HomeMy WebLinkAbout14 123 The Kincardine Summer Music Festival Lease Agreement (2014) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2014 -123
BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A LEASE AGREEMENT
WITH THE KINCARDINE SUMMER MUSIC FESTIVAL. FOR RENTAL SPACE
IN 719 -723 QUEEN STREET (THE ANNEX)
WHEREAS Section 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended, 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 the Municipality of Kincardine entered into an agreement with
the Kincardine & District Chamber of Commerce (the Chamber) for the
Management of 719 -723 Queen Street (the Annex) authorized by By -law No.
2007 - 066;
AND WHEREAS under said agreement, the Chamber could rent space in the
Annex to tenants and has an agreement with the Tenant;
AND WHERAS the Municipality of Kincardine's agreement with the Chamber
terminates September 17, 2014;
AND WHEREAS the Municipality of Kincardine has entered into an Agreement of
Purchase and Sale for the Annex with closing date of October 24, 2014;
AND WHEREAS the Council of The Corporation of the Municipality of Kincardine
deems it advisable to enter into a lease agreement with the Kincardine Summer
Music Festival in consideration of the rents, covenants and obligations stipulated
therein;
AND WHEREAS it is the Municipality of Kincardine's intent that the terms with
the Kincardine Summer Music Festival, for the period September 18, 2014 to
October 24, 2014, be reflective of those of their agreement with the Chamber
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 the Kincardine Summer Music Festival, for the rental of
commercial office space at the Annex, 719 -723 Queen Street, Municipality
of Kincardine in consideration of rents, covenants and obligations.
• 2. That the Mayor and Chief Administrative Officer be authorized and
directed to execute, on behalf of The Corporation of the Municipality of
Kincardine, the Lease Agreement with the Kincardine Summer Music
Festival, attached to this by -law as Schedule "A ".
Page 2
The Kincardine Summer Music Festival Lease Agreement (2014) By -law
By -Law No. 2014 - 123
3. That this by -law shall come into full force and effect upon its final passage.
• 4. That this by -law may be cited as the "The Kincardine Summer Music
Festival Lease Agreement (2014) By -law ".
READ a FIRST and SECOND TIME this 17th day of September, 2014.
READ a THIRD TIME and FINALLY PASSED this 17th day of September, 2014.
Do .
Mayor Clerk
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This is Schedule "L' " to By - Law
No.,9O0y - I 23 passed the 17 day
of 20 (
LEASE
THIS LEASE made as of the i M of p}embe 2014
IN PURSUANCE OF THE SHORT FORMS OF LEASES ACT
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
(hereinafter called the "Landlord ") OF THE FIRST PART
- and -
KINCARDINE SUMMER MUSIC FESTIVAL
(hereinafter called the "Tenant ") OF THE SECOND PART
WHEREAS the Landlord entered into an agreement with the Kincardine & District
Chamber of Commerce (the Chamber) for the Management of 719 -723 Queen Street
(the Annex) authorized by By -law No. 2007 - 066;
AND WHEREAS under said agreement, the Chamber could rent space in the Annex to
tenants and has an agreement with the Tenant;
AND WHERAS the Landlord's agreement with the Chamber terminates September 17,
2014;
AND WHEREAS the Landlord has entered into an Agreement of Purchase and Sale for
the Annex with closing date of October 24, 2014;
AND WHEREAS it is the Landlord's intent that the terms with the Tenant, for the period
September 18, 2014 to October 24, 2014, be reflective of those of their agreement with
the Chamber;
THE PARTIES THEREFORE AGREE AS FOLLOWS:
In consideration of the rents, covenants and obligations stipulated herein the Landlord
and the Tenant have agreed to enter into a Lease of certain premises shown double
crosshatched on the sketch annexed hereto as Schedule "A" ( "Premises ") being that
part of the building (the "Building ") municipally known as 719 -723 Queen Street,
Kincardine, Ontario located on the lands and premises (the "Real Property ") legally
described as Town Plot 1 Part Lot 1 NDM RP 3R1947 Part 1, Town of Kincardine (now
Municipality of Kincardine), County of Bruce.
1. GRANT OF LEASE
a) The Landlord leases the Premises to the Tenant;
i. at the Rent set forth in Section 2;
ii. for the Term set forth in Section 3; and
iii. subject to the conditions in accordance with the covenants,
obligations and agreements herein.
2. RENT
a) "Rent" means the amounts payable by the Tenant to the Landlord
pursuant to this Section, and includes any amounts payable as additional
rent by the Tenant to the Landlord hereunder.
b) The Tenant covenants to pay to the Landlord, during the Term of this
Lease rent in the amount of ONE HUNDRED AND THIRTY DOLLARS
AND FORTY -THREE CENTS ($130.43) (based on monthly rate of
$100.00) with $43.33 payable upon execution of this lease and $87.10
payable October 01, 2014.
c) The Tenant further covenants to pay to the Landlord Harmonized Sales
Tax ( "HST ") on the Rent. The amount of HST shall be calculated in
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accordance with the applicable legislation and shall be paid at the same
time as the rent to which the HST applies is payable to the Landlord under
this Lease. The Landlord shall have the same rights and remedies on
non - payment of HST as it has for rent in arrears under this Lease.
d) All payments to be made by the Tenant pursuant to this Lease shall be
delivered to the Landlord at the Landlord's address for service set out in
Section 12 or to such other place as the Landlord may from time to time
direct in writing.
e) The Tenant further acknowledges and agrees that:
i. the payments of Rent provided for in this Lease shall be made
without any deduction for any reason whatsoever unless expressly
allowed by the terms of this Lease or agreed to by the Landlord in
writing; and
ii. no partial payment by the Tenant, which is accepted by the
Landlord, shall be considered as other than a partial payment on
account of Rent owing and shall not prejudice the Landlord's right
to recover any Rent owing.
3. TERM AND POSSESSION
a) The Tenant shall have possession of the Premises for the period
commencing September 18, 2014 and ending October 24, 2014:
b) Subject to the Landlord's rights under this Lease, and as long as the
Lease is in good standing the Landlord covenants that the Tenants shall
have quiet enjoyment of the Premises during the Term of this Lease
without any interruption or disturbance from the Landlord or any other
person or persons lawfully claiming through the Landlord.
4. COMMON FACILITIES AND SERVICES
a) As part of this Lease, the Landlord shall supply at its sole cost and
expense the utilities for the Premises being electricity, water, and heat and
shall further be responsible for providing snow removal.
b) The Tenant is responsible for custodial services to the leased Premises.
c) The Tenant, together with and in common with all others entitled thereto
and their respective officers, agents, servants, employees, contractors,
customers, invitees or licensees, shall be entitled to the use and benefit of
the Common Facilities (as defined below). The Tenant shall not
unreasonably block or in any manner hinder the Landlord or other persons
who may be authorized by the Landlord to utilize the Common Facilities
from so doing. The Landlord may, acting reasonably, from time to time
permit certain persons to have the exclusive use of portions of the
Common Facilities to the exclusion of the Tenant and other persons,
provided that the Tenant shall at all times have unrestricted access to and
use of the Premises and the washrooms, stairways and elevators and
such other portions or elements of the Common Facilities necessary for
the Tenant's use of the Premises; subject to reasonable rules and
regulations imposed by the Landlord and subject also to reasonable
limitations imposed by the Landlord while it is making repairs which it is
obligated to make pursuant to the provisions of this Lease provided that
the landlord makes such repairs with all reasonable diligence.
For the purposes of this Lease, "Common Facilities" means all common
areas and utilities from time to time furnished or designated (and which
may be changed provided such changes do not materially or adversely
affect the access to or the Tenant's use of the Premises) by the Landlord
for the use in common, in such manner as the Landlord may permit, of
tenants of premises in the Building and all others entitled to access and
their respective officers, agents, servants, employees, contractors,
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customers, invitees or licensees, including, without limitation, sidewalks,
building entrances, lobbies, stairways, passageways and washrooms.
5. ASSIGNMENT
a) The Tenant shall not assign this Lease or sublet the whole or any part of
the Premises unless it first obtains the consent of the Landlord in writing,
which consent shall not unreasonably be withheld, delayed or conditioned.
b) The Tenant hereby waives its right to the benefit of any present or future
Act of the Legislature of Ontario, which would allow the Tenant to assign
this Lease or sublet the Premises without the Landlord's consent.
c) The consent of the Landlord to any assignment or subletting shall not
operate as a waiver of the necessity for consent to any subsequent
assignment or subletting.
d) Any consent granted by the Landlord shall be conditional upon the
assignee, sublessee or occupant executing a written agreement directly
with the Landlord agreeing to be bound by all the terms of this Lease as if
the assignee, sublessee or occupant had originally executed this Lease as
Tenant.
e) Any consent given by the Landlord to any assignment or other disposition
of the Tenant's interest in this Lease or in the Premises shall not relieve
the Tenant from its obligations under this Lease, including the obligation to
pay Rent and Additional Rent as provided for herein.
6. USE
a) During the Term of the Lease the Premises shall not be used for any
purpose other than commercial office and /or storage purposes and any
lawful use ancillary thereto. The Landlord hereby represents and warrants
the use herein is permitted by all applicable zoning by -laws.
b) The Tenant shall only make such reasonable use of the utilities supplied
to the Premises, as would a reasonable tenant using the Premises for
commercial office and /or storage purposes.
c) The Tenant shall not do or permit to be done at the Premises anything
which may:
i. constitute a nuisance;
ii. cause damage to the Premises;
iii. cause injury or annoyance to occupants of neighbouring premises;
iv. make void or voidable any insurance upon the Premises, provided,
however, in the case of any insurance maintained by the Landlord,
copies of such policies have been provided to the Tenant;
v. constitute a material breach of any by -law, statute, order or
regulation of any municipal, provincial or other competent authority
relating to the Premises.
-4-
7. REPAIR AND MAINTENANCE
a) Subject to the Landlord's obligations to repair, replace or maintain
hereunder, the Tenant covenants that during the terms of this Lease, and
any renewal or extensions thereof, the Tenant shall keep in good condition
the Premises including all alterations and additions made thereto, and
shall, with or without notice, promptly make all needed repairs and all
necessary replacements as would a prudent Owner. Provided, however,
but the Tenant shall not be liable to effect repairs or replacements
attributable to:
i) reasonable wear and tear;
ii) damage caused by fire, lightning or storm or any peril against which
the Landlord is required to maintain insurance hereunder;
iii) damage caused by, or arising from, defective materials or faulty
workmanship or other defects in the construction, repair or
replacement of the structural elements of the Building;
iv) damages caused by the acts or omissions of the Landlord or any
other persons for whom it is responsible at law, or the acts or
omissions of any other tenant or occupant of the Building.
b) The Tenant shall permit the Landlord or a person authorized by the
Landlord to enter the Premises to examine the condition thereof and view
the state of repair at reasonable times:
i) and if upon such examination repairs required to be made by the
Tenant hereunder are found to be necessary, written notice of the
specific repairs required shall be given to the Tenant by or on
behalf of the Landlord and the Tenant shall make such repairs
within the time specified in the notice;
ii) if the Tenant refuses or neglects to keep the Premises in good
repair the Landlord may, but shall not be obliged to, make any
necessary repairs, and shall be permitted to enter the Premises, by
itself or its servants or agents, for the purpose of effecting the
repairs without being liable to the Tenant for any loss, damage or
inconvenience to the Tenant in connection with the Landlord's entry
and repairs; and
iii) if the Landlord makes any repairs the Tenant shall pay the actual
cost of such repairs as additional rent upon presentation to the
Tenant of invoices and /or receipts for the cost of the repairs.
c) Upon the expiry of the Term or other determination of this Lease the
Tenant agrees peaceably to surrender the Premises, including any
alterations or additions made thereto, to the Landlord subject only to the
Tenant's repair obligations hereunder.
d) The Landlord and the Tenant shall immediately give written notice to the
other party of any substantial damage that occurs to the Premises from
any cause.
8. INSURANCE
a) The Tenant covenants to keep the Landlord indemnified against all claims
and demands whatsoever ( "Claims ") by any person, whether in respect of
damage to person or property, arising out of or occasioned by the
maintenance, use or occupancy of the Premises by the Tenant or the
subletting or assignment of same or any part thereof except to the extent
that such Claims arise directly or indirectly by the acts or omissions of the
Landlord or persons for whom it is responsible in law. The Tenant further
covenants to indemnify the Landlord with respect to any encumbrance on
or damage to the Premises, the Building and the Common Facilities
occasioned by or arising from the act, default, or negligence of the Tenant,
its officers, agents, servants, employees, contractors, customers, invitees
or licensees and the Tenant agrees that the foregoing indemnity shall
survive the termination of this Lease notwithstanding any provisions of this
-
Lease to the contrary for any Claim that may have arisen during the Term
or any extension or renewal thereof.
b) The Tenant shall carry insurance in its own name to provide coverage with
respect to the risk of business interruption to an extent sufficient to allow
the Tenant to meet its ongoing obligations to the Landlord and to protect
the Tenant against loss of revenues.
c) The Tenant shall carry insurance in its own name insuring against the risk
of damage to the Tenant's property within the premises caused by fire or
other perils and the policy shall provide for coverage on a replacement
cost basis to protect the Tenant's stock -in- trade, equipment, Trade
Fixtures, decorations and improvements.
d) The Tenant shall, during the term of this lease, provide, at its own
expense, and keep in full force and effect, in the names of the Landlord
and the Tenant, public liability insurance applying to all operations of the
Tenant and which shall include bodily injury liability and tenants' legal
liability with respect to the occupancy by the Tenant of the Premises.
Such policies shall be written on a comprehensive basis with limits of not
less than ONE MILLION DOLLARS per occurrence and with a cross
liability clause. All policies of insurance required to be maintained under
this provision shall be with a company or companies licensed to do
business within the Province of Ontario and approved by the Landlord.
The Tenant shall furnish the Landlord with certificates or other acceptable
evidence of all such insurance promptly upon request.
e) During the Term, and any extension or renewal thereof, the Landlord shall
procure, and pay for fire and extended coverage insurance insuring the
Building in which the Premises are located for the full replacement value
with an insurance company licenced to do business in the Province of
Ontario. The Landlord hereby waives any and all rights of recovery
against Tenant for any loss occurring to the Building not caused by the
Tenant, its officers, agents, servants, employees, contractors, customers,
invitees or licensees. The term "extended coverage" as used herein, shall
mean such casualties as are commonly included under the term
"extended coverage" as such term is known and used in the casualty
insurance business. During the Term, and any extension or renewal
thereof, the Landlord shall protect, indemnify and save harmless the
Tenant from and against any and all liability to third parties incurred by any
act or omission of the Landlord, or any of its agents, servants, or
employees, in, on, or about the Real Property or the Building not
comprising the Premises, and shall purchase and maintain comprehensive
general liability insurance, in the amount of not less than $1,000,000.00
combined single limit (bodily injury and property damage), and with
property damage insurance in the amount determined by the Landlord.
9. DAMAGE TO THE PREMISES
a) If the Premises or the Building in which the Premises are located, are
damaged or destroyed, in whole or in part, by fire or other peril, then the
following provisions shall apply:
i. If the damage or destruction renders the Premises unfit for
occupancy and impossible to repair or rebuild using reasonable
diligence within 120 clear days from the happening of such damage
or destruction, then, at the Landlord's option and upon written
notice to the Tenant by the Landlord, the Term hereby granted shall
cease from the date the damage or destruction occurred, and the
Tenant shall immediately surrender the remainder of the Term and
give possession of the Premises to the Landlord, and the Rent shall
abate from the happening of such damage or destruction until the
time of the surrender and the Lease shall be terminated.
ii. If the Premises can, with reasonable diligence, be repaired and
rendered fit for occupancy within 120 days from the happening of
-6-
the damage or destruction, but the damage renders the Premises
wholly unfit for occupancy, then the Rent hereby reserved shall not
accrue after the day that such damage occurred, or while the
process of repair is going on, and the Landlord shall repair the
Premises with all reasonable speed, and the Tenant's obligation to
pay Rent shall resume immediately after the necessary repairs
have been completed.
iii. If the Premises can be repaired with 120 days as aforesaid, but the
damage is such that the leased Premises are capable of being
partially used, then until such damage has been repaired, the
Tenant shall continue in possession and the Rent shall abate
proportionately until such time as the entire Premises are capable
of being used.
b) Any question as to the degree of damage or destruction or the period of
time required to repair or rebuild shall be determined by an independent
and qualified architect retained by the Landlord.
c) There shall be no abatement from or reduction of the Rent payable by the
Tenant, nor shall the Tenant be entitled to claim against the Landlord for
any damages, general or special, caused by fire, water, sprinkler systems,
partial or temporary failure or stoppage of services or utilities which the
Landlord is obliged to provide according to this Lease, from any cause
whatsoever, unless due to the acts or omissions of the Landlord or of
those for whom it is responsible at law.
10. ACTS OF DEFAULT AND LANDLORD'S REMEDIES
a) An "Act of Default" has occurred when:
i. the Tenant has failed to pay Rent for a period of fifteen (15)
consecutive days, after demand for payment has been made;
ii. the Tenant has breached its covenants or failed to perform any of
its obligations under this Lease; and
a) the Landlord has given notice specifying the nature of the
default and the steps required to correct it; and
b) the Tenant has failed to take action to correct the default as
reasonably required by the Landlord and specified in the
notice;
iii. the Tenant has;
A. become bankrupt or insolvent or made an assignment for the
benefit of Creditors;
B. had its property seized or attached in satisfaction of a
judgment;
C. had a receiver appointed;
D. committed any act or neglected to do anything with the result
that a Claim for Lien or other encumbrance is registered
against the Real Property and the Tenant has not
discharged or caused to be discharged such Claim for Lien
within ten (10) days of receiving notice of the Claim for Lien;
E. taken action, if the Tenant is a corporation, with a view to
winding up, dissolution or liquidation;
iv. any insurance policy required to be maintained by the Tenant is
cancelled or not renewed by reason of the use or occupation of the
Premises, or by reason of non - payment of premiums;
v. the Premises are used by any other person or persons, or for any
other purpose than as provided for in this Lease without the written
consent of the Landlord.
b) When an Act of Default on the part of the Tenant has occurred:
i. the current rent together with the next rent shall become due and
payable immediately; or
- I -
ii. the Landlord shall have the right to terminate this Lease and to re-
enter the Premises and deal with them as it may choose in
accordance with all applicable laws.
c) If, because an Act of Default has occurred, the Landlord exercises its right
to terminate this Lease and re -enter the Premises prior to the end of the
Term, the Tenant shall nevertheless be liable for payment of Rent and all
other amounts payable by the Tenant in accordance with the provisions of
this Lease until the Landlord has re -let the Premises or otherwise dealt
with the Premises in such manner that the cessation of payments by the
Tenant will not result in Toss to the Landlord and the Tenant agrees to be
liable to the Landlord, until the end of the Term of this Lease for payment
of any difference between the amount of Rent hereby agreed to be paid
for the Term hereby granted and the Rent any new tenant pays to the
Landlord.
d) The Tenant covenants that notwithstanding any present or future Act of
the Legislature of the Province of Ontario, the personal property of the
Tenant located at the Premises during the Term shall not be exempt from
levy by distress for Rent in arrears;
i) and the Tenant acknowledges that it is upon the express
understanding that there should be no such exemption that this
Lease is entered into, and by executing this Lease:
A) the Tenant waives the benefit of any such legislative
provisions which might otherwise be available to the Tenant
in the absence of this agreement;
and
B) the Tenant agrees that the Landlord may plead this covenant
as an estoppel against the Tenant if an action is brought to
test the Landlord's right to levy distress against the Tenant's
property.
e) If, when an act of Default has occurred, the Landlord chooses not to
terminate the Lease and re -enter the Premises, the Landlord shall have
the right to take any and all reasonably necessary steps to rectify any or
all Acts of Default of the Tenant and to charge the actual costs of such
rectification to the Tenant and to recover the actual costs as Rent.
f) If, when an Act of Default has occurred, the Landlord chooses to waive its
right to exercise the remedies available to him under this Lease or at law
the waiver shall not constitute condonation of the Act of Default, nor shall
the waiver be pleaded as an estoppel against the Landlord to prevent its
exercising its remedies with respect to a subsequent Act of Default.
g) No covenant, term, or condition of this Lease shall be deemed to have
been waived by the Landlord unless the waiver is in writing and signed by
the Landlord.
11. RULES AND REGULATIONS
The Tenant agrees on behalf of itself and all persons entering the Building with
the Tenant's authority or permission to comply with all reasonable rules and
regulations that form part of this Lease or that the Landlord may make from time
to time for the safety, care and cleanliness of the Building and the preservation of
good order in the Building and Common Facilities.
12. NOTICE
a) Any notice required or permitted to be given by one party to the other
pursuant to the terms of this Lease may be given.
to the Landlord at:
- 8 -
1475 5th Concession
RR #5
Kincardine, Ontario
N2Z 2X6
Facsimile No.: 519 - 396 -8288
to the Tenant at the Premises or at:
KINCARDINE SUMMER MUSIC FESTIVAL
p.0 ',pox
679 6 9)/
Facsimile No.: (519)
c) Any notice given by one party to the other in accordance with the provision
of this Lease shall be deemed conclusively to have been received on the
next business day following the date delivered if the notice is served
personally or by facsimile transmission or seventy -two (72) hours after
mailing if the notice is mailed.
13. REGISTRATION
The Tenant shall not at any time register notice of or a copy of this Lease on title
to the Property of which the Premises form part without consent of the Landlord.
14. INTERPRETATION
a) 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.
b) Unless the context otherwise requires, the word "Landlord" and the word
"Tenant" wherever used herein shall be construed to include the
executors, administrators, successors and assigns of the Landlord and
Tenant, respectively.
IN WITNESS WHEREOF the Landlord and the Tenant have executed this Lease.
THE CORPORATION OF THE KINCARDINE SUMMER MUSIC
MUNICIPALITY OF KINCARDINE FESTIVAL
lame: OP
Lar ra ° mer
Title: May. Name:
Name: Murray Clarke
Title: Chief Administrative Officer Name:
/we have authority to bind the I /we have authority to bind the
corporation
corporation
Authorized by By -law No. 2014 -
-9-
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601 DURHAM STREET
KINCARDINE, ONTARIO,
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