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HomeMy WebLinkAbout04 027 lease durham mkt patio · · · · This AGREEMENT made this 3 ,.( day of /'1arGt.. ,2004. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE hereinafter called the "Municipality" of the First Part, -and- RANDALL CIOTTI hereinafter called the "Lessee" of the Second Part. WHEREAS the Municipality wishes to enter into a lease agreement with Randall Ciotti for the use of Municipal lands more specifically described in Schedule "A" to this agreement; AND WHEREAS Randall Ciotti wishes to maintain on Municipal lands a patio as an accessory use to a Restaurant at 312 Durham Market South shown on the attached Schedule "A" to this agreement; NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises and mutual promises and covenants hereinafter contained, the parties hereby agree as follows: 1. TO HAVE AND TO HOLD the said premises for and during a period of five years starting April 1, 2004 and thenceforth ensuing and to be fully completed and ended on April 1, 2009 with an option to renew. 2. THE LESSEE AGREES TO PAY RENT in the sum of one thousand two hundred and fifty dollars ($1,250) plus G.S.T. for each year o'the five-year term of the lease. Payment is due on April 1, 2004. The payments will continue in the sum of one thousand two hundred and fifty dollars ($1,250) plus G.S.T. for each year payable on the 1st day of April in the years 2005.2006,2007 and 2008. 3. The Lessee covenants to pay all realty and business taxes in respect of the business carried on by the Lessee in or upon or by reason of their occupancy of the premises hereby demised; 4. The Lessee covenants to repair all lands, buildings and equipment and leave the premises in good repair. Any damage as a result of fire, lightning and tempest will be the only exceptions. The Municipality shall pay for all replacement of fixed assets the Municipality deems in need of replacement. 5. The Lessee covenants that the Municipality, through its authorized agents, may enter and view the state of repair during all reasonable hours. 6. The Lessee covenants that the demised premises will not, during the said term, be at any time used for any other purpose than that of a restaurant patio area. 7. If for any valid reason the Municipality requires the use of the lands upon which the patio sits, then the Lessee agrees to, upon receiving written notice, remove the patio from the lands within ten days. The Municipality shall refund any rents previously made on a pro rata basis. 8. The Lessee covenants that no fixtures, goods or chattels of any kind will. except in the ordinary course of business, be removed from the demised premises during the term hereby demised or at any time thereafter without the written /2 · · · · Durham Market South Patio Agreement (CIOTTI) Page 2 of 6 consent of the Municipality, its successors or assigns, being first had and obtained, until all rent in arrears as well as all rent to become due during the remainder of the term hereby granted shall have been fully paid, or the payment thereof secured to the satisfaction of the Municipality or its assigns. 9. The Lessee covenants to pay all charges for electric energy (for light and power) used by the Lessee in the demised premises. The Lessee covenants to pay all costs associated with the connection of hydro, water, sewer and propane and to make such connections so as to comply with any municipal by-laws or any other provincial statute. 10. 11. The Lessee covenants to keep the lands surrounding the restaurant patio free from litter, debris and other garbage created as a result of the restaurant patio operation. 12. The Lessee covenants to dispose of all refuse in accordance with the Municipality's applicable by-laws. 13. The Lessee covenants that, if the term hereby granted or the goods and chattels of the Lessee shall be at any time seized or taken in execution of attachment; or if the Lessee shall make an assignment for the benefit of creditors or shall become bankrupt or insolvent or make a proposal to its creditors or without the consent of the Municipality being first obtained in writing, shall make a sale under the Bulk Sales Act, in respect of goods on the premises, or being a company shall become subject to any legislative enactment relating to liquidation or winding up, wither voluntary or compulsory, the said term shall immediately become foñeited and void. 14. The Lessee covenants, promises and agrees with the Municipality that notwithstanding any present or future Act of the Legislature of the Province of Ontario, none of the goods or chattels of the Lessee at any time during the continuance of the term hereby created on the said demised premises shall be exempt from levy by distress for rent in arrears by the Lessee as provided for by the said Section of said Act, and that upon any claim being made for such exemption by the Lessee or on distress being made by the Municipality, this covenant and agreement may be pleaded as an estoppel against the lessee in any action brought to test the right to the levying upon any such goods as are named exempted in the said Section, the Lessee waiving as he hereby does all and every benefit that could or might have accrued to him under and by virtue of the said section of the said act but for the above covenant. The Municipality covenants with the Lessee for quiet enjoyment. 15. The Municipality covenants to give the Lessee, his agents, clerks, servants and all persons transacting business with the Lessee, in common with other persons, the right to enter the demised premises by means of the main entrance on Durham Market South and free use of the Durham Market South passages from the street to the said premises at all reasonable times. 16. PROVISO for re-entry by the said Municipality on non-payment of rent or non- peñormance of covenants. . · · · Durham Market South Patio Agreement (CIOTTI) Page 3 of 6 17. IT IS FURTHER DECLARED AND AGREED that in case the said premises or any part thereof, become and remain vacant and unoccupied for the period of fifteen days, or be used by any other person or persons, or for any other purposes than as above provided, without the written consent of the Municipality this lease shall, at the option of the Municipality, cease and be void, and the term hereby created expire and be at an end, anything herein before to the contrary notwithstanding and the proportionate part of the current rent shall thereupon become immediately due and payable, and the Municipality may re-enter and take possession of the premises as though the Lessee or other occupant or occupants of said premises were holding over after the expiration of the term; or in such case instead of this lease as aforesaid and re-entering upon the demised premises, the Municipality may take possession of the demised premises, or any part of parts thereof, and let and manage the same and grant any lease or leases thereof upon such terms as to the Municipality or its assigns may appear to be reasonable, and demand, collect, receive and distrain for all rental which shall become payable in respect thereof, and apply the said rentals after deducting all expenses incurred in connection with the demised premises and in the collection of the said rent including reasonable commission for the collection thereof and the management of the demised premises, upon the rent hereby reserved, and the Municipality and its assigns and every such agent acting as aforesaid from time to time, shall in so acting be the agent of the Lessee, who alone shall be responsible for their acts, and the Municipality and its assigns shall not be accountable for any moneys except those actually received, notwithstanding any act, neglect, omission of default or any such agent acting as aforesaid. 18. AND IT IS FURTHER DECLARED AND AGREED THAT the Municipality shall not be liable for any damage to any property at any time upon the demised premises arising from steam, water, rain or snow, which may leak into, issue or flow from any part of the said lands or from the water, steam or drainage pipes or plumbing works of the same or from any other place or quarter for any damage caused by or attributable to the condition or arrangements of electric or other wires on the said demised premises. 19. The Lessee shall at all times fully indemnify and save harmless the Municipality against all actions, suits, claims and demands whatsoever which may be brought against or made upon the Municipality and from and against all loss, costs, damages, charges and expenses whatsoever which may be incurred, sustained or paid by the Municipality for or by reason of or on account of the permission hereby granted to the Lessee or the exercise by the Lessee of such permission or the erection and maintenance of the Encroachment and appurtenances thereto or anything in any matter relating thereto, and the Lessee hereby grants to the Municipality full power and authority to settle any such actions, suits, claims or demands on such terms as the Municipality may deem advisable and the Lessee hereby covenants and agrees with the Municipality to forthwith pay to the Municipality on demand all moneys paid by the Municipality in pursuance of any such settlement and also such sum as shall represent the reasonable costs of the Municipality or its solicitors in defending or settling any such actions, suits, claims or demands, based on a solicitor and own client basis. 20. The Lessee covenants and agrees to provide the Municipality with a certificate of general liability insurance, on or before execution of this agreement, covering the Lessee and the Municipality in respect of the lands subject to the Encroachment during the term of this agreement and any extensions authorized by the Council of the Municipality to the extent of not less than $1,000,000.00 inclusive of all injuries or death to person and damage to property of others arising from anyone occurrence. The Municipality is to be an added insured under the insurance policy. Without limiting the generality of the foregoing, such public liability insurance shall contain provisions for cross-liability and severability of interests and further that the policy will not be changed or amended in any way or cancelled until 90 days after written notice of such change or cancellation shall have been given to the Municipality. Durham Market South Patio Agreement (CIOTTI) Page 4 of 6 21. THE Lessee covenants with the Municipality that his said business to be so · carried on in the said building will not be of such a nature as to increase the insurance risk on the said premises or cause the Municipality to pay an increased rate of insurance premiums on the said premises by reason thereof and it is distinctly understood that in case said business so carried on by the Lessee is or becomes of such a nature to increase the insurance risk or causes the Municipality and/or other occupants of the said building to pay an increased rate of insurance premiums, that the Lessee will from time to time pay to the Municipality the increased amount of insurance premiums which the said Municipality and other occupants of the said building have to pay in consequence thereof; provided that the Lessee covenants that he will not carry on or permit to be carried on any business in the said building which may make void or voidable any insurance held by the Municipality or the other occupants of the said building. 22. PROVIDED that the Lessee will not do or permit anything to be done on the said premises or permit or keep anything therein which may be annoying to the Municipality or other occupants of the said premises or which the said Municipality may deem to be a nuisance and that no machinery shall be used therein which shall cause any undue vibration in or to the said premises and that · in case of the Municipality or any other occupants of the said premises reasonably complaining that any machinery or operation of process is a nuisance to it or them of which causes any undue vibration or noise on the said premises, that upon receiving notice thereof, the said Lessee will immediately abate such nuisance. The said Lessee covenants not to obstruct or inteñere with the rights of the Municipality or other occupants of the said premises or in any way injure or annoy them or conflict with any of the rules and regulations of the Board of Health or with any Statute or municipal by-law. 23. THERE shall be no abatement from or reduction of the rent due hereunder, nor shall the Lessee be entitled to damages, losses, costs or disbursements from the Municipality during the term hereby created on, caused by or on account of fire, (except as above), water, sprinklers systems, partial or temporary failure or stoppage of heat, light or plumbing services in or to the said premises or buildings, whether due to acts of God, strikes, accidents, the making of alterations, repairs, renewals, improvements, structural changes to the said premises or buildings or the equipment or systems supplying the said services, or from any cause whatsoever; provided that the said failure or stoppage be · remedied within a reasonable time. 24. THAT any notice which either of the parties is required or permitted to give pursuant to any provision of this lease may, if intended for the Lessee be given by a writing left at the demised premises or mailed by registered mail addressed to the Lessee at the demised premises and if intended for the Municipality by a writing left at the premises of the Lessor at the Office of the Clerk, Municipal Administration Centre, 1475 Concession 5, RR 5, Kincardine, Ontario, N2Z 2X6, or mailed by registered mail addressed to the Municipality at the Municipality's said premises and such notice shall be deemed to have been given at the time it was delivered or mailed, as the case may be. 25. PROVIDED further and it is hereby agreed that should the Lessee hold over after the expiration of this lease and the Municipality thereafter accept rent for the said premises the Lessee shall hold the said premises as a monthly tenant only of the Municipality but subject in all other respects to the terms and conditions of this lease. · 26. The words importing the singular number only shall include the plural and vice versa, and words importing the masculine gender shall include the feminine gender, and words importing persons shall include firms and corporations and vice versa. · · · . Durham Market South Patio Agreement (CIOTTI) Page 5 of 6 27. This lease is not assignable without the written permission of the Municipality. 28. This Agreement shall ensure to the benefit of and be binding on the respective heirs, executors, administrators, successors and assigns of the parties hereto (and shall run with the said land owned by the parties). IN WITNESS WHEREOF the Municipality has hereto affixed its corporate seal attested by the hands of its Mayor and CAO this "3 r,,{ day of ¡v/an/.... ,2004. Randall Ciotti have hereunto set his hands this 6.4 day of Marc-/...., 2001.1 '3 ~/2- SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE ) ) ) ) ) ) ) ~ ) ~ 6' \ ) ) ) ) ) ) ) ) ) ) ) ) in the presence of ~~ ./ Mayor À':<!L~ " A^ ,11 CAO f..J. ~ Randall Ciotti ----~ ---r- . , . Durham Market South Patio Agreement (CIOTTI) Page 6 of 6 SCHEDULE "A" Ii :oS o rf ji (1 .I i ¡ - . - . . . . . . . . . . . . . . . " : : : . PROP.08ED OUTDOOR: ~T~~~~~~~~: ~ ~ ~ ~:' ,. .......... ~: EXIT . EXISTING RESTAURANT 312 Durham Market South .I I I I . " D&~~ I'flff ~~k; ~,. .s'O& "It " " " .... .... .... .... .... .... .... .... Entr..ce .... .... .... , ., '. N e e e e THE CORPORATION OF THE MUNICIPALITY OF KINC INE BY-LAW NO. 2004 - 27 BEING A BY-LAW TO ENTER INTO A LEASE AGREEM NT FOR THE OPERATION OF A RESTAURANT PATIO ON MUNICI AL LANDS WHEREAS the Municipal Act, 2001, S.O. 2001, c. 25 Se ions 8 and 9 (1) provides municipalities with powers of a natural person to ena Ie them to govem their affairs as they consider appropriate under this or any othe Act; AND WHEREAS the Municipality of Kincardine is the owner of ands adjacent to 312 Durham Market South; AND WHEREAS Randy Ciotti has recently entered into a leas~ with the owners of 312 Durham Market South to operate a restaurant; . AND WHEREAS the Council of the Municipality of Kincardine eems it advisable to enter into a lease agreement with Randy Ciotti to operate a r staurant patio on those lands owned by the Municipality adjacent to 312 Durham Market South; NOW THEREFORE the Council of the Municipality of Kincardi e ENACTS as follows: 2. 1. That the Municipality of Kincardine enter into an agreem nt with Randy Ciotti for the operation of a restaurant patio at 312 Durh m Market South; That the Mayor and CAO be authorized to sign. on beha f Of the Municipality of Kincardine, the agreement with Randy Ci tti attached to this by-law as Schedule "A". 3. This by-law shall come into full force and effect upon its mal passage. 4. This by-law may be cited as the "Durham Market South atio Lease (Ciotti) Agreement (2004) By-law. READ a FIRST, SECOND, and THIRD time and DEEMED T this 3rd day of March, 2004. ~.~ Mayor -~~ ~//~~_/-~- -