3389 Lease Agreement - A BY-LAW to enter into a lease agreement with Ontario Realty CorporationLll794
I
FORM OF LEASE
DATED: January !, 2009
TilE CORPORATION OF THE TOWN OF TILLSONBURG
-and-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF ENERGY AND
INFRASTRUCTURE
I Dundas Street West
Suite 2000
Toronto, Ontario M5G 2L5
NET OFFICE LEASE
Ontario Realty Corporation
One Stone Road West
4th Floor
Guelph, Ontario NIG 4Y2
ORC-07/08
' '
OFFICE LEASE
TABLE OF CONTENTS
SUMMARY'" .. '".'" .................... '".'" .. '"'"'".'"'"'"'"'" .. '" ........................................................................... 1
DEFINITIONS .............................................................................................................................. 3
ARTICLE 1 PREMISES ............................................................................................................... 7
ARTICLE 2 TERM ........................................................................................................................ 7
ARTICLE 3 NET RENT ................................................................................................................ 8
Section 3.1 8
Section 3.2 8
ARTICLE 4 TENANT'S COVENANTS ...................................................................................... 8
Section 4.1 Net Rent. .............................................................................................................. 8
Section 4.2 Payment of Realty Taxes ..................................................................................... 8
Section 4.3 Payment of Operating Costs ................................................................................ 8
Section 4.4 Compensation for Damage .................................................................................. 8
Section 4.5 Notice of Defect .................................................................................................. 9
Section 4.6 Entry by Landlord ............................................................................................... 9
Section 4.7 Assign or Sublet .................................................................................................. 9
Section 4.8 Use of Premises ................................................................................................... 9
Section 4.9 Not to Affect Insurance ....................................................................................... 9
Section 4.10 Tenant's Compliance with Laws ....................................................................... 10
Section 4.11 Waste ................................................................................................................. 10
Section 4.12 Nuisance ............................................................................................................ 10
Section 4.13 Tenant's Indenmity ........................................................................................... 10
Section 4.14 Insurance ........................................................................................................... 10
Section 4.15 Exhibiting Premises ........................................................................................... 10
Section 4.16 Facilitate Cleaning ............................................................................................. 10
Section 4.17 Construction Lien .............................................................................................. 10
Section 4.18 Premises Repair ................................................................................................. 11
ARTICLE 5 LANDLORD'S COVENANTS ............................................................................... 11
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Section 5.5
Section 5.6
Section 5.7
Section 5.8
Section 5.9
Section 5.10
Section 5.11
Section 5.12
Quiet Enjoyment ............................................................................................... 11
Taxes and Adjustments (of Realty Taxes and Operating Costs) ....................... 11
Services and Facilities ....................................................................................... 11
Access ................................................................................................................ 13
Repair ................................................................................................................ 13
Telephone Installation and Communications Systems ...................................... 14
Tenant Improvements ........................................................................................ 14
Landlord Improvements .................................................................................... 14
Energy Conservation ......................................................................................... l5
Indenmity & Release ......................................................................................... 16
Compliance with Laws ...................................................................................... 16
Insurance ........................................................................................................... 16
Section 5.13 No Environmental Contaminants ...................................................................... 17
Section 5.14
Section 5.15
Section 5.16
Section 5.17
Section 5.18
Section 5.19
Section 5.20
Section 5.21
Section 5.22
Section 5.23
Section 5.24
Section 5.25
Section 5.26
Environmental Contaminants ............................................................................ l8
Notification of Environmental Contaminants ................................................... 19
Warranty ............................................................................................................ l9
Asbestos ............................................................................................................ 20
Environmental Indenmity ···············································································;?~};
Additional Services ·····················································································'",, ... ;!J,
Consent and Approval .................................................................................. \~· .. Zc;!,
Waste Management and Recycling Program ............................................... :(\-·· 22 : ,
Parking ......................................................................................................... 5;". 22 '
Landlord's Records and Tenant's Audit Rights .............................................. ::22' ,,,
Landlord Transfer ........................ '"'.'" .. '" .. '" .. '".'"'.'"'.'" .. '"'"'.'".'"'.'".'".'".'".'".'".'".''" .. ~2
Landlord to Communicate Directly with Tenant '"'"'"'"'"'"'"''"'"'"'"'"'"'"'"'"'"'"'"'"'"::.23
Conflict of Interest . '" .. '" .. '".'" .. '" .. '"'.'" .. '". '"' .. '" ..... '"'.'" .. '".'" .. '".'".'". '"'.'".'".'".'".'".'" .... 23
P-i
ARTICLE 6 PROVISOS ............................................................................................................. 23
Section 6.1 Overholding ....................................................................................................... 23
Section 6.2 Trade Fixtures Furniture .................................................................................... 23
Section 6.3 Signs .................................................................................................................. 24
Section 6.4 Unavoidable Delays .......................................................................................... 24
Section 6.5 Right-of-Way .................................................................................................... 24
Section 6.6 Common Parking ............................................................................................... 24
Section 6.7 Damage and Destruction ................................................................................... 25
Section 6.8 Leasehold Improvements by Landlord at request ofTenant ............................. 26
Section 6.9 Removal of Leasehold Improvements ............................................................... 26
Section 6.10 Re-Entry ............................................................................................................ 26
Section 6.11 Landlord's Default ............................................................................................ 26
Section 6.12 Option to Extend ............................................................................................... 27
Section 6.13 Arbitration ......................................................................................................... 27
Section 6.14 Additional Space ............................................................................................... 28
Section 6.15 Non-Waiver ....................................................................................................... 28
Section 6.16 Non-Disturbance Agreement. ............................................................................ 28
Section 6.17 Notices ............................................................................................................... 28
Section 6.18 Entire Agreement .............................................................................................. 28
Section 6.19 Registration ....................................................................................................... 28
Section 6.20 Severability ........................................................................................................ 29
Section 6.21 Interpretation ..................................................................................................... 29
Section 6.22 Headings and Captions ...................................................................................... 29
Section 6.23 Effect of Lease .................................................................................................. 29
Section 6.24 Survival of Agreement ...................................................................................... 29
Section 6.25 Binding on Tenant ............................................................................................. 29
Section 6.26 Governing Law .................................................................................................. 29
Section 6.27 Time of Essence ................................................................................................ 29
Section 6.28 Freedom of Information .................................................................................... 29
Section 6.29 Certificates ........................................................................................................ 29
Section 6.30 Reasonableness .................................................................................................. 30
SCHEDULE "A"
SCHEDULE "B"
SCHEDULE "C"
SCHEDULE "D"
SCHEDULE "E"
SCHEDULE "F"
SCHEDULE "G"
SCHEDULE "H"
SCHEDULE "I"
SCHEDULE "J"
SCHEDULE "K"
SCHEDULE "L"
SCHEDULE "M"
SCHEDULE "M-1''
SCHEDULE "N"
SCHEDULE "0"
SCHEDULE "P"
SCHEDULE "Q"
SCHEDULE "R"
SCHEDULES
LEGAL DESCRIPTION OF THE LANDS
FLOOR PLAN
FRIABLE MATERIAL
OPERATING COSTS
REPORT
REPORT
REALTY TAX ADJUSTMENTS
ELECTRICAL REQUIREMENTS
HVAC, PLUMBING AND DRAINAGE, FIRE PROTECTION
SYSTEMS
WASTE MANAGEMENT
CONSERVATION OF ENERGY
THE TENANT UNDERTAKE TENANT'S IMPROVEMENTS
EHQUJ.Q TH~ k*.d'!Q!sQRI) UNQ~R+Af"~ TMiNMIT'E
R:iPRQY~M~NTE Intentionally Deleted.
RIITI-AI. IsM!QisQRQ'E WQRK Intentionally Deleted.
COMMUNICATIONS SYSTEM
NON-DISTURBANCE AGREEMENT
JANITORIAL SERVICES SPECIFICATIONS
ELEVATORS
ARCHITECT'S CERTIFICATE
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L11794
TillS LEASE made in quadruplicate as of January 17, 2009.
BETWEEN:
THE CORPORATION OF THE TOWN OF TILLSONBURG
(herein called the "Landlord")
-and-
HER MAJESTY THE QUEEN IN RIGHT OF
ONTARIO AS REPRESENTED BY THE
~STER OF ENERGY AND
INFRASTRUCTURE
(herein called the "Tenant")
SUMMARY
The following is a sununary of certain provisions, which are part of, and are referred to in
subsequent provisions of this Lease. Any conflict or inconsistency between these provisions and
the provisions contained elsewhere in this Lease will be resolved in favour of the provisions
contained elsewhere in this Lease:
(a)
(b)
Address of Premises:
Net Rent:
31 Earle Street, Tillsonburg, Ontario
Sixty-Two Thousand, Four Hundred and Eighty-Five Dollars
($62,485.00) per annum, which sum includes a consideration
for Realty Taxes.
Five Thousand, Two Hundred and Seven Dollars and Eight
Cents ($5,207.08) payable monthly, based on Five Dollars
($5.00) per square foot per year of the Rentable Area of the
Premises, being Twelve Thousand, Four Hundred and Ninety-
Seven (12,497) square feet.
(c) Term: Five (5) years
(d) Extension Options: Three (3) extension terms of Five (5) years each, each
exercisable upon Six (6) months' notice to the Landlord
(e) Commencement Date: January 17, 2009
(f) Address of Landlord: 200 Broadway, 2nd Floor, Tillsonburg, Ontario N4G 5A7
(g)
With rent cheqnes to The Corporation of the Town ofTillsonburg
be made payable to:
Address of Tenant: c/o Ontario Realty Corporation
One Stone Road West
4th Floor
Guelph, Ontario NIG 4Y2
Attention: Regional Director of Operations
Fax: (519) 826-3330
With a copy to:
(h)
(i)
Occupant:
Parking
c/o Ontario Realty Corporation
I Dundas Street West
Suite 2000
Toronto, Ontario M5G 2L5
Attention: Senior Solicitor, Leasing
Fax: (416) 327-2760
Ministry of Community Safety and Correctional Services
The Tenant, the Occupant (and persons utilizing the services
of the Occupant) is entitled to the sole use of approximately
Forty (40) parking spaces located in the Parking Areas, the
cost of which is included in the Net Rent.
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~·
DEF1NITIONS
In this Lease and in the Schedules to this Lease, the following words or phrases have the
following meanings:
"Additional Rent" means all charges or sums of money, other than Net Rent, payable by
the Tenant under the provisions of this Lease. Additional Rent is due and payable with the next
monthly instalment of Net Rent unless otherwise provided herein, but in any event is not payable
as part of Net Rent.
"Additional Services" means all services supplied by the Landlord in addition to those
required to be supplied by the Landlord to the Tenant pursuant to this Lease, except for any
services which the Landlord elects to supply to all of the tenants of the Building, the cost of
which is included in the Operating Costs for the Building.
"Agreement to Lease" is comprised of the Letter of Intent dated November 7, 2008 of
the Tenant, which was accepted by the Landlord on December 12, 2008.
"Architect" means the independent, arm's length architect, surveyor or professional civil
engineer, from time to time named by the Landlord and approved by the Tenant acting
reasonably.
"Authority" means any governmental authority, quasi-governmental authority, agency,
body or department whether fedeml, provincial or municipal, having or claiming jurisdiction
over the Premises or the Building, or the use thereof.
"Building" means the building having the municipal address of 31 Earle Street,
Tillsonburg, Ontario erected on the Lands, from and including the lowest floor or level of the
Building to and including the roof of the Building, the Structure, the Common Areas and
Facilities, the Parking Areas and the areas and facilities exclusively serving the Building, which
areas and facilities may include, without limitation, lobbies, foyers and vestibules, sidewalks,
storage and mechanical areas, Mechanical and Electrical Services, janitor rooms, mail rooms,
telephone rooms, rooms for the Mechanical and Electrical Services, stairways, escalators,
elevators, truck and receiving areas, driveways, loading docks and corridors. Where the context
requires, "Building" includes all buildings of the Landlord on the Lands.
"Business Day" means any day which is normally considered a regular day of business
for most government offices for the Province of Ontario.
"Commencement Date" means the date set out in Article 2 of this Lease for the
beginning of the Term.
"Common Areas and Facilities" means those areas, facilities, utilities, improvements,
equipment and installations in the Building which are notleased to tenants of the Building, and
which serve or are for the benefit of the Building and are located within the Building or on the
Lands, including all areas, facilities, utilities, improvements, equipment and installations which
are provided by the Landlord for the use or benefit of all the tenants, their employees, customers
and other invitees in common with others entitled to the use and benefit thereof in the manner
and for the purposes permitted by this Lease.
"Contemplated Use" means for office/administmtive purposes or any other business or
purpose permitted by applicable Laws.
"Cost Period" means, unless otherwise specified herein, the consecutive period of
Twelve (12) calendar months, commencing on the I" day of January and ending on the 31 '1 day
of December in each year of the Term. Notwithstanding the foregoing, the period of time for the
first Cost Period shall commence on the Commencement Date and end on the 31" day of
December, 2009 and the period of time for the last Cost Period shall commence on the 1" day of
January in the last year of the Term and end on the expimtion or earlier termination of this Lease,
as the case may be.
"Environmental Contaminants" means (a) any substance which, when it exists in the
Building or the water supplied to or in the Building, or when it is released into the Building or
any part thereof, or into the water or the natuml environment, is likely to cause, at any time,
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material harm or degradation to the Building or any part thereof, or to the natural environmental
or material risk to human health, and includes, without limitation, any flammables, explosives,
radioactive materials, asbestos, lead paint, PCBs, fungal contaminants (including, without
limitation, and by way of example, stachybotrys chartarum and other moulds), mercury and its
compounds, dioxans and furans, chlordane (DDT), polychlorinated biphenyls,
chlorofluorocarbons (CFCs), hydro-chlorofluorocarbons (HCFCs), volatile organic compounds
(VOCs), urea formaldehyde foam insulation, radon gas, chemicals known to cause cancer or
reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic or noxious substances or
related materials, petroleum and petroleum products, or (b) any substance declared to be
hazardous or toxic under any Environmental Laws now or hereafter enacted or promulgated by
any Authorities, or (c) both (a) and (b).
"Environmental Laws" means any federal, provincial or local law, statute, ordinance,
regulation, policy, guideline or order and all amendments thereto pertaining to health, industrial
hygiene, environmental conditions or Environmental Contaminants, including, without
limitation, the Environmental Protection Act, R.S.O. 1990, c.E.I9, the Environmental
Assessment Act, R.S.O. 1990, c.E.18, the Ontario Water Resources Act, R.S.O. 1990, c.0.40, the
Occupational Health and Safetv Act, R.S.O. 1990, c. 0.1, the Safe Drinking Water Act 2002.
S.O. 2002, c.32, and applicable air quality guidelines, as such statutes, regulations and guidelines
may be amended from time to time.
"Landlord" means the Landlord and its duly authorized representatives.
"Landlord Transfer" means any (i) assignment, sale, conveyance or other disposition
of this Lease or any interest of the Landlord hereunder, (ii) sale of the Building or any part
thereof and (iii) transfer or issue by sale, assignment, bequest, inheritance, operation of law or
other disposition, or by subscription of all or part of the corporate shares of the Landlord or an
"affiliate" (as that term is defined on the date of this Lease under the Canada Business
Comorations Act. R.S., 1980, c. C-44) of the Landlord which results in a change in the effective
voting control of the Landlord. "Landlord Transferee" shall have meaning corresponding to the
definition of "Landlord Transfer" set out above (it being understood that for a Landlord Transfer
described in clause (iv), the Landlord Transferee is the Person that has effective voting control
after the Laodlord Transfer).
"Landlord's Taxes" means all taxes, rates, duties, levies and assessments whatsoever
whether municipal, provincial or federal, charged upon the Building and the Laods, or upon the
Landlord on account thereof, including all taxes, rates, duties, levies, impost charges and
assessments for local improvements, education and schools and all taxes, grants or assessments
which may in future be levied in lieu of "Landlord's Taxes" as hereinbefore defined, and
including any local improvement charges or levies directly or indirectly related to the
development of the Building. Laodlord's Taxes include, without limitation, Realty Taxes,
business taxes of the Landlord, corporation taxes, capital taxes, excise taxes, Sales Taxes,
income taxes, Commercial Concentration Tax, or any other taxes or assessments levied against
the Landlord, the Building, the Lands, or the Rent.
"Landlord's Work" means aoy work described in Schedule "M-1" (Initial Landlord's
Work) and, if applicable, Schedule "M" (should the Landlord undertake initial Tenant's
Leasehold Improvements), that must be completed by the Landlord to the Tenant's satisfaction
before the Premises are delivered to the Tenaot on the Commencement Date. The Landlord's
Work shall be completed in accordance with Schedule "M-1" aod (if applicable) Schedule "M".
"Lands" means the laods underneath the Building aod those laods owned by the
Landlord which are directly adjacent to the Building, all as more particularly described in
Schedule "A" attached hereto. The Landlord and Tenaot agree that the open grass land south of
the Building does not form part of the Lands and Building in this Lease.
"Laws" means any enactments, by-laws, statutes, ordinances, regulations, guidelines,
codes, orders aod policies and all amendments thereto aod aoy successor legislation, of any
Authority including, but not limited to, the Ontarians With Disabilities Act, 2001, S.O. 2001,
c.32 and the Financial Administration Act, R.S.O. 1990, c. F.l2.
"Lease" means this agreement and all the terms, covenants and conditions set out herein,
as amended from time to time in accordance with Section 6.18 of this Lease.
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"Leasehold Improvements" means all items generally considered as leasehold
improvements including, without limitation, all installations, alterations, and additions from time
to time made, erected or installed in the Premises by or on behalf of the Tenant, or any previous
occupant of the Premises, including, without limitation, any leasehold improvements installed by
the Tenant pursuant to Schedule "L" attached hereto, and any initial Tenant's leasehold
improvements installed by the Landlord pursuant to Schedule "M" attached hereto.
"Market Rental" means, at any given time, the then current market net rental rate as
indicated by market comparables, being leases and offerings, with comparable terms (including,
without limitation, the length of the term and the frequency of adjustments in rent, if any) entered
into at arm's length with comparable tenants with financial standing comparable to the Tenant,
for Unimproved office premises of comparable size, effective age, quality and use in comparable
buildings in similarly sized townships or communities in which the Building is located, taking
into account the incidence of tenant inducements and allowances or initial rent-free or reduced
rent periods then prevailing in the relevant market areas, and making the necessary adjustments
for any differences.
"Mechanical and Electrical Services" include, but are not limited to, all mechanical,
electrical, drainage, lighting, incinerating, ventilation, air-conditioning, humidification,
elevating, heating, pumping, sprinkling, alarm, plumbing and other mechanical and electrical
systems installed in or used in the operation of the Building and the Lands.
"Net Rent" means the rent payable by the Tenant to the Landlord pursuant to Article 3
of this Lease.
"Normal Business Hours" means those hours and days considered by the Occupant to
be its normal business hours, acting reasonably and in recognition and consideration of the
Landlord's normal operating hours for the Building, if any.
"Occupant" means the Ministry of Community Safety and Correctional Services.
"Operating Costs" has the meaning provided in Schedule "D" attached hereto.
"Parking Areas" means the improvements constructed from time to time, in or as part
of the Building and the Lands for use as parking facilities for the Tenant and their employees,
servants and invitees, and the areas and facilities that are appurtenant solely to those
improvements, but excluding the parking areas, driveways, loading areas and other parts of the
service area forming part of the Premises and available exclusively to the Tenant.
"Person", if the context allows, includes any person, fmn, partnership or corporation, or
any group of persons, finns, partnerships or corporations or any combination thereof.
"Premises" means the premises containing a Rentable Area, which, as of the
Commencement Date, has been calculated to be Twelve Thousand, Four Hundred and Ninety-
Seven (12,497) square feet and occupying the entire floor of the Building. If the Premises are
entirely self-enclosed, their boundaries extend (a) to the inside finished surface of the permanent
outer walls; and (b) from the top surface of the structural subfloor to the bottom surface of the
suspended ceiling. If the Premises have no suspended ceiling abutting the demising walls and
are open to the ceiling or the bottom surface of the structural ceiling of the Building, the
boundaries of the Premises extend from the top surface of the structural subfloor to the height of
the demising walls. The location of the Premises is outlined on the plan attached hereto as
Schedule "B".
"Proportionate Share" means the ratio of the Rentable Area of the Premises to the
Rentable Area of the Building which, at the Commencement Date, has been calculated to be One
Hundred percent (100%). This percentage is subject to adjustment from time to time, according
to any change in the Rentable Area of either of the Premises or the Building. The Landlord shall
notifY the Tenant of any change in the Rentable Area of the Building as soon as practicable and
provide the Architect's certificate of the Rentable Area of either of the Premises or the Building,
as the case may be, within Thirty (30) days thereafter, reflecting such change.
"Realty Taxes" has the meaning provided in Schedule "G" attached hereto.
"Rent" means the aggregate of Net Rent and Additional Rent
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"Rentable Area of tbe Building" means the total of the Rentable Area of all premises
within the Building, as defined and calculated in accordance with the American National
Standard Method for Measuring Floor Area in Office Buildings (ANSI Z65.1 -1996) (BOMA),
which, as of the Commencement Date, has been calculated to be Twelve Thousand, Four
Hundred and Ninety-Seven (12,497) square feet. In the event that the American National
Standard Method for Measuring Floor Area in Office Buildings is revised or amended at any
time during the Term, the method of calculation referred to above shall continue to be used to
define the Rentable Area of the Building for the remainder of the Term.
"Rentable Area of the Premises" means the total of the Rentable Area of the Premises
within the Building, as defined and calculated in accordance with the American National
Standard Method for Measuring Floor Area in Office Buildings (ANSI Z65.1 -1996) (BOMA),
as of the Commencement Date, to be Twelve Thousand, Four Hundred and Ninety-Seven
(12,497) square feet. In the event that the American National Standard Method for Measuring
Floor Area in Office Buildings is revised or amended at any time during the Term, the method of
calculation referred to above shall continue to be used to define the Rentable Area of the
Premises for the remainder of the Term.
"Sales Taxes" means all business transfer, multi-usage sales, sales, goods and services,
use, consumption, value-added or other similar taxes imposed by the Govermnent of Canada or
Ontario upon the Landlord, or the Tenant, or in respect of this Lease, or the payments made by
the Tenant hereunder or the goods and services provided by the Landlord hereunder including,
without limitation, the rental of the Premises and the provision of administrative services to the
Tenant hereunder.
"Structure" means (i) the foundations, roof (including roof membrane), exterior wall
assemblies and appurtenances thereto (including weather walls), bearing walls, floor structures,
subfloors, and structural columns and beams of the Building, (and any part thereof), (ii) all
plumbing, drainage, Mechanical and Electrical Services and equipment within, servicing, leading
up to, from and under the Building, and (iii) any other portions of the Building normally
considered to be part of the structural portion of a building, or where the repairs or replacements
thereto are normally considered a major capital expenditure.
"Tenant" means, where the context allows, any ministries, agencies, servants,
employees, agents, invitees and licensees of Her Majesty the Queen in Right of Ontario and the
Ontario Realty Cmporation, or their service providers, and/or any other entity over whom the
Tenant may reasonably be expected to exercise control. It is understood and agreed that the
Ontario Realty Corporation is the only person entitled to bind the Tenant contractually.
"Term" means the initial term of this Lease set out in Article 2 of this Lease and any
Extension Term (as defined in Section 6.12 below).
"Trade Fixtures" means the personal chattels installed prior to the Commencement
Date, at the Commencement Date or during the Term by or on behalf of the Tenant, in, on or
which serve, the Premises, for the sole purpose of the Tenant carrying on its trade in the
Premises pursuant to Section 4.8 of this Lease and which Trade Fixtures the Tenant is permitted
to remove only to the extent permitted by the terms of this Lease, but Trade Fixtures do not
include Leasehold Improvements of the Tenant.
"Unimproved" means: (i) full completion of exterior and interior finishes on all
perimeter walls with standard finishes associated with the Building; (ii) fmished demising walls
and entrance doors with locking hardware; (iii) fully balanced distribution of the Mechanical
and Electrical Services to base building standards; (iv) level finished concrete floor; and (v) new
or "as new" finished T -bar ceiling, but shall exclude the Building security system and equipment
related thereto installed by the Tenant or on the Tenant's behalf.
"Utilities" means all gas, electricity, water, sewer, steam, fuel oil, power, signal
equipment and other utilities used in or for the Building or the Premises, as the case may be.
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ARTICLE 1
PREMISES
ARTICLE2
TERM
In consideration of the Rent reserved and the covenants and agreements
herein contained to be paid, observed and performed by the Tenant, the
Landlord hereby leases to the Tenant the Premises for the Term, together
with the non-exclusive right to use the Common Areas and Facilities and
any Parking Areas together with all others entitled thereto. The Landlord
shall deliver possession of the Premises to the Tenant on the
Commencement Date. The Tenant, having inspected the Premises, shall
accept the Premises in an "as is, where is" condition subject to the
Landlord hereby representing and warranting that:
(i) the foundations, roof (including roof membrane), exterior wall
assemblies and appurtenances thereto (including weather walls),
bearing walls, floor structures, subfloors, and structural columns
and beams (and any part thereof);
(ii) all plumbing, drainage, mechanical and electrical services and
equipment within, servicing, leading up to, from and under the
Premises; and
(iii) any other portions of the Premises normally considered to be part
of the structural portion of a building, or where the repairs or
replacements thereto are normally considered a major capital
expenditure;
are and will be in good working order and condition and satisfactory for
carrying on the Tenant's business from the Premises.
Unless specifically waived by the Tenant, the Landlord shall deliver to
the Tenant an Architect's certificate, in the form attached as Schedule
"R" to this Lease, at the Landlord's expense, on or before the
Commencement Date, certifying the actual Rentable Area of the
Premises and that of the Building and adjustments in the calculation of
the Net Rent, the Leasehold Improvement Allowance, if any, the Realty
Taxes Adjustment, as provided in Section 4.2 of this Lease, and the
Operating Cost Adjustment, as provided in Section 4.3 of this Lease,
will be made accordingly, subject to the Tenant's right to dispute such
certificate, as provided for in this Article I. Notwithstanding the
foregoing, the Net Rent shall not, in any event, be increased by more
than Five Percent (5%) of the Net Rent herein provided. 1n the event
that the Landlord is an Ontario Land Surveyor, Architect or Professional
Engineer, the Landlord may not certify Schedule "R" and must request
that an independent Architect or Engineer certify Schedule "R" for the
purposes of this provision.
The Tenant shall have the right to dispute such certificate of the
Architect by having the Rentable Area of each of the Premises and the
Building measured by an architect or land surveyor appointed by the
Tenant. The Tenant shall then submit the certificate of the Tenant's
architect to the Landlord, and if the Landlord does not agree with such
certificate of the Tenant's architect, the measurement of the Premises
and the Building shall be determined by an independent architect or
surveyor mutually chosen by the Landlord and Tenant, whose costs shall
be shared equally by both the Landlord and the Tenant and whose
calculation shall be final and binding upon both the Landlord and the
Tenant.
TO HAVE AND TO HOLD the Premises for and during the Term of
Five (5) years, commencing on January 17, 2009 and ending on January
16, 2014, unless previously terminated pursuant to the terms of this
Lease.
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ARTICLE3
NET RENT
Section 3.1
ARTICLE4
TENANT'S
COVENANTS
Section 4.1
Net Rent
Section 4.2
Payment of
Realty Taxes
Section 4.3
Payment of
Operating Costs
Section 4.4
Compensation
The Tenant hereby covenants to pay to the Landlord as Net Rent, during
the Term, the sum of Sixty-Two Thousand, Four Hundred and Eighty-
Five Dollars ($62,485.00) per annum, which sum includes a
consideration for Realty Taxes, in equal monthly installments of Five
Thousand, Two Hundred and Seven Dollars and Eight Cents
($5,207.08), based upon the annual rate of Five Dollars ($5.00) per
square foot of the Rentable Area of the Premises.
It is agreed and understood that the Net Rent shall commence to be
payable on the Commencement Date.
It is agreed and understood that this Lease is completely net and carefree
to the Landlord, and except as expressly provided herein, the Landlord is
not responsible during the Term for any expenses and obligations of any
nature whatsoever arising from, or relating to, the Premises.
Net Rent shall be payable to the Landlord in lawful money of Canada, in
advance in equal monthly instalments on the first day of each and every
month during the Term at such place as the Landlord shall hereafter
designate in writing. If the Term commences on any day other than the
first day of a month or ends on any day other than the last day of a
month, Net Rent for the fractions of a month at the Commencement
Date and at the end of the Term shall be prorated on a per diem basis,
based upon a period of Three Hundred and Sixty-Five (365) days.
Rental payments shall, unless otherwise agreed upon by the parties, be
made by the Tenant by direct deposit to the Landlord as further directed
by the Landlord. The Landlord covenants to provide the T errant with a
minimum of Fifteen (15) days' prior written notice of a change in either
the payee of the Rent or the account number of the bank account of the
payee to which payments of Rent are being directed.
The Tenant hereby certifies that the Premises are leased by the Ontario
Realty Corporation for the use of the Crown in Right of Ontario and are
therefore not subject to the federal Goods and Services Tax. This
provision applies only where ONTARIO REALTY CORPORATION,
acting as agent on behalf of HER MAJESTY THE QUEEN in Right of
Ontario as represented by the Minister of Energy and Infrastructure, is
the Tenant
The Tenant covenants with the Landlord as follows:
To pay Net Rent in accordance with the provisions of this Lease.
The Landlord and Tenant agree that the Net Rent, payable pursuant to
Section 3.1 hereof, includes the Tenant's share of Realty Taxes in
accordance with Schednle "G" attached hereto.
To pay, as Additional Rent, directly to the Landlord, the Tenant's
Proportionate share of Operating Costs in accordance with Schedule "D"
attached hereto.
Subject to Section 5.10(B), to make good or compensate the Landlord
for any damage to the Premises (save and except for any loss of profit or
consequential1oss that is indirect or not reasonably foreseeable) caused
-8-
for Damage by negligent, reckless or wilful misconduct of the Tenant's servants,
agents, employees, licensees, or any Person for whom the Tenant is at
law responsible.
Seetion 4.5 To give the Landlord notice, as soon as reasonably possible, of any
Notice of Defect accident to or defect in the Mechanical and Electrical Services, or any
other system or part of the Premises which the Landlord is obligated to
repair.
Seetion 4.6
Entry by
Landlord
Seetion 4.7
Assign or Sublet
Seetion 4.8
Use of Premises
Section 4.9
Not to Affect
Insurance
To permit the Landlord to enter the Premises at any reasonable time
after delivering Two (2) Business Days' prior written notice to the
Tenant's designated representative (except in the case of an emergency
when no notice is required), for the purpose of inspecting the Premises
and making permitted or required repairs to the Premises. If the Tenant
is not present to permit an entry by the Landlord to the Premises at the
time that entry is necessary by reason of an emergency, then the
Landlord, without any notice to the Tenant, may forcibly enter the
Premises to remedy such emergency at the Landlord's sole risk.
Not to assign this Lease or sublet the Premises without the prior written
consent of the Landlord, such consent not to be unreasonably withheld,
delayed or conditioned. Despite the foregoing, the Landlord
acknowledges and agrees the Tenant may, without the Landlord's
consent, sublet all or any portion(s) of the Premises or assign this Lease
to any of the following (each shall be referred to herein as a "Permitted
Transfer'' to a "Permitted Transferee") (i) governmental agency, (ii)
ministry, (iii) crown corporation, or (iv) department or Person affiliated
with the Tenant or its service providers. The Landlord further
acknowledges and agrees that the use or occupation of all or part of the
Premises by any Permitted Transferee( s) does not constitute an
assignment or sublet and does not require the Landlord's consent
therefor. The Tenant shall not be released from its obligations hereunder
in the event of a transfer to a Permitted Transferee, without the express
written permission from the Landlord. If the Landlord's consent is
required for an assignment or sublease, then the Landlord's consent shall
be deemed to have been given unless the Landlord notifies the Tenant in
writing of the reasons for the Landlord's disapproval within Fifteen (15)
days of receipt of the request. Notwithstanding anything to the contrary
contained in this Lease, the Landlord shall be liable for any loss,
damages, costs, and expenses incurred by the Tenant (including
solicitors' fees) in respect thereof as a result of the Landlord
unreasonably withholding or unduly delaying its consent to an
assignment, subletting or other transfer proposed by the Tenant
hereunder. With respect to any assignment or sublease requiring the
Landlord's consent, the Tenant will prepare and provide to the Landlord
an assignment of lease or sublease, as the case may be, on the Tenant's
standard form, duly executed by the assignee or subtenant, as the case
maybe.
To use the Premises for Contemplated Use and all other uses ancillary
thereto only, in accordance with all applicable Laws. The Landlord
hereby represents and warrants that the Building and the Lands are
properly zoned for the Contemplated Use.
Not to do or omit or permit to be done or omitted on the Premises
anything which shall cause the insurance premiums for the Building to
be increased and if the insurance premiums for the Building shall be
increased by reason of anything done or omitted or permitted to be done
or omitted by the Tenant or anyone permitted by the Tenant to be upon
the Premises, the Tenant shall, within Five (5) Business Days after
receipt of notice from the Landlord setting out in reasonable detail the
-9-
Section 4.10
Tenant's
Compliance with
Laws
Section 4.11
Waste
Section 4.12
Nuisance
Section 4.13
Tenant's
Indemnity
Section 4.14
Insurance
Section 4.15
Exhibiting
Premises
Section 4.16
Facilitate
Cleaning
Section 4.17
Construction
Lien
cause for such increased premiums, pay to the Landlord the amount of
such increase.
To comply with all applicable Laws which relate to the Tenant's use or
occupation of the Premises or to the making of any repairs,
replacements, additions, changes, substitutions or improvements that
relate to such use or occupation by the Tenant.
Not to knowingly do or allow any waste, damage, disfiguration or injury
to the Premises or the fixtures and equipment forming a part thereof or
permit any overloading of the floors thereof.
Not to knowingly use or permit the use of any part of the Premises for
any dangerous, noxious or offensive trade or business or cause or permit
any nuisance in, at or on the Premises. The Landlord acknowledges and
agrees that the Contemplated Use does not contravene this Section.
Subject to Section 5.10(B), the Tenant shall defend, protect, indenmify,
and hold the Landlord and the Landlord's agents, officers, directors,
employees, and contractors harmless against and from any and all
injuries, costs, expenses, liabilities, losses, damages, injunctions, suits,
actions, fines, penalties, and demands of any kind or nature (including
reasonable solicitors' fees) arising in connection with any and all third
party claims arising out of: (a) injuries occurring within the Premises;
(b) any intentional conduct or negligence of the Tenant or any Person for
whom it is in law responsible; or (c) any breach or default in the
performance of any obligation on the Tenant's part to be performed
under this Lease. This indenmity does not include the intentional or
negligent acts or omissions of the Landlord or any Person for whom it is
in law responsible. This indemnity shall survive termination of this
Lease only as to claims arising out of events that occur prior to
termination of this Lease.
The Landlord acknowledges that the Tenant in respect of damage to the
Building and the Premises is self-insured and in respect of third party
liability maintains a comprehensive blanket policy of insurance, and
therefore shall not require the Tenant to obtain any additional insurance
coverage.
To permit the Landlord to exhibit the Premises to prospective tenants
during Normal Business Hours during the last Six (6) months of the
Term upon receipt of Forty-Eight (48) hours' prior notice.
To leave the Premises in a reasonably tidy state at the end of each
Business Day to facilitate the Landlord's janitorial services.
Notwithstanding the foregoing, the Tenant is directly responsible for the
payment of the following costs: full janitorial services and supplies, all
Utilities, all light bulb replacements, including "Life Safety and
Building Security" requirements over and above what the Landlord has
in place as of the Commencement Date as set out in Section 5.3(g).
Not to suffer or permit during the Term hereof any construction liens or
other liens for work, labour, services or materials ordered by it or for the
cost of which it may be in any way obligated, to attach to the interest of
the Landlord in the Premises or the Lands, and that whenever and so
often as any such liens shall attach or claims therefore shall be filed, the
Tenant shall, as soon as reasonably possible after the Tenant has notice
of the claim or lien, procure the discharge thereof by payment or by
giving security or in such other manner as is or may be required or
permitted by law and the Tenant further covenants that whenever and so
often as a certificate of action is registered relating to any of the liens
referred to in the preceding sentence, the Tenant shall, as soon as
reasonably possible after the Tenant has notice of the registration of
-10-
Section 4.18
Premises Repair
Section 4.19
Landlord's Rnles
and Regulations
ARTICLES
LANDLORD'S
COVENANTS
Section 5.1
Quiet Enjoyment
such certificate of action, have the same vacated.
To maintain and keep, at its sole cost and expense, the interior of the
Premises and any part thereof, including all Leasehold Improvements, in
good order and condition and to promptly make all needed repairs and
replacements thereto, except for: (i) reasonable wear and tear; (ii) any
damage to the Premises caused by defects or weaknesses to the
Structure; (iii) any repair or improvement necessitated by the negligence
or wilful misconduct of the Landlord or any Person for whom the
Landlord is at law responsible; (iv) any repair or improvement for which
the Landlord is responsible hereunder or caused by the Landlord's failure
to perform its obligations hereunder; or (v) any structural or seismic
repairs, improvements or alterations to the Premises or the Building.
To comply with all applicable reasonable rules and regulations for the
Building as may be established by the Landlord from time to time and
acceptable to the Tenant, acting reasonably, provided that the Landlord
shall first furnish such rules and regulations, in writing, to the Tenant,
and provided further that such rules and regulations do not discriminate
against nor prohibit the Tenant or Occupant from operating its business
in the Premises.
The Landlord covenants with the Tenant as follows:
For quiet enjoyment.
Section 5.2 (A) To pay to the relevant taxing Authority, subject to the provisions
of this Lease, all Landlord's Taxes. If the Landlord fails to pay
all Landlord's Taxes, the Tenant may, at its option and without
prejudice to the other rights and remedies available to the Tenant
(including, without limitation, exercising its rights and remedies
pursuant to Section 6.11 hereof), pay all or part of the Landlord's
Taxes and deduct the costs thereof from the instalments of Net
Rent and Additional Rent next falling due.
Taxes and
Adjustments (of
Realty Taxes and
Operating Costs)
Section 5.3
Services and
Facilities
(B) The Landlord hereby acknowledges and agrees that the Tenant
expects the Landlord to pay the Landlord's Taxes on a timely
basis. In this regard, the Landlord acknowledges that on an
annual basis (on each anniversary of the Commencement Date),
the Landlord will provide the Tenant with a declaration from the
Landlord that the Landlord is in full compliance with all tax
Laws administered by the Ministry of Finance of Ontario, and
that, in particular, all Landlord's Taxes due and payable have
been paid or satisfactory arrangements for their payments have
been made and maintained.
Subject to the provisions of Schedule "D" attached hereto, to provide
and operate the following services and facilities serving the Premises as
expressed below, at the Landlord's expense, and maintain at the
Landlord's expense, such services and facilities in good repair (and, if
necessary, replace same) during the Term:
(a) Utility Systems
All utility systems and facilities including water, fuel and
electricity. The Tenant shall pay the charges for the Tenant's
consumption of such Utilities directly to the supplier of such
Utilities.
(b) Electrical Systems/Lenses, Bnlbs and Related Equipment
-11-
An electrical system which is satisfactory for the Tenant's
purposes including fixtures and outlets together with the initial
installation and ongoing replacement of bulbs, fluorescent tubes
and ballasts during the Term, and all maintenance and parts
thereof, as more particularly set out in Schedule "H" attached
hereto, provided that the Tenant shall be responsible for the cost
and replacement of light bulbs throughout the period of the
Tenant's occupancy of the Premises. The Tenant acknowledges
that the electrical system in place as of the Commencement Date
is acceptable to the Tenant and meets the minimum requirements
as set out in Schedule "H'' attached hereto.
(c) Thermal Conditions and Air Quality
Subject to the provisions of Schedule "D" attached hereto,
window mount air-conditioning units, in place as of the
Commencement Date, including a heating, ventilation and air-
conditioning (including humidification) system, serving only the
gymnasium area, which is satisfactory for the Tenant's purposes,
as more particularly set out in Schedule "!'' attached hereto.
(d) Water System
A water system capable of supplying hot and cold water to the
Premises and the washrooms serving the Premises.
(e) Washrooms
Fully equipped washroom facilities for male and female
employees of the Tenant in accordance with the requirements
established by the Occupational Health and Safetv Act, RS.O.
1990, c.0.1, as amended, and the regulations made thereunder, or
any successor act, a handicapped accessible male and female
washroom installed in accordance with the requirements of the
Building Code Act 1992, S.O. 1992, c. 23, as amended,
Ontarians With Disabilities Act. 2001, S.O. 2001, c.32, as
amended, and any other applicable Laws and requirements of
any relevant Authority, and the provision of all washroom
equipment and supplies reasonably necessary, in the opinion of
the Tenant, for the use and operation of such washroom facilities,
including, without limitation, a sink, vanity, toilet bowl, paper
towel dispenser, garbage pail, soap dish and toilet paper
dispenser.
(f) Exterior, Common Areas
Subject to the provisions of Schedule "D" attached hereto,
maintenance of the exterior of the Building, the landscaped
grounds of the Lands, the Parking Areas and walkways of the
Building and the Common Areas and Facilities of the Building in
good repair and first-class condition and the prompt removal of
debris, snow and ice.
(g) Life Safety and Building Security
Establishment of a workable emergency evacuation program and
a security management plan for the Building in accordance with
the Landlord's standard practice, which shall, as a minimum, be
similar to that which would be established by a reasonably
prudent owner of a similar building, having regard to the size,
age and geographical location of the Building. The Tenant shall
be permitted to install and/or implement, at its expense, such
additional security measures to the Premises as it deems
-12-
Section 5.4
Access
Section 5.5
Repair
necessary or advisable, acting reasonably, or may at its option,
permit the Landlord to install and/or implement, at the Tenant's
expense, such additional security measures to the Premises
pursuant to written notice thereof to the Landlord. In addition,
the Landlord shall, wherever possible and from time to time,
install and/or implement such additional security measures as the
Tenant, acting reasonably and in consultation with the Landlord,
deems necessary or advisable with respect to the Common Areas
and Facilities of the Building, the cost of which shall be included
in Operating Costs. Notwithstanding anything contained in this
Lease to the contrary, Tenant emergency evacuation shall be the
Tenant's sole responsibility except as required by the Landlord
according to applicable legislation.
(h) Glass Replacement
Prompt replacement in case of breakage, of all plate glass and
other glazing materials of the Building, including without
limitation, that which demises the Premises, with material of the
same kind and quality as that which may be damaged or broken,
save where such damage or breakage has been occasioned by the
Tenant, its servants or agents.
(i) Janitorial Services
[Intentionally deleted.]
(j) Elevator System
[Intentionally deleted.]
To permit the Tenant, its agents, invitees and those having business with
any or all of them, full and uninterrupted access to the Building Seven
(7) days per week Twenty-Four (24) hours per day during the Term,
including access for disabled persons. The Landlord covenants and
agrees to provide all services and facilities required to be provided by it
hereunder (including without limitation, light, water, fuel, electricity,
plumbing, heating, ventilation and air-conditioning) during Normal
Business Hours and to permit the Occupant to make its own
arrangements with the Landlord for the provision of such services and
facilities outside of Normal Business Hours, including invoicing and
payment of the charges therefrom.
(A) Subject to: (i) the obligations of the Tenant outlined in Section
4.18 of this Lease; (ii) the provisions of Schedule "D" attached
hereto; and (iii) the provisions of Section 6.7 of this Lease, to
maintain the Building, the Common Areas and Facilities, and the
Structure in good repair and tenantable condition during the
Term and make good any defect or want of repair and/or
replacement promptly upon discovering the need for such repair
and/or replacement or upon notice thereof with a minimum of
disruption to the Tenant's business. The Landlord also covenants
to repair, at its sole cost and expense, any damage to the
Premises, the Leasehold Improvements, or any part thereof,
caused by any defects or weaknesses to the Structure.
(B) Make all repairs under clause (A) promptly after Landlord learns
of the need for such repairs but in any event within Twenty (20)
days after Tenant notifies Landlord of the need for such repairs.
If Landlord fails to make such repairs within Twenty (20) days
after Tenant's notice (except when the repairs require more than
Twenty (20) days for performance and Landlord commences the
repair within Twenty (20) days and diligently pursues the repair
-13-
Section 5.6
Telephone
Installation and
Communications
Systems
Section 5.7
Tenant
Improvements
Section 5.8
Landlord
Improvements
to completion), Tenant may, at its option, undertake such repairs
and deduct the cost thereof from the instalments of Rent next
falling due.
(C) The Landlord further covenants and agrees that any entry into the
Premises to make repairs, conduct inspections or tests or perform
any work required or permitted hereunder by the Landlord in the
Building, shall be done expeditiously and in such manner so as
not to unreasonably interfere with the conduct of normal
business operations by the Tenant. When entering or performing
any repair or other work in the Premises, Landlord, its agents,
employees and/or contractors (a) shall identifY themselves to
Tenant's personnel immediately upon entering the Premises, and
(b) shall not in any way materially or unreasonably affect,
interrupt or interfere with Tenant's use, business or operations on
the Premises or obstruct the access to the Premises. In the event
of any such material or unreasonable interference or obstruction
for more than Twenty-Four (24) hours, the Net Rent and
Additional Rent shall be equitably abated in proportion to the
effect and duration of such interference or obstruction on the
Tenant's operations, as determined by the Tenant acting
reasonably. If such material or unreasonable interference or
obstruction shall continue for longer than Six (6) months, the
Tenant shall have the option to terminate this Lease or continue
to operate with the foregoing Rent abatement after such
interruption has ceased for a time equal to the time period of
such interruption. The foregoing abatement and termination
rights are in addition to all other rights and remedies available to
the Tenant at law or elsewhere in this Lease.
To permit the Tenant to effect the installation of telephone and inter-
communication apparatus in the Premises. The Building is to have the
facilities as set out in Schedule "N" attached hereto.
The tenant may tender for and complete, at the Tenant's sole cost and
expense, such interior non-structural Leasehold Improvements to the
Premises as it may consider necessary from time to time during the
Term or any extension thereof, in accordance with Schedule "L"
attached hereto without obtaining the Landlord's consent. Despite the
foregoing, no Leasehold Improvements shall be made to the exterior of
the Building or the Structure uuless the Tenant has obtained written
approval from the Landlord therefore, such approval not to be
unreasonably withheld or unduly delayed.
Notwithstanding anything in this Lease (including Schedule "L") to the
contrary, the Landlord hereby acknowledges and agrees that where
applicable Laws require the Tenant to construct, alter and/or remove
certain Leasehold Improvements in or about the Premises or to the
Structure, the Landlord's consent and approval to such construction,
alteration and/or removal shall be deemed to have been given.
(A) That, unless the Landlord fully complies with the terms and
conditions set out below, at no time during the Term shall it
commence any further construction or alterations to the Building
which will have the effect of:
(a) altering any part of the Structure which would materially
detrimentally affect the Tenant's access, use and
enjoyment of the Premises;
-14-
Section 5.9
Energy
Conservation
(b) interfering with the business operations of the Tenant;
(c) interfering with ingress to or egress from the Premises;
(d) causing noise or other nuisances which might interfere
with the Tenant's business operations; or
(e) changing the location, shape or dimensions of the
Premises;
unless the Tenant otherwise consents, the Tenant's
consent therefor with respect only to subsections (b), (c)
and (d) hereof not to be unreasonably withheld.
In the event that the Landlord intends to commence any
construction relating to items (a)-(d) inclusive outlined in this
Section 5.8, in or around the Building at any time during the
Term, such construction shall be subject to the following terms
and conditions:
(i) the Landlord shall deliver written notice to the
Tenant, including complete and detailed plans and
specifications of the planned construction, at least
Six (6) months prior to the commencement of
construction. In the event that the planned
construction is intended to occur within the first Six
(6) months of the Term, the Landlord shall deliver
such notice, including the complete and detailed
plans and specifications, to the Tenant as soon as
possible;
(ii) the Landlord must receive the prior written approval
of the Tenant and of any required Authorities;
(iii) all construction must be completed promptly and in
a good and workmanlike manner, and must not
interfere with the use of the Premises or any part
thereof by the Tenant and wherever possible, must
be completed outside of Normal Business Hours,
unless the Tenant agrees otherwise;
(iv) all Utilities and other base building systems must
continue to be fully operative during any period of
construction and the Landlord shall be responsible
for any daroages or costs incurred by the Tenant to
the extent caused or contributed to by any
interruption of such Utilities or systems; and
(v) in the event of any interference, the Rent payable
hereunder shall be equitably abated (as determined
by the Tenant acting reasonably) based on the
degree of interference with the Tenant's business
operations or with the Tenant's ingress to or egress
from the Premises.
The Landlord acknowledges the Tenant's mandate to conserve energy
and water and agrees, whenever possible, to cooperate fully with the
Tenant in achieving its conservation targets. The Landlord covenants
and agrees to provide the Tenant, annually, with written evidence
demonstrating the implementation of energy efficient systems/plans in
place in the Building. The Landlord further covenants and agrees to
adhere as closely as possible to the energy conservation procedures set
out in Schedule "K" attached hereto.
-15-
Section 5.10
Indemnity&
Release
Section 5.11
Compliance with
Laws
Section 5.12
Insurance
(A) The Landlord shall defend, protect, indemnify, and hold the
Tenant and the Tenant's agents, officers, directors, employees,
and contractors hannless against and from any and all injuries,
costs, expenses, liabilities, losses, damages, injunctions, suits,
actions, fines, penalties, and demands of any kind or nature
(including reasonable solicitors' fees) by or on behalf of any
person, entity, or governmental authority occasioned by or
arising out of (a) injuries occurring in the Common Areas and
Facilities or any other portion of the Building outside the
Premises; (b) any intentional conduct or negligence of the
Landlord or any Person for whom the Landlord is in law
responsible; (c) any breach or default in the performance of any
obligation on the Landlord's part to be performed under this
Lease; or (d) the failure of any representation or warranty made
by the Landlord herein to be true when made. This indemnity
does not include the intentional or negligent acts or omissions of
Tenant or any Person for whom it is in law responsible. This
indemnity shall survive termination of this Lease only as to
claims arising out of events that occur prior to termination of this
Lease.
(B) Notwithstanding anything in this Lease to the contrary, the
Tenant shall not be liable to the Landlord or to any insurance
company (by way of subrogation or otherwise) insuring the
Landlord, for: (i) any loss of profit or consequential loss that is
indirect or not reasonably foreseeable; or (ii) any loss or damage
to the Building, Structure or other tangible property, or any
resulting loss of income and benefits, even though such loss or
damage might have been occasioned by the negligence of the
Tenant or any Person for whom the Tenant is at law responsible,
if any such loss or damage is covered by insurance maintained or
required to be obtained by the Landlord pursuant to this Lease.
Landlord shall require its insurance company to include a waiver
of subrogation provision in its policies in order to implement this
Section 5.10(B).
To comply with all Laws which relate to the Building or to the use or
occupation thereof or to the making of any repairs, replacements,
additions, changes, substitutions or improvements of or to the Building
or any part thereof. The Landlord agrees not to bring or commence any
application with the respective Authority that would materially,
adversely change the respective use of the Premises and Lands, or the
zoning of the Lands, without the Tenant's prior written consent.
At all times throughout the Term, the Landlord shall obtain and maintain
in full force and effect with respect to the Building and the Lands,
against such occurrences and in such amounts, on such terms and with
such reasonable deductible(s) as would a reasonably prudent owner of a
similar project, insurance, including, without limitation:
(a) broad form boiler and machinery insurance on a blanket repair
and replacement basis with limits for each accident in an amount
of at least the replacement cost of all Leasehold Improvements,
contents and of all boilers, pressure vessels, air-conditioning
equipment and miscellaneous apparatus owned or operated by
the Landlord or by Persons on behalf of the Landlord in the
Building and on the Lands;
(b) "all risks" insurance (including flood and earthquake) on the
Building (including the foundations and excavations and other
parts of the Structure) and the equipment contained in or
servicing the Building and on the Lands, in an amount at least
equal to the full replacement cost thereof, insuring all property of
-16-
Section 5.13
No
Environmental
Contaminants
the Landlord, property for which the Landlord is legally liable or
property installed by or on behalf of the Landlord and the
Leasehold Improvements;
(c) comprehensive general liability insurance including personal
injury, broad form contractual liability, owners' and contractors'
protective, employers' liability and voluntary compensation,
medical payments, products liability, completed operations, non-
owned automobile liability, all coverages with respect to the
Building, the Lands and the use of the Common Areas and
Facilities. Such policies shall be written on a comprehensive
basis with inclusive limits of not less than Ten Million Dollars
($10,000,000.00) per occurrence or such higher limits as the
Tenant may reasonably require from time to time; and
(d) such other forms of insurance and in such amounts and on such
terms as would be carried by a reasonably prudent owner of a
similar project.
The insurance policies described in subparagraphs (a) and (b) above
shall contain a waiver of any subrogation rights which the Landlord's
insurer may have against the Tenant and any Person for whom the
Tenant is at law responsible, whether the damage is caused or
contributed to by their act, omission or negligence. The Landlord's
insurance policy described in subparagraph (c) above shall name the
Tenant as an additional insured only in respect of the Lands and
Building or as its interest may appear, and shall contain cross-liability
and severability of interest clauses. None of the policies shall be
invalidated as respects the interest of the Tenant, or any Person for
whom the Tenant is at law responsible, by reason of any breach or
violation of any warranties, representations, declarations or conditions
contained in the policies. All of the policies shall contain an
undertaking by the insurers to notify the Tenant in writing not less than
Thirty (30) days prior to any material change, cancellation or
termination. If requested by the Tenant, the Landlord agrees to deliver
certificates of insurance of the underwriting insurance company or
complete certified copies of policies to the Tenant within Thirty (30)
days after the placing of the required insurance. No review or approval
of such insurance documentation by the Tenant shall derogate from or
diminish the Tenant's rights or the Landlord's obligations as contained in
this Lease.
(A) To use its continuing effort throughout the Term to ensure that
no part of the Building or Lands contains any Environmental
Contaminants or is used, without limitation, (either by the
Landlord or all other tenants in the Building), to generate,
manufacture, refine, treat, transport, store, handle, dispose of,
transfer or produce any Envirorunental Contaminants, except in
strict compliance with all Environmental Laws. For the purpose
of this Article 5, an Envirorunental Contaminant is deemed not to
comply with Envirorunental Laws if, in the reasonable opinion of
the Tenant's environmental consultant or engineer, such
Environmental Contaminant poses a health risk to the Tenant, the
Tenant's employees, or any Person in or about the Building, the
Lands or the Premises.
(B) Whenever requested by the Tenant, to permit the Tenant, at its
cost, to test the water quality and air quality in the Premises and
the Building to ensure that they meet the standards for water
quality and air quality prescribed by applicable Laws and
provide the Tenant with copies of such testing or inspections.
The cost of such testing shall be at the Tenant's cost and
expense, unless the testing reveals that the Building or Lands
-17-
Section 5.14
Environmental
Contaminants
contain any Environmental Contaminants which are the
Landlord's responsibility under this Lease and such
Environmental Contaminants do not strictly comply with all
Environmental Laws, in which case such testing shall be at the
Landlord's sole cost and expense.
(C) Whenever requested by the Tenant, to permit the Tenant, at its
cost to have the Building inspected by an independent accredited
environmental consulting firm approved by both parties acting
reasonably, for evidence of Environmental Contaminants
(including, without limitation, mould) or water damage in the
Building. The Landlord shall provide the Tenant with a copy of
the results of such inspections, together with any reports
prepared in conjunction with such inspections. The conditions
causing mould (such as water leaks, condensation, infiltration, or
flooding) should be corrected promptly to prevent mould from
growing in the Building or any part thereof. If any mould or
other Environmental Contaminant is detected or discovered
during such inspections, the Landlord shall promptly comply
with its obligations under Section 5.14 hereof. The cost of such
inspections shall be the Tenant's cost and expense, unless they
reveal that the Building or Lands contain any Environmental
Contaminants which are the Landlord's responsibility under this
Lease and which do not strictly comply with all Environmental
Laws, in which case such testing shall be at the Landlord's sole
cost and expense.
To remove, clean up or manage as necessary and advisable, in the
reasonable opinion of the Tenant's environmental consultant or
engineer, at the Landlord's sole cost and expense, any Environmental
Contaminant located on, under or in the Building or the Lands, whether
or not known to the Landlord as of the date of execution of this Lease,
and whether or not resulting from any act, omission, or negligence of the
Landlord or any Person for whom it is in law responsible (save and
except for those Environmental Contaminants used, manufactured,
stored, released or disposed of by the Tenant or those for whom it in law
responsible, which shall remain the Tenant's responsibility and such
Environmental Contaminants shall be remediated by the Tenant at its
sole cost and expense), in a manner that complies with all
Environmental Laws or other applicable Laws, to remediate any damage
and eliminate any potential risk to persons, property or the environment
as a result of the presence of such Environmental Contaminant. The
Landlord shall use its best efforts to minimize direct and indirect impact
on the Tenant during all activities related to such remediation. If any
such Environmental Contaminant is not removed or managed forthwith
by the Landlord (and in any event, within Twenty (20) days after
Landlord's discovery or notification of such Environmental
Contaminant), the Tenant shall be entitled, but not required, to remove
or manage the same on the Landlord's behalf, and the Landlord shall
reimburse the Tenant for the cost thereof. If the Landlord fails to
reimburse the Tenant for such cost within Ten (10) days, the Tenant
shall, without limiting its other rights and remedies, deduct the costs of
such remediation from the Rent payable under this Lease.
In the event that there shall now or in the future exist any Environmental
Contaminant in, on or under the Premises, the Building or the Lands (not
caused by the Tenant) that materially and adversely affects the Tenant's
use of or operations from the Premises or access to the Premises, the
Tenant's construction of its Leasehold Improvements or the Tenant's use
of the Common Areas and Facilities (collectively "Interference"), then,
(i) in such event, Net Rent and all other charges payable under this
Lease shall be equitably abated in proportion to the effect and duration
of the Interference on the Tenant's operations, as determined by the
-18-
Section 5.15
Notification of
Environmental
Contaminants
Section 5.16
Warranty
Tenant acting reasonably; (ii) if the Tenant, in its sole discretion, decides
to cease operating in the Premises, then all Net Rent and all other
charges payable under this Lease shall abate until the date on which the
Tenant is reasonably able to operate from the Premises without any
Interference; (iii) if such Interference occurs prior to the
Commencement Date, then the Commencement Date shall be extended
by One (!) day for each day of Interference; (iv) if such Interference
continues for more than Ninety (90) consecutive days, the Tenant may
terminate this Lease, in which event the Landlord shall pay to the Tenant
within Twenty (20) days of the date of the Tenant's vacating the
Premises an amount equal to the unamortized portion (based on straight-
line amortization over the Initial Term) of the Tenant's construction
costs incurred in connection with the Premises. The Tenant's termination
of this Lease by reason of the Landlord failing or being unable or
unwilling to clean up the Environmental Contaminant as aforesaid
within such Ninety (90) day remediation period, shall be without
prejudice to the Tenant's right to claim for damages against the Landlord
arising out of such inability, failure or refusal as aforesaid. The
foregoing right shall survive the termination of this Lease.
(A) To notizy the Tenant immediately in the event that the Landlord
receives notice of any violation of any Environmental Law or
that any order of an administrative tribunal or any Authority is
made or is proposed to be made against the Landlord in respect
of any Environmental Contaminant in, on or near the Lands or
Building, and to notizy the Tenant immediately of any discharge,
release or discovery of any Environmental Contaminant which
does not comply with Environmental Laws, in or under any part
of the Building or Lands.
(B) The Landlord represents and warrants that all information in the
Landlord's possession or control relating to the existence, use,
storage or release of a Environmental Contaminant in, under, on
or about the Premises, the Building or the Lands including,
without limitation, all sampling data, environmental studies or
reports, environmental site assessments and historical use
reviews, have been provided to the Tenant.
(C) Under the provisions of the "Class Environmental Assessment
for Ontario Realty Corporation Activity" as approved December
9, 1992, O.C. 3540/92, the Tenant is obliged to consider the
potential for Environmental Contaminants in respect of the
Premises. In doing so, the Tenant may require evidence that the
Lands and Building do not contain Environmental Contaminants
prior to taking possession of the Premises. In such event, the
Landlord shall: (i) conduct, at the Tenant's sole cost and expense
and on behalf of the Tenant, such tests as would a reasonable and
prudent buyer of the Lands and Building having regard to the
environmental history of the Lands and Building and the
Contemplated Use (the "Tests"); and (ii) provide the Tenant with
a copy of the results of the Tests, together with any test reports
prepared in conjunction with the Tests. The Tests shall be
conducted by an independent accredited environmental
consulting firm approved by both parties acting reasonably. If
the Tests reveal the existence of any Environmental Contaminant
in, under, on or about the Premises, the Building or the Lands,
Landlord shall promptly comply with its obligations under
Section 5.14.
(A) The Landlord: (i) represents and warrants that there has not been
and is not now; and (ii) covenants to ensure that there will not be,
at any time during the Term, any Environmental Contaminant
-19-
Section 5.17
Asbestos
ex1stmg, located, stored, manufactured, refined, disposed of,
produced, processed or incorporated in or on any part of the
Building or the Lands, except in accordance with Section 5.13 of
this Lease. The Landlord acknowledges and agrees that the
Tenant is relying on the representations, warranties and
covenants in Sections 5.13, 5.14, 5.15, 5.16, 5.17 and 5.18 hereof
in entering into this Lease.
(B) The Landlord represents, warrants and covenants that as of the
Commencement Date and throughout the Term, all Mechanical
and Electrical Services and equipment serving the Premises are
and will be in good working order and condition and satisfactory
for the carrying on of the Tenant's business in and from the
Premises.
(C) The Landlord represents and warrants that the Building,
including the Premises, the Structure and the Common Areas and
Facilities: (i) meet and comply with all federal, provincial and
local Laws including, without limitation, all handicapped
accessibility standards and other provincial disability guidelines
including, without limitation O.Reg. 350/06 of the Building Code
Act. 1992, S.O. 1992, c. 23, as amended; and (ii) are in good,
sanitary order, condition and repair at delivery of the Premises to
Tenant.
(D) The Landlord represents and warrants that as of the
Commencement Date: (i) there shall not be any by-laws (the
"By-Laws"), including, without limitation, any restrictive
covenants, development agreements, zoning or other ordinances
or regulations of any Authority which will prevent or materially
limit the Tenant from conducting its business operations in and
from the Premises in accordance with this Lease; (ii) the
Landlord shall have complied with all such By-Laws in
connection with the construction of the Building and every part
of the Premises; and (iii) all such By-Laws shall have permitted
the erection and shall permit the continual operation of the
Building and every part of the Premises, in accordance with this
Lease.
(E) The Landlord further represents and warrants that it owns the
Building and the Lands or otherwise has an interest therein
enabling it to enter into this Lease with the Tenant and no
additional signatories or consents are required to make this Lease
binding and fully enforceable. The Landlord will provide the
Tenant with written verification of its ownership of or other
interest in the Premises prior to the Commencement Date.
The Landlord shall indemnifY and hold the Tenant harmless if the
representations and warranties in this Section 5.16 or elsewhere in this
Lease prove to be untrue, without limiting the Tenant's rights and
remedies under Section 6.11 or at law.
Notwithstanding anything to the contrary contained in this Lease, at all
material times, including, but not limited to, any times during which
either the Landlord or the Tenant are making any Leasehold
Improvements or other improvements, additions or renovations in or
about the Premises or the Building, or at any times when any
maintenance or repairs of any kind are being carried out in or about the
Premises or the Building, the Landlord agrees to take all measures, at the
Landlord's sole cost and expense, to promptly remove all asbestos or
asbestos containing material in or about the Premises or the Building, in
accordance with Environmental Laws. Failing such removal by the
Landlord, the Tenant may, at the Tenant's sole option, on Twenty (20)
-20-
Section 5.18
Environmental
Indemnity
Section 5.19
Additional
Services
days' prior written notice to the Landlord, take all reasonable measures,
at the Landlord's sole cost and expense, to comply with all such
Environmental Laws, to deduct the costs and expenses incurred thereby
from the Rent and to recover the balance, if any, after such deduction,
from the Landlord. The Landlord shall in no case withhold its consent
to the making of any Leasehold Improvements to the Premises by the
Tenant because of the cost to it of compliance with this Section
pertaining to asbestos related to, or resulting from, such Leasehold
Improvements.
The Landlord hereby represents and warrants that the Building has no
friable material, as indicated in Schedule "C" attached hereto. If any
asbestos or other friable material is discovered in the Premises during
Tenant's inspection of the Premises or construction by the Landlord or
the Tenant of any Leasehold Improvements, then Landlord shall
promptly remove the asbestos or other friable material, or cause it to be
removed at Landlord's sole cost and expense within Twenty (20) days
after such discovery and if the foregoing delays the construction or
installation of the Tenant's Leasehold Improvements, then the
Commencement Date shall be extended for One (1) day for each day of
delay. If the Landlord is unable or fails to comply with the foregoing
obligation to remove asbestos or other friable material within Twenty
(20) days, without limiting the other rights and remedies available to the
Tenant, the Tenant may, without further notice, exercise its remedies set
out in Section 5.14.
The Landlord shall protect, indemnify and hold harmless the Tenant and
its directors, officers, contractors, employees, agents, parents, service
providers, subsidiaries, successors and assigns from and against any and
all loss, damage, cost, expense, or liability arising out of or attributable
to: (a) the existence, use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal or the presence of a
Environmental Contaminant on, under or about the Premises, the
Building or the Lands (or off-site on property owned or operated by the
Landlord that affects the Premises), except if such loss, damage, cost,
expense or liability is directly related to the use, manufacture, storage,
release or disposal of an Enviromnental Contaminant on or about the
Premises, the Building or the Lands by the Tenant, its agents,
contractors, employees or those for whom the Tenant is in law
responsible; or (b) a breach of any representation, warranty, covenant or
agreement contained in this Article 5. The foregoing indenmity includes,
without limitation, the costs of any required or necessary repairs,
cleanup or detoxification of the Premises and the preparation and
implementation of any closure, remedial or other required plans. This
indemnity shall survive the termination of this Lease. In the event of any
governmental or court order concerning Enviromnental Contaminants on
or about the Premises, the Building or the Lands (not caused by the
Tenant) that precludes the Tenant from reasonable operation of its
business on the Premises, or materially interferes with the Tenant's
enjoyment of the Premises or the operation of its business on the
Premises, and such governmental or court order is not resolved within
Three (3) months, the Tenant may, without limiting the other rights and
remedies available to the Tenant, terminate this Lease.
(a) If the Tenant reasonably requests any Additional Services to be
performed in or relating to the Premises, it shall so advise the
Landlord in writing. The cost of the Additional Services shall be
agreed upon between the Landlord and Tenant prior to the
Landlord commencing the provision of the Additional Services
and shall be competitive with other suppliers providing similar
services to similar buildings. Once the costs have been agreed to,
the Landlord shall, as soon as reasonably possible, perform or
provide any such Additional Services. However, the Landlord
-21-
Section 5.20
Consent and
Approval
Section 5.21
Waste
Management
and Recycling
Program
Section 5.22
Parking
Section 5.23
Landlord's
Records and
Tenant's Audit
Rights
Section 5.24
Landlord
shall not be required to provide such Additional Services, if to do
so would:
(i) seriously interfere with the reasonable enjoyment of the
other tenants of their respective premises or the Common
Areas and Facilities;
(ii) jeopardize or impede the Landlord's financing of the
Building and/or Lands; or
(iii) cause the Building or its services and Common Areas and
Facilities not to be of the Building standard.
(b) If the Tenant disputes or contests the calculation of any cost or
expense incurred by the Landlord or on the Landlord's behalf in
performing or providing such Additional Services as set out in
the Landlord's invoice therefor, it shall notifY the Landlord and
the Landlord shall, upon receipt of such notice, have its senior
financial officer prepare a statement of calculation with respect
to such Additional Services which shall be delivered to the
Tenant within ten (10) days ofthe Tenant's request therefor. Any
further dispute shall be submitted to arbitration in accordance
with Section 6.13 ofthis Lease.
That the Landlord and each Person acting for or on behalf of the
Landlord making a determination, designation, calculation, estimate,
conversion or allocation or in giving an approval or consent under this
Lease, will act reasonably, promptly and in good faith and each
accountant, architect, engineer or surveyor, or other professional Person
employed or retained by the Landlord will act in accordance with the
applicable principles and standards ofthat Person's profession.
To cooperate with the Tenant's waste management and recycling
program, pursuant to the provisions set out in Schedule "J" attached
hereto. This Section shall not apply in the event that there is not a
recycling program within the municipality where the Building is located.
To provide and maintain approximately Forty (40) parking spaces (the
"Parking Spaces") designated for the exclusive use of the Tenant, the
Occupant, its servants or agents, and person utilizing the services of the
Occupant, located in the Parking Areas, the cost of which is included in
the Net Rent.
The Landlord shall maintain all records and documents relating to the
Landlord's Work, the Landlord's Taxes, Realty Taxes, Operating Costs
and all other costs, charges and expenses payable hereunder by either the
Landlord or the Tenant, together with all billing statements, tender calls,
quotations, contracts, correspondence, invoices, receipts and vouchers
relating thereto, for a period of Six (6) years. The Landlord shall permit
and assist the Tenant in conducting audits of such records and
documents, including, without limitation, those pertaining to Operating
Costs and Realty Taxes. It is understood and agreed that the Tenant
shall provide the Landlord with Five (5) Business Days prior notice of
its requirement for such audit. The Landlord will allow the Tenant to
make copies and take extracts therefrom and at no cost to the Tenant
will furnish to the Tenant any information which may reasonably be
required from time to time in connection with such records. This right
shall survive the expiration or earlier termination of this Lease for Three
(3) years.
The Landlord will not allow or cause a Landlord Transfer, without
giving prior written notice to the Tenant. In addition, if the Tenant leases
-22-
Transfer
Section 5.25
Landlord to
Communicate
Directly with
Tenant
Section 5.26
Conflict of
Interest
ARTICLE6
PROVISOS
Section 6.1
Overholding
Section 6.2
Trade Fixtnres
and/or occupies Seventy-Five Percent (75%) or more of the Rentable
Area of the Building, the Landlord will not allow or cause a Landlord
Tmnsfer without obtaining the prior written consent of the Tenant,
which consent may not be unreasonably withheld or unduly delayed. If
the Tenant's consent is required hereunder, within Fifteen (15) days
after having received the Landlord's notice and all the information it
reasonably requires, the Tenant will notify the Landlord in writing either
that the Tenant consents or does not consent to the Landlord Tmnsfer.
The Landlord acknowledges that the factors governing the gmnting of
the Tenant's consent to any Landlord Tmnsfer may include, without
limitation, the financial background, business history and the capability
of the proposed Landlord Tmnsferee to perform the obligations of the
Landlord under this Lease, and the nature of the business pmctices of the
proposed Landlord Tmnsferee. 1n the event of a Landlord Transfer and
to the extent that the Landlord Transferee assumes the covenants and
obligations of the Landlord hereunder in writing directly with the
Tenant, the Landlord shall, thereupon and without further agreement, be
freed and relieved of all liability with respect to such covenants and
obligations.
The Landlord shall direct and require all of its directors, officers,
employees, agents and duly authorized representatives to communicate
only with Ontario Realty Corpomtion in respect of any matters relating
to this Lease and shall not, under any circumstances save and except
regarding parking armngements or emergencies requiring immediate
access into the Premises, allow or permit its directors, officers,
employees, agents and duly authorized representatives to communicate
with any Occupant of the Premises in any manner whatsover at any time
during the Term.
The Landlord and any of its successors, administmtors, permitted
assigns, directors, officers, employees, agents, servants, and
representatives shall not engage in any activity where such activity
creates a conflict of interest, actual or potential, in the sole opinion of
the Tenant, with the Lease or the exercise of any of the rights or
obligations of the Landlord hereunder. The Landlord shall disclose to
the Tenant in writing and without delay any actual or potential situation
that may be reasonably interpreted as either a conflict of interest or a
potential conflict of interest. For clarification, a "conflict of interest"
means, in relation to the performance of its contmctual obligations
pursuant to this Lease, the Landlord's other commitments, relationships
or financial interests that (i) could or could be seen to exercise an
improper influence over the objective, unbiased and impartial exercise
of its independent judgement; or (ii) could or could be seen to
compromise, impair or be incompatible with the effective performance
of its contmctual obligations pursuant to this Lease
If the Tenant remains in possession of the Premises after the date fixed
for the expiration of the Term (the "Expimtion Date") without any
further written agreement, the Tenant shall be deemed to be a tenant for
a fixed term of Six (6) months from the Expimtion Date upon the terms
and conditions contained in this Lease, except as to the length of the
Term and the monthly Net Rent payable during such Six (6) month
period which shall be One Hundred and Twenty-Five Percent (125%) of
the monthly rental mte payable by the Tenant during the last month of
the Term of this Lease, or any extensions thereof, as the case may be.
(a) The Tenant may at any time during the Term, on termination, or
any extension thereof, remove or replace any Tmde Fixtures
installed by or on its behalf in the Premises or install new Trade
-23-
Furniture
Section 6.3
Signs
Section 6.4
Unavoidable
Delays
Section 6.5
Rigbt-of-Way
Section 6.6
Common
Parking
(b)
(c)
(a)
Fixtures therein.
The Tenant will promptly repair any damage caused to the
Premises by the removal of Trade Fixtures.
The Tenant shall have the continuous right during the Term to
move in or out of the Premises any of its fuminu-e, personal
effects, chattels and any business equipment.
The Tenant may erect such signs on the Premises and Lands in
accordance with the Building standard and in accordance with
municipal laws, in its reasonable opinion, considers necessary for
the proper conduct of its business.
(b) All such signs may be removed from the Premises at the end of
the Term.
(c) The Tenant shall promptly repair any damage caused to the
Premises or the Building, if applicable, by the removal of signs,
save and except that caused by local weather and ambient
conditions.
(d) The Landlord shall provide adequate space on the directory of
the Building and that of each floor of the Premises and on any
pylon sign of the Building for the Tenant's signage requirements,
which signage may be required to be in both the English and
French languages. The Tenant shall provide the Landlord with
the specifications of its signage requirements before the
Commencement Date, and from time to time, as required by the
Tenant.
Notwithstanding anything in this Lease, if either party is bona fide
delayed or hindered in or prevented from the performance of any term,
covenant, or act required hereunder by reason of strikes or labour
trouble; inability to procure materials or setvices, power failure,
restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, act of God, or other reason whether of a like
nature or not which is not the fault of the party delayed in performing
work or doing acts required under the terms of this Lease (but excluding
the inability to perform because of financial difficulties or lack of
funds), then the performance of that term, covenant or act is excused for
the period of the delay and the PartY delayed will be entitled to perform
the term, covenant or act within the appropriate time period after the
expiration of the period of the delay. If any of the events or problems
referred to in this Section 6.4 occur and either party contemplates that it
will be bona fide delayed or hindered in or prevented from the
performance of any term, covenant or act required hereunder by reason
thereof, such party shall forthwith deliver written notice to the other,
with full and detailed particulars setting out the nature of such event or
problem and the period of the delay contemplated by the party giving
notice for the performance of any such term, covenant or act required
hereunder.
If the Premises are now or hereafter served by any alley, easement or
right-of-way, the Tenant, its servants, agents, employees, licensees and
invitees shall have full right of ingress and egress over such alley,
easement or right-of-way in common with all others entitled thereto
Intentionally deleted.
-24-
Section 6.7
Damage and
Destrnction
If, at any time during the Term, the Building shall be damaged or
destroyed, either in whole or in part, by fire or other peril insured against
or required to be insured against by the Landlord under Section 5.12
hereof, then, and in every such event:
(a) If the damage or destruction to the Building is such that, in the
opinion of the Architect to be given to the Landlord within
Twenty (20) days of the date of the occurrence of such damage
or destruction (the "Date of Damage"), the Premises are rendered
partially unfit for occupancy or impossible or unsafe for use or
occupancy, then the Rent shall abate as of the Date of Damage in
proportion to the part of the Premises which is rendered unfit for
occupancy or impossible or unsafe for use or occupancy, and
Rent will not be payable again until such time as the Premises
and the Leasehold Improvements have been fully restored by the
Landlord to their condition as of the Commencement Date.
(b) If the damage or destruction to the Building is such that, in the
opinion of the Architect to be given to the Landlord within
Twenty (20) days of the Date of Damage, the Premises are
rendered wholly unfit for occupancy or impossible or unsafe for
use or occupancy, or that reasonable or convenient access is
prevented thereto, and if, in either event, the damage, in the
opinion of the Architect to be given to the Landlord within
Twenty (20) days of the Date of Damage, carmot be repaired
with reasonable diligence within One Hundred and Eighty (180)
days of the Date of Damage, then either the Landlord or the
Tenant may terminate this tenancy within Twenty (20) days
following the date of the giving of the Architect's opinion, upon
written notice to the other party, in which event this Lease and
the Term hereby demised will cease and be at an end as of the
Date of Damage and the Rent shall be apportioned and paid in
full to the Date of Damage.
(c) In the event that neither the Landlord nor the Tenant shall
terminate this Lease in accordance with the provisions of
Subsection 6.7(b) of this Lease, theii the Landlord shall repair the
Premises, the Leasehold Improvements and the Building with all
reasonable speed and the Rent hereby reserved shall abate from
the Date of Damage until the date that is the later to occur of the
following: (i) the Premises and Leasehold Improvements are
restored to their condition as of the Commencement Date; and
(ii) reasonable and convenient access is restored thereto.
(d) If the damage or destruction is such that, in the opinion of the
Architect to be given to the Landlord within Twenty (20) days of
the Date of Damage, the Premises are rendered wholly unfit for
occupancy or if it is impossible or unsafe to use and occupy the
Premises, and if, in either event, the damage, in the opinion of
the Architect to be given within Twenty (20) days from the Date
of Damage, can be repaired with reasonable diligence within One
Hundred and Eighty (180) days of the Date of Damage, then the
Rent shall abate from the Date of Damage until the date the
Premises and Leasehold Improvements are restored to their
condition as of the Commencement Date, provided that the
Landlord shall repair the Premises and the Leasehold
Improvements with all reasonable speed.
(e) The decision of the Architect as to the time within which the
damage or destruction to the Premises, the Leasehold
Improvements or the Building can or carmot be repaired, the
extent of the damage, or the state of tenantability of the
Premises, as the case may be, shall be final and binding upon the
-25-
Seetion 6.8
Leasehold
Improvements
by Landlord at
request of
Tenant
Section 6.9
Removal of
Leasehold
Improvements
Section 6.10
Re-Entry
Section 6.11
Landlord's
Default
parties, unless shown to be in substantial error.
(t) Notwithstanding anything contained in this Section 6.7, if the
Landlord does not commence to repair or restore the Premises,
the Leasehold Improvements or the Building within Fifteen (15)
days of the date of delivery of the Architect's opinion, or, having
commenced the repair or restoration of the Premises, the
Leasehold Improvements or the Building does not continue to
complete same with reasonable dispatch (and in any event,
within One Hundred and Eighty (180) days of the Date of
Damage), the Tenant may terminate this Lease upon Fifteen (15)
days' prior notice to the Landlord, in which case, this Lease and
the Term hereby demised shall cease and be at an end as of the
date of such damage or destruction and the Rent shall be
apportioned and paid in full to the date of such damage or
destruction.
Intentionally deleted.
The Tenant may, but shall not be required to, at any time during the
Term, on termination or on any extension thereof, at its sole option,
remove or replace any Leasehold Improvements or alterations made or
installed in the Premises by Tenant.
If the Rent hereby reserved, or any part thereof, shall be in arrears or if
the Tenant shall default in the observance or performance of any of the
Tenant's other covenants or agreements contained in this Lease, and the
Tenant fails to pay such arrears within Sixty (60) days of receipt of
notice in writing from the Landlord or if the Tenant fails to remedy the
non-rental default within Sixty (60) days after receipt of notice from the
Landlord (or such longer period as is reasonably required under the
circumstances so long as the Tenant commences to remedy within such
Sixty (60) day period), the Landlord may, in addition to any other
remedies the Landlord may have, either in this Lease or at law, re-enter
the Premises and the Term hereby granted shall thereupon be
terminated. Notwithstanding the foregoing, and without limiting the
remedies of the Landlord, in the event the Tenant fails to remedy a non-
rental default within the above-specified notice period, and provided the
Tenant is not bona fide disputing the non-rental default, upon the
expiration of the above-specified notice period the Landlord, at its
option, acting reasonably, may remedy the non-rental default on behalf
of the Tenant and charge the costs thereof to the Tenant.
With respect to any remedy exercised by the Landlord, the Landlord
shall have an affirmative obligation to obtain another tenant for the
Premises at a fair market rental and to otherwise mitigate its damages.
The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by the Landlord: (a)
Landlord's failure to do, observe, keep and perform any of the terms,
covenants, conditions, agreements or provisions of this Lease required to
be done, observed, kept or performed by the Landlord, within Thirty
(30) days after written notice by the Tenant to the Landlord of said
failure (except when the nature of the Landlord's obligation is such that
more than Thirty (30) days are required for its performance, then the
Landlord shall not be deemed in default if it commences performance
within the Thirty (30) day period and thereafter diligently pursues the
cure to completion) or such shorter period of time as is reasonable in the
-26-
circumstances where a delay may jeopardize the safety of the Building
or any tenant, subtenant, occupant or Person therein, or where a delay
may result in increased loss or damage to the Premises or the Building
or the Tenant's use and enjoyment thereof; (b) the Landlord becomes
bankrupt or insolvent or makes application for relief from creditors
under the provisions of any statute for bankrupt or insolvent debtors, or
makes any proposal, assignment or arrangement with its creditors; (c) a
receiver or a receiver and manager is appointed for all or part of the
property of the Landlord; (d) steps are taken or proceedings are
instituted for the dissolution, winding-up or other termination of the
Landlord's existence or for the liquidation of its assets; or (e) the failure
of any representation or warranty to be true when deemed given
hereunder. In the event of a default by the Landlord, the Tenant, at its
option, without further notice or demand, shall have the right to any one
or more of the following remedies in addition to all other rights and
remedies provided at law or in equity or elsewhere herein: (i) to remedy
such default or breach and deduct the costs thereof (including solicitors'
fees) from the instalments of Net Rent and Additional Rent next falling
due; (ii) to pursue the remedy of specific performance; (iii) to seek
money damages for loss arising from the Landlord's failure to discharge
its obligations under this Lease; and (iv) to terminate this Lease.
Nothing herein contained shall relieve the Landlord from its obligations
hereunder, nor shall this Section be construed to obligate the Tenant to
perform the Landlord's repair obligations.
Section 6-12 (a) The Tenant shall be entitled to extend this Lease for Three (3)
further terms of Five (5) years each (each an "Extension Term").
Each extension shall be upon the same terms and conditions of
this Lease, as extended or amended, except that there shall be no
further right of extension beyond the last Extension Term and
except for the Net Rent, which shall for each Extension Term be
based upon: (I) the Rentable Area of the Premises; and (2) the
Market Rental as of the date which is Six ( 6) months prior to the
commencement of the respective extension term. The Net Rent
for each Extension Term shall be determined by mutual
agreement as of the date which is Six (6) months prior to the
expiry of the Term or the previous Extension Term, as the case
may be, or failing such agreement, by arbitration in accordance
with Section 6.13 of this Lease.
Option to Extend
Section 6.13
Arbitration
(b) The Tenant shall give written notice to the Landlord of its
extension of this Lease at least Six ( 6) months prior to the end of
the initial Term or the previous Extension Term, as the case may
be.
1n the event of any dispute between the Landlord and the Tenant with
respect to any matters arising under this Lease which cannot be resolved
by the parties acting in good faith, then at either party's option, the
dispute may be submitted to arbitration in accordance with the
provisions of the Arbitration Act, 1991, S.O. 1991, c.l7, as amended, or
any successor act. Each party shall appoint an arbitrator and the
appointed arbitrators shall jointly choose a third arbitrator to create a
board of Three (3) arbitrators, the majority decision of which shall be
binding upon the parties. If either party shall refuse to appoint an
arbitrator within Thirty (30) days of being served with written notice of
arbitration by the other party, then the arbitrator first appointed shall, at
the request of the party appointing him, proceed as if he were a single
arbitrator appointed by both parties. 1n such cases the single arbitrator
shall receive and consider written or oral submissions from both parties.
If two arbitrators are appointed and they fail, within Ten (10) days of the
appointment of the second of them, to agree upon the appointment of the
third arbitrator, then upon the application of either party the third
arbitrator shall be appointed by a Judge of the Ontario Superior Court of
-27-
Section 6.14
Additional Space
Section 6.15
Non-Waiver
Section 6.16
Non-Disturbance
Agreement
Section 6.17
Notices
Section 6.18
Entire
Agreement
Section 6.19
Registration
Justice. Each party shall pay the fees and expenses of the arbitrator
appointed by it and one half of the fees and expenses of the third
arbitrator.
If during the Term the Tenant requires additional space, the Landlord
covenants and agrees to use commercially reasonable efforts to lease
such additional space to the Tenant or, at the Tenant's request, relocate
the Tenant to larger premises within the Building, subject to availability
and to the parties agreeing upon the terms and conditions of such
relocation. For the sake of clarity, the relocation right contained herein is
for the Tenant's benefit only and the Landlord shall have no right
whatsoever to relocate the Tenant.
No condoning, excusing or overlooking by the Landlord or Tenant of
any default, breach or non-observance by the Tenant or the Landlord at
any time or times in respect of any covenant, proviso or condition herein
contained shall operate as a waiver of the Landlord's or the Tenant's
rights hereunder in respect of any continuing or subsequent default,
breach or non-observance, or so as to defeat or affect in any way the
rights of the Landlord or the Tenant herein in respect of any such
continuing or subsequent default or breach, and no waiver shall be
inferred from or implied by anything done or omitted by the Landlord or
the Tenant save only an express waiver in writing.
Upon receiving a written request from the Tenant, the Landlord shall
obtain, at the Landlord's sole cost and expense, a non-disturbance
agreement in the form attached hereto as Schedule "0" from every head
landlord, mortgagee or other encumbrancer of the Lands who has, or
may in the future have, priority to the Tenant's leasehold interest in the
Premises.
Any notice required or contemplated by any provision of this Lease shall
be given in writing addressed in the case of notice to the Landlord to the
address set out in Paragraph (t) of the Summary and in the case of notice
to the Tenant to the address set out in Paragraph (g) of the Summary,
and delivered personally or by facsimile or mailed by either registered or
signature mail and postage prepaid enclosed in a sealed envelope. The
time of giving of notice by either registered or signature mail shall be
conclusively deemed to be the Fifth (5th) Business Day after the day of
such mailing. Such notice, if personally delivered or if delivered by
facsimile, shall be conclusively deemed to have been given and received
at the time of such delivery. The parties hereto acknowledge and agree
that notwithstanding anything to the contrary in the Electronic
Commerce Act, 2000. S.O. 2000, c.17, as amended from time to time,
any notice, statement, demand, request or other instrument which may
be or is required to be given under this Lease or at law may not be
validly delivered by way of electronic communication.
The Tenant and the Landlord acknowledge that there are no covenants,
representations, warranties, agreements or conditions, expressed or
implied, collateral or otherwise, forming part of or in any way affecting
or relating to this Lease save as expressly set out in this Lease and that
this Lease and the Schedules hereto constitute the entire agreement
between the Landlord and the Tenant and may not be modified except
by subsequent agreement in writing of equal formality hereto executed
by the Landlord and the Tenant. Schedules "A", "B", "C", "D", "E", "F",
"G", "H", "1", "J", "K", "L", "M", "M-1", "N", "0", "P" "Q" and "R",
which are attached to this Lease, form part of this Lease.
The Tenant may, at its option, register a Notice of this Lease in the
applicable Land Registry or Land Titles Office and the Landlord will
cooperate with the Tenant to facilitate the registration and execute all
-28-
Section 6.20
Severability
Section 6.21
Interpretation
Section 6.22
Headings and
Captions
Section 6.23
Effect of Lease
Section 6.24
Snrvival of
Agreement
Section 6.25
Binding on
Tenant
Section 6.26
Governing Law
Section 6.27
Time of Essence
Section 6.28
Freedom of
Information
Section 6.29
Certificates
documentation required for such purpose.
The Landlord and the Tenant agree that all of the provisions of this
Lease are to be construed as covenants and agreements as though the
words importing such covenants and agreements were used in each
separate paragraph hereof. Should any provision or provisions of this
Lease be illegal or not enforceable, it or they shall be considered
separate and severable from this Lease and its remaining provisions shall
remain in force and be binding upon the parties hereto as though the said
provision or provisions had never been included.
The words "herein", "hereof', "hereby", "hereunder", "hereto11,
"hereinafter", and similar expressions refer to this Lease and not to any
particular paragraphs section or other portion thereof, unless there is
something in the subject matter or context inconsistent therewith.
The headings in this Lease have been inserted as a matter of
convenience and for reference only and in no way define, limit or
enlarge the scope of meaning of this Lease nor any of the provisions
hereof.
This Lease and everything herein contained shall operate to the benefit
of any and be binding upon the respective successors, assigns and other
legal representatives, as the case may be, of each of the parties hereto
subject to the granting of consent by the Landlord as provided herein to
any assignment or sublease, and subject to the provisions of Section 6.24
ofthis Lease, every reference herein to any party hereto shall include the
successors, assigns and other legal representatives of such party.
Neither the execution of this Lease nor the occupancy of the Premises by
the Tenant waives the obligations of the Landlord or the Tenant to
comply fully with and to perform the terms, covenants and conditions of
the Agreement to Lease. The provisions of the Agreement to Lease
shall survive until waived expressly, are performed, or are otherwise
satisfied. Any waiver by either the Landlord or Tenant of a condition or
the performance of any obligation of either of them under the
Agreement to Lease shall be effective only if in writing.
In the event of a conflict between the provisions of the Agreement to
Lease and those of this Lease, such provisions of this Lease shall
prevail.
This Lease shall not be binding upon the Tenant until it has been
executed by the Ontatio Realty Corporation.
This Lease shall be governed by and construed in accordance with the
Laws of Ontatio.
Time shall be of the essence hereof.
The Landlord acknowledges that this Lease and any information
contained herein, may be required to be released pursuant to the
provisions of the Freedom of Information and Protection ofPrivacv Act,
R.S.O. 1990, c. F.31, as amended.
Whenever requested by the Landlord or the Landlord's lender, the
Tenant shall promptly execute and deliver to such party an estoppel
certificate or other form of certified acknowledgement as to the then
status and validity or otherwise of this Lease, and the state of the rental
account hereunder, on the Tenant's then standard form or such other
-29-
fonn as is acceptable to the Tenant, acting reasonably. Whenever
requested by the Tenant or any party authorized in writing by it, the
Landlord shall deliver a similar certificate to the Tenant or such other
party.
Section 6.30 Notwithstanding anything contained in this Lease to the contrary, (a)
Reasonableness any allocation of any cost, charge or expense shall be done on a
reasonable and equitable basis; (b) wherever in this Lease consent,
pennission or approval is required by either the Landlord or the Tenant,
unless specified to the contrary elsewhere in this Lease, such consent,
pennission or approval shall not be unreasonably withheld or delayed;
and (c) in exercising any of its rights or remedies under this Lease, the
Landlord and the Tenant shall each act in a reasonable and prudent
manner.
Section 6.31
Right to
Terminate
The Tenant shall have the right to tenninate this Lease at any time on or
after January I, 2011 by providing the Landlord with not less than Six
( 6) months' prior written notice.
IN WITNESS WHEREOF the parties hereto have executed this Lease.
SIGNED, SEALED & DELIVERED
Dated the"Z..I day ofNOtrmher
2009
Dated the .l' day of lol ov ~ bcr
2009
TOWN OF
Per:
Name: li.J ·,
Title: Qe_r/< ..
Authorized Signing Officer
cis
ONTARIO REALTY CORPORATION, acting as
agent on behalf of HER MAJESTY THE QUEEN
IN RIGHT OF ONTARIO AS REPRESENTED
BY THE MINISTER ENERGY AND
INFRASTRUCTURE
Per:
Name: Richard Schveighardt
Title: Regional Director of Operations
Southwest Region
Authorized Signing Officer
-30-
SCHEDULE "A"
LEGAL DESCRIPTION OF THE LANDS
Lot 25 & 26, Plan 966.
-31 -
~ i ~ s: 1§ ~ FLOOR PLAN 1-!otro~ FLOOR RENTABLE AREA= J2481G.G7 50. fT. 0 PK Construction Inc. .. :.:~Ph::,::,~.~":: .• ~):: .. ::,~ .• ::,7,:::~,: .. ~,~ •• :.~).~.,..:-:-.:,.:--• ~7 TiiiiQn Stre~ Tilhonburg. Onta!W N4C oRJ f>'•""'<lJ>o• Floor Plan Floor Rentable Area Boma Cert1f1cat1on Ell1ot Fa~rbawn Centre 3 I Earle Street, Tillsonbur'j. OntaM ""·=~ P0083 ·5;;;-···-~.i;;.·23:-2m-.. .. ' . ""-_,_ Not to Scale ·---5P<o; 3 "' "'
RE:
SCHEDULE "C"
NOTIFICATION OF THE PRESENCE OF FRIABLE
MATERIAL CONTAINING ASBESTOS IN BUILDINGS
CONTAINING PREMISES LEASED BY THE ONT ARlO
REALTY CORPORATION
.
•'
REGULATION RESPECTING ASBESTOS ON CONSTRUCTION PROJECTS
AND IN BUILDING AND REPAIR OPERATIONS MADE UNDER THE
OCCUPATIONAL HEALTH AND SAFETY ACT, ONTARIO REGULATION
278/05, as amended or replaced from time to time
LOCATION: 31 Earle Street, Tillsonburg, Ontario
LEASE NO:
[ 1
[ l
[ 1
[ X 1
L11794
There is friable material in the Building. "Friable material" means
material that when dry can be crumbled, pulverized or powdered by hand
pressure and includes such material that is crumbled, pulverized or
powdered.
The friable material contains asbestos.
The friable material does not contain asbestos.
There is no friable material in the Building.
Location(s) of Asbestos within the Building:
Types of Asbestos
Date:
-33-
I. In this Schedule:
SCHEDULE "D"
OPERATING COSTS
(YEAREND)
(a) "Operating Costs" means:
(i) subject to the provisions contained in the remainder of this Lease, the
reasonable and actual costs incurred by the Landlord, without duplication
or profit, for operating, maintaining, repairing and insuring the Building
and Lands, including the following:
(A) [Intentionally Deleted];
(B) the cost of collection and removal of garbage and waste;
(C) landscaping and maintenance of all outside or enclosed areas,
including snow and ice removal;
(D) the cost of light fixtures maintenance and fluorescent tube, light
bulb and ballast replacement, save and except the replacement of
such ballasts that have been affected by the presence of PCBs, and
in such instance or instances, the cost of such replacement
(including labour and installation) shall be at the Landlord's sole
expense, and shall not be included in the calculation of Operating
Costs;
(E) [Intentionally Deleted];
(F) operation, maintenance and repairs in respect of any elevators,
escalators and motorized equipment within the Building;
(G) communications, sound and visual systems;
(H) [Intentionally Deleted];
(!) all insurance which the Landlord is obliged to obtain under the
Lease, including insurance premiums required by the Landlord for
the Land and Premises;
(J) consultants' fees directly related to the reduction or control of
increases in Operating Costs of the Building and accountants' fees
incurred in compliance with the provisions of the Lease;
(K) rental of cleaning equipment, snow removal equipment, trucks,
maintenance equipment and tools;
(L) reasonable salary ofthe on-site manager where his/her entire duties
relate to the management of the Building (or are proportionally
based on the time spent there), plus the cost of other on-site
support staff working only on the business of managing the
Building (excluding officers, secretarial, clerical and accounting
staff of the Landlord);
(M) an administration fee not to exceed Twelve percent (12%) of the
costs referred to in subparagraphs {A) to (L) inclusive hereof afler
deducting those costs set forth in Paragraph l(a)(ii) of this
Schedule "D" and excluding those costs set forth in Paragraph
l{a)(iii) of this Schedule "D", as well as those amounts received by
the Landlord for Sales Taxes in respect of the costs referred to in
subparagraphs {A) to (L) inclusive hereof, Additional Services, and
-34-
' any administration, management and supervision fee charged to
tenants in respect of construction or work on their respective
premises in the Building. It is intended that the foregoing Twelve
percent (12%) administration fee is in recognition of the
management and administrative functions performed by or on
behalf of the Landlord as well as a reasonable allocation to the
Landlord's overhead. Accordingly, such administration fee shall
not be duplicated by any outside contracted management costs or
fees which are attributable to management or supervisory functions
performed by the Landlord or by any other entity or person;
(N) any costs relating to the operation, maintenance, repair,
replacements of or to the Mechanical and Electrical Services, with
heating, ventilation and air-conditioning (including humidification)
system costs limited only to the gymnasium area and also
including plumbing systems, which are not of a major or capital
nature;
(0) any costs relating to the operation, maintenance, repair,
replacements of or to the window mount air-conditioning units in
place as of the Commencement Date;
(P) any costs relating to the operation, maintenance, repair,
inspections, replacements of or to the fire and security alarm
systems and fire extinguishers, in place as of the Commencement
Date; and
(Q) any costs relating to the repair and replacement to the Building.
(ii) Operating Costs shall be reduced by the following to the extent otherwise
included in Operating Costs and to the extent actually received by the
Landlord:
(A) proceeds of insurance and damages paid by third parties or the
amount that would have been received had the Landlord
maintained all insurance policies required to be maintained by it
pursuant to the terms and conditions of this Lease;
(B) repairs or replacements to the extent that the cost of the same is
recovered by the Landlord pursuant to original construction and/or
equipment warranties;
(C) amounts recovered from tenants on account of any Additional
Services provided to them by the Landlord in addition to those
generally available to all tenants ofthe Building; and
(D) any cost savings due to more efficient use of energy within the
Building.
(iii) Notwithstanding anything in this Lease or Schedule "D" to the contrary,
Operating Costs shall exclude the following:
(A) wages, salaries and payroll costs of anyone not doing work
associated with maintaining, repairiog and cleaning the Building
and the Lands;
(B) any cost of original planting of trees, flowers and foliage, or grass,
or preparation of feature areas;
(C) any cost of major resurfacing (as opposed to sealing and patching)
of any part of the Parking Areas;
-35-
(I) any costs of additional curbing to the original Parking
Areas, or the cost of improving the original quality of the
Parking Area materials; and
(2) any costs of new Parking Areas, signing or traffic control
equipment;
(D) any costs of repairs to any part of the Building or the Parking
Areas caused by defect or weakness in the Structure or poor
original construction;
(E) (I) any capital costs of the equipment for the Building;
(2) any major replacement of parts which materially extend the
life of the elevators or Mechanical and Electrical Services,
including the boiler;
(F) costs for any maintenance, repair and/or replacements to the
Structure (and any part thereof) which are major or of a capital
nature;
(G) any costs properly chargeable to a capital account using generally
accepted accounting principles and the original costs of
constructing or acquiring the Building;
(H) market research and legal fees;
(I) depreciation of office furniture and equipment;
(J) Landlord's Taxes and any penalties relating to the late payment of
Landlord's Taxes;
(K) all fines, suits, claims, demands, actions, costs, charges and
expenses of any kind or nature for which the Landlord is or may
become liable by reason of any neglect or wilful act or omission on
the part of the Landlord or any Person for whom it is in law
responsible, or by reason of any breach, violation, non-payment or
non-performance by the Landlord of any of the covenants, terms or
provisions contained in the Lease;
(L) costs or expenses incurred in rebuilding or replacing the Structure
of the Building or the Premises or in constructing, improving or
renovating any part of the Building, unless such request emanates
from the Tenant;
(M) costs or expenses incurred in the repair of defects in the
construction of any part of the Building;
(N) costs or expenses arising from the negligence of any Person;
(0) costs or expenses incurred to satisfy the requirements of any other
tenant;
(P) costs or expenses to the extent that such costs or expenses are
attributable to any other leasable premises or to any area, facility,
utility, improvement, equipment or installation forming a part of
the Building but not generally and usually enjoyed by the Tenant,
its employees and invitees;
(Q) costs or expenses with respect to which proceeds of any insurance
maintained by the Landlord are paid or payable to the Landlord or
any mortgagee, or debenture or bondholder;
-36-
(R) costs or expenses incurred with respect to any matter for which the
Landlord has agreed to indemnify and save the Tenant harmless;
(S) original acquisition and construction costs or expenses;
(T) ground rent;
(U) depreciation on replacement, repairs and maintenance of the
Building, Leasehold Improvements and Lands;
(V) amortization and interest on and capital retirement on debt or other
financing with respect to the Building and the Lands;
(W) any costs or expenses incurred by the Landlord as a result of any
default of other tenants in the Building;
(X) any costs or expenses incurred to satisfy the renewal or extension
requirements of the Tenant undertaken by the Landlord; and
(Y) any costs or expenses relating to the existence or to the cleanup
and/or decommission of the Lands and the Building from the
presence of any Environmental Contaminant, or as a result of any
spill of any Enviromnental Contaminant on or in any part of the
Building or Lands.
2. Operating Costs are to be determined in accordance with generally accepted accounting
principles in accordance with industry standards applied consistently by prudent owners
or landlords of similar buildings of comparable size, effective age, quality, use and
geographic area, unless otherwise noted within the definition of Operating Costs.
3. The Tenant shall pay its Proportionate Share of Operating Costs in equal monthly
instalments, on the first day of each calendar month during each Cost Period.
4. Within Ninety (90) days after the end of each Cost Period, commencing at the end of the
first Cost Period, the Landlord shall deliver to the Tenant a customized audited statement
in the form set out in Schedule "F" attached to the Lease (the "Statement"), together with
the Tenant's Proportionate Share of the total costs set out in the Statement, which shall be
reported on by a public accountant. Such report of the accountant shall be in the form as
set out in Schedule "E" attached to the Lease.
Upon Thirty (30) days notice in writing, the Tenant may change its reporting
requirements including, without limitation, the form and content of the aforesaid
statements to be delivered by the Landlord.
In the event that the Landlord fails to deliver the Statement to the Tenant within One
Hundred and Eighty (180) days from the end of a Cost Period, the Tenant shall not be
responsible for the payment of any amount under Paragraph 7 for that Cost Period
5. Pursuant to Section 5.2(B) hereof, the Tenant shall have the right to audit the Landlord's
records and documents relating to Operating Costs. In addition to such audit rights, the
Tenant shall have the right to dispute the Statement, reports and Operating Costs referred
to therein.
6. If the Tenant has paid more than the Statement specifies for a Cost Period, the Landlord
shall pay to the Tenant, within Sixty (60) days after receipt of the Statement in respect of
the Cost Period, or upon conclusion of any arbitration of a dispute with respect to
Operating Costs, the amount of the overpayment. If the Tenant does not receive such
sum as aforesaid, the Tenant shall have the right to offset such sum as against the Rent.
7. If the Tenant has paid less for Operating Costs than the Statement specifies for a Cost
Period, the Tenant shall pay to the Landlord, within Sixty (60) days after receipt of the
Statement for the Cost Period or upon conclusion of any arbitration of a dispute with
respect to Operating Costs, the amount of the underpayment.
-37-
8. In the event of any dispute with respect to the nature or amount of Operating Costs or the
Tenant's Proportionate Share thereof, the matter in dispute will be referred to and
determined by arbitration, in which case, the payment by the Tenant to the Landlord of
any disputed amount will be made following the conclusion of arbitration proceedings.
The arbitration of any dispute referred to in this Schedule "D" shall be conducted in
accordance with Section 6.13 of this Lease.
9. If the Landlord shall be found to have overcharged Operating Costs payable hereunder
the Landlord shall refund the Tenant in respect of such overcharge within ten (10)
Business Days after such overcharge is discovered, and failing such payment the Tenant
shall have the right, to deduct the amount owing, together with interest at Three percent
(3%) above the prime rate set by the Tenant's bank from time to time, from the next
payments of Rent becoming due hereunder, without being in default of the provisions of
this Lease. If such overcharge exceeds Twelve (12) months' worth of Net Rent payable
hereunder or there is less than Twelve (12) months remaining in the Term of the Lease,
then the Tenant shall have the right to terminate this Lease upon not less than Five (5)
days' written notice to the Landlord. The Landlord's obligation herein to refund any
overcharge in respect of Operating Costs shall survive the expiration or sooner
termination of this Lease, unless the full amount of such overcharge has been deducted as
aforesaid.
I 0. Notwithstanding any provtston of this Lease to the contrary, the Tenant's annual
Additional Rent through the end of the first full Cost Period shall not exceed One Dollar
($1.00) per square foot of Rentable Area of the Premises. Notwithstanding anything
contained herein to the contrary, the portion of the Tenant's annual Additional Rent
attributable to Operating Costs for the second and any subsequent Cost Period shall not
exceed One Hundred Five percent (I 05%) or the percentage increase in CPI, whichever is
less, on a non-cumulative basis, of the portion of the Tenant's annual Additional Rent
attributable to Operating Costs, payable for the immediately preceding Cost Period.
["CPI" means the Consumer Price Index (All Items for Regional Cities) for the city in
which the Building is located, or if there is no Consumer Price Index for that city, the
index most nearly corresponding thereto and with appropriate conversions being made
where the basis of comparison or calculation has changed.]
-38-
SCHEDULE "E"
AUDITOR'S REPORT ON STATEMENT OF OPERATING COSTS
In accordance with the terms and conditions of the Lease dated January 17, 2009 between The
Corporation of the Town of Tillsonburg (Landlord) and Ontario Realty Corporation, acting as
agent on behalf of Her Majesty the Queen in Right of Ontario as represented by the Minister of
Energy and Infrastructure (Tenant) for the leasing of the Premises described in the Lease
Lll794, the Landlord has prepared a Statement of Operating Costs for the year ending [INSERT
MONTHIDA Y), 20[INSERT YEAR], which contains the following summary and calculations:
(a) the Operating Costs incurred during the year; (b) the Tenant's Proportionate Share of
Operating Costs; and (c) the amount, if any, payable by the Tenant to the Landlord or from the
Landlord to the Tenant, as the case may be, under Paragraphs 6 and 7 of Schedule "D" attached
to the Lease.
This Statement of Operating Costs has been prepared in all material respects, in accordance with
generally accepted accounting principles and with the terms and conditions of the Lease.
I have audited the Landlord's Statement of Operating Costs for the year ending [INSERT
MONTH/DAY], 20 [INSERT YEAR], with the criteria established by the Lease. Compliance
with criteria established by the provisions of the Lease is the responsibility of the Landlord. My
responsibility is to express an opinion on this compliance based on my audit.
I conducted my audit in accordance with Canadian generally accepted auditing standards. Those
standards require that I plan and perform an audit to obtain reasonable assurance whether the
Landlord complied with the criteria established by the provisions of the Lease referred to above.
Such an audit includes examining, on a test basis, evidence supporting compliance, evaluating
the overall compliance with the Lease, and where applicable, assessing the accounting principles
used and significant estimates made by the Landlord.
In my opinion, as at [INSERT DATE], the Landlord is in compliance, in all material respects,
with the criteria established by the Lease.
Signature of a Public Accountant City and Date
-39-
" .
SCHEDULE "F"
STATEMENT OF OPERATING COSTS
OPERATING EXPENSES for the year ending (INSERT DATE)
Landlord's Name: The Cmporation ofthe Town ofTillsonburg
31 Earle Street, Tillsonburg, Ontario
Lll794
Building Location:
MBS Lease No.:
A. Cleaning Expenses
Payroll, Benefits
Contract Services
Supplies and Materials
Trash Removal
Other
Total Cleaning
B. Repairs/Maintenance
Payroll, Benefits
Elevator Contracts/Materials
Electrical Contracts/Materials
Mechanical Contracts/Materials
Plumbing
Fire and Life Safety
Other
Total Repairs/Maintenance
c. Utilities
Electricity
Gas
Fuel Oil
Water
Sewer
Total Utilities
D. Roads/Grounds/Security
RIG Payroll, Benefits
RIG Contract Services
-40-
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
$0.00
Other $0.00
Security Payroll, Taxes, Benefits $0.00
Security Contract Services $0.00
Other $0.00
Total Roads/Grounds/Security $0.00
E. Administrative
Payroll, Benefits $0.00
~anagernentFees $0.00
Professional Fees $0.00
General Office Expense $0.00
Other $0.00
Total Administrative $0.00
F. Parking Operations (If no separate agreement has been entered into
between the Landlord and the Tenant for Parking)
Cleaning $0.00
Maintenance $0.00
Total Parking Operations $0.00
TOTAL (A-F INCLUSIVE)
G. Building Insurance $0.00
Total Building Insurance $0.00
TOTAL (A-G INCLUSIVE) $0.00
-41 -
' '
SCHEDULE "G"
REALTY TAX ADJUSTMENT
(YEAREND)
1. In this schedule:
(a) "Realty Taxes" means all taxes, rates, duties, charges, levies and assessments
whatsoever in the nature of realty taxes, whether municipal, provincial or federal
charged or levied upon the Building and the Lands Appurtenant Thereto, or upon
the Landlord on account thereof, including all taxes, rates, duties, levies and
assessments for local improvements, education and schools and all taxes, grants
or assessments which may in the future be levied in lieu of Realty Taxes, but shall
exclude any tax paid by the tenants which was attracted by the tenants'
improvements, any tax such as personal and corporate income taxes, business
taxes, capital tax, profits or excess profits taxes assessed upon the income of the
Landlord, excise tax, value-added tax, sales tax, goods and services tax, business
transfer tax, any and all impost charges or any other tax or assessment which is
personal to the Landlord, any interest or penalties for late payment of Realty
Taxes, and any other charges included in the tax bill that are not Realty Taxes.
Should the Landlord undertake any improvements which result in an increase in
Realty Taxes, the Tenant shall not be liable to pay any portion of any increase in
Realty Taxes levied as a result of such improvements; and
(b) "Building and the Lands Appurtenant Thereto" means the total area of the
Building and a reasonable portion of the Lands. The portion of the Lands
included in this description should be reasonable in relation to the Building and,
in any case, should not exceed One Hundred and Ten percent (110%) of the
amount of land required for the building coverage under the applicable zoning
regulations. Any portion of the Lands which can be severed shall not be included
as part of this Lease. The Landlord will make the necessary adjustment to reflect
a reasonable area of the Lands.
2. The Landlord and Tenant agree that the Net Rent, payable pursuant to Section 3.1 hereof,
includes the Tenant's share of Realty Taxes. Accordingly, the Landlord shall be
responsible to pay all Realty Taxes to any relevant taxing Authority directly and the
Tenant shall have no responsibility for the payment of Realty Taxes other than as set out
in Section 3.1 and this Schedule "G".
-42-
SCHEDULE"H"
ELECTRICAL REQUIREMENTS
Electrical requirements shall be provided to meet standards outlined in Section 5.3 of the Lease
and as follows:
I. Electrical Power
1.1 Distribution system must be 600 amp, 3 pbase, 4 wire or 208/120 volts, 3 phase, 4 wire
and available within the Building for mechanical equipment.
1.2 Emergency power including supply for exit lighting, stairwell lighting, fire alarm and
other systems to be in accordance with all relevant legislation, codes and regulations.
1.3 Circuiting at a rate of I x 120 volt circuit per occupant plus 20 per cent spare capacity
using 42 circuit panelboard, each ready for feeds on each floor with the ability to provide
120 volt dedicated circuits.
1.4 Landlord to supply, in addition to the lighting system, 44 watts of power per rentable
square metre at the panel boards for the Tenant's use. Each transformer supplying a panel
board to which desktop computers are to be connected, shall be derated to 50% of its
nameplate rating exclusive of any allowance for future loads, to allow for harmonic
currents. Alternatively, harmonic mitigating transformers can be supplied, in lieu of
standard transformers. Harmonic mitigating transformers may be loaded to 80% of their
nameplate ratings. The neutral conductors of the feeders from the transformer to the
panel boards shall have twice the current rating of the phase conductors.
1.5 Landlord is to ensure that the supply of power to lighting, receptacles and mechanical
systems are via separate and distinct power sources.
1.6 Special grounding for computer or other electronic equipment is not required unless
specifically described elsewhere in the Lease.
I. 7 All existing wiring within the Premises shall be removed back to the panel boards.
1.8 Each floor or part floor of the Premises shall be equipped with local switches for lighting
control.
2. Levels of lllumination
The levels of illumination shall be in accordance with IES recommendations and the listed levels
below shall represent the minimum average maintained conditions and in the case of office and
working space shall be:
Area
Office space without VDT (Visual
Data Terminals) use, reading tasks
Office space with VDT use*
(provide local task lighting to provide
minimum 500 lux where reading
tasks performed)
Lobbies, storage, washrooms
Circulation areas, stairs
Covered parking
Exterior parking
Level (in Lux)
500 (at desktop)
300 (at desktop)
200 (at floor)
I 00 (at floor)
50 (at pavement)
100 (at entrance)
10 (at pavement)
* Provide VDT area lighting in accordance with IES RPI-1993 recommendations as to ceiling
brightness as well as lighting level.
-43-
SCHEDULE "I"
HVAC, PLUMBING & DRAINAGE AND FIRE PROTECTION SYSTEMS
I. HV AC SYSTEM
The Landlord shall keep all parts of the Premises heated with artificial heat to a proper and
reasonable temperature and provide air-conditioning, ventilation, and humidification (only in the
gymnasium area) in accordance with the following design standards:
1.1 Outside design conditions shall be as indicated in the "Ontario Building Code 1997,
Section 2.5.1 Climatic and Seismic Values" and the associated ''Table 2.5.1.1 Design
Data For Selected Locations in Ontario". For Summer use the 2-112% July dry bulb and
wet bulb temperatures. For Winter use the I% January design temperature.
1.2 The heating system shall maintain an indoor temperature of 22 degrees Celsius
plus/minus I degree Celsius temperature of 22 dry bulb with the winter outside design
conditions noted above.
1.3 The air-conditioning system shall maintain an indoor temperature of not more than 24
degrees Celsius dry bulb with a 2 degrees Celsius with the summer outside design
conditions noted above.
1.4 The ventilation system shall supply a minimum of 10.0 litres per second of outside air per
10.0 square metres of net floor area at the specified outside design conditions. (Based on
10 square meters floor area per person and 10 Us per person fresh air for office spaces as
per ASHRAE standard 62 -1989).
1.5 The humidification system shall maintain a minimum of 20% relative humidity at outside
conditions below minus 5 degrees Celsius, and a minimum of 25% relative humidity at
outside conditions above minus 5 degrees Celsius. The Building envelope must contain a
suitable vapour barrier to maintain the specified humidity levels and minimize moisture
transfer by diffusion into the envelope assemblies.
1.6 The carbon dioxide concentration in the Premises shall not exceed 800 PPM at any
location.
I. 7 The Landlord shall ensure that all control settings are checked prior to the beginning of
each Business Day and after any temporary office closure periods such as weekends or
statutory holidays, to ensure that proper enviromnental conditions are met.
1.8 The Landlord shall ensure that the safety and integrity of air distribution systems serving
the Building are maintained at all times including, without limitation, regularly, and in
any event, at least annually, testing for spores, moulds and other Enviromnental
Contaminants.
1.9 In accordance with the Ontario Building Code, the building heating, ventilating and air
conditioning systems shall be designed and operated to conform to good engineering
practice. As such, systems shall be energy efficient and comply with ASHRAE 90.1-
1989"Energy Efficient Design ofNew Buildings except Low-rise Residential Buildings"
and the "Model National Energy Code For Buildings 1997".
1.10 The air conditioning system capacity shall allow for the occupant load at one person per
10 square metres, the solar and transmission heat gains and an allowance of 16 watts per
square metre for lighting and 16 watts per square metre for office equipment heat gains.
1.11 The air handling systems shall have air filtration with efficiencies per ASHRAE Standard
52.1-1992 including pre filters at 30% efficiency and final filters at 85% efficiency.
1.12 All mechanical equipment shall be isolated and silenced to maintain noise levels in the
occupied space at a noise criteria (NC) of 35 or less. Space must be free from any
annoying, recognizable noise characteristics such as rumble, hiss, tones and variable
noise patterns.
-44-
1.13 Thermostatic controls: Individual control zones shall be provided for each perimeter
comer condition, every 50 square metres of perimeter space and for every 100 square
metres of interior space. Within a control zone, heating and cooling shall be controlled in
sequence.
1.14 Outside air intakes for the building shall be located sufficiently far from building
exhausts, loading docks and external sources of pollution to prevent ingestion of
contaminants.
2. PLUMBING AND DRAINAGE SYSTEM
2.1 The Landlord shall supply at each side of the core of each floor of the Premises capped
plumbing and drainage services to serve the tenant's plumbing installations. Minimum
services shall include a 25mm valved and capped domestic cold water connection, 50mm
vent, 100 mm sanitary drain (at the level below).
3. FIRE PROTECTION SYSTEMS
3 .I All sprinkler systems, fire standpipe systems and portable fire extinguishers shall be
designed and installed in accordance with the Ontario Building Code, National Fire Code
and NFP A requirements.
-45-
' '
SCHEDULE "J"
WASTE MANAGEMENT AND RECYCLING PROGRAM
The Government of Ontario Recycling Program is as follows:
I. Waste in premises leased by the Tenant will be separated by employees of the Occupant
into Five (5) categories (herein referred to as "Source Separated Recyclable Materials"):
1.1 Fine Paper
1.2 Newspaper
1.3 Glass and metal, and food and beverage containers
1.4 Disposable Waste
1.5 Cardboard
Note: The number of categories may be increased or materials within categories changed.
2. The Tenant will provide the following equipment to assist the Landlord in the collection
of Source Separated Recyclable Materials:
2.1 Desk-top collection containers to be placed on each individual's desk, and to be emptied
by the Tenant.
2.2 Metal floor bins for the central collection of newspapers and fine papers.
2.3 Reusable burlap bags to line the metal floor bins.
2.4 Blue boxes for the collection of glass and metal food and beverage containers.
3. Source separation will be carried out by employees of the Occupant in the following
manner:
3.1 Collecting of fine paper in desktop containers.
3.2 Depositing fine paper in strategically located floor containers marked "The Paper Saver".
3.3 Depositing newspapers in strategically located floor containers marked "The Newspaper
Saver".
3.4 Depositing glass, and metal, food and beverage containers into strategically located "Blue
Box" containers.
3.5 Depositing all other waste into existing waste bins at each work station.
4. All Five (5) categories listed in Section 1 hereof will be collected in accordance with
existing janitorial and maintenance routines (i.e. containers dumped daily by cleaning
stafl). The Five (5) categories will be kept separate and distinct in the Landlord's holding
area for pickup of recyclables. The Landlord agrees to collect, store and remove all
Source Separated Recyclable Materials from the Premises on a regular basis, and as
required for the plllposes of recycling.
5. The remaining waste, as described in Category 1.4 of Section 1, will be handled in the
usual manner for the Premises and Building.
-46-
SCHEDULE "K"
CONSERVATION OF ENERGY AND WATER
In view of the Tenant's policy of conservation of energy and water, the Landlord covenants to
adhere under the Lease, wherever possible, to the following procedures;
1. Lighting
The energy efficiency of all indoor fluorescent lamps shall be T8 or better and shall employ high
efficiency electronic ballasts. Individual four-foot fluorescent lamps shall consume no more than
30 watts each. The choice of lamps and ballasts shall not compromise the required nominal
levels of illumination as set forth in Schedule "II" to this Lease.
Existing indoor incandescent bulbs, except those required for architectural decor, such as
chandeliers, shall be replaced, where possible without fixture modification, by suitable compact
fluorescent bulbs.
The use oflighting equipment that promotes energy efficiency, such as, by way of example:
(i) lighting control systems with updated schedules
(ii) occupancy sensors
(iii)photocells
shall be employed, wherever possible, in the lighting system of the Building.
2. Heating and Cooling
Energy consumed for heating and cooling shall be reduced:
2.1 The heating, ventilating and air conditioning systems shall be audited annually for control
compliance to ensure efficient operation. Controls shall be in place to prevent
simultaneous heating and cooling of a given space and/or its air supply. Suitable indoor
ventilation control shall be in place to prevent over or under ventilation of space by use of
C02 censors. Levels shall be prescribed by ASHRAE standard 62-2001 recommended
C02 levels for indoor office space.
The use of heating, ventilating and air conditioning equipment that promotes energy
efficiency, such as, by way of example:
(i) variable frequency drives on fans and pumps
(ii) DDC Building Automation System with updated schedules
(iii)Cooling towers fitted with heat exchangers to allow free cooling during
the winter
(iv)high efficiency motors on fans and pumps
shall be employed, wherever possible, in the heating and cooling systems of the Building.
During the heating season, temperature control devices for general office space shall be
to maintain 70-72 degrees Fahrenheit (21-22 degrees Celsius) during working hours and
set back to 65 degrees Fahrenheit (18 degrees Celsius) during non-working hours.
Temperatures in warehouses and similar space shall be adjusted lower than the 65-68
degrees Fahrenheit (18-20 degrees Celsius) depending on the type of occupancy and
activity in the space.
2.2 During the cooling season, temperature control devices for general office space shall be
set to maintain 76-78 degrees Fahrenheit (24-26 degrees Celsius) during working hours
and set up to 86 degrees Fahrenheit (30 degrees Celsius) during non-working hours.
-47-
3. Water
3.1 Landscape Architectural Considerations:
3.1.1 Use drought-tolerant plants when designing the landscape.
3.1.2 Consider sub-surface drip irrigation systems.
3 .1.3 Where feasible, store rain water in settling ponds to be used for irrigation.
3.1.4 Avoid, where feasible, creating large paved areas around buildings.
3.2 Mechanical Considerations:
3.2.1 Use reduced flow rate type plumbing fixtures conforming to the Ontario Building
Code, section 7.6.4 Water Efficiency (Max 9.5 Llmin. (2.5 US-GPM) per shower
head).
3 .2.2 Consider utilizing metering type valves, to limit duration of water flow in fixtures.
3.2.3 Use low flow water closets with not more than 6.0 litres per flush and urinals with
not more than 3.8 litres per flush.
Where allowed by the local water utility agency and in cases where the facility operates a
water based cooling tower, the Landlord shall apply annually for a sewer rebate and any
recoveries shall be used by the Landlord to increase the energy efficiency in the Building.
The Landlord shall be responsible, wherever possible, for installing suitable water meters
on the tower's make-up and blow-down lines and shall be responsible to ensure these
meters are properly read for purposes of reporting to the local water utility agency.
Proof of energy efficiency measures through operational changes shall be provided by the
Landlord to the Tenant, in writing annually.
4. Cleaning (where cleaning is carried out under direction of the Landlord)
Not applicable.
5. Additional Procedures
As an agency of the Government of Ontario, it is the Tenant's goal to support government
initiatives to conserve energy, encourage alternative fuels and support clean energy production.
As such, the Tenant shall have the right to impose such other and further energy conservation
procedures and policies as in its sole judgement may from time to time be necessary or
reasonable, upon giving the Landlord at least Thirty (30) days notice in writing.
-48-
SCHEDULE "L"
LEASEHOLD IMPROVEMENTS BY TENANT
The Landlord does hereby grant permission to the Tenant to undertake and to complete, at the
Tenant's sole cost and expense, any Leasehold Improvements to be effected within the Premises,
both prior to the Commencement Date and during the Term, provided that such Leasehold
Improvements do not affect the Structure and that where such Leasehold Improvements may
affect the Mechanical and Electrical Services, the Tenant agrees to allow the Landlord's
professional engineers, to review the Tenant's Leasehold Improvements drawings for
Mechanical, Electrical and Structural. The Tenant will give the Landlord written notice of its
intention to undertake any Leasehold Improvements and, upon request, shall supply the Landlord
with plans of the proposed Leasehold Improvements. The Tenant will obtain the prior written
approval of the Landlord for any Leasehold Improvements that affect the Structure or the
Mechanical and Electrical Services, which approval will not be unreasonably withheld or unduly
delayed. The Landlord will co-operate with the Tenant's contractors and if required, provide the
Tenant with existing professionally prepared plans of the Structure and Mechanical and
Electrical Services.
Once the Tenant submits its plans and specifications (the "Plans") for its Leasehold
Improvements to the Landlord for the Landlord's review and approval, if such approval is
required hereunder, the Landlord shall have a period of Ten (10) days (the "Review Period") to
review the Plans. The Landlord shall be deemed to have approved the Plans as presented unless,
on or before the last day of the Review Period, the Landlord has delivered to the Tenant a written
description of the specific structural items in the Plans that are not acceptable to the Landlord,
acting reasonably, and a description of the specific changes that must be made to the Plans to
secure the Landlord's approval.
The Tenant may require the Landlord to use its mechanical, electrical and structural engineers to
design the Tenant's Leasehold Improvements at the cost of the Tenant. The amount payable for
such services will be negotiated between the Tenant and the Landlord on a square foot basis.
Upon approval (or deemed approval) of the Plans by the Landlord, the Landlord shall deliver to
the Tenant, within Twenty (20) days of the date of approval (or deemed approval) of the Plans,
Three (3) copies of the mechanical and electrical design drawings for any initial tenant's
Leasehold Improvements (the "Mechanical and Electrical Drawings") prepared at the Landlord's
sole cost and expense, which the Tenant shall approve or provide the Landlord with its
reasonable requests for revisions, within Ten (10) days thereof.
Upon approval by the Tenant of the Mechanical and Electrical Drawings, the Tenant may
proceed with the installation of any initial tenant's Leasehold Improvements and the Landlord
shall proceed with the installation, at the Tenant's sole cost and expense and subject to Subclause
1(r) in Schedule "M-1" of this Lease, of all Mechanical and Electrical Services required for the
completion of the initial Tenant's Leasehold Improvements.
In respect of the installation of any initial tenant's Leasehold Improvements, the Tenant shall be
allowed to cut perimeter convection cabinets, where necessary, without disturbing the operation
of Mechanical and Electrical Services, to ensure acoustical privacy between offices, meeting
rooms and other rooms as required.
There will be no requirement, on the part of the Tenant, with respect to union or non-union
affiliations of the employees of the Tenant's chosen contractor. It is understood and agreed that
the Tenant may, within its sole discretion, determine (i) the process used by the Tenant for
obtaining its contractor(s) and (ii) the contractors invited to participate in the chosen selection
process.
Notwithstanding anything in this Lease (including this Schedule "L") to the contrary, the
Landlord hereby acknowledges and agrees that where applicable Laws require the Tenant to
construct, alter and/or remove certain Leasehold Improvements in or about the Premises, the
Landlord's consent and approval to such construction, alteration and/or removal shall be deemed
to have been given.
-49-
SCHEDULE "M"
LEASEHOLD~PROVEMENTSBYLANDLORD
INTENTIONALLY DELETED.
-50-
' .
SCHEDULE "M-1"
INITIAL LANDLORD'S WORK
INTENTIONALLY DELETED
-51 -
SCHEDULE "N"
COMMUNICATIONS SYSTEMS
I. The Building shall have in place an adequate telephone conduit riser and space for the
installation of a telephone system similar to PABX or SL-5, requiring a minimum of2 X
2" conduits.
2. The Landlord shall provide a communications room on each floor, complete with 19.2
mm thick plywood backboard and one duplex receptacle on a dedicated circuit. Provide
I x I 00 mm sleeve per floor with a connection, via I 00 mm conduits, to the main
communications room.
-52-
SCHEDULE "0"
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
FILE #Lll794
TillS AGREEMENT made as of the • (INSERT DAY) day of • (INSERT MONTH),
20e(INSERT YEAR).
BETWEEN:
WHEREAS:
• (INSERT NAME OF MORTGAGEE)
(the "Mortgagee")
OF THE FIRST PART
-and-
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF ENERGY AND
INFRASTRUCTURE
(the "Tenant")
OF THE SECOND PART
A. The Corporation of the Town of Tillsonburg, (the "Landlord") is the owner of certain
lands and premises situate in the Town of Tillsonburg, more particularly described in
Schedule "A" attached hereto (the "Lands") and has granted a Charge/Mortgage of Land
thereon to the Mortgagee (the "Mortgage") which was registered on the • (INSERT
DAY) day of • (INSERT MONTH), 20• (INSERT YEAR) in the Land Registry Office
for the Land Division of as Instrument Number •.
B. The Tenant is the tenant under a letter of intent submitted by the Tenant, as tenant, on
November 7, 2008 and accepted by the Landlord, as landlord, on December 12, 2008 (the
"Agreement to Lease"), pursuant to which the Landlord leased to the Tenant certain
premises in the building (the "Building") located on the Lands being floor thereof more
particularly described and shown in the Agreement to Lease (the "Premises") for a term
(the "Term") and on and subject to the conditions set forth therein, a copy of which has
been delivered to the Mortgagee.
C. The Agreement to Lease provides that the Landlord and the Tenant, as tenant, shall enter
into a lease in the form attached to the Agreement to Lease (the "Lease").
D. The Mortgagee and the Tenant desire to confirm their agreement with respect to the
Mortgage, the Agreement to Lease and the Lease.
NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained,
and intending to be legally bound, the Mortgagee and the Tenant hereby agree and covenant as
follows:
I. The Mortgagee represents and warraots to the Tenant that the Mortgage is unamended, in
full force and effect and in good standing as at the date of this Agreement and there is no
default thereunder.
2. The Tenant represents and warrants to the Mortgagee that the Agreement to Lease is
unamended, in full force and effect and in good standing as at the date of this Agreement
and that the Landlord and the Tenant are not in default thereunder.
-53-
3. The Tenant hereby agrees that the Agreement to Lease and the Lease are now, and shall
at all times continue to be, subject and subordinate in every respect to the Mortgage and
to all renewals, modifications, consolidations, replacements and extensions thereof and
agrees that if, and for so long as the Mortgagee becomes a mortgagee in possession or
realizes on its security by entering into ownership, possession or control of the Building
and the Lands (together the "Project"), the Tenant shall attorn to the Mortgagee as a
tenant upon the terms of the Agreement to Lease and the Lease. The Mortgagee hereby
agrees with the Tenant that for so long as the Tenant is not in default under either of the
Agreement to Lease or the Lease beyond the period of time thereunder permitted for
rectification of the default:
(a) the Tenant's possession of the Premises and the Tenant's rights and privileges
under the Agreement to Lease and the Lease, or any extensions or renewals
thereof which may be effected in accordance with any option therefore in the
Agreement to Lease and the Lease, shall not be diminished or interfered with by
the Mortgagee other than in the lawful exercise of the Landlord's covenants and
rights contained in the Agreement to Lease and the Lease; and
(b) all of the Tenant's rights and privileges under the Agreement to Lease and the
Lease, including, without limitation, its rights of possession of the Premises and
any rights of extension or renewal of the Agreement to Lease and the Lease and
all of the covenants and obligations of the Landlord under the Agreement to Lease
and the Lease, shall be binding upon the Mortgagee if, and only for so long as, it
becomes a mortgagee in possession or realizes on its security by entering into
ownership, possession or control of the Project notwithstanding any default under
the Mortgage.
4. This Agreement shall not prevent or inhibit dealings between the Tenant and the
Landlord concerning the Agreement to Lease and the Lease, including any amendments,
waivers, assigrunents, sublets or agreements affecting the Agreement to Lease and the
Lease.
5. This Agreement may not be modified orally or in any other manner than by an agreement
in writing signed by the parties hereto or their respective successors in interest.
6. This Agreement shall enure to the benefit of and be binding upon the parties hereto, their
respective successors and assigns.
7. Any notice or communication to be given hereunder shall be deemed to have been
sufficiently and effectively given if sent by either personal service or pre-paid registered
mail to the party for which it is intended as follows:
(a) To the Mortgagee: • (INSERT ADDRESS OF MORTGAGEE)
(b) To the Tenant:
c/o Ontario Realty Corporation
One Stone Road West
4th Floor
Guelph, Ontario Nl G 4Y2
Attention: Regional Director of Operations
Fax: (519) 826-3330
With a copy to:
c/o Ontario Realty Corporation
I Dundas Street West
Suite 2000
Toronto, Ontario
M5G2L5
Attention: Senior Solicitor, Leasing
Fax: (416) 327-2760
-54-
'.
' '
The date of receipt of any such notice shall be the date of delivery of such notice of
service if service is made personally or the third (3rd) business day after sending by pre-
paid registered maiL Any party may from time to time notifY the other of a change in
address which thereafter, until changed by like notice, shall be the address of such party
for all purposes of this Agreement. The Tenant agrees to deliver to the Mortgagee,
simultaneously with delivery to the Landlord, a copy of any notice delivered by the
Tenant to the Landlord to the effect that the Landlord has breached either of the
Agreement to Lease or the Lease in a material way.
8. The parties hereto agree that they will from time to time at the reasonable request of the
other party execute and deliver such instruments, conveyances and assignments and take
such further action as may be required pursuant to the terms hereof to accomplish the
purposes of this Agreement.
9. The parties acknowledge that the recitals set forth above are true and accumte in all
respects.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
SIGNED, SEALED & DELIVERED (INSERT NAME OF MORTGAGEE)
Per: --;-;------------cis
Name:
Title:
Authorized Signing Officer
ONTARIO REALTY CORPORATION, acting as
agent on behalf of HER MAJESTY THE QUEEN
IN RIGHT OF ONTARIO AS REPRESENTED
BY THE MINISTER OF ENERGY AND
INFRASTRUCTURE
Per:
Authorized Signing Officer
-55-
SCHEDULE "P"
JANITORIAL SERVICES SPECIFICATIONS
[Intentionally deleted.]
-56-
SCHEDULE "Q"
ELEVATORS
[Intentionally deleted.]
-57-
Ontario Realty Corporation
One Stone Road West
4th Floor
Guelph, Ontario NlG 4Y2
SCHEDULE "R"
ARCIDTECT'S CERTIF1CATE
•(INSERT DATE)
Attention: Regional Director of Operations, (Property Management)
Dear Sirs:
Re: Ontario Realty Corporation, acting as agent on behalf of Her Majesty the Queen
in Right of Ontario as represented by the Minister of Energy and Infrastructure
("Tenant") lease ("Lease") from The Corporation of the Town of Tillsonburg
("Landlord") of premises within the building ("Building") located at Lease File Number:
Lll794
The undersigned, an (Ontario Land Surveyor/Architect/Professional Civil Engineer) licensed to
practise in the Province of Ontario, hereby certifies to the Tenant that the Premises and Building
have been measured on site according to the provisions of the Lease (which provisions are
reproduced in Appendix (i) hereto), and that:
Total area of the floor within perimeter walls:
Less: Major Vertical Penetrations (outside of enclosing walls)
Elevator Shaft sq. ft.
Stairwell sq. ft.
Other (Ducts, etc ... ) sq. ft.
Rentable Area of the Floor
Usable Area of the Premises
Add: Usable Area of all other leased premises on the floor
Usable Area of the Floor
Rentable/Usable Conversion Factor for the floor:
Rentable Area of the Premises
Total Rentable Area Breakdown for Building
Rentable Area of Ground floor
Rentable Area of 2nd Floor
Rentable Area of3rd Floor
(continue list as required)
Rentable Area of the Building
Proportionate Share
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sq. ft
sq. ft
sq. ft
sq. ft
sq. ft.
sq. ft
___ %Ratio
sq. ft
sq. ft
sq. ft
sq. ft
sq. ft
___ %
(Ontario Land/ Surveyor/ Architect/
Professional Engineer
(affix seal)
APPENDIX (i)
I. "Building" means the building erected on the Lands, from and including the lowest floor
or level of the Building to and including the roof of the Building, the Common Areas and
Facilities, the Parking Areas, and the areas and facilities exclusively serving the Building,
which areas and facilities may include, without limitation, lobbies, foyers and vestibules,
sidewalks, storage and mechanical areas, Mechanical and Electrical Systems, janitor
rooms, mail rooms, telephone, rooms for the Mechanical and Electrical Systems,
stairways, escalators, elevators, truck and receiving areas, driveways, loading docks and
corridors.
2. "Rentable Area of the Building" means the total of the Rentable Area of all premises
within the Building, as defined and calculated in accordance with the American National
Standard Method for Measuring Floor Area in Office Buildings (ANSI Z65.1 -1996)
(BOMA), which, as of the Commencement Date, has been measured to be Twelve
Thousand, Four Hundred and Ninety-Seven (12,497) square feet. In the event that the
American National Standard Method for Measuring Floor Area in Office Buildings is
revised or amended at any time during the Term, the method of calculation referred to
above shall continue to be used to define the Rentable Area of the Building for the
remainder ofthe Term.
3. "Rentable Area of the Premises" has been defined and calculated in accordance with the
American National Standard Method for Measuring Floor Area in Office Buildings
(ANSI Z65.1 -1996) (BOMA), as of the Commencement Date, to be Twelve Thousand,
Four Hundred and Ninety-Seven (12,497) square feet. In the event that the American
National Standard Method for Measuring Floor Area in Office Buildings is revised or
amended at any time during the Term, the method of calculation referred to above shall
continue to be used to define the Rentable Area of the Premises for the remainder of the
Term.
4. "Usable Area of the Building" means the total of the Usable Area of all premises within
the Building, as defined and calculated in accordance with the American National
Standard Method for Measuring Floor Area in Office Buildings (ANSI Z65.1 -1996)
(BOMA). In the event that the American National Standard Method for Measuring Floor
Area in Office Buildings is revised or amended at any time during the Term, the method
of calculation referred to above shall continue to be used to define the Usable Area of the
Building for the remainder of the Term.
5. "Usable Area of the Premises" shall be defined and calculated in accordance with the
American National Standard Method for Measuring Floor Area in Office Buildings
(ANSI Z65.1 -1996) (BOMA). In the event that the American National Standard
Method for Measuring Floor Area in Office Buildings is revised or amended at any time
during the Term, the method of calculation referred to above shall continue to be used to
define the Usable Area of the Premises for the remainder of the Term.
6. "Premises" means the premises containing a Rentable Area, which, as of the
Commencement Date, has been calculated to be Twelve Thousand, Four Hundred and
Ninety-Seven (12,497) square feet and occupying floor of the Building. If the Premises
are entirely self-enclosed, their boundaries extend (a) to the inside finished surface of the
permanent outer walls; and (b) from the top surface of the structural subfloor to the
bottom surface of the suspended ceiling. If the Premises have no suspended ceiling
abutting the demising walls and are open to the ceiling or the bottom surface of the
structural ceiling of the Building, the boundaries of the Premises extend from the top
surface of the structural subfloor to the height of the demising walls. The location of the
Premises is outlined on the plan attached to the Lease as Schedule "B".
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