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HomeMy WebLinkAbout02 023 agree lease lighthouse e e e e THE CORPORATION OF THE MUNICIPALITY OF KINC INE BY-LAW NO. 2002 - 23 BEING A BY-LAW TO AUTHORIZE THE SIGNING OF LIGHTHOUSE LEASE AGREEMENT WITH THE KINCARDINE Y CHT CLUB i I WHEREAS the Council for The Municipality of Kincardine deemf it advisable to enter into a Lease Agreement with the Kincardine Yacht Club. I AND WHEREAS this lease agreement provides the Kincardine acht Club to rent the premises that are part of the land and building describe as Part #5, Instrument 4703, Registered Plan 3R-7165, in the Municipality 0 Kincardine, consisting of the Kincardine Lighthouse and all grounds associat d with the facility, for the term of 9 (nine) years, to begin in April 1 , 2001 a d to end March 31, 2010; I I NOW THEREFORE the Council for The Corporation of th1 Municipality of Kincardine ENACTS as follows: I 1. That the Corporation of the Municipality of Kincardine enter i1to an agreement with the Kincardine Yacht. I I 2. That the Mayor and CAO be authorized to sign, on behalf oflThe Corporation of the Municipality of Kincardine, the Lease Agreement wit~ the Kincardine Yacht Club attached to this by-law and to affix the corporate ~eal as and when required. I 3. This By-law shall come into full force and effect upon its fina' passage. 4. This By-law may be cited as the "Lighthouse Lease Agreemept, By-law·. I . I I READ a FIRST and SECOND time this 13th day of February, 20þ2. READ a THIRD time and DEEMED TO BE PASSED this 27th d1y of February, 2002. T '. /--..-....~.I -="'_~-:C~. . '-=' LIGHTHOUSE LEASE AGREEMENT This AGREEMENT made this ,J.1¡J. day of ;;6'''Mt ' 2002. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE hereinafter called the "Municipality" of the First Part, -and- KINCARDINE YACHT CLUB Hereinafter called the "tenant" Of the Second Part. THE BASIS OF THIS AGREEMENT '. It is understood that: 1. We, as landlord, own the land and building; - . 2. You, as tenant, wish to rent the building and we are willing to rent it to you on the terms in this agreement. DEFINITIONS Meanlna of Certain Terms 1. In this agreement, unless the context implies otherwise, the following words have these meanings: (a) "additional costs" are the items referred to in paragraph 6; (b) "building" is the building located on the land and every addition made to it as set out in paragraph 3; (c) "land" is the land described in Schedule "A"; (d) "agreement" means this document as originally executed, or as later amended; (e) "rented premises" are described in paragraph 3; (f) "rent" is the money payable by the tenant, referred to in paragraph 5; (g) "term" is the length of this agreement described in paragraph 4, and any renewal or extension of it; (h) "you" and "your" is each person or corporation that has signed this agreement as the tenant; (i) "we", "our" and "us" is the landlord and/or its delegate; 0) "tenant plans" are your outlines of the plans, drawings, specifications and other information for the rented premises or any revisions to these, all as approved in writing by the landlord's Chief Administrative Officer or his/her designate. . . . . , 2 LENGTH OF AGREEMENT What this Aareement does 2. In retum for your payment of rent, and your acceptance of the terms of this agreement, we rent the rented premises to you for the term and you rent the rented premises from us for the term. What We Are Rentina To You 3. The rented premises are that part of the land and building, described as Part #5, Instrument 4703, Registered Plan 3R-7165, in the Municipality of Kincardine (formerly the Town of Kincardine), in the County of Bruce and Province of Ontario, outlined in red on the sketch attached as Schedule "B" and consists of; (a) The Kincardine Lighthouse; (b) All grounds associated with the facility. How Lona This Aareement Is To Run 4. You may occupy the rented premises for a term of 9 (nine) years, to begin April 1, 2001 and to end March 31, 2010 (the "term"). WHAT AMOUNTS YOU MUST PAY Your ObliaatIon to Pay Annual Rent 5. You will pay to us each year of the term $1,400.00 before the first day of April, 2001 and ending April 1, 2009. (N,IJ"É ::RJ>..-<tJI...J"s) Othe, Amounts V.., Am Regu;.... to Pay: 0....... c_ ~~_ 6. You will pay all of the operating costs for the land and building, including all interior maintenance of the lighthouse. Note: Exterior maintenance shall be assumed by the landlord. In addition the following shall be the responsibility of the tenant: (a) You will pay for all taxes, rates, duties and assessments charged upon the land, building, and rented premises (the "taxes"). Taxes, for the purpose of this paragraph, include local improvement rates, municipal realty taxes and levies relating to the rented premises. (b) You will also pay all business taxes levied on any business carried on in the land, building, and rented premises or relating to the use or occupancy of it, and all rates and other charges for water, electricity and other utilities used in the land, building, and rented premises. In addition, the tenant shall pay all charges for water, electricity and other utilities. (c) You will also pay the amount by which the taxes that have become payable due to any act or election by you exceed those that would have become payable if the land, building, and rented premises had been assessed for the support of public schools. (d) Except as otherwise provided by this agreement, you will also pay the cost of maintaining the land and building (interior only). This includes, without limitation, the cost of heating, air conditioning, lighting, snow removal, garbage disposal, sewage and waste disposal, all utilities, insurance, and usual maintenance and minor repair that does not take the form of a major capital expenditure or improvement. A major capital expenditure or improvement made necessary because of our obligation to maintain and , ~ I 3 repair will be paid by us. You will only be required to maintain the rented premises in accordance with paragraphs 16, 17 and 18. . The Intention of This Aareement To Be A Net Aareement 7. You agree with us that this agreement shall be a completely net agreement for us, so that this agreement shall yield, net, to us, the rent without deductions. You must pay your expenses and obligations relating to the rented premises and you save us harmless from them. We are responsible only for those items set out in this agreement. . . . Interest Charged If You Fail To Make A PavmentWhen Due 8. If you fail to make any payment due under this agreement, we will charge you interest on any overdue portion of the amount payable until it is paid to us. The rate of interest will be the rate of interest at the time you fail to make the payment that is equal to the prime lending rate charged by a Canadian chartered bank selected by us to its most creditworthy customers, plus 6% per annum. Acceptance of Rented Premises 9. You must notify us of any defects in the rented premises that detrimentally affect the rented premises, within 30 days after the date you are given occupancy by us. If no such notice is given, you will be deemed to have accepted the rented premises in their existing condition and we will not have further obligation to you for any defects other than defects in structural elements of the rented premises. Chanaes bv Tenant 10. You must not change the exterior of the rented premises and must not make any change to structural elements of the rented premises without first obtaining the written approval of the landlord's Chief Administrative Officer or his/her designate. Any such change will immediately become our property and will remain upon the rented premises until the end of the term. WHAT USES YOU CAN MAKE OF THE RENTED PREMISES Your General Obliaation 11. You will only use the rented premises for those purposes permitted by the relevant zoning by-laws and any other laws of application and only in accordance with such laws. You will keep the rented premises in a clean, tidy and safe condition. 12. The tenant shall primarily use the Kincardine lighthouse as a tourism destination. Tourists and the Public shall be afforded entrance to the lighthouse. The fee to tour the lighthouse shall be either free or of a modest sum. 13. The tenant shall be fully responsible for the operation and minor maintenance of the Kincardine Rear Range Lighthouse. The tenant shall operate the Rear Range Private Aid to the standards of the Canadian Coast Guard. Certain Thlnas You Cannot Do 14. You will not do anything, omit to do something, or let anyone else do anything that may; (a) cause waste or injury to the rented premises, (b) overload the floors of the building, (c) cause a nuisance or annoyance to anyone occupying property adjoining the rented premises on the land, 4 · (d) cause the premiums for insurance on the building to be increased or coverage to be cancelled, or violate any requirements of any insurance policy upon the building or of any fire, health, municipal or other authority, or (e) lessen the value of or adversely affect the building. You Must ComDIy With Laws 15. You will comply at your own expense with all govemmental, sanitary, fire and safety laws relating the rented premises. You Must Not Put UD Sians 16. You will not permit any sign or notice to be inscribed, painted or affixed to be part of the building without obtaining our written consent in advance. We will not unreasonably withhold our consent. (The intent of this clause is to protect the historic character of the exterior of the lighthouse and grounds.) REPAIR AND MAINTENANCE OF RENTED PREMISES AND BUILDING · Your General ObllaatIon To ReDair and Maintain the Rented Premises 17. You assume sole responsibility for the condition, operation, minor maintenance and management of the land, building, and rented premises, including all leasehold improvements, trade fixtures and all glass in the windows, doors or interior of the rented premises. Excluded from this obligation are structural elements of the rented premises and other damage which we have covenanted to repair in paragraph 20. In particular, you will keep the rented premises in the state of repair in which you find them at the beginning of the term.eKeept fer FeaS6Aable wear BAd tear that åees Aet affeet the pFeper \:Jse aAd eAjeymeAt of the FeAted premises. You will comply with all insurance requirements. We may inspect the rented premises at any reasonable time to determine whether you have complied with this agreement. If, in our opinion, you have not so complied, we may give written notice to you to comply. You shall comply within the reasonable time provided for in such written notice. If you fail to do so, we can take any steps to ensure compliance. You Must Leave the Rented Premises in Good ReÞair · 18. You will also, at the end of the term, leave the rented premises in a good and reasonable state of repair in accordance with your obligations under this agreement. You Must Give Us Notice of Defects or Damaaes 19. You will notify us as soon as you become aware of any defects in, malfunction of, or damage to, the rented premises or any equipment, service or utility in them. Our Obliaation to Repair and Maintain · 20. We will keep, in a good and reasonable state of repair the exterior structural elements of the rented premises. ~-!:~ INSURANCE ~~~ (l 21. You will, without delay, insure and keep insured the rented premises by a company approved by us, such approval not to be unreasonably withheld. You policy must include 5 · (a) comprehensive general public liability (including bodily injury, death and property damage) insurance, and (b) insurance against loss by such insurable hazards as we may reasonably request on a replacement cost basis to cover the cost of replacement of all leasehold improvements and all trade fixtures in the rented premises, (c) the policy shall include reference to the operation of the Kincardine Rear Range Lighthouse and assume all responsibility for the operation of the private aid. 22. All insurance for which you are responsible will be in amounts and on terms which will be approved by us, such approval not to be unreasonably withheld. At our request, you will give the insurance policies to us, or such certificates or other documents that we may require as evidence of compliance with this Article. Our Obliaation to Obtain Insurance · 23. We will insure the building on terms which are normal for reasonably prudent owners of property similar to the building (the written opinion of insurance advisers selected by us from time to time to be conclusive as to any compliance or non-compliance with this provision). If we insure any of your leasehold improvements, or if the rate of insurance upon the building has increased because of the use made of the rented premises or anything done or permitted to be done by you on the rented premises, you will pay to us the amount of such increase on demand. Our insurance policy will contain a waiver of the insurer's rights of subrogation against you and those for whom you are responsible should the insurance company so consent, but if the insurance company does not consent, we shall attempt to have you named as a co-insured. INDEMNITY What You Must Reimburse Us For 24. On demand, you will indemnify us from, and reimburse us for, any liability, damage or expense resulting from, · (a) any breach of any of your obligations under this agreement, (b) any damage to property however caused by your use and occupation of the rented premises, and any injury or death to any person or persons, from any cause, unless such damage or injury is due to our act, omission or negligence or is recovered by us under our insurance policy, (c) any lien or encumbrance on the building due to your act, omission or negligence, or that of your agents, employees, contractors, invitees or licensees, and (d) any action derived from the operation of the Kincardine Rear Range Lighthouse Private Aid. Your obligation to indemnify and reimburse us under this paragraph will survive the termination of this agreement. What We Are and Are Not ResDonsible For · 25. We are not responsible for any loss or damage caused to any person or property (a) except for matters arising directly from structural defects in the building, (b) resulting from the condition, arrangement, interruption in, or breakdown of any mechanical or electrical equipment or any water, gas, sewage, electrical power or any other utility in the building, (c) resulting from steam, water, rain, snow or other substances issuing or flowing into the rented premises from inside or outside of the building, ... "" . · · · · 6 (d) resulting from anything done or not done by other occupants of the building, by persons in the rented premises, by occupants of adjacent property or by the public, (e) resulting from any peril which you are required to insure pursuant to paragraphs 21 and 22, or (f) any action derived from the operation of the Kincardine Rear Range Lighthouse Private Aid. 26. We are responsible for matters arising from our acts, omissions or negligence, and those of our officers, agents, employees or contractors. 27. Except as specifically set out in this agreement, you will not be entitled to any abatement of rent for any loss, damage, injury, condition, failure or interruption of services set out in paragraph 25, nor shall any of those events be considered an eviction. WHAT HAPPENS IF THE RENTED PREMISES ARE DAMAGED 28. If the rented premises are partially or wholly destroyed or damaged, should demolition of the rented premises be made necessary by such destruction or damage or should the rented premises become unfit for occupancy by you, (a) subject to our right to terminate pursuant to paragraph 37, we will repair the rented premises as set out in this agreement. Once we have substantially completed our work, we will notify you and you will immediately resume your obligations in accordance with your obligations in this agreement, (b) rent will not be reduced unless, through no fault of yours, the rented premises are rendered wholly or partially unfit for occupancy. In this case, rent will be reduced, from the date of such occurrence, proportionately as to the portion of the rented premises rendered unfit for occupancy. Rent will be reduced until, in our reasonable opinion, repairs have been completed, and (c) if 50% or more of the rented premises are destroyed or damaged or by demolition made necessary by such destruction or damage, we may elect to terminate this agreement. Rent will be adjusted as of the date of the occurrence and you will within seven days after notification by us vacate the rented premises and surrender them to us. OUR RIGHT TO ENTER THE RENTED PREMISES 29. We may enter the rented premises at any reasonable time to inspect, view the state of repair, sweep, clean, dust and do maintenance work (whether or not we are obligated to perform any of this under this agreement), make repairs, alterations, or improvements to the rented premises or the building or any building services, and for any other lawful purpose. You will provide free access for these purposes. Furthermore, we may enter the rented premises during the last 6 months of the term to exhibit them to prospective occupants and we may place upon the rented premises notices advertising them as being available for lease. WHEN YOU ARE IN DEFAULT UNDER THIS AGREEMENT 30. You will be in default under this agreement if (a) you default in paying any annual rent, any interest that may be due and payable, or any other payment that you are obliged to pay us, and such default continues for a period of 15 consecutive days, · , . 7 · (b) you do not comply with any of your obligations under this agreement and such default continues for a period of 15 consecutive days or you fail to diligently attempt to cure such default, (c) any of your property on the rented premises is sold under a writ of execution, or you become bankrupt or insolvent, (d) any insurance policy is cancelled or not renewed by an insurer because of your use or occupation of the rented premises and you fail to take the necessary action to have the policy reinstated within 2 days after receiving notice of cancellation or non-renewal, (e) any lien arises which affects the rented premises or we receive written notice of any such lien, (f) the insurance policy on the building would be cancelled because the rented premises are abandoned, or (g) you abandon the rented premises. ENFORCING OUR RIGHTS · Delav In Enforcina Our Rlahts 31. Any delay or extension of time granted by us to you or any other person in exercising the enforcement of any of our rights under this agreement does not affect our right to (a) receive all payments you are obliged to make to us, when they are due, (b) have you comply with all your obligations under this agreement, or (c) exercise all of our remedies as set out in paragraph 37. IF YOU WANT TO ALTER THE RENTED PREMISES 32. You will not erect or affix any fixture (including leasehold improvements, any trade fixture, partitions or counters) or remove or change the location or style of any fixture without the prior written consent of the landlord's Recreation Director · or his/her designate, such reasonable request not to be withheld, subject to the following provisions: (a) you will not interfere with any windows or doors of the rented premises, or any building services in them, and no fixtures will be attached to the rented premises which require any change or cause any damage which is not readily repairable upon the removal of such fixture; (b) you will repair any damage caused to the rented premises by such alterations, work and improvements; (c) all such alterations, work and improvements shall be at your expense; (d) all such alterations, work and improvements shall be performed in the manner and by those approved by us and shall cause no personal danger or damage while being performed or at any other time duñng the term; and (e) alterations, work and improvements must comply with paragraph 14. · 33. You will not create or permit to añse any lien which affects the rented premises. If any such lien does arise, you will promptly discharge it. If you do not, we may discharge it at your expense. ...... .. · 8 IF YOU WANT TO ASSIGN THE AGREEMENT OR SUBLET 34. You will not (a) assign or dispose of this agreement or any interest in it, or (b) sublet all or any part of the rented premises. 35. If you request or consent to any assignment or sublease, we have the option of (a) refusing to consent to the assignment or sublease, provided such consent is not unreasonably withheld, or (b) consenting to the assignment or sublease. We will deliver notice of our decision to you within 15 days after we receive your request for consent. If we fail to deliver notice of our decision within that period, we will be deemed to have refused to have consented to the assignment or sublease. 36. No assignment or other disposition by you of this agreement or any interest in it will relieve you from the performance of your obligations under this agreement. · GENERAL PROVISIONS · · We Mav Terminate the Aareement 37. Either party may terminate this agreement upon 180 days written notice. How Notice Should Be Given 38. Any notice required or contemplated by any term of this agreement will be in writing and will be deemed to have been validly given if delivered at, or mailed by pre-paid registered mail to the landlord at 1475 Concession 5, R.R. 5, Kincardine, Ontario, N2Z 2X6, or such other place as we may designate, and to you at the rented premises or to such other address as you have given us in writing. Any notice will be deemed to have been received at the time it was delivered or in the case of those given by registered mail, on the third business day following the date of mailing, whether the party received it or not. If there is postal disruption due to strike, lockout, or other labour dispute any notice must be delivered by personal service. If Somethina UnexDected HaDDens 39. If either of us is unable to fulfil, or will be delayed in fulfilling, any obligation (other than the payment of monies) under any term of this agreement because of strikes or work stoppages, or because of other unavoidable occurrence not caused by the default, act or omission by such party and not avoidable by the exercise of reasonable effort and foresight by him, then, so long as any such impediment exists, that party will be relieved from the fulfillment of such obligation and the other party will not be entitled to compensation for any damage, inconvenience, nuisance or discomfort caused by such impediment. Time of the Essence 40. Time will be of the essence of this agreement. Amendments 41. No amendment to this agreement is binding unless it is written and signed by both of us. -. . · · · · 9 Severabllitv 42. If any part of this agreement is invalid or unenforceable, the remainder of the agreement will not be affected by it. Headlnas 43. Headings form no part of this agreement. They are used so that parts of the agreement can easily be referred to. Who is Bound Bv This Aareement 44. Both will be bound by all the obligations in this agreement. This agreement will also be binding on both parties' legal or personal representatives and anyone else to whom interest is validly transferred under this agreement. As well, it will be binding on anyone to whom it is transferred to. Applicable Law 45. This agreement will be govemed by the laws of Ontario and any litigation or dispute pursuant to this agreement shall be conducted in the City of Kitchener, Regional Municipality of Waterloo. Further Assurances 46. Each party shall, at the request of the other, execute such further documents as may be required to give effect to this agreement. Entire Aareement 47. This agreement is the entire agreement between us dealing with the subjects covered in it, and it supersedes any prior agreements between us. IndeDendent Leaal Advice and Sianina The Aareement 48. You have been advised that you should obtain independent legal advice. You have either obtained such independent legal advice or have waived your right to do so. If you have read this agreement and you agree to its terms, sign in the spaces for provided for your signatures. Witnesses must sign in the spaces provided for the witnesses' signatures. Necessary legal seals should be added next to your signature. Assianment bv Landlord 49. In the event of the sale by us of the land or the assignment by us of this agreement (to the extent that such purchaser or assignee has assumed our obligations), we shall provide notification of any changes. ... ~ . . . . . 10 AS EVIDENCE of our agreement, we have signed below. ~ ~.I:>~. roo Uess ) ) ) ) ) per: ~__ ) Larry Kray. . ) Mayor ~.,. ,.: ~- ) I have authority to ~-the landlørd. ) ..... ~ ....;- ~_ .r- ) -~ ~per. - S rL·--~~~~4 ) John deRosenroll' ". ) CAO ) I have authority to bind the landlord. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) , , , ~ THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE KINCARDINE YACHT CLUB por. ~~r~ ~ Title: .,.... þ~ I have authority to bind the tenant. per: çQ~D~k Title: Slte:)'of h.~ I have authority to bind e tenant. ...~- . . · · · . , 11 SCHEDULE "A" That certain parcel or tract of land and premises situate, lying and being in the Municipality of Kincardine (formerly Town of Kincardine), in the County of Bruce and Province of Ontario and being composed of Part #5, Inst. 4703, Registered Plan 3R- 7165. Municipality of Kincardine (formerly Town of Kincardine). ~ .' , 12 , . SCHEDULE "B" . HURON TERRACE ,'?I1t't' 1e¥1: (\ - ~ .1 fJ lID '1'1£\ ~ ¡ ( . . ..ø~l~~l 1 Ç.\ .... \ \: . ro i . \ ~ . 'i ... . .' . ... . '" I: _9 _IN r . .0 c-- ,. - I , , 61~\' i'D . .,.. .' '" '" \ 01 I . ;1 ¡\ \ ø .\ tJ - - .. ;'!! ... ..- .;, ace£.~';' . ",'6~ , $.~'\ ' , . . \ ---- - I t . _1-11£ lu c I ~3 iSlA i, .. :.: - CI) ~ ~ ~ I;;) - Q: "q:' ~ .... "- ~ Ñ .,. I- I IE :f ~ , - " 9 I ~ ¡ u