HomeMy WebLinkAboutBy-law 3667/91THE CORPORATION OF T~OWN OF PI~
3667/91
Being a by-law to attthorize the acquisition, by
assignment, of the lease of the former Liverpool Branch
of the Town of Pickering Public Library at the Maple
Ridge Shopping Centre fi~r the period .fi'om March 1,
1991 to December 31, 1992, both hwlusive, for the
purposes of the relocation of the Fire Department's Fire
Prevention Division, and the e.xecution of an Assignment
of Lease arid Consent Thereto to effect such acquisition.
WHEREAS The Town of Pickering Public Library Board leases from Vinjohn Developments Limited
2,882 square feet of space at the Maple Ridge Shopping Cemre for the Board's former Liverpool
Branch, which lease expires on December 31, 1992; and
WHEREAS TI~ Town of Picketing Public Librat~ Board has closed its Liverpool Branch and no longer
require? the leased space for its purposes, anti is prepared to assign to the Town its rights and
ohligat~ons under that lease so that the Town may relocate its Fire Department's Fire Prevention
Division; and
WHEREAS, pursuant to the provisions of section 193 of the Municipal Act, R.S.O. 1980, chapter 302,
tl~e Council of The Corporation of the Town of Picketing may pass by-laws for acquiring interests in
lands for municipal purposes;
NOW THEREFORE, the Council of The Corporation of the Town of Picketing HEREBY ENACTS AS
FOLLOWS:
The Corporation of the Town of Picketing shall acquire, for the period from March I, 1991 to
December 31, 1992, both inclusive, 2,882 square feet of office-type space from The Town of
Picketing Public Library Board, by assignment of the latter's lease of the former Liverpool
Branch of the Town of Picketing Public Library at the Maple Ridge Shopping Centre, being
premises located at Block l, Plan 40M-1236, Pickerh~g, for the purposes of the relocation of
the Town Fire Department's Fire Prevention Division.
The Mayor and Clerk are hereby authorized to execute an Assigmnent of Lease and Consent
Thereto, in the form attached hereto as Schedule I, between The Town of Picketing Public
Library Board, as Assignor, The Corporation of the Town of Pickeriog, as Assignee, and
Vinjohn Developments Limited, in order to effect the acquisition referred to in section 1, above.
BY-LAW read a first, second and third thne and finally passed this IBth day of February, 1991.
Brace Taylor, Clerk
THE CORPORATION_OF T][I~_TgWN OF PIC!~IIN~i
~_Y-_~A~ N~. 3667/91
Being a by-law to attthorize the acquisition, by
assignment, of the lease of the former Liverpoal Branch
of the Town of Pickering Public Library at the Maple
Ridge Shopping Centre for the period .fi'om March 1,
1991 to December 31, 1992, both inclusive, for the
purposes of the relocation of the Fire Departntent' s Fire
Prevention Division, attd the e.~ecution of att Assignment
of Lease attd Consent Thereto to effect such acquisition.
WHEREAS The Town of Picketing Public Library Board leases from Vinjohn Deveh,pments Limited
2,882 square feet of space at the Maple Ridge Shopping Cemre for the Board's fomaer Liverpool
Branch, which lease expires on December 31, 1992; and
WHEREAS The Town of Picketing Public Library Board has closed its Liverpool Branch and no longer
requires the leased space for its purposes, and is prepared to assign to the Town its rights and
ohligatlons under that lease so that the Town may relocate its Fire Departanent's Fire Prevention
Division; and
WHEREAS, pursuant to the provisions of section 193 of the Municipal Act, R.S.O. 1980, chapter 302,
the Council of The Corporation of the Town of Picketing may pass by~laws for acquiring interests in
lands for municipal purposes;
NOW THEREFORE, the Council of The Corporation of the Town of Pickering HEREBY ENACI'S AS
FOLLOWS:
'l]~e Corporation of the Town of Pickering shall acquire, for the period from March I, 1991 to
December 31, 1992, both inclusive, 2,882 square feet of office-type space from The Town of
Picketing Public Library Board, by assignment of the latter's lease of the former Liverpool
Branch of the Town of Picketing Public Library at the Maple Ridge Shopping Centre, being
premises located at Block 1, Plan 40M-1236, Picketing, for the purposes of the relocation of
the Town Fire Department's Fire Prevention Division.
The Mayor and Clerk are hereby aulhorized to execute an Assigmnent of Lease and Consent
Thereto, in the form attached hereto as Schedule I, between The Town of Picketing Public
Library Board, as Assignor, The Corporation of the Town of Picketing, as Assignee, and
Vinjolm Developments Lhnited, in order to effect the acquisition refen'ed to in section I. above.
BY-LAW read a first, second and third thne and finally passed this 18th day of February, 1991.
Bmce Taylor, Clerk
Schedule I
THIS ASSIGNMENT OF LEASE AND CONSENT THERETO made as of March 1, 1991,
Bt~'r~¥EEN:
~IF. CT_Q.3Y_I~I_Q~ PICKERING PUBLIC LIBRARY BOARD
herein called the "Assignor"
OF THE FIRST PART,
and
THE CORPORATION OF THE TOWN OF PICKERING
herein called the "Assignee"
OF THE SECOND PART,
and
VINJOHN DEVELOPMENTS LIMITED,
an Ontario corporation
carrying on business as
MAPLE RIDGE SHOPPINO CENTRE
herein called the "Landlord"
OF THE THIRD PART.
WHEREAS, on or about July 15, 1982, by written Lease (a copy of which is attached hereto as
Schedule A), as amended by agreement dated December 31, 1987 (a copy of which is attached hereto as
Schedule B), which documents together are herein referred to as the "Lease", the Landlord leased to the
Assignor the premises more particularly described in the Lease and comprising 2,882 square feet of
space in the shopping centre, located on Block,, 1, Plan 40M-1236, Picketing, and known as the Maple
Ridge Shopping Centre (the Leased Premises ), for a term comprising two five years periods, the first
period being from January l, 1983 to and including December 31, 1987, and the second period being
from January 1, 1988 to and including December 31, 1992, subject to certain terms and conditions; and
WHEREAS one such term and condition (paragraph 12) provides for the assignment of the Lease by the
Assignor with the prior written consent of the Landlord, which consent may be arbitrarily withheld,
except during the last two years of the term, when such consent shall not unreasonably be withheld; and
WHEREAS the Assignor has applied to the Landlord for consent to assign the Lease to the Assignee to
enable the Assignee to relocate the Fire Prevention Divisioo of its Fire Department to the Leased
Premises for the duration of the term of the Lease, that is from March 1, 1991 to and including
December 31, 1992; and
WHEREAS the Landlord has agreed to grant its consent to such assignment provided the Assignor and
the Assignee execute this Agreement;
NOW THEREFORE the Assignor, the Assignee and the Landlord, in consideration of the sum of $2.00
now paid by each to the others, receipt of which by each is hereby acknowledged, hereby agree as
follows:
The Assignor hereby assigns to the Assignee, effective March 1, 1991, the Assignor's interest in
the Leased Premises, together with the unexpired residue of the term of years and the Lease, and
all benefits to be derived therefrom, subject to the payment of rent and the observance and
performance of the covenants, provisos and conditions on the part of the tenant contained therein.
The Assignor covenants with the Assignee that,
(a) the Lease is a valid and subsisting Lease,
(b) the rent reserved thereby has been duly paid to and including February 28, 1991,
(c) the covenants, provisos and conditions thereof on the part of the tenant have been duly
observed and performed to and including February 28, 1991,
(d) the Assignor is entitled to assign the Lease,
(e) subject to the payment of rent and the observance and performance of the covenants,
provisos and conditions of the Lease, the Assignee may enjoy the Leased Premises for
the residue of the term of years, without interruption by the Assignor or any person
claiming through it, and
(f) the Assignor shall at all times hereafter at the request of the Assignee execute such
further assurances in respect of this assignment as the Assignee may require.
The Assignee covenants with the Assignor that the Assignee will, commencing March 1, 1991
and throughout the residue of the term of years,
(a) pay the rent reserved at the times and in the manner provided in the Lease,
(b) observe and perform the covenants, provisos and conditions on the part of the tenant
therein set forth, and
(c) indemnify and save harmless the Assignor from all actions, suits, costs, losses, damages
and expenses in respect of such covenants, provisos and conditions.
The Assignee covenants with the Landlord that, in consideration of the Landlord granting its
consent to the assignment herein of the Lease by the Assignor to the Assignee, commencing
March 1, 1991 and throughout the residue of the Term of years,
(a)
the Assignee will pay the rent reserved in the Lease and observe and perform the
covenants, provisos and conditions on the part of the tenant contained therein, and
(b)
the Landlord will he entitled to all remedies against the Assignee in respect of
non-payment of rent and breaches of covenants, provisos and conditions as if the
Assignee were the tenant named in the Lease.
The Landlord hereby,
(a)
consents to the assignment herein of the Lease by the Assignor to the Assignee effective
March 1, 1991, and
(h)
releases the Assignor from all liability in respect of breaches of the covenants, provisos
and conditions of the Lease or otherwise arising from the Lease as of midnight on
February 28, 1991.
For the purposes of Paragraph 17(7) (Notices) of the Lease, the address of each Party hereto is as
follows:
(a) Assignor
Attention: Chief Executive Officer
(by mail)
Post OfficeBox 368
Pickering, Ontario LIV 2R6
(in person)
Picketing Central Library
One The Esplanade
Picketing, Ontario
(b)
(c)
Assignee
(by mail
or
in person)
Landlord
(by mail
or
in person)
Attention: Town Clerk
Pickering Civic Complex
One The Esplanade
Picketing, Ontario LIV 6K7
Attention: William L. Mandel, Q.C.
Bratty & Partners
Barristers and Solicitors
20th Floor, Madison Centre
4950 Yonge Street
North York, Ontario M2N 6KI
IN WITNESS WHEREOF the Parties hereto have hereunto affLxed theft respective Corporate Seals,
duly attested by their authorized officers.
SIGNED, SEALED AND DELIVERED
THE TOWN OF PICKERING PUBLIC LIBRARY BOARD
Gwen Mowbray, Chaff
Sandy Cameron, Chief Executive Officer
THE CORPORATION OF THE TOWN OF PICKERING
Wayne Atthurs, Mayor
Brace Taylor, Clerk
VIN$OHN DEVELOPMENTS LIMITED
, Authorized Signing Officer
3
SCHEDULE A
NET LEASE
TABLE OF CONTENTS
SECTION 1
DEFINITIONS
SECTION 2
NET LEASE
Paragraph 2(1) Intent
SECTION 3
GRANT AND TERM
Paragraph 3(1)
Paragraph 3(2)
Paragraph 3(3)
Paragraph 3(4)
Paragraph 3(5)
Leased Premises 5
Use of Additional Areas 6
Commencement and Ending
Date of Term 6
Excuse of Landlord's Performance 6
Certification and Acknowledgement 6
SECTION 4
RENT
Paragraph 4(1)
Paragraph 4(2)
Paragraph 4(3)
Paragraph 4(4)
Paragraph 4(5)
Covenant to Pay
Minimum Rent
Arbitration
Minimum Rent for Second
Five Year Term
Rent and Additional Rent
Past Due
SECTION 5
TAXES
Paragraph 5(1)
Paragraph 5(2)
Paragraph 5(3)
Paragraph 5(4)
Taxes Payable by Landlord
Business Taxes and Other Taxes
of Tenant
Real Property Taxes
Pro Rata Adjustment
SECTION 6
COMMON AREAS AND FACILITIES AND SHOPPING CENTRE USE AND COST
Paragraph 6(1)
Paragraph 6(2)
Paragraph 6(3)
Paragraph 6(4)
Paragraph 6(5)
Control of Common Areas and
Facilities and Shopping Centre
by Landlord
License
Parking
Tenant to bear Proportionate
Share of Expense
Payment of Tenant's Share
SECTION 7
UTILITIES - HEATING, VENTILATIIIG AND AIR-CONDITIONING
Paragraph 7(1)
Paragraph 7(2)
Utility Charges
Heating, Ventiliating and
Air-Conditioning
SECTION 8
INSURANCE AND INDEMNITY
Page Number
4
8
8
8
9
9
10
10
11
12
13
13
Paragraph 8(1) Tenant's Insurance 13
-2 -
Paragraph 8(2)
Paragraph 8(3)
Paragraph 8(4)
Paragraph 8(5)
Paragraph 8(6)
Increase in Insurance Premiums
Cancellation of Insurance
Loss and Damage
Landlord's Insurance
Indemnification of Landlord
SECTION 9
USE OF PREMISES
Paragraph g (1)
Paragraph 9 (2)
Paragraph 9 (3)
Paragraph 9 (4)
Paragraph 9 (5)
Use of Premises
Prohibited Activities
Conduct of Business
Observance of Law
Licences and Concessions
SECTION 10
MAINTENANCE, REPAIR AND ALTERATIONS TO THE LEASED PREMISES
Paragraph 10(1)
Paragraph 10(2)
Paragraph 10(3)
Paragraph 10(4)
Paragraph 10(5)
Paragraph 10(6)
Paragraph 10(7)
Paragraph 10(8)
Paragraph 10(9)
Paragraph 10(10)
Paragraph 10(11)
Paragraph 10(12)
Paragraph 10(13)
Maintenance and Repairs by
Tenant
Landlord's approval and
Designated Tradesmen
Repair on Notice
Surrender of Leased Premises
Repair where Tenant at Fault
Tenant not to Overload Utility
Facilities
Not to Overload Floors
Plumbing Facilities
Removal and Restoration by
Tenant
Notice by Tenant
Tenant shall Discharge all Liens
Signs and Advertising
Pest Extermination
SECTION 11
DAMAGE AND DESTRUCTION
Paragraph 11(1)
Paragraph 11(2)
Paragraph 11(3)
Destruction of Leased Premises
Destruction of Shopping Centre
Architect's Certificate
SECTION 12
ASSIGNMENT AND SUBLETTING
Paragraph 12(1)
Paragraph 12(2)
Paragraph 12(3)
Paragraph 12(4)
Consent Required
Landlord's Option
Advertising
Assignment by Landlord
SECTION 13
ACCESS AND ALTERATIONS
Paragraph 13{1)
Paragraph 13(2)
Right of Entry
Excavation
SECTION 14
STATUS STATEMENT, ATTORNMENT AND SUBORDINATION
Paragraph 14(1)
Paragraph 14(2)
Paragraph 14{3)
Paragraph 14(4)
Status Statement
Attornment
Subordination
Execution of Instruments
14
15
15
15
16
16
16
17
18
18
18
18
19
19
19
20
20
20
20
20
20
21
21
21
22
22
23
23
23
24
24
24
24
25
25
25
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DEFAULT
Paragraph 15(1)
Paragraph 15(2)
Paragraph 15(3)
Paragraph 15(4)
Paragraph 15(5)
Paragraph 15{6)
Paragraph 15(7)
RULES AND REGULATIONS
Paragraph 16(1)
MISCELLANEOUS
Paragraph 17(1
Paragraph 17(2
Paragraph 17(3
Paragraph 17(4
Paragraph 17(5
Paragraph 17(6
Paragraph 17(7
Paragraph 17(8)
Paragraph 17(9)
Paragraph 17(10)
Paragraph 17(11)
Paragraph 17(12)
Paragraph 17(13)
Paragraph 17(14)
Paragraph 17(15)
Paragraph 17(16)
Paragraph 17(17)
SCHEDULE ATTACHED
SECTION 15
Right to Re-Enter
Right to Relet
Expenses
Removal of Chattels
No Distress
Landlord May Cure Tenant's
Default and/or Perform
Tenant's Covenants
Additional Rent
SECTION 16
Rules and Regulations
SECTION 17
Overholding - No Tacit Renewal
Successors
Waiver
Accord and Satisfaction
Entire Agreement
Force Majeure
Notices
Captions and Paragraph Numbers
Extended Meanings
Partial Invalidity
No Option
Registration
Rider
Compliance with The Planning Act
Governing Law
Time of Essence
Quiet Enjoyment
Description of Shopping Centre
Site Plan
Rules and Regulations
25
26
27
27
27
27
28
28
28
29
29
29
29
29
30
30
3O
3O
31
31
31
31
31
31
31
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THIS INDENTURE made the day of
iN PURSUANCE OF THE SHORT FORMS OF LEASE ACT
BETWEEN:
, 1982
VINJOHN DEVELOPMENTS LIMITED, a corporation duly
incorporated pursuant to the laws of the Province of
Ontario, carrying on business as
MAPLE RIDGE SHOPPING CENTRE
hereinafter called the "Landlord"
OF THE FIRST PART
- and -
THE TOWN OF PICKERING PUBLIC LIBRARY BOARD
hereinafter called the "Tenant"
OF THE SECOND PART
SECTION i
DEFINITIONS
1(1) "Architect" means the architect from time to time named by the
Landlord; as to any architect's certificate provided for in this Lease,
the decision of the Architect in his certificate shall be final and
being on all the parties hereto.
1(2) "Common Areas and Facilities" means all that part of the
Shopping Centre which is not intended to be leased to tenants of the
Shopping Centre, including, without limitation, facilities, utilities,
improvements, equipment and installations which are provided or
designated (and which may be changed) from time to time by the Landlord
for the use by or benefit of the Tenant, its employees, customers and
other invitees in common with others entitled to the use or benefit of
such areas, facilities, improvements, equipment and installations in the
manner and for the purposes permitted by this Lease.
Without limiting the generality of the foregoing, "Common
Areas and Facilities" shall include Common Areas and Facilities.
(i)
"Common Areas and Facilities" means the areas and facilities
exterior to the buildings from time to time provided by the
Landlord in or near the Shopping Centre to serve the Shopping
Centre including without limitation, the roof, outside bearing
walls, exterior, weather walls and other structural portions
of the said buildings; all parking areas; access roads;
employee parking areas; truck courts; driveways; loading
areas; pedestrian sidewalks; landscaped or planted areas
exterior to the buildings; bus stops; and the equipment,
fixtures, general signs, pipes, electrical lighting, plumbing
and drainage and other mechanical installations and services
and all utilities related thereto.
1(3) "Land Surveyor" means an accredited land surveyor from time to
time named by the Landlord; as to any Land Surveyor's certificate
provided for in this Lease, the decision of the Land Surveyor in his
certificate shall be final and binding on all the parties hereto.
t(4) "Leased Premises" means the premises demised to the Tenant
referred to and described in paragraph 3 (1) hereof.
1(5) "Minimum Rent" means the rent payable by the Tenant pursuant
to the provisions of paragraph 4 (2) hereof.
-5-
1(6) "Mortgagee" means the mortgagee or the trustee for the
bondholders as the case may be.
1(7) "Proportionate Share" means a ratio to be determined as
follows:
(il
In respect of Outside Common Areas and Facilities, the ratio
shall have as the numerator the rentable area of the Leased
Premises and as the denominator, the rentable area of the
Shopping Centre.
1(8) "Rentable Area of the Leased Premises" means the area
(expressed in square feet) of all floors of the Leased Premises
certified by the Architect or Land Surveyor and measured from the
exterior face of all exterior walls, doors and windows (including walls,
doors and windows separating the Leased Premises from adjoining premises
intended for leasing. When a store front is recessed from the lease
line, the area of such recess, shall, for all purposes, lie within the
Rentable Area of the Leased Premises.
1(9) "Rentable Area of the Shopping Centre" means the total
rentable area, determined in the same manner as in Paragraph 1(8), of
all areas set aside by the Landlord, within any building for leasing to
tenants of the Shopping Centre whether leased or not.
l(lO)"Lease Year" means a period of twelve consecutive full calendar
months. The first Lease Year shall begin on the date of commencement of
the term hereof if the date of commencement of the term hereof shall
occur on the first day of the calendar month; if not then the first
Lease Year shall commence upon first day of the calendar month next
following the date of commencement of the term hereof. Each succeeding
Lease Year shall commence upon the anniversary date of the first Lease
Year.
1(11)"Shopping Centre" means the lands located in the Town of Picketing
and in the Province of Ontario, being more particularly described in
Schedule "A" hereto or as the boundaries of such lands may be varied
from time to time, together with the buildings, improvements and
facilities on such lands, and equipment, facilities and improvements in
such buildings, as established at the commencement of the Term or
subsquently added thereto, or subtracted or varied therefrom, from time
to time.
1(12)"Term" means the period of time referred to and described in
paragraph 3(3) hereof.
SECTION 2
NET LEASE
Paragraph 2(1)
Intent
The Tenant acknowledges and agrees that it is intended that
this Lease shall be a completely carefree net lease for the Landlord,
except as expressly hereinafter set out, that the Landlord shall not be
responsible during the Term of the Lease for any costs, charges,
expenses and outlays of any nature whatsoever arising from or relating
to the Leased premises, or the contents thereof, and the Tenant shall
pay all charges, impositions, costs and expenses of every nature and
kind relating to the Leased Premises except as expressly hereinafter set
out, and the Tenant covenants with the Landlord accordingly.
SECTION 3
GRANl AND TERM
Paragraph 3(1) Leased Premises
In consideration of the rents, covenants and agreements
.hereinafter reserved and contained on the part of the Tenant to be
-6-
observed and performed, the Landlord demises and leases to the Tenant,
and the Tenant rents from the Landlord, those certain premises, now or
hereinafter to be erected as part of the Shopping Centre, which premises
contain an area of approximately 3,000 square feet, and which are to be
measured by the Land Surveyor or Architect and to be certified by him in
accordance with Paragraph 1(8} herein called the "Leased Premises". The
boundaries and location of the Leased Premises are outlined in red on
the site plan of the building in which the Leased Premises are situate,
attached hereto as Schedule "8".
Paragraph 3(2)
Use of Additional Areas
The use and occupation by the Tenant of the Leased Premises
shall include the non-exclusive use in common with others entitled
thereto of the Common Areas and Facilities, and such other facilities as
may be designated from time to time by the Landlord, subject
particularly to the provisions of Paragraph 6(1) and 6(2) hereof, and to
rules and regulations for the use thereof as prescribed from time to
time by the Landlord.
Paragraph 3(3)
Commencement and Ending Date of Term
The Tenant shall have and hold the Leased Premises for and
during the term of this Lease (hereinafter called the "Term") which
shall be, unless sooner terminated pursuant to other provisions hereof:
The period of five (5) years and no months commencing on the !st day
of January, 1983 and to be fully completed and ended on the 31st day of
December, 1987;
Paragraph 3(4)
Excuse of Landlord's Performance
Anything in this Agreement to the contrary notwithstanding,
providing such cause is not due to the wilful act or neglect of the
Landlord, 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,
warlike operation, invasion, rebellion, hostilities, military or usurped
power, sabotage, governmental regulations or controls, inability to
obtain any material service or financing, through act of God or other
cause beyond the control of the Landlord.
Paragraph 3(5)
Certification and Acknowledgement
On or before the date the Leased Premises are opened for
business:
(a) The Architect or Land Surveyor shall provide a certificate as to the
exact Rentable Area of the Leased Premises measured in. accordance
with the provisions of Paragraph 1(8) hereof, and such certificate,
which shall be final and binding on the parties hereto, shall be
attached to and shall be deemed to form a part of this Lease.
SECTION 4
RENT
Paragraph 4(1)
Covenant to Pay
The Tenant Covenants to pay rent and additional rent as herein
provided.
Paragraph 4(2)
Minimum Rent
The Tenant covenants and agrees to pay from and after the
commencement of the Term hereof, to the Landlord or to whom the Landlord
may name in writing as his agent for collection of rent at the Office of
the Landlord, or at such other place designated by the Landlord, in
lawful money of Canada, without any prior demand therefore and without
-7 -
any deduction, defalcation or set-off whatsoever, as fixed annual
minimum rent, for the first five years of the Term, the sum
of $31,500.00 payable in equal monthly instalments of $2,625.00 each in
advance on the first day of each calendar month of each Lease Year
during the first five years of the Term, {herein sometimes called the
"fixed minimum monthly rent"). The fixed annual minimum rent is based
upon an annual rate of $10.50 per square foot of the Rentable Area of
the Leased Premises and upon the certification of the exact Rentable
Area of the Leased Premises by the Architect or Land Surveyor, the fixed
annual minimum rent shall be adjusted accordingly.
For the second five years of the Term herein demised, the
Tenant shall pay as fixed annual minimum rent the greater of $31,500.00
or an amount equal to the market annual base rent prevailing in the
general area of the Shopping Centre at the commencement of the second
five years of Term for comparable space in comparable shopping centres
to the Leased Premises in the Shopping Centre such rent to be settled by
the Landlord and the Tenant prior to the commencement of the second five
year period and failing settlement by that time, the rental shall be
settled by arbitration in accordance with the provisions of paragraph
4(3) hereof, not later than three (3) months subsequent to the
commencment of the second five year period of the Term.
Paragraph 4(3)
Arbitration
In the event of the failure of the Landlord and Tenant to
settle the rental of the second five year Term by the commencement of
the second five year period of the Term, such matter for settlement
shall be submitted to arbitration by notice given by either party to the
other. Upon such notice being given, the matter shall be determined by
the award of three arbitrators or by a majority of them, one to be named
by the Landlord, and one to be named by the Tenant, within ten (10) days
after the giving of such notice, and a third to be selected by these two
arbitrators within seven (7) days after both have been nominated. If
either the Landlord or the Tenant shall neglect or refuse to name its
arbitrator in the time specified, or to proceed with' the arbitration,
the arbitrator named by the other party shall proceed with the
arbitration and the award of such arbitrator shall be final and binding
on both the Landlord and the Tenant. The arbitrators shall have all the
powers given by the Arbitration Act and may at any time proceed in such
manner as they may see fit on such notice as they deem reasonable in the
absence of either party if such party fails to attend. Each party shall
pay its own costs and shall share equally the costs of the arbitration.
The determination of the arbitrators shall be final and binding upon the
Landlord and the Tenant and each party--agrees not to appeal any such
arbitration.
Paragraph 4(4)
Minimum Rent for Second Five Year Term
The rental for the second five year period of the Term shall
be paid in equal monthly installments equal to one-twelfth (1/12th) of
the fixed annual minimum rental for the second five year period of the
Term, in advance, on the first day of each month during the second five
year period, the first of such monthly installments to be made on the
1st day of January, 1988.
If the Term shall commence upon a day other than the first day
of a calendar month, then the Tenant shall pay, upon the commencement
date of the Term, a portion of the fixed annual minimum rent described
in the foregoing clause prorated on a per diem basis with respect to a
period of three hundred and sixty-five (365) days.
The Tenant hereby agrees to present to the Landlord at the
beginning of each tease Year throughout the Term, a series of monthly
post-dated cheques for the following Lease Year, in amounts conforming
with the fixed minimum monthly payments provided for in this Paragraph
4(2).
Paragraph 4(5)
Rent and Additional Rent Past Due
If the Tenant shall fail to pay, when the same is due and
-8-
payable, any rent or additional rent, such unpaid amounts shall bear
interest from the due date thereof to the date of payment at the rate of
twenty-four percent (24%} per month.
SECTION 5
TAXES
Paragraph 5(1)
Taxes Payable by Landlord
The Landlord covenants and agrees to pay all real property
taxes (including local improvement rates) which may be levied or
assessed by any lawful authority against the lands, buildings and
improvements including Common Areas and Facilities forming part of the
Shopping Centre subject to the provisions of Paragraphs 5(2), 5(3) and
6(4) hereof. Provided, however, that the Landlord may defer payment of
any such real property taxes, or defer compliance with any statute, law,
by-law, regulation or ordinance in connection with the levying of any
such real property tax, in each case, to the fullest extent permitted by
law.
Paragraph 5(2)
Business Taxes and Other Taxes of Tenant
In each and every year during the Term, the Tenant shall pay
as additional rental and discharge within twenty (20) days after the
same become due and payable, all taxes, rates, duties and assessments
and other charges that may be levied, rated, charged or assessed against
or in respect of all improvements, equipment and facilities of the
Tenant on or in the Leased Premises or the Shopping Centre or any part
or parts thereof and every tax and license fee in respect of any and
every business carried on therein or in respect of the use or occupancy
thereof by the Tenant, and any and every sub-tenant or licensee (other
than such taxes as corporate income, profits or excess profits taxes
assessed upon the income of the Landlord) whether any such assessment or
license fees are charged by any federal, municipal, provincial, school
or other body during the Term, and the Tenant will indemnify and keep
indemnified the Landlord from and against payment for all loss, costs,
charges and expenses, occasioned by, or arising from any and all such
taxes, rates, duties, assessments, license fees and any and all taxes
which may in future be levied in lieu of such taxes, and any loss,
costs, charges and expenses suffered by the Landlord may be collected by
the Landlord as rent and otherwise as reserved to the Landlord in
respect of rent in arrears. The Tenant further covenants and agrees
that upon request of the Landlord, the Tenant shall promptly deliver to
the Landlord for inspection receipts for payment of all taxes, rates,
duties, assessments and other charges in respect of all improvements,
equipment and facilities of the Tenant on or in the Leased Premises
which were due and payable up to one (1) month prior to such request and
will furnish such other information in connection therewith as the
Landlord may reasonably require.
Paragraph 5(3) Real Property Taxes
(a) Lease Premises
The Tenant will, as additional rent, in each and every year
during the Term and within the times provided for by the taxing
authorities, pay to the Landlord or the taxing authorities as the
Landlord may direct, and discharge, all taxes, including local
improvement rates, impost charges or levies, rates, duties and
assessments whether general or special that may be levied, rated,
charged or assessed against the Leased Premises or any part thereof from
time to time by any taxing authority whether federal, provincial,
municipal, school or otherwise, and any taxes payable by the Landlord
which are imposed in lieu of, or as substitute for any such real
property taxes. The Tenant agrees to provide the Landlord within ten
(10) days after demand therefor by the Landlord, with a copy of any
separate tax bills, and separate notices of assessents for the Leased
Premises. The Tenant will, upon request, promptly deliver to the
-g.
Landlord, receipts for payments of all such taxes paid to any such
taxing authorities, aforesaid, and will furnish such other information
in connection therewith as the Landlord may reasonably require.
(b) Shopping Centre
In the event that there shall not be a separate assessment for
real property taxes made against the Leased Premises, the Tenant shall
pay a share of such real property taxes (including local improvement
rates) which may be levied or assessed by any lawful authority against
the lands, buildings and improvements including Common Areas and
Facilities forming part of the Shopping Centre within twenty (20) days
after demand therefor by the Landlord, as allocated to the Leased
Premises by the Landlord. The Landlord shall allocate all real property
taxes levied or assessed against the Shopping Centre firstly as between
premises intended for leasing and Common Areas and Facilities and
secondly, with respect to the real propert taxes so allocated to
premises intended for leasing, the Landlord shall make a further
allocation of such taxes as between each of the individual premises
intended for leasing on such basis as the Landlord shall, in its sole
opinion determine equitable, having regard among other things, to the
various uses of the premises intended for leasing comprising the
Shopping Centre and/or the costs of original construction of same,
and/or the relationship of the location area of each of the individual
premises intended for leasing in the Shopping Centre and subject to the
provisions of Paragraph 5(2) hereof. The Tenant shall pay its
Proportionate Share of the real property taxes so allocated to the
Common Areas and Facilities in accordance with the provisions of
Paragraph 6(4) hereof. The Landlord may estimate and allocate such real
property taxes in such manner as it considers equitable as between
Outside Common Areas and Facilities.
Paragraph 5(4)
Pro-Rata Adjustment
If any taxation year during the Term of this Lease is less
than twelve (12) calendar months, the' Tenant's share of taxes, as so
allocated pursuant to Paragraph 5(3)(b) hereof, shall be subject to a
per diem pro-rata adjustment.
SECTION 6
CO)ql.lON AREAS AND FACILITIES A~!D SHOPPING CENTRE - USE AND COST
Paragraph 6(1)
Control of Common Areas and Facilities and
Shopping Centre by Landlord
All Common Areas and Facilities and the Shopping Centre and
such other areas, facilities, utilities and improvements provided by the
Landlord from time to time for the general use, in common, of tenants,
their officers, agents, employees and customers, shall at all times be
subject to the exclusive control and management of the Landlord. The
Landlord will operate and maintain the Common Areas and Facilities and
the Shopping Centre in such manner as the Landlord, in its sole
discretion, shall determine from time to time. The Landlord shall have
the right from time to time to establish, modify and enforce reasonable
rules and regulations with respect to the operation of the Common Areas
and Facilities and the Shopping Centre.
Without limiting the generality of the foregoing, but subject
to the foregoing qualifications, the Landlord shall have the right, in
the control, management and operation of the Common Areas and Facilities
and the Shopping Centre, to:
(i) Construct, maintain and operate lighting facilities and
HVAC systems;
(ii) Police and supervise the same;
(iii) Close all or any portion of same to such extent as may, in
the opinion of the Landlord's counsel, be legally
sufficient to prevent a dedication thereof or the accrual
of any rights to any person or the public therein;
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(vii)
(viii)
(ix)
(iv) Grant, modify and terminate easements or other agreements
petaining to the use and maintenance of all or any part or
parts of the Common Areas and Facilities and the Shopping
Centre, save as already existing with the Corporation of
the Town of Picketing;
{v) Obstruct or close off all or any part of the Common Areas
and Facilities or the Shopping Centre or parts thereof for
the purpose of maintenance or repair;
(vi) Employ all personnel and make all reasonable rules and
regulations (which shall be binding upon the Tenant)
pertaining to or necessary for the operation and
maintenace of the Common Areas and Facilities and the
Shopping Centre. The Tenant acknowledges that the
Shopping Centre may be managed by such party or parties as
the Landlord may in writing from time to time designate;
Use part of the Common Areas and Facilities and the
Shopping Centre, from time to time, for merchandising,
display, decorations, entertainment and structures
designed for special features and promotional activities;
Designate the areas and entrances and the times in,
through and at which loading and unloading of goods shall
be done;
Create and enforce such rules and regulations for the
delivery or shipping of merchandise, supplies and fixtures
to and from the Leased Premises as in the sole judgement
of the Landlord are necessary for the proper operation of
the Leased Premises and Shopping Centre;
(x) Designate and specify the kind of container to be used for
garbage and refuse and the manner and times and places at
which same shall be placed outside the Leased Premises for
collection. If the Landlord shall provide or designate a
service for picking up refuse and garbage, the Tenant
shall use same at the Tenant's cost. The Tenant shall pay
the cost of removal of any of the Tenant's refuse or
rubbish. The Tenant shall not burn any trash or garbage
of any kind in or about the Leased Premises, the Shopping
Centre, or within one mile of the outside property lines
of the Shopping Centre.
Do and perform such other acts in and to the Common Areas and
Facilities and the Shopping Centre as, in the use of good
business judgement, in accordance with the law, the Landlord
shall determine to be advisable with a view to the improvement
of the convenience and use thereof by the tenants, their
officers, agents, employees and customers, and those entitled,
from time to time, to the use thereof.
Paragraph 6{2) Licence
The Tenant shall have the non-exclusive right to the use of
the Common Areas and Facilities from time to time provided hereunder by
the Landlord in common with others entitled thereto, and subject to the
provisions of this Lease, and if the amount of such Common Areas and
Facilities be diminished, the Landlord shall not be subject to any
liability nor shall the Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such alteration or diminution
of such Common Areas and Facilities be deemed constructive or actual
eviction, or a breach of any covenant for quiet enjoyment.
Paragraph 6(3)
Parking
The Landlord shall be entitled to prohibit the Tenant and its
employees from parking anywhere in the Shopping Centre, so long as a
specific area is designated for employee parking. If the Landlord
designates tenant parking areas in the Shopping Centre or elsewhere, the
Tenant and its employees shall park their cars only in such parking
areas designated from time to time by the Landlord for tenant parking.
The Tenant shall furnish the Landlord with the current provincial
licence numbers of any vehicles owned or used by the Tenant and by
employees of the Tenant within five (5) days after taking possession of
the [eased Premises and the Tenant shall, thereafter, notify the
Landlord of any changes within five (5)days after such changes occur.
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If the Tenant or its employees fail to park their cars in the designated
parking areas as aforesaid, the Landlord, in addition to all other
rights and remedies hereunder, shall have the right to charge the Tenant
a per diem penalty per car parked in any area other than those
designated, as determined by the Landlord from time to time, such charge
to be deemed to be additional rent and payable on demand.
Paragraph 6(4)
Tenant to Bear Proportionate Share of Expense
In each Lease Year, the Tenant will pay to the Landlord, in
addition to the rental specified in Section 4 hereof, as further
additional rental, its Proportionate Share of the Landlord's actual
costs and expenses of maintaining and operating the Common Areas and
Facilities (and including, without limitation, those portions of the
Shopping Centre leased specifically to tenants but made available for
use in common by all tenants of the Shopping Centre for the period of
such common use) and the Shopping Centre, such costs and expenses to
include without limitation and without duplication of costs and
expenses:
(i)
the total annual net costs and expenses (after deducting
recoveries from tenants pursuant to clauses similar to
Paragraph 8(2) hereof under leases for premises in the
Shopping Centre), of insuring lands, buildings, improvements
and equipment and other property in the Common Areas and
Facilities and the Shopping Centre, owned by the Landlord or
for which the Landlord is legally liable, from time to time,
in such manner with such companies and form, with such
coverage and in such amounts as the Landlord, or its
Mortgagees may, from time to time determine, including without
limitation, insurance against:
(al
(b)
(d)
(el
any risks of physical loss or damage insurance to all
property owned by the Landlord relative to the Shopping
Centre;
air-conditioning and heating equipment and miscellaneous
electrical apparatus insurance on a broad form blanket
cover repair and replacement basis;
insurance against loss of insurable gross profits
attributable to all perils insured against by the Landlord
or commonly insured against by prudent landlords,
including loss of all rents receivable from the Tenants in
the Shopping Centre in accordance with the provisions of
their Leases including minimum rents and all other charges
payable as additional rent in such amount or amounts as
the Landlord or its mortgagees from time to time request;
third party liability coverage including the exposure of
personal injury, bodily injury, property damage
occurrence, including all contractual obligations coverage
and including actions of all authorized employees,
subcontractors and agents while working on behalf of 'the
Landlord;
any other form or forms of insurance as the Landlord or
its Nortgagees may reasonably require from time to time
for insurable risks and in amounts against which a )rudent
landlord would protect itself;
(ii) cleaning, snow removal, garbage and waste collection and
disposal;
(iii)
lighting, electricity, public utilities, and the cost of
electricity of any signs deemed by the Landlord to be part of
the Common Areas and Facilities and the Shopping Centre;
(iv) policing, supervising and traffic control;
(v)
salaries of all personnel employed to manage, supervise and
maintain the Shopping Centre and the common areas, including
contributions and premiums towards usual fringe benefits,
unemployment and Norkmen's Compensation insurance, pension
plan contributions and similar premiums and contributions;
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(iv)
the cost to the Landlord of the rental of any equipment and
signs, and the cost of building supplies, used by the Landlord
in the maintenance of the Common Areas and Facilities and the
Shopping Centre;
(vii)
real property taxes (including school taxes and local
improvement rates, levies, etc.) and all business and other
taxes, if any, from time to time payable by the Landlord, (or
by any corporation that may provide the same) levied or
assessed or allocated by the Landlord pursuant to Paragraph
5(3) hereof against or to the Common Areas and Facilities or
against the Landlord on account of its ownership thereof and
cost of all appeals on taxes;
(viii)
repairs and replacements to, and maintenance and operation of,
the Common Areas and Facilities and the Shopping Centre,
including the cost of gardening and landscaping maintenance
and equipment, except where the cost of any such repairs or
replacements are directly attributable to inherent structural
defects or weaknesses;
(ix)
depreciation of all fixtures, equipment and facilities which,
by their nature, require periodic replacement or substantial
replacement (but excluding buildings or structures and
permanent parts thereof) at rates on the various items
determined from time to time by the Landlord in accordance
with sound accounting principles;
(x)
interest calculated at two percentage points above the rates
charged at the end of each Lease Year by any Canadian
chartered bank designated from time to time by the Landlord
upon the undepreciated capital cost of all fixtures,
equipment, facilities, (including maintenance and cleaning
equipment) and upon the unamortized portion of the cost of
such repairs and replacements as are set out in subparagraph
(ix) above;
(xi)
an administrative fee of fifteen percent (15%) of such total
annual costs including without limitation, those referred to
in sub paragraphs {il to x) inclusive;
Each of the above costs shall be net of:
(al
All net expenses incurred in operating and maintaining the
Common Areas and Facilities and the Shopping Centre which are
caused by the negligence of the Landlord's tenants or by
reason of a breach by such tenants of provisions in their
respective leases (other than recoveries from such tenants
under clauses in their respective leases similar to Paragraph
6(4) contained in this Lease).
Paragraph 6(5)
Payment of Tenant's Share
The amounts payable by the Tenant pursuant to Paragraphs 5(3)
and 6(4), hereof may be estimated by the Landlord for such period as the
Landlord may determine, not to exceed an annual basis and the Tenant
agrees to pay to the Landlord its share or Proportionate Share, as so
estimated as the case may be, of such amounts in monthly instalments in
advance during such period together with other rental payments provided
for in this Lease. Notwithstanding the foregoing, as soon as bills for
all or any portion of the said amounts so estimated are received, the
Landlord may bill the Tenant for its share, or Poroprtionate Share, as
the case may be, thereof (less all amounts previously paid by the Tenant
on the basis of the Landlord's estimate aforesaid which have not already
been so applied) and the Tenant shall pay the Landlord such amounts so
billed as additional rent on demand. At the end of the period for which
such estimated payments have been made, the Landlord shall deliver to
the Tenant a statement of the actual amounts and costs referred to in
Paragraph 5(3) and Paragraph 6(4) hereof, together with a statement of
the Tenant's share, and Tenant's Proportionate share, as the case may
be, of such amounts and costs payable pursuant to Paragraph 5(3) and
Paragraph 6(4) hereof, and if necessary, an adjustment shall be made
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between the parties. If the Tenant shall have paid in excess of such
actual amounts, the excess shall be refunded by the Landlord within
thirty {30) days after the delivery of the said statement. If the
amount the Tenant has paid is less than such actual amounts, the Tenant
agrees to pay any such extra amount or amounts with the next fixed
minimum monthly rental payment due. If any Lease Year during the Term
is greater or less than any-such period determined by the Landlord as
aforesaid, the Tenant's share pursuant to Paragraph 5{3}and/or the
Tenant's Proportionate Share pursuant to Paragraph 6{A} shall be subject
to a per diem, prorata adjustment.
SECTION 7
UTILITIES - HEATING, VENTILATING AND AIR-CONDITIO~ING AND
OTHER UTILITIES
Paragraph 7(1)
Utility Charges
The Tenant shall be solely responsible for and shall promptly
pay all charges for water, oil, gas, electricity, telephone and other
utilities used or consumed in or any other charges levied or assessed on
or in respect to, the Leased Premises. Should the Landlord elect to
supply the water, oil, gas, electricity and/or sewage services for the
Shopping Centre, or any other utility used or consumed, or to be used or
to be consumed, in the Leased Premises, the Tenant shall purchase and
pay for the same as additional rent payable on demand to the Landlord,
at rates not in excess of public utility rates for the same service, if
applicable. In no event shall the Landlord be liable for, nor have any
obligation with respect to, an interruption or cessation of, or a
failure in the supply of any such utilities, services or systems,
including without limitation, the water and sewage systems, to the
Shopping Centre or the Leased Premises whether or not supplied by the
Landlord or others.
The Tenant shall be required to install its own separate
meters for the Leased Premises at its own expense, if so requested by
the Landlord. In the event that separate meters are not installed for
the Leased Premises as aforesaid, the Landlord shall, acting reasonably,
and on the advice of a qualified engineer, estimate the relevant rates
of consumption of utility charges in the Leased Premises calculated on
the basis of the Tenant's connected load and at the current applicable
commercial rates for the municipality in which the Shopping Centre is
located, and the Tenant shall pay monthly, in advance, with instalments
of fixed minimum monthly rent, all such utility charges so applicable to
the Leased Premises.
Paragraph 7(2)
Heating, Ventilating and Air-Conditioning
The Tenant shall, throughout the Term, operate, maintain and'
regulate the heating, ventilating and air-conditioning equipment within
the Leased Premises in a manner as to maintain ouch reasonable /~/.~.~.
conditions of temperature and humidity within the Leased Premises. The
Tenant shall comply with ~uch
regulations of the Landlord pertaining to the maintenance and operation
of such equipment.
SECTION 8
INSURAI';CE AND INDE~INITY
Paragraph 8(1)
Tenant's Insurance
(a)
The Tenant shall, during the entire Term hereof, at its sole
cost and expense, take out and keep in full force and effect
and in the names of the Tenant, the Landlord and the
Landlord's Mortgagees as their respective interest may appear,
the following insurance:
(i) Insurance upon p~'o,,,:rty of every description and kl;~d
owned by the Tenant, or for which the Tenant is legally
liable, or installed by or on behalf of the Tenant,
including, without limitation, furniture, fittings,
installations, alterations, additions, partitions,
fixtures and anything in the nature of a leasehold
improvement in an amount of not less than eighty percent
(80%) of the full replacement cost thereof, against, at
least, the perils of fire and standard extended coverage
including sprinkler l(~akages (where applicable),
earthquake, flood or collapse. In the event that there
shall be a dispute as to the amount which comprises full
replacement cost, the decision of the Landlord or its
Mortgagees shall be.conclusive;
ii) Property damage or public liability insurance including
personal liability, contractual liability, Tenants' legal
liability, non-owned automobile liability, lease agreement
contractual coverage and owners' and contractors'
protective insurance coverage with respect to the Leased
Premises and the Tenant's use of the Common Areas and
Facilities, coverage to include the business operation
conducted by the Tenant and any other person on the Leased
Prer,~ises. Such 2olicies shall be written on a
ce, ~rehe~s !Ye b~s~s with limits of not less than
$],~lO0,OCO.O0 For bodily inj~n~ to any one more persons,
or prope~'cy dan~ase, and such higher limits ao ihe Landlo.'J
or its hlc~'t~gses may reascnably require from ~ins tc
ti ~e;
iii) ~ny cuber form or fc~ms of insurance as the Tenan~ or .~e
Land~o"d or thc Landlord's Mortgagees may rea~c.a~l~
rn~ui?? ~-om time co time in form, in amounts ,~nd ~,r
insurance r~sks against which a prudent Tenant ~u!C
pro~ect itself.
(b)
All policies will be taken on policies in form satlsF~,t(~rj
from ti.~F~e to ~ime to the Landlord. The Tenant agrees
cerlificotes of insurance or, if required by the Landlo)'~
its ~..r~gagee.~, certified copies of each such in.~,~,
policy, .,iil be delivered to the La Jlord as snF,.'
practicable ~fter the plocing of th~ r~c~]r~.d ~nsuran'e. Al)
,polici~:s wili cc,pia~n an ,Jr, dertaki,~ by t~e insure, q to
the Landlc~rd an~ its :qurtgaguus in w~ ,~ng not less than
thirty (30) days prior to any ,naterial :zhange, cancellation,
or other termination; thereof.
(c)
The Tenant agrees that if the Tenant fails to take out or to
keep in force any such insurance referred to in this Paragraph
8(1), or should any such insurance not be reasonably approved
by either the Landlord or its Mortgagees and should the Tenant
not rectify the situation within forty-eight (48) hours after
written notice by the Landlord to the Tenant (stating if the
Landlord or its Mortgagees do not approve of such insurance,
the reasons therefor) the Landlord b'~all have the right
without assuming any oblig~tiun in c~r, nection therewith, to
effect such insurance at ~he sole ~cst ~.< the Tenant and all
outlays by the Lan~,)rd st~all b~ im~e-~-~tely p.~able by the
Tfmant to the Land!r~rd a~ a,Jdi[i~]nal rc~,. and :h~ll be due on
the Fi~'st day of the nzx~ ~onth followi.,g ~]d p:yment by the
I:ndiord ¢,it~nut :~'ejudic¢ o any other ,i~T~t~ anJ remedies of
the Landlord under' this I. :.
?ar~9,.~h 8(2)
The
for sale in
prohibited by
time to time
occupancy of,
on the Leased
same, causes
time to time
Tenant agrees that ,_ will not keep, ,;se, sell or offer
or upon the Leased Pre~! ~s any ~i-ticle which may be
the standard form of fire insurance policy in force from
covering the Shopping Centre. In the event the Tenant's
conduct of business in, or sale of any merchandise from or
Premises, whether ~}rnot the Landlord has consented to the
any increase in premiums for the insurance carried from
by the Landlord with resp:~ct to the Shopping Centre, the
Tenant shall pay any such increase n p~'~;~.,, as additional nent within
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ten {JO) days after bills for such additional premiums shall be rendered
by the Landlord. In determining whether increased premiums are a result
of the Tenant's use or occupancy of the Leased Premises, or the sale of
any article therein or therefrom, a schedule issued by the organization
making the insurance rate on the Shopping Centre showing the various
components of such rate, shall be conclusive evidence of the several
items and charges which make up such rate. The Tenant shall comply
promptly with all reasonable requirements of the Canadian Underwriters
Association or of any insurer now or hereafter in effect, pertaining to
or affecting the Leased Premises.
Paragraph 8(3)
Cancellation of Insurance
If any insurance policy upon the Shopping Centre or any part
thereof shall be cancelled or shall be threatened by the insurer to be
cancelled, or the coverage thereunder reduced in any way by the insurer
by reason of the use and occupation of the Leased Premises or any part
thereof by the Tenant or by an assignee or sub-tenant of the Tenant, or
by anyone permitted by the Tenant to be upon the Leased Premises, and if
the Tenant fails to remedy the condition giving rise to cancellation,
threatened cancellation, or reduction of coverage within forty-eight
(48) hours after notice thereof by the Landlord, the Landlord may, at
its option, either (i) re-enter the Leased Premises forthwith by leaving
upon the Leased Premises a notice in writing of its intention so to do
and thereupon the provisions of Section 16 shall apply or (ii) enter
upon the Leased Premises and remedy the condition giving rise to such
cancellation, threatened cancellation or reduction, and the Tenant shall
forthwith pay the cost thereof to the Landlord, which cost may be
collected by the Landlord as rent and the Landlord shall not be liable
for any damage or injury caused to any property of the Tenant or of
others located on the Leased Premises as a result of any such re-entry.
Paragraph 8(4)
Loss and Damage
The Landlord shall not be liable for any death or injury, or
damage to property of the Tenant or of others located on the Leased
Premises, nor for the loss of or damage to any property of the Tenant or
of others by theft or otherwise, from any cause whatsoever, provided any
such damages, loss or injury does not result from the negligence of the
Landlord, its agents, servants or employees or other persons for whom it
may be responsible. Without limiting the generality of the foregoing,
subject to the exception above, the Landlord shall not be liable for any
injury and damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water, rain or snow or leaks
from any part of the Leased Premises or from the pipes, appliances or
plumbing works or from the roof, street or sub-surface or from any other
place or by dampness or by any other cause of whatsoever nature. The
Landlord shall not be liable for any such damage caused by other tenants
or persons in the Shopping Centre or by occupants of adjacent property
thereto, or the public, or caused by operation on construction or any
private, public or quasi-public work. All property of the Tenant kept
or stored on the Leased Premises shall be so kept or stored at the risk
of the Tenant only and the Tenant shall hold the Landlord harmless from
any claims arising out of damages to the same, including subrogation
claims by the Tenant's insurers.
Paragraph 8(5)
Landlord's Insurance
The Landlord covenants and agrees that throughout the Term of
the Lease, it will insure the Shopping Centre (excluding foundations and
excavations) and the machinery, boilers and equipment contained therein
owned by the Landlord (specifically excluding any property with respect
to which the Tenant is obliged to insure pursuant to the provisions of
Paragraph 8(1) hereof) against damage by fire and extended perils
coverage in such reasonable amounts as would be carried by a prudent
owner of a similar Shopping Centre. The Landlord will also, throughout
the Term of the Lease, carry public liability and property damage
insurance with respect to the operation of the Shopping Centre in
reasonable amounts as would be carried by a prudent owner of a similar
Shopping Centre. The Landlord may but shall not be obliged to, take out
and carry any other form or forms of insurance as it or its Mortgagees
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may reasonably determine advisable.
will pay its Proportionate Share of
insurable interest is conferred upon
insurance carried by the Landlord.
Notwithstanding that the Tenant
the costs of such insurance, no
the Tenant under any policies of
Paragraph 8(6)
Indemnification of Landlord
The Tenant will indemnify the Landlord and save it harmless
from and against any and all loss (including loss of rentals payable by
the Tenant pursuant to this Lease) claims, actions, damages, liability
and expense in connection with loss of life, personal injury and/or
damage to property arising from or out of any occurrence in, upon or at
the Leased Premises, or the occupancy or use by the Tenant of the Leased
Premises or any part thereof, or occasioned wholly or in part by any act
or omission of the Tenant, its agents, contractors, employees, servants,
licensees or concessionaires or invitees or by anyone permitted to be on
the Leased Premises by the Tenant. In case the Landlord shall, without
fault or on its part, be made a party to any litigation commenced by or
against the Tenant, then th Tenant shall protect and hold the Landlord
harmless and shall pay all costs, expenses and reasonable legal fees
incurred or paid by the Landlord in connection with such litigation.
The Tenant shall also pay all costs, expenses and reasonable legal fees
that may be incurred or paid by the Landlord in enforcing the covenants
and agreements in this Lease, unless a Court shall otherwise award.
SECTION 9
USE OF PREMISES
Paragraph 9(1)
Use of Premises
The Tenant shall use the Leased Premises solely for the
Purpose of operating a branch Public Library and the Tenant will not use
or permit, or suffer the use of, the Leased Premises or any part or
par'ts thereof for any other purpose.
Paragraph 9(2)
Prohibited Activities
(Al
Without limiting the generality of the provisions of Paragraph
10(1) hereof, the Tenant will not use or permit, or suffer the
use of the Leased Premises, or any part or parts thereof, for
any of the following operations or activities:
(il The sale of second hand goods or surplus articles,
insurance salvage stock, fire sale stock or bankruptcy
stock;
(ii) A discount house or discount store or a store which
purports to sell on a general or regular basis,
merchandise at a discount from regular prices;
(iii) An auction, bulk, liquidation, "going out of operation" or
bankruptcy sale, warehouse sale, or any special sale or
sales other than such as are incidental to the normal
routine of the Tenant's operation with its regular
customers and other than bulk sale made to an assignee or
sub-lessee pursuant to a permitted assignment or
subletting hereunder;
(iv) Any other operation which, because of the merchandising
methods likely to be used, would tend to lower the
character of the Shopping Centre;
(v) Any operation in any line of merchandise which makes a
practice of unethical or deceptive advertising and/or
selling procedures;
(iv) Catalogue sales in or from the Leased Premises except of
merchandise which the Tenant is permitted to sell "over
the counter" in or at the Leased Premises pursuant to the
provisions of Paragraph 10(1).
Landlord shall have the right to cause Tenant to discontinue
and Tenant shall thereupon forthwith discontinue the sale of
any item, merchandise and/or commodity, the supply of any
service and/or the carrying on of any operation, not in the
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sole and absolute opinion of the Landlord to fall within the normal
use and occupation of the Leased Premises by Tenant as set out in
Paragraph 10(1).
Paragraph 9(3)
Conduct of Operation
The Tenant shall occupy the Leased Premises from and after the
commencement of the Term hereof and shall, thereafter, conduct
continuously the operation set out in Paragraph 10(1) hereof, in the
whole of the Leased Premises. In the conduct of the Tenant's operation
pursuant to the terms of this Lease, the Tenant shall:
(i) conduct its operation in the Leased Premises during such hours
and on such days as the Landlord may from time to time require
or permit, and at other time. Provided that nothing shall
require the Tenant to carry on its operation during any period
prohibited by any law or by-law regulating the hours when such
operation may be carried on.
(ii) install and maintain at all times displays in the display
windows (if any) of the Leased Premises. The Tenant shall
keep the display windows and signs, if any, in the Leased
Premises well lighted during such hours as are designed by the
Landlord from time to time;
(iii) the Tenant shall not use any portion of the Leased Premises
for anything other than a public library open to the public;
(iv) not perform any acts or carry on any practices which may
injure the building or buildings and improvements forming the
Shopping Centre or be a nuisance or menace to the Landlord or
to other tenants in the Shopping Centre;
(v) not do, nor shall it suffer or permit to be done, any act in
or about the Common Areas and Facilities or the Shopping
Centre which shall hinder or interrupt the flow of traffic to,
in and from the Shopping Centre and not do, nor suffer or
permit anything to be done which will in any way obstruct the
free movement of persons doing operation in the Shopping
Centre with any tenant or occupant of the Shopping Centre;
(vi) not, nor shall it suffer or permit its employees or agents to,
solicit operation in any of the Common Areas and Facilities,
nor display any thing outside the Leased Premises at any time
without the prior written consent of the Landlord first had
and obtained;
(vii) not con,nit or suffer or permit to be committed any waste upon
the Leased Premises or any nuisance or other thing which may
disturb the quiet enjoyment of any other tenant in the
Shopping Centre, or which may unreasonably disturb, interfere
with or annoy any person within five hundred (500) feet of the
boundaries of the Shopping Centre;
(viii)) not install or allow on the Leased Premises any radio,
television or other transmitting device and not to erect on
the roof of any building in which the Leased Premises are
situate or on any exterior walls of the Leased Premises or in
any of the Co~on Areas and Facilities any aerial without in
each instance, first obtaining the written consent of the
Landlord. Any such installation without such written Consent
shall be subject to removal without notice at any time and at
the cost of the Tenant;
(ix) not use any loud speakers, television, phonographs, radios or
other devices in a manner so as to be heard or seen outside of
the Leased Premises without the prior written consent of the
Landlord.
Any operation or practice promulgated, carried on or
maintained by the Tenant, whether through advertising or selling
procedures or othemvise, which in the reasonable opinion of the Landlord
may harm or tend to harm the operation or reputation of the Landlord or
reflect or tend to reflect unfavourably on the Shopping Centre, the
Landlord or other tenants of premises in the Shopping Centre, or which
might tend to confuse, mislead, deceive or be fraudulent to the public,
shall be immediately discontinued by the Tenant at the request of the
Landlord.
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Paragraph 9(4)
Observance of Law
The Tenant shall, at its sole cost and expense, comply with
all provisions of law, including, without limiting the generality of the
foregoing, all requirements of all federal and provincial legislative
enactments, by-laws and other governmental or municipal regulations now
or hereafter in force which relate to the Leased Premises, or to the
making of any repairs, replacements, alterations, additions, changes,
substitutions or improvements of or to the Leased Premises subject to
the provisions of Paragraph 11(1) hereof, and the Tenant will comply
with all police, fire and sanitary regulations imposed by any
governmental, provincial and municipal authorities, or made by fire
insurance underwriters, and the Tenant will observe and obey
governmental and municipal regulations and any other requirements
governing the conduct of any operation in the Leased Premises.
Paragraph 9(5)
Licences and Concessions
The Tenant shall not permit any operation to be operated in or
from the Leased Premises by any concessionaire, franchisee, licensee or
otherwise without the prior written consent of the Landlord in each
instance first had and obtained, which consent may, notwithstanding any
statutory provision or provisions to the contrary, be arbitrarily
withheld. The consent by the Landlord to any concession or franchise or
licence shall not constitute a waiver of the necessity for such consent
to any subsequent concession, franchise or licence. In the event the
Landlord does grant its consent to any such concession, franchise or
licence, each such concession, franchise or licence shall only be
granted upon and subject to the following conditions:
(il That such concession, franchise or licence shall be subject to
the terms and conditions contained in this Lease;
(ii) That the aggregate area of all such concessions, franchises or
licences shall not at any one time exceed such percentage of
the Rentable Area of the Leased Premises that the Landlord
shall, in its sole discretion, deem advisable;
(iii) That each such concessionaire, franchisee or licensee shall
carry on operation under the name and style of the Tenant and
in such manner so that to all intents and purposes, same shall
appear as an integral part of the Tenant's operation
operations.
SECTION 10
MAINTENANCE, REPAIRS AND ALTERATIONS OF THE LEASED PREMISES
Paragraph 10(1) Maintenance and Repairs by Tenant
The Tenant shall at its sole cost, at all times keep and
maintain the whole of the Leased Premises (including the structure of
the premises, entrances, all glass, show window mouldings and store
fronts) and all signs, partitions, doors, fixtures, equipment and
appurtenances thereof and improvements thereto (including lighting,
heating, ventilation and plumbing fixtures and equipment, and
refrigeration equipment and wiring and the air conditioning system
within the Leased Premises), in good order, first-class condition
including periodic painting and decoration as determined by the Landlord
and shall make all needed repairs and replacements thereto with due
diligence and dispatch.
Paragraph 10(2) Landlord's Approval and Designated Tradesmen
The Tenant will not make any repairs, alterations,
replacements, decorations or improvements to any part of the Leased
Premises without first obtaining the Landlord's written approval. The
Tenant shall submit to the Landlord details of the proposed work
including drawings and specifications prepared by qualified designers
and conforming to good engineering practice, such indemnification
against liens, costs, dan)ages and expenses as the Landlord shall
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require, and evidence satisfactory to the Landlord that the Tenant has
obtained, at its expense, all necessary consents, permits, licences and
inspections from all governmental authorities having jurisdiction. All
such repairs, replacements, alterations, decorations or improvements by
the Tenant to the Leased Premises approved of by the Landlord shall be
at the sole cost of the Tenant, shall be performed by competent workmen
in a good and workmanlike manner and in accordance with the drawings and
specifications which the Landlord has approved, and shall be subject to
the reasonable supervision and direction of the Landlord. Any such
repair, replacement, alteration, decoration or improvement made by the
Tenant without the prior written consent of the Landlord or which is not
in accordance with the drawings and specifications approved by the
Landlord shall, if requested by the Landlord, be promptly removed by the
Tenant at its expense and the Leased Premises restored to their previous
condition.
Notwithstanding what is hereinbefore contained, if any
repairs, alterations, additions or improvements to the Leased Premises
are approved by the Landlord and affect the structure of the Leased
Premises or the Shopping Centre, such work shall be performed by the
Landlord or its agents. The Landlord or its agents shall perform such
repairs, alterations, additions or improvements to the Leased Premises,
as aforesaid, at the Tenant's expense plus a further fifteen percent
(15%) of the Landlord's total cost of such repairs, alterations,
additions or improvements payable as additional rent upon demand. No
repairs, alterations, additions or improvements to the Leased Premises
by or on behalf of the Tenant shall be permitted which may weaken or
endanger the structure or adversely affect the condition or operation of
the Leased Premises and/or the Shopping Centre or diminish the value
thereof, or restrict or reduce the Landlord's coverage for municipal
zoning purposes.
Paragraph 10(3) Repair on Notice
In addition to the obligations of the Tenant contained in
Paragraph 11(1) hereof, but subject to the qualifications contained in
Paragraph 11(1) hereof, the Tenant shall effect all repairs referred to
therein according to notice from the Landlord but failure to give notice
shall not relieve the Tenant from its obligation to repair.
Paragraph 10(4) Surrender of Leased Premises
At the expiration of the tenancy hereby created, the Tenant
shall surrender the Leased Premises in the same condition as the Leased
Premises were in upon delivery of possession to the Tenant under this
Lease, reasonable wear and tear excepted, and the Tenant shall surrender
all keys for the Leased Premises to the Landlord at the place then fixed
for the payment of rent and shall inform the Landlord of all
combinations on locks, safes and vaults, if any, in the Leased Premises.
The Tenant shall, however, remove all its fixtures and any alterations
or improvements if requested by the Landlord as provided in Paragraph
11(1) hereof before surrendering the Leased Premises as aforesaid, and
shall repair any damage to the Leased Premises caused by their
installation and/or removal. The Tenant's obligation to observe and
perform this covenant shall survive the expiration or sooner
determination of the Term of this Lease.
Paragraph 10(5) Repair Where Tenant at Fault
If the Shopping Centre or the Common Areas and Facilities, or
any equipment, machinery or facilities contained therein or the roof or
outside walls of the Shopping Centre or any other structural portions
thereof require repair or become damaged or destroyed through the
negligence, carelessness or misuse of the Tenant, its servants, agents,
employees, contractors, lessees, licensees or concessionaires, or
through it or them in any way stopping up or injuring the heating
apparatus, water pipes, drainage pipes or other equipment or facilities
or parts of the Shopping Centre, the expense of the necessary repairs,
replacements or alterations plus a further fifteen percent (15%) of the
cost thereof, shall be borne by the Tenant who shall pay the same to the
Landlord forthwith upon presentation of an account of such expenses
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incurred by the Landlord as aforesaid.
Paragraph 10(6) Tenant not to Overload Utility Facilities
The Tenant agrees not to install any equipment which will
exceed or overload the capacity of any utility facilities in the Leased
Premises and agrees that if any equipment installed by the Tenant shall
require additional utility facilities, same shall be installed, if
available, at the Tenant's expense in accordance with plans and
specifications to be approved by the Landlord.
Paragraph 10(7) Not to Overload Floors
The Tenant covenants and agrees that it will not bring upon
the Leased Premises or any part thereof, any machinery, equipment,
article or thing that by reason of its weight, size or use might in the
opinion of the Landlord, damage the Leased Premises and will not at any
time, overload the floors of the Leased Premises and that if any damage
is caused to the Leased Premises, by any machinery, equipment, article
or thing or by overloading, or by any act, neglect, or misuse on the
part of the Tenant, or any of its servants, agents or employees, or any
person having operation with the Tenant, the Tenant will forthwith
repair the same or pay to the Landlord the cost of making good the same.
Paragraph 10(8) Plumbing Facilities
The plumbing facilities in the Leased Premises shall not be
used for any other purpose than that for which they are constructed, and
no foreign substance of any kind shall be thrown therein, and the
expense of any breakage, stoppage, or damage resulting from a violation
of this provision shall be borne by the Tenant.
Paragraph 1(9)
Removal and Restoration by Tenant
All alterations, decorations, additions and improvements made
by the Tenant, or made by the Landlord on the Tenant's behalf, (other
than the Tenant's fixtures), shall immediately become the property of
the Landlord without compensation therefor to the Tenant. Such
alterations, decorations, additions or improvements shall not be removed
from the Leased Premises either during or at the expiration of the Term
or sooner determination of the Lease except that:
(i) the Tenant may at the end of the Term, if not in default,
remove its fixtures;
(ii) the Tenant shall, at the end of the Term, at its own cost
remove such of its leasehold improvements and fixtures as the
Landlord may require to be removed;
(iii) the Tenant may remove its fixtures at the end of the Term and
also during the Term in the usual and normal course of its
o'peration or if such fixtures have become excess for the
Tenant's purposes or the Tenant is substituting therefor new
and similar fixtures, provided the Tenant is not in default
and provided the Tenant first notifies the Landlord thereof.
The Tenant shall, in the case of every such removal either
during or at the end of the Term, make good any damage caused to the
Leased Premises and/or the Shopping Centre by the installation and
removal of any such alteration, decoration, addition or improvement.
Paragraph 10(10) Notice by Tenant
The Tenant shall promptly notify the Landlord of any damage
to, or deficiency or defect in any part of the building in which the
Leased Premises are situate, any part of the Leased Premises or any
equipment or utility systems or installations therein located and
serving the Leased Premises, notwithstanding the fact that the Landlord
may have no obligations with respect to the same.
Paragraph 10(11) Tenant shall Discharge all Liens
The Tenant shall promptly pay all its contractors and
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materialmen and shall do any and all things necessary so as to minimize
the possibility of a lien attaching to the Leased Premises or to any or
all of the Shopping Centre and should any such lien be made or filed,
the Tenant shall discharge the same forthwith (after notice thereof is
given to the Tenant), at the Tenant's expense.
In the event that the Tenant shall fail to cause any such lien
to be discharged as aforesaid, then, in addition to any other right or
remedy of the Landlord, the Landlord may, but it shall not be so
obligated, discharge the same by paying the amount claimed to be due
into Court or directly to any such lien claimant and the amount, so paid
by the Landlord and all costs and expenses including solicitor's fee (on
a solicitor and his client basis) incurred herein for the discharge of
such lien shall be due and payable by the Tenant to the Landlord as
additional rent on demand.
Paragraph 10(12) Signs, and Advertising
The Tenant will not paint, affix, display or cause to be
painted, affixed or displayed, any sign, picture, advertisement, notice,
lettering or decoration on any part of the exterior of the Leased
Premises without, in each instance, the prior written approval of the
Landlord. If the Landlord in its sole discretion, acting reasonably
shall object to any sign, picture, advertisement, notice, lettering or
decoration which may be painted, affixed or displayed in any part of the
interior of the Leased Premises and which is visible from the exterior
thereof, the Tenant shall forthwith remove same at its sole cost and
expense. The Tenant agrees to erect and maintain an identification sign
or signs of a type or types and in a location or locations required in
writing by the Landlord and in accordance with the Landlord's sign
policy for the Shopping Centre. The Landlord may require that any such
sign be illuminated and the Tenant, at its expense, shall illuminate
such sign during such hours as the Landlord may require the Tenant to
illuminate the Leased Premises as hereinbefore provided. Any such sign
shall remain the property of the Tenant and shall be maintained by the
Tenant at its sole cost and expense and the Tenant shall pay for the
electricity in any such signs. If the electricity for all tenants'
signs in the building in which the Leased Premises are situate shall be
calculated on a single meter, the Tenant shall pay a pro-rata portion of
the cost of such electricity as equitably apportioned by the Landlord.
Any such signs shall be removed by the Tenant at the termination of the
Lease and the Tenant shall promptly repair any and all damage caused by
any such removal.
Paragraph 10(13) Pest Extermination
The Tenant shall use at the Tenant's cost such pest
extermination contractor as the Landlord may direct and at such
intervals as the Landlord may require.
SECTION 11
DAMAGE AND DESTRUCTION
Paragraph 11(1) Destruction of Leased Premises
(a)
In the event the Leased Premises shall at any time be
destroyed or damaged (including smoke damage), as a result of
fire, the elements, unavoidable accident or other casualty,
then and so often as such an event shall occur, the Lease
shall continue in full force and effect, the rental and other
amounts payable by the Tenant shall not terminate, be reduced
or abate notwithstanding the fact that the Tenant may not have
the use of the Leased Premises and the Landlord shall, subject
to the provisions of Paragraph 12(2)(b) hereof, comm]ence
diligently to reconstruct, rebuild or repair the Leased
Premises to the extent only of the Landlord's work set out in
the Agreement to Lease and exclusive of the Tenant's work as
therein set out, or to the extent only of the Landlord's work
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in connection with the original construction of the Leased Premises.
Upon the Tenant being notified in writing by the Landlord that the
Landlord's work of reconstruction or rebuilding or repairs are
substantially completed, the Tenant shall forthwith complete all
Tenant's work, including, without limitation, such work as is set
out in the Agreement to Lease or the Tenant's Work in connection
with the original construction of the Leased Premises and all work
required to fully restore the Leased Premises for operation full%
fixtured, stocked and staffed. The Tenant shall complete its work
and open for operation within thirty (30) days after notice that the
Landlord's work is substantially completed.
Paragraph 11(2) Destruction of Shopping Centre
(a)
In the event that less than fifty percent (50%) of the area of
all buildings in the Shopping Centre shall at any time be
destroyed or damaged (including smoke damage) as a result of
fire, the elements, unavoidable accident or other casualty,
notwithstanding that the Leased Premises may be unaffected by
~uch occurrence, or in the event that more than fifty percent
(50%) of the area of all buildings in the Shopping Centre are
so damaged or destroyed but the Landlord shall not exercise
its option to terminate this Lease as set out in Paragraph
12(2)(b) hereof, then and so often as such event shall occur,
the Lease shall continue in full force and effect, the rental
percentage rent to be calculated in accordance with the
provisions of 12(1) hereof, and other amounts hereby reserved
shall not abate, and the Landlord shall commence diligently to
reconstruct, rebuild or repair the Shopping Centre following
such destruction or damage, but only to the extent of the
Landlord's responsibilities pursuant to the terms of the
various leases of premises in the Shopping Centre and
exclusive of any tenant's resonsibilities set out therein.
(b)
Notwithstanding the provisions of Paragraph 12(1)(a) hereof,
in the event that fifty percent (50%) or more of the area of
all buildings in the Shopping Centre shall at any time be
destroyed or damaged as set out in Paragraph 12(2)(a) hereof,
then and so often as any of such events shall occur, the
Landlord may, at its option, to be exercised by notice in
writing to the Tenant, given within ninety (90) days next
following any such occurrence, elect to cancel or terminate
this Lease and in the case of such election, the Term of this
Lease and the tenancy hereby created shall expire by lapse of
time upon the thirtieth (30th) day after such notice is given,
and the Tenant shall, with such thirty (30) day period, vacate
the Leased Premises and surrender the same to the Landlord
with the Landlord having the right to re-enter and/or
repossess the Leased Premises discharged of this Lease and to
remove all persons and property therefrom. Minimum Rent,
Percentage Rent and Additional Rent shall be due and payable
without reductions or abatement subsequent to the destruction
and damage and until the date of determination.
(c)
In the event the Landlord shall elect to repair, reconstruct
or rebuild the Shopping Centre or any part or parts thereof,
the Landlord may use plans and specifications and working
drawings other than those used in the original construction of
same.
Paragraph 11(3) Architect's Certificate
The certificate of the Architect as to the percentage of the
area of the buildings in the Shopping Centre damaged or destroyed; the
date upon which the Landlord's work of reconstruction and/or repairs is
substantially completed; the state of completion of any work of either
the Landlord or the Tenant under this Lease; or the percentage of the
area of the buildings or the Conmon Areas and Facilities or the parking
area in the Shopping Centre acquired or expropriated pursuant to the
terms of this Lease, shall bind the parties hereto.
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SECTION 12
ASSIGNMENT AND SUBLETTING
Paragraph 12(1) Consent Required
The Tenant will not assign this Lease in whole or in part, nor
sublet all or any part of the Leased Premises, nor mortgage or encumber
this Lease or the Leased Premises or any part thereof, nor suffer or
permit the occupation of all or any part thereof by others, without the
prior written consent of the Landlord in each instance, which consent,~
may, notwithstanding any statutory provision or provisions to the
contrary, be arbitrarily withheld. The consent by the Landlord to any
assignment or subletting shall not constitute a waiver of the necessity
for such consent to any subsequent assignment or subletting. This
prohibition against assigning or subletting shall be construed to
include a prohibition against any assignment or subletting by operation
of law. If this Lease be assigned, or if the Leased Premises or any
part thereof be sublet or occupied by anybody other than the Tenant, the
Landlord may collect rent from the assignee, subtenant, or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, subtenant, or
occupant as tenant, or a release of the Tenant from the further
performance by the Tenant of covenants on the part of the Tenant herein
contained. Notwithstanding any assignment or sublease, the Tenant shall
remain jointly and severally liable on this Lease and shall not be
released from performing any of the terms, covenants and conditions of
this Lease. Any assignment of this Lease if consented to by the
Landlord shall be prepared by the Landlord or its solicitors, and any
and all legal costs with respect thereto shall be borne by the Tenant.
Any consent granted by the Landlord shall be subject to the Tenant
causing any such assignee, sublessee or occupant to execute an indenture
and covenant directly with the Landlord agreeing to be bound by all of
the terms contained in this Lease, as if such assignee, sublessee or
occupant had originally executed this Lease as Tenant.
Paragraph 12(2) Landlord's Option
In the event that the Tenant desires to assign, sublet or part
with possession of all or any part of the Leased Premises, or to
transfer this Lease in any other manner, in whole or in part or any
estate or interest thereunder, then and so often as such event shall
occur, the Tenant shall give prior written notice to the Landlord of
such desire, specifying therein the proposed assignee, transferee or
sublet tenant and the Landlord shall, within thirty (30) days
thereafter, notify the Tenant in writing either, that: (i) it consents
or (ii) does not consent as aforesaid to the assignment, subletting or
parting with or sharing possession as the case may be, or (iii) it
elects to cancel this Lease in preference to the giving of such consent.
In the event the Landlord elects to cancel this Lease as aforesaid, the
Tenant shall notify the Landlord in writing within fifteen (15) days
thereafter of the Tenant's intention either to refrain from such
assigning, subletting or parting with or sharing possession or to accept
the cancellation of this Lease. Should the Tenant fail to deliver such
notice within such period of fifteen (15) days, this Lease will thereby
be terminated upon the expiration of the said fifteen (15) day period.
Paragraph 12(3) Advertising
Tenant shall not print, publish, post, mail, display,
broadcast or otherwise advertise or offer for any of the aforesaid
purposes, the whole or any part of the Leased Premises for purposes of
assignment, sublet, transfer or encumbrance, and shall not permit any
broker or other party to do any of the foregoing, unless the complete
text and format of any such notice, advertisement, or offer shall have
first been approved in writing by Landlord. Without in any way
restricting or limiting Landlord's right to refuse any text and format
on other grounds, any text and format proposed by Tenant shall not
contain any reference to the rental rate for the premises.
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Paragraph 12(4) Assignment by Landlord
In the event of the sale or lease by the Landlord of the
Shopping Centre or any part or parts thereof, or the assignment by the
Landlord of this Lease or any interest of the Landlord hereunder, and to
the extent that such purchaser or assignee has assumed the covenants and
obligations of the Landlord hereunder, the Landlord shall, without
further written agreement, be freed and relieved of liability upon such
covenants and obligations.
SECTION 13
ACCESS AND ALTERATIONS
Paragraph 13(1) Right of Entry
The Landlord or its agents shall have the right to enter the
Leased Premises at all times to examine the same, and to show them to
prospective purchasers, lessees or mortgagees, and to make such repairs,
alterations, improvements or additions to the Leased Premises and the
Shopping Centre or any part thereof as the Landlord may deem necessary
or desirable, and the Landlod shall be allowed to take all material into
and upon the Leased Premises which may be required therefor without the
same constituting an eviction of the Tenant in whole or in part and the
rent reserved shall not abate while said repairs, alterations,
improvements or additions are being made due to loss or interruption of
operation of the Tenant, or otherwise. During the twelve (12) months
prior to the expiration of the Term of this Lease or any fenwal term,
the Landlord may exhibit the Leased Premises to prospective tenants or
purchasers, and place upon the Leased Premises the usual notices "To
Let" or "For Sale", which notices the Tenant shall permit to remain
thereon without molestation. If the Tenant shall not be personally
present to open and permit an entry into the Leased Premises, at any
time, when for any reason an entry therein shall be necessary or
permissible, the Landlord or such agents may enter the same by a master
key, or may forcibly enter the same, without rendering the Landlord or
such agents liable therefor, and without in any manner affecting the
obligations and covenants of this Lease. Nothing herein contained,
however, shall be deemed or construed to impose upon the Landlord any
obligation, responsibility or liability whatsoever for the care,
maintenance or repair of the Leased Premises, or any part thereof,
except as otherwise herein specifically provided.
Paragraph 13(2) Excavation
If an excavation shall be made upon land adjacent to the
Leased Premises, or shall be authorized to be made, Tenant shall afford
to the person causing or authorized to cause such excavation, licence to
enter upon the Leased Premises for the purpose of doing such work as
Landlord shall deem necessary to preserve the wall or the building of
which the Leased Premises form a part from injury or damage and to
support the same by proper foundations, without any claim for damages or
indemnification against Landlord or diminution or abatement of rent.
SECTION 14
STATUS STATEIqENT, ATTORNMENT AND SUBORDINATION
Paragraph 14(1) Status Statement
Within ten (10) days after written request therefor by the
Landlord, or in the event that upon any sale, assignment, lease or
mortgage of the Leased Premises and/or the land thereunder by the
Landlord, a status statement shall be required from the Tenant, the
Tenant agrees to deliver in a form supplied by the Landlord a
certificate to any proposed mortgagee or purchaser, or to the Landlord,
stating (if such be the case) that:
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(i) this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full
force and effect as modified and identify the modification
agreements) or if this Lease is not in full force and effect,
the certificate shall so state;
(ii) the date of commencement of the Term;
(iii) the date to which rental has been paid under this Lease;
(iv) whether or not there is any existing default by the Tenant in
the payment of any rent or other sum of money under this
Lease, and whether or not there is any existing default by
either party under this Lease with respect to which a notice
of default has been served and if there is any such default,
specifying the nature and extent thereof;
(v) whether there are any setoffs, defenses or counter claims
against enforcement of the obligations to be performed by the
Tenant under this Lease; and,
(vi) with reasonable particularity, evidence of the Tenant's
financial standing.
Paragraph 14(2) Attornment
The Tenant shall, in the event any proceedings are brought for
the foreclosure of, or in the event of exercise of the power of sale
under any mortgage, charge, lease on sale and leaseback transaction,
deed of trust or the lien resulting from any other method of financing
or refinancing made by the Landlord covering the Leased Premises and/or
the Shopping Centre, attorn to the mortgagee, chargee, lessee, trustee,
other encumbrancer or the purchaser upon any such foreclosure or sale
and recognize such mortgagee, chargee, lessee, trustee, other
encumbrancer or the purchaser as the Landlord under this Lease.
Paragraph 14(3) Subordination
This Lease and all of the rights of the Tenant hereunder are,
and shall at all times, be subject and subordinate to any and all
mortgages, trust deeds or the charge or lien resulting from any other
method of financing or refinancing, or any renewals or extensions
thereof, now or hereafter in force against the lands, buildings and
improvements forming the Shopping Centre, and upon request of the
Landlord and Tenant will subordinate this Lease and all of its rights
hereunder in such form or forms as the Landlord may require to any such
mortgage or mortgages, trust deeds or the charge or lien resulting from
any other method of financing or refinancing and to all advances made or
hereafter to be made upon the security thereof, and will, if requested,
attorn to the holder thereof. No subordination by the Tenant shall have
the effect of permitting the holder of any mortgage or charge or other
security to disturb the occupation and possession 'by the Tenant of the
Leased Premises, so long as the Tenant shall perform all of the terms,
covenants, conditions, agreements and provisos contained in this Lease,
and so long as the Tenant executes contemporaneously, a document of
attornment as required by any such Mortgagee or other encumbrancer.
Paragraph 14(4) Execution of Instruments
The Tenant, upon request of any party in interest, shall
execute promptly such instruments or certificates to carry out the
intent of Paragraph 14(2) and 14(3) above as shall be requested by the
Landlord. If ten (10) days after the date of a request by the Landlord
to execute such instruments, the Tenant shall not have executed the
same, the Landlord may, at its option, cancel this Lease without
incurring any liability on account thereof, and the Term hereby granted
is expressly limited accordingly.
SECTION 15
DEFAULT
Paragraph 15(1) Right to Re-enter
Proviso for re-entry by the Landlord on non-payment of rent or
non-performance of covenants.
- 26 -
In the event of any failure of the tenant to pay any rental or
other sums due hereunder on the day o~ dates appointed for the payment
thereof (provided the Landlord shall give five (5} days' written notice
to the Tenant of any such failure) or in the event of any failure of the
Tenant to perform any other of the terms, conditions or covenants of
this Lease to be observed or performed by the Tenant, (provided the
Landlord shall have first given the Tenant ten (10) days' written notice
of any such failure to perform, and the Tenant shall, within such period
of ten (10) days, have failed to commence diligently and thereafter
proceeded diligently, to cure any such failure to perform), or if the
Tenant or any agent of the Tenant shall falsify any report required to
be furnished to the Landlord pursuant to the terms of this Lease or if
the Leased Premises have become and remain vacant for a period of seven
{7) days or are used by any other person{s) than such as are entitled to
use them hereunder, or if the Tenant shall suffer this Lease, or any of
its assets to be taken under any writ of execution, or if re-entry is
permitted under any other terms of this Lease,. then the Landlord,
besides any other rights or remedies it may have, pursuant to this Lease
or by-law, shall have, to the extent permitted by law, the immediate
right of re-entry and may remove all persons and property from the
Leased Premises and such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the account of the
Tenant, all without service of notice or resort to legal process and
without being deemed guilty of trespass, or becoming liable for any loss
or damage which may be occasioned thereby.
Paragraph 15(2) Right to Relet
Should the Ladlord elect to re-enter, as herein provided, or
should it take possession pursuant to legal proceedings or pursuant to
any notice provided for by law, it may either terminate this Lease or it
may from time to time without terminating this Lease, make such
alterations and repairs as may be necessary in this Lease, in order to
relet the Leased Premises, or any part thereof for such term or terms
(which may be for a term extending beyond the Term of the Lease) and at
such rental or rentals and upon such other terms and conditions as the
Landlord in its sole discretion may deem advisable; upon each such
reletting all rentals received by the Landlord from such reletting shall
be applied, first, to the payment of any indebtedness other than rent
due hereunder from the Tenant to the Landlord; second, to the payment of
any costs and expenses of such reletting including brokerage fees and
solicitor's fees and of costs of such alterations and repairs; third, to
the payment of rent due and unpaid hereunder, and the residue, if any,
shall be held by the Landlord and the payment of/f lent due and unpaid
hereunder; and the residue, if any, shall be helsF by the Landlord and
applied in payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any
month be less than that to be paid during that month by the Tenant
hereunder, the Tenant shall pay any such deficiency to the Landlord.
Such deficiency shall be calculated and paid monthly. No such re-entry
or taking possession of the Leased Premises by the Landlord shall be
construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to the Tenant.
Notwithstanding any such reletting without termination, the Landlord may
at any time thereafter elect to terminate this Lease for such previous
breach. Should the Landlord at any time terminate this Lease for any
breach, in addition to any other remedies it may have, it may recover
from the Tenant all damages it may incur by reason of such breach,
including the cost of recovering the Leased Premises, reasonable
solicitor's fees and including the worth at the time of such termination
of the excess, if any, of the amount of rent and charges equivalent to
rent reserved in this Lease for the remainder of the stated Term, over
the then reasonable rental value of the Leased Premises for the
remainder of the stated Term, all of which amounts shall be immediately
due and payable from the Tenant to the Landlord. If such termination
shall take place after the expiration of two or more 12-month Lease
- 27 -
Years, the annual rent for each Lease Year after such termination
'subsequent to default, shall be equal to the average fixed annual
minimum rent paid by the Tenant during such expired lease Years. If
such termination shall take place before the expiration of two 12-month
Lease Years, the annual rent so payable in each Lease Year after such
termination shall be conclusively presumed to be equal to twelve (12)
times the average fixed minimum monthly rent which would have been
payable prior to such termination had Paragraph 4(3) of this Lease
required monthly payments of percentage rental based on Gross Revenue
during each such months. In any of the events referred to in Paragraph
16(1) hereof, in addition to any and all other rights, including the
rights referred to in this Section and in Paragraph 16(1) hereof, the
full amount of the current month's fixed minimum monthly rent, monthly
contributions towards taxes, insurance premiums, the Tenant's
Proportionate Share of costs of maintaining and operating the Common
Areas and Facilities and the Shopping Centre as set out in Paragraph
6(4) hereof, and any other payments required to be made monthly
hereunder, and the next three (3) months' fixed minimum monthly rent and
such payments, shall immediately become due and payable.
Paragraph 15(3) Expenses
In case suit shall be brought for recovery of possession of
the Leased Premises, for the recovery of rent or any other amount due
under the provisions of this Lease, or because of the breach of any
other covenants herein contained on the part of the Tenant to be kept or
performed, and a breach shall be established, the Tenant shall pay to
the Landlord all expenses incurred therefor, including a reasonable
solicitor's fee.
Paragraph 15(4) Removal of Chattels
In case of removal by the Tenant of the goods and chattels of
the Tenant from the Leased Premises, the Landlord may follow same for
thirty (30) days in the same manner as is provided for in The Landlord
and Tenant Act (Ontario).
Paragraph 15(5) No Distress
The parties hereby covenant and agree that in consideration of
the premises and of leasing and letting by the Landlord to the Tenant of
the Leased Premises for the term hereby created (and it is upon that
express understanding that these presents are entered into), that none
of the goods and chattels of the Tenant at any time during the
continuance of the term hereby created on the Leased Premises shall be
subject to levy by distress for rent in arrears by the Tenant and that
upon any distress being made by the Landlord this covenant and agreement
may be pleaded as an estoppel against the Landlord in any action brought
to test the right to the levying.
Paragraph 15(6)
Landlord May Cure Tenant's Default and/or Perform
Tenant's Covenants
If the Tenant shall fail to pay, when due, any amounts or
charges required to be paid pursuant to this Lease, the Landlord, after
given five (5) days' notice in writing to the Tenant, may, but shall not
be obligated to pay all or any part of the same. If the Tenant shall be
in default in the performance of any of its covenants hereunder (other
than the payment of rent or other sums required to be paid pursuant to
the terms of this Lease), the Landlord may from time to time after the
giving of such notice as it shall deem sufficient (or no notice in the
case of an emergency) having regard to the circumstances applicable,
perform or cause to be performed any of such covenants or obligations,
or any part thereof, and for such purpose may do such things as may be
requisite, including, without limitation, entering upon the Leased
Premises and doing such things upon or in respect of the Leased Premises
or any part thereof as the Landlord may reasonably consider requisite or
necessary. All expenses incurred and expenditures made by or on behalf
of the Landlord under this Paragraph 16(6) plus a sum equal to fifteen
percent (15%) thereof shall be additional rent hereunder and shall be
paid by the Tenant upon demand. The Landlord shall have no liability to
- 25 -
the Tenant for any loss or damages resulting from any such action by the
Landlord, and entry by the Landlord under the provisions of Section 14
or 16 shall constitute breach of the covenant for quiet enjoyment or an
eviction.
Paragraph 15(7) Additional Rent
If the Tenant shall be in default in the payment of any
amounts or charges required to be paid pursuant to the terms of this
Lease, they shall, if not paid when due, be collectible as rent with the
next installment of rent thereafter falling due hereunder, but nothing
herein contained shall be deemed to suspend or delay the payment of any
amount of money or charges at the time same becomes due and payable
hereunder, or limit any other remedy of the Landlord. The Tenant
covenants and agrees that the Landlord may at its option, apply any sums
received from or due to the Tenant against any amounts due and payable
hereunder in such manner as the Landlord sees fit.
SECTION 16
RULES AND REGULATIONS
Paragraph 16(1) Rules and Regulations
The rules and regulations attached hereto as Schedule "C" are
hereby made a part of this Lease, as if they were embodied herein, and
the Tenant agrees to comply with and observe the same. the Tenant's
failure to keep and observe said rules and regulations shall constitute
a breach of this Lease in such manner as if the same were contained
herein as covenants. The Landlord reserves the right from time to time
to amend or supplement said rules and regulations and to adopt and
promulgate additional rules and regulations applicable to the Leased
Premises and/or the Shopping Centre. Notice of such rules and
regulations and amendments and supplements, if any, shall be given to
the Tenant, and the Tenant agrees thereupon to comply with and observe
all such rules and regulations, and amendments thereto and supplements
thereof, provided that no rule or regulation shall contradict any
provisions of this Lease. The Landlord shall not be responsible to the
Tenant for non-observance or violation of any provisions of such rules
and regulations or of the terms of any other lease or premises in the
Shopping Centre, and shall be under no obligation to enforce any such
provisions.
SECTION 17
MISCELLANEOUS
Paragraph 17(1) Overholding - NO Tacit Renewal
In the event that the Tenant remains in possession of the
Leased Premises after the end of the Term hereof with the consent of the
Landlord and without the execution and delivery of a new lease, there
shall be no tacit renewal of this Lease and the Term hereby granted,
notwithstanding any statutory regulations to the contrary, and the
Tenant shall be deemed to be occupying the Leased Premises as a Tenant
from month to month at a monthly rental payable in advance on the 1st
day of each month equal to the sum of:
(i) The fixed minimum monthly rent payable during the last month
of the Term of this Lease;
and otherwise, upon the same terms and conditions as are set forth in
this Lease, so far as applicable.
- 29 -
Paragraph 17(2) Successors
All rights and liabilities herein given to, or imposed upon,
the respective parties hereto shall extend to and bind the several
respective permitted heirs, executors, administrators, successors and
assigns of the said parties; and if there shall be more than one Tenant,
they shall all be bound jointly and severally by the terms, covenants
and agreements herein. No rights, however, shall enure to the benefit
of any assignee of the Tenant unless the assignment to such assignee has
been approved by the Landlord in writing as provided in Paragraph 13(1)
hereof.
Paragraph 17(3) Waiver
The waiver by the Landlord of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such
term, covenant or condition or any subsequent br~ach of the same or any
other term, covenant or condition herein contained. The subsequent
acceptance of rent hereunder by the Landlord shall not be deemed to be a
waiver of any preceeding breach by the Tenant of any term, covenant or
condition of this Lease, regardless of the Landlord's knowledge of such
preceeding breach at the time of acceptance of such rent. No covenant,
term or condition of this Lease shall be deemed to have been waived by
the Landlord unless such waiver be in writing by the Landlord.
All rent, additional rent and other sums of money to be paid
by the Tenant to the the Landlord hereunder shall be paid without any
deduction, abatement or set-off whatsoever and the Tenant hereby waives
the benefit of any statutory or other rights in respect of abatement or
set-off in its favour at the time hereof or at any future time.
Paragraph 17(4) Accord and Satisfaction
No payment by the Tenant or receipt by the Landlord of a
lesser amount than the fixed minimum monthly rent herein stipulated
shall be deemed to be other than on account of the earliest stipulated
rent, nor shall any endorsement or statement on any cheque or any letter
accompanying any cheque or payment as rent be deemed an accord and
satisfaction, and the Landlord may accept such cheque or payment without
prejudice to the Landlord's right to recover the balance of such rent or
pursue any other remedy in this Lease provided.
Paragraph 17(5) Entire Agreement
This Lease and the Schedules- and Riders, if any, attached
hereto and forming a part hereof -~ thc ~
b~..~m~-t~, together with the rules and regulations promulgated by the
Landlord pursuant to Paragraph 17(1) hereof, set forth all the
covenants, promises, agreements, conditions and understandings between
the Landlord and the Tenant concerning the Leased Premises and there are
no covenants, promises, agreements, conditions or understandings, either
oral or written, between them other than are herein set forth. Except
as herein otherwise provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon the Landlord or
the Tenant unless in writing and signed by each of them.
Paragraph 17(6) Force Majeure
Notwithstanding anything to the contrary in this Lease
contained, if either party hereto shall be bona fide delayed or hindered
in or prevented from the performance of any term, covenant or act
required hereunder by reason of strikes; labour troubles; inability to
procure materials or services; failure of power; restrictive
governmental laws or regulations; riots, insurrection; sabotage;
rebellion; war; act of God; or other reason whether of a like nature or
not, not the fault of the party delayed in performing work or doing acts
required under the terms of this Lease, then performance of such term,
covenant or act shall be excused for the period of the delay and the
period for the performance of any such term, covenant or act shall be
extended for a period equivalent to the period of such delay. The
provisions of this section shall not operate to excuse the Tenant from
- 30 -
the prompt payment of rent, percentage rent, additional rent or any
other payments required by the terms of this Lease.
Paragraph 17(7) Notices
Any notice, demand, request or other instrument which may be
or is required to be given under this Lease shall be delivered in person
or sent by registered mail postage prepaid and shall be addressed (al if
to the Landlord c/o Aiken, Capp, Barristers & Solicitors, 2 St. Clair
Avenue East, 10th Floor, Toronto, Ontario, M4T 2R1 and (b) if to the
Tenant c/o Chief Librarian, Town of Pickering Public Library, Box 368,
Picketing, Ontario Lgv 2R6. Any such notice, demand, request or
consent shall be conclusively deemed to have been given or made on the
day upon which such notice, demand, request or consent is delivered, or,
if mailed, then on the next operation date following the date of the
mailing as the case may be, and either party may at any time give notice
in writing to the other of any change of address of the party giving
such notice and from and after the giving of such notice, the address
therein specified shall be deemed to be the address of such party for
the giving of notices hereunder.
Paragraph 17(8) Captions and Paragraph Numbers
The capitons, Paragraph number, section numbers and index
appearing in this Lease are inserted only as a matter of convenience and
in no way define, limit, construe or describe the scope or intent of
such paragraphs or sections of this Lease nor in any way affect this
Lease.
Paragraph 17(9) Extended Meanings
The word "Tenant" shall be deemed to include the word "lessee"
and mean each and every person or party mentioned as a Tenant herein, be
the same one or more; and if there shall be more than one Tenant, any
notice required or permitted by the terms of this Lease may be given by
or to any one thereof, and shall have the same force and effect as if
given by or to all thereof. Any reference to "Tenant" shall include,
where the context allows, the servants, employees, agents, invitees and
licensees of the Tenant and all others over whom the Tenant might
reasonably be expected to exercise control. Wherever the word Landlord
is used in this Lease, it shall be deemed to include the word "lessor"
and to include the Landlord and its duly authorized representatives.
The words "hereof", "herein", "hereunder" and similar expressions used
in any paragraph or sub-paragraph relate to the whole of this Lease, not
to that paragraph or that sub-paragraph only, unless otherwise expressly
provided.
The use of the neuter singular pronoun to refer to the
Landlord or the Tenant shall be deemed a proper reference even though
the Landlord or the Tenant may be an individual, a partnership, a
corporation, or a group of two or more individuals or corporations. The
necessary grammatical changes required to make the provisions of this
Lease apply in the olural sense where there is more than one Landlord or
Tenant and to ei'ther corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as
though in each case fully expressed.
Paragraph 17(10) Partial Invalidity
If any term, covenant or condition of this Lease or the
application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or
condition of this Lease shall be valid and enforced to the fullest
extent permitted by law.
- 31 -
Paragraph 17(11) No Option
The submission of this Lease for examination does not
constitute a reservation of or option for the Leased Premises and this
Lease becomes effective as a Lease only upon execution and delivery
thereof by the Landlord and the Tenant.
Paragraph 17(12) Registration
The Tenant shall not register this Lease without the written
consent of the Landlord. However, upon the request of either party
hereto, the other party shall join in the execution of a memorandum or
so-called "short form" of this Lease for the purposes of registration.
Said memorandum or short form of this Lease shall only describe the
parties, the Leased Premises and the term of this Lease, and shall be
prepared by the Tenant's solicitors and shall be subject to the approval
of the Landlord and its solicitors.
Paragraph t7(13) Rider
A rider consisting of one (1) page, with paragraphs numbered 1
through 7 is attached hereto and constitutes an integral part hereof.
Paragraph 17(14) Compliance with The Planning Act
It is an expressed condition of the within Lease and the
Landlord and the Tenant so agree and declare that the provisions of
Section 29 of The Planning Act, being Chapter 379 of The Revised
Statutes of Ontario, 1980, and amendments thereto, be complied with if
applicable in law.
Paragraph 17(15) Governing Law
This Lease shall be construed and governed by the laws of the
Province of Ontario.
Paragraph 17(16) Time of the Essence
Time shall be of the essence of this Lease and of every part
hereof.
Paragraph 17(17) Quiet Enjoyment
Upon payment by the Tenant of the rents herein provided, and
upon the observance and performance of all covenants, terms and
conditions on the Tenant's part to be observed and performed, the Tenant
shall peaceably and quietly hold and enjoy the Leased Premises for the
Term hereby demised without hinderance or interruption by the Landlord,
or any other person or persons lawfully claiming by, through or under
the Landlord subject, nevertheless, to the terms and conditions of this
Lease.
IN WITNESS WHEREOF, the Landlord and the Tenant have signed
- 32 -
and sealed this Lease as of the day and year first above written.
SIGNED, SEALED AND DELIVERED
In the Presence of
VINJOHN DEVELOPMENTS LIMITED
Per: ~
Per:
THE TOWN OF PICKERING PUBLIC
LIBRARY BOARD
P e r: J~~-~-,-~-~
Per:
SCHEDULE "A"
DESCRIPTION OF SHOPPING CENTRE
FIRSTLY, ALL AND SINGULAR that certain parcel or tract of land and
premises situate, lying and being in the Town of Pickering, in the
Regional Municipality of Durham and being composed of the whole of Block
1, according to a plan filed in the Land Registry Office for the Land
Titles Division of Durham (No.40) as Number 40M-1236.
SUBJECT to an easement in favour of Her Majesty the Queen in Right of
Ontario as represented by the Minister of the Environment over Parts 2
and 6 on a plan of survey filed in the said Land Registry Office as
Number 40R-6644 as more particularly set forth in Instrument Number
D54453.
SUBJECT FURTHER to an easement in favour of The Corporation of the Town
of Pickering over Parts 1, 2 and 3 on said Plan 40R-6644 as more
particularly set forth in Instrument Number LT135836.
SUBJECT FURTHER to a right in the nature of a licence or easement in
favour of Silver Filve Investments Inc. over the whole of the lands
described herein as more particularly described in Instrument Number
LTl14106.
RESERVING UNTO the Transferor, its successors, assigns, servants or
agents, a right in the nature of a licence or easement to enter upon the
within lands at any time and from time to time prior to the release by
The Corporation of the Town of Pickering and the Regional Municipality
of Durham of the Transferor from its development obligations as
contained in any development agreements entered into with The
Corporation of the Town of Pickering and the Regional Nunicipality of
Durham in respect of the within lands, in order to complete or rectify
any works which The Corporation of the Town of Pickering or the Regional
Municipality of Durham may require.
SECONDLY, ALL AND SINGULAR that certain parcel or tract of land and
premises situate, lying and being in the Town of Pickering, in the
Regional Municipality of Durham and being composed of all of Block 76,
Plan M-1215.
SUBJECT to a right in the nature of a licence of easement in favour of
Silver Filve Investments Inc. over the whole of the lands described
herein as more particularly described in Instrument Number LTl14106.
- 35 -
SCHEDULE "C"
RULES AND REGULATIONS
Tenant Agrees as follows:
1. All loading and unloading of goods shall be done only at such
times, in the areas, and through the entrances designated for such
purposes by the Landlord.
2. The delivery or shipping of merchandise, supplies and fixtures
to and from the Leased Premises shall be subject to such rules and
regulations as in the judgement of Landlord are necessary for the proper
operation of the Leased Premises or Shopping Centre.
3. All garbage and refuse shall be kept in the kind of container
specified by Landlord, and shall be placed outside of the premises
prepared for collection in the manner and at the times and places
specified by Landlord. If Landlord shall provide or designate a service
for picking up refuse and garbage, Tenant shall use same at Tenant's
cost. Tenant shall pay the cost of removal of.any of Tenant's refuse or
rubbish.
4. No radio or television or other similar device shall be
installed without first obtaining in each instance, Landlord's consent
in writing. No aerial shall be erected on the roof or exterior walls of
the premises, or on the grounds, without in each instance, the written
consent of Landlord. Any aerial so installed without such written
consent shall be subject to removal without notice at any time.
5. No loud speakers, televisions, phonographs, radios, or other
devices shall be used in a manner so as to be heard or seen outside the
Leased Premises without the prior written consent of Landlord.
6. The driveways and entrances shall not be obstructed by the
Tenant, his servants and/or visitors, or be used by him or anyone
authorized by him for any purpose, except access to and egress from the
Leased Premises, and the sidewalks shall not be obstructed in any way,
or be used for any purpose other than as walks or footpaths.
7. The plumbing facilities shall not be used for other purpose
than that for which they are constructed, and no foreign substance of
any kind shall be thrown therein, and the expense of any breakage,
stoppage, or damage resulting from a violation of this provision shall
be borne by Tenant, who shall, or whose employees, agents or invitees
shall have caused it.
8. Tenant shall use at Tenant's cost such pest extermination
contractor as Landlord may direct and at such intervals as Landlord may
require.
9. Tenant shall not burn any trash or garbage of any kind in or
about the Leased Premises, or anywhere within the confines of the
Shopping Centre.
10. No goods, provisions or materials of any offensive odour or
combustible nature shall be kept in the Leased Premises, except those
required for the normal operation of the Tenant's operation.
11. No fuel or combustible material for heating, lighting,
illuminating or cooking, and no stove, burner, apparatus or appliance
for utilizing the same and no thing or equipment which would cause
offensive odours, fire hazard, undue loads on electrical conducts,
vibrations, undue heat or noise other than as provided or sanctioned by
the Landlord shall be brought into the building or used therein by the
Tenant, his servants, or by any persons under his instructions, except
where such items are required in the normal operation of the Tenant's
operation.
12. No domestic or pet animal or bird shall be brought into the
building or kept therein.
- 36 -
13. The Tenant shall notify the Landlord immediately of any
unusual or criminal activity including thefts, suspected thefts,
accidents, fire or damage to property affecting the Shopping Centre or
any part thereof.
Tenant and Tenant's employees and agents shall not solicit
operation in the parking areas or other common areas, nor shall Tenant
distribute any handbills or other advertising matter in the parking
areas or other common areas.
15. Tenant shall furnish the Landlord with automobile license
numbers assigned to Tenant's car or cars and cars of its employees
within five (5) days after taking possession of the demised premises and
shall thereafter notify the Landlord of any changes within five (5) days
after such changes occur. The Landlord may designate an employee
parking area that may be used by all Tenants and their employees. In
the event that the Tenant and/or its employees park their vehicles in
areas of the Shopping Centre other than those areas that may be
designated by the Landlord, the Landlord shall have the right to charge
Tenant ten ($10.00) dollars per vehicle each day or part of a day that
such vehicle is parked in any other areas than those designated.
- 37 -
RIDER
THIS IS PAGE 1 OF A RIDER TO THE LEASE DATED THE DAY
OF , 1982.
The Landlord agrees to perform the following work, at its
cost, on the Leased Premises prior to commencement of this Lease:
2.
3.
4.
5.
Four (4) walls to be drywalled and ready for paint.
Concrete floors in smooth finish.
200 amp single phase electrical service to a disconnect.
Water line into unit (Tenant to supply own hot water tank).
Two washrooms, drywalled, ready for paint, each with toilet
and sink.
Gas heating and air-conditioning unit installed on roof,
ducting to be ~one at Tenant's expense.
7. Landlord to install main pylon sign and Tenant to pay its
proportio~ate share of cost for same.
SCHEDULE B
THIS AGREEMENT made as of December 31, 1987.
BETWEEN:
VINJOHN DEVELOPMENTS LIMITED,
an Ontario corporation carrying
on business as
MAPLE RIDGE SHOPPING CENTRE
herein called the "Landlord"
OF THE FIRST PART,
THE TOWN OF PICKERING
PUBLIC LIBRARY BOARD
herein called the "Tenant",
OF THE SECOND PART.
RECITALS
On or about July 15, 1982, the parties hereto entered into a Lease Agreement
(the "Lease") whereby the Tenant leased from the Landlord certain premises as
described therein (the "Leased Premises") for a term comprising two five year
periods, the first period being from January 1, 1983 to and including December
31, 1987 and the second period being from January 1, 1988 to and including
December 31, 1992, subject to certain terms and conditions.
One such term (paragraph 4(2)) provides that the amount of the fixed annual
minimum rent payable by the Tenant during the second five year period of term
shall be settled by the parties in accordance with the provisions thereof prior
to the commencement of that period.
A further term (paragraph 12) provides for the assignment of the Lease by the
parties and the subletting of the Leased Premises by the Tenant.
The parties have settled the amount referred to in 2, above, at $48,994.00,
being $17.00 per square foot per year for 2,882 square feet, on condition that
the Landlord agree to certain changes respecting the Tenant's rights referred
to in 3, above.
NOW THEREFORE the Landlord and the Tenant, in consideration of the sum of $2.00
now paid by each to the other, receipt of which by each is hereby acknowledged,
hereby agree as follows:
1. (1)
In this Agreement, the term "Lease" means the Lease Agreement entered
into by the parties hereto on or about July 15, 1982, whereby the Tenant
leased from the landlord 2,882 square feet of space in the shopping
centre located on Block 1, Plan 40M~1236, Picketing, and known as the
Maple Ridge Shopping Centre.
(2) Wherever any term that is defined in the Lease is used in this Agreement
it shall have the meaning ascribed to it in the Lease.
The Landlord and the Tenant acknowledge that they are bound by all the terms
and provisions of the Lease, as amended hereby.
Paragraph 3(3) of the Lease is hereby amended by adding thereto the following:
A second period of five (5) years and no months commencing on the 1st
day of January, 1988 and to be fully completed and ended on the 31st day of
December, 1992.
Paragraph 4(2), 4(3) and 4(4) of the Lease are hereby deleted and the follow-
ing substituted for them:
Paragraph 4(2)
Minimum Rent
The Tenant covenants and agrees to pay from and after the commencement
of the Term hereof, to the Landlord or to whom the Landlord may name in
writing as his agent for collection of rent at the Office of the Landlord, or at
such other place designated by the Landlord, in lawful money of Canada,
without an), prior demand therefore and without any deduction, defalcation or
set-off whatsoever, as fixed annual minimum rent,
(a)
for the first five year period of the Term, the sum of $31,500 per
year payable in equal monthly instalments of $2,625 each, and
(b)
for the second five year period of the Term, the sum of $48,994
per year payable in one monthly instalment of $4,092 (January in
each year) and eleven equal monthly instalments of $4,082 each.
Paragraph 4(3)
Fixed Minimum Monthly Rent
Each monthly payment (herein sometimes called the "fixed minimum
monthly rent") shall be made by the Tenant in advance on the first day of each
calendar month of each Lease Year during the term.
Paragraph 4(4)
Post-dated Rent Cheques
The Tenant shall provide to the Landlord, at the beginning of each Lease
Year during the Term, a series of monthly post-dated cheques for that Lease
Year in amounts conforming with the amounts of the fixed minimum monthly
payments required by Paragraph 4(2).
s.
Paragraph 12(1) of the Lease is hereby amended by adding the following
to the end of the first sentence:
, except during the last two (2) years of the Term, when such
consent shall not unreasonably be withheld
Paragraph 12(3) of the Lease is hereby amended by deleting the second
sentence from it and by adding the following to the end of the first
, which approval shall not unreasonably be withheld when such
advertisement or offer pertains only to the last two (2) years of the
Term,
Paragraph 17(5) of the Lease is hereby amended by adding the following
"a part hereof" in the second line:
, as amended by Agreement dated December 31, 1987,
after
IN WITNESS WHEREOF the Landlord and the Tenant have affixed their respective
corporate seals attested to by their authorized officers.
SIGNED, SEALED & DELIVERED
VINJOHN EVELOPMENTS LIMITED
THE TOWN OF PICKERING
PUBLIC LIBRARY BOARD
~er Chairman
per Vicd-GhMrman