3475 Schedule "A" - Second Lease Extension & Amending Agreement - Ontario Realty Corp at 90 Concession St EL10767
SECOND LEASE EXTENSION AND AMENDING AGREEMENT
THIS AGREEMENT made in quadruplicate as of January 1, 2011.
BETWEEN:
THE CORPORATION OF THE TOWN OF TILLSONBURG
(the "Landlord")
OF THE FIRST PART
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF
INFRASTRUCTURE
(the "Tenant")
OF THE SECOND PART
WHEREAS:
A. By a lease dated October 1, 2000 (the "Original Lease"), the Landlord leased to Her
Majesty the Queen in Right of Ontario as represented by the Chair of the Management
Board of Cabinet (the "Chair") the premises more particularly described as the entire
building, comprising a rentable area of twelve thousand, six hundred and eighty-eight
(12,688) square feet (the "Rentable Area of the Premises"), in the building municipally
known as 90 Concession Street East, in the Town of Tillsonburg, in the Province of
Ontario, as outlined on the plan attached to the Original Lease as Schedule "B" thereto
(the "Premises") for a term of five (5)years, commencing on October 1, 2000 and
expiring on September 30, 2005 (the "Original Term"), in addition to other terms and
conditions as set out therein.
B. Pursuant to the terms of the Original Lease, the Chair was entitled to extend the Original
Term for one (1) additional term of five (5) years.
C By Order-in-Council No. 1487/2005, approved and ordered September 21, 2005, all of
the powers and duties of the Chair relating to real property leased by the Government of
Ontario pursuant to the Ministry of Government Services Act, R.S.O. 1990, c.M.25, as
amended, were transferred and assigned to the Minister of Public Infrastructure Renewal
(the "MP1R").
D. The MPIR exercised its first right to extend the Original Term by a Lease Extension and
Amending Agreement dated October 1, 2005 (the "First Lease Extension and Amending
Agreement") with an extension term commencing on October 1, 2005 and expiring on
December 31, 2010 (the "First Extension Term").
E. Pursuant to the terms of the First Lease Extension and Amending Agreement, the MPIR
was entitled to extend the Original Term for three (3) additional terms of five (5) years.
F. By Order-in-Council No. 1617/2008, approved and ordered September 17, 2008, all the
powers arid duties of the MPIR relating to real property leased by the Government of
Ontario pursuant to the Ministry of Government Services Act, R.S.O. 1990, c.M.25, as
amended, were transferred and assigned to the Minister of Energy and Infrastructure (the
"MEF).
G. By Order-in-Council No. 1320/2010, approved and ordered September 15, 2010, all the
powers and duties of MEI relating to real property leased by the Government of Ontario
pursuant to the Ministry of Government Services Act, R.S.O. 1990, c.M.25, as amended,
were transferred and assigned to the Minister of Infrastructure (the "Minister") and the
Minister has delegated those powers and duties to the Ontario Realty Corporation.
L10767 - 90 Concession Street East Tillsonburg - LEAA - untracked - 12-01-2010
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H. The Tenant has now exercised its second right to extend the Original Term in accordance
with the terms of the Original Lease, as amended and extended, with a second extension
term commencing on January 1, 2011 and expiring on December 31, 2015 (the "Second
Extension Term").
I. The Original Lease, as amended and extended, provides that any extensions shall be upon
the same terms and conditions of the Original Lease, as amended and extended, except
for the amount of the Annual Rent, which shall be determined by mutual agreement.
J. The Landlord and the Tenant have agreed on the amount of the Annual Rent for the
Second Extension Term.
K. The Original Lease, the First Lease Extension and Amending Agreement and this Second
Lease Extension and Amending Agreement are hereinafter collectively referred to as the
"Lease", except as specifically set out herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
promises hereinafter set forth and other good valuable consideration, the receipt and sufficiency
of which is hereby acknowledged by the parties hereto, the parties hereto agree as follows:
1. CONFIRMATION OF RECITALS
The parties hereto confirm that the foregoing recitals are true in substance and in fact.
2. EXTENSION OF LEASE
The parties hereto agree that:
(a) The Original Lease is hereby extended for the Second Extension Term.
(b) The Second Extension Term shall commence on January 1, 2011 and expire on
December 31,2015.
3. RENT FOR THE SECOND EXTENSION TERM
The Annual Rent payable for the Second Extension Term shall be Two Hundred and
Sixty-Five Thousand, One Hundred and Seventy-Nine Dollars and Twenty-Four Cents
($265,179.24) per annum (based on a rate of Twenty Dollars and Ninety Cents ($20.90)
per square foot of the Rentable Area of the Premises per annum), payable in equal
monthly instalments of Twenty-Two Thousand and Ninety-Eight Dollars and Twenty-
Seven Cents ($22,098.27), each on the first day of each month during the Second
Extension Term, the first of such monthly instalments to be due and payable on January
1,2011.
4. AMENDMENT OF LEASE
The extension contemplated in Section 2 of this Second Lease Extension and Amending
Agreement is subject to all the covenants and conditions contained in the Original Lease, as
amended, renewed and extended from time to time, save and except that:
(a) The Tenant shall pay to the Landlord all applicable Sales Taxes assessed on the Rent
payable by the Tenant to the Landlord under this Lease. The Sales Taxes shall not be
deemed to be Additional Rent under this Lease, but may be recovered by the Landlord as
though they were Additional Rent.
(b) The Original Lease is amended as follows:
(i) Subsection (g) of the Summary is deleted in its entirety and replaced with the
following address for the Tenant for the purposes of delivering notices in
accordance with Section 6.17 of the Original Lease, as amended:
Ontario Realty Corporation
One Stone Road West, 4th Floor
Guelph, Ontario NIG 4Y2
Attention: Regional Director of Operations
Fax:(519)826-3330
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With a copy to:
Ontario Realty Corporation
1 Dundas Street West, Suite 2000
Toronto, Ontario M5G 2L5
Attention: Senior Solicitor, Leasing
Fax:(416)327-2760
And an additional copy to:
CB Richard Ellis
Global Corporate Services
18 King Street East, Suite 1100
Toronto, Ontario M5C 1C4
Attention: Director, Lease Administration - ORC
Fax:(416)775-3989
(ii) In the Definitions section of the Original Lease, the definitions of "Landlord's
Taxes" and "Sales Taxes" shall be deleted in its entirety and replaced with the
following:
"Landlord's Taxes'* means all taxes, rates, duties, levies and assessments
whatsoever whether municipal, provincial, federal or harmonized, charged upon
the Building and the Lands, 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. Landlord'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.
"Sales Taxes11 means all business transfer, multi-usage sales, sales, goods and
services, harmonized sales, use, consumption, value-added or other similar taxes
imposed by the Government of Canada and/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."
(iii) Section6.17, Notices, shall be deleted in its entirety and replaced with the
following:
"Section 6.17
Notices
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 (f) 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 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.l7, 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
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Lease or at law may not be validly delivered by way of electronic communication,
save as specifically provided in this Section 6.17.
Either party may at any time during the Term by giving notice to the other party
(in the manner provided above) change the address of the party giving such
notice, and thereafter the address as set out in Paragraph (f) or (g) of the
Summary, as the case may be, shall be deemed to be the address so changed."
(iv) A new section to the Original Lease shall be added as follows:
"Section 6.29
Conflict of Interest
The Landlord and any of its successors, administrators, 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 contractual obligations pursuant to the Lease, the Landlord's other
commitments, relationships or financial interests (a) could or could be seen to
exercise an improper influence over the objective, unbiased and impartial exercise
of its independent judgement, or (b) could or could be seen to compromise, impair
or be incompatible with the effective performance of its contractual obligations
pursuant to the Lease."
(v) A new section of the Original Lease shall be added as follows:
"Section 6,30
Cancellation
Either party shall have the right to cancel the Lease with such date of cancellation
to be effective at any time after the Commencement Date, by giving the other
party no less than Twelve (12) months' prior written notice of cancellation."
5. GENERAL
(a) The Landlord and the Tenant hereby mutually covenant and agree that during the
Second Extension Term they shall perform and observe all of the covenants,
provisos and obligations on their respective parts to be performed pursuant to the
terms of the Lease, as amended and extended hereby.
(b) The Landlord and the Tenant acknowledge that the Tenant has two (2) further
options to extend the term of the Original Lease beyond the expiry of this Second
Extension Term , as set out in Section 2(b) of the First Lease Extension and
Amending Agreement.
(c) The Lease shall be binding upon and enure to the benefit of the parties hereto and
their respective heirs, executors, administrators, successors and assigns, subject to
the express restrictions contained therein.
(d) Capitalized expressions used herein, unless separately defined herein, have the
same meaning as defined in the Original Lease, as amended and extended.
(e) The provisions of this Second Lease Extension and Amending Agreement shall be
interpreted and governed by the laws of the Province of Ontario.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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(f) The Landlord acknowledges and agrees that the commercial and financial
information in this Second Lease Extension and Amending Agreement is subject
to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c.F.31, as amended.
EXECUTED by each of the parties hereto under seal on the date written below.
SIGNED, SEALED AND Dated this 10 day of January 201_.
DELIVERED
THE CORPORATION OF THE TOWN
OF TILLSONBURG
Per: ^___;
Nan^: John LesSifTitle: Mayor
Authorized Signing Officer
Per: _______________
Name: Donna Hemeryck
Title: Clerk
Authorized Signing Officer
Dated this (V^ay of febr^r , 20 // .
ONTARIO REALTY CORPORATION,
ACTING AS AGENT ON BEHALF OF
HER MAJESTY THE QUEEN IN
RIGHT OF ONTARIO AS
REPRESENTED BY^ THE MINISTER
OF INFRASTRUCf URfe
Title: Regional Director o f Operations
Souptwest Region
Authorized Signing Officer