HomeMy WebLinkAbout09 184 Snack Booth Lease Agreement By-LawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2009 —184
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT
WITH MAZHAR HUSSAIN FOR THE USE OF THE SNACK BOOTH LOCATED
AT DUNSMOOR PARK
• WHEREAS Section 8 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended, provides that the powers of a municipality under this or any other Act
shall be interpreted broadly so as to confer broad authority on the municipality to
enable the municipality to govern its affairs as it considers appropriate and to
enhance the municipality's ability to respond to municipal issues;
AND WHEREAS pursuant to the said Municipal Act, Section 9 provides that a
municipality has the capacity, rights, powers and privileges of a natural person
for the purpose of exercising its authority under this or any other Act;
AND WHEREAS the Municipality of Kincardine is the owner of the lands to which
is located a portable food concession booth known as the "Snack Booth"
operated by Mr. Mazhar Hussain;
AND WHEREAS The Corporation of the Municipality of Kincardine deems it
advisable to enter into a lease agreement with Mr. Mazhar Hussain for a 5 year
period beginning the 1 day of April 2010 to the 31 day of March 2015;
NOW THEREFORE the Council of The Corporation of the Municipality of
• Kincardine ENACTS as follows:
That The Corporation of the Municipality of Kincardine enter into a lease
agreement with Mr. Mazhar Hussain for the operation of the `Snack
Booth', in accordance with the terms and conditions outlined in the
agreement attached hereto as Schedule `A' and forming part of this
by -law.
2. That the Mayor and Chief Administrative Officer be authorized directed to
execute and sign, on behalf of The Corporation of the Municipality of
Kincardine, the lease Agreement with Mr. Mazhar Hussain attached to this
by -law and to affix the corporate seal.
3. That this Agreement be in effect for a period of 5 years from the 1 day of
April 2010 to the 31 st, day of March 2015.
4. That this by -law shall come into full force and effect upon its final passage.
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Snack Booth Lease Agreement By -law"
By -law No. 2009 - 184
5. That this by -law may be cited as the "Snack Booth Lease Agreement
• By -law".
READ a FIRST and SECOND time this 16 day of December, 2009.
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Clerk
READ a THIRD time and FINALLY PASSED this 16 day of December, 2009.
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Clerk
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This AGREEMENT made this 16 day of December, 2009:
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
- and —
Hereinafter called the "Municipality"
of the First Part,
Mazhar Hussain
hereinafter called the "Lessee"
of the Second Part
WHEREAS the Municipality wishes to enter into a lease agreement with Mazhar
Hussain operating the Snack Booth on the Beach located at Dunsmoor Park for the use of
Municipal lands.
AND WHEREAS, Mazhar Hussain has, on Muncipal lands, a portable food concession
booth known as the Snack Booth on the Beach;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration
of the premises and mutual promises and covenants hereinafter contained, the parties
herby agree as follows:
1. Lease the said premises for a five year period beginning the 1 day of April, 2010
and thenceforth ensuing and to be fully completed and ended on the 31 day of
March, 2015.
2. The Lessee covenants with the Municipality to pay rent. Yielding and paying the
sum of $17,000 plus applicable sales taxes as follows:
• 2010 - $3,000 plus applicable sales taxes
• 2011 - $3,200 plus applicable sales taxes
• 2012 - $3,400 plus applicable sales taxes
• 2013 - $3,600 plus applicable sales taxes
• 2014 - $3,800 plus applicable sales taxes
3. The Lessee covenants to pay all realty 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 the
Municipality's fixed assets that 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 premises will be used only during May until
September as a seasonal food concession booth and during the balance of the year
the booth will be closed but can be used as a kitchen for food preparation for
Snack Booth on the Beach's other business.
7. If for any valid reason the Municipality requires the use of the lands upon which
the booth sits, and then the Lessee agrees to, upon receiving written notice, vacate
the building within ten days. The Municipality shall refund any rents previously
made on a pro rated 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 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
herby 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 (light and power) used
by the Lessee in the demised premises.
10. 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.
11. The Lessee covenants to keep the lands surrounding the booth free from litter,
debris and other garbage created as a result of the food concession 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 forfeited 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 the 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.
15. The Municipality covenants with the Lessee for quiet enjoyment.
16. 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 premise by means of the main entrance on Saugeen
Street and free use of the Saugeen Street passages from the street to the said
premises at all reasonable times.
17. The Municipality may void the lease agreement on non - payment of rent or non-
performance of covenants by the Lessee.
18. 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 that 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 hereinbefore 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.
19. 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.
20. The Lessee shall put into effect and maintain in its name, at its expense, all the
necessary insurance that would be considered appropriate for a prudent contractor
undertaking this type of operation for the period during which the Agreement is in
effect with insurers acceptable to Kincardine, including:
i)Commercial General Liability Insurance, for third party bodily injury,
personal injury and property damage to an inclusive limit of not less that
Two Million Dollars ($2,000,000) per occurrence. The policy shall include:
The Corporation of the Municipality of Kincardine as an additional insured;
Cross liability
Contractual liability
Coverage on a replacement cost basis for all property owned by the Lessee;
and
A thirty (30) day written notice of cancellation
ii)The Lessee. shall provide the Municipality with a valid Certificate of
Insurance as evidence of the above coverage upon signing the agreement.
iii)The Municipality at its sole discretion may in writing change the
insurance required under this Agreement including, but not limited to, the
limit of insurance. The revised insurance requirements will come into effect
at the latest of:
-4 months from the date of notice
Or
-upon the next renewal date of the existing policy at the date notice is
provided.
The Lessee will maintain this insurance at its expense.
The Lessee shall provide the Municipality with additional Certificates of
Insurance within 15 calendar days of either an annual renewal for insurance
coverage as set out above or the date of the written insurance requirement as
noted above. Certificates shall be provided for the entire period during
which this Agreement is in effect.
21. Indemnity - The Lessee agrees to indemnify and hold harmless the Municipality
from and against all suits, judgments, claims, demands, expense actions, causes of
action and losses and for any and all liability for damages to property and injury
to persons (including death) which the Municipality may incur, otherwise than by
reason of their own negligence or willful misconduct, as a result of or arising out
of or in relation to any breach of the terms of this Agreement, or the
Municipality's own negligence or willful misconduct.
22. The Lessee covenants with the Municipality that the 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 directly
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, that the Lessee will from time to time
pay to the 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.
23. 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 interfere 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.
24. 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, sprinkler 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.
25. 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 or from October to April at the address of 364
Queen Street, Kincardine, Ontario, N2Z 2R3, 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.
26. 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 the
lease.
27. The Lessee shall have the right to renegotiate this lease for a further five -year
period on terms and with terms acceptable to the Municipality.
28. 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.
29. This lease is not assignable without the written permission of the Municipality.
30. 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).
31. This agreement shall become in force and effect only upon its authorization by a
by -law of the Municipality of Kincardine and submission of proof of liability
insurance.
32. Any changes or other amendments to this agreement may only be made by further
agreement in writing and duly authorized and signed by the parties.
IN WITNESS WHEREOF the parties hereto have executed these present:
SIGNED, SEALED AND DELIVERED
in the presence of
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
ayor = L ` Kraemer
t A.O. - John deRosenroll
We have the authority to bind the corporation
LESSEE — MAZHAR HUSSAIN
Mazhar Hussain