HomeMy WebLinkAboutBy-law 6095/03THE CORPORATION OF THE CITY OF PICKERING
BY-LAW NO. 6095/03
Being a by-law to authorize the execution of a
Lease Agreement between The Corporation of
the City of Pickering and T. Amts Loam
Supply Limited respecting the use of 3.824
hectares of land located on Parts 37 and 40,
Plan 40R-6934 (January 1, 2003 to December
3'1, 2004).
WHEREAS the City owns 3.824 hectares of land located on Parts 37 and 40, Plan 40R-
6934 in the City of Pickering; and
WHEREAS T. Arnts Loam Supply Limited has used the 3.824 hectares of land located
on Parts 37 and 40, Plan 40R-6934 for the purpose of carrying on a business of the
storage, sale and supply of topsoil, pavers and related products.
NOW THEREFORE, the Council of the Corporation of the City of Pickering HEREBY
ENACTS AS FOLLOWS:
The Mayor and Clerk are hereby authorized to execute an Agreement, in the
form attached hereto as Schedule A, between The Corporation of the City of
Pickering and T. Arnts Loam Supply Limited for the period January 1,2003 to
December 31,2004, inclusive.
BY-LAW read a first, second and third time and finally passed this 3rd day of February,
2003.
Wayne Arthurs, Mayor
Taylor, Clerk
ATTACHMENT# ~__~.__ TO REPORT#?~ ~
Ir~f ~
OPERATIONS & EMERGENCY
SERVICES DEPARTMENT
MUN,C,P^'PROPERT~ LEASE AGREEMENT ~ ~'-
ENGINEERING DIVISION
SC^LE; 1:7500 J Jc,~Ti~UARY ~0/2003 ARNTS LOAM SUPPLY PI(;KF, I~tl
L: \ MPandE\ £hernat,'c Mappln~ \ Mops \ MP~E - Adm,~ \ l~eport
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THIS LEASE made pursuant to the provisions of subsection 191(1) of the Municipal
Act, R.S.O. 1990, chapter M.45, as of the 1st day of January, 2003,
BETWEEN:
THE CORPORATION OF THE CITY OF PICKERING
herein called the "Landlord"
OF THE FIRST PART,
- and -
T. ARNTS LOAM SUPPLY LIMITED
herein called the "Tenant"
OF THE SECOND PART.
In consideration of the rents, covenants and agreements herein contained the Landlord
and the Tenant agree as follows:
LEASE AND TERM
The Landlord hereby leases to the Tenant those lands consisting of 3.824
hectares of rentable area located in Lot 19, Concession 3, Pickering, and
comprising that part of Parts 37 and 40, Plan 40R-6934, diagonally hatched on
the sketch attached hereto as Schedule A (herein called the "Premises"), for a
term (herein called the "Term") commencing on the 1st day of January, 2003 and
expiring on the 31st day of December, 2004, unless the Term is earlier
terminated.
2. RENT
(1)
(2)
The amount of the rent payable by the Tenant to the Landlord yearly and
every year during the Term is $19,000 payable in 12 equal monthly
installments of $1,583.33, plus realty taxes and any other applicable
taxes.
Place and Manner of Payment
Each payment of rent shall be paid by the Tenant to the Landlord in
advance, on the first day of the month, in lawful money of Canada, at the
address of the Landlord set out in section 14 or at such other place as the
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Landlord shall from time to time designate, and the Landlord may require
the Tenant to provide post-dated cheques for this purpose.
GENERAL COVENANTS
(1) The Landlord covenants with the Tenant:
(a) for quiet enjoyment; and
(b) to observe and perform all covenants and obligations of the
Landlord herein.
(2) The Tenant covenants with the Landlord:
(a)
(b)
to pay rent; and
to observe and perform all covenants and obligations of the Tenant
herein.
USE AND OCCUPANCY OF PREMISES
The Tenant covenants with the Landlord:
(a) Required and Prohibited Uses
(b)
(c)
(d)
To use the Premises only for the purpose of carrying on the business of
the storage, sale and supply of topsoil, sand, stone, pavers and related
products;
Conduct of Business
To carry on the business described in subclause (a) on the Premises in a
reputable manner and in compliance with all the provisions of this Lease;
Hours of Operation and Illumination
To carry on the business only between the hours of 5:30 a.m. and 12:00
midnight, local time, and not to illuminate any sign or any part of the
Premises not contained within a building or structure, except for security
purposes, between 12:01 a.m. and 5:30 a.m., local time;
Business Name
To carry on business on the Premises under the name and style of T.
Arnts Loam Supply and under no other name or style unless approved in
writing by the Landlord;
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(e)
(f)
Appearance, etc. of Premises
To maintain and operate the Premises so that they shall always be of
good appearance and suitable for the proper operation of the business
required to be carried on therein and comparable with the standards of the
best such business, and in so doing, to keep the Premises orderly, tidy,
clean and clear of all refuse;
By-Laws
To comply at its own expense with all municipal, federal and provincial
sanitary, fire and safety laws, regulations and requirements pertaining to
the occupation and use of the Premises, the condition of the Leasehold
Improvements, trade fixtures, furniture and equipment installed by or on
behalf of the Tenant therein and the making by the Tenant of any repairs,
changes or improvements therein.
TAXES
(1) Payment by Tenant
The Tenant covenants with the Landlord to pay promptly when due to the
taxing authority or authorities having jurisdiction all taxes, rates, duties,
levies and assessments whatsoever, whether municipal, parliamentary or
otherwise, levied, imposed or assessed in respect of the Premises and
any and every business carried on in the Premises by the Tenant, or in
respect of the use or occupancy thereof (including licence fees and
including, without limitation, any G.S.T. and realty taxes which may be
applicable).
o
LICENCES, ASSIGNMENT AND SUBLETTING
(1) Licences
The Tenant shall not permit any part of the Premises to be used or
occupied by any persons other than the Tenant and the employees of the
Tenant, or permit any part of the Premises to be used or occupied by any
licensee or concessionaire, or permit any persons to be upon the
Premises other than the Tenant, its employees, customers and others
having lawful business with it.
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(2)
Assignment and Sublettinq
The Tenant shall not assign this Lease or sublet all or any part of the
Premises.
SIGNS
The Tenant shall be permitted to maintain an identification sign at or near the
frontage of the Premises on Brock Road. Such sign shall contain only the name
or style under which the Tenant is required to carry on business under the
provisions of this Lease unless the Landlord shall otherwise approve in writing,
and the sign including the size, location, arrangement and type of lettering, its
colour, illumination and all its other appearance and design features shall be
subject to the prior written approval of the Landlord. Otherwise, except with the
prior written consent of the Landlord, the Tenant shall not paint, display, inscribe,
place or affix any sign, symbol, notice, lettering or display of any kind anywhere
outside the Premises or within the Premises so as to be visible from the outside
of the Premises with the exception of lawful signs erected on the Tenant's lands
adjacent to the Premises. Should the Landlord at any time object to any sign,
symbol, notice, lettering or display either affixed to or visible from the outside of
the Premises, the Tenant shall remove the same forthwith upon request.
LEASEHOLD IMPROVEMENTS AND TRADE FIXTURES
(1) Definition of Leasehold Improvements
For purposes of this Lease, the term "Leasehold Improvements" includes
without limitation all fixtures, improvements, installations, alterations and
additions from time to time made, erected or installed by or on behalf of
the Tenant in or on the Premises, and whether or not moveable, with the
exception of trade fixtures and furniture and equipment not of the nature
of fixtures.
(2) Installation of Improvements and Fixtures
The Tenant shall not make, erect, install or alter any Leasehold
Improvements or trade fixtures, including lighting, in or on the Premises
without having first obtained the Landlord's written approval. The Tenant's
request for any approval hereunder shall be in writing and accompanied
by an adequate description of the contemplated work and, where
appropriate, working drawings and specifications thereof. All work to be
performed in the Premises shall be performed by competent contractors
and subcontractors of whom the Landlord shall have approved, such
approval not to be unreasonably withheld. All such work shall be subject
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(3)
(4)
to inspection by and the reasonable supervision of the Landlord, and shall
be performed in accordance with any reasonable conditions or regulations
imposed by the Landlord and completed in a good and workmanlike
manner in accordance with the description of work approved by the
Landlord.
Liens and Encumbrances on Improvements and Fixtures
In connection with the making, erection, installation or alteration of
Leasehold Improvements and trade fixtures and all other work or
installations made by or for the Tenant in or on the Premises, the Tenant
shall comply with all the provisions of the Construction Lien Act, and other
statutes from time to time applicable thereto, including any provision
requiring or enabling the retention by way of hold-back of portions of any
sums payable, and except as to any such hold-back shall promptly pay all
accounts relating thereto. The Tenant shall not create any mortgage,
conditional sale agreement or other encumbrance in respect of its
Leasehold Improvements or, without the consent of the Landlord, with
respect to its trade fixtures nor shall the Tenant take any action as a
consequence of which any such mortgage, conditional sale agreement or
other encumbrance would attach to the Premises or any part thereof. If
and whenever any mechanics' or other lien for work, labour, services or
materials supplied to or for the Tenant or for the cost of which the Tenant
may be in any way liable or claims therefore shall arise or be filed or any
such mortgage, conditional sale agreement or other encumbrance shall
attach, the Tenant shall within twenty (20) days after receipt of notice
thereof procure the discharge thereof, including any certificate of action
registered in respect of any lien, by payment or giving security or in such
other manner as may be required or permitted by law, and failing which
the Landlord may in addition to all other remedies hereunder avail itself of
its remedy under section 12 hereof and may make any payments required
to procure the discharge of any such liens or encumbrances, shall be
entitled to be reimbursed by the Tenant as provided in section 12, and its
right to reimbursement shall not be affected or impaired if the Tenant shall
then or subsequently establish or claim that any lien or encumbrance so
discharged was without merit or excessive or subject to any abatement,
set-off or defence. This subsection shall not prevent the Tenant from
mortgaging or encumbering its chattels, furniture or equipment not of the
nature of fixtures.
Removal of Improvements and Fixtures
All Leasehold Improvements, trade fixtures, furniture and equipment shall
be removed by the Tenant from the Premises either during or at the
expiration or sooner termination of the Term.
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The Tenant shall, in the case of every removal either during or at the end
of the Term, make good at the expense of the Tenant any damage
caused to the Premises by the installation and removal.
INSURANCE AND LIABILITY
(1) Tenant's Insurance
The Tenant shall take out and keep in force during the Term:
(a)
comprehensive insurance of the type commonly called general
public liability, which shall include coverage for personal liability,
contractual liability, tenants' legal liability, non-owned automobile
liability, bodily injury, death and property damage, all on an
occurrence basis with respect to the business carried on in or from
the Premises and the Tenant's use and occupancy of the
Premises, with coverage for any one occurrence or claim of not
less than Five Million Dollars ($5,000,000), or such other amount
as the Landlord may reasonably require upon not less than six
months notice at any time during the Term, which insurance shall
include the Landlord as a named insured and shall protect the
Landlord in respect of claims by the Tenant as if the Landlord were
separately insured; and
(b)
insurance against such other perils and in such amounts as the
Landlord may from time to time reasonably require upon not less
than 90 days written notice, such requirement to be made on the
basis that the required insurance is customary at the time for
prudent tenants of similar properties.
All insurance required to be maintained by the Tenant hereunder shall be
on terms and with insurers to which the Landlord has no reasonable
objection. Each policy shall contain a waiver by the insurer of any rights of
subrogation or indemnity or any other claim over to which the insurer
might otherwise be entitled against the Landlord or the agents or
employees of the Landlord, and shall also contain an undertaking by the
insurer that no material change adverse to the Landlord or the Tenant will
be made, and the policy will not lapse or be cancelled, except after not
less than thirty days written notice to the Landlord of the intended change,
lapse or cancellation. The Tenant shall furnish to the Landlord, if and
whenever requested by it, certificates or other evidences acceptable to
the Landlord as to the insurance from time to time effected by the Tenant
and its renewal or continuation in force, together with evidence as to the
method of determination of full replacement cost of the Tenant's
Leasehold Improvements, trade fixtures, furniture and equipment, and if
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(2)
(3)
the Landlord reasonably concludes that the full replacement cost has
been underestimated, the Tenant shall forthwith arrange for any
consequent increase in coverage required hereunder. If the Tenant shall
fail to take out, renew and keep in force such insurance, or if the
evidences submitted to the Landlord pursuant to the preceding sentence
are unacceptable to the Landlord or no such evidences are submitted
within a reasonable period after request therefore by the Landlord, then
the Landlord may give to the Tenant written notice requiring compliance
with this section and specifying the respects in which the Tenant is not
then in compliance with this section . If the Tenant does not, within 72
hours or such lesser period as the Landlord may reasonably require
having regard to the urgency of the situation, provide appropriate
evidence of compliance with this section, the Landlord may, but shall not
be obligated to, obtain some or all of the additional coverage or other
insurance which the Tenant shall have failed to obtain, without prejudice
to any other rights of the Landlord under this Lease or otherwise, and the
Tenant shall pay all premiums and other expenses incurred by the
Landlord in that connection as additional rent pursuant to section 12
hereof.
Limitation of Landlord's Liability
The Landlord shall not be liable for any bodily injury or death of, or loss or
damage to any property belonging to the Tenant or its employees, invitees
or licensees or any other person in, or about the Premises.
Indemnity of Landlord
The Tenant shall indemnify and save harmless the Landlord in respect of:
(a)
all claims for bodily injury or death, property damage or other loss
or damage arising from the conduct of any work by or any act or
omission of the Tenant or any agent, employee, contractor, invitee
or licensee of the Tenant, and in respect of all costs, expenses and
liabilities incurred by the Landlord in connection with or arising out
of all such claims, including the expenses of any action or
proceeding pertaining thereto;
(b)
any loss, cost, expense or damage suffered or incurred by the
Landlord arising from any breach by the Tenant of any of its
covenants and obligations under this Lease; and
(c)
all costs, expenses and reasonable legal fees that may be incurred
or paid by the Landlord in enforcing against the Tenant the
covenants, agreements and representations of the Tenant set out
in this Lease.
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10.
ACCESS OF LANDLORD
(1) Inspection and Access
The Landlord shall be permitted at any time and from time to time to enter
and to have its authorized agents, employees and contractors enter the
Premises for the purposes of inspection, maintenance or making repairs,
and the Tenant shall provide free and unhampered access for the
purpose, and shall' not be entitled to compensation for any inconvenience,
nuisance or discomfort caused thereby, but the Landlord in exercising its
rights hereunder shall proceed to the extent reasonably possible so as to
minimize interference with the Tenant's use and enjoyment of the
Premises.
(2) Exhibiting Premises
The Landlord and its authorized agents and employees shall be permitted
entry to the Premises during the last six (6) months of the Term for the
purpose of exhibiting them to prospective tenants.
11.
DELAY AND NON-WAIVER
(1) Unavoidable Delay
Except as herein otherwise expressly provided, if and whenever and to
the extent that either the Landlord or the Tenant shall be prevented,
delayed or restricted in the fulfillment of any obligation hereunder in
respect of the making of any repair, the doing of any work or any other
thing, other than the payment of rent or other monies due, by reason of:
(i) strikes or work stoppages;
(ii)
inability to obtain any material, service, utility or labour required to
fulfill such obligation;
any statute, law or regulation of, or inability to obtain any
permission from, any government authority having lawful
jurisdiction preventing, delaying or restricting such fulfillment; or
(iv) other avoidable occurrence,
the time for fulfillment of such obligation shall be extended during the
period in which such circumstance operates to prevent, delay or restrict
the fulfillment thereof, and the other party shall not be entitled to
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(2)
compensation for any inconvenience, nuisance or discomfort thereby
occasioned.
Waiver
If either the Landlord or the Tenant shall overlook, excuse, condone or
suffer any default, breach or non-observance by the other of any
obligation hereunder, this shall not operate as a waiver of such obligation
in respect of any continuing or subsequent default, breach or non-
observance, and no such waiver shall be implied but shall only be
effective if expressed in 'writing.
12.
REMEDIES OF LANDLORD
(1)
In addition to all rights and remedies of the Landlord available to it in the
event of any default hereunder by the Tenant through improper
compliance or non-compliance with any obligation arising either under this
or any other provision of this Lease or under statute or the general law the
Landlord:
(a)
shall have the right at all times to remedy or attempt to remedy any
default of the Tenant, and in so doing may make any payments
due or alleged to be due by the Tenant to third parties and may
enter upon the Premises to do any work or other things therein,
and in such event all expenses of the Landlord in remedying or
attempting to remedy such default shall be payable by the Tenant
to the Landlord as additional rent forthwith upon demand.
(b)
shall have the same rights and remedies in the event of any non-
payment by the Tenant of any amounts payable by the Tenant
under any provision of this Lease as in the case of a non-payment
of rent; and
(c)
if the Tenant shall fail to pay any rent or other amount from time to
time payable by it to the Landlord hereunder promptly when due,
shall be entitled, if it shall demand it, to interest thereon at a rate of
three per cent (3%) per annum in excess of the minimum lending
rate to prime commercial borrowers from time to time current at the
City's bank from the date upon which the same was due until I
actual payment thereof.
(2) Remedies Cumulative
The Landlord may from time to time resort to any or all of the rights and
remedies available to it in the event of any default hereunder by the
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Tenant, through improper compliance or non-compliance with any
obligation arising either under any provision of this Lease or under statute
or the general law, all of which rights and remedies are intended to be
cumulative and not alternative, and the express provisions hereunder as
to certain rights and remedies are not to be interpreted as excluding any
other or additional rights and remedies available to the Landlord by statute
or the general law.
(3) Right of Re-Entry on Default or Termination
If and whenever the rent hereby reserved or other monies payable by the
Tenant or any part thereof shall not be paid on the day appointed for
payment thereof, whether lawfully demanded or not, and the Tenant shall
have failed to pay such rent or other monies within five (5) business days
after the Landlord shall have given to the Tenant notice requiring such
payment, or if the Tenant shall breach or fail to observe and perform any
of the covenants, agreements, provisos, conditions and other obligations
on the part of the Tenant to be kept, observed or performed hereunder, or
if this Lease shall have become terminated pursuant to any provision
hereof, or if the Landlord shall have become entitled to terminate this
Lease and shall have given notice terminating it pursuant to any provision
hereof, then and in every such case it shall be lawful for the Landlord
thereafter to enter into and upon the Premises or any part thereof in the
name of the whole and the same to have again, repossess and enjoy as
of its former estate, anything in this Lease contained to the contrary
notwithstanding.
(4) Termination and Re-Entry
If and whenever the Landlord becomes entitled to re-enter upon the
Premises under any provision of this Lease the Landlord, in addition to all
other rights and remedies, shall have the right to terminate this Lease
forthwith by leaving upon the Premises notice in writing of such
termination.
(5) Payment of Rent, etc. on Termination
Upon the giving by the Landlord of a notice in writing terminating this
Lease, whether pursuant to this or any other provision of this Lease, this
Lease and the Term shall terminate, rent and any other payments for
which the Tenant is liable under this Lease shall be computed, appor-
tioned and paid in full to the date of such termination, and the Tenant
shall immediately deliver up possession of the Premises to the Landlord,
and the Landlord may re-enter and take possession of them.
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13.
IMPROPER USE OF PREMISES; BANKRUPTCY
(1) Bankruptcy, etc.
In case without the written consent of the Landlord the Premises shall be
used by any other persons than the Tenant or for any purpose other than
that for which they were leased, or occupied by any persons whose
occupancy is prohibited by this Lease, or if the Premises shall be vacated
or abandoned, or remain unoccupied for fifteen (15) days or more while
capable of being occupied; or if the balance of the Term or any of the
goods and chattels of the Tenant shall at any time be seized in execution
or attachment, or if the Tenant shall make any assignment for the benefit
of creditors or any bulk sale, become bankrupt or insolvent or take the
benefit of any statute now or hereafter in force for bankrupt or insolvent
debtors, then in any such case the Landlord may at its option terminate
this Lease by leaving upon the Premises notice in writing of such ter-
mination and thereupon, in addition to the payment by the Tenant of rent
and other payments for which the Tenant is liable under this Lease, rent
for the current month and the next ensuing three (3) months shall imme-
diately become due and paid by the Tenant.
14. MISCELLANEOUS PROVISIONS
(1) Registration of Lease
Neither the Tenant nor the Landlord shall register this Lease or a notice of
this Lease.
(2) Lease Constitutes Entire Aqreement
There are no covenants, representations, warranties, agreements or
conditions express or implied, collateral or otherwise forming part of or in
any way affecting or relating to this Lease save as expressly set out in this
Lease; this Lease constitutes the entire agreement between the Landlord
and the Tenant and may not be modified except as herein explicitly
provided or except by agreement in writing executed by the Landlord and
the Tenant.
(3) Notices
Any notice required or contemplates by any provision hereof shall be given in writing,
and
(a)
if to the Landlord, either delivered to the City Clerk personally or
mailed by prepaid registered mail addressed to the City Clerk at
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15.
Pickering Civic Complex, One The Esplanade, Pickering, Ontario
L1V 6K7; and
(b)
if to the Tenant, either delivered to Michael Arnts or Theodorus
Arnts, Jr., personally or mailed by prepaid registered mail
addressed to T. Arnts Loam Supply Limited at Brock Road North,
R. R. #1, Pickering, Ontario L1V 2P8.
Every such notice shall be deemed to have been given when delivered or,
if mailed as aforesaid, upon the day after the day it is mailed. Either party
may from time to time by notice in writing to the other, designate another
address in Canada as the address to which notices are to be mailed to it.
(4) Interpretation
All of the provisions of this Lease are to be construed as covenants and
agreements as though words importing such covenants and agreements
were used in each separate provision hereof, and the captions appearing
for the provisions of this Lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or enlarge
the scope or meaning of this Lease or of any provision hereof.
(5) Extent of Lease Obliqations
This Lease and everything herein contained shall enure to the benefit of
and be binding upon the respective heirs, executors, administrators and
other legal representatives, as the case may be, of each party hereto, and
every reference herein to any party hereto shall include the heirs,
executors, administrators, and other legal representatives of such party.
RIGHT OF FIRST REFUSAL
The Tenant herein acknowledges that, notwithstanding the provisions of Section
14 of the Lease Agreement for the "Premises" made between the Landlord and
the Tenant dated February 9, 1984, there is no right of first refusal in favour of
the Tenant with respect to the Premises herein and the parties agree that the
said provisions of Section 14 of the 1984 Lease are of no force and effect, and
the Tenant releases any claims against the Landlord in respect thereof.
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IN WITNESS WHEREOF the Parties hereto have hereunto affixed their respective
Corporate Seals attested to by the hands of their authorized officers.
SIGNED, SEALED AND DELIVERED
THE CORPORATION OF THE CITY OF PICKERING
Wayne Arthurs, Mayor
Bruce Taylor, Clerk
T. ARNTS LOAM SUPPLY LIMITED
Michael Arnts, President
Theodorus Arnts, Jr., Vice-president
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SCHEDULE
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