HomeMy WebLinkAbout01 063 agre land LE Durham Mkt
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THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
KBT
BY-LAW
NO. 2001 - 63
A BYLAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT
FOR THE OPERATION OF A RESTAURANT PATIO ON MUNICIPAL
LANDS
WHEREAS the Council for The Corporation of the Municipality of Kincardine
deems it advisable to enter into a Lease Agreement for a restaurant patio on
lands owned by the Municipality on Durham Market South;
NOW THEREFORE the Council for The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the Corporation of the Municipality of Kincardine enter into an agreement
with Edward Woods & Jean Woods for the operation of a restaurant patio.
2. That the Mayor and Clerk be authorized to sign, on behalf of The Corporation
of the Municipality of Kincardine the Agreement with Edward Woods and Jean
Woods attached to this by-law and to affix the corporate seal as and when
required.
3. This By-law shall come into full force and effect upon its final passage.
4. This By-law may be cited as the "Durham Market South Patio Agreement
By-law". .
READ a FIRST, SECOND and THIRD TIME and DEEMED TO BE PASSED this
23rd day of May, 2001.
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This AGREEMENT made this $/¿z: day of May, 2001.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
hereinafter called the "Municipality"
of the First Part,
-and-
EDWARD WOODS
JEAN WOODS
hereinafter called the "Lessee"
of the Second Part.
WHEREAS the Municipality wishes to enter into a lease agreement with Edward Woods
and Jean Woods for the use of Municipal lands more specifically described in Schedule
"A" to this agreement;
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AND WHEREAS Edward Woods and Jean Woods wish to construct on Municipal lands
a seasonal patio as an accessary use to Zolga Restaurant, 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 one year
starting June 1, 2001 and thenceforth ensuing and to be fully completed and
ended on May 31,2002.
2. THE LESSEE AGREES TO PAY RENT in advance in the sum of one thousand
two hundred and fifty dollars ($1,250) plus G.S.T. for the year of the lease.
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 seasonal restaurant
~J patio area. To operate during the months of May, June, July, August and
September.
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
consent of the Municipality, its successors or assigns, being first had and
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Durham Market South Patio Agreement
Page 2 of 6
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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.
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 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 compuls9ry, 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 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.
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PROVISO for re-entry by the said Municipality on non-payment of rent or non-
performance of covenants.
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Durham Market South Patio Agreement
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.
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The Licensee 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 Licensee or the exercise by the Licensee of such
permission or the erection and maintenance of the Encroachment and
appurtenances thereto or anything in any matter relating thereto, and the
Licensee 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 Licensee 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.
The Licensee covenants and agrees to provide the Municipality with a certificate
of general liability insurance, on or before execution of this agreement, covering
the Licensee 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.
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Durham Market South Patio Agreement
Page 4 of6
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.
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.
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.
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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, Municipality,
707 Queen Street, Kincardine, Ontario, N2Z IZ9, 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.
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.
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.
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Durham Market South Patio Agreement
Page 5 of 6
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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 Clerk this &.. day of May, 2001. Edward Woods and
Jean Woods have hereunto set their hand this & day of May, 2001.
SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE .
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in the presence of
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Durham Market South Patio Agreement
Page 6 of 6
SCHEDULE "An
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312 Durham Market South
Municipality of Kincar ne