tenant or in respect of the Premises.
If Tenant permits any such lien registration or fails to cause any such registration to be discharged or vacated as aforesaid then, in addition to any other rights of Landlord, Landlord may,
but shall not be obliged to, discharge or vacate the same by paying the amount claimed to be due together with any other amounts into court or otherwise as Landlord determines, and the amounts so paid and all costs incurred by Landlord, including legal fees and disbursements, in thus arranging for the discharging or vacating of any such Lien shall be paid by Tenant to Landlord
forthwith upon demand together with reasonable compensation to Landlord for administration in respect thereof.
10.7 Landlord’s Repairs
Subject to the provisions of Article 12 herein and subject to Tenant’s obligations hereunder,
Landlord, to the extent that the failure to do so would materially detrimentally affect access to or
use of the Premises, on reasonable notice from Tenant, shall repair: (a) defects in the structure of the Shopping Centre and exterior walls of the building in which the Premises are located; and (b) such transportation, electrical, mechanical and drainage equipment and systems forming part of
the Shopping Centre but not located within the Premises and not serving exclusively the Premises. Landlord’s costs of compliance with this Section 10.7 shall be included in Operating Costs to the extent set out in Section 2.23.
10.8 Elevator Services
The Landlord shall provide, except when repairs are being made, elevator service for use by the Tenant and its invitees in common, provided that the Tenant and its employees and all other
persons using the same shall do so at their own risk. Access to the elevator to the Tenant's invitees shall be available at all times, except when repairs are being made. There shall be no liability on
the Landlord for any claim in respect of any failure by the Landlord to provide elevator service during any power failure or other cause beyond the control of the Landlord or by reason of the carrying out of any repairs, maintenance or replacement of elevators, nor shall there be, consequent upon the foregoing, any repayment or reduction in the Rent reserved hereby. The elevator will be
commissioned by the Landlord once the Fixturing Period is complete. Access to the elevator will be secure and accessible only by the Tenant and its employees and invitees. The Landlord shall have access to the elevator to complete maintenance or repairs and also in any emergency situation.
10.9 Janitorial Services and Garbage
The Landlord acknowledges and agrees that the Tenant will be responsible for its own janitorial services and waste disposal and therefore the cost of janitorial services and waste disposal shall not be included when calculating the Tenant’s share of operational costs.
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11. END OF TERM
11.1 Vacating of Possession
Forthwith upon the expiry or earlier termination of the Term, Tenant shall peaceably
deliver to Landlord vacant possession of the Premises in such condition in which Tenant is required to maintain and keep the Premises during the Term pursuant hereto and shall leave the Premises in a neat, clean and broom-swept condition and Tenant shall deliver to Landlord all keys for the
Premises and all keys or combinations to locks on doors or vaults in the Premises.
11.2 Removal of Trade Fixtures
Provided that Tenant has paid all Rent to the expiry of the Term and any and all damages and other amounts payable by Tenant to Landlord for any reason whatever and provided Tenant is not otherwise in default hereunder, or if otherwise authorized or requested by Landlord, Tenant
shall at the expiry of the Term and at Landlord’s option, on the earlier termination of the Term, remove its trade fixtures and Tenant shall repair all damage or injury caused to the Premises resulting from the installation or removal of such trade Fixtures. Other than as provided above, Tenant shall not remove trade fixtures from the Premises.
If, at the expiry or earlier termination of the Term, Tenant does not remove its trade fixtures or any of its other property on the Premises, Landlord shall have no obligation in respect of any
such trade fixtures or property and may sell or destroy the same or have them removed or stored at the expense of Tenant or dispose of them in any other manner whatsoever as may be determined
by Landlord in its sole discretion; at the option of Landlord, such trade fixtures or property not removed at the expiry or earlier termination of the Term shall become the absolute property of Landlord without payment of any compensation therefore to Tenant and may be dealt with by Landlord in such manner as it determines.
11.3 Removal of Leasehold Improvements
As the Leasehold Improvements become the property of Landlord upon installation, at the expiry or earlier termination of the Term the Tenant shall not be responsible for the removal of
Leasehold Improvements.
11.4 Overholding by Tenant
If Tenant remains in possession of all or any part of the Premises after the expiry of the Term with the consent of Landlord and without any further written agreement or without the consent of Landlord, this Lease shall not be deemed thereby to have been renewed or extended
and Tenant shall be deemed conclusively to be occupying the Premises as a monthly tenant if Landlord did consent to Tenant remaining in possession, or as a tenant at will, if Landlord did not consent to Tenant remaining in possession (notwithstanding the acceptance of Basic Rent or Additional Rent by Landlord) in either case, on the same terms as set forth in this Lease so far as
they would be applicable to a monthly tenancy except the monthly Basic Rent shall be twice the monthly Basic Rent payable during the last twelve (12) months of the Term. Tenant agrees that
Landlord shall have the right to distrain for any arrears of Rent payable by virtue of this Section 11.4 and Article 16 (“Default and Remedies”) shall apply.
12. DAMAGE AND DESTRUCTION
12.1 Damage to Premises or Shopping Centre
If the Premises is damaged or destroyed, in whole or in part, by fire or any other occurrence, this Lease shall be terminated and the parties, acting in good faith, will negotiate
new terms, if possible, in response to such unforeseen circumstances.
12.2 Damage to Shopping Centre
If twenty-five (25%) percent or more of the Rentable Area of the Shopping Centre is damaged or destroyed by any cause whatsoever, whether or not there is any damage to the
Premises, Landlord may, at its option, elect, by written notice given to Tenant within sixty (60) days after such occurrence, to terminate this Lease as of a date specified in such notice, which date shall be not less than ninety (90) days and not more than one hundred eighty (180) days after the
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giving of such notice, in which event Tenant shall vacate and surrender possession of the Premises by not later than the said date of termination, and Basic Rent and all other payments for which Tenant is liable pursuant to this Lease shall be apportioned to the effective date of termination. If
Landlord does not so elect to terminate this Lease, and if the damage or destruction is Insured Damage, Landlord shall diligently proceed to repair and rebuild the Shopping Centre to the extent of its obligations pursuant hereto to the extent of insurance proceeds which Landlord receives or
would have received if it had maintained such insurance as is required to be maintained by
Landlord hereunder, and to the extent that any mortgagee entitled to be paid such insurance
proceeds consents to the use of the same for repair of such damage or destruction.
12.3 Restoration of Premises or Shopping Centre
If there is damage or destruction to the Premises or the Shopping Centre and if this Lease
is not terminated pursuant hereto, Landlord, in performing its repairs to the Premises or the Shopping Centre as required hereby, shall not be obliged to repair or rebuild in accordance with the plans or specifications for the Premises or the Shopping Centre as they existed prior to such damage or destruction but Landlord may repair or rebuild the same in accordance with any plans
and specifications chosen by Landlord in its sole and absolute discretion provided that Tenant’s use and occupancy of and access to the Premises and the general overall quality of the Shopping
Centre are not materially detrimentally affected by any difference in plans, specifications or form of the Premises or the Shopping Centre from such plans, specifications and form as the same
existed immediately prior to the occurrence of such damage or destruction.
12.4 Determination of Matters
For the purposes of this Article 12, all matters requiring determination such as, without limitation, the extent to which any area(s) of the Premises or the Shopping Centre are damaged or
are not capable of being used, or the times within which repairs may be made, unless expressly provided to the contrary, shall be determined by Landlord in its sole discretion, such determination to be final and binding on the parties.
13. INSURANCE AND INDEMNITY
13.1 Landlord’s Insurance
Landlord shall obtain and maintain in full force and effect during the Term with respect to the Shopping Centre insurance against such occurrences and in such amounts and on such terms and conditions and with such deductible(s) as Landlord may determine from time to time, it being
agreed that Landlord need not communicate any determination to Tenant. Unless and until otherwise determined by Landlord, such insurance may include, without limitation:
(a) insurance on the Building and improvements and equipment contained therein owned or leased by Landlord or which Landlord desires to insure, against damage
by fire and other risks contained in fire insurance policies with endorsements generally known as extended coverage and riot vandalism and malicious acts
endorsements or, at Landlord’s option, “all risks” insurance;
(b) boiler and machinery insurance on such insurable objects as Landlord may elect
to insure;
(c) rental income insurance covering such occurrences, in such form, and with such period of indemnity as Landlord may determine;
(d) public liability insurance; and
(e) such other insurance and insurance in such amounts and on such terms as Landlord, in its discretion, may determine.
Notwithstanding that Tenant shall be contributing to Landlord’s costs and premiums respecting such insurance pursuant to the terms of this Lease, Tenant shall not have any insurable
or other interest in any of Landlord’s insurance other than the rights, if any, expressly set forth in this Lease or in any policy of insurance obtained by Landlord, and, in any event, Tenant shall not have any interest in or any right to recover any proceeds under any of Landlord’s insurance policies. Upon written request of Tenant, Landlord shall use reasonable efforts to obtain in its
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property insurance policies a waiver of subrogation against Tenant, if same can be obtained from Landlord’s insurers without extra cost, on such terms and with such limits and deductibles as Landlord shall determine.
13.2 Tenant’s Effect on Other Insurance
(a) Tenant shall not do and shall not cause, suffer or permit to be done or omitted to be done by any of its servants, agents, contractors or persons for whom Tenant is
in law responsible anywhere on the Shopping Centre or by any person in, on or
about the Premises and shall not permit there to be on the Premises anything
which might:
(i) result in any increase in the cost of any insurance policies of Landlord or any others on or related to the Shopping Centre or any part or contents
thereof;
(ii) result in an actual or threatened cancellation of or adverse change in any policy of insurance of Landlord or others on or related to the Shopping Centre or any part or contents thereof; or
(iii) be prohibited by any policy of insurance of Landlord or any others in force from time to time in respect of the Shopping Centre or any part or contents
thereof.
(b) If the cost of any insurance policies of Landlord or any others on or related to the
Shopping Centre or any part or contents thereof shall be increased as a result of:
(i) the use or occupancy of the Premises by Tenant or any other person on the Premises; or
(ii) anything kept or permitted to be kept by Tenant or by any person anywhere
on the Premises or by Tenant or any of its employees, customers, contractors, suppliers or persons for whom Tenant is in law responsible on any part of the Shopping Centre; or
(iii) any act or omission of Tenant or any person on the Premises, or of Tenant
or any of its employees, customers, contractors, suppliers or persons for
whom Tenant is in law responsible on any part of the Shopping Centre, Tenant shall pay the full amount of such increase in cost to Landlord forthwith upon demand, whether the increase is an increase in insurance
cost payable by Landlord or by any other tenant or occupant of the Shopping Centre or any part thereof. In determining Tenant’s responsibility for any increased cost of insurance as aforesaid, a statement issued by the organization, company or insurer establishing the insurance premiums or
rates for the relevant policy shall be conclusive evidence of the various components of such premiums or rates and the factors giving rise to any
increase therein.
(c) In the event of an actual or threatened cancellation of or adverse change in any
policy of insurance of Landlord or any others on or related to the Shopping Centre or any part or contents thereof by reason of:
(i) the use or occupancy of the Premises by Tenant or any other person permitted by Tenant on the Premises; or
(ii) anything placed on or permitted by Tenant or any person on the Premises or by Tenant or any of its employees, customers, contractors, suppliers or persons for whom Tenant is in law responsible on any part of the Shopping Centre; or
(iii) any act or omission of Tenant or any person in the Premises or by Tenant or any of its employees, customers, contractors, suppliers or persons for whom Tenant is in law responsible on any part of the Shopping Centre and if Tenant fails to remedy the situation, condition, use, occupancy or other
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factor giving rise to such actual or threatened cancellation or change within twenty-four (24) hours after notice thereof by Landlord, Landlord may, at its option, either:
(A) terminate this Lease forthwith by written notice; or
(B) remedy the situation, condition, use, occupancy or other factor giving rise to such actual or threatened cancellation or change, all at
the cost of Tenant to be paid to Landlord forthwith upon demand;
for any or all of such purposes as set forth in this subsection 13.2(c)(iii) Landlord shall have the right to enter upon the Premises without further notice.
13.3 Tenant’s Insurance
(a) Tenant shall, at its sole cost and expense, obtain and maintain in full force and effect at all times throughout the Term and such other times, if any, as Tenant occupies the Premises or any portion thereof:
(i) commercial general liability insurance including, but not limited to property
damage, public liability, personal injury liability, contractual liability, products and completed operations, non-owned automobile liability and
Tenant’s legal liability, all on an occurrence basis, with respect to any use, occupancy, activities or things on the Premises and with respect to the use
and occupancy of any other part of the Shopping Centre by Tenant or any of its servants, agents, contractors or persons for whom Tenant is in law responsible, with coverage for any one occurrence or claim of not less than Ten Million ($10,000,000.00) Dollars or such other amount as Landlord
may reasonably require upon not less than one (1) month’s notice at any time;
(ii) insurance, in respect of such perils as are from time to time covered in an
all risks policy not less broad than the standard commercial property floater
policy with the exclusions relating to earthquake and flood removed
therefrom, covering the City’s leasehold improvements, trade fixtures, furnishings, equipment, stock-in-trade, storefront and store facing materials and all signs in, on or about the Premises, for not less than the full
replacement cost thereof and with a replacement cost endorsement;
(iii) broad form comprehensive boiler and machinery insurance on all insurable objects located on the Premises or which are the property or responsibility of Tenant on a blanket repair or replacement basis with a replacement cost
endorsement and with limits for each accident in an amount not less than the full replacement cost of all of the City’s leasehold improvements, trade
fixtures, furnishings, equipment, stock-in-trade, storefront and store facing materials and all signs in, on or about the Premises;
(iv) standard owners’ form of automobile insurance policy providing third party liability insurance on all automobiles owned by or registered in the name of Tenant with inclusive limits and on such terms as reasonably required by Landlord from time to time, covering all licensed vehicles owned by or
operated by or on behalf of Tenant;
(v) plate glass insurance on all internal and external glass; and
(vi) by law compliance insurance.
(b) The Tenant’s Commercial General Liability insurance policies shall name
Landlord as an additional insured with respect to liability arising out of the operations of the Tenant. The Tenant’s Property and Boiler policies will list the Landlord as loss payee as their interests may appear, and each of Tenant’s insurance policies shall contain, as deemed appropriate by Landlord:
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(i) the mortgage clause as may be required by any mortgagee, debenture holder or other secured creditor of Landlord;
(ii) an undertaking by the insurer that the policy will not lapse or be cancelled
or terminated, except after not less than thirty (30) days’ written notice to Landlord and Tenant of the intended cancellation or termination;
(iii) a provision stating that Tenant’s insurance policy shall be primary and shall
not call into contribution any other insurance available to Landlord.
Insurance shall be non-contributing and apply as primary not excess of any
insurance available to the Landlord but only with respect to liability arising out of the operations of the Tenant. The Landlord is not insured under the Tenant’s policy for any of their own acts or failures to act;
(iv) a disputed loss endorsement or agreement, where applicable;
(v) a severability of interests clause and a cross-liability endorsement clause for liability policies, where applicable; and
(vi) a waiver, in respect of the interests of Landlord and of any mortgagee,
debenture holder or other secured creditor of Landlord, of any provision in any such insurance policies with respect to any breach of any warranties,
representations, declarations or conditions contained in the said policies.
(c) Tenant shall ensure that Landlord shall at all times be in possession of certificates
of insurance which are current and in force in good standing including such certificates or other evidence satisfactory to Landlord as to Tenant’s insurance in effect and its renewal or continuation in force.
(d) Tenant hereby releases Landlord and its servants, agents, employees, contractors
and those for whom Landlord is in law responsible from all losses, damages and claims of any kind in respect of which Tenant is required to maintain insurance or is otherwise insured.
13.4 Landlord’s Right to Place Tenant’s Insurance
If Tenant at any time fails to take out, renew and keep in force, or pay any premiums for,
any insurance as required to be obtained and maintained pursuant hereto, or if Tenant fails from time to time to deliver to Landlord satisfactory proof of the good standing of any such insurance or the payment of premiums therefore or if the evidence submitted in respect thereof to Landlord
is unacceptable to Landlord, then, in any such event, Landlord, without prejudice to any of its other rights and remedies pursuant to this Lease, shall have the right but not the obligation to effect such insurance on behalf of Tenant and the cost thereof and all other reasonable expenses incurred by Landlord in respect thereof shall be paid by Tenant to Landlord forthwith upon demand.
13.5 Landlord’s Non Liability
Tenant agrees that Landlord shall not be liable or responsible in any way for any injury or
death to any person or for any loss or damage to any property at any time in, on or about the Premises or any property owned by or being the responsibility of Tenant or any of its servants,
agents, customers, contractors or persons for whom Tenant is in law responsible elsewhere in, on or about the Shopping Centre, unless such loss or damage results from the negligence or wilful misconduct of the Landlord, no matter how the same shall be caused and whether or not any such death, injury, loss or damage is caused or contributed to by the negligence of Landlord, its servants,
agents employees, contractors or persons for whom Landlord is in law responsible. Without limiting the generality of the foregoing, Landlord shall not be liable or responsible for any injury, death, loss or damage to any persons or property caused or contributed to by any of the following: fire, explosion steam, water, rain, snow, electricity (including any interruption or cessation of or
failure in the supply of any utilities or any HVAC), gas, or falling plaster; or by dampness or leaks from any pipes, appliances, plumbing works, roof, exterior walls or any other source whatsoever; and Landlord shall not be liable or responsible in any way for any injury, death, loss or damage to any person or property caused by any other tenants or occupants of the Shopping Centre or by any
occupants of any adjoining property or by the public or by the construction of any public, quasi public or private work or utilities. All property kept or stored in or about the Premises or kept or
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stored by Tenant or any of its servants, agents, customers, contractors or persons for whom Tenant is in law responsible elsewhere in the Shopping Centre shall be at the sole risk of Tenant and Tenant shall indemnify Landlord and save it harmless in respect of the same. Without in any way
limiting or affecting the generality or interpretation of the foregoing provisions of this Section 13.5, it is agreed that Landlord shall in no event be liable for any indirect or consequential damages suffered by Tenant, unless such damages result from the negligence or wilful misconduct of the
Landlord.
13.6 Indemnity of Landlord
Tenant shall indemnify Landlord and all of its servants, agents, employees, contractors and persons for whom Landlord is in law responsible and all other tenants and occupants of the Shopping Centre and shall hold them and each of them harmless from and against any and all
liabilities, claims, damages, losses and expenses, including all legal fees and disbursements, due to, arising from or to the extent contributed to by:
(a) any breach by Tenant of any of the provisions of this Lease;
(b) any act or omission of any person on the Premises or any use or occupancy of or
any property in the Premises for which the Tenant is responsible at law; and
(c) any act or omission of Tenant or any of its servants, agents, employees, invitees,
licensees, sub-tenants, concessionaires, contractors or persons for whom Tenant is in law responsible on the Premises or elsewhere on or about the Shopping
Centre,.
13.7 Landlord’s Employees
It is agreed that every indemnity, exclusion or release of liability and waiver of subrogation herein contained for the benefit of Landlord shall extend to and benefit all of Landlord’s servants,
agents, employees and those for whom Landlord is in law responsible (collectively referred to in this Section 13.7 as “Employees”); solely for such purpose, and to the extent that Landlord expressly chooses to enforce the benefits of this Section 13.7 for its Employees, it is agreed that
Landlord is the agent or trustee for its Employees.
14. ASSIGNMENT, SUBLETTING AND CHANGE OF CONTROL
14.1 Consent Required
(a) Tenant shall not assign this Lease in whole or in part and shall not sublet or part with or share possession of all or any part of the Premises and shall not grant any
concessions, franchises, licences or other rights to others to use any portion of the Premises (all of the foregoing being hereinafter individually or collectively referred to as “Transfer”; a party making a Transfer is referred to as a “Transferor” and a party taking a Transfer is referred to as a “Transferee”)
without the prior written consent of Landlord in each instance, which consent may not be unreasonably withheld. Without limiting or affecting the meaning or
interpretation of the foregoing, Landlord shall be entitled to arbitrarily or unreasonably withhold its consent to a Transfer in respect of which Landlord
exercises its right to terminate this Lease, or to take a Transfer of the Premises or any portion thereof, pursuant to Section 14.3.
(b) Notwithstanding and without in any way affecting or limiting the interpretation of the foregoing, it is agreed that it shall be reasonable for Landlord to withhold
its consent to a Transfer unless it is shown to Landlord’s satisfaction that:
(i) the proposed Transferee has a good business and personal reputation, and is an experienced and successful owner and operator of a business of the same type and quality as that to be operated on the Premises pursuant to the
provisions of this Lease;
(ii) not less than two (2) full years have elapsed since the more recent of the commencement of the Term and the immediately preceding Transfer, if any;
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(iii) the proposed Transferee and its principal shareholders have not been bankrupt or the holder of fifty (50%) percent or more of the issued shares of any class of shares of a corporation or of an interest in a partnership,
either of which has been bankrupt in the five (5) years preceding the date of the proposed Transfer;
(iv) the Transferee has not then recently been a prospect involved in bona fide
negotiations with Landlord respecting the leasing of any premises in the
Shopping Centre or in any way affiliated with such bona fide prospect;
(v) the Transfer or use or occupancy of the Premises by the Transferee would not result in a breach of any agreement by which Landlord is bound with respect to any part of the Shopping Centre;
(vi) Tenant is not in default under this Lease or any other agreement affecting the Premises; and
(vii) without affecting the interpretation of Section 8.1 or any other provision hereof, the business proposed to be carried on by the Transferee on the
Premises will not be incompatible with the uses of other tenants of the Shopping Centre, and will not be more burdensome on the Shopping Centre,
in terms of parking requirements or any other factor, than the business previously carried on by Tenant on the Premises.
(c) If Landlord withholds, delays or refuses to give consent to any Transfer, whether or not Landlord is entitled to do so, Landlord shall not be liable for any losses or damages in any way resulting therefrom and Tenant shall not be entitled to terminate this Lease or exercise any other remedy whatever in respect thereof
except to seek the order of a court of competent jurisdiction compelling Landlord to grant any such consent which Landlord is obliged to grant pursuant to the terms of this Lease.
(d) No transfer may be made other than pursuant to an agreement in writing of which
a copy is given to Landlord together with the request for consent. The provisions
of this Article 14 shall apply to any Transfer which might occur by inheritance or operation of law.
(e) No Transfer may be made where any portion of Rent is lower than that provided
for herein or otherwise on terms more favourable to the Transferee than the terms set forth herein.
14.2 Obtaining Consent
All requests to Landlord for consent to any Transfer shall be made to Landlord in writing
together with a copy of the agreement pursuant to which the proposed Transfer will be made and payment to Landlord of a deposit in the amount of One Thousand ($1,000.00) Dollars on account
of all costs incurred by Landlord in considering and processing the request for consent including legal costs and an administrative fee which Landlord shall be entitled to charge for the processing
of such request for consent and including all costs of completing any documentation to implement any Transfer and all other agreements contemplated hereby, all of which shall be prepared by Landlord or its solicitor if required by Landlord. All costs incurred by Landlord in respect of any such request for consent, including legal costs and Landlord’s administrative fee, shall be the
responsibility of and shall be paid by Tenant forthwith upon demand, whether or not Landlord grants its consent to any proposed Transfer.
All such requests to Landlord for consent to any Transfer shall also be accompanied by such information in writing as a landlord might reasonably require respecting a proposed
Transferee and which might be required to provide Landlord with all the information necessary to determine whether the aforementioned factors are satisfied, and which information shall include, without limitation, the name, business and home addresses and telephone numbers, business experience, credit information and rating, financial position and banking and personal references,
description of business to be conducted by the Transferee on the Premises and parking requirements for such business of such proposed Transferee.
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14.3 Landlord’s Option
Notwithstanding the other provisions contained in this Article 14, after Landlord receives any notice from Tenant in respect of a Transfer, including any request for consent to a Transfer,
accompanied by any deposit, information and copy of agreement as hereinabove required, Landlord shall have the options, to be exercised by written notice to Tenant within fifteen (15) days after the receipt of such notice and such information, deposit and agreement, to: (a) to
receive all amounts to be paid to Tenant under the agreement in respect of such Transfer less only
the direct costs of Tenant related to the Transfer such as legal costs and commissions, and less, in
the case of a sublease, all amounts receivable by Tenant under the sublease equal to the amounts payable by Tenant hereunder each month during the term of the sublease in respect of the Transferred Premises; or (b) to take a Transfer from Tenant of the Transferred Premises on the
same terms as the Transfer in respect of which Tenant had requested Landlord’s consent, as aforesaid. If Landlord elects to terminate this Lease as aforesaid, Tenant shall have the right, to be exercised by written notice to Landlord within ten (10) days after receipt of such notice of termination, to withdraw the request for consent to the Transfer, in which case Tenant shall not
proceed with such Transfer, the notice of termination shall be null and void and this Lease shall continue in full force and effect in accordance with its terms. If Landlord terminates this Lease as
it relates to a portion of the Premises, as aforesaid (“Terminated Premises”), Tenant hereby grants to Landlord and any others permitted by Landlord to use the Terminated Premises the right, in
common with Tenant and all others entitled to use the same, to use for their intended purposes all portions of the Premises in the nature of common areas (such as corridors, washrooms, lobbies and the like) or which are reasonably required for proper access to or use of the Terminated Premises (such as reception area, interior corridors, mechanical or electrical systems and ducts and the like).
14.4 Terms of Transfer
In the event of any Transfer, Landlord shall have the following rights, in default of any of which no such Transfer shall occur or be effective, to:
(a) increase the Basic Rent payable in respect of the Premises pursuant hereto from
time to time, for the balance of the Term by an amount equal to the greater of (i)
the difference between the Basic Rent payable by Tenant as at the date of request for Landlord’s consent to the Transfer and the average annual amount payable by Tenant on account of Basic Rent in respect of the Premises (to be prorated based
on area if the Transferred Premises are less than the whole of the Premises) for the three (3) consecutive Lease Years immediately preceding the Lease Year during which the said Transfer occurs or for the total preceding portion of the Term if the same shall be less than three (3) years; and (ii) the difference between
the Basic Rent payable by Tenant as at the date of request for Landlord’s consent to the Transfer and the market rent, as of the date of the request for Landlord’s
consent to the Transfer, for Basic Rent for such premises and in the same location as the Premises, to be used for the purpose as required by the terms of this Lease,
pursuant to a lease on the same terms as this Lease, such market rent to be determined by agreement between the parties and, failing agreement, to be determined by an independent real estate appraiser or broker appointed by Landlord;
(b) collect a deposit or further deposit as may be required by the Landlord to be held as a deposit pursuant to the provisions of the within Lease such that the deposit held by Landlord shall be equivalent to at least two (2) months’ gross Rent payable in respect of the Premises;
(c) require Tenant and the Transferee and any indemnifier in respect of Tenant’s obligations hereunder to enter into an agreement in writing and under seal to implement any amendments to this Lease to give effect to Landlord’s exercise of any of its rights hereunder;
(d) require the Transferee to enter into an agreement with Landlord in writing and under seal to be bound by all of Tenant’s obligations under this Lease, and to waive any right it, or any person on its behalf, may have to disclaim, repudiate or terminate this Lease pursuant to any bankruptcy, insolvency, winding-up or other
creditors proceeding, including, without limitation, the Bankruptcy and
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Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act (Canada), and to agree that in the event of any such proceeding Landlord will comprise a separate class for voting purposes;
(e) receive all amounts to be paid to Tenant under the agreement in respect of such Transfer less only any consideration which is bona fide being paid to Tenant for equipment, furnishings and other property to be conveyed by Tenant as part of or
together with the transaction of Transfer and which is not reasonably attributable
to Tenant’s interest in this Lease and less, in the case of a sublease, all amounts
receivable by Tenant under the sublease equal to the amounts payable by Tenant hereunder each month during the term of the sublease in respect of the Transferred Premises;
(f) require the Transferee to waive any rights pursuant to subsections 21 and 39(2) of the Commercial Tenancies Act (Ontario) and any amendments thereto and any other statutory provisions of the same or similar effect, to retain the unexpired Term of the Lease, or any portion thereof or obtain any right to enter into any
lease or other agreement directly with Landlord for the Premises or any portion thereof, or otherwise remain in possession of any portion of the Premises;
(g) require that all amounts payable by the Transferee each month be paid directly to Landlord who shall apply the same on account of Tenant’s obligations under this
Lease; and
(h) require the Transferee to grant to Landlord a Security Agreement pursuant to Section 16.5 hereof.
14.5 Effect of Transfer
(a) No consent of Landlord to a Transfer shall be effective unless given in writing and executed by Landlord under seal and no such consent shall be deemed or presumed by any act or omission of Landlord or by Landlord’s failure to respond
to any request for consent or by Landlord’s accepting any payment of any amount
payable hereunder from any party other than Tenant. Without limiting the
generality of the foregoing, Landlord may collect rent and any other amounts from any Transferee and apply the net amount collected to any Rent and the collection or acceptance of any Rent shall not be deemed to be a waiver of
Landlord’s rights under this section nor an acceptance of or consent to any such Transfer or a release of any of Tenant’s obligations under this Lease. No Transfer and no consent by Landlord to any Transfer shall constitute a waiver of the necessity to obtain Landlord’s consent to any subsequent or other Transfer.
(b) In the event of any Transfer or any consent by Landlord to any Transfer, Tenant shall not thereby be released from any of its obligations hereunder but shall
remain bound by all such obligations pursuant to this Lease for the balance of the Term. Tenant hereby consents to any further Transfers and to any amendments of
this Lease which may be made between the Transferee and Landlord without the further consent or agreement of Tenant (“Amendments”) and Tenant also consents to all Alterations (as referred to in Section 10.2) after any such Transfer. Tenant shall continue to be bound by all of its obligations pursuant hereto
notwithstanding any such further Transfers or any Amendments or Alterations, to the extent of what would have been Tenant’s obligations pursuant hereto had such Amendments or Alterations not been made. If this Lease is renewed or extended by any Transferee pursuant to any option of Tenant, or if any Transferee
exercises any option to lease other premises pursuant to any option of Tenant, each Transferor shall be liable for all of the obligations of Tenant resulting from the exercise of either options throughout the Term as renewed or extended.
(c) Every Transferee shall be obliged to comply with all of the obligations of Tenant
under this Lease. Tenant shall enforce all of such obligations against each Transferee. Any default of any Transferee shall also constitute a default of Tenant hereunder.
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(d) Tenant agrees that if this Lease is ever disclaimed, repudiated or terminated by or on behalf of a Transferee pursuant to any bankruptcy, insolvency, winding-up or other creditors’ proceeding, including any proceeding under the Bankruptcy and
Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act (Canada), or if Landlord terminates this Lease as a result of any act or default of any Transferee, Tenant shall nonetheless remain responsible for fulfilment of all
obligations of Tenant hereunder for what would have been the balance of the
Term but for such disclaimer, repudiation or termination and shall, upon
Landlord’s request, enter into a new lease of the Premises for such balance of the Term and otherwise on the same terms and conditions as in this Lease subject to such amendments hereto to which Tenant had agreed at any time prior to such
disclaimer, repudiation or termination, and with the exception that Tenant will accept the Premises in “as is” condition.
14.6 No Advertising of Premises
Tenant shall not advertise this Lease or all or any part of the Premises or the business or
fixtures or contents therein for sale without Landlord’s prior written consent, which consent shall be not unreasonably withheld subject to the other provisions hereof.
14.7 Mortgage of Lease
Tenant shall not assign, sublet, mortgage, charge or otherwise transfer the Premises or this
Lease for the purpose of securing any loan or the repayment thereof by Tenant.
14.8 Corporate Tenant/Indemnifier
(a) If Tenant or any occupant of the Premises or Indemnifier at any time is a corporation, no: (I) transfer of the issued shares in the capital stock or transfer,
issuance or division of any shares of the corporation or of any affiliate of the corporation sufficient to transfer control to others than the then present shareholders of the corporation (collectively called “Sale”); or (II) merger,
amalgamation, consolidation or other corporate restructuring or reorganization
(collectively called “Reorganization”) shall take place, without first obtaining the
prior written consent of Landlord. Upon request, Tenant and Indemnifier shall make the corporate books and records of Tenant, Indemnifier and of any affiliate of Tenant and Indemnifier available to Landlord and its representatives for
inspection in order to ascertain whether or not there has been any Sale or Reorganization. Tenant acknowledges that, in addition to Landlord’s rights under this Lease and at Law to withhold consent to any Transfer, Landlord may withhold consent to any Sale or Reorganization unless it is shown to Landlord’s
reasonable satisfaction that the financial strength of Tenant or Indemnifier, as the case may be will not be adversely affected by such Sale or Reorganization.
(b) This Section shall not apply to a Sale by Tenant if and as long as Tenant is in occupancy of the Premises and is a corporation whose shares are listed and traded
on any recognized public stock exchange in Canada or the United States and shall not apply to a Sale by Indemnifier so long as the Indemnifier is a corporation whose shares are listed and traded on any recognized public stock exchange in Canada or the United States.
(c) This section, 14.8(a) and (b) shall not apply to a municipal corporation.
14.9 Assignment by Landlord
Landlord shall have the right to sell, lease, convey, mortgage, or otherwise dispose of the Shopping Centre or any part thereof and to assign this Lease and any interest of Landlord pursuant
to this Lease without any restriction. If Landlord shall sell, lease, convey, mortgage or otherwise dispose of the Shopping Centre or any part thereof or shall assign this Lease and any interest of Landlord pursuant to this Lease, then to the extent that the purchaser or assignee agrees with Landlord to assume the covenants and obligations of Landlord hereunder, Landlord shall
thereupon and without further agreement be released of all liability pursuant to the terms of this
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Lease. This Lease shall not be affected by any such sale, lease, conveyance, mortgage or other disposition and Tenant agrees to attorn to Landlord’s successor in interest.
15. STATUS AND SUBORDINATION OF LEASE
15.1 Status Statement
Tenant shall, within ten (10) days after written request from Landlord, execute and deliver to Landlord, or to any actual or proposed lender, purchaser or assignee of Landlord, a statement or
certificate in such form as requested by Landlord stating with reasonable particularity (if such is
the case, or stating with reasonable particularity the manner in which such may not be the case):
(a) The date on which the Tenant took possession of the Premises;
(b) that this Lease is unmodified and in full force and effect, or particulars of any such modifications or stating that this Lease is not in full force and effect if such
is the case;
(c) the current Basic Rent, Additional Rent and Percentage Rent (if any) payable under this Lease;
(d) that the Landlord is not then in default under the terms of this Lease or if such is
not the case, specifying the details of such default;
(e) that the Tenant has not received a notice of default from the Landlord or if such
is not the case, specifying the details of such notice;
(f) the date the Tenant completed the Tenant’s Work;
(g) the date of commencement and expiry of the Term and the dates to which Basic Rent and any other Rent, including any prepaid rent have been paid;
(h) whether or not there is any existing default by either party under this Lease and, if so, specifying such default;
(i) that there is no reason why the obligations of Tenant under this Lease may not be fully enforced in accordance with their terms and that there are no defences, counter claims or rights of set-off in respect of any of the same;
(j) details of any matters in respect of which the party giving the statement or
certificate currently has a claim or right to setoff, defence or counterclaim against
the other party hereto;
(k) particulars of any outstanding obligations, if any, or default, if any, under any other agreement between the parties which would affect the obligations of any of
the parties pursuant hereto; and
(l) agreement, confirmation or acknowledgement by Tenant that it will not agree to any amendment, surrender or early termination of this Lease and will not prepay any Rent by more than one (1) month beyond the specific terms hereof, without
the prior written consent of any Landlord Assignee to which such statement or certificate is given.
15.2 Subordination
At the option of Landlord to be expressed in writing from time to time, this Lease and the
rights of Tenant hereunder are and shall be subject and subordinate to any and all mortgages, trust deeds and charges (any of which are herein called “Mortgage” or “Mortgages”) on or in any way affecting the Premises or the Shopping Centre or any part thereof now or in the future, including all renewals, extensions, modifications and replacements of any Mortgages from time to time.
Tenant shall at any time on notice from Landlord or holder of a Mortgage attorn to and become a tenant of the holder of any of such Mortgages upon the same terms and conditions as set forth herein, and shall execute promptly on request by Landlord any certificates, agreements, instruments of postponement or attornment, or other such instruments or agreements as requested
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from time to time to postpone or subordinate this Lease and all of Tenant’s rights hereunder to any of such Mortgages or to otherwise give full effect to any of the provisions of this Article 15.
Tenant agrees to attorn to and become the tenant of any party whose title to the Premises
or the Shopping Centre is superior to that of Landlord or to any assignee from Landlord of Landlord’s interest under this Lease upon the same terms and conditions as are set forth in this Lease and shall execute promptly on request any agreements or instruments of attornment to give
effect to such attornment as shall be requested by Landlord at any time and from time to time.
Provided Tenant is not in default hereunder, Landlord shall use reasonable efforts to obtain
from the holder of any Mortgage, in respect of which Tenant has executed and delivered an instrument of postponement, subordination or attornment as required hereby, its agreement to permit Tenant to continue in occupation of the Premises in accordance with and subject to the
terms of this Lease.
15.3 Tenant’s Failure to Comply
If Tenant fails to execute any certificate, agreement, instrument, or other document as required by the foregoing provisions of this Article 15 within ten (10) days after request by
Landlord, then Landlord shall have the right to:
(a) to terminate this Lease; and
(b) in any event, and without being affected by either of the foregoing rights, to exercise all rights against Tenant in respect of Tenant’s default as aforesaid as
Landlord might otherwise have pursuant to this Lease or at law, included in which is a claim for damages.
15.4 Registration
Tenant shall not register this Lease or any short form or notice hereof except in Landlord’s
form prepared by Landlord on Tenant’s request or in such form as has been approved by Landlord in writing. The cost of preparation, approval, execution and registration of any notice or short form of this Lease or other document to be registered by Tenant shall be borne by Tenant and shall be
paid by Tenant forthwith upon demand. If Tenant registers or causes or permits there to be
registered against the title to the Shopping Centre any short form or notice of this Lease or other
document, Tenant shall forthwith provide to Landlord details of such registration and a duplicate registered copy of the registered document.
Any lease or notice or short form of this Lease registered by or at the request of Tenant
shall contain an irrevocable power of attorney by Tenant in favour of Landlord, which power of attorney is also hereby irrevocably granted by Tenant to Landlord under the Powers of Attorney
Act (Ontario) and which power of attorney shall survive the death or incapacity of Tenant, authorizing Landlord to execute on behalf of and in the name of Tenant such notices, agreements
and documents as shall be required or desired by Landlord to expunge or discharge from the register of the title of the land on which the Shopping Centre is located any interest of Tenant
therein after the expiry or earlier termination of this Lease, or to give full effect to Landlord’s rights under this Article 15.
16. DEFAULT AND REMEDIES
16.1 Default and Remedies
If any of the following shall occur:
(a) Tenant shall fail, for any reason, to make any payment of Rent as and when the
same is due to be paid and such default continues for five (5) days after such payment was due, whether or not notice is given to Tenant;
(b) Tenant shall fail, for any reason, to perform any other covenant, condition, agreement or other obligation on the part of Tenant to be observed or performed
pursuant to this Lease (other than the payment of any Rent) and such default shall continue for fifteen (15) days after the Tenant has been provided with written notice thereof and such default has not been cured;
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(c) any of Landlord’s policies of insurance on the Shopping Centre or any part or contents thereof shall be actually or threatened to be cancelled or adversely changed as a result of any use of or articles on or about or occupancy of or
contents in the Premises;
(d) Tenant shall purport to make a Transfer affecting the Premises, or the Premises shall be used by any person or for any purpose, other than in compliance with and
expressly authorized by this Lease;
(e) Tenant shall fail to conduct the business in the whole of the Premises during such
days and hours and as otherwise required pursuant to the terms of this Lease;
(f) Tenant or any other occupant of the Premises makes an assignment for the benefit of creditors or becomes bankrupt or insolvent or takes the benefit of any statute
for bankrupt or insolvent debtors or makes any proposal, assignment, arrangement or compromise with its creditors, Tenant makes any sale in bulk of any property on the Premises (other than in conjunction with a Transfer approved in writing by Landlord and made pursuant to all applicable legislation), or steps
are taken or action or proceedings commenced by any person for the dissolution, winding up or other termination of Tenant’s existence or liquidation of its assets;
(g) a trustee, receiver, receiver-manager, manager, agent or other like person shall be appointed in respect of the assets or business of Tenant or any other occupant of
the Premises;
(h) Tenant attempts to or does abandon the Premises or remove or dispose of any goods and chattels from the Premises, so that there would not, in the event of such removal or disposal, be sufficient goods of Tenant on the Premises subject to
distress to satisfy all arrears of Rent payable under this Lease and all Rent payable hereunder for a further period of at least twelve (12) months, or if the Premises are vacant or unoccupied without the prior written consent of Landlord;
(i) this Lease or any goods or other property of Tenant shall at any time be seized or
taken in execution or attachment which remains unsatisfied for a period of five
(5) days or more;
(j) termination or re-entry by Landlord is permitted under any provision of this Lease or at law;
(k) a writ of execution has been filed against the Tenant with respect to the Premises;
(l) there is a default under any security, indemnity or letter of credit agreement or tenant or indemnifier default under any other agreement relating to the Premises;
then, without prejudice, and, in addition to any other rights or remedies to which Landlord is
entitled hereunder or at law, the then current and the next three (3) months’ Rent shall be forthwith due and payable and Landlord shall have the following rights and remedies, all of which are
cumulative and not alternative, namely:
(i) to terminate this Lease in respect of the whole or any part of the Premises
by written notice to Tenant (it being understood that actual possession shall not be required to affect a termination of this Lease and that written notice, alone shall be sufficient); if this Lease is terminated in respect of part of the Premises, this Lease shall be deemed to be amended by the appropriate
amendments, and proportionate adjustments in respect of Rent and other appropriate adjustments shall be made;
(ii) to terminate this Lease by notice to Tenant without re-entering the Premises, provided that such termination notice permits Tenant to remain on the
Premises as a tenant at will; Tenant agrees that if Landlord serves a notice of termination which, among other things, permits Tenant to remain in possession of the Premises as a tenant at will, this Lease will thereupon be terminated and Tenant shall be a tenant at will;
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(iii) to enter the Premises as agent of Tenant and as such agent to relet them for whatever term (which may be for a term extending beyond the Term) and on whatever terms and conditions as Landlord in its sole discretion may
determine and to receive the rent therefore and, as the agent of Tenant, to take possession of any furniture, fixtures, equipment, stock or other property thereon and, upon giving written notice to Tenant, to store the same
at the expense and risk of Tenant or to sell or otherwise dispose of the same
at public or private sale without further notice, and to make such alterations
to the Premises in order to facilitate their reletting as Landlord shall determine, and to apply the net proceeds of the sale of any furniture, fixtures, equipment, stock or other property or from the reletting of the
Premises, less all expenses incurred by Landlord in making the Premises ready for reletting and in reletting the Premises, on account of the Rent due and to become due under this Lease and Tenant shall be liable to Landlord for any deficiency and for all such expenses incurred by Landlord as
aforesaid; no such entry or taking possession of or performing alterations to or reletting of the Premises by Landlord shall be construed as an election on
Landlord’s part to terminate this Lease unless a written notice of such intention or termination is given by Landlord to Tenant;
(iv) to remedy or attempt to remedy any default of Tenant in performing any repairs, work or other obligations or covenants of Tenant hereunder, and in so doing to make any payments due or claimed to be due by Tenant to third parties and to enter upon the Premises, without any liability to Tenant
therefore or for any damages resulting thereby and without constituting a re-entry of the Premises or termination of this Lease, and without being in breach of any of Landlord’s covenants hereunder and without thereby being
deemed to infringe upon any of Tenant’s rights pursuant hereto, and, in such
case, Tenant shall pay to Landlord forthwith upon demand all amounts paid
by Landlord to third parties in respect of such default and all reasonable costs of Landlord in remedying or attempting to remedy any such default plus ten (10%) percent of the amount of such costs for Landlord’s inspection
and supervision plus a further ten (10%) percent for overhead and profit;
(v) to obtain damages from Tenant including, without limitation, if this Lease is terminated by Landlord, all deficiencies between all amounts which would have been payable by Tenant for what would have been the balance
of the Term, but for such termination, and all net amounts actually received by Landlord for such period of time;
(vi) suspend or cease to supply any utilities, services, heating, ventilating, air conditioning and humidity control to the Premises, all without liability of
Landlord for any damages, including indirect or consequential damages, caused thereby;
(vii) if this Lease is terminated due to the default of Tenant, or if it is disclaimed, repudiated or terminated in any insolvency proceedings related to Tenant
(collectively “Termination”), to obtain payment from Tenant of the value of all tenant inducements which are received by Tenant pursuant to the terms of this Lease, the agreement to enter into this Lease or otherwise, including, without limitation, the amount equal to the value of any leasehold
improvement allowance, tenant inducement payment, rent free periods, lease takeover, Leasehold Improvements or any other work for Tenant’s benefit completed at Landlord’s cost and moving allowance, which value shall be multiplied by a fraction, the numerator of which shall be the number
of months from the date of Termination to the date which would have been the natural expiry of this Lease but for such Termination, and the denominator of which shall be the total number of months of the Term as originally agreed upon.
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16.2 Tenant’s Failure to Conduct Business
If Tenant fails to open the whole of the Premises for the conduct of business with the public on the Commencement Date, or vacates the Premises in whole or in part, or fails to continuously
and actively conduct its business in the whole of the Premises on such days, during such hours and as otherwise required by Landlord, whether or not any Rent payable under this Lease is in arrears, then Landlord, in addition and without prejudice to any of its other rights under this Lease or at
law, shall, at its option, have the right to do any one or more of the following:
(a) to collect, in addition to all Rent payable hereunder, an additional payment at a
daily rate of Two Hundred ($200.00) Dollars per day for each and every day that Tenant fails to commence or conduct its business on the whole of the Premises pursuant to the terms of this Lease; such additional payment is a liquidated sum
representing the parties’ genuine pre-estimate of the minimum amount of damages which Landlord will have suffered as a result of such breach by Tenant, and is without prejudice to any rights of Landlord to any other or greater sum in damages to which it may be entitled;
(b) to obtain an injunction or a mandatory injunction in a court of competent jurisdiction to restrain Tenant from breaching its obligations under this Lease and
to compel Tenant to comply with its obligations hereunder, including its obligations to conduct its business in the whole of the Premises pursuant to the
terms of this Lease; Tenant hereby acknowledges that damages would be an inadequate and incomplete remedy and Tenant consents to Landlord obtaining such injunction or mandatory injunction upon establishing by affidavit or other evidence that Tenant has failed to, or that Landlord has reasonable cause to
believe that Tenant is about to cease to, operate and conduct its business in the whole of the Premises pursuant to the terms of this Lease; and
(c) to terminate this Lease on further written notice, without prejudice to any other
rights or remedies of Landlord, including the right to recover the cost of all
Landlord’s Work and all Rent payable for what would have been the balance of
the Term had the Lease not been terminated.
16.3 Interest and Costs
(a) All amounts of Rent shall bear interest from their respective due dates until the
actual dates of payment at a rate which shall be three (3%) percent per annum in excess of the rate of interest known as the prime rate of interest charged by Landlord’s bank in Ontario and which serves as the basis on which other interest rates are calculated for Canadian dollar loans in Ontario from time to time
(“Prime Rate”).
(b) Further, on each occurrence of default in the payment of Rent, Tenant shall pay
to Landlord on demand in addition to the aforesaid interest an administration fee equal to the greater of: (i) Five Hundred ($500.00) Dollars; and (ii) two percent
(2%) of the amount of Rent in default.
(c) The amounts payable pursuant to subsections 16.3(a) and (b) above shall only become payable upon demand but shall, for clarification, accrue from the respective due dates of the relevant payments, whether demanded or not, to the
date of payment.
(d) Tenant shall be responsible for and pay to Landlord forthwith upon demand all costs incurred by Landlord, including, without limitation, reasonable compensation for all time expended by Landlord’s own personnel, legal costs on
a substantial indemnity basis, and all other costs of any kind whatsoever, arising from or incurred as a result of any default of Tenant or any enforcement by Landlord of any of Tenant’s obligations under this Lease or any other agreement or obligation of Tenant to Landlord, whether or not related to the Premises
including, but not limited to, witness costs (such as transportation, accommodation and the like).
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16.4 Bankruptcy and Insolvency
Tenant hereby waives any right it, or any person on its behalf, may have to disclaim, repudiate or terminate this Lease pursuant to any bankruptcy, insolvency, winding-up or other
creditors proceeding, including, without limitation, the Bankruptcy and Insolvency Act (Canada) or the Companies’ Creditors Arrangement Act (Canada), and agrees that in the event of any such proceeding Landlord will comprise a separate class for voting purposes. Further, Tenant agrees
that the obligations and liabilities of Tenant under this Lease shall not be released or discharged or
otherwise affected by the bankruptcy, winding up, liquidation, dissolution or insolvency of the
partnership constituting Tenant or any partner thereof or by change in the constitution of such partnership.
16.5 Allocation of Payments
Tenant agrees that Landlord may, at its option to be exercised by written notice to Tenant at any time, and without regard to and notwithstanding any instructions given by or allocations in respect of such amounts made by Tenant apply all sums received by Landlord from Tenant or any other persons in respect of any Rent to any amounts whatsoever payable by Tenant and it is further
agreed that any allocation made by Landlord, on its books and records or by written notice to Tenant or otherwise, may subsequently be re-allocated by Landlord as it may determine in its sole
discretion.
16.6 Landlord’s Right of Distress
(a) For the purposes of Landlord’s right to distrain, Tenant’s trade fixtures shall be treated as chattels notwithstanding their level of affixation to the Premises.
(b) Tenant hereby waives and renounces the benefit of any present or future statute taking away or limiting or purporting to limit Landlord’s right of distress and
agrees with Landlord that, notwithstanding any such statute, all goods and chattels from time to time on the Premises shall be subject to distress for Rent and the fulfilment of all of Tenant’s obligations under this Lease in the same
manner as if such statute had not been passed.
(c) Tenant further agrees that distress of all or any goods and chattels may be affected
by written notice whether or not Landlord locks or otherwise secures such goods or chattels from Tenant on the Premises or elsewhere.
(d) If Landlord effects distress by written notice or any other means, Tenant agrees
not to remove or permit to be removed any distrained goods or chattels and not to interfere with the exercise of any right of distress.
(e) Tenant agrees that Landlord’s exercise of any right of distress as permitted hereby or at law shall not constitute a trespass or breach of any express or implied term
of this Lease. Landlord shall not be liable for loss or damage to goods or chattels against which distress is levied no matter how caused except to the extent of direct
(and not indirect or consequential) damage caused by the gross negligence of Landlord or its employees; but Landlord shall not be liable for any loss or damage
caused by its bailiff or any agent through negligence or otherwise.
(f) In exercising any right of distress, Landlord may hold all distrained goods or chattels without limit in time and Tenant waives all rights and remedies in respect thereof.
(g) In addition to others entitled to do so, Landlord and its agents and employees shall have the right to purchase any goods or chattels on the Premises distrained by Landlord so long as the price paid by Landlord or its agents or employees is reasonably comparable to that which might reasonably be obtained by sale under
distress to an arm’s length third party.
16.7 If any goods or chattels of Tenant shall be removed from the Premises, Landlord shall have the right to follow the same and exert against the same all of its rights as if such goods and chattels had remained on the Premises, such
right of Landlord to include, without limitation, the right to follow such goods
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and chattels for thirty (30) days in the same manner as is provided for in the Commercial Tenancies Act (Ontario).Tenant to Inform Landlord
Tenant shall keep Landlord fully informed on a current basis of all need of repair,
environmental problems or any other matter regarding the Premises which would be relevant to a prudent and cautious owner of such property. This Section 16.7 and any information given to Landlord pursuant hereto is for the information of Landlord only and does not create any obligation
on Landlord.
16.8 Remedies to Subsist
(a) No waiver of any of Tenant’s obligations under this Lease and no waiver of any of Landlord’s rights hereunder in respect of any default by Tenant hereunder shall be deemed to have occurred or be given as a result of any condoning, excusing,
overlooking or delay in acting upon by Landlord in respect of any default by Tenant or by any other act or omission of Landlord including, without limitation, the acceptance of any Rent less than the full amount thereof, the acceptance of any Rent after the occurrence of any default by Tenant, or any verbal or written
statements or agreements made by any employee of Landlord other than an agreement in writing duly executed on behalf of Landlord by one of its personnel
with ostensible authority to do so. No waiver of any of Tenant’s obligations or any of Landlord’s rights hereunder shall be effective except and only to the extent
of any express waiver in writing duly executed on behalf of Landlord by one of its personnel with ostensible authority to do so. The waiver by Landlord of any default of Tenant or of any rights of Landlord in respect of any term, covenant or condition herein shall not be deemed to be a waiver of any subsequent default of
Tenant or rights of Landlord in respect of such term, covenant or condition.
(b) All rights and remedies of Landlord under this Lease and at law shall be cumulative and not alternative, and the exercise by Landlord of any of its rights
pursuant to this Lease or at law shall at all times be without prejudice to any other
rights of Landlord, whether or not they are expressly reserved. Tenant’s
obligations under this Lease shall survive the expiry or earlier termination of this Lease and shall remain in full force and effect until fully complied with.
(c) If Landlord assigns this Lease to a mortgagee or holder of other security on the
Premises or the Shopping Centre or any part thereof or to any other person whatsoever Landlord shall nonetheless be entitled to exercise all rights and remedies available to it pursuant to this Lease and at law without providing evidence of the approval or consent of such mortgagee, holder of other security
or other person whatsoever.
(d) All Rent shall be paid by Tenant to Landlord without deduction, abatement or
set-off whatsoever, except as and to the extent expressly permitted pursuant to the terms of this Lease, and Tenant hereby waives any rights of deduction,
abatement or set-off available to it now or at any time in the future, including any right to deduction, abatement or set-off contained in any statute.
16.9 Impossibility of Performance
Anything in this Lease to the contrary notwithstanding, the Landlord shall not be deemed
in default with respect to the performance of any of the terms, covenants and conditions of this Lease if same shall be due to any strike, lockout, civil commotion, war-like operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulation or controls, inability to obtain any material, service or financing, through act of God or other cause beyond the
control of the Landlord (providing such cause is not due to the wilful act or neglect of the Landlord). Under such circumstances, the rent reserved and covenanted to be paid herein shall not commence until the possession of the Premises is given or the Premises are available for occupancy by the Tenant, and no such failure to give possession as aforesaid shall in any way affect the
validity of this Lease or the obligations of the Tenant hereunder, nor shall the same be construed in any way to extend the Term of this Lease. If the building in which the Premises are located is not in course of construction, and the Landlord is unable to give possession by reason of the holding over or retention of possession of any tenants or occupants or for any other reason, or if
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repairs, improvements or alterations of the Premises or of the building of which the Premises form a part are not completed, no abatement or diminution of the rent to be paid hereunder shall be allowed to the Tenant nor shall the validity of this Lease be impaired under such circumstances,
provided however, that the Tenant shall not be liable to make any payments of Rent until the Landlord is able to give possession of the Premises to the Tenant.
16.10 Tenant’s Licences
(a) Tenant shall during the whole of the Term maintain in good standing and in
accordance with all Laws all licences and permits of any kind whatever required
for the proper conduct by Tenant of its business pursuant to the terms hereof (all of which licences and permits are hereinafter in this Section 16.10 referred to as “Licences”). Landlord shall be entitled to receive copies of all correspondence
and notices between Tenant and all relevant licensing authorities and Tenant shall co-operate with Landlord to seek to arrange for copies of all such correspondence and notices from all such authorities to be forwarded to Landlord automatically.
(b) If this Lease is terminated for any reason whatsoever, including Tenant’s failure
to maintain the said Licences in good standing as set out herein, or if Landlord takes possession of the Premises during the Term for any reason whatsoever as
permitted by this Lease or by law, including Tenant’s default, then, in any such events, Tenant covenants to and does hereby transfer to Landlord or as Landlord
directs in writing all of such Licences subject to the approval of the relevant licensing authorities. For such purposes, Tenant agrees to execute or cause to be executed by the shareholders of Tenant all documents necessary to affect such transfers of Licences. Upon the execution and delivery of this Lease or at any
time thereafter as requested by Landlord from time to time, Tenant shall execute and shall cause the shareholders of Tenant to execute such documents as are necessary to affect the prospective transfer of Licences referred to herein, and
shall lodge the same in escrow with Landlord, with authority to date and use such
documents as may be desired by Landlord in the event of Landlord being entitled
to a transfer of the Licences. If Tenant or any of the shareholders of Tenant fail to execute any documents as required pursuant hereto within two (2) days after written notice from Landlord, Landlord shall thereupon be and is hereby
appointed attorney for Tenant and the shareholders of Tenant to execute and deliver any and all of such documents in their names and on their behalves, such appointment being made pursuant to the Powers of Attorney Act (Ontario) and shall survive and be exercisable during any subsequent legal incapacity of the
party granting such power of attorney.
17. CONTROL OF SHOPPING CENTRE
17.1 Landlord’s Control
The Shopping Centre is at all times subject to the exclusive control and management of
Landlord. The provisions of this Section 17.1 and any other provisions of this Lease shall not be interpreted so as to impose any liability or obligation whatsoever on Landlord and Landlord shall have only such obligations as are expressly set forth in this Lease.
Without limiting the generality of the foregoing, Landlord shall have the right to (a) police
and supervise any or all portions of the Shopping Centre; (b) obstruct, lock up or close off or restrict entry to all or any part of the Shopping Centre for purposes of performing any maintenance, repairs or replacements or for security purposes or to prevent the accrual of any rights to any person or the public or any dedication thereof; (c) grant, modify and terminate any easements or other
agreements respecting any use or occupancy, maintenance of or supply of any services to any part of the Shopping Centre; (d) use or permit to be used any part of the Common Facilities for any purpose which shall be in accordance with prudent management practice from time to time, including promotional activities, merchandising, display, entertainment or special features; (e)
restrict parking by tenants of the Shopping Centre and their employees to designated parking areas; and (f) impose parking charges for parking on the Common Facilities, and institute a parking validation system whereby tenants of the Shopping Centre may be required to validate the parking tickets of their customers and other visitors. In exercising any of its rights pursuant to this Section
17.1, Landlord shall use reasonable best efforts to minimize interference with Tenant’s access to
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and use of the Premises. The Shopping Centre shall be open for access during Business Hours, and at any other time access to premises in the Building shall be subject to compliance with all applicable rules and regulations of Landlord, including without limitation those related to security.
In order to perform any maintenance, repairs, alterations or improvements in or relating to any part of the Shopping Centre, Landlord may cause reasonable and temporary obstructions of Common Facilities without thereby constituting or being deemed to constitute an interference with
any of Tenant’s rights hereunder or a breach by Landlord of any of its obligations hereunder.
17.2 Alterations of the Shopping Centre
(a) Notwithstanding anything contained in this Lease, at any time and from time to time and either prior to or after the Commencement Date Landlord shall have the right to construct on or remove from the Shopping Centre or adjacent lands such
other buildings or extensions of buildings as Landlord may desire. Landlord shall have the right to make any changes in, additions to, deletions from, re-arrangements of or relocations of any part or parts of the Shopping Centre including any of the Common Facilities as Landlord shall consider necessary or
desirable (which, or any of which, are referred to in this Section 17.2 as “Changes”).
(b) Landlord shall make any such Changes as expeditiously as is reasonably possible in the circumstances and shall interfere as little as is reasonably possible in the
circumstances with Tenant’s business operation in the Premises. Tenant shall forthwith, at the request of Landlord, execute such further assurances, releases or documents as may be required by Landlord to give effect to any of Landlord’s rights under this Section 17.2.
17.3 Use of Common Facilities
Tenant shall not itself and shall not permit any of its employees, servants, agents, customers or contractors to obstruct any Common Facilities including driveways, laneways, access routes or
other portions of the Shopping Centre other than as expressly permitted pursuant hereto or as
otherwise expressly permitted by Landlord in writing; if there shall be a breach of this Section 17.4, Landlord shall have the right, at the expense of Tenant, to remove such obstruction, the cost thereof to be paid by Tenant forthwith upon demand, and Landlord shall not be responsible for and is hereby released from any liability for any damage caused to the item creating the obstruction.
Landlord shall also be entitled to hold such item as security for the payment of the costs of removing the same and any damage caused by the establishment or removal of such obstruction. If requested by Landlord, Tenant shall supply to Landlord the licence numbers of all vehicles for which access may properly be gained to any part of the Shopping Centre from time to time
including employees’ automobiles, delivery trucks of Tenant and frequent suppliers.
17.4 Rules and Regulations
Landlord may, from time to time, make and amend such rules and regulations for the management and operation of the Shopping Centre as Landlord shall determine and Tenant and all
persons under its control shall be bound by and shall comply with all of such rules and regulations of which notice is given to Tenant from time to time and all of such rules and regulations shall be deemed to be incorporated into and form a part of this Lease. The current Rules and Regulations are attached as Schedule “D” to this Lease. Without limiting the generality of the foregoing,
Tenant shall comply with all rules and regulations made by Landlord respecting window coverings and security and respecting shipping, receiving, loading and unloading of merchandise, supplies, materials, garbage and all other things whatsoever, all of which shall be made only at such times and from, over or by means of such access routes, driveways, doors, loading areas, stairs and other
areas or passages whatsoever as Landlord shall determine in writing from time to time. Landlord shall not make any rules or regulations which conflict with any express provision of this Lease unless and only to the extent required by any applicable Laws or unless Tenant consents thereto. Landlord shall act reasonably in enforcing such rules and regulations but the imposition of any
rules and regulations shall not create or imply any obligation of Landlord to enforce them or create any liability of Landlord for their non-enforcement or otherwise.
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17.5 Access to Premises
(a) Landlord, without limiting any other rights Landlord may have pursuant hereto or at law, shall have the right, but not the obligation, to enter the Premises at any
reasonable time on reasonable notice and for any of the following purposes:
(i) to examine the Premises and to perform any maintenance, repairs and alterations to the same or any part thereof as may be required or permitted
by this Lease and to perform any maintenance, repairs and alterations to the
Shopping Centre and to any mechanical, electrical, heating, ventilating, air
conditioning and humidity control equipment and services located therein serving the Premises or any other part of the Shopping Centre, and for all of such purposes, Landlord may take such material and equipment into the
Premises as Landlord may require;
(ii) to protect the Premises or any part of the Shopping Centre in respect of any construction or other work being performed in premises adjoining or in the vicinity of the Premises or the Shopping Centre;
(iii) for any purposes as determined by Landlord in cases of emergency;
(iv) to read any utility or other similar meters located in the Premises;
(v) during the last twelve (12) months of the Term to place “For Rent” signs on the Premises and to show the Premises to prospective tenants and to permit
prospective tenants to make inspections, measurements and plans;
(vi) to inspect the state of maintenance and repair of the Premises;
(vii) at any time during the Term, to show the Premises to prospective purchasers, mortgagees or lenders; and
(viii) to exercise any of the rights available to Landlord pursuant to this Lease.
(b) Landlord shall have the right to run through the Premises conduits, wires, pipes, ducts and other elements of any systems for utilities, heating, ventilating, air
conditioning and humidity control, telephone and other communications systems
and any other such systems to serve the Premises or the Shopping Centre or any
parts thereof and Landlord shall have access for itself and those designated by it to the Premises for the purpose of inspecting, maintaining, repairing, replacing, altering and any services in respect of any of the same. Notwithstanding the
foregoing, the Rentable Area of the Premises shall be deemed not to be reduced or otherwise affected as a result of any of such systems being located on or running through the Premises. Landlord shall also have access to the Premises for itself and those designated by it to perform such work in respect of the
Shopping Centre as Landlord shall deem necessary.
(c) Tenant shall permit other tenants of the Shopping Centre access to the Premises
on reasonable notice and on the making of reasonable arrangements, which Tenant agrees to do, and at reasonable times for the performance of any
inspection, maintenance, repairs and alterations in respect of the premises occupied by such other tenants and any services thereto. Landlord shall have the right to enforce the provisions of this subsection (c) on behalf of such other tenants but Landlord shall not be responsible for any damage caused as a result
of the exercise of the rights of such other tenants pursuant hereto, all of which shall be as determined between Tenant and any such other tenants.
(d) Landlord, any other tenants of the Shopping Centre and any others permitted by Landlord shall have the right, in common with Tenant and all others entitled to
use of the same, to use for their intended purposes all portions of the Premises in the nature of common areas (such as corridors, lobbies, washrooms and the like).
(e) Landlord shall exercise its rights pursuant to this Section 17.6 in such manner and at such times as Landlord, acting reasonably but in its sole discretion, shall
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determine; at any time that entry by Landlord is desired in case of emergency, and if no personnel of Tenant are known by Landlord to be present on the Premises or if such personnel fail for any reason to provide Landlord immediate
access at the time such entry is desired, Landlord may forcibly enter the Premises without liability for damage caused thereby.
17.6 Expropriation
(a) If the Premises or any part thereof shall be expropriated (which for the purposes
of this Article 17 shall include a sale by Landlord to any authority with the power
of expropriate) by any competent authority, then:
(i) Landlord and Tenant shall co-operate with each other so that Tenant may receive such award to which it is entitled in law for relocation costs,
business interruption, and the value of leasehold improvements paid for by Tenant and the amortized portion, if any, of leasehold improvements paid for by Tenant, and so that Landlord may receive the maximum award to which it may be entitled in law for all other compensation arising from such
expropriation including, without limitation, all compensation for the value of Tenant’s leasehold interest in the Premises;
(ii) except for such compensation to which Tenant shall be entitled as aforesaid, all Tenant’s other rights in respect of such expropriation are hereby assigned
to Landlord, and within ten (10) days after request by Landlord Tenant shall execute such further documents as requested by Landlord to give effect to such assignment, failing which Landlord is hereby irrevocably appointed, pursuant to the Powers of Attorney Act (Ontario), Tenant’s attorney to do
so on behalf of Tenant and in its name; and
(iii) Landlord shall have the option, to be exercised by written notice to Tenant, to terminate this Lease, effective on the date the expropriating authority
takes possession of the whole or any portion of the Premises.
(b) If the whole or any part of the Shopping Centre shall be expropriated, then subject
to the foregoing provisions respecting expropriation of the Premises:
(i) all of Tenant’s rights, if any, to any compensation resulting from such expropriation shall be the absolute property of Landlord and all of Tenant’s
rights, if any, to any such compensation are hereby assigned to Landlord and within ten (10) days after request by Landlord Tenant shall execute such further documents as requested by Landlord to give effect to such assignment, failing which Landlord is hereby irrevocably appointed,
pursuant to the Powers of Attorney Act (Ontario) Tenant’s attorney to do so on behalf of Tenant and in its name; and
(ii) if the expropriation of part of the Shopping Centre is such as to render undesirable, in Landlord’s reasonable opinion, the continuing operation of
the portion of the Shopping Centre in which the Premises are situate, Landlord shall have the right to terminate this Lease as of the date the expropriating authority takes possession of all or any portion of the Shopping Centre.
17.7 Landlord’s Consent
If Landlord withholds, delays or refuses to give consent as provided by the terms of this Lease, whether or not Landlord is entitled to do so, Landlord shall not be liable for any losses or damages in any way resulting therefrom and Tenant shall not be entitled to terminate this Lease or
exercise any remedy whatever in respect thereof except to seek the order of a court of competent jurisdiction compelling Landlord to grant any such consent which Landlord is obliged to grant pursuant to the terms of this Lease.
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17.8 Demolition or Substantial Alterations
If Landlord wishes to demolish or substantially alter or renovate all or a substantial portion of the Shopping Centre, Landlord shall have the right, to be exercised by not less than twelve (12)
months’ written notice to Tenant, to terminate this Lease. Tenant agrees that upon the termination date specified in such notice, Tenant shall vacate the Premises and deliver up vacant possession of the Premises in accordance with the terms of this Lease. Tenant acknowledges that it shall have
no claim against Landlord as a result of the exercise by Landlord of its right hereunder and upon
such termination, all Rent shall be apportioned to the effective date of such termination and upon
compliance by each of the parties with their respective obligations under the Lease up to and including the termination date, each of the parties shall thereafter be released from all future obligations arising under this Lease.
18. MISCELLANEOUS
18.1 Notices
All Notices, statements, demands, requests or other instruments (“Notices”) which may be or are required to be given under this Lease shall be in writing and shall be delivered in person or
sent by prepaid registered Canadian mail; by facsimile transmission (“fax”), receipt of which is acknowledged by return fax; or by email, if to the Tenant, at the Address for Service of Notice on
Tenant, if to the Indemnifier, if any, at the Address for Service of Notice on Indemnifier, and if to the Landlord at the Address for Service of Notice on Landlord, all as provided in subsection 1(l)
hereof.
All such Notices shall be conclusively deemed to have been given and received upon the day the same is personally delivered or delivered by fax, or if mailed as aforesaid, four (4) business days (excluding Saturdays, Sundays, holidays and days upon which regular postal service is
interrupted or unavailable for any reason) after the same is mailed as aforesaid. Any party may at any time by notice in writing to the other change the Address for Service of Notice on it. If two or more persons are named as Tenant or Indemnifier, any Notice given hereunder shall be
sufficiently given if delivered or mailed in the foregoing manner to any one of such persons.
18.2 Complete Agreement
It is understood and agreed that other than and to the extent that any other written agreement between Landlord and Tenant respecting the Premises expressly by its terms remains in force, this Lease constitutes the complete agreement between the parties and that there are no covenants,
representations, agreements, warranties or conditions in any way relating to the subject matter of this Lease or the tenancy created hereby, expressed or implied, collateral or otherwise, except as expressly set forth herein. Tenant acknowledges that no representatives of Landlord are authorized to make on Landlord’s behalf any covenants, representations, agreements, warranties or conditions
of any kind or in any manner whatsoever other than as expressly set forth in writing in this Lease in the form in which it is executed by Landlord.
No amendment to this Lease shall be binding upon Landlord or Tenant unless the same is in writing and executed by Landlord and Tenant.
18.3 Use Prior to Commencement Date
If Tenant uses or occupies the whole or any part of the Premises in any way prior to the Commencement Date without entering into a lease with Landlord in respect of such use or occupancy, then during the period of such use or occupancy, Tenant shall be a tenant of Landlord
subject to all the terms and conditions as contained in this Lease which shall apply to such tenancy mutatis mutandis; the inclusion of this paragraph shall not be deemed to authorize or permit Tenant to use or occupy the whole or any portion of the Premises in any way prior to the Commencement Date.
18.4 Acceptance of Premises
Tenant accepts the Premises in the state and condition in which they are received from Landlord and, except only to the extent of any deficiency therein expressly and particularly set out in a written deficiency list given by Tenant to Landlord within thirty (30) days after the
Commencement Date, Tenant’s entering into possession of all or any part of the Premises shall be
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conclusive evidence of the acceptance by Tenant of the condition and state of repair of the Premises and Tenant shall have no rights in respect thereof.
18.5 Time of the Essence
Time is of the essence of this Lease and all parts hereof.
18.6 Applicable Law
This Lease shall be governed by and interpreted in accordance with the laws of the Province
of Ontario. The parties agree that the Courts of Ontario shall have jurisdiction to determine any
matters arising hereunder, except to the extent, if any, expressly provided to the contrary herein,
and the parties hereby attorn to the jurisdiction of the Courts of Ontario.
18.7 Severability
If any provision of this Lease or any portion thereof or the application of any of the same
is illegal, unenforceable or invalid, it shall be considered separate and severable from this Lease and all of the remaining provisions hereof shall remain in full force and effect.
Neither party is obliged to enforce this Lease to the extent that by so doing they would be contravening any applicable Laws.
18.8 Section Numbers and Headings
The table of contents of this Lease and all section numbers and all headings are inserted as
a matter of convenience only and shall in no way limit or affect the interpretation of this Lease. References in this Lease to section numbers refer to the applicable section of this Lease, unless a
statute or other document is specifically referred to.
18.9 Interpretation
Whenever a word importing the singular or plural is used in this Lease, such word shall include the plural and singular respectively. Where any party is comprised of more than one entity,
the obligations of each of such entities shall be joint and several. Words importing persons of either gender or firms or corporations shall include persons of the other gender and firms or corporations as applicable. Subject to the express provisions contained in this Lease, words such
as “hereof”, “herein”, “hereby”, “hereinafter”, and “hereunder” and all similar words or
expressions shall refer to this Lease as a whole and not to any particular section or portion hereof
being less than the whole.
18.10 Successors
This Lease and all portions hereof shall enure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors, assigns and other legal representatives excepting only that this Lease shall not enure to the benefit of any of such parties unless and only to the extent expressly permitted pursuant to the provisions of this Lease.
18.11 Monetary Amounts
Except as may be otherwise expressly provided herein, all monetary amounts set out in this Lease are in Canadian currency and are exclusive of Canadian Goods and Services Tax and any
other applicable Sales Taxes.
18.12 Planning Act
a) This Lease is entered into subject to the provisions of and compliance with the provisions of all applicable legislation dealing with planning restrictions. If the Term, including any extensions or renewals thereof, shall be expressed to extend for a period of excess of the maximum period for which a lease may be granted
without the consent of the body having jurisdiction pursuant to such legislation (“Maximum Period”), then until any necessary consent to this Lease is obtained pursuant to the provisions of the applicable legislation, the Term together with any rights of renewal pursuant to this Lease shall be conclusively deemed to extend for
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the Maximum Period less one (1) day from the Commencement Date; any application required to obtain any necessary consent pursuant to the applicable legislation shall be prosecuted by Tenant and Tenant shall be solely responsible for
all costs of such application and all costs, levies and charges of any kind whatever which shall be charged or imposed as a result of the application for consent pursuant to the applicable legislation and to obtain such consent. Tenant shall provide to
Landlord copies of all applications, correspondence and other documents in respect
of any application for consent pursuant to such legislation and shall keep Landlord
informed of all matters relating to the prosecution of such application. Notwithstanding the foregoing Landlord shall have the right, at its option, to apply for any such consent and if Landlord does so, Tenant shall bear the full cost thereof
and shall be responsible for all costs, levies and other charges charged or imposed as a result of such application or in order to obtain such consent.
b) This section shall not apply if the Tenant is a municipal corporation.
19. INDEPENDENT LEGAL ADVICE
The Tenant acknowledges the suggestion of Landlord that, before executing this Lease, Tenant should obtain independent legal advice, acknowledges that same has been received. Tenant
did obtain independent legal advice.
20. SCHEDULES
The following Schedules shall form part of the Lease as if incorporated as a part:
Schedule “A” Legal Description of Shopping Centre Schedule “B” Outline Plan of Premises Schedule “C” Indemnity Agreement
Schedule “D” Rules and Regulations Schedule “E” Exclusive Covenants Schedule “F” Landlord’s and Tenant’s Work
Schedule “G” Special Provisions, if any
21. FAX AND COUNTERPARTS
This Lease may be executed in any number of counterparts, each of which shall be deemed an original and all of which taken together shall be deemed to constitute one and the same
instrument. Counterparts may be executed either in original or faxed form and the parties adopt any signatures received by a receiving fax machine as original signatures of the parties; provided, however, that any party providing its signature in such manner shall promptly forward to the other party an original of the signed copy of this Lease which was so faxed.
22. INDEMNITY AGREEMENT
Intentionally deleted.
IN WITNESS WHEREOF the parties have executed this Lease.
DUFFIN’S POINT INC. o/a SEATON CENTRE
Per: Name:
Title:
Per: c/s Name: Title:
I/We have authority to bind the Corporation.
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CITY OF PICKERING
Per: Name:
Title:
Per: c/s Name:
Title:
I/We have authority to bind the Corporation.
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Schedule “A”
LEGAL DESCRIPTION OF SHOPPING CENTRE
LEGAL DECRIPION OF THE LEASED/LICENSED HYDRO LANDS PIN 263830972. PT LTS 19 & 20 CON 3 PICKERING PTS 1 TO 6, 40R1041 EXCEPT PTS 6 TO 11,
40R1641 AND EXCEPT PART 6 PLAN 40R26721, PICKERING
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Schedule “B”
OUTLINE PLAN OF PREMISES
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Schedule “C”
INTENTIONALLY DELETED
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Schedule “D”
RULES AND REGULATIONS
1. Tenant shall discontinue immediately upon the request of Landlord any business, conduct
or practice carried on by Tenant which, in the opinion of Landlord, may harm or tend to harm the business or reputation of Landlord or reflect or tend to reflect unfavourably on the Shopping Centre, Landlord or other tenants or occupants thereof, or which might confuse or mislead or tend
to confuse or mislead the public.
2. Tenant shall keep the Premises in a good state of preservation and cleanliness and
Landlord, or its agents shall at all reasonable times be permitted to enter upon the Premises for the purpose of examining the said state of cleanliness.
3. Tenant shall keep the inside and outside of all glass in the doors and windows of the
Premises clean and all exterior storefront surfaces of the Premises clean and shall replace promptly, at its expense, any cracked or broken window glass of the Premises.
4. Tenant shall maintain the Premises, at its expense, in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests.
5. Tenant shall keep any garbage, trash, rubbish or refuse in rat-proof containers within the interior of the Premises until removed and shall remove same at its expense on a regular basis as
prescribed by Landlord.
6. Tenant shall ensure that wet garbage shall, at no time, be mixed with the normal dry
business waste, nor shall they be thrown in sinks, toilets or basins for the purpose of disposal.
7. Tenant shall keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the Premises.
8. Tenant shall cause its employees, agents and contractors to park only in the parts of the
Common Areas and Facilities, if any, designated by Landlord as employee parking.
9. Tenant shall not commit or permit waste upon or damage to the Premises or any nuisance or other act that disturbs the quiet enjoyment of other tenants or occupants of the Shopping Centre
or their clients or customers.
10. Tenant shall not do anything that may cause damage to the Shopping Centre or permit
odours, vapours, steam, water, vibrations, noises or other undesirable effects to come from the Premises.
11. Tenant shall not permit the parking of delivery vehicles so as to interfere with the use of
any driveway, walkway, parking facilities, mall or other area of the Shopping Centre.
12. Tenant shall not receive, ship, load or unload articles of any kind including merchandise supplies, materials, debris, garbage, trash, refuse or other chattels except through service access facilities designated from time to time by Landlord.
13. Tenant shall not use the plumbing facilities for any other purposes than those for which they are constructed.
14. Tenant shall not use any part of the Premises for lodging, sleeping or any illegal purposes.
15. Tenant shall not bring on to the Premises machines or equipment which may create noises
or fumes resulting in annoyance or discomfort to other tenants.
16. Tenant shall not cause or permit any machines selling merchandise, rendering services or providing entertainment, however operated, to be present on the Premises unless consented to in advance in writing by Landlord.
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17. Tenant shall not do or permit anything to be done in or on the Shopping Centre that hinders or interrupts the flow of traffic to, in or from the Shopping Centre or obstructs the free movement of persons in, to or from the Shopping Centre.
18. Tenant shall not permit on the Premises any transmitting device or erect an aerial on any exterior walls of the Premises or any of the Common Areas and Facilities, or use travelling or flashing lights, signs or other audio-visual or mechanical devices that can be seen outside the
Premises, or loudspeakers, television, phonographs, radios or other audio-visual or mechanical
devices that can be heard outside the Premises.
19. No gas pipe will be permitted which has not been ordered or authorized in writing by Landlord.
20. It shall be the duty of Tenant to assist and co-operate with Landlord in preventing injury to
the Premises.
21. Tenant shall not be permitted to use or keep in the Premises or the Shopping Centre any gasoline, coal oil, camphene, burning fluid or other illuminating or combustible materials.
22. Any damage caused to the Shopping Centre or to its furnishings, heating and other
appliances, or to the premises occupied by any other tenants, by reason of windows being left open so as to admit rain or snow, or by interference with the heating or air-conditioning appliances, or
by reason or any other misconduct or neglect upon the part of Tenant or any other person or servant under its control shall be repaired and borne by Tenant.
23. The water closets and other apparatus shall not be used for any purpose of than those for which they are constructed, and no sweepings, rubbish, rags or other substances shall be thrown therein. Any damage resulting from misuse by Tenant shall be borne by Tenant.
24. Tenant shall not do or permit anything to be done to the Premises or bring or keep anything
therein which will in any way increase risk of fire or the rate of fire insurance on the Shopping Centre or on property kept therein or obstruct or interfere with the rights of other tenants or in any other way injure or annoy them or Landlord, or violate any act at variance with the laws relating
to fire or with the regulations of the Fire Department, or with any insurance upon the Shopping
Centre, or any part thereof, or violate or act in conflict with any of the rules and ordinances of the
Board of Health or with any statute or municipal by-law.
25. Landlord may at any time and from time to time during the term of the Lease keep the entrance doors to the Shopping Centre locked after business hours and before permitting Tenant
access to the Shopping Centre during such period or periods, require Tenant to sign its name in a register to be kept by Landlord for recording the arrival and departure of all persons admitted to the Shopping Centre except during business hours. Tenant shall provide Landlord with the names of all persons entitled to enter the Premises outside Business Hours and Landlord shall be entitled
to refuse permission to any person who cannot be identified as being entitled to enter the Premises.
26. Where in the opinion of Landlord, a tenant's operations are such as to create pest-breeding
conditions, such tenant shall arrange for pest control satisfactory to Landlord.
27. Tenant agrees to the within contained rules and regulations, each of which is hereby made
a part of this Lease, and agrees that for such persistent infraction of them, or any part of them, as may in the opinion of Landlord be calculated to annoy or disturb the quiet enjoyment of any other tenant, or interfere with the proper operation of the Shopping Centre, Landlord may declare a forfeiture and cancellation of the Lease and may demand possession of the Premises.
28. Tenant shall not erect any signs in, on or about the Premises, visible from the exterior of the Premises without the approval of Landlord as to the size, design, location and content of such signs and all such signs shall be of first-class professional quality and design. If required by Landlord, Tenant shall, subject to first obtaining Landlord's approval, install, maintain, operate
and illuminate signs or other advertising material on or visible from the exterior of the Premises during such hours as required by Landlord.
29. Tenant shall ensure that all of its merchandise which may be visible from the exterior of the Premises is at all times in a neat, clean and attractive condition so as to be in keeping with the
overall appearance and quality of a first-class building, as determined by Landlord.
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30. Landlord shall have the right to make such further rules and regulations as in its judgement may from time to time be needed for the safety, care and cleanliness of the Premises or the Shopping Centre and for the preservation of good order therein, and the same shall be kept and
observed by Tenant, its agents, clerks, servants or employees.
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“Schedule “E” EXCLUSIVE COVENANTS
1. The Bank of Nova Scotia
For the purposes of this Section, "Extended Lands" means: (i) the Shopping Centre Lands;
(ii) any lands which may be acquired by the Landlord or an Affiliate thereof and form part of the Shopping Centre or the Shopping Centre Lands; and (iii) any other lands which may be owned or acquired by the Landlord or an Affiliate thereof immediately adjacent to the
Shopping Centre Lands. Extended Lands excludes the Premises or any other premises occupied by an Affiliate of the Tenant.
The Landlord covenants and agrees that, throughout the Term and all Term extensions, so long as the Tenant of any portion of the Premises is The Bank of Nova Scotia or any of its
Affiliates, and to the intent that this covenant shall enure to the benefit of and be annexed to and run with the Premises and to the intent that the burden of this covenant shall be binding upon the Extended Lands excluding the Premises, the Landlord, except for one other financial institution, will not use, allow, suffer or permit the use or occupation of any
area within the Extended Lands for the purpose, in whole or in part, of carrying on the business of offering financial services to, making loans to, or accepting deposits from, the public or any commercial enterprise, a trust company, a stock brokerage, an investment
dealership, a financial planner, cheque cashing service, acceptance or loan corporation (including payday loan type services) or any similar business which would in the Tenant's view be competitive with the business to be carried on in the Premises, or the installation and operation of ABMs (together the "Exclusive Use"). In addition to the foregoing and with the intent that the following constitutes part of the Exclusive Use, the Landlord will
not permit, on any part of the Extended Lands: (i)»the erection of any signs, advertisements or promotional displays by any competitor of The Bank of Nova Scotia or any of its
Affiliates; and (ii) the installation or operation of any ABM except such as may be installed or operated by the Tenant or any of its Affiliates or by a grocery store tenant of the Shopping Centre for so long as such grocery store tenant is the occupant of the whole of its square foot premises).
The Landlord covenants to insert in all leases with all other tenants leasing space on the
Extended Lands, a clause prohibiting any activity or use which contravenes the Exclusive
Use. Should the Exclusive Use be contravened during the Term, the Tenant shall be
entitled to injunctive relief in addition to any other remedies to which the Tenant may otherwise be entitled, whether contained in this Agreement or the Lease or elsewhere at law. Notwithstanding, the exclusive use will not include the RBC Premises.
2. The Royal Bank of Canada The Landlord shall not, during the Term or any renewals or extensions thereof, lease or permit any space in the Shopping Centre (or any additions thereto) or elsewhere on the Lands to be used for the purpose of any other bank, treasury branch, trust, investment dealer, insurance or stock broker,
acceptance or loan corporation or any organization engaged in the business of accepting money on deposit or lending money or any similar business which would in the Tenant's view be competitive with the business to be carried on in the Premises, or for the installation or operation of any electronic or mechanical equipment, devices or machines by which any banking transaction, operation or function may be available to the public, except such as may be installed or operated by the Tenant. Notwithstanding the foregoing, the Landlord shall be permitted: (i) one additional financial institution of not more than 3,500 square feet; and (ii) to allow the operation of a white label / generic automated banking machine in the interior of any retail store in the Shopping Centre, which machine is not operated by or branded as being operated by or for a chartered bank or other financial institution. 3. Subway
The Landlord agrees not to sell, lease, let, use or permit to be used, any property owned
within the Shopping Centre now or at any time during the initial Term of this Lease or any renewals thereof, to any entity whose primary business is submarine sandwiches. This shall
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include, but not be limited to, Mr. Sub, Quiznos, Fresh East, Firehouse Subs, Potbelly Sandwich Shop and Belly Buster Submarines.
4. Dr. Lorne Newton
The Tenant shall have the exclusivity for general dentistry and hygiene within the Shopping Centre (retail and office) as it may exist now and in the future.
5. 2609020 Ontario Inc./Family Hair Salon & Spa
The Landlord acknowledges and agrees that so long as the tenant in possession of and operating from
the whole of the Premises is the Tenant noted on page 1 of this Lease and the Tenant is not in breach
of this Lease then throughout the Term and any extensions thereof, the Landlord shall not lease or
consent to the use of any other premises in the Shopping Centre to a tenant whose principal use is the
operation of a hair salon and spa and ancillary products
6. Angus Valley Montesorri Schools Inc.
The Landlord acknowledges and agrees that so long as the tenant in possession of and operating from
the whole of the Premises is the Tenant noted on page 1 of this Lease and the Tenant is not in breach
of this Lease then throughout the Term and any extensions thereof, the Landlord shall not lease or
consent to the use of any other premises in the Shopping Centre to a tenant whose principal use is a
Montessori or similar type school including such programs as tutoring, martial arts, music lessons,
robotics and academics.
7. Pharmacy/11209345 CANADA INC.
Tenant shall have the exclusive right in the Shopping Centre to operate a pharmacy business.
Notwithstanding, if there is a food store in the Shopping Centre the food store shall be entitled to also
operate a pharmacy without being in breach of this exclusivity.
8. Dollar Tree
i. Exclusive Use. Tenant shall have the exclusive use of the Premises for
the operation of a Dollar Store (as defined below) (“Exclusive” or
“Exclusive Use”). Landlord shall not lease, rent, occupy or permit any other premises in the Shopping Centre to be occupied, whether by a tenant, sublessee, assignee, licensee or other occupant, whose “principal business” (hereinafter defined) is for the operation of a “Dollar Store”.
For the purposes of this Lease, a “Dollar Store” shall be defined as including, without limitation, any retail store or other business that sells at retail a wide variety of general merchandise items from within the categories listed below and such items are offered for sale alone or in
combination at or near one dollar ($1.00) or more but not to exceed ten dollars ($10.00) per item, including without limitation retail stores
operating under the names “Dollarama”, “Everything for a Dollar”, “Buck or Two”, “Your Dollar Store and More” and their respective
successors and assigns:
1. housewares, giftwares and related merchandise;
2. novelty items, games and toys;
3. household items, hardware items and batteries;
4. household giftware items;
5. kitchenware;
6. office and school supplies, periodicals, newspapers, books,
children’s books
7. confectionery, potato chips, candies and gum;
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8. greeting cards, gift wrap, gift bags and related merchandise;
9. fresh, packaged, refrigerated, and/or canned food items;
10. health and beauty aid items;
11. personal items;
12. hosiery items;
13. family apparel; and
14. pet food, pet toys and pet supplies.
ii. Restricted Uses. Landlord will not permit any other occupant in the Shopping Centre to operate the following uses (hereinafter, “Restricted Uses”) without Tenant’s consent and such consent shall be in Tenant’s sole and absolute discretion:
1. Variety retail operations with the word “Dollar” or any derivation therefrom or combination thereof (or their respective equivalents in any other language) or any abbreviation, slang or symbol for the word “dollar” in the trade name used or to be
used by such proposed occupant.
iii. For the purpose of Section 15.a.i hereof, “principal business” shall be
defined as selling such merchandise in twenty-five percent (25%) or more of the sales floor area (including one-half (1/2) of the adjacent
aisle space).
Notwithstanding the foregoing, this Section A.12 shall not apply to any current occupant or tenant of the Shopping Centre who is actively conducting business in the entirety of their premises under their current use
clause or trade name as of the date of this Lease; provided, however, in the event Landlord’s consent is required for a change in permitted use or trade name, or Landlord has the ability to challenge a change of permitted use or
trade name, then Landlord shall not consent to a change of any tenant’s use
or trade name which would violate the Exclusive Use or Restricted Uses,
and Landlord shall take affirmative action to protect Tenant’s Exclusive Use and Restricted Uses so that no violation of the Exclusive Use or Restricted Uses shall occur.
9. Kumon
a Kumon math and reading centre and all uses incidental thereto.
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10. Janinder Mahon
Physio clinic.
11. Seaton Centre Vision Care Inc.
Retail store selling sunglasses, contact lens and other optical related accessories normally sold at an optician
store and eye exams.
12. Dr. Maria Murad and/or her Dentistry Professional Corporation
Pediatric and orthodontic dentistry which pediatric uses shall be exclusive to the Tenant. The Landlord will
not lease any other free-standing premises in the Shopping Centre to another orthodontist. The Tenant
acknowledges that the Landlord cannot restrict any general dentist in the Shopping Centre from
incorporating an orthodontist within the general dentist premises.
14. 2386692 ONTARIO INC. o/a PEARL NAILS INC.
Nail salon exclusivity
16. 2684228 ONTARIO INC. take out Sri Lankan and Indian restaurant
17. Angus Valley Montesorri Schools Inc.
The Landlord acknowledges and agrees that so long as the tenant in possession of and operating from the whole of the Premises is Angus Valley Montesorri Schools Inc. and the Tenant is not in breach of this Lease then throughout the Term and any extensions thereof, the
Landlord shall not lease or consent to the use of any other premises in the Shopping Centre to a tenant whose principal use is the operation of a Montessori school including such programs as tutoring, martial arts, music lessons, robotics and academics. Notwithstanding, the Tenant
acknowledges and agrees that this exclusivity will not prohibit the Landlord leasing premises
to a Kumon tenancy.
18. Mary Brown Chicken
The Landlord will not lease space in the Shopping Centre to any tenant whose primary business involves the sale of chicken products. Notwithstanding the foregoing this exclusivity
shall apply but not be limited to Kentucky Fried Chicken (FFC), Popeye’s, Nando’s, Swiss Chalet, Church’s Chicken, Dixie Lee, Chick-fil-A, Jollibee and any other similar tenant. Notwithstanding the foregoing Mary Brown Chicken has consented to Osmow’s Ltd. being entitled to serve chicken shawarma as a staple item on its menu.
19. Kumon Math and Reading Centre
Notwithstanding anything contained in this Lease, Landlord will not use, lease or permit any
other store or property in the Shopping centre to be used for conducting, supplemental educational sessions, including but not limited to, Sylvan, Mathnasium, Eye Level and/or
Huntington Centre, neither company-owned and/or franchised. Furthermore, Landlord hereby represents that no present tenant or occupant of the Shopping Centre now uses or is by its terms of its lease or occupancy entitled to use its premises for such purposes noted herein. Notwithstanding , the Tenant acknowledges that there is a Montessori school as a tenant of
the Shopping Centre.
20. Osmow’s
Tenant shall use the Premises for the principal purpose of the sale, at retail, of Mediterranean
and Middle Eastern cuisine, including items such as, but without limitation, chicken and beef
shawarma, falafel, pitas, wraps, kebabs, salads, rice, potatoes, fries, poutine, and as ancillary
to such principal use, for the sale at retail of cold and hot beverages, appetizers, dessert and other such items as are typically sold in majority of “Osmow’s Restaurants located in Canada. Landlord acknowledges and agrees that so long as the tenant in possession of and operating
from the whole of the Premises is Osmow’s and the Tenant is not in breach of this Lease then throughout the Term and any extensions thereof, the Landlord shall not lease, offer or permit any other premises in the Shopping Centre to be used for the primary business of a restaurant
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that specialises in the sale of shawarma, falafel or middle eastern food or Mediterranean/middle eastern food dishes. Primary shall mean more than thirty (30%) percent of their menu items. The foregoing restrictions shall not apply to any existing leases or to any
renewals, extensions, assignments or subleases of any existing lease or any agreements made between the Landlord and any existing tenant or tenants or their assignee(s) or sublessee(s) for the continued occupancy by the tenant(s) of premises within the Shopping Centre for the
same use as such tenant(s), assignee(s) or sublessee(s) are currently using or permitted to use
premises within the Shopping Centre. Notwithstanding the foregoing, the Tenant
acknowledges and agrees that the foregoing restriction is not intended to apply or be enforceable to the extent that it would give rise to any offence under the Competition Act of Canada or any other applicable laws.
21. Hakka House Inc.
Bubble Tea
22. 11131800 Canada Inc.
The Tenant shall have the exclusive right to use the Premises to open a business that will include a hamburger take out restaurant. Notwithstanding, the Tenant acknowledges and
agrees that other tenants in the Shopping Centre will be entitled to sell hamburgers on the condition that the other tenant’s principal business is not the sale of hamburgers.
23. Pickering Animal Hospital Professional Corporation
24. 2805794 ONTARIO INC. o/a WILD WINGS
25. 2818882 ONTARIO INC./SIT DOWN RESTAURANT
26. 5000836 ONTARIO LIMITED o/a Eye Home Solutions
Retail unit for whole home water filtration services for which the Tenant will have the exclusive right to operate within the Shopping Centre. The Tenant’s business will also include the sale of products and services related to HVAC systems
27. 2829127 ONTARIO INC.
The sale of pizza, pasta salads, Sandwiches, speciality fries, pizza slices, and any other related
products as per the City South Pizza Menu, in the majority of the Ontario City South Pizza stores for the purpose of a licensed or unlicensed sit down, pick up or delivery style restaurant
28. THRICE BLESSED INC. o/a FOREST HILL REAL ESTATE
Tenant shall have the exclusivity of operating a real estate office on the ground floor of the shopping Centre. Notwithstanding, the exclusivity shall not pertain to office premises in the Shopping Centre.
29. MOOHAN TAEKWONDO INC.
A martial arts academy and all uses incidental thereto. Landlord will not use, lease or permit any other premises in the Shopping Centre to be used for conducting supplemental educational
sessions, including, but not limited to Sylvan, Mathnasium, Eye Level and or Huntington Centres, both company owned and/or franchised and any other types of martial arts or combat
sports (kickboxing, mixed martial arts, jiu-jitsu, boxing Muay Thai, etc.
30. Pickering Animal Hospital Professional Corporation
The Landlord acknowledges and agrees that so long as the tenant in possession of and operating from the whole of the Premises is Pickering Animal Hospital Professional
Corporation (or a related or affiliate corporation thereof) during the Term, or any extensions and renewals theroef, the Landlord shall not lease or consent to the use of any other premises in the Shopping Centre to a tenant whose principal business or use of the premises is an animal
hospital.
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31. Booster Juice
The Landlord shall not, during the term of the Lease and any renewals ore extensions, thereafter, lease any other rentable premises in the Shopping Centre to Freshii, Jugo Juice,
Greenhouse Juice Co, Real Fruit and Freshly Squeezed, or any other tenant where their principal use includes the sale of wheatgrass, smoothies, yogurt-based beverages and fresh juices. For clarity, the term “principal use” shall be deemed to include a tenant having 15% or
more of its gross sales attributable to the sale at retail of such principal products on a combined
basis.
32. Guac Mexi Grill
Mexican fast casual restaurant with liquor license serving burritos, tacos, quesadillas, nachos, salads, enchiladas, Mexican deserts and drinks;
33. 13752259 CANADA INC. o/a Lofti Wok Restaurant
Robot stir fry Chinese fast food casual restaurant. Chinese stir fry including starter, stir fry, curries, fried noodle, fried rice, alcoholic and non-alcoholic beverages including drinks with toppings as well as such other items sold by the majority of other Lofti Wok Restaurants
locations in Ontario;
34. Loaded Pierogi
Loaded Pierogi quick service e restaurant, selling items for immediate consumption as well as take-out and delivery. The principal business being the preparation and sale of pierogi,
macaroni and cheese and poutine served with a variety of toppings, including, but not limited to, smoke meats, chicken, cheese and vegetables (the “Principal Business”), as ancillary to such Principal Business, the Tenant shall be permitted the sale of side dishes such as dips, breaded nuggets, side salads, soft serve ice cream, alcoholic and non-alcoholic beverages as
well as such other items as may be sold from time to time by the majority of other Loaded Pierogi locations in the Province of Ontario;
35. 14187512 CANADA INC. O/A AS YAKYOTO
Self cooking Korean BBQ style restaurant or Japanese BBQ style restaurant, which for clarity
does not preclude any other Japanese or Korean restaurants in the Shopping Centre and further
does not preclude any Japanese or Korean restaurant from serving Japanese BBQ or Korean BBQ as an ancillary offering. For greater clarity, this exclusivity does not preclude any restaurant in the Shopping Centre from serving izakaya style food, Ramen, Japanese appetizer,
Donburi (rice bowls) or Japanese desserts.
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Schedule “F”
LANDLORD’S WORK AND TENANT’S WORK
1. LANDLORD’S WORK
The Tenant shall accept the Leased Premises in a shell condition built to Landlord and municipal building code standards and described in the following manner: 2. TENANT'S WORK
The Tenant shall provide at its sole expense the items enumerated below and will also
provide all other work required for the finishing of the Leased Premises for their intended use (all in accordance with the Tenant's drawings and specifications as approved by the Landlord), and as required by the Landlord's tenant design criteria which shall so form part of this agreement. The
Tenant shall pay to the landlord forthwith on demand as Additional Rent an amount equal to all reasonable out of pocket expenses incurred by the Landlord in connection with the Landlord’s review and approval of the Tenant’s drawings and specifications.
2.1 Signs
(a) Signs - All signs shall conform to the Landlord's sign criteria and be subject to the Landlord's approval, which approval may be arbitrarily withheld.
2.2 Electrical
All electrical work (store front included) beyond the point of supply to the Leased
Premises, including
(a) underfloor conduits (if any), branch wiring, outlets and receptacles
(b) lighting fixtures, lamps and necessary "Exit" sign, Emergency lighting and all other related equipment
(c) wiring for hot water heater
(d) installation of electrical meter for which the Tenant shall apply to the local hydro authority
(e) electrical panel including all necessary breakers
2.3 Ductwork & Diffusers
Complete ductwork and distribution system including diffusers and return air grilles. Installation of the Tenants washroom exhaust fan.
2.4 Sprinklers
The systems must be of a design and type as required by code to maintain the overall rating of the Shopping Centre and any variations to the Landlord's standard sprinkler system shall be at the expense of the Tenant and shall be installed by the Landlord's sprinkler contractor so that guarantees can be maintained.
2.5 Plumbing
Branch plumbing including lines and fixtures by the Tenant to serve its equipment. Should
the Tenant have more than one two-piece handicapped washroom, the Tenant shall pay for any rough-in plumbing required over the Landlord's Work. If required by the Landlord, the Tenant to
arrange for and pay for the installation of a water meter. The Tenant to arrange and pay for the installation of its hot water tank.
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2.6 Interior Finishes
Floor coverings in all areas to be approved by the Landlord, acting reasonably. Interior painting and decorating, interior partitions, fixtures and furnishings. The Tenant must supply and
install floor covering in all areas.
The Landlord may, at its option, perform any work forming part of the Tenant's Work at the expense of the Tenant and payment shall be made by the Tenant in accordance with the
provisions of this Schedule “F”.
2.7 Ceiling
Complete ceiling installation including interior bulkheads. Combustible material must not be used in the ceiling space or in the construction or finishing of the ceiling. If open ceiling concept, the Tenant shall be solely responsible for any additional expenses incurred by the
Landlord to fireproof the Premises to code.
2.8 Permits and Inspections
The Tenant shall be responsible for applying for and securing all required permits/inspections from authorities having jurisdiction; all at the expense of the Tenant prior to
start of construction.
2.9 Occupancy, Building and Signage Permits
For greater certainty, the Tenant, at its cost, is responsible for applying for and obtaining all permits relating to its Premises.
3. OTHER PROVISIONS
3.1 Tenant's Extra Requirements
If the Tenant's requirements for electrical, air conditioning, plumbing or sprinkler services exceed the standards outlined in Section 1, the additional work shall be performed by the Landlord
and paid for by the Tenant to the Landlord on demand following completion of such work. The amount payable by the Tenant for such work or any other work performed by the Landlord on behalf of the Tenant shall be the total cost to the Landlord of all additional work, including
Architectural and Engineering fees, plus a further 15% of the total cost for the Landlord's overhead
and supervision. Failure by the Tenant to pay for the additional work performed by the Landlord
shall constitute a default by the tenant and such amount (or the balance thereof unpaid) shall be collectible by the Landlord as rent. The Landlord may, at its option, require payment of the estimated cost of such work in advance and if so required, the Tenant shall forthwith pay same
amount to the Landlord.
3.2 Performance of Tenant's Work
The following provisions are in addition to, and do not waive the provisions of any general covenants between the Tenant and the Landlord as may be contained in the Lease:
(a) Before doing any item of Tenant's Work, the Tenant shall secure and demonstrate to the Landlord on demand, all necessary permits. Upon completion, the Tenant
shall secure all applicable certificates of completion and occupancy.
(b) All items of work undertaken by the Tenant shall be performed by competent
workmen whose labour union affiliations are compatible with those of others employed by the Landlord and its contractors and sub-contractors.
(c) All work by the Tenant within the Leased Premises shall be completed in new materials. Materials and workmanship shall be of a uniformly high quality and
used and/or performed in accordance with the very best standards of practice and shall not be in contravention of any governing codes or regulations and shall be subject to the approval of the Landlord and/or its Architect. Any damage to the Leased Premises or the Shopping Centre caused by the Tenant or any of its
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employees, contractors or workmen shall be repaired forthwith by the Landlord at the expense of the Tenant.
(d) Under no circumstances will the Tenant, its employees, its contractors or its
contractors' employees enter onto any roof of the Shopping Centre or make any opening in the roof.
(e) The Tenant and his contractor(s) shall not impose a greater load on any concrete
floor than the design live load of 100 pounds per square-foot uniformly
distributed. No unusual loads may be suspended from the underside of roof
structure.
(f) The Tenant shall maintain the Leased Premises in a reasonably clean and orderly manner and shall be responsible for the cost of removing from the Shopping
Centre all excess materials, trash and cartons resulting from Tenant's Work and stocking of the Leased Premises. Should the Tenant fail to regularly clean up construction material, trash and cartons, the Landlord may remove such materials and charge the costs to the Tenant.
(g) The Tenant shall not allow any liens to be placed against the Leased Premises or the Shopping Centre. Failure to discharge any mechanics' liens within two (2)
days of notice by the Landlord so to do, shall constitute a default under the Lease at the sole discretion of the Landlord.
3.3 Exhaust & Odours
(a) Objectionable odours from the Leased Premises shall, at the Tenant's expense, be exhausted in such a manner as precludes their escaping into the mall (if any) or other rentable areas or short-circuiting into any fresh-air vents.
(b) Where the Tenant request a total exhaust rate greater than 200 CFM/bay, the Tenant shall provide a make-up air system in accordance with the Landlord's specifications, sized in the amount of the excess and shall waive right to demand
of the Landlord the ambient design conditions specified in the Tenant's Design
Package.
(c) The Tenant's air-handling equipment may not under any circumstances draw air from the mall (if any) or exhaust into it.
(d) Garbage refrigeration equipment must be installed in the Leased Premises by the
Tenant if perishable items are handled or if required by municipal or health by laws.
4. GENERAL PROVISIONS
4.1 Outline Drawings by Owner
Within a reasonable time after acceptance of the Offer to Lease, the Landlord shall supply to the Tenant "Outline Drawings" for the Leased Premises showing dimensions, cross sections,
location of rear door and entry points for heat and air conditioning, water, sewers, electricity and sprinkler mains.
4.2 Complete Drawings by Tenant
The Tenant shall submit to the Landlord complete drawings and specifications for the Leased Premises, to be prepared by qualified designers and confirming to each of good engineering practice, the Outline drawings and the provisions of this Schedule “F”.
Such complete drawings and specifications shall show at least the following:
4.3 Store Submission Requirements
The Tenant shall provide complete working plans and specifications showing both imperial and metric values (metric values in brackets below) in the following form:
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(a) Floor Plan: Scale 1/4" = 1'.0", (1:400).
(b) Reflecting ceiling: Scale 1/4" = 1'.0", (1:400).
(c) Store front and show window elevation and sections: 1/4" = 1'.0", (1:400).
(d) Store front and show window details: Scale 1/4" = 1'.0", (1:400).
(e) Interior elevations: Scale 1/4" = 1'.0", (1:400).
(f) Interior finishing schedule, (1:400).
(g) Plans or sketches showing location of equipment that the Tenant intends to install,
complete with catalogue sheets, specifications and sketches or same showing gas,
water and electrical consumption, motor horsepower and electric characteristics, controls and any other requirements necessary to provide direction to contractor to complete installation.
(h) Sign as outlined in Sign Directive.
(i) Expansion joint details (if applicable).
(j) Any other special facilities or installations that effect the building.
(k) Specifications and identification of materials.
(l) Specification of colour to include colour chips.
(m) Specification and locations of any store front lighting to be placed in the
Landlord's ceiling for sign lighting or store front lighting.
(n) Sprinkler and other fire protection devices.
(o) Underfloor electrical or plumbing.
(p) Electrical wiring plan.
(q) Ductwork for connection to the Landlord's air conditioning system, toilet exhaust system and any other ventilation system required by Tenant.
All required drawings and specifications shall be submitted for approval within a reasonable time and in any event within thirty (30) days of written request for by the Landlord therefore. No Tenant's Work may proceed prior to the Landlord's written approval, which will not
be unreasonably withheld or unduly delayed.
ALL TENANT DRAWINGS MUST BE IN PDF FORMAT
4.4 Approved Contractors
Tenant's Work shall be carried out by or under the supervision of one or more professional contractor(s) and designer(s), who shall be subject to prior written approval of the Landlord (such
approval not to be unreasonably withheld or delayed).
5. REQUIREMENTS AFTER COMPLETION OF TENANT’S WORK
5.1 Tenant’s Declaration
The Tenant shall provide to the Landlord, within forty-five (45) days of completion of the
Tenant’s Work, a statutory declaration (the “Declaration”):
(a) stating that Tenant’s Work has been performed in accordance with all of the
provisions of this Schedule and that all deficiencies (if any) which the Landlord has brought to the Tenant’s attention have been corrected;
(b) stating that there are no construction, builders’, mechanics’, workers’, workers’ compensation or other liens and/or encumbrances affecting the Premises or the
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Shopping Centre with respect to work, services or materials relating to Tenant’s Work and that all accounts for such work, services and materials have been paid in full;
(c) listing each contractor and sub-contractor who performed work or supplied services or materials in connection with Tenant’s Work; (d) confirming the date upon which the last such work was performed, and services
and materials were supplied; and
(e) confirming as correct a general list showing the actual cost of all improvements
including, without limitation, sprinklers, washrooms or any other special facilities.
5.2 Final Workers’ Compensation Clearances
The Tenant shall also provide to the Landlord, within forty-five (45) days of completion of Tenant’s Work, a clearance certificate issued under the Workplace Safety and Insurance Act (Ontario) or similar legislation of the Province in which the Premises are located in respect of each
contractor and sub-contractor listed in the Declaration.
5.3 Occupancy Permit
The Tenant will obtain and provide to the Landlord a copy of all occupancy and other permits required by any authority having jurisdiction to permit the Tenant to open for business.
5.4 Status Statement
Within five (5) days of the Landlord’s request, the Tenant shall execute the Landlord’s standard form of status statement document confirming:
(a) the date on which the Tenant took possession of the Premises;
(b) the Commencement Date;
(c) the current Minimum Rent, Additional Rent and Percentage Rent (if any) payable under the Lease;
(d) that the Landlord is not then in default under the terms of the Lease, or if such is
not the case, specifying the details of such default;
(e) that the Tenant has not received a notice of default from the Landlord, or if such is not the case, specifying the details of such notice;
(f) the date the Tenant completed the Tenant’s Work; and
(g) any other items reasonably requested by the Landlord and any items requested by the Landlord’s mortgagee from time to time.
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C:\Users\snicholson-clarke\Desktop\Seaton Centre Office Lease Pickering April 25 2024.docx
Schedule “G”
SPECIAL PROVISIONS
1. TENANT INDUCEMENT
Subject to Landlord’s Right to Revoke set out in this Lease, provided that the Tenant is not in
default under the terms of the within Lease, including, without limitation, the Tenant’s Work
provisions set out in this Lease, as an inducement for the Tenant to enter into this Lease the
Landlord shall pay to the Tenant a tenant inducement (the “Tenant Inducement”) in the amount of Fifteen ($15.00) Dollars for each square foot of the Rentable Area of the Premises (not grossed up) which Tenant Inducement shall be payable on the following conditions:
(a) the Tenant Inducement is to be applied towards the actual cost of constructing leasehold improvements within the Premises. The Tenant Inducement shall be payable only after the occurrence or completion of all of the following:
i. The expiry of the holdback period under the Construction Act, Ontario and after the later of (i) the Tenant completing all of its obligations as set out in
Schedule “G” hereto and (ii) the Tenant opening for business to the public, fully fixtured, and (iii) inspection by the Landlord’s representative that the
Tenant’s work conforms with pre-approved drawings, building codes, building policies and other governing requirements; ii. The execution of this Lease by both the Landlord and the Tenant and any indemnifiers;
iii. Delivery to the Landlord of a clearance certificate issued under the Workplace
Safety and Insurance Act in respect of each contractor and subcontractor who did work with the Tenant’s Work in the Premises; and
iv. The expiry period pursuant to the Construction Act, (Ontario) or such other
legislation in Ontario (all to be deemed to be known as the “Construction Act”)
dealing with construction liens, within which workmen, material, contractors or suppliers in connection with the completion of the Tenant’s Work may file a construction lien claim for unpaid work or services performed or materials
supplied with no liens having been registered and delivery of a notarized statutory declaration from a senior officer of the Tenant, confirming that: (i) all holdback periods referred to in the Construction Act, (Ontario) have expired with no liens having been registered.
(b) If, at any time, during the Term (as extended) of this Lease:
i. The Lease is terminated by reason of the default of the Tenant thereunder; or
ii. The Tenant has become bankrupt or insolvent or has taken the benefit of any statute for bankrupt or insolvent debtors, or has filed a proposal, or has made an assignment for the benefit of creditors or any arrangement or compromise, or
iii. The Tenant is in default of the payment of Rent, then in such event, and without prejudice to any of the Landlord’s other rights and remedies available to it under this Lease and at law, the Tenant inducement shall immediately become
due and payable to the Landlord as Rent. 2. BASIC RENT-FREE PERIOD
Subject to Landlord’s Right to Revoke as provided for herein and provided that the Tenant
is not in default of its covenants as contained in this Lease beyond any applicable cure periods, the Tenant shall not be required to pay Basic Rent for a period of one (1) month commencing on the Commencement Date (the “Basic Rent-Free Period”). During the Basic Rent-Free Period, the Tenant shall be subject to all other terms and conditions of the lease insofar as applicable,
including, without limitation, the requirement to pay Operating Costs, Realty Taxes, all utilities and maintenance of all insurance required to be obtained and maintained by the Tenant under this Lease.
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3. OPTION TO EXTEND
(a) Subject to the Landlord’s Right to Revoke herein and on the condition that the Tenant is not then in default and has not been in default of the terms of this
Lease on more than one (1) occasion, the Tenant shall have the option to extend the Term of this Lease for two (2) further terms of five (5) years each (the “Extension Terms”). Each such Extension Term shall be on the same terms
and conditions as contained in this Lease, except that: (i) there shall be no
further right to extend after the expiry of the Extension Term in question; (ii)
the Basic Rent shall be such increased amount as determined pursuant to Subsection (b) of this Section; and (iii) there shall be no tenant’s allowance, tenant inducement, rent-free period for the Extension Term in question and the
Premises shall be accepted by the Tenant in an “as is” condition at the commencement of the Extension Term in question without the Landlord being required to perform any work. Such right to extend shall be exercisable by written notice to the Landlord not later than nine (9) months and not earlier than
twelve (12) months prior to the expiry of the original Term or Extension Term in question, as the case may be, failing which such right shall be null and void
and forever extinguished.
(b) The Basic Rent for the Extension Term in question shall be the greater of: (i)
$22.50 per sq. ft.; and (ii) the Market Rent. As used herein, “Market Rent” means the annual rental which could reasonably be obtained by the Landlord for the Premises from a willing tenant or willing tenants dealing at arm’s length with the Landlord in the market prevailing for a term commencing on the
relevant date, having regard to all relevant circumstances including the size and location of the Premises, the facilities afforded, the terms of the lease thereof (including its provisions for Additional Rent), and the leasehold improvements
therein, and with the assumption that the existing leasehold improvements are
ideal for the Tenant’s use as is, and with the further assumption that either the
existing leasehold improvements are fully adequate for the Tenant’s use of the Premises throughout the Extension Term in question or there remains sufficient time over which such improvements may be amortized, if further leasehold
improvements are reasonably required to be made by the Tenant to facilitate the Tenant’s use of the Premises, or to comply with the Tenant’s obligations hereunder, during the Extension Term in question, the cost of such improvements can be fully amortized by the end of the Extension Term and
disregarding the Tenant’s trade fixtures and also disregarding any deficiencies in the condition and state of repair of the Premises as a result of the Tenant’s
failure to comply with its obligations hereunder in respect of the maintenance and repair of the Premises, and with the assumption that the use to be made of
the Premises is the highest and best use which may legally be made of the Premises irrespective of and without affecting the provision of this Lease respecting the use to be made of the Premises, or the interpretation thereof and having regard to rentals currently being obtained for premises in the Building
(if applicable) and for comparable space in other buildings comparably located. The Market Rent for the Extension Term in question shall be as agreed upon between the Landlord and the Tenant for the Extension Term in question or, failing agreement by the Landlord and the Tenant, by not later than three (3)
months prior to the expiry of the Term hereof or the then current Extension Term, as the case may be, the Market Rent shall be established in the manner set out in subsection (c) below.
(c) The Landlord or the Tenant (the “Requesting Party”) shall be entitled to notify
the other party hereto (the “Receiving Party”) of the name of an expert for the purpose of determining the Market Rent. Within fifteen (15) days after such notice from the Requesting Party, the Receiving Party shall notify the Requesting Party either approving the expert proposed by the Requesting Party
or proposing another expert for the purpose of determining the Market Rent. Should the Receiving Party fail to give notice to the Requesting party within the said fifteen (15) day period, the expert named in the notice given by the Requesting Party shall perform the expert’s functions hereinafter set forth. If Landlord and Tenant are unable to agree upon the selection of the expert within
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fifteen (15) days after such notice from the Receiving Party to the Requesting Party, then either party shall be entitled to apply to a Judge of the Superior Court or the relevant Court of competent jurisdiction for appointment of such expert
as though he or she were an arbitrator pursuant to the Arbitration Act (Ontario). The expert appointed, either by Landlord and/or Tenant or by a Judge of the Superior Court or the relevant court, shall be qualified by education, experience
and training to value real estate for rental purposes in the Province and have
been ordinarily engaged in the valuation of real property in the municipality in
which the Shopping Centre is located for at least the immediately preceding five (5) years. Within thirty (30) days after being appointed the expert shall make a determination of the Market Rent for the Extension Term in question,
after receiving evidence from the Landlord and/or Tenant. The cost of such determination shall be borne equally. The determination of the expert as to the Market Rent shall be conclusive and binding upon Landlord and Tenant and not subject to appeal.
4. PYLON SIGN
i. Tenant acknowledges that Landlord has installed or will install a pylon
stand/sign on the Shopping Centre ("Pylon"). Subject to availability and subject to compliance with all Laws and subject to Landlord's determination
as to size and location and Landlord's prior written approval as to design and method of affixing same, Tenant shall:
1. If required by Landlord and on the condition that there is space available on the Pylon sign for the Tenant; or
2. provided Tenant is the City of Pickering and Tenant is in occupancy of and conducting business on the whole of the Premises, then at Tenant's option exercisable in writing within ten (10) days of the
date Landlord sends written notice to the Tenant for Tenant to
exercise said option;
place at Tenant's expense Tenant's corporate logo (the "Sign") on the Pylon.
ii. If Landlord requires or permits Tenant to install a Sign on the Pylon, Tenant shall:
1. pay to Landlord as Additional Rent a reasonable monthly pylon sign fee (the “Pylon Sign Fee”) as determined by the Landlord but which shall not exceed $50 + HST per month;
2. submit for the written approval of Landlord within thirty (30) days
after receipt of such notice, a proposed location of Tenant’s Sign face on the Pylon and the proposed design of such Sign. In the event
that Landlord and Tenant are unable to agree as to the exact location of Tenant’s Sign on the Pylon and/or the design of such Sign within
fifteen (15) days following receipt of same by Landlord, or in the event that Tenant fails to submit the proposed location of such Sign on the Pylon and/or the proposed design of such Sign within the aforesaid thirty (30) day period, then in each such event, Landlord
shall be entitled to erect such Sign on the Pylon in the location and in accordance with such design as Landlord in its absolute discretion deems advisable and Tenant shall pay to Landlord as Additional
Rent, on receipt or invoice therefore, the costs of such Sign provided
by Landlord; and
3. at its sole cost obtain insurance for the Sign as reasonably required by Landlord and shall ensure that the Sign is at all times throughout the Term and any renewals thereof maintained in a first class,
attractive and clean condition and appearance and state of repair.
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iii. In conjunction with the Sign, Tenant shall be responsible for the following: (i) all costs incurred as a result of or respecting the Sign including without limitation the cost of the Sign, all costs of installation of
the Sign and all fixtures, fittings and attachments in association therewith (the "Fittings"), including costs of any necessary changes to the Pylon required to accommodate the same, and all costs and repairs, maintenance
and replacements in respect of the Sign and Fittings; (ii) all necessary
repairs, maintenance and replacements required to the Pylon as a result of
the Sign and Fittings; (iii) all damage caused by such Sign and Fittings; (iv) all taxes resulting from such Sign and Fittings; (v) all costs of insurance premiums incurred for all insurance carried by Landlord in its sole
discretion, in respect of Sign and Fittings; and (vi) Tenant's pro rata share of: (A) all maintenance, repairs and replacements to the Pylon, all as required to keep the Sign, Fittings and Pylon, if applicable, in a first-class, attractive and clean condition and appearance and state of repair; and (B)
all utilities supplied to or used in connection with the Sign and/or Pylon;
iv. Landlord shall have the option, at any time during the Term of this Lease or
any renewal, to buy back Tenant’s space on the Pylon at the depreciated cost of such space based on the original cost to Tenant.
v. Upon the affixing of Tenant’s Sign to the Pylon which shall be done by Landlord at Tenant’s expense, Tenant shall be responsible, at its own expense, for the continuing repair, maintenance and replacement from time to time of said Sign, and Tenant acknowledges that it is important to the
overall appearance of the Shopping Centre and the Pylon that its Sign be constantly maintained in good order and appearance.
vi. If Landlord requires or permits Tenant to install a Sign as aforesaid, upon
the expiry or earlier termination of the Term or renewal term as the case
may be, or earlier upon ceasing to occupy or to conduct business in
substantially the whole of the Premises or defaulting under the terms of this Lease, Landlord shall have the right to require Tenant to remove all or such portions, as required by Landlord, of the Sign and Fittings and shall make
good all damage caused by the Sign and Fittings and by the installation and/or removal thereof. To the extent that Landlord does not require the removal of all or any such portions of the Sign and Fittings as aforesaid, the same shall at Landlord's option forthwith upon the expiry or termination of
the Lease, or upon Tenant no longer being entitled to maintain the Sign in accordance with the foregoing provisions hereof, become the absolute
property of Landlord on payment of no compensation whatever.
5. LANDLORD’S RIGHT TO REVOKE
At the Landlord’s option and notwithstanding anything contained elsewhere in this Lease to the contrary, any of the rights conferred herein this Lease dealing with Option to Extend, Tenant Inducements, Pylon Sign, Exclusivity and Basic Rent Free period, may be revoked in whole or in part if, at the time the Tenant exercises or is deemed to have exercised the option, the Tenant,: (i)
is in default under this lease or at any time during the Term (as the same may have been extended), the Tenant has been in default beyond the applicable cure period expressly provided for in this Lease; or (ii) has become bankrupt or insolvent or has made an assignment for the benefit of creditors or has taken the benefit of any statute in force for bankrupt or insolvent debtors, or a
petition in bankruptcy has been filed against the Tenant, or a receiving order has been made against the Tenant, or proceedings have been commenced respecting the winding-up or other termination of the existence of the Tenant, or a receiver or other person has taken possession of effective control of the assets or business of the Tenant or a substantial portion thereof, or there are
outstanding writs of execution against the Tenant; or (iii) the Tenant has assigned this Lease or sublet or parted with possession of all or any part of the Premises or there has been a change of control in ownership of the majority of the capital stock of the Tenant or the name under which the business on the Premises is conducted without the consent of the Landlord 1st obtained as
required in this Lease; or (iv) is not in possession of and conducting business on the whole of the Premises in accordance with the terms of this Lease. Notwithstanding the foregoing, failure of the
Landlord’s right to revoke any of the rights set out above shall not be deemed a waiver of the
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Landlord’s right to revoke any other right from time to time or a waiver of any default under this Lease for which the Tenant shall remain liable to remedy in accordance with this Lease.
6. PARKING
As per by-law allowance, the Tenant shall be entitled to ten (10) designated parking spots for its use at no cost to the Tenant. The Tenant shall be entitled to park elsewhere in the parking lot but such spaces shall not be designated. The Landlord shall be entitled to relocate the designated
parking spaces upon three (3) months advance written notice to the Tenant. The designated parking
spaces are outlined in the site plan attached as Schedule “H”.
7. MAIL
The Tenant shall have their own mailbox. The Tenant shall obtain a key from Canada Post for the mailbox.
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SCHEDULE “H”
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Report to Council
Report Number: PLN 13-24
Date: May 6, 2024
From: Kyle Bentley
Director, City Development & CBO
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, ERO 019-8462 Bill 185 and Revisions to Draft Provincial Planning Statement
- City of Pickering Comments on ERO Postings - File: L-1100-065
Recommendation:
1. That Council endorse the comments contained in Report PLN 13-24, as the City of Pickering Detailed Comments on the ERO Postings ERO 019-8366, ERO 019-8369, ERO 019-8371, and ERO 019-8462; and
2. That Council authorize the Chief Administrative Officer to submit the Council endorsed
comments on the identified ERO postings to the Ministry of Municipal Affairs and Housing
website by the May 10, 2024 deadline.
Executive Summary: On April 10, 2024, the Province released Bill 185: Cutting Red Tape
to Build More Homes Act, 2024, an updated draft Provincial Planning Statement, and other proposed legislative changes, for comment on the Environmental Registry of Ontario. The purpose of this report is threefold:
• to provide information to Council regarding the Province of Ontario’s proposed changes to
various pieces of legislation under Bill 185, as well as proposed revisions to the draft Provincial Planning Statement
• to seek Council’s endorsement of staff’s comments on those proposed changes
• to authorize the Chief Administrative Officer to submit Council’s comments to the Province
Relationship to the Pickering Strategic Plan: The recommendations in this report respond
to the Pickering Strategic Plan Priority of Advance Innovation & Responsible Planning to Support a Connected, Well-Serviced Community.
Financial Implications: The recommendations of this report do not present direct or
immediate costs to the City of Pickering.
Discussion: On April 10, 2024, the Province released Bill 185: Cutting Red Tape to Build
More Homes Act, 2024, for comments on the Environmental Registry of Ontario (ERO). This
Bill includes proposed changes to various pieces of legislation, regulation, and policy, with the
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PLN 13-24 May 6, 2024
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 2
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
stated purpose of helping the government achieve its goal of building 1.5 million homes by 2031. At the same time, the Province released a revised draft Provincial Planning Statement (Planning Statement). The commenting period concludes May 10, 2024.
The purpose of this report is to inform Council of these proposed changes in legislation, seek
Council’s endorsement of staff’s comments on these changes, and authorize the Chief
Administrative Officer (CAO) to submit these formal comments to the Province on the proposed legislative changes in Bill 185 and the revised draft Provincial Planning Statement.
1. Background
The following postings were listed on the Environmental Registry of Ontario (ERO) for a
30-day commenting period concluding on May 10, 2024. The ERO Postings are
summarized below:
1.1 ERO 019-8370 Proposed Changes to Regulations under the Planning Act and Development Charges Act, 1997 Relating to the Bill 185, Cutting Red Tape to Build More Homes Act, 2024 (Bill 185): Newspaper Notice Requirements and
Consequential Housekeeping Changes
Regulatory changes are proposed that would modernize public notice requirements under the Planning Act and Development Charges Act, 1997 by allowing municipalities to give notice of public meetings and of by-law passage, on a municipal website if a local newspaper is not available.
1.2 ERO 019-8369 Proposed Planning Act, City of Toronto Act, 2006, and Municipal
Act, 2001 Changes under Bill 185
Various changes are proposed to appeal rights, additional dwelling units requirements, lapsing provisions for development approvals that do not proceed to construction, application fee refunds, the development review process, upper-tier planning
responsibilities, and the development approval process for certain public facilities.
1.3 ERO 019-8371 Changes to the Development Charges Act, 1997 to Enhance Municipalities’ Ability to Invest in Housing-Enabling Infrastructure, in part under Bill 185
The Province is proposing to amend the Development Charges Act, 1997 to: repeal the
five-year phase-in of Development Charges (DCs); reinstate growth-related studies as
an eligible cost for DCs; reduce the timeframe for the DC freeze from two years to 18 months; and streamline the process for municipalities to extend existing DC by-laws.
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PLN 13-24 May 6, 2024
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 3
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
1.4 ERO 019-8368 Proposed Amendments to Ontario Regulation 73/23: Municipal Planning Data Reporting supporting Bill 185
The Province proposes to revise the existing requirements for municipalities to report to the Province on development approvals.
1.5 ERO 019-8366 Proposed Regulatory Changes under the Planning Act Relating to the Cutting Red Tape to Build More Homes Act, 2024 (Bill 185): Removing Barriers for Additional Residential Units (ADUs)
The Province is seeking feedback on zoning barriers to the construction of ADUs.
1.6 ERO 019-8462 Review of proposed policies for a new Provincial Planning Policy
instrument (comments deadline Sunday, May 12, 2024)
The Province is proposing revisions to the draft Provincial Planning Statement, initially released for comment in April 2023. The Provincial Planning Statement contains updated policies supporting increased intensification (e.g., around transit and redevelopment of low-density commercial plazas and strip malls), scoping protections
for employment areas, and promoting a range and mix of housing options, including
housing for students and seniors.
2. Staff comments on the proposed changes to Planning Act and Development Charges Act
The following section summarizes only the primary changes proposed to the Planning
Act and Development Charges Act which, in staff’s opinion, present certain concerns or
challenges to the City.
2.1 ERO 091-8369: Eliminate minimum vehicle parking space requirements for Protected Major Transit Station Areas (MTSAs)
If approved, municipalities will no longer be permitted to require a minimum number of
vehicle parking spaces within MTSAs (such as the City Centre). However, municipalities
may continue to mandate a minimum number of required bicycle parking spaces. This change applies to all parking requirements, not just residential development (that is, it also applies to commercial, employment, and institutional uses).
The vision for the Pickering City Centre is a mixed-use area, that contains the highest
concentration of density and activity within the City. It is anticipated that the intensity of
this built form will support new and enhanced methods of transportation, yet still include the personal automobile. In reviewing recent development applications, staff have been provided with evidence from sales data, indicating that demand for vehicle parking spaces has been decreasing. Yet, Pickering is still relatively suburban, and the City
Centre is served by GO Transit Service, not a subway. Other than the municipal parking
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PLN 13-24 May 6, 2024
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 4
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
lots associated with the Civic Complex and the Chestnut Hill Developments Recreation Complex, and some on-street parking, there is no significant supply of public parking for visitors to the area for a destination with no parking of its own.
The City has a role in protecting the public interest, such that new development does
not solely rely on parking provided by other property owners and developers in the City.
The proposed amendment is too broad to be applied to all MTSA’s at this time. A more tempered approach should be adopted at this time, by applying this new requirement only to those MTSA’s served by subway service. MTSAs in other locations should be able to establish minimum required resident and visitor parking requirements, based on
up-to-date evidence of demand.
The proposed amendment is not supported for the City of Pickering.
2.2 ERO 091-8369: Eliminate mandatory pre-consultation
Currently, the Planning Act grants a council or planning board authority to pass a by-law to require applicants to consult with the municipality or planning board before formally
submitting a development application (OPA/ZBA/Site Plan). Bill 185 proposes to
eliminate the ability for municipalities to formally require pre-consultations with staff prior to submitting an application.
It is unclear if the proposed change is intended to eliminate “pre-consultation” meetings or “pre-submission” reviews. As illustrated in Attachment 1, “pre-consultations” are meetings held at the beginning of the process. The “pre-submission” stage was
introduced to provide review of development proposals prior to a formal application submission, in order to avoid parties being subject to the virtually impossible-to-achieve approval timeframes (and corresponding application fee refunds) created by Bill 109. By eliminating application fee refunds, Bill 185 will remove the need for pre-submissions, allowing municipalities to return to the original review process. It is recommended that
the Province revert the Planning Act to what it was with respect to pre-consultations, prior to Bill 109.
The purpose of a pre-consultation meeting is to identify any anticipated issues related to a proposal and give direction to the proponent to prepare the materials necessary to
address those issues. These meetings are often held within two to four weeks of being
requested. If this change is approved, proponents will now have the ability to skip pre-consultations and submit applications without formal guidance from staff or other commenting agencies. This may lead to delays as proponents will be requested to make changes or add missing items to their submission before a full review can begin.
This proposed amendment to eliminate fee refunds is supported, while the change to
eliminate the requirement for pre-consultations is not supported.
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PLN 13-24 May 6, 2024
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 5
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
2.3 ERO 091-8369: Allow an applicant to challenge complete application requirements at any time
Presently, the Planning Act states that an applicant has 30 days to lodge an appeal to the Ontario Land Tribunal if a municipality deems their planning application incomplete and stops reviewing it. Bill 185 proposes to remove the 30 days deadline and allow
applicants to appeal the complete application requirements at any time after the application submission, whether it has been reviewed for completeness or not.
The objective of the Provincial Government is to minimize delays in application review times or to “cut red tape”. The list of complete application requirements is prepared
following a pre-consultation meeting. This list is known before an application is
submitted. Should the applicant wish to challenge this list of requirements, there is no reason to wait until late in the application review process. This is counter-productive to staff and agency time and will delay an application further by causing it to wait to be heard at the Ontario Land Tribunal. Put another way, these proposed changes (to
eliminate pre-consultations and to enable immediate appeals) removes any meaningful
opportunity for municipalities to pro-actively communicate submission requirements to an applicant, and consequently exposes the applicant to “red tape” remedies, which is what the Province is trying to avoid. Staff recommend that the appeal aspect of the Planning Act, with respect to a complete application, remain as it was prior to the
enactment of Bill 109.
This change is not supported.
2.4 ERO 019-8366 and ERO 091-8369: Reducing requirements for ADUs
The Province is requesting comments on any existing zoning regulations that may be limiting the construction of ADUs – whether within an existing dwelling or external to the
main dwelling. The Province suggests that some of the zoning regulations that could be
removed in the future include: minimum parking requirements and maximum lot coverage (the amount of land covered by all buildings on a lot).
The City was proactive, and passed new ADU zoning regulations in September 2023, following a robust community engagement process. These zoning regulations are
specific to Pickering’s context and character. Below is further detail on two of the City’s
current zoning regulations for ADUs.
Pickering’s ADU regulations already provide zero parking requirements in the City Centre and provide reduced parking requirements to properties that are close to major transit (the GO Station and Kingston Road). While it may be reasonable to consider
further reducing/eliminating parking requirements for properties in south Pickering that
are located near transit, it would be pre-mature to remove parking requirements from areas of the City, such as Seaton, which are poorly served by transit today, and which do not yet have schools, shopping, and services nearby.
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PLN 13-24 May 6, 2024
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 6
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
The size limits placed on ADUs, such as lot coverage requirements, were based on models of various Pickering properties (small urban lots, large urban lots, rural lots, and estate lots). Eliminating a zoning provision in all instances does not reflect a property’s unique context and constraints.
Making universal changes to the zoning for all ADUs throughout the Province, without
consideration for local context, is not supported.
2.5 ERO 091-8369: Allow municipalities to offer incentives for business attraction
Municipalities are currently prohibited from directly or indirectly assisting businesses or commercial enterprises through the granting of bonuses. This includes prohibitions on:
• giving away any municipal property or money
• guaranteeing private borrowing
• leasing, or selling any property of the municipality below fair market value, or
• giving a total or partial exemption from any levy, charge, or fee
(This practice differs from Community Improvement Grants, which are applied to a specific area and are open to all qualified participants.)
Bill 185 proposes to make future regulations authorizing municipalities to grant
assistance, directly or indirectly, to a specified industrial or commercial business, where the Province decides that it is in the provincial interest to attract investment in Ontario.
If a given industry is significant enough to garner provincial interest, it is incumbent upon the Province to provide the assistance necessary to create an environment conducive to attracting that business. Municipalities do not have the financial clout or resources to
compete directly with jurisdictions outside of Ontario for business attraction.
Further, jurisdictions which allow municipalities to compete directly with one another, through the use of financial incentives, to attract new businesses leads to a “race-to-the-bottom” approach that benefits the businesses at the expense of the municipal tax base. In addition, any perceived benefits to workers in that the community cannot be
guaranteed, as labour in the Greater Toronto Area (GTA) is highly mobile.
This change is not supported.
2.6 ERO 091-8369: Eliminate Durham Region planning responsibilities
The Region of Durham has responsibilities respecting the provision of water, sanitary services, regional roads, and various services, including waste management, police,
emergency services, transit, and others. Yet, Bill 23 removed Durham Regional Council’s role in approving land-use planning decisions. The Bill did not set a timeframe for this to occur. The changes introduced in Bill 23 will make long-range, growth management planning more time-consuming, and more expensive, for local municipalities such as Pickering. - 87 -
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Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 7
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
Once in effect, planning policy and approval responsibilities of the regional municipality will be removed, and the lower-tier municipalities will assume primary responsibility for all planning in their geographies, except for matters requiring Provincial approval.
Bill 185 reiterated the plan to remove the Durham Region planning authority, but has
still not set a date for the removal of this authority.
It is recommended that the Province not proceed with removing Durham Region’s planning authority.
2.7 ERO 091-8369: “Use it or Lose it” – Permit municipalities to withdraw servicing allocation and development approvals
The Provincial Government is currently providing financial incentives to municipalities
that meet their targets for housing starts. It is unlikely that municipalities would wish to remove development approvals or servicing allocations for projects not begun within a prescribed timeframe, unless it had a direct correlation to other developments proceeding in their place.
As long as municipalities are empowered, but not required, to use this new power, this
change is supported.
2.8 ERO 091-8369: Allow private applications and appeals of boundary expansions
In the past, municipal boundaries were only expanded after a municipal comprehensive review process had been completed, that projected how much land was needed for
future growth, and evaluated what areas were best suited to accommodate that growth.
This legislation would now require municipalities to consider privately-initiated applications to expand municipal boundaries at any time (provided they are located outside of the Greenbelt). This approach is not good planning as it:
1. ignores the established land use vision within the Durham Region Official Plan and
the City of Pickering Official Plan;
2. replaces a City-wide view of growth with a narrower view of growth that is driven by a private application; 3. ignores the fact that planning for growth requires significant resources, and is best done on a regular cycle where municipal resources can be effectively planned, for
and assigned;
4. does not result in faster development, as infrastructure planning is based on long-range planning forecasts, and not on ad hoc applications; and 5. ties up municipal resources responding to private boundary expansion requests (and appeals), rather than reviewing applications that conform with the Official Plan
and are supported by planned infrastructure.
This change is not supported.
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PLN 13-24 May 6, 2024
Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 8
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
2.9 ERO 091-8369: Enable streamlined approvals for community service facilities
Bill 185 proposes to streamline the approvals process for community service facilities, such as public schools (K-12), hospitals, and long-term care homes. While the principle of prioritizing the approvals for these uses is key to growing a successful community, it
is unclear what is intended by “streamlining”. If the Province’s intention is to exempt
public facilities from processes, such as Site Plan Control, staff disagree. The site plan approval process plays an important role in obtaining, coordinating, and resolving potentially conflicting comments from agencies. The objective of site plan control is to create a site which functions in the best interests of the public (i.e., mitigating any
potential adverse impacts to abutting property owners), and the site users, while
meeting technical requirements, for such matters as stormwater management, night sky compliant lighting, and vehicular and pedestrian circulation.
This change is not supported given the lack of detail provided.
2.10 ERO 091-8369: Exempt publicly-assisted universities from the Planning Act and
planning provisions
With the exception of properties located within the Greenbelt, it is proposed that publicly-assisted post-secondary institutions be made exempt from the Planning Act. This means that they would not be subject to zoning requirements, nor would they be subject to Site Plan control. Construction for these institutions would only be subject to
the Ontario Building Code and any other category of applicable law required for a
Building Permit.
Some development on the campus of a publicly-assisted post-secondary institution may be located within the centre of the campus and have little to no impact on the surrounding community. However, any development near, or on the perimeter of the
campus, will have a direct relationship with either a public right-of-way (road) or
neighbouring private properties. As noted in the item above, part of the role of Site Plan control is to anticipate and mitigate any potential impacts for the benefit of adjacent property owners.
This change is not supported.
3. Proposed Provincial Planning Statement and Staff Comments
As previously reported in PLN 16-23, in May of 2023, the Province is proposing to combine various policies of A Place to Grow and the Provincial Policy Statement, 2020, plus introduce new policies, to form a new land use policy document – the Provincial Planning Statement (Planning Statement). The recent ERO postings included proposed
revisions to the draft Provincial Planning Statement. Staff believe it is important for us to
repeat a number of our previous comments to the Province, along with a new comment, as our recommendations for submission to that ERO posting.
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ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
3.1 ERO 019-8462: Previous comments given on the draft Planning Statement through PLN 16-23
• That the Province identify the basic parameters for a future Land Needs
Assessment. This will provide clarity regarding how they are to be conducted for
municipalities and the development community;
• That the Planning Statement require “large and fast-growing municipalities” to identify minimum intensification targets, and provide criteria for municipalities to identify built-up areas where intensification targets would apply;
• That the Planning Statement indicate that, where municipalities identify minimum densities for strategic growth areas and greenfield areas to address local conditions, they shall not be appealable;
• That the Province restrict settlement area expansions and employment area conversions to occur only through an Official Plan review, not through privately initiated, appealable, official plan amendments;
• A specific amount of employment area land, i.e., 15%, be allowed to be used for
office and institutional uses, or that municipalities be authorized to consider limited office and institutional uses within employment areas, subject to criteria. This will give municipalities more flexibility in planning employment areas while protecting majority of the lands for manufacturing, and other permissible uses;
• That the Planning Statement be revised to include the same criteria as the current Provincial Policy Statement (PPS), on compatibility when introducing sensitive uses adjacent to industrial, manufacturing or other major facilities that are vulnerable to encroachment;
• Delay, by a minimum period of two years from proclamation, the effective date after which an application for conversion could be submitted on lands no longer meeting the new definition of Employment Area;
• Staff recommends that the issuance of a Minister’s Zoning Order should have regard
for the local Official Plan, and be supported by City Council; and
• That, although the definitions for “Affordable” housing for “low and moderate” households”, for both ownership and rental have been substantially reinstated from the PPS, (to recognize both household income threshold, and relative sale or rental
price threshold), staff recommend the geography to determine the sale and rental price thresholds be amended from the current wording of “the municipality” to the “regional market area” as in the PPS 2020.
The updated Planning Statement should be revised to address the above noted matters.
3.2 ERO 019-8462: Eliminate support for on-site and local reuse of excess soil
One of the updates to the Planning Statement is to remove the policy that requires, where feasible, on-site and local reuse of excess soil through planning and development approvals. The intent of this policy is to ensure that soil excavated within
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ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
the City is deposited elsewhere in the City and that soil from other jurisdictions is not dumped in the City. This not only allows the City to prevent the importing of potentially contaminated soil from elsewhere, but it also maintains the water balance within a given subwatershed area. If site limitations do not permit soil to be reused on-site, then
excess soil should be relocated within the local area, thereby maintaining an overall
water balance. It is unclear what benefit is served by eliminating this requirement.
The Planning Statement should be revised to reinstate the deleted clause on reuse of excess soil.
4. Additional Comments to the Province
Some of the proposed changes to the Planning Act and the Development Charges Act
reflect the Province “walking back” from changes they previously made. In the spirit of re-evaluating previous legislative changes, it is recommended that the City provide additional comments for the Province to consider.
4.1 ERO 019-8371: Development charge exemption for non-profits
Through Bill 23, the Province exempted non-profit housing developers from paying
development charges. On the surface, this change would appear to provide support to developers of affordable housing. However, while affordable housing is the goal of many non-profit housing developers, there is nothing requiring these developers from constructing all or even part of development for affordable housing. Therefore, it is possible that a wealthy individual or corporation could use a non-profit corporation to
construct luxury condominiums or executive homes, which would be exempt from paying development charges. There are no limits on the compensation paid to the members of the non-profit corporation.
It is recommended that the Province qualify the development charge exemption for non-
profit housing development to only those units that are defined as affordable.
4.2 ERO 019-8369: Restore alternative parkland rate
Through Bill 23, the Province reduced by half the alternative parkland rate that municipalities use to calculate parkland contributions for higher-density developments. In addition to cutting the rate in half, they also capped the maximum contribution based
on the size of the property. Reducing parkland contributions has the effect of reducing
the developer’s costs, but it does so at the cost of limiting parkland in the areas where it is needed the most. The provision of programmable, accessible parkland in strategic locations forms an integral part of developing “complete communities”.
Unlike low density residential areas, residents of high-density developments do not
have personal yards to use outdoors. Instead, they are completely reliant on private
amenity areas offered by the development. Private amenity areas are often highly programmed and may only include limited landscaping, such as rooftop patios. The
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Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 11
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
parkland collected by the City is used to create City parks that can be enjoyed by residents and their visitors as well as the employees and customers of businesses in the area. These businesses are sometimes located in the ground floor of these buildings. City parkland can offer a more naturalized experience and more diverse
programming than private amenity areas and can sometimes be consolidated with other
parkland resources (land or funds) to create a larger park than one development could provide on its own.
It is recommended that the Province consider restoring the previous alternative parkland rate and increasing the maximum parkland caps.
5. Conclusion
Staff have reviewed the proposed legislated changes in the ERO postings, along with the revisions to the draft Provincial Planning Statement. In the interest of time and brevity, only those changes that represent a concern to the City have been listed in this report.
As stated by the Province, the proposed changes are intended to “cut red tape” and
help achieve the Provincial housing target of 1.5 million homes by 2031. While some of the proposed changes will support the City’s ability to expedite development review, and will stem the substantial funding losses from development charges cuts, other changes run counter to an efficient planning process and providing proper municipal governance.
Staff have prepared these comments and recommendations for Council’s endorsement,
to be submitted as the City’s formal comments to the ERO by May 10, 2024.
Attachment:
1. Pre-consultation and Development Application Process – City document
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Subject: Environmental Registry of Ontario Postings: ERO 019-8366, ERO 019-8368, ERO 019-8369, ERO 019-8370, ERO 019-8371, Page 12
ERO 019-8462 Bill 185 and Revisions to Draft Provincial
Planning Statement
Prepared By:
Original Signed By
Paul Wirch, RPP Principal Planner, Policy
Original Signed By
Dean Jacobs, MCIP, RPP
Manager, Policy & Geomatics
Approved/Endorsed By:
Original Signed By
Catherine Rose, MCIP, RPP Chief Planner
Original Signed By
Kyle Bentley, P. Eng.
Director, City Development & CBO
PW:ld
Recommended for the consideration
of Pickering City Council
Original Signed By
Marisa Carpino, M.A. Chief Administrative Officer
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Attachment 1 to Report PLN 13-24
Pre-consultation and Development Application Process
1.Development application process prior to Bill 109 and the introduction of
Application fee refunds.
2.Development application process post-Bill 109 when the Pre-Submission stage
was introduced to avoid Application fee refunds.
3.Development application process post-Bill 185 with the removal of application fee
refunds (supported) and the removal of Pre-Consultation meetings (not
supported).
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