HomeMy WebLinkAbout10 121 Airport Hangar lease/site plan agreement (LaPointe/O.Cain) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2010 - 121
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT
FOR THE RENTAL OF LAND AT THE KINCARDINE MUNICIPAL AIRPORT
(Michelle A. LaPointe and Pat O'Cain)
WHEREAS Sections 11 (1) and (3) of the Municipal Act, 2001, S.O. 2001, c. 25
as amended gives broad authority to lower -tier municipalities to provide any
service or thing that the municipality considers necessary or desirable for the
• public and respecting matters within the sphere of jurisdiction of transportation
systems, other than highways;
AND WHEREAS pursuant to the said Municipal Act, Section 8 (1) and 9 provide
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 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 it is deemed expedient to enter into a lease agreement with
Michelle A. LaPointe and Pat O'Cain for the rental of land to house an airplane
hangar at the Kincardine municipal airport located on Concession A, Pt Lots 26 to
30, RP 3R -438, Parts 2 to 8, RP 3R -3803, Parts 1 to 6;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
• 1. That the Corporation of the Municipality of Kincardine enter into a lease
agreement with Michelle A. LaPointe and Pat O'Cain the rental of land to
house an airplane hangar on lands located at the Kincardine municipal
airport and known as Concession A, Pt Lots 26 to 30, RP 3R -438, Parts 2
to 8, RP 3R -3803, Parts 1 to 6.
2. That the term of this lease be for a twenty (20) year period, to be computed
from the 15 day of September, 2010 and ending on the 14 day of
September, 2030.
3. That the Mayor and Chief Administrative Officer be authorized and directed
to sign and execute, on behalf of the Council of The Corporation of the
Municipality of Kincardine, the lease agreement with Michelle A. LaPointe
and Pat O'Cain attached hereto as Schedule `A', and to affix the corporate
seal.
4. That the Site Plan Agreement for this lease be attached hereto as
• Schedule 'B' to the Lease Agreement, and forms part of the By -law.
5. This by -law shall come into full force and effect upon its final passage.
.../2
Page 2
Airport Hangar Lease /Site Plan Agreement (LaPoint/O'Cain) By -Iaw
By -Iaw No. 2010 - 121
• 6. This by -Iaw may be cited as the "Airport Hangar Lease /Site Plan
Agreement (LaPointe /O'Cain) By-law".
READ a FIRST and SECOND TIME this 15 day of September, 2010.
ayor Clerk
READ a THIRD TIME and FINALLY PASSED this 15 day of September, 2010.
Mayor Clerk
•
•
•
This LEASE made this 15 day of September, 2010.
In Pursuance of the SHORT FORMS OF LEASES ACT, R.S.O. 1980, Chapter
473.
BETWEEN
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(hereinafter called the "Landlord ")
and
•
Michelle A. LaPointe and Pat O'Cain
(hereinafter called the "Tenants ")
WHEREAS The Landlord is a Municipal Corporation in the Province of Ontario;
AND WHEREAS The Landlord is the Owner in fee simple of certain lands situate
in the Municipality of Kincardine, County of Bruce, Province of Ontario, which
lands are more fully described in the attached Schedule "A" and are called the
"Airport Lands" in this Lease. The site plan is the attached Schedule "B ".
IN CONSIDERATION of the rents reserved and covenants and agreements
contained in this lease on the part of the Tenants, the Landlord leases to the
Tenants for the term and upon the conditions in this lease that portion of the
Airport Lands, together with certain rights of way, as described in the attached
Schedule "A" and hereinafter referred to as the "Leased Land ".
1. TERM
The Tenants are to hold the Leased Land for the term of twenty (20)
years, to be computed from the fifteenth day of September, 2010 and from
thenceforth ensuing and to be fully completed and ended on the 14 day
of September, 2030.
2. RENEWAL
Provided always it is agreed between parties:
a) If the Tenants are not in arrears of the payment of rent and has not
breached the covenants herein at the time of the expiration of the
term granted by this Lease then, the Landlord shall, upon the
written request of the Tenants received by the Landlord at least six
(6) months prior to the termination of the Lease, grant to the Tenant
a renewal Lease of the Leased Lands for a further term of five (5)
years upon the same terms and conditions as are contained in this
Lease save and except rent; provided that the rent for the renewal
Lease shall be agreed upon by the parties and further provided
that, in the event that the Landlord and Tenants cannot agree upon
the amount of rent to be paid by the Tenants during the term of the
renewal Lease within thirty (30) days of the commencement of the
new term under the renewal Lease then the issue of rent only is to
be determined at the instance of either party under the Arbitrations
Act in force from time to time in the Province of Ontario through a
single arbitrator whose award is subject to appeal to a Judge in
Court and from a Judge in Court to the Ontario Court of Appeal.
b) If the Tenants decide to sell their hangar to a third party, they may
assign over their existing lease to the third party, or the third party
may enter into a new lease arrangement with the Landlord.
Page 2
Airport Lease —
c) RENEGOTIATE
This contract is to be renegotiated to the mutual satisfaction of all
parties if the existing leased site conflicts with future expansion and
development plans.
3. RENT
i) The Tenants paying therefore, without abatement or set -off, rent to
the Landlord as follows:
(a) a base rent of $.31 per square foot per year for an area
occupied by Hangar.
(b) the area to be leased will include two (2) feet on all the
exterior sides of Hangar.
(c) Yearly on each anniversary date of each year thereafter the
base rent shall be increased in proportion to the increase in
the Ontario Consumer Price Index as published by Statistics
Canada for the immediately preceding calendar year and
that rent shall become the new base rent.
(d) all rent shall be paid in advance, without prior demand, to the
Landlord.
ii) The Tenants hereby acknowledge that the foregoing rent payable is
solely for the leased premises which is comprised of the land and
the Tenants further acknowledge and agree that the rent provided
for by this Lease shall be payable whether or not a building is
erected on the leased premises and the rent is payable, due and
owing by the Tenants even in the event that the building is partially
damaged or totally destroyed. There shall be no abatement of rent.
iii) From and after the execution of this lease by the parties hereto, the
Tenant will not be charged aircraft tie -down fees during the time -
frame required for improvement of the Leased Lands.
4. TAXES
The Tenants covenant to pay, as and when they fall due, all municipal and
other real property taxes, including charges for local improvements,
assessments and other rates and levies assessed, levied, or imposed on
the Leased Land and any improvements thereon and to provide to the
Landlord receipts for the payment thereof. Such taxes shall include a
proportionate share of any taxes levied against the Airport Lands as a
whole.
The Landlord, at its sole option, may pay the taxes referred to herein on
behalf of the Tenants and collect such money from the Tenants as
additional rent.
Assessment is determined through the Municipal Property Assessment
Corporation (MPAC). Tenants are expected to pay taxes based on the
assessed value of their hangar and the leased land the hangar occupies.
5. UTILITIES
All utilities are at the option of the Tenants. The Tenants covenant to pay,
as and when they fall due, all charges for installation and use of electricity,
gas, water, and telephone service which may be supplied to the Leased
Land. All services are to be underground.
Page 3
Airport Lease —
It is the airports intention to have each hangar individually metered with
tenant only responsible for the electricity use of their own hangar.
The tenant will provide an electrical design plan and the Landlord will
review and make best efforts to support the tenant's proposal. The
Municipality will provide a connection point from the existing panel, located
due northwest of the terminal.
6. TENANT TO ERECT IMPROVEMENTS
(a) From and after the execution of this lease by the parties hereto, the
Tenant shall proceed with due diligence to prepare plans for the
improvement of the Leased Lands in such detail as the Landlord
may reasonably require,
(b) The improvements described in the plans shall be in accordance
with the Site Plan Agreement attached hereto as Schedule "B ". In
addition, the planned improvements shall meet the following
criteria:
(i) the structural design of the hangar must be certified by a
professional engineer;
(ii) uniformity of design including roof style and window size and
location;
(iii) compliance with height restrictions as outlined in the Site
Plan Agreement;
(iv) exterior colours for the entire leased area, to conform with
existing buildings;
(v) metal siding;
(vi) grading to be in accordance with the Site Plan Agreement.
Site to be prepared for construction by Tenants, including
excavating, filling, grading and drainage plan as approved by
the CBO.
(vii) all hangers must have main entrance aircraft doors.
(c) The Tenants shall submit the plans referred to in subparagraph (b)
to the Landlord for approval which shall not be unreasonably
withheld.
(d) The Tenants shall not commence any improvement to the Leased
Land without the prior approval of the Landlord as set out in
subparagraph (c).
(e) All construction of improvements, including excavation, grading,
etc. shall be done at the sole expense of the Tenant.
(f) The Tenants shall discharge at their own expense, any lien filed
against the Leased Land or the Airport Lands in respect of work
carried out upon the Leased Land, and it shall pay any legal or
other costs, fees or disbursements howsoever incurred by the
Landlord in connection with such lien. The Landlord may, at its
sole option, discharge such liens by paying into court or otherwise
Page 4
Airport Lease —
and such amounts paid are recoverable by the Landlord from the
Tenants as additional rent.
(g) Within six (6) months of the commencement of this lease, to
commence the construction of a hangar on the demised premises
and to complete the construction within twelve (12) months of the
commencement of this lease. Upon completion, all improvements
constructed upon the leased land shall be vested in the Tenants. If
the construction of the said hangar is not completed within the said
sixteen (16) month period, this lease shall terminate at the end of
such period and, notwithstanding any other term to the contrary, the
Tenants shall have thirty (30) days in which to remove any partially
constructed hangar on the demised premises. If not removed
within such period, any partially constructed hangar or the remains
thereof shall become the property of the Landlord.
(h) In the event that the Tenants refuse or neglect to renew the Lease
after the expiration of the term of the Lease in accordance with the
provisions of Paragraph 2 herein then the Tenant within thirty (30)
days after the expiration of the term of this Lease, shall remove the
building and improvements erected upon the leased land (including
any plumbing, heating, ventilating plant or other building service)
solely at the cost of the Tenants. Alternately the tenants may
negotiate with the landlord for the right to purchase the hangar. If a
sale to the landlord cannot be achieved, the hangar will be publicly
sold by the landlord with all debts from said hangar being paid by
the sale proceeds and any balance remaining will be forwarded to
the former owner.
7. MAINTENANCE AND REPAIR
(a) The Tenants agree to operate, maintain, and keep the premises in
such good order and condition both inside and out as they would be
kept by a reasonably careful and prudent owner and promptly to
make all needed repairs and replacements as shall be reasonably
necessary including, while not limiting the generality of the
foregoing, the roof, foundations and appurtenances including
fixtures, facilities and equipment belonging to and forming part of
the premises; provided, however, that the foregoing obligations of
the Tenants shall include repairs required by reasonable wear and
tear.
(b) If the Tenants fail to maintain the building, the Landlord may, on
written notice to the Tenant, perform such maintenance and repairs
as the Landlord in its sole discretion deems appropriate and
necessary and the cost of thereof shall be payable by the Tenant
as additional rent.
(c) In the event of Toss, damage or partial loss or damage to the
building, the Tenants shall replace or repair the building with due
diligence and dispatch and in the event that the Tenants fail to
repair or replace with due diligence and dispatch the Landlord has
the right to rebuild, repair or demolish and remove, at the
Landlord's sole discretion, the building and the costs incurred by
the Landlord in relation thereto shall be payable by the Tenants as
additional rent; provided that, notwithstanding any other provision to
the contrary, in the event of substantial damage or total loss which
the Tenants neglect or refuse to repair or rebuild with due dispatch
and diligence, then the Landlord shall have the unilateral right to
terminate the Lease.
Page 5
Airport Lease —
8. INSURANCE
Insurance
The Tenant shall put in effect and maintain in its name, at its expense, all the
necessary insurance that would be considered appropriate for a prudent tenant
undertaking this type of operation for the period during which the Agreement is in
effect with insurers acceptable to the Municipality, including:
(a) General Liability Insurance, for third party bodily injury, personal
injury and property damage to an inclusive limit of not less than Two
Million Dollars ($2,000,000.00) per occurrence. The policy shall
include:
(b) The Corporation of the Municipality of Kincardine as an additional
insured;
(c) Cross liability
(d) Contractual liability;
(e) Tenant's Legal Liability
(f) A thirty (30) day written notice of cancellation
(g) The Tenant shall provide the Municipality with a valid Certificate of
Insurance as evidence of the above coverage's upon signing the
agreement. The Tenant shall provide the Municipality with any
renewal replacement certificates as may be necessary during the term
of the Agreement.
9. VACANT PREMISES
If the leased land becomes vacant because of non payment and remains
so for a period of three (3) months or is used by any person other than the
Tenants for a purpose other than that for which they are leased without
the written consent of the Landlord, the then current month's rent and the
three (3) month's rent following will become due 45 days after providing
the tenant notice and payable and the term will at the option of the
Landlord and the Landlord at any time thereafter may re -enter and
repossess the leased land as in its former state.
10. QUIET ENJOYMENT
The Landlord covenants with the Tenants for quiet enjoyment.
11. INDEMNIFICATION
The Tenant agrees to indemnify and hold harmless the Municipality from
and against all suits, judgments, claims, demands, expenses, 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, as a result of or arising out of or in relation to any breach of the
terms of this Agreement.
12. USE OF LEASED LAND OUTSIDE OF BUILDING
The uncovered portion of the leased land shall not be used except for
aircraft taxiways. Landscaping shall be maintained at all times in a neat
and tidy condition and if not so maintained, may be maintained by the
Landlord and the expense for such maintenance is recoverable as
Additional Rent.
Page 6
Airport Lease —
13. SERVICE ROAD AND TAXIWAY
Construction of any required service roadway /taxiway between the
Tenants' lot line and the airport-paved finger taxiway is at the Tenants'
expense.
14. GRASS CUTTING AND SNOW PLOUGHING
The Landlord at its discretion agrees to provide snow ploughing for the
finger taxiway to the lot line. The Landlord agrees to regularly cut the
grass around the Leased Land.
15. RIGHT TO ASSIGN
The Tenants may assign this lease provided that the Landlord has
provided written consent, providing all aspects of the lease agreement are
adhered to.
16. RIGHT TO INSPECT
i) The Landlord will in writing to the Tenants designate a Municipal
Representative for actions covered by this clause.
ii) Upon written notice to the Tenant, the Tenant shall make the
interior hangar space available for inspection by the Landlord's
Municipal Representative.
17. GASOLINE AND OIL STORAGE
No gasoline, or any other flammable material, with the exception of engine
oil or fuel normally kept on -board an aircraft/vehicle may be stored on the
premises. The Tenants covenant not to keep any oil on the premises
other than for the Tenant's own use.
18. INTEREST ON AMOUNT OWING
Where any amount is due and owing by either party to this lease to the
other, compound interest shall be paid on such amount commencing
fifteen 15) days after the date on which the amount was payable at the
rate of 1.25 percent per month.
19. PERMITTED USE OF LEASED LAND
The Tenants acknowledge that, in accordance with the present Site Plan
Agreement with the Municipality of Kincardine, the permitted use of the
Leased Land is Aircraft Storage. Tenants may keep their personal vehicle
in the hangar when it is intended that the stored aircraft is to be removed
for use. The Landlord shall facilitate site access as needed by the
Tenants or their agents and the Tenant shall access the hanger with due
regard for any local operations.
20. RULES AND REGULATIONS
The Tenants agree to observe all rules, regulations and laws laid down by
Transport Canada and the rules and regulations laid down by the Landlord
or its agents concerning the proper conduct of the Airport. Upon any
breach of such rule or regulation by the Tenants, the Landlord may at its
sole discretion immediately terminate this Lease, re -enter and take
possession of the Leased Land.
The Landlord shall provide the Tenants with a written record of all
applicable rules and regulations laid down by the Landlord or its agents
concerning the proper conduct of the Airport.
Page 7
Airport Lease —
21. BINDING EFFECT
This lease is, where the context permits, binding on, extends to and
ensures to the benefit of the parties hereto and their successors and
assigns.
The Municipality of Kincardine assigns the right to make minor changes to
this agreement to the Chief Administrative Officer and all major changes
must be ratified by Council by -law. Any changes need to be agreed upon
by the Tenants.
22. GENDER
The word "Owner ", or the words, "he" or "his" where used in this
Agreement, in addition to their accepted meanings, shall mean and
include an individual, an associate, a partnership or an incorporated
company and also includes heirs, successors and assigns. Wherever the
singular is used herein, it shall be construed as including the plural, and
wherever the masculine is used herein it shall be construed as including
the feminine, and vice versa in all cases.
23. TERMINATION CLAUSE
In the event that either party requests termination of this agreement a 120
day notice period, with written notice to both parties must be conducted.
WITNESS the corporate seals of the parties, attested by their duly
authorized officers.
SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF
in the presence of ) THE MUNICIPALITY OF
KI 111 ARDI
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