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By-law No. 2002-058 CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO.2002-058 BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A LEASE AGREEMENT WITH JODY L.HESCH,RMT. WHEREAS the Council of the Municipality of Bayham deems it necessary and expedient to enter into a lease agreement with Jody L.Hesch,RMT THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS. 1. THAT the Mayor and Clerk be and are hereby authorized to execute an Agreement with Jody L. Hesch, RMT. 2. THAT the said Agreement is attached hereto as Appendix 'A' and forms a part of this by- law. 3. THAT this by-law shall come into full force and effect upon final passing. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED this 1st day of August 2002. (e?1 )4tird/ g4),(hu\A „se&f.4,221-7 MAYOR CLERK THIS LEASE made the day of , 2002 Pursuant to the Short Forms of Leases Act BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF BAYHAM Hereinafter referred to as the"MUNICIPALITY" -AND- JODY HESCH Hereinafter referred to as the "LESSEE" (1) IN CONSIDERATION of the rents reserved, and the convenants contained in this lease on the part of the LESSEE, the MUNICIPALITY hereby leases to the LESSEE, for the term and on the conditions hereinafter mentioned, parts of the premises composed of: PLAN 205 PT BLK HAZEN PT BLK MCNAUGHTON RP 1IR-7083 PART I Municipally known as 9299 Plank Road and identified as Roll No. 34-01-000- 004-34100 (2) TERM To hold the premises for a term of 6 (six)months commencing August 1St,2002. (3) OPTION TO RENEW At the mutual agreement of the Municipality and the Lessee, the term can be extended by a further six month period, on the same terms and conditions as this lease, save that there will be no further option to renew. (4) RENT The LESSEE shall pay to the Municipality a rent to paid monthly, in advance, on the first day of each month of the term in the amount of $200.00, and together with each rental payment shall pay all applicable Federal and Provincial Taxes. (5) USE OF PREMISES The LESSEE agrees that the premises are to be used solely for a Massage Therapy Practice under the name "Jody L. Hesch RMT", and for no other purpose. Upon commencement of the term, the proceed to open for business on the premises and thereafter through the term, continuously operate its business on the premises in a reputable manner and to be open for business; to conduct its business upon the agreed upon portion of the premises, in a quality manner, to install and maintain at all times trade fixtures and furniture adequate and appropriate for the business of the LESSEE thereof and to obtain the prior written approval of the MUNICIPALITY to such fixtures and furniture before installing them. (6) RESERVATIONS The Municipality reserves the right, for itself and all members of the public, to use the lands and buildings for access to and uses as deemed appropriate at its sole discretion. The Lessee hereby acknowledges and consents that the Municipality may, at its sole discretion, lease the whole or parts of the Premises to other parties or operations, or require the Lessee to vacate all or any portions of the Premises to provide for any such other uses. The Municipality reserves the right to determine the location and amount of the Premises to be available to the Lessee for their operations. (7) The LESSEE covenants with the Municipality as follows: (a) TO PAY RENT AND OTHER CHARGES — to pay rent including minimum rent and additional rent without any deduction abatement or set- off whatever. (b) TAXES PERSONAL TO THE LESSEE — to pay as and when they become due, all taxes, rates, charges, licence fees, duties, and assessments whatever whether municipal, provincial or federal or otherwise now or hereafter charged upon, levied or improved in respect of any personal property, fixtures, building improvements, business or income of the LESSEE or any activity carried in, upon or in connection with the Premises; (c) TO PAY ADDITIONAL RENT comprising an amount equal to the realty or other property taxes or any tax which replaces such taxes that accrues or would have accrued on the Premises as assessed, such additional rent shall be payable in equal monthly installments in advance. (d) TO REPAIR — to repair reasonable wear and tear, damage by fire, lightning, and tempest only excepted, and to permit the landlord to enter and view the state of repair and to repair according to notice in writing, reasonable wear and tear, damage by fire, lightning, and tempest only excepted, and to leave the premises in good repair, reasonable wear and tear and damage by fire, lightning, and tempest only excepted; (e) OWNERSHIP OF GOODS ON PREMISES —that all goods and chattels as described in Schedule `B" of the LESSEE on the Premises are and will be its own property and that it will not execute any chattel mortgage, lien, charge or bill of sale on any of its plant, merchandise, equipment and furniture without first obtaining permission from the Municipality in writing to do so; (f) WASTE DISPOSAL —to retain all waste generated from the operation in a closed waste container in an area designated by the Municipality and to cause the containers to be emptied at the LESSEE'S expense with sufficient regularity to avoid odours and vermin; (g) PROHIBITED USES — the LESSEE will not operate, cause to be operated, use or permit to be used, or suffer the use of the leased premises or any part thereof, for any other purpose whatsoever than a Massage Therapy Clinic; (h) NUISANCE—not to commit, suffer, permit or carry on anything on (in or about) the Premises that shall be deemed or result in a nuisance or which shall be offensive or any annoyance to the Municipality or its residents, or an of them; (i) INSURANCE/LIABILITY — the LESSEE will indemnify and save harmless the Municipality from and against all actions, suits, claims, and demands whatsoever of all response whomever which may be brought against or make upon the Municipality, and from all loss, expenses, costs, charges, damages, indemnities and/or liability which may be sustained, paid or incurred by the Municipality, by reason of, arising out of, or in consequence of this agreement; The LESSEE agrees to provide at its cost general liability insurance including products liability for the sum of$3,000,000 insuring the LESEE in respect of any claim or claims for damages, injury or death by reason of, arising out of, or in consequent of, this agreement, and the operation of the LESSEE, an shall include the Municipality as an additional insured therein. The LESSEE also agrees to provide, at its cost, Tenant Legal Liability Insurance for the sum of $1,000,000. The LESSEE shall keep the said policy in force during the term of this agreement and at least one month prior to the date of expiry of the insurance policy, shall provide the Municipality with proof that the policy has been renewed and the premium paid. If the said premium is not paid by the date aforesaid, the Municipality shall be entitled to terminate this agreement forthwith. The LESSEE herein shall also maintain Fire Insurance including burglary or theft, for any stock, equipment or tenant's improvements of the LESSEE upon the premises, the amount of which shall be sufficient for full replacement of loss. (j) INDEMNITIES — to indemnify the Municipality against all liabilities, claims, damage or expenses arising out of any act or neglect of the LESSEE, its servants, employees, agents, invitees or licensees in and about the Premises, or arising our of any breach, violation or non- performance by them of any provision of this lease, including liability for injuries or damage to the persons or property of the LESSEE's servants, employees, agents, invitees or licensees. (k) TO YIELD UP IN REPAIR --- to yield up the Premises in good repair, reasonable wear and tear and damage by fire, lighting and tempest only excepted. (1) OBSERVANCE OF REGULATIONS — to observe the provision and requirements of all statures, orders-in-council, by-laws, rules and regulations, municipal or parliamentary, relating to the premises and the LESSEE's operations thereon; (m) REPAIRS TO HEATING AND AIR-CONDITIONING to pay to the Municipality on demand the cost of repairing damage to heating or air- conditioning on the Premises caused by the negligence or other fault of the LESSEE, its employees, customers, invitees, licensees, agents or contractors. (n) CLEANING — to carry out good workmanlike manner to the satisfaction of the Municipality,all the following cleaning: i) Washing of interior and exterior of any glass, doors and windows within the leased premises; ii) The cleaning of rugs and carpets; iii) The cleaning of walls, ceilings, and fixtures within the leased areas; (o) RENOVATIONS/REDECORATING — All renovations and redecorating shall be subject to prior written approval of the Municipality. The Municipality shall be entitled to enter and view the state of repair and the LESSEE shall repair in accordance with notice in writing, damage by fire, lightning, and tempest only excepted. (p) PROVISION OF MATERIALS AND SUPPLIES — to provide at the LESSEE's expense all electric light bulbs, all garbage container or bags, all toilet paper and paper towels within the leased premises associated with the Lessees operations. (q) TELEPHONE — to provide all telephone services and cable television hook-ups within the leased premises. (r) ACCIDENTS AND DEFECTS — to give prompt written notice to the Municipality of any accident or defect in the sprinkler system, water pipes, heating apparatus, telephone, electrical, security system or any other therein. (s) SECURITY — to adhere rigidly to the Municipal Security and/or Safety Regulations. (t) SIGNS, ADVERTISING, AND PROMOTIONAL MATERIAL — the LESSEE further covenants that no sign or notice of advertising of any nature shall be inscribed,painted, or affixed by the LESSEE on any part of the outside or inside of the premises whatever unless such manner, colour, size and style and in such place upon or in said premises as shall be first approved by the Municipality and furthermore, the LESSEE, on ceasing to ceasing to be LESSEE of the demised premises, will cause any sign as aforesaid to be removed or obliterated at its own expense and in a workmanlike manner to he satisfaction of the Municipality. (u) SUBORDINATION OF LEASE — to execute promptly upon request of the Municipality any instruments, agreements, certificates or postponements which may from time to time be required to give effect to the subordination of this lease to an mortgage or deed of trust or other conveyance. (v) ASSIGNMENT — not to assign or sublet or part with possession of, or grant a license in the whole or any part of the premises without written permission of the Municipality, which permission by be without for any reason to the satisfaction of the Municipality. (w) STATE OF EXISTING PREMISES —the LESSEE will accept the leased premises in the stare in which they are found as of the date of commencement. (x) WORKERS COMPENSATION — The LESSEE shall at all times pay or cause to be paid any assessment or compensation required to be paid pursuant to the Workers Compensation Act in respect of its employees and upon failure to do so, the Municipality may pay such assessment and deduct or collect such expenses from the LESSEE. (y) REGISTRATION OF LEASE — The LESSEE will not register this lease, nor notice of it, against the title to the premises. (8) MUNICIPALITY'S COVENANTS The Municipality convenants with the LESSEE as follows: (a) QUIET ENJOYMENT— subject to Clause 6, for the quiet enjoyment save and except right of ingress and egress for itself and members of the public. (b) BEATING AND AIR CONDITIONING — during the term of this lease, whenever heat or cooling air conditioning is reasonably required, except during the making of repairs to heat or air condition the Premises so as to keep them at a reasonable temperature; but if the Municipality defaults in so doing, it shall not be liable to the LESSEE or to any person whom the LESSEE may permit to enter the Premises for any damage including indirect or consequential damage or damages for personal discomfort or illness arising out of or resulting form default. The Municipality will, on determining that repairs are required to the heating or cooling air- conditioning equipment, precede to complete such repairs with due diligence; (9) PROVISOS Provided always and it is agreed between the parties as follows: (a) VACANCY OF PREMISES —If the premises become vacant or shall not be used for the Lessee's purpose for a period of ten days, or shall be used by any person, persons, firm, or corporation without the Municipality's written consent for any purpose except that for which they are leased, this lease shall, if the Municipality notifies the Lessee writing, forthwith determine, and the installments of rent accruing due during the next one month shall become immediately payable to the Municipality and the Municipality may re-enter and take possession of the premises. (b) DISTRESS — The Lessee waives the benefit of any present or future statute taking away or limiting the Municipality's right of distress and agrees with the Lessee that all goods and chattels from time to time on the premises shall be subject to distress for rent. Further, that upon any claim being made for such exemption by the Lessee or any distress being made by the Municipality, this covenant and agreement may be pleaded as an estoppel against the Lessee in any action brought to test the right to the levying upon such goods as are named as exempt in any statute, the Lessee waiving as it hereby does all and every benefit that could or might have accrued to it under any such stature by for this covenant. (c) REMOVAL OF FIXTURES — The Lessee acknowledges that all alterations, additions, improvement, and fixtures upon the Premises, and which are in any manner attached to the floors, walls, or ceilings, and any linoleum or floor covering which may be fixed to the Premises, shall remain of the Premises and are the property of the Municipality. (d) WITHHOLDING OF CONSENT — The refusal by the Municipality to consent to the assignment, underletting, or parting with possession or disposing of the premises because any proposed assignee or sublessee is, in the Municipality's opinion, unable or unwilling to covenant and perform all the terms and conditions of this lease, or because the Lessee is in default in the performance of any of its covenants or obligations, shall not be deemed to be an unreasonable withholding of the Municipality's consent. (e) HOLDING OVER- If the Lessee remains in possession of the Premises after the expiration of the term of this lease, it shall be deemed to be the Lessee from month to month, and to be subject tot he provisions of this lease in so far as they apply. (f) RE-ENTRY (i) The Municipality or its agents shall have the right to enter the Premises at reasonable times to show them to prospective purchaser, encumbrancers, lessees, or assignees. (ii) In case of non-payment of the minimum rent or additional rent or other charges in this lease for fifteen days after they become due, or non- performance of the covenants in this lease, this lease shall, at the Municipality's option cease and the tem hereby created be at an end, and the Municipality may re-enter and repossess the Premises as though the Lessee were holding over after the expiration of the tern and may take whatever other action for breach of covenants as is available. (g) INSOLVANCY — If the Lessee becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or takes the benefit of an Act that may be in force for bankrupt or insolvent debtors, or if the term hereby granted or the goods and chattels of the Lessee at any time seized or taken in execution or attachment by a creditor of the Lessee or if there is a sale of the business carried on on the premises to which the Bulk Sales Act R.S.O. 1999 applies and the Municipality has not consented thereto in writing, the minimum rent together with the minimum rent for the three months thereafter and the additional rent and any all other charges shall immediately become due and payable, and the term shall at the option of the Municipality become void, and the Municipality may at any time thereafter re-enter and repossess the premises or any part of them. (h) SOLICITORS FEES —If it becomes necessary for the Municipality to employ a solicitor or to commence an action to collect rent, or to enforce performance of the condition, covenant or provisos in this lease, then as long as the Municipality is successful in such action it shall be entitled to collect from the Lessee all reasonable solicitors fees on a solicitor-client basis as if they wee rent in arrears under this lease. (i) ENTRY TO VIEW CONDITIONS—The Municipality or its agents shall have the right to enter the premises at all reasonable times to view their state of maintenance, repair, condition, and use, to make such decorations, repairs, alterations, improvements, or additions as it in its sole discretion, deems advisable and the Lessee will repair according to notice in writing. The Municipality shall be allowed to take into the Premises all material that may be required therefore, without such action constituting an eviction of the lessee in whole or in part or a breach of the covenant for quiet enjoyment in this lease. The rent shall not abate while those decoration, repairs, alterations, improvement, or additions are being made. (j) LIABILITY FOR DAMAGE TO PROPERTY AND PERSONS — The Municipality shall not be liable for damage to property entrusted to it nor for the loss of any property by theft or otherwise. All property kept or stored in the premises shall be at the sole risk of the Lessee. The Municipality shall not be liable for any injury or damage to persons or property in or on the Premises resulting from any cause whatever. (k) DEMOLITION OR SALE — In the event of the Municipality at any time during the term or renewal thereof is required to takedown the buildings and structures on the lands and to clear the same for a public purpose to be determined by the Council of the Municipality, or wishes to sell the premises or a substantial part thereof on the open market, the Lessee shall surrender this lease and all the remainder of the term if any, and will thereupon vacate the premises and yield up to the Municipality peaceable possession thereof. (1) INSPECTION OF PREMISES — The Lessee has examined the Premises before taking possession and found them to be in good order and satisfactory condition for the purposes intended. The Lessee agrees that there is no promise, representation or undertaking binding upon the Municipality with respect to any alteration, remodeling, redecorating, or installation of equipment or fixtures in the premises. (m)TERMINATION—This Agreement shall be terminated upon the happening of one or more of the following events: (1) The expiration of the term herein unless there is a renewal of this agreement and then upon expiration of such renewal (2) Either party becoming insolvent or making a general assignment for the benefit of creditors (n) NON WAIVER OF DEFAULT — The waiver or acquiescence of the Municipality in any default by the Lessee, under any paragraph of this lease shall not be deemed to be waiver of that paragraph or any subsequent or other default under this lease. IN WITNESS WHEREOF the parties have hereunto set their hands and seals and the Corporation has affixed its corporate seal under the hands of its proper officers duly authorized that behalf. SIGNED: On Behalf of the Municipality of Bayham Mayor Clerk Jody Hesch