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HomeMy WebLinkAbout01 131 agre land LE suzy q's fr e e - e THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2001 -131 A BYLAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT FOR THE OPERATION OF A CONCESSION BOOTH 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 Concession Booth on lands owned by the Municipality adjacent to Tiny Tots Park; 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 Richard Smith for the operation of a concession booth known as Suzy Q's Fries located on municipal lands as shown on attached Schedule 'A'. 2. That the Mayor and the Clerk be authorized to sign, on behalf of The Corporation of the Municipality of Kincardine the Agreement with Richard Smith 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 "Suzy Q's Fries Agreement, By-law". READ a FIRST and SECOND TIME this 10th day of October, 2001. READ a THIRD and FINAL time and DEEMED TO BE PASSED this 14th day of November 2001. ~-, Clerk \ " · · · · _<.....,.. ','ô.'>-'},{.,.' '. This AGREEMENT made this 14th day of November, 2001. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE hereinafter called the "Municipality" ofthe First Part, -and- RICHARD SMITH OPERATING AS SUZV Q'S FRIES hereinafter called the "Lessee" of the Second Part. WHEREAS the Municipality wishes to enter into a lease agreement with Richard Smith operating as Suzy Q's Fries for the use of Municipal lands more specifically described in Schedule "A" to this agreement; AND WHEREAS Richard Smith has, on Municipal lands, a portable food concession booth known as Suzy Q's Fries; 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 Lease the said premises for a five year term computed from the 1st day of May, 2002 and thenceforth ensuing and to be fully completed and ended on the 30th day of April, 2007. 2. The Lessee covenants with the Municipality to pay rent. Yielding and paying the sum of ten thousand dollars ($10,000) plus G.S.T. payable as follows: two thousand ($2,000) plus G.S.T payable to the Municipality on 1st day of July, 2002, two thousand dollars ($2,000) plus G.S.T. on 1st day of July, 2003, two thousand dollars ($2,000) plus G.S.T. on 1st day of July, 2004, two thousand dollars ($2,000) plus G.S.T. on 1st day of July, 2005, two thousand dollars ($2,000) plus G.S.T. on 1st day of July, 2006. 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. 5. The Lessee covenants to repair all lands, buildings and equipment and leave tlì .... / premises in good repair. Any damage as a result of fire; lightning and tempest .;!" t{ will be the only exceptions. The Municipality shall pay for all replacement of +he. ",,,n;,i"d1il'f's fixed assets~~~ut.~~ need of replacement. 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 the owners of Suzy Q's Fries other business. 7. If for any valid reason the Municipality requires the use of the lands upon which the booth sits, then the Lessee agrees to, upon receiving written notice, remove the booth from the lands within ten days. The Municipality shall refund any rents previously made on a pro rata basis. '. . . Richard Smith Lease Agreement Page 2 of 5 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 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 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 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 Saugeen Street and free use of the Saugeen Street passages from the street to the said premises at all reasonable times. 16. The Municipality may void the lease agreement on non-payment of rent or non- performance of covenants by the Lessee. . . . . · · ~ Richard Smith Lease Agreement Page 3 of5 · 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 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. 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. 20. 21. And the Municipality shall not be responsible for any personal injury which shall be sustained by the Lessee or any employee, customer, or other person who may be upon the demised premises or in the said building or the entrances or appurtenances thereto. All risks of any such injury being assumed by the Lessee, who shall hold the Municipality .harmless ~~ in~m~refrom. ,.6k.t.4 'd...7(' \"-\1.' ~ The Lessee agrees to provide" insurance in the minimum amount of $2,000,000.00 for the business and add the Municipality of Kincardine as an additional named insured on the policy. 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. . .... Richard Smith Lease Agreement Page 4 of 5 · 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 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. 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 Lessee shall have the right to renegotiate this lease for a further three-year period on terms and with terms acceptable to the Municipality. 27. 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. 28. This lease is not assignable without the written permission of the Municipality. 29. 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). · · · · < ... Richard Smith Lease Agreement Page 5 of 5 IN WITNESS WHEREOF the Municipality has hereto affixed its corporate seal attested by the hands of its mayor and clerk this -'!i!!day of November 2001. Richard Smith has hereunto set his hand this .J.1!day of November 2001. SIGNED, SEALED AND DELIVERED in the presence of .þlrn . ness 1" ) THE CORPORATION OF THE ¡ IIUNK>PAUTY OF Kië:~'~~: ) ~~. . ) ayor ) ) ) ) ) ) RIC ) ) ) ) ) I have authority to bind the company. ) %~~-- .- . - -::,'"::::, , , , ~ -,\' '- "'" /' ,- ~...--;.. ,'- '" Clerk ~:,...........................:/ .. - , SCHEDULE 'fJ: TO BY-LAW 2001-131' . .....---.....--.-.. -.' .. Size approx. 20' x 30' ___;.i . .~ o .~. !.l¡-<- . ~ ..;- ~ . Approximate location '. .of SUzyQ'S :ao . o 20 ....- .., .' SCHEDULE "Au THIS IS SCHEDULE "A" TO BY-LAW NO. 2001-131 14th DAY Of NOV BER MAYOR CLERK PASSED THIS DATE:OCTOBE~.JOTH. 2001 ~