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HomeMy WebLinkAboutBy-law 5455/99TH~ CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 5455/99 Being a by-law to authorize the execution of a Lease Agreement between The Corporation of the Town of Pickering and Shane Coburn respecting Part of Lot 19, Concession 3, Pickering (January 1, 1999 to December 31, 2001) WHEREAS, pursuant to the provisions of subsection 191 (1) Municipal Act, R.S.O. 1990, chapter M.45, the Council of The Corporation of the Town of Pickering may by by-law lease premises owned by the Corporation; NOW THEREFORE, the Council of the Corporation of the Town of Pickering HEREBY ENACTS AS FOLLOWS: The Mayor and Clerk are hereby authorized to execute a Lease Agreement, in the form acceptable to the Town Solicitor for a term ending December 31, 2001, between the Corporation of the Town of Pickering and Shane Cobum. BY-LAW read a first, second and third time and finally passed. ~hiS .lst c~y of !Vlar~, -199.9. Wayne Arihurs, Mayor / Bruce Taylor, Clerk THIS LEASE made pursuant to the provisions of subsection 191(1) of the Municipal Act, R.S.O. 1990, chapter M.45, as of the 1st day of January, 1999, BETWEEN: THE CORPORATION OF THE TOWN OF PICKERING herein called the "Landlord" OF THE FIRST PART, SHANE COBURN herein called the "Tenant" OF THE SECOND PART. In consideration of the rents, covenants and agreements herein contained the Landlord and the Tenant agree as follows: 1. LEASE ANDTERM (1) The Landlord hereby leases to the Tenant those lands consisting of 50,167.64 square metres of rentable area located in Lot 19, Concession 3, Picketing, and comprising that part of Parts 37 and 40, Plan 40R-6934, diagonally hatched on the sketch attached hereto as Schedule A (herein called the "Premises"), for a term (herein called the "Term" ) commencing on the 1st day of January, 1999 and expiring on the 31st day of December, 2001, unless the Term is earlier terminated. (2) If the Tenant continues to occupy the Premises after the expiration of the Term without any further written agreement and without objection by the Landlord, the Tenant shall be a monthly tenant at the rent and (except as to length of tenancy) on the terms and conditions herein set out and the period of such monthly tenancy shall be considered to form part of the Term. (3) If the Landlord, at the end of the Term hereof, determines that a golf-driving range or a miniature golf-putting facility, or both, should continue to be operated from the Premises, then the Landlord shall grant to the Tenant the first fight of refusal to lease the premises, or part thereof, from the Landlord for such purpose, subject to whatever terms and conditions the Landlord may, in its discretion, deem to be appropriate. RENT (1) (2) The amount of the rent payable by the Tenant to the Landlord yearly and every year during the Term, and during any period of overholding, is as follows: (a) Rent in the amount of $17,500 per annum payable in 12 equal monthly installments of $1,458.33 as provided in subsection 2(3). Place of Pa_vment All rent shall be paid by the Tenant to the Landlord in lawful money of Canada at the address of the Landlord set out in section 15 or at such other place as the Landlord shall from time to time designate. (3) Rent shall be an annual rent but shall be payable by the Tenant without any prior demand of the Landlord in equal monthly installments in advance on the first day of each and every calendar month during the Term. GENERAL COVENANTS (1) (2) The Landlord covenants with the Tenant: (a) (b) for quiet enjoyment; and to observe and perform all covenants and obligations of the Landlord herein. The Tenant covenants with the Landlord: (a) (b) to pay rent; and to observe and perform all covenants and obligations of the Tenant herein. USE AND OCCUPANCY OF PREMISES The Tenant covenants with the Landlord: (a) Required and Prohibited Uses To use the Premises only for the purpose of carrying on the business of, (i) a golf-driving range located at least 85 metres west of Brock Road and at least 6.1 metres south of the northerly boundary of the Premises, (ii) a miniature golf-putting facility located at least 6.1 metres south of the northerly boundary of the Premises, and (ii) an accessory parking area located between the golf-driving range and Brock Road and south of the miniature golf-putting facility. (b) Active Conduct of Business To continuously, actively and diligently carry on the business described in subclause (a) on the whole of the Premises in a reputable manner and in compliance with all the provisions of this Lease; Hours of Operation and Illumination To carry on the business only between the hours of 6:30 a.m. and 12:00 midnight, local time, and not to illuminate any sign or any part of the Premises not contained within a building or structure, except for security purposes, between 12:01 a.m. and 6:30 a.m., local time; Business Name To carry on business on the Premises under the name and style of Pickering Driving Range and under no other name or style unless approved in writing by the Landlord; Appearance. etc. of Premis~ To maintain and operate the Premises so that they shall always be of good appearance and suitable for the proper operation of the business required to be carded on therein and comparable with the standards of the best such business, and in so doing, (i) to maintain screens, suitable to the Landlord and during the operation of the business, (c) (d) (e) 2 along the northerly boundary of the Premises where that boundary abuts the golf- driving range tees, and between all tees intended for the driving of golf balls in a direction perpendicular to Brock Road, at the Tenant's expense, (ii) to keep, renew, replace and decorate, as may fi.om time to time be necessary for the purpose, all buildings, structures, screens, fences and signs on the Premises and all fixtures, furnishings, chattels and decorations therein, (iii) to keep the Premises orderly, tidy, clean and clear of all refuse, and (iv) to store all refuse on the Premises in receptacles such as to provide proper storage and to facilitate its removal, and to arrange for the regular removal of such refuse. (f) By-Laws To comply at its own expense with all municipal, federal and provincial sanitary, fire and safety laws, regulations and requirements pertaining to the occupation and use of the Premises, the condition of the Leasehold Improvements, trade fixtures, furniture and equipment installed by or on behalf of the Tenant therein and the making by the Tenant of any repairs, changes or improvements therein. 5. REPAIR AND DAMAGE The Tenant covenants with the Landlord to repair at the Tenant's own cost the Premises, including Leasehold Improvements and trade fixtures, reasonable wear and tear excepted. The Landlord may enter and view the state of repairs and the Tenant will repair according to notice in writing, reasonable wear and tear excepted. If the Tenant shall fail to repair after notice to do so, the Landlord may effect the repairs and collect the cost thereof fi.om the Tenant as additional rent pursuant to section 13 hereof. 6. TAXES The Tenant covenants with the Landlord to pay promptly when due to the taxing authority or authorities having jurisdiction all taxes, rates, duties, levies and assessments whatsoever, whether municipal, parliamentary or otherwise, levied, imposed or assessed in respect of the Premises and any and every business carried on in the Premises by the Tenant, or in respect of the use or occupancy thereof (including licence fees and including without limitation any GST which may be exigible). 7. LICENCES. ASSIGNMENT AND SUBLETTING (1) Licence, The Tenant shall not permit any part of the Premises to be used or occupied by any persons other than the Tenant and the employees of the Tenant, or permit any part of the Premises to be used or occupied by any licensee or concessionaire, or permit any persons to be upon the Premises other than the Tenant, its employees, customers and others having lawful business with it. (2) Assignment and Subletting The Tenant may assign this Lease or sublet all or any part of the Premises conditional on the approval of the Landlord. 3 SIGNS The Tenant shall be permitted to maintain an identification sign at or near the frontage of the Premises on Brock Road. Such sign shall contain only the name or style under which the Tenant is required to carry on business under the provisions of this Lease unless the Landlord shall otherwise approve in writing, and the sign including the size, location, arrangement and type of lettering, its colour, illumination and all its other appearance and design features shall be subject to the prior written approval of the Landlord. Otherwise, except with the prior written consent of the Landlord, the Tenant shall not paint, display, inscribe, place or affix any sign, symbol, notice, lettering or display of any kind anywhere outside the Premises or within the Premises so as to be visible from the outside of the Premises with the exception of lawful signs erected on the Tenant's lands adjacent to the Premises. Should the Landlord at any time object to any sign, symbol, notice, lettering or display either affixed to or visible from the outside of the Premises, the Tenant shall remove the same forthwith upon request. LEASEHOLD IMPROVEMENTS AND TRADE FIXTURES (1) Definition of Leasehold Improvemellt$ For purposes of this Lease, the term "Leasehold Improvements" includes without limitation all fixtures, improvements, installations, alterations and additions from time to time made, erected or installed by or on behalf of the Tenant in or on the Premises, and whether or not moveable, with the exception of trade fixtures and furniture and equipment not of the nature of fixtures. (2) Installation of Im_nrovements and Fixtures The Tenant shall not make, erect, install or alter any Leasehold Improvements or trade fixtures, including lighting, in or on the Premises without having first obtained the Landlord's written approval. The Tenant's request for any approval hereunder shall be in writing and accompanied by an adequate description of the contemplated work and, where appropriate, working drawings and specifications thereof. All work to be performed in the Premises shall be performed by competent contractors and subcontractors of whom the Landlord shall have approved, such approval not to be unreasonably withheld. All such work shall be subject to inspection by and the reasonable supervision of the Landlord, and shall be performed in accordance with any reasonable conditions or regulations imposed by the Landlord and completed in a good and workmanlike manner in accordance with the description of work approved by the Landlord. (3) Liens and Encumbrances on Improvements and Fixtures In connection with the making, erection, installation or alteration of Leasehold Improvements and trade fixtures and all other work or installations made by or for the Tenant in or on the Premises, the Tenant shall comply with all the provisions of the Construction Lien Act, and other statutes from time to time applicable thereto, including any provision requiring or enabling the retention by way of hold-back of portions of any sums payable, and except as to any such hold- back shall promptly pay all accounts relating thereto. The Tenant shall not create any mortgage, conditional sale agreement or other encumbrance in respect of its Leasehold Improvements or, without the consent of the Landlord, with respect to its trade fixtures nor shall the Tenant take any action as a consequence of which any such mortgage, conditional sale agreement or other encumbrance would attach to the Premises or any part thereof. If and whenever any mechanics' or other lien for work, labour, services or materials supplied to or for the Tenant or for the cost of which the Tenant may be in any way liable or claims therefor shall arise or be filed or any such mortgage, conditional sale agreement or other encumbrance shall attach, the Tenant shall within twenty (20) days after receipt of notice thereof procure the discharge thereof, including any certificate of action registered in respect of ar~y lien, by payment or giving security or in such other manner as may be required or permitted by law, and failing which the Landlord may in addition to all other remedies hereunder avail itself of its remedy under section 12 hereof and may make any payments required to procure the discharge of any such liens or encumbrances, shall be entitled to be reimbursed by the Tenant as provided in section 12, and its right to reimbursement shall not be affected or impaired if the Tenant shall then or subsequently establish or claim that any lien or encumbrance so discharged was without merit or excessive or subject to 10. (4) any abatement, set-off or defence. This subsection shall not prevent the Tenant from mortgaging or encumbering its chattels, furniture or equipment not of the nature of fixtures. Removal of Improvements and Fixture~ All Leasehold Improvements, trade fixtures, furniture and equipment shall be removed by the Tenant from the Premises either during or at the expiration or sooner termination of the Term. The Tenant shall, in the case of every removal either during or at the end of the Term, make good at the expense of the Tenant any damage caused to the Premises by the installation and removal. INSURANCE AND LIABILITY (1) Tenant's Insurance The Tenant shall take out and keep in force during the Term: (a) comprehensive insurance of the type commonly called general public liability, which shall include coverage for personal liability, contractual liability, tenants' legal liability, non-owned automobile liability, bodily injury, death and property damage, all on an occurrence basis with respect to the business can/ed on in or from the Premises and the Tenant's use and occupancy of the Premises, with coverage for any one occurrence or claim of not less than Five Million Dollars ($5,000,000), or such other amount as the Landlord may reasonably require upon not less than six months notice at any time during the Term, which insurance shall include the Landlord as a named insured and shall protect the Landlord in respect of claims by the Tenant as if the Landlord were separately insured; and Co) insurance against such other perils and in such amounts as the Landlord may from time to time reasonably require upon not less than 90 days written notice, such requirement to be made on the basis that the required insurance is customary at the time for prudent tenants of similar properties. All insurance required to be maintained by the Tenant hereunder shall be on terms and with insurers to which the Landlord has no reasonable objection. Each policy shall contain a waiver by the insurer of any rights of subrogation or indemnity or any other claim over to which the insurer might otherwise be entitled against the Landlord or the agents or employees of the Landlord, and shall also contain an undertaking by the insurer that no material change adverse to the Landlord or the Tenant will be made, and the policy will not lapse or be cancelled, except after not less than thirty days written notice to the Landlord of the intended change, lapse or cancellation. The Tenant shall furnish to the Landlord, if and whenever requested by it, certificates or other evidences acceptable to the Landlord as to the insurance from time to time effected by the Tenant and its renewal or continuation in force, together with evidence as to the method of determination of full replacement cost of the Tenant's Leasehold Improvements, trade fixtures, furniture and equipment, and if the Landlord reasonably concludes that the full replacement cost has been underestimated, the Tenant shall forthwith arrange for any consequent increase in coverage required hereunder. If the Tenant shall fail to take out, renew and keep in force such insurance, or if the evidences submitted to the Landlord pursuant to the preceding sentence are unacceptable to the Landlord or no such evidences are submitted within a reasonable period after request therefor by the Landlord, then the Landlord may give to the Tenant written notice requiting compliance with this section and specifying the respects in which the Tenant is not then in compliance with this section. If the Tenant does not, within 72 hours or such lesser period as the Landlord may reasonably require having regard to the urgency of the situation, provide appropriate evidence of compliance with this section, the Landlord may, but shall not be obligated to, obtain some or all of the additional coverage or other insurance which the Tenant shall have failed to obtain, without prejudice to any other rights of the Landlord under this Lease or otherwise, and the Tenant shall pay all premiums and other expenses incurred by the Landlord in that connection as additional rent pursuant to section 12 hereof. 5 11. 12. (2) (3) Limitation of Landlord's Liability_ The Landlord shall not be liable for any bodily injury or death of, or loss or damage to any property belonging to the Tenant or its employees, invitees or licensees or any other person in, or about the Premises. Indemnity of Landlord The Tenant shall indemnify and save harmless the Landlord in respect off (a) all claims for bodily injury or death, property damage or other loss or damage arising from the conduct of any work by or any act or omission of the Tenant or any agent, employee, contractor, invitee or licensee of the Tenant, and in respect of all costs, expenses and liabilities incurred by the Landlord in connection with or arising out of all such claims, including the expenses of any action or proceeding pertaining thereto; Co) any loss, cost, expense or damage suffered or incurred by the Landlord arising from any breach by the Tenant of any of its covenants and obligations under this Lease; and (c) all costs, expenses and reasonable legal fees that may be incurred or paid by the Landlord in enforcing against the Tenant the covenants, agreements and representations of the Tenant set out in this Lease. ACCESS OF LANDLORD (1) Inspection and Access The Landlord shall be permitted at any time and from time to time to enter and to have its authorized agents, employees and contractors enter the Premises for the purposes of inspection, maintenance or making repairs, and the Tenant shall provide free and unhampered access for the purpose, and shall not be entitled to compensation for any inconvenience, nuisance or discomfort caused thereby, but the Landlord in exercising its fights hereunder shall proceed to the extent reasonably possible so as to minimize interference with the Tenant's use and enjoyment of the Premises. (2) Exhibiting Premises The Landlord and its authorized agents and employees shall be permitted entry to the Premises during the last six ( 6 ) months of the Term for the purpose of exhibiting them to prospective tenants. DELAY AND NON-WAIVER (1) Unavoidable Delay Except as herein otherwise expressly provided, if and whenever and to the extent that either the Landlord or the Tenant shall be prevented, delayed or restricted in the fulfillment of any obligation hereunder in respect of the making of any repair, the doing of any work or any other thing, other than the payment of rent or other monies due, by reason of: (i) strikes or work stoppages; (ii) inability to obtain any material, service, utility or labour required to fulfill such obligation; (iii) any statute, law or regulation of, or inability to obtain any permission from, any government authority having lawful jurisdiction preventing, delaying or restricting such fulfillment; or 6 (2) (iv) other avoidable occurrence, the time for fulfillment of such obligation shall be extended during the period in which such circumstance operates to prevent, delay or restrict the fulfillment thereof, and the other party shall not be entitled to compensation for any inconvenience, nuisance or discomfort thereby occasioned. Waiver If either the Landlord or the Tenant shall overlook, excuse, condone or suffer any default, breach or non-observance by the other of any obligation hereunder, this shall not operate as a waiver of such obligation in respect of any continuing or subsequent default, breach or non-observance, and no such waiver shall be implied but shall only be effective if expressed in writing. 13. REMEDIES OF LANDLORD (1) In addition to all fights and remedies of the Landlord available to it in the event of any default hereunder by the Tenant through improper compliance or non-compliance with any obligation arising either under this or any other provision of this Lease or under statute or the general law the Landlord, (a) shall have the right at all times to remedy or attempt to remedy any default of the Tenant, and in so doing may make any payments due or alleged to be due by the Tenant to third parties and may enter upon the Premises to do any work or other things therein, and in such event all expenses of the Landlord in remedying or attempting to remedy such default shall be payable by the Tenant to the Landlord as additional rent forthwith upon demand; Co) shall have the same rights and remedies in the event of any non-payment by the Tenant of any amounts payable by the Tenant under any provision of this Lease as in the case of a non-payment of rent; and (c) if the Tenant shall fail to pay any rent or other amount from time to time payable by it to the Landlord hereunder promptly when due, shall be entitled, if it shall demand it, to interest thereon at a rate of three per cent (3%) per annum in excess of the minimum lending rate to prime commercial borrowers from time to time current at the Town's bank from the date upon which the same was due until I actual payment thereof. (2) Remedies Cumulative The Landlord may from time to time resort to any or all of the rights and remedies available to it in the event of any default hereunder by the Tenant, through improper compliance or non- compliance with any obligation arising either under any provision of this Lease or under statute or the general law, all of which rights and remedies are intended to be cumulative and not alternative, and the express provisions hereunder as to certain rights and remedies are not to be interpreted as excluding any other or additional rights and remedies available to the Landlord by statute or the general law. (3) Right of Re-Entry on Default or Termination If and whenever the rent hereby reserved or other monies payable by the Tenant or any part thereof shall not be paid on the day appointed for payment thereof, whether lawfully demanded or not, and the Tenant shall have failed to pay such rent or other monies within five (5) business days after the Landlord shall have given to the Tenant notice requiring such payment, or if the Tenant shall breach or fail to observe and perform any of the covenants, agreements, provisos, conditions and other obligations on the part of the Tenant to be kept, observed or performed hereunder, or if this Lease shall have become terminated pursuant to any provision hereof, or if the Landlord shall have become entitled to terminate this Lease and shall have given notice terminating it pursuant to any provision hereof, then and in every such case it shall be lawful for 7 14. 15. (4) (5) the Landlord thereafter to enter into and upon the Premises or any part thereof in the name of the whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding. Termination and Re-Enll'y If and whenever the Landlord becomes entitled to re-enter upon the Premises under any provision of this Lease the Landlord, in addition to all other tights and remedies, shall have the tight to terminate this Lease forthwith by leaving upon the Premises notice in writing of such termination. Pa_vment of Rent. etc. on Termination Upon the giving by the Landlord of a notice in writing terminating this Lease, whether pursuant to this or any other provision of this Lease, this Lease and the Term shall terminate, rent and any other payments for which the Tenant is liable under this Lease shall be computed, apportioned and paid in full to the date of such termination, and the Tenant shall immediately deliver up possession of the Premises to the Landlord, and the Landlord may re-enter and take possession of them. IMPROPER USE OF PREMISES: BANKRUPTGy In case without the written consent of the Landlord the Premises shall be used by any other persons than the Tenant or for any purpose other than that for which they were leased, or occupied by any persons whose occupancy is prohibited by this Lease, or if the Premises shall be vacated or abandoned, or remain unoccupied for fifteen (15) days or more while capable of being occupied; or if the balance of the Term or any of the goods and chattels of the Tenant shall at any time be seized in execution or attachment, or if the Tenant shall make any assignment for the benefit of creditors or any bulk sale, become bankrupt or insolvent or take the benefit of any statute now or hereafter in force for bankrupt or insolvent debtors, then in any such case the Landlord may at its option terminate this Lease by leaving upon the Premises notice in writing of such termination and thereupon, in addition to the payment by the Tenant of rent and other payments for which the Tenant is liable under this Lease, rent for the current month and the next ensuing three (3) months shall immediately become due and paid by the Tenant. MISCELLANEOUS PROVISIONS (1) Registration of Lease Neither the Tenant nor the Landlord shall register this Lease or a notice of this Lease. (2) Lease Constitutes Entire Agreement There are no covenants, representations, warranties, agreements or conditions express or implied, collateral or otherwise forming part of or in any way affecting or relating to this Lease save as expressly set out in this Lease; this Lease constitutes the entire agreement between the Landlord and the Tenant and may not be modified except as herein explicitly provided or except by agreement in writing executed by the Landlord and the Tenant. (3) Notices Any notice required or contemplates by any provision hereof shall be given in writing, and (a) if to the Landlord, either delivered to the Town Clerk personally or mailed by prepaid registered mail addressed to the Town Clerk at Picketing Civic Complex, One The Esplanade, Picketing, Ontario L1V 6K7; and (b) if to the Tenant, either delivered to Shane Cobum personally or mailed by prepaid registered mail addressed to Shane Cobum at 790 Krosno Boulevard, Picketing, Ontario LlW 1G6. Every such notice shall be deemed to have been given when delivered or, if mailed as aforesaid, upon the day after the day it is mailed. Either party may from time to time by notice in writing to the other, designate another address in Canada as the address to which notices are to be mailed to it. (4) Interpretation All of the provisions of this Lease are to be construed as covenants and agreements as though words importing such covenants and agreements were used in each separate provision hereof, and the captions appearing for the provisions of this Lease have been inserted as a matter of convenience and for reference only and in no way define, limit or enlarge the scope or meaning of this Lease or of any provision hereof. (5) Extent of Lease Obligations This Lease and everything herein contained shall inure to the benefit of and be binding upon the respective heirs, executors, administrators and other legal representatives, as the case may be, of each party hereto, and every reference herein to any party hereto shall include the heirs, executors, administrators, and other legal representatives of such party. IN WITNESS WHEREOF the Landlord has hereunto affixed its Corporate Seal attested to by the hands of its authorized officers, and the Tenant has affixed his hand and seal. SIGNED, SEALED AND DELIVERED THE CORPORATION OF THE TOWN OF PICKERING Wayne Arthurs, Mayor Bruce Taylor, Clerk in the presence of Shane Cobum L8301 9