4103 Schedule A - Land Lease Agreement - Chesterman Farm EquipmentTHIS AGREEMENT made in quadruplicate this25day of April, 2017.
BETWEEN:
THE CORPORATION OF THE TOWN OF TILLSONBURG
hereinafter called the Lessor
and-
Chesterman Farm Equipment Inc
hereinafter called the Lessee
WHEREAS the Lessor is the owner of lands hereinafter described
a) Lot 1641, Plan 500, more particularly described as Part 1, Plan 41 R-8386;
b) Part of Lot 10, Concession 4 NTR, and more particularly described as Part
2, Plan 41 R-8386; and,
c) Consisting of approximately five acres of land at the Northwest corner of
the property with access along the east and north sides of Parts 1 and 2;
AND WHEREAS the Lessor is desirous of leasing the Lands to the Lessee and the
Lessee is desirous to lease the Lands for recreational track purposes subject to the
conditions hereinafter set forth in this agreement (the "Lease");
AND WHEREAS the Lessee is desirous of leasing the lands for a maximum of
eighteen (18) events annually;
NOW THEREFORE THIS INDENTURE WITNESSETH
1. PAYMENT
The Lessee covenants with the Lessor that the Lessee shall pay annual rent for the
Lands as set out below to the Lessor:
a) annual rent of $2,500 based on a rate of $500 per acre (the "Base Rent"); and
b) any additional costs for taxes, maintenance and insurance;
In addition to rent, the Lessee agrees to pay for the installation of a gate 81.14 8000 Pa@W-
to the satisfaction of the Town of Tillsonburg, in their sole and absolute discretion, for
the purposes of securing the property.
2. TERM
The term of the Lease shall be from May 1, 2017, or seven (7) days following zoning
approval, to December 31, 2019 (the "Lease Term'). The Lease Term may be extended
for additional one (1) year terms by the Lessor in its sole and absolute discretion. There
is no representation or warranty of the Lessor that it must, shall or will extend the Lease
Term.
3. CONDITION OF THE LANDS
The Lessee acknowledges and agrees that it is leasing the Lands in its current condition
as is" and the Lessee has conducted all inspections and performed its own due
diligence to determine the suitability of the Lands for the Lessee's use. The Lessee
acknowledges that the Lessor has made no representation or warranty and provides no
covenant, representation or warranty concerning soil conditions, the existence of any
items below the surface, and/or the environmental status of the Lands at any time. The
Lessee acknowledges having inspected the property prior to signing this Lease and has
relied upon its inspection regarding the suitability, condition, and state of repair of the
Property. The Lessee further acknowledges that it has conducted its own due diligence
as the size of the Lands and the size of the non -arable part of the Lands and not relied
upon any representation or warranty of the Lessor.
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4. USE
a) The Parties agree that the Lands will be used for the purpose of motorized
recreational vehicle races and events and shall include a track, viewing area,
and both vehicle and trailer parking;
b) The Lessee shall not do or permit to be done on the Lands anything which
may:
i. constitute a nuisance;
ii. cause damage to the Lands (other than forming of the lands for the
construction of the track and viewing area. The Lessee shall take care
so as to not mix topsoil and fill material on any part of the improved
lands);
iii. cause injury or annoyance to occupants of neighbouring premises;
iv. make void or voidable any insurance upon the Lands;
v. breach or cause of breach of any by-law, status, order or regulation of
any municipal, provincial or other competent authority relating to the
Lands; and,
vi. create any environmental hazard.
c) The Lessee shall not store, allowed to be stored or do anything that creates
hazardous waste or toxic material as defined by the Environmental Protection
Act or any related, amended or successor legislation. If any order is made by
any level of government, including all agencies, Crown corporations and
municipal bodies, or a Court of competent jurisdiction as a result of the
Lessee's, or its servants, director's, employee's, invitee's, customer's or
agent's, actions or inaction under this Article then the Lessee shall satisfy the
terms of such order including, but not limited to, paying all costs of the work
required and shall indemnify and save the Lessor harmless from any costs,
including legal costs, if the Lessor suffers any damages or pays any costs
associated with such order.
d) The Lessee shall obtain all necessary Planning Approvals with respect to the
proposed development of the property as required by the Lessor and all other
Planning Approval granting authority. All Planning Approvals are at the cost
and obligation of the Lessee and subject to all of the procedures and strict
application of any applicable law of the Planning Approval granting authority
and the Lessor makes no representation, assurance, warranty or guarantee
of the granting of same. The failure of the Lessee to obtain any and all of the
necessary Planning Approvals required for the Development shall cause this
Agreement and any obligation or right thereunder to come to an end. The
Lessee hereby acknowledges that the Lessor makes no representation,
assurance, warranty or guarantee as to any Planning Approval application
outcome and agrees that this Agreement shall not be raised as part of an
objection, challenge or appeal of any such Planning Approval decision before
the Ontario Municipal Board or any other tribunal or court of competent
jurisdiction. The Lessee further understands and agrees that the Lessor must
hold fair hearings for approvals under the Planning Act, R.S.O. 1990 c.P.15
and that the Lessor's Council shall not abrogate its authority and shall deal
with planning matters on their merits. This provision may be pleaded as a bar
to any such purported appeal, objection or challenge.
e) The Lessee acknowledges that the property is subject to the Town of
Tillsonburg's current Site Plan Control Bylaw and that a Site Plan Agreement
may be required. Further, the Lessee acknowledges that the Lessor has not
made any representation concerning the suitability of the property for any of
the Lessee's future plans nor has the Lessor provided any representation that
a site plan and/or building permit will or will not be granted for the subject
property.
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f) The Lessor agrees to provide reasonable assistance and co-operation to the
Lessee in obtaining necessary approvals for the development of the property
subject to the Lessor's compliance with all relevant building codes, bylaws,
land use controls, any other statutory requirements and payment of the fees
provided for in the Town's current fees bylaw. The obligations of the Lessor
set out in this paragraph shall not merge on closing and shall survive closing.
5. RIGHT TO SELL SUBJECT LANDS
The Lessee acknowledges that the Lessor shall have the right to sell any part or parts of
the Lands upon sixty (60) days notice, in writing, and upon expiry of such notice the
Lessee shall surrender that part (or all if required by the notice) of the Lands sold by the
Lessor and subject to the condition that if the Lessor sells and requires possession of
any or all of the subject the Base Rent shall be revised to take into account the
adjustment of that part of the Lands not surrendered (if any) throughout the balance of
the Lease Term. The Lessee shall not demand, claim or plead any damages, costs,
monies or compensation from the Lessor of any kind whatsoever and howsoever except
as specifically provided for in this paragraph 5. The Lessee waives any and all claims,
damages and/or losses for future income, profits or monies due to the surrender of
some or all of the Lands.
6. QUIET ENJOYMENT OF LANDS
IT IS further specifically agreed by and between the Parties hereto that the Lessor
covenants with the Lessee for quiet enjoyment of the Lands. Notwithstanding the
foregoing, the Lessor shall be permitted to access the Lands for any purpose(s), with
the costs of any minor damage being borne by the Lessee.
7. ASSIGNMENT
The Lessee acknowledges and agrees that it will not assign or sublet the Lands without
approval by the Lessor, which may be withheld by the Lessor at its sole and absolute
discretion. The Lessee further covenants that it will not conduct any business, trade,
enterprise or objects on the Lands other than to use the Lands for its own purposes
pursuant to the terms and conditions contained in this Lease.
8. INSURANCE
The Lessee shall obtain liability insurance of at least Five Million Dollars ($5,000,000),
covering injury to, or destruction of person or property, for which the Lessee may be
held liable. The Lessee must obtain Liability insurance on a form of coverage issued by
an insuring company acceptable to the Town, which names the Town as an additional
insured and contains a Cross Liability Clause. The Lessee shall provide the Town, by
the 1st day of May in each year during the term hereof, with an insurance certificate
showing the required insurance coverage.
9. INDEMNIFICATION
The Lessee covenants to keep the Lessor indemnified and save harmless the Lessor at
all times against any and all claims, suits, proceedings, actions and demands (including
but not limited to all legal costs) whatsoever and howsoever arising by any person,
entity or corporation whether in respect of damage, loss or death to person or property,
arising out of or occasioned by the maintenance, use or occupancy of the Lands or the
subletting or assignment of same or any part thereof. And the Lessee further covenants
to indemnify the Lessor with respect to any encumbrance on or damage to the Lands
occasioned by or arising from the act, default, or negligence of the Lessee, its officers,
agents, servants, employees, contractors, customers, invitees or licensees. The
Lessee agrees that the foregoing indemnity shall survive the termination of this Lease
notwithstanding any provisions of the Lease to the contrary.
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10. MAINTENANCE
The Lessee covenants to maintain all of the Lands pursuant to this Lease in good
condition at all times during the Lease Term, any extension of the Lease Term and any
overholding periods (if any). The Lessee further covenants to keep the Lands free from
refuse and shall not store any refuse, garbage, motor vehicles or any items on the
Lands that may be considered by the Lessor to be noxious, hazardous or refuse.
11. IMPROVEMENTS TO LANDS
The Lessee agrees that all improvements to the Lands are at the their sole cost and
subject to the approval of the Lessor in the Lessor's sole and absolute discretion.
Further, upon expiration of the Lease or termination, the Lessee agrees to restore the
lands to substantially the same condition as they were prior to their entry thereon at
their sole expense. The Lessor may, in their sole and absolute discretion, accept the
lands in an improved condition.
12. BANKRUPTCY
The Lessee acknowledges and agrees that if during the Lease Term any of the goods
or chattels of the Lessee shall at any time during the said term be seized or taken in
execution or in attachment by any creditor of the Lessee, or if the Lessee shall make
any assignment for the benefit of creditors, or becoming bankrupt or insolvent debtors,
the then current and next ensuing balance of Base Rent shall immediately become due
and payable and the said term shall, at the option of the Lessor, immediately become
forfeited and determined and in such case, the Lessor may re-enter and take
possession of the said lands as though the said lands was holding over after the
expiration of the said term.
13. TERMINATION FOR CONVENIENCE
It is further hereby agreed between the Parties hereto that this Lease may be
terminated by either party in such parties' sole and absolute discretion, including for
reason of an appeal, by providing to the other Party sixty (60) days written notice prior
to the termination date or the expiration of the lease term. In the case where the Lessor
terminates the Lease, the provisions of Paragraph 5 above shall be in effect. If the
Lessee terminates the lease it shall be responsible to pay a pro -rated Base Rent to the
date of termination, pay all items required by paragraph 4 of this Lease and the Lessor
shall not be responsible to reimburse the Lessee for the loss or damages for the
abandoned Lands.
14. TERMINATION OF THE CONTRACT FOR CAUSE
In the event of any material default of this Lease by the Lessee, the Lessor shall have
the right to provide written notice of such default and demand that the deficiency of
program be rectified within five (5) working days or such longer period as may be
agreed upon by the Lessor. If the said default is not rectified or steps are not take to
rectify the situation according to the agreed upon plan, the Lessor shall be entitled to
issue a written notice of termination for cause with no less than thirty (30) days notice
and all Base Rent and amounts owing pursuant to paragraph 4 of this Lease shall be
payable to the Lessor by the Lessee within thirty (30) days from termination.
15. DEFAULT
An Act of Default has occurred when:
a) the Lessee has failed to pay Rent for a period of 60 consecutive days from
the date that payment has been requested by the Lessor;
b) the Lessee has breached his covenants or failed to perform any of his
obligations under this Lease plus:
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i. the Lessor has given notice specifying the nature of the default and the
steps required to correct it; and,
i. the Lessee has failed to correct the default as required by the notice;
c) any insurance policy is canceled or not renewed by reason of the use or
occupation of the Lands, or by reason of non-payment of premiums; and
d) the Lands:
i. is used by any other person or persons, or for any other purpose than
as provided for in this Lease without the written consent of the Lessor.
When an Act of Default on the part of the Lessee has occurred:
a) the current year's rent together with the next years' rent shall become due
and payable immediately; and,
e) the Lessor shall have the right to terminate this Lease and to re-enter the
Lands and deal with them as he may choose.
If, because an Act of Default has occurred, the Lessor exercises his right to terminate
this Lease and re-enter the Lands prior to the end of the Term, the Lessee shall
nevertheless be liable for payment of Rent and all other amounts payable by the
Lessee in accordance with the provisions of the Lease until the Lessor has re -let the
Lands or otherwise dealt with the Lands in such manner that the cessation of payments
by the Lessee will not result in loss to the Lessor and the Lessee agrees to be liable to
the Lessor, until the end of the Term of this Lease for payment of any difference
between the amount of Rent hereby agreed to be paid for the Term hereby granted and
the Rent any new Lessee pays to the Lessor.
If when an Act of Default has occurred, the Lessor chooses not to terminate the Lease
and re-enter the Lands, the Lessor shall have the right to take any and all necessary
steps to rectify any or all Acts of Default of the Lessee and to charge the costs of such
rectification to the Lessee and to recover the costs as Rent.
If, when an Act of Default has occurred, the Lessor chooses to waive his right to
exercise the remedies available to him under this Lease or at law the waiver shall not
constitute condonation of the Act of Default, nor shall the waiver be pleaded as an
estoppel against the Lessor to prevent his exercising his remedies with respect to a
subsequent Act of Default. No covenant, term, or condition of this Lease shall be
deemed to have been waived by the Lessor unless the waiver is in writing and signed
by the Lessor.
16. NOTICE
Notice to either party shall be given at the following addresses:
If to the Lessor:
Development Commissioner
The Corporation of the Town of Tillsonburg
200 Broadway, Suite 204
Tillsonburg, ON N4G 5A7
Fax: 519-842-9431
If to the Lessee:
Chesterman Farm Equipment Inc
14493 Bayham Dr, RR 3
Tillsonburg, ON N4G 4G8
F: (519)842-9228
The Lessee shall not at any time register notice of or a copy of this Lease on title to the
Lands or any part thereof without consent of the Lessor.
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16. MISCELLANEOUS
The words importing the singular number only shall include the plural, and vice versa,
and words importing the masculine gender shall include the feminine gender, and words
importing persons shall include firms and corporations and vice versa.
This Lease, including any Schedule attached, shall constitute the entire agreement
between the Lessor and Lessee. There is no representation, warranty, collateral
agreement or condition which affects this agreement other than expressed herein.
In the event that any clause herein should be unenforceable or be declared invalid for
any reason whatsoever, such enforce ability or invalidity shall not affect the enforce
ability or validity of the remaining portions of the covenants and such unenforceable or
invalid portions shall be severable from the remainder of this Lease.
This Lease shall be construed and enforced in accordance with the laws of the Province
of Ontario. Any proceeding shall be brought at the City of Woodstock in the County of
Oxford.
The Lessee hereby agrees that they have had an opportunity to review the terms of this
Lease and seek independent legal advice.
Should any provision of this Lease require judicial interpretation or arbitration, it is
agreed that the court or arbitrator interpreting or construing the same shall not apply a
presumption that the terms thereof shall be more strictly construed against one party by
reason of the rule of construction that a document is to be construed more strictly
against the party who itself or through its agent prepared the same, it be agreed that
both parties have participated in the preparation hereof.
This Lease constitutes the entire agreement between the Parties hereto pertaining to
the subject matter hereof and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the parties and
there are no warranties, representations or other agreements between the Parties in
connection with the subject matter hereof, except as specifically set forth herein. No
supplement, modification, waiver or termination of this Lease shall be binding unless
executed in writing by the Parties.
The Lessee shall not call on or demand the Lessor to perform any repairs or
renovations prior to or after it obtains possession.
IT IS HEREBY declared and agreed that the expressions "Lessor" and "Lessee"
wherever used in this indenture shall, when the context allows, include, be binding on
and enure to the benefit of not only the Parties hereto, but also their respective
executors, administrators and assigns.
remainder of this page left intentionally blank --------------------
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IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals.
The Corp?pV6n of the Town
of Tillsopparg
MOLNAR, MAYOR
DONNA WILSON, CLERK
We have authority to bind The
Corporation of the Town of
Tillsonburg.
Chesterman Farm Equip nt
Inc.
1 C _
Davi'C>'iesterman
I have authority to bind the
Corporation.
APPENDIX A — SUBJECT PROPERTIES
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iii
APPENDIX A - SUBJECT PROPERTIES
ROKEBY ROAD PROPERTY - 5 ACRES OF LAND AT THE NORTHWEST CORNER
OF THE PROPERTY
11IV,
AL
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AIL 4m
LEGEND
1:40DO SCALE
WATER {ten)
SANffARY (mm)
27.6 K:V, HMRO
NA'i tAL GAS (mm)
SME AREA
Lessor's Initials
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Lessee's Initials I; i