2010-095 Lease Agreement - TRY RecyclingTHE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
BY -LAW NO. 2010 -095
A By -law to Authorize the Execution of a Lease Agreement
Between
The Corporation of the Township of Oro - Medonte
And
TRY Recycling (Barrie) Inc.
WHEREAS Section 8 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended
provides the powers of a municipality under this or any other Act shall be interpreted
broadly so as to confer broad authority on the municipality to enable the municipality to
govern its affairs as it considers appropriate and to enhance the municipality's ability to
respond to municipal issues;
AND WHEREAS Section 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended
provides that a municipality has the capacity, rights, powers and privileges of a natural
person for the purpose of exercising its authority under this or any other Act;
AND WHEREAS the MunicipalAct, 2001, S.O. 2001, c.25, Section 224, as amended,
states that it is the role of Council to ensure that administrative practices and
procedures are in place to implement the decisions of Council;
AND WHEREAS the Council of The Corporation of the Township of Oro - Medonte is
desirous of entering into a Lease Agreement with TRY Recycling (Barrie) Inc. for lands
described as Part of the West 'h of Lot 11, Concession 8, geographic Township of Oro,
now in the Township of Oro - Medonte, County of Simcoe, known municipally as 1525
Line 7 North;
NOW THEREFORE the Council of the Township of Oro - Medonte hereby enacts as
follows:
1. That the Mayor and Clerk be authorized to execute the Indenture of Lease
between The Corporation of the Township of Oro - Medonte and TRY Recycling
(Barrie) Inc., attached hereto as Schedule "A" and forming part of this By -Law.
2. This by -law shall take effect on the final passing thereof.
BY -LAW READ A FIRST, SECOND AND THIRD TIME, AND PASSED THIS 9 T " DAY
OF JUNE, 2010.
THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
2VrW /
De ty Cferk, Janette Teeter
Schedule "A" to By -law No. 2010 -095
1
THIS INDENTURE OF LEASE made as of the C � day of June, 2010.
IN PURSUANCE OF THE COMMERCIAL TENANCIES ACT
BETWEEN:
THE CORPORATION OF THE TOWNSHIP
OF ORO- MEDONTE
Hereinafter called the "LESSOR"
OF THE FIRST PART
- and -
TRY RECYCLING (BARRIE) INC.
a Company incorporated under the laws
of the Province of Ontario, having its
head office in the Township of Middlesex
Centre, in the County of Middlesex
Hereinafter called the "LESSEE"
OF THE SECOND PART
R 1RCIT A T .0
WHEREAS the Lessor is the registered owner of certain lands and premises described as Part of
the West 1/2 of Lot 11, Concession 8, Geographic Township of Oro now in the municipality of
Oro - Medonte, County of Simcoe, known municipally as 1525 Line 7 North, and more
particularly legally described in Instrument Number 197007 being the whole of P.I.N. 58537-
0012 (LT) (the "Lands ".)
AND WHEREAS the Lessor and the Lessee have agreed to certain terms by which the Lessor
shall lease to the Lessee part of the Lands to allow the Lessee to operate a licenced recycling
facility permitting the storage and processing of recyclable materials;
AND WHEREAS the parties have agreed that the part of the Lands to be demised by this Lease
and which are hereby leased to the Lessee for the specific purposes hereinafter detailed, comprise
twenty -one (21) acres more or less and are outlined in red on the sketch attached hereto as
Schedule "A" and which part of the Lands for the purposes of the Lease shall be hereinafter
referred to as the leased lands ( "Leased Lands ".)
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PURPOSE
1. NOW WITNESSETH IN CONSIDERATION of the rents, covenants and agreements
hereinafter reserved and contained on the part of the Lessee to be paid, observed and
performed, the Lessor does hereby grant, demise and lease unto the Lessee the Leased
Lands, together with access to and from the Leased Lands from an existing entrance on
Line 7 North for the purpose of operating a licensed recycling facility and for no other
purpose.
TERM
2. (a) The Lessor hereby leases the Leased Lands to the Lessee, during an initial term of
five (5) years, to be computed from the commencement date (the
"Commencement Date ") as hereinafter defined, to be fully completed and ended
on the last day of the fifth (5th) year following the Commencement Date ( "Initial
Term ") subject to the options to extend the Initial Term detailed in paragraph 3
hereof.
(b) The "Commencement Date" shall be the date which is the first day of the month
ninety (90) days after the last date by which all of the conditions imposed for the
benefit of the Lessor and the Lessee in paragraph 33 hereof have been fulfilled
and/or waived and specifically following the issuance to the Lessee of a
Certificate of Approval, by the Ministry of the Environment, permitting the
Lessee as the operator to construct and operate a recycling facility on the Leased
Lands.
(c) Upon the Commencement Date being determined following the waiver of all
conditions, the Lessor and Lessee agree to exchange a letter to confirm the actual
Commencement Date. The first lease year ( "lease year ") shall commence on the
Commencement Date and each subsequent lease year shall commence on
successive anniversary dates of the Commencement Date.
OPTIONS TO EXTEND TERM
3. (a) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the Initial Term, the Lessee shall have the irrevocable and non - cancellable option
to extend the Initial Term of this Lease for one (1) renewal term of five (5) years
(the "First Renewal Term ") with such First Renewal Term to commence on the
1st day following the expiration date of the Initial Term. The Lessee or its
nominee Try Recycling Inc., if it wishes to exercise this option, shall give the
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Lessor not less than six (6) months notice in writing of its intention to exercise the
option. All the terms and conditions of this Lease shall pertain to the First
Renewal Term except the tonnage rent (as hereinafter defined) payable during the
First Renewal Term shall be as detailed in paragraph 4(b) hereof.
(b) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the First Renewal Term, the Lessee shall have the irrevocable and non - cancellable
option to extend the Term of this Lease for a second renewal term of five (5)
years (the "Second Renewal Term ") with such Second Renewal Term to
commence on the 1st day following the expiration date of the First Renewal
Term. The Lessee or its nominee Try Recycling Inc., if it wishes to exercise this
option, shall give the Lessor not less than six (6) months notice in writing of its
intention to exercise the option. All the terms and conditions of this Lease shall
pertain to the Second Renewal Term except the tonnage rent payable during the
Second Renewal Term shall be as detailed in paragraph 4(c) hereof.
(c) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the Second Renewal Term, the Lessee shall have the irrevocable and non-
cancellable option to extend the Term of this Lease for a third renewal term of
five (5) years (the "Third Renewal Term ") with such Third Renewal Term to
commence on the I st day following the expiration date of the Second Renewal
Term. The Lessee or its nominee Try Recycling Inc., if it wishes to exercise this
option, shall give the Lessor not less than six (6) months notice in writing of its
intention to exercise the option. All the terms and conditions of this Lease shall
pertain to the Third Renewal Term except the tonnage rent payable during the
Third Renewal Term shall be as detailed in paragraph 4(d) hereof.
(d) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the Third Renewal Term, the Lessee shall have the irrevocable and non-
cancellable option to extend the Term of this Lease for a fourth renewal term of
five (5) years (the "Fourth Renewal Term ") with such Fourth Renewal Term to
commence on the 1st day following the expiration date of the Third Renewal
Term. The Lessee or its nominee Try Recycling Inc., if it wishes to exercise this
option, shall give the Lessor not less than six (6) months notice in writing of its
intention to exercise the option. All the terms and conditions of this Lease shall
pertain to the Fourth Renewal Term except the tonnage rent payable during the
Fourth Renewal Term shall be as detailed in paragraph 4(e) hereof.
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(e) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the Fourth Renewal Term, the Lessee shall have the irrevocable and non -
cancellable option to extend the Term of this Lease for a fifth renewal term of five
(5) years (the "Fifth Renewal Term ") with such Fifth Renewal Term to commence
on the 1 st day following the expiration date of the Fourth Renewal Term. The
Lessee or its nominee Try Recycling Inc., if it wishes to exercise this option, shall
give the Lessor not less than six (6) months notice in writing of its intention to
exercise the option. All the terms and conditions of this Lease shall pertain to the
Fifth Renewal Term except the tonnage rent payable during the Fifth Renewal
Term shall be as detailed in paragraph 4(f) hereof.
(f) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the Fifth Renewal Term, the Lessee may request to extend the Term of this Lease
for a sixth renewal term of five (5) years (the "Sixth Renewal Term ") with such
Sixth Renewal Term to commence on the 1st day following the expiration date of
the Fifth Renewal Term. The Lessee or its nominee Try Recycling Inc., if it
wishes to exercise this option, shall give the Lessor not less than six (6) months
notice in writing of its intention to exercise the option. All the terms and
conditions of this Lease shall pertain to the Sixth Renewal Term except the
tonnage rent payable during the Sixth Renewal Term shall be as negotiated
between the Lessor and Lessee by good faith negotiations which negotiations
must be finalized prior to the last three months of the Fifth Renewal Term failing
which the tonnage rent for the Sixth Renewal Term shall be settled by arbitration,
in accordance with the provisions of paragraph 20 hereof.
(g) Provided the Lessee pays all tonnage rent due hereunder together with any
additional rent and observes and performs its obligations hereunder and is not
materially in default of any of its covenants herein contained at the expiration of
the Sixth Renewal Term, the Lessee may request the option to extend the Term of
this Lease for a seventh and final renewal term of five (5) years (the "Seventh
Renewal Term ") with such Seventh Renewal Term to commence on the 1st day
following the expiration date of the Sixth Renewal Term. The Lessee or its
nominee Try Recycling Inc., if it wishes to exercise this option, shall give the
Lessor not less than six (6) months notice in writing of its intention to exercise the
option. All the terms and conditions of this Lease shall pertain to the Seventh
Renewal Term except the tonnage rent payable during the Seventh Renewal Term
shall be as negotiated between the Lessor and Lessee by good faith negotiations
which negotiations must be finalized prior to the last three (3) months of the Sixth
Renewal Term failing which the tonnage rent for the Seventh Renewal Term shall
be settled by arbitration in accordance with the provisions of paragraph 20 hereof,
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and except that there shall be no further option to extend the Term of this Lease
beyond the Seventh Renewal Term.
(h) Notwithstanding the provisions of sub - paragraphs (f) and (g) hereof, whereby
tonnage rent for the Sixth Renewal Term and the Seventh Renewal Term is to be
fixed by good faith negotiations, failing which it will be fixed by arbitration in
accordance with the provisions of paragraph 20 hereof, under no circumstances
shall the tonnage rent payable during the Sixth Renewal Term and the Seventh
Renewal Term be less than the tonnage rent payable during the Fifth Renewal
Term as detailed in paragraph 4(f) hereof.
(i) For the purposes of this Lease and for purpose of simplicity, but except as
specifically otherwise required for the purposes of interpretation of this Lease, the
First Renewal Term and/or the Second Renewal Term and/or the Third Renewal
Term and/or the Fourth Renewal Term and/or the Fifth Renewal Term and /or the
Sixth Renewal Term and/or the Seventh Renewal Term may be sometimes
referred to individually and /or collectively, as applicable, as the "Renewal Term"
or "Renewal Terms" and the Initial Term and any or all of the Renewal Terms
may be referred to as the "Term ".
(j) If the Lessee elects to exercise any one or more of said options to extend, the
Term of this Lease shall be automatically extended for the Renewal Term covered
by the option or options so exercised without execution of any extension or
renewal lease.
(k) If Lessee or its nominee Try Recycling Inc. shall fail to give notice in writing
exercising any one or more of its options to extend within the time stipulated in
paragraph 3 hereof, the Lease is deemed to be terminated at the end of that term.
(1) Notwithstanding any provisions contained in subsections 3(a)-(k), the terms of
this Lease may be negotiated, at any time, upon mutual consent of the parties.
RENT
4. Yielding and paying therefore as tonnage rent ( "tonnage rent ") to the Lessor sums to be
paid on each and every tonne of recycled materials ( "recycled materials ") removed from
the Leased Lands as follows:
(a) During the Initial Term commencing on the Commencement Date hereinbefore
referred to, the sum of One Dollar ($1.00) per tonne.
(b) During the First Renewal Term, the sum of One Dollar and Twenty Five Cents
($1.25) per tonne.
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(c) During the Second Renewal Term, the sum of One Dollar and Fifty Cents ($1.50)
per tonne.
(d) During the Third Renewal Term, the sum of One Dollar and Seventy Five Cents
($1.75) per tonne.
(e) During the Fourth Renewal Term the sum of Two Dollars ($2.00) per tonne.
(f) During the Fifth Renewal Term, the sum of Two Dollars and Twenty Five Cents
($2.25) per tonne.
(g) Payments of tonnage rent required to be paid by the Lessee to the Lessor in
accordance with the provisions of sub - paragraphs (a), (b), (c), (d), (e) and (f)
hereof and sub - paragraphs 3(f) and (g) shall be paid on a quarterly basis with the
tonnage rent during each quarter (three month period) to be paid by the last day of
the next month following the end of each quarter.
(h) (i) If in any lease year during the Initial Term the tonnage rent paid to be
based on the actual quantities of recycled materials removed from the
Leased Lands does not exceed Twenty Four Thousand Dollars
($24,000.00), the Lessee shall pay any deficiency required so the Lessor
shall receive a minimum annual tonnage rent of Twenty Four Thousand
Dollars ($24,000.00) during each lease year of the Initial Term. In this
event, such required payment (of any deficiency) will be made to the
Lessor within thirty (30) days of the end of each lease year of the Initial
Term concurrent with the delivery to the Lessor of the annual statement
required to be delivered to the Lessor confirming the volumes of recycled
materials removed from the Leased Lands in each lease year as detailed in
paragraph 7(d) of the within Lease.
(ii) The minimum annual tonnage rent for the various Renewal Terms shall be
as follows:
First Renewal Term
$28,000.00
Second Renewal Term
$32,000.00
Third Renewal Term
$36,000.00
Fourth Renewal Term
$40,000.00
Fifth Renewal Term
$44,000.00
Sixth Renewal Term
$4800.00
Seventh Renewal Term
$52,000.00
(i) In the event during any lease year the total amount paid for tonnage rent in any
lease year by the Lessee to the Lessor exceeds the payments that would be
required on a strictly tonnage basis pursuant to the foregoing subparagraphs (a),
(b), (c), (d), (e) and (f), and sub - paragraphs 3(f) and (g) there shall be no
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requirement for quarterly tonnage payments until such time as all cumulative
(surplus) tonnage credits ( "tonnage credits" as hereinafter defined) at the
applicable tonnage rate have been used up.
(j) (i) By way of an example, based on the applicable tonnage charge during the
Initial Term, in the event that during the first (1st) year of the Initial Term
the Lessee has removed Ten Thousand (10,000) tonnes of recycled
materials from the Leased Lands, but has paid the Lessor the required
minimum tonnage rent of Twenty Four Thousand ($24,000.00) Dollars
pursuant to this paragraph 4, the Lessee shall be entitled to a credit
( "tonnage credit ") of Fourteen Thousand ($14,000.00) Dollars to be
carried forward into the next (2nd) lease year such that there shall be no
requirement for the Lessee to pay the Lessor the applicable tonnage rent
during the succeeding three month periods until any and all tonnage
credits has or have been used up. Notwithstanding the within provision
for the accrual of tonnage credits to the Lessee from lease year to lease
year, the Lessee shall continue to be responsible to pay to the Lessor on an
annual basis not less than the minimum annual tonnage rent of Twenty
Four Thousand ($24,000.00) Dollars pursuant to subparagraph (h) hereof.
(ii) To continue with this example, assume the Lessee sold Six Thousand
(6,000) tonnes of recycled materials in the first three (3) month period of
the second lease year, Eight Thousand (8,000) tonnes of recycled materials
in the second three month period, Ten Thousand (10,000) tonnes of
recycled materials in the third three month period and Twelve Thousand
(12,000) tonnes of recycled materials in the final three month period of the
second lease year. At the end of this first three month period, the Lessee
would not be required to pay any tonnage rent, effectively utilizing Six
Thousand ($6,000.00) Dollars of the tonnage credit referred to in
subparagraph (i) above. At the end of the second three month period, the
Lessee would be entitled to utilize the balance of the tonnage credit of
Eight Thousand ($8,000.00) Dollars and would not be required to pay any
tonnage rent. At the end of the third three month period, the Lessee would
pay the Lessor Ten Thousand ($10,000.00) Dollars as tonnage rent. At the
end of the final three month period, the Lessee would pay to the Lessor
Twelve Thousand ($12,000.00) Dollars as tonnage rent. At the end of the
second lease year, because the Lessee would have paid total tonnage rent
(on a quarterly basis) of Twenty Two Thousand ($22,000.00) Dollars, the
Lessee would be required to pay an additional Two Thousand ($2,000.00)
Dollars to the Lessor to fulfil its obligations to pay the minimum annual
tonnage rent for each lease year. The Two Thousand ($2,000.00) Dollar
tonnage credit would then carry forward into the third (3rd) lease year.
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(k) Notwithstanding any accumulated tonnage credits, the Lessee shall pay to the
Lessor the minimum annual tonnage amounts as set out in subsections h(i) and
(ii).
ADDITIONAL RENT
5. The Lessee shall pay directly (or reimburse the Lessor, as applicable) during each lease
year or part thereof, as applicable, as additional rent ( "additional rent "), the following:
GST / HST
(a) an amount equal to any and all goods and services taxes, harmonized sales taxes,
value -added taxes or any other taxes imposed on the Lessor with respect to
tonnage rent, additional rent or any other amounts payable by the Lessee to the
Lessor under this Lease, whether characterized as a goods and services tax,
harmonized sales tax, value -added tax or otherwise (collectively the "Sales
Taxes "), it being the intention of the parties that the Lessor shall thereby be fully
reimbursed by the Lessee with respect to any and all Sales Taxes payable by the
Lessor. The amount of such Sales Taxes so payable by the Lessee shall be
calculated by the Lessor in accordance with the applicable legislation (Federal,
Provincial, Municipal or otherwise), and shall be paid to the Lessor at the same
time as the amounts to which such Sales Taxes apply are payable to the Lessor
under the terms of this Lease or upon demand at such other time or times as the
Lessor from time -to -time determines. Notwithstanding any other provision in this
Lease to the contrary, the amount payable by the Lessee under this paragraph
shall be deemed not to be additional rent, but the Lessor shall have all of the same
remedies for the rights of recovery of such amount as it has for recovery of
tonnage rent and additional rent under this Lease.
LICENCE FEES
(b) all licence fees pursuant to the provisions of any other legislation, Federal,
Provincial, Municipal or Authority regulating recycling facilities and operations.
ADDITIONAL LICENCE FEES
(c) any licence fees required by any Municipal, Provincial or Federal Government or
Authority, including but not limited to Provincial licensing fees, which is or are
enacted or come(s) into force, or shall be payable after the Commencement Date
of the Lease relating to or a prerequisite of the Lessor's recycling facilities and/or
the Lessee's recycling operations.
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CERTIFICATE OF APPROVAL
(d) all amounts payable directly to the Province of Ontario, for licence fees or similar
fees payable in connection with the obtaining and maintaining of a Certificate of
Approval from the Ministry of the Environment for recycling facility on the
Leased Lands.
(e) Lessee shall provide Lessor with proof of such payments of additional rent not
less than annually if requested.
IMPROVEMENTS AND LICENCING
6. (a) The Lessor covenants and agrees to allow the Lessee to install and maintain truck
weigh scales and related improvements including but not limited to a scale house,
office building, etc. on the Leased Lands during the Term, and to allow the Lessee
to remove the same on the termination or expiration of the Term.
(b) The Lessee at its own expense may build, construct and will thereafter maintain
all necessary additional gates, fences, berms as required by the Certificate of
Approval; will plant trees and shrubs if required by the Certificate of Approval or
permits and in all respects otherwise comply with local laws, Municipal laws,
Provincial laws, and other By -laws, statutes, regulations and requirements during
the Term. Lessor acknowledges its ongoing responsibility to maintain the fences,
etc., on the licenced areas of the lands for aggregate extraction.
(c) (i) The Lessee shall be responsible to make all necessary applications in the
joint names of the Lessor and Lessee if necessary, to obtain and maintain
and amend the Certificate of Approval permitting the recycling operation
with any amendments to be subject to the Lessor's reasonable approval
and with all such applications to be made at the sole and total cost of the
Lessee.
(ii) The Lessee covenants and agrees to provide a copy of the Certificate of
Approval and any amendments from time to time to the Lessor during the
currency of the within Lease, if requested.
(iii) The Lessee shall comply with all of the requirements of the Certificate of
Approval and shall be solely responsible for any and all amounts
including, but not limited to, fines, penalties, and charges that may be
imposed by a Court or any administrative body as a result of non-
compliance with such requirements, or in violation of any legislation,
directive, guideline, policy or order of the Ministry of the Environment.
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(iv) The Lessee shall comply with any and all site plan requirements of the
Lessor, any other Planning Act By -laws or requirements or any other
municipal by -laws and shall ensure that it makes application for and
obtains any building permits that may be required, prior to the
construction of any improvements on the Lands.
7. (a) The Lessee shall keep and maintain all records relating to its recycling on the
Leased Lands as required by all Municipal, Provincial or Federal Government
Authorities and to make such records available for inspection by the Lessor at
reasonable times on reasonable notice at its offices on the Leased Lands.
(b) All materials received for recycling and all recycled materials removed by or for
the Lessee shall be weighed by truck scales. Copies of all weigh tickets shall be
kept available as part of the records required to be kept by Lessee under the terms
of the Certificate of Approval. Lessee shall provide to Lessor, if requested, the
tare weights of all vehicles used by Lessee's contract haulers who remove
recycled materials from the Leased Lands.
(c) Lessee shall furnish to Lessor by the thirtieth (30th) day following the end of each
quarter or three (3) month period, complete details including quantities by weight,
of all recycled materials removed during each quarter or three (3) month period.
(d) Lessee shall also furnish to Lessor annually by the 30th day of the month
following the end of each lease year an annual complete reconciliation of the
quantities of recycled materials removed and tonnage rent payments made during
each lease year and if applicable a calculation of the tonnage credits as of the date
of each statement.
(e) The Lessee shall ensure that during the Term of this lease and any renewals
thereof its disposition of non - recyclable materials does not result in any net
increase in tonnage of waste material being deposited in any landfill owned or
operated by the Lessor and/or the County of Simcoe. The Lessee and Lessor
agree that prior to the Commencement Date a protocol for reporting and
calculation of tonnage and net increase thereof will be developed and agreed upon
through a Memorandum of Understanding.
LESSEE'S INDEMNITY
8. (a) The Lessor shall not be liable or responsible in any way for injury or death to any
person or persons or for any loss or damage to any property at any time in, on or
about the Leased Lands or any property owned by or being the responsibility of
the Lessee or any of its servants, agents, customers, contractors or persons for
whom Lessee is in law responsible elsewhere in, on or about the Leased Lands or
the Lands, no matter how the same shall be caused unless any such death, injury,
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loss or damage is caused or contributed to by the negligence of the Lessor, its
servants, agents, employees, contractors or persons for whom the Lessor is in law
responsible. Without limiting the generality of the foregoing, Lessor shall not be
liable or responsible for any injury, death, loss or damage to any persons or
property caused or contributed to by any of the following: fire, explosion, steam,
water, rain, snow, gas, or by leakage from any pipes, or any other source
whatsoever; and Lessor shall not be liable or responsible in any way for any
injury, death, loss or damage to any person or property caused by any occupants
of the Lands or by any occupants of any adjoining property or by the public or by
the construction of any public, quasi public, or private works or utilities. All
property kept or stored in or about the Leased Lands by Lessee or by any of its
servants, agents, customers, contractors or persons for whom Lessee is in law
responsible elsewhere on the Leased Lands shall be at the sole risk to the Lessee
and Lessee shall indemnify the Lessor and save it harmless in respect to the same.
Without in any way limiting of affecting the generality or interpretation of the
foregoing provisions of this paragraph, but subject thereto, it is agreed that Lessor
shall in no event be liable for any business interruption, disturbance or loss
howsoever caused and whether direct, indirect or consequential damages suffered
by Lessee except if caused by the Lessor's negligence or the negligence of those
for whom at law the Lessor is responsible. The Lessor shall not be responsible for
any costs, including costs for inspection, testing, investigation, orders or
remediation, penalties, fines, damages from any pollution or contamination of the
Leased Lands, or nearby lands polluted or contaminated as a result of the
migration or movement of a pollutant or contaminant from the Leased Lands, to
the extent such pollution or contamination was caused or contributed to by the
acts or omissions of the Lessee, to such nearby lands whether in, on or under such
nearby lands.
(b) The Lessee shall indemnify the Lessor and its servants, agents, employees,
contractors, officers, directors and all persons for whom the Lessor is in law
responsible and all other tenants and occupants of the Lands and shall hold them
and each of them harmless from and against any and all liabilities, claims,
damages, losses, fines, penalties, and expenses including all legal fees and
disbursements, costs of inspection or investigation, due to, arising from or to the
extent contributed by:
(i) any breach by the Lessee of any of the provisions of this Lease;
any act or omission of any person on the Leased Lands or any use of
occupancy of or any structures or equipment on the Leased Lands;
(iii) any act or omission of the Lessee or any of its servants, agents, employees,
invitees, licensees, subtenants, concessionaires, contractors or persons for
whom the Lessee is in law responsible on the Leased Lands including any
and all liabilities, claims, damages, losses and expenses arising as a result
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of any products, hazardous substances and contaminants brought onto the
Leased Lands or the Lands by any other person whether or not related to
the Lessee but who have been permitted by the Lessee to access the
Leased Lands or Lands on any account or for any reason; and
(iv) any damage, destruction or need or repair to any part of the Lands caused
by any act or omission of the Lessee or its servants, agents, employees,
customers, contractors or persons for whom the Lessee is in law
responsible, notwithstanding any other provisions of this Lease or arising
out of the breach of any of the provisions of this Lease; and
(v) any pollution or contamination of the Leased Lands, or nearby lands
polluted or contaminated as a result of the migration or movement of a
pollutant or contaminant from the Leased Lands, caused or contributed to
by the acts or omissions of the Lessee, to such nearby lands whether in, on
or under such nearby lands.
Provided that the Lessee shall not be required to indemnify with respect to any
claim or demand arising from the negligent act or omission of the Lessor or its
officers, directors, servants or agents.
(c) The Lessee covenants and agrees that it will during the Term insure its operations
against public liability and property damage claims with a standard commercial
liability insurance policy insuring Lessee's operations on the Leased Lands with
an insurance company licensed to conduct business in the Province of Ontario
with limits of not less than FIVE MILLION ($5,000,000.00) DOLLARS per
occurrence. The Lessee will provide a Certificate of Insurance to the Lessor not
less than annually if requested to confirm such insurance coverage is in place
throughout the Term. All such policies of insurance must show the interest of the
Lessor as an additional insured and all such policy or policies of insurance may
not be cancelled unless not less than thirty (30) days notice of such cancellation is
given to the Lessor. The Lessee may be permitted to self insure its equipment,
leasehold improvements and inventories.
DEFAULT AND CANCELLATION
9. (a) If the Lessee shall be in default of any of the covenants, terms, conditions and
obligations herein contained at any time during the Term and if such default, other
than payment of tonnage and additional rent herein provided, shall continue for a
period of thirty (30) days after notice of such default has been given to the Lessee
in accordance with the terms hereof, then, subject to the provisions of force
majeure, at the option of the Lessor without further notice to the Lessee and
without prejudice to and in addition to all other rights and remedies to which
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Lessor is entitled, the Lessor may without further notice of any kind or any form
of legal process whatsoever forthwith re -enter upon the Leased Lands in the name
of the whole and repossess and enjoy the same as to its former state. The Lessor
shall have the same rights in the event the Lessee is in default in payment of
tonnage rent or additional rent for ten (10) days after notice of default has been
given to the Lessee. The Lessor may enter the Leased Lands as agent of Lessee
and as such agent to relet the Leased Lands for whatever term (which may be for
a term extending beyond the Term) and whatever other terms and conditions as
Lessor in its sole discretion may determine and to receive the rent therefor and, as
the agent to Lessee, to take possession of any fixtures, equipment, stock,
inventories or other property thereof and upon giving written notice to Lessee, to
store the same at the expense and risk of Lessee or to sell or otherwise dispose of
the same at public or private sale without further notice, and to make such
alterations to the Leased Lands in order to facilitate their reletting as Lessor shall
reasonably determine, and to apply the net proceeds of sale of any fixtures,
equipment, stock, inventories or other property or from the reletting of the Leased
Lands, less all reasonable expenses incurred by Lessor in taking the Leased
Lands, on account of the tonnage rent and additional rent due and to become due
under this Lease and Lessee shall be liable to Lessor for any deficiency and for all
such reasonable expenses incurred by Lessor as aforesaid. No such entry or
taking possession of or performing alterations to or reletting the Leased Lands by
the Lessor shall be construed as an election on the Lessor's part to terminate this
Lease unless a written notice of such intention or termination is given by the
Lessor to the Lessee; and
(b) The Lessor may also remedy or attempt to remedy any default of Lessee in
performing any repairs, work or other covenants of Lessee hereunder and, in so
doing, to make any payments due or claimed to be due by Lessee to third parties
and to enter upon the Leased Lands without any liability to Lessee therefor or for
any damages resulting thereby and without constituting a re -entry of the Leased
Lands or termination of this Lease, and without being in breach of any of Lessor's
covenants hereunder and without thereby being deemed to infringe upon any of
Lessee's rights pursuant thereto, and, in such case, Lessee shall pay to Lessor
forthwith upon demand all amounts paid by Lessor to third parties in respect of
such default and all reasonable costs of Lessor in remedying or attempting to
remedy any such default.
FIRST RIGHT OF REFUSAL
10. (a) If at any time after the end of the Second Renewal Term the Lessor receives or
accepts a bona fide offer to purchase or sell the Leased Lands and/or the Lands
which it would be prepared to accept, the Lessor shall forthwith notify the Lessee
of the same in writing providing the Lessee with a true and correct copy of such
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bona fide offer and all information in its possession about the third party
purchaser and the Lessee shall have the first right to purchase the said Lands
and/or Leased Lands as applicable upon the same terms and conditions as
contained in such bona fide offer (or on terms at least as favourable), which right
shall be exercised by the Lessee within forty -five (45) days of receiving such
written notification from the Lessor by submitting a written offer to purchase the
Lands or the Leased Lands as applicable to the Lessor with a certified cheque for
at least ten (10 %) percent of the purchase price and which offer shall contain the
same terms and conditions as the first bona fide offer so received by the Lessor or
terms at least as favourable.
(b) If the Lessee does not exercise the first right of refusal within such forty -five (45)
day period and the Leased Lands and/or the Lands are sold to a bona fide third
party purchaser, this Lease shall remain in full force and effect and unaltered and
specifically the first right of refusal provisions shall continue in full force and
effect and shall continue to be binding on all third party purchasers /owners
throughout the Term.
(c) Any sale of the Leased Lands shall require strict compliance with the Planning
Act (Ontario) or any successor legislation.
(d) The Lessor covenants and agrees with the Lessee that it will not advertise the
Lands or Leased Lands for sale and will not accept any offer to purchase,
agreement of purchase and sale or make any offer to sell or enter into any similar
arrangement to sell the Lands and/or the Leased Lands until the end of the Second
Renewal Term.
REHABILITATION
11. (a) The Lessee shall be totally responsible at its sole cost for the rehabilitation of the
Leased Lands in accordance with the terms of the Certificate of Approval
(whether in the name of the Lessor or otherwise) as it may be amended. The
Lessee covenants and agrees with the Lessor that upon the expiration or
termination of the within Lease, the Lessee will undertake any required
environmental study or assessment of the Leased Lands and if necessary or if
required, undertake, at its sole expense and cost, any remedial work to remove
any contamination that is strictly attributable to the possession, use and
occupation of the Leased Lands by the Lessee and to restore the Leased Lands, if
necessary, to the acceptable Province of Ontario (or replacement regulatory
authority) levels or guidelines, based on the commercial use for the Leased Lands
permitted by the zoning by -laws of the Township of Oro - Medonte or any
replacement municipality.
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(b) The Lessee covenants and agrees to remove all stockpiles of recycled materials
from the Leased Lands prior to the expiration of the Initial Term or the last
Renewal Term as applicable.
ASSIGNMENT, SUBLETTING AND
CHANGE OF CONTROL
12. (a) Lessee shall not assign this Lease in whole or in part and shall not sublet or part
with or share possession of all or any part of the Leased Lands and shall not grant
any licenses or other rights to others (such term "others" to include but not be
limited to processing contractors except Try Recycling Inc. of London, Ontario,
which shall be the designated operator) to use any portion of the Leased Lands
(all of the foregoing being hereinafter referred to as a "Transfer "; a party making a
Transfer is referred to as a "Transferor" and a party taking a Transfer is referred to
as a "Transferee ") without the prior written consent of Lessor in each instance,
which consent shall not be unreasonably withheld. The provisions of this
paragraph 12 shall apply to any Transfer which might occur by inheritance or
operation of law. The restrictions on Transfer as aforesaid, shall apply to any
assigning, subletting, mortgaging, charging or otherwise transferring of the
Leased Lands or this Lease for the purpose of securing any obligation of Lessee.
(b) Notwithstanding and without in any way affecting or limiting the interpretation of
the foregoing, it is agreed that it shall be reasonable for Lessor to withhold its
consent to a Transfer unless it is shown to Lessor's satisfaction that:
(i) the proposed Transferee has a good business and personal and /or corporate
reputation and has financial strength at least sufficient to satisfy all of the
obligations of the Lessee hereunder;
(ii) Lessee is not materially in default under this Lease.
(c) All requests to Lessor for consent to any Transfer shall be made to Lessor in
writing together with a copy of the agreement pursuant to which the proposed
Transfer will be made, accompanied by such information in writing as Lessor
might reasonably require respecting the proposed Transferee including, its name,
business addresses, telephone numbers, business experience, credit information
and rating, financial position, banking/personal or corporate references and
business proposed to be conducted by the Transferee on the Leased Lands.
Lessee shall promptly pay all reasonable costs incurred by Lessor in considering
and processing the request for consent including reasonable legal costs and all
costs of completing any documentation to implement any Transfer, which shall be
prepared by Lessor or its solicitor if required by Lessor.
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(d) In the event of a Transfer, Lessor shall have the right to require the Transferee to
enter into an agreement with Lessor in writing to be bound by all of Lessee's
obligations under this Lease in respect of the Leased Lands, as applicable;
(e) Notwithstanding the foregoing, a transfer of voting shares of the Lessee between
members of the William A. Graham family shall not be deemed to be a Transfer
for the purposes of this paragraph 12, or an assignment of this Lease to a separate
corporation controlled by a member or members of the Graham family shall not
be deemed to be a Transfer for the purposes of this Lease.
MATERIAL CHANGE IN LEGISLATION
13. If at the time of each renewal of this agreement and/or at the time of any subletting,
assignment or change of control, the Lessor, in its sole discretion, acting reasonably,
determines that there has been a material change in legislation (federal or provincial)
such that any term of this Lease must be re- negotiated and/or amended so as to ensure
compliance with such legislation, the Lessee agrees to participate, acting reasonably, in
such renegotiation and/or amendment. For the purposes of this paragraph, legislation
includes, but is not limited to, legislation, regulation, guideline, directive, order or any
other governmental pronouncement.
WAIVER
14. No waiver of any provision of this Lease is binding unless it is in writing and signed by
both parties to this Lease, except that any provision which does not give rights or benefits
to particular parties may be waived in writing, signed only by the party which has rights
under, or holds the benefit of, the provision being waived if that party promptly sends a
copy of the executed waiver to the other party. No failure to exercise and no delay in
exercising, any right or remedy under this Lease will be deemed to be a waiver of that
right or remedy. No waiver of any breach of any provision of this Lease will be deemed
to be a waiver of any subsequent breach of that provision or of any similar provision.
15. The Lessor and the Lessee mutually covenant and agree with each other that waiver by
either party of any breach of any covenant, condition or stipulation contained herein shall
be a waiver of that specific breach only and shall not be construed as a waiver of any
subsequent breach of the same or any other covenant, condition or stipulation of this
Lease, nor affect or prejudice any of either party's rights or remedies hereunder.
MODIFICATION
16. The Lessor and the Lessee agree that the within Lease represents the complete agreement
reached between the Lessor and the Lessee and there are no collateral representations,
l
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warranties, guarantees or other agreements which are not herein contained. Any
modification of this Lease made by the parties not reduced to writing and signed by each
of the Lessor and Lessee shall not be binding on the parties hereto notwithstanding that
partial performance or otherwise of such modification may occur. Any modification to
this Lease shall only be effective and binding on the parties hereto if in writing and
signed by all parties hereto or their successors and permitted assigns.
REGISTRATION
17. The Lessor covenants and agrees with the Lessee that the Lessee shall be entitled to
register a Notice of the within Lease against the title of the Lands and /or Leased Lands.
SUBORDINATION
18. This Lease shall be subject to any and all charge /mortgage(s) upon the Lands or the
Leased Lands on the condition that the chargee /mortgagee(s) thereof agree(s) in writing
with the Lessee that, regardless of default under such charge /mortgage(s) and so long as
the tonnage rent and additional rent herein provided for is paid to the party lawfully
entitled thereto and the Lessee observes and performs all other covenants herein
contained, the Lessee's possession of the Leased Lands shall not be disturbed and this
Lease shall remain effective as against such chargee /mortgagee(s).
NOTICE
19. Wherever in this Agreement it is required or permitted that a notice be given by
(a) the Lessee to the Lessor, such notice shall be given in writing and forwarded by
registered mail addressed to the Lessor as follows:
THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
148 Line 7S, Box 100, Oro, ON LOL 2X0
Attention: Township Clerk
(or to such other address as the Lessor may advise the Lessee in writing)
(b) the Lessor to the Lessee such notice shall be given in writing and forwarded by
registered mail addressed to the Lessee as follows:
TRY RECYCLING (BARRIE) INC.
9952 Glendon Drive, Komoka, ON NOL 1R0
Attention: Mr. William A. Graham, President
(or to such other address as the Lessee may advise the Lessor in writing)
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Any notice given by either the Lessor to the Lessee or by the Lessee to the Lessor by
registered mail shall be deemed to have been received on the fourth (4th) business day
next following the date of its Post Office registration. In the event of postal interruption
or any other time, any such notice may be hand delivered to an Officer of either the
Lessee or the Lessor, in which case the notice shall be deemed to have been delivered
upon receipt by such Officer. Notice may also be given by facsimile transmission to the
last known facsimile telephone number of the Lessor or the Lessee. Any notice by
facsimile transmission received before 2:00 p.m. on any business day shall be deemed to
have been received that day and any facsimile transmission received after 2:00 p.m. on
any business day or on any other day shall be deemed to have been received at 10:00 a.m.
on the next business day.
DISPUTE RESOLUTION
20. (a) In the event of any disagreement or dispute between the Lessor and the Lessee,
either party may provide written notice to the other requesting a meeting to
discuss such disagreement or dispute. Such meeting shall take place between the
President and CEO of the Lessee and the Mayor and CAO of the Lessor within
three months of the date of the written notice and the above named representatives
of the parties shall meet in person in any location and as many times as may be
mutually agreeable to attempt to resolve the disagreement or dispute, using
reasonable and best efforts.
(b) In the event that the meeting(s) described in subsection 20(a) do not lead to a
resolution between the Lessor and the Lessee within three months of the first
meeting, or do not take place at all within three months of the first meeting, the
matter in disagreement or dispute shall be submitted to arbitration. Either the
Lessor or the Lessee may notify the other in writing of its intention to submit any
disagreement or dispute to arbitration. Upon receipt of a notice to arbitrate, the
parties shall appoint one mutually agreed upon arbitrator within seven (7) days.
In the event that there is no agreement on a mutual arbitrator within ten (10) days,
the parties shall apply to a Judge of the (Ontario) Superior Court of Justice at
Barrie, Ontario who shall appoint an arbitrator or who may act as an arbitrator if
he sees fit. If either party neglects or refuses to name its arbitrator within ten (10)
days of being properly requested to do so, or if either party refuses to proceed
with the arbitration after due and proper request, the sole arbitrator named shall
proceed to settle the dispute alone, and his decision shall be final and binding on
both parties;
(c) The arbitrator appointed pursuant to this paragraph shall forthwith proceed to
arbitrate the disagreement or dispute between the Lessor and the Lessee and shall
within ninety (90) days, or so soon thereafter as may be practicable, render his or
her decision in writing;
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(d) The Lessor and the Lessee hereby covenant and agree to abide by the decision
rendered by the arbitrator;
(e) The cost of any arbitration shall be shared equally between the Lessor and Lessee,
except as the arbitrator may otherwise determine;
(f) If an arbitrator appointed pursuant to this paragraph dies or resigns, or fails to act
and such failure continues for a period of seven (7) days after notice thereof has
been given by either party or the another arbitrator, a new arbitrator shall be
appointed within a further period of ten (10) in accordance with the provisions of
paragraph 20(b);
(g) In all other respects, the parties, the arbitration process and the arbitrator(s) shall
be governed be the provisions of the Arbitrations Act of Ontario R.S.O. 1990 Ch.
A. 24, as amended or superseded.
INTERPRETATION
21. When the context so requires or permits, the singular number will be read as if the plural
were expressed and the masculine gender or neuter as if the masculine, feminine, or
neuter, as the case may be, were expressed. If any of the provisions, covenants or
agreements of this Lease are held to be illegal or not binding on either party, it is agreed
that such provisions, covenant or agreement shall be severable from the terms, provisions
and covenants of this Lease and the remaining terms, provisions and covenants shall be
valid and binding upon the parties hereto.
OVERHOLDING
22. If, at the expiration or termination of the Term the Lessee should hold over with the
consent of the Lessor, express or implied, the tenancy of the Lessee shall be a tenancy at
will only on a month -to -month basis, and otherwise shall be subject to all of the other
terms and conditions of this Lease.
TIME
23. Time shall be of the essence of this Agreement.
QUIET ENJOYMENT
24. The Lessee, provided it observes and performs all covenants and obligations hereunder,
shall have quiet enjoyment of the Leased Lands.
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SUPPLY OF UTILITIES
25. The Lessee covenants to arrange for the separately metered supply of and to pay all hydro
charges and all other utility charges in connection with the maintenance and operation of
the recycling facility on the Leased Lands.
FORCE MAJEURE
26. Notwithstanding anything contrary contained in this Lease, if either party hereto is bona
fide delayed or hindered in or prevented from the performance of any term, covenant or
act required hereunder by reason of strikes, labour troubles, inability to procure materials
or services, 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, then performance of such term, covenant or act
(save the payment of tonnage rent and any additional rent on a quarterly (or other) basis
as detailed in paragraph 4 hereof) is excused for the period of the delay and the party so
delayed shall be entitled to perform such term, covenant or act within the appropriate
time period after the expiration of the period of such delay.
LESSOR MAY PERFORM COVENANTS AND
OBLIGATIONS OF THE LESSEE
27. If the Lessee fails to perform any covenant or obligation of the Lessee under this Lease,
the Lessor may, but shall not be obliged to, at any time and from time -to -time perform
such covenant or obligation or cause the same to be performed and for such purpose may
do such things as may be requisite, including without limiting the generality of the
foregoing, enter upon the Leased Lands for such purpose. All reasonable expenses
incurred and expenditures made by or on behalf of the Lessor under this paragraph shall
be paid by the Lessee within ten (10) days of demand therefor by the Lessor.
CONSTRUCTION LIENS
28. (a) The Lessee shall promptly pay all charges incurred by or on behalf of the Lessee
for any work, materials or services which may give rise to a construction or other
lien. If any such lien is registered against the Leased Lands, the Lessee shall,
subject to subparagraph (b) hereof, cause the lien to be discharged forthwith and if
the Lessee fails to do so, in addition to any other right or remedy of the Lessor,
the Lessor may, but shall not be obligated to, discharge such lien by paying the
amount claimed to be due or by other proceedings. The amount so paid by the
Lessor and all reasonable costs and expenses, including reasonable legal fees on a
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solicitor and client basis incurred by the Lessor in procuring the lien discharge,
shall be due and payable forthwith by the Lessee to the Lessor as additional rent;
(b) The Lessee shall have the right to contest by appropriate legal proceedings the
validity of any lien; and if the payment of such claim for lien may legally be held
in abeyance without subjecting the Lessor or Lessee to any liability of whatsoever
nature, the Lessee may postpone such payment until the final determination of
any such proceedings, provided that all such proceedings shall be prosecuted with
all due diligence and dispatch; provided further that in such event the Lessee
agrees to indemnify and save the Lessor harmless from any liability resulting
from such lien and shall execute such other documents as the Lessor may
reasonably require in connection therewith.
LESSOR'S RIGHT OF ENTRY
29. (a) The Lessor or any employee, agent or contractor of the Lessor shall have the
right, after giving reasonable notice to the Lessee during business hours of the
Lessee or at any time during an emergency, and so long as there is no unnecessary
interference with the Lessee's business, to enter the Leased Lands to examine the
state of maintenance and repair thereof of the equipment, fixtures, leasehold
improvements therein, the inventories of unprocessed recyclable materials in
stockpile, and the inventories of recycled materials in stockpile;
(b) No such entry shall in any way affect the obligations or covenants of the Lessee
under this Lease and there shall be no abatement in the tonnage rent or additional
rent under this Lease on account thereof. The Lessor shall indemnify the Lessee
for any physical damage caused by the Lessor or those for whom the Lessor is at
law responsible during any such entry, but shall be under no further or other
liability in respect thereof.
SURRENDER OF LEASED LANDS
30. (a) At the expiration or sooner termination of the Term the Lessee shall remove the
truck scale, office trailer(s) and similar equipment and shall peaceably surrender
and yield up vacant possession of the Leased Lands in as good condition and
repair as the Lessee is required to maintain the Leased Lands throughout the Term
and return the Leased Lands generally to their condition at the Commencement
Date of this Lease in accordance with the provisions of paragraph 11 hereof,
except the Lessee shall not be required to remove any berms or landscaping
constructed as a condition of the Certificate of Approval. The Lessee's obligation
to observe and perform the covenant contained in this paragraph shall survive the
expiration or sooner termination of this Lease.
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(b) During the three (3) month period prior to the expiration of the Term the Lessee
shall not maintain more than ten thousand (10,000) tonnes combined of recycled
or recyclable materials in stockpile on the Leased Lands, subject always to the
terms of the Certificate of Approval;
(c) Notwithstanding the foregoing subparagraph, the Lessee shall upon the expiration
or sooner termination of the Term remove all stockpiles of recycled or recyclable
materials, all leasehold improvements and equipment unless the Lessor elects to
allow the Lessee to leave any leasehold improvements or equipment, in which
case the Lessee may elect to leave such equipment or leasehold improvements and
title shall pass to the Lessor.
(d) The Lessor acknowledges to and with the Lessee that it has been agreed that all
financial assurances required under the terms of the Certificate of Approval as a
condition of the Lessee maintaining the Certificate of Approval is to be provided
by the Lessee and that upon the expiration of the within Lease provided that the
Lessee has complied with its obligations contained in this paragraph 30 hereof,
the Lessor irrevocably agrees to direct the Ministry of Environment, or the
applicable successor Ministry to return the financial assurance to the Lessee. The
Lessor in turn acknowledges that in the event it wishes to maintain the Certificate
of Approval following the expiration of the within Lease, that it may be required
to provide replacement financial assurance to the Ministry of the Environment or
the applicable Ministry and covenants and agrees in this event it will do so if such
requirement is a condition precedent to the return and/or release of the financial
assurance to the Lessee.
INTEREST AND COSTS
31. All tonnage rent and additional rent in arrears and all other sums paid by the Lessor
which should have been paid by the Lessee shall bear interest from the date payment was
due, or made, or expense incurred at a rate equal to the prime commercial lending rate of
the Lessor's bank plus two percent (2 %) per annum ( "designated rate of interest ") until
received by the Lessor. The Lessor shall have no obligation to pay interest to the Lessee
on the amount of any tonnage credits owing from time to time.
CANCELLATION
32. Notwithstanding any of the provisions herein, the Lessee shall be entitled to cancel the
within Lease and remove its leasehold improvements and equipment and its stockpiles of
materials and recycled materials if, through no fault of the Lessee, the Leased Lands are
no longer zoned to permit a recycling facility and /or the Lessor and /or the Lessee are
unable to continue to maintain the required Certificate of Approval. In this event, the
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Lessee shall be entitled to serve notice of its intent to terminate the within Lease
concurrent with the effective date of such rezoning or the date of expiration or
cancellation of the Certificate of Approval. The Lessee shall forthwith proceed to
l remove all recyclable materials and recycled materials from the Leased Lands and will
l continue to pay tonnage rent on all recycled materials removed from the Leased Lands
and additional rent in accordance with the terms of this Lease.
CONDITIONS
j 33. The parties hereto agree to work diligently and cooperatively towards satisfaction of the
items listed in section 33(a) and (b). The inability of either party to fulfil the conditions
l listed in 33(a) and 33(b) will permit either party the right to terminate the Lease on the
1 terms outlined in 33(c) and 33(g). This Lease is conditional upon the Lessee and the
Lessor each being able to obtain certain approvals and/or fulfil certain conditions:
(a) The Lessor shall be responsible at its sole cost and expense to fulfil or be in a
position to fulfil the following conditions:
(i) To take all necessary steps under The Municipal Act, 2001 to comply with
any requirements for the long term leasing of the Leased Lands;
(ii) To obtain the necessary Zoning By -law Amendment and/or Official Plan
Amendment and any Site Plan approval to permit the Leased Lands to be
used for a recycling facility in accordance with the intent of the within
I I Lease and the Lessee's reasonable operational requirements as to tonnage,
etc.;
C
- (iii) To amend the extraction licence for the Lands to obtain approval from the
Ministry of Natural Resources to permit the recycling facility to be
constructed and operated on the Leased Lands;
(iv) To comply in all respects with the Planning Act;
L1 (v) To provide the necessary survey or reference plan to create a registerable
legal description of the Leased Lands for the purposes of this Lease, the
Notice of Lease referred to in paragraph 17 hereof and for all other
L purposes.
(-] (vi) To be in a position to issue a business licence, if necessary, to the Lessee.
! (vii) To be responsible for all costs connected with any improvements required
to the exterior of the Lands or the Leased Lands as required by the
Municipality and/or the County and /or the Province such as a road
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widening, the construction of any turning lane, road paving, intersection
improvements, land dedications, etc.;
(viii) To provide an unencumbered title to the Lands and the Leased Lands; and
(ix) To provide written confirmation that the Lessee is entitled to receive a
preferential tipping rate or fee from the County of Simcoe for dumping
non - recyclable construction and demolition materials during the Term of
this Lease at the County landfill site(s) at least equivalent to the rate
charged by the County of Simcoe to the Lessor.
(b) The Lessee shall be responsible at its sole cost and expense to fulfil or be satisfied
with the following conditions:
(i) To obtain a Certificate of Approval in the name of the Lessor with the
} Lessee designated as the operator to permit the Leased Lands to be
1 constructed and operated as a recycling facility in accordance with the
terms of the within Lease.
(ii) To be completely satisfied, acting reasonably, with the terms and
�. conditions of the Certificate of Approval as issued by the Ministry of
} Environment.
_ (iii) To be completely satisfied, acting reasonably, with the terms and
conditions of any Development Agreement and /or any Site Plan Control
Agreement required by the Municipality and /or the County of Simcoe and
to enter into any such agreements as may be required.
iv To be completely satisfied actin reasonably, ( ) p Y � g Y, with its own soils
investigation of the Leased Lands. To allow the Lessee to undertake its
soils investigation the Lessor agrees to provide access to the Leased Lands
to allow the Lessee to conduct its soils investigation on the condition that
(� following such investigation the Lessee shall restore the Leased Lands to
their prior condition. The Lessee shall provide the Lessor with copies of
any soils reports, environmental assessment reports, etc. as provided to it
(` by its professional consultants.
(c) The Lessor or the Lessee may, at its sole discretion, terminate the Lease at any
time subsequent to the statutory public meeting held by the County of Simcoe to
consider the Official Plan Amendment and prior to the expiration of fifteen (15)
days subsequent to the first Ontario Municipal Board Pre - Hearing in respect of
appeal of the Zoning By -law Amendment and/or Official Plan Amendment
_; related to the Leased Lands. In the event either party terminates the Lease during
H
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25
this time frame, each parry is responsible for its own costs only and has no claim
against the other.
(d) The Lessor on execution hereof hereby irrevocably appoints the Lessee as its
agent to make all necessary application to the Ministry of Environment for the
required Certificate of Approval, all at the cost of the Lessee. The Lessor on
execution hereof hereby undertakes to proceed diligently with all necessary
Official Plan Amendments and/or Zoning By -law Amendments and Site Plan
approval.
(e) In the event the Lessor and/or the County of Simcoe has enacted any necessary
Zoning By -law and/or Official Plan Amendment, to permit the Leased Lands to
be used for a recycling facility and/or the Lessee has not been able to obtain the
required Certificate of Approval because inter alia such Zoning By -law
Amendment and/or Official Plan Amendment has/have been appealed to the
11 Ontario Municipal Board ( "OMB "), each of the Lessor and the Lessee shall
j request of the OMB to be added as be parties to the appeal(s) before the OMB.
The Lessee shall be solely responsible for obtaining a Certificate of Approval.
(f) Notwithstanding the provisions of sub - paragraph 33(a) hereof, in the event of any
appeal as described in sub - paragraph (e) hereof, the Lessee agrees to make
4 C available any documents and technical reports prepared for the Certificate of
Approval application and to participate, as required in giving evidence on such
documents at the OMB hearing. The provision of such documentation or
participation at the OMB hearing by the Lessee's consultant(s) shall be the
responsibility of and at the cost of the Lessee.
l (g) In the event the Zoning By -law Amendment and Official Plan Amendment, as
1 enacted, are approved by the OMB and the operation levels of the Lessee are not
reduced below 55 hours per week and the materials for recycling acceptance are
not reduced below 90,000 tonnes and the materials for recycling and to be sold
are not below 75,000 tonnes per year and the amount of materials which may be
stockpiled at anytime is not below 25,000 tonnes, the OMB decision will be
deemed to be satisfactory to the Lessee for the purposes of this paragraph 33(g)
I 1 and Schedule `B ".
In the event the OMB decision does not approve the Zoning By -law and Official
Plan as enacted and does not permit the operation levels required by the Lessee as
noted above, each parry is responsible for its own costs only and has no claim
against the other.
Following the issuance of the final decision and Order of the OMB related to any
appeal of the Zoning By -law Amendment and/or Official Plan Amendment and
j following the expiry of any appeal or review period of the decision and Order,
F IJ I
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each party hereto must advise the other in writing, within fifteen (15) days of the
expiry of such appeal or review periods, if it wishes to cancel this Lease.
In the event that the Lessee or Lessor decides to cancel this Lease despite a
satisfactory decision of the OMB, the canceling party shall be responsible for all
of the other's costs as defined in Schedule `B" hereto to a maximum amount of
I One Hundred Thousand Dollars ($100,000.00). The parties hereto agree to
comply with and acknowledge the terms of conditions of Schedule `B" attached
hereto regarding the provision of security for costs and the terms and conditions
j relating to the payment of costs.
Notwithstanding the foregoing, in the event the OMB decision is satisfactory and
' a Certificate of Approval cannot be obtained by the Lessee to permit its operations
at the above noted levels, each party is responsible for its own costs only and has
no claim against the other.
J In the event the OMB decision is satisfactory and a Certificate of Approval is
obtained, each party is responsible for its own costs only and has no claim against
the other and all terms of the Lease remain in effect.
EARLY POSSESSION
34. Notwithstanding the Commencement Date as herein provided for in paragraph 2(b)
hereof, once the Certificate of Approval has been issued and the Lessor and the Lessee
have exchanged a letter confirming the actual Commencement Date, the Lessee shall be
entitled to possession of the Leased Lands for the purposes of constructing its leasehold
improvements, installing weigh scales, etc., during the ninety (90) day period referred to
in paragraph 2(b) hereof, provided the Lessee has obtained building permits required for
such construction.
LESSOR' S EXPENSES
35. (a) The Lessor acknowledges that though the Lands may be exempt from assessment
and property taxation at the time this agreement is entered into, the Lands may be
` reassessed once the Lessee commences its operations on the Lands and may then
be subject to municipal and school board property taxation. The Lessor shall be
responsible to pay all municipal and school board property tax amounts levied on
the Lands and/or the Leased Lands. The Lessor acknowledges that it may
challenge any such assessments, at its sole expense; however, the Lessee agrees
that it will not object to any assessment challenge or appeal undertaken by the
Lessor.
S�
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27
(b) The Lessor agrees to complete at its expense any alteration to the Lands and/or
Leased Lands required by the MNR as a condition of amending the aggregate
licence for the Lands to permit the Leased Lands to be used as a licenced
recycling facility.
LESSOR'S WARRANTY
36. The Lessor warrants it has or will have good title to the Lands and the Leased Lands and
all proper steps have been taken to authorize its signing officers to execute and deliver
this Lease.
rll ShIli M 1 9 TAII N
37. Nothing in this Lease derogates from, or interferes with or fetters the exercise by the
Lessor of all of its rights and responsibilities as a municipality, or imposes any
obligations on the Lessor, in its role as a municipality, and the Lessor shall not be
prevented from or prejudiced in carrying out its statutory rights and responsibilities,
including (whether discretionary or mandatory) rights and responsibilities. Nothing
contained in this Lease derogates from or interferes with or fetters the exercise by the
Lessor's officers, employees, agents, representatives or elected and appointed officials of
all of their rights and responsibilities, or imposes any obligations on the Lessor's officers.
38. Nothing contained in this Lease shall derogate from the obligations of the Lessee and the
rights of the Lessor as a planning authority pursuant to the Planning Act, including
obligations of the Lessee to enter into agreements with the Lessor pursuant to Section 41
of the Planning Act or any other applicable provisions of the Planning Act, and
complying with all other of the Lessor's policies and by -laws in effect from time to time
with respect to any matter whatsoever.
39. The parties expressly disclaim any intention to create a partnership or joint venture or to
constitute the other party as its agent. Nothing in this Lease shall constitute the parties
partners or joint venturers, nor constitute one party the agent of the other party.
40. Each party will promptly execute and deliver all further documents and take all further
action reasonably necessary or appropriate to give effect to the provisions and intent of
this Lease and to complete the matters contemplated by this Lease.
41. The rights and remedies under this Lease are cumulative and are in addition to and not in
substitution for any other rights and remedies available at law or in equity or otherwise.
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M
No single or partial exercise by a party of any right or remedy precludes or otherwise
affects the exercise of any other right or remedy to which that party may be entitled.
HEADINGS
42. The headings herein are for convenience only and are not to be construed as being part of
this Lease.
IN WITNESS WHEREOF the Lessor herein of the First Part has hereunto executed this
Agreement at the Township of Oro - Medonte, Ontario under the hand of its authorized signing
J,�
(
Officers this I � day of jo 2010 and the Lessee has hereunto executed this Agreement by
the hand of its duly authorized signing officer duly authorized in that regard at London, Ontario
this day of June, 2010.
SIGNED, SEALED AND DELIVERED
in the Presence of:
THE CORPORATION OF THE TOWNSHIP
OF ORO- MEDONTE
William'A. Graham, President
I have authority to bind the Corporation.
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TRY RECYCLIl)o (BA `IE) INC.
29
SCHEDULE "A"
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to a Lease between the Corporation of the Township of Oro - Medonte
and Try Recycling (Barrie) Inc.
30
SCHEDULE "B"
to a Lease between The Corporation of the Township of Oro - Medonte
and Try Recycling (Barrie) Inc.
Val aft all 04 1916W
1. In this agreement, "costs" means expenses incurred by either party while defending any
Zoning By -law Amendment appeal or Official Plan Amendment appeal related to the
Lands, including, but not limited to, consultant travel expenses, meeting time, fees and
disbursements relating to any Zoning By -law Amendment Appeal or Official Plan
Amendment Appeal related to the Lands and costs of obtaining a Certificate of
Approval, without limiting the generality of the foregoing: specialized planning, legal,
engineering advice or other professional expenses or services and includes attendance
and /or preparation for hearings before the Ontario Municipal Board or any subsequent
judicial proceedings, appeals or applications related thereto.
2. The Lessee shall provide a Letter of Credit to the Lessor in the amount of $100,000.00
no later than fourteen (14) days prior to the date set by the Ontario Municipal Board for
the commencement of a hearing of any Zoning By -law Amendment appeal or Official
Plan Amendment appeal related to the Lands. If the Letter of Credit is not provided at
such time, the Lessor, among other remedies, can limit its participation in the hearing
of the appeal(s) and may request an adjournment of the hearing, at its sole discretion.
a. In the event that the Ontario Municipal Board allows any appeal, in whole or in
part, related to the Lands, the Lessor and the Lessee may, together, determine if
such decision should be appealed or reviewed and in such event, agree to enter
into an addendum to the within Agreement regarding the sharing of costs related
to such appeal or review.
b. In the event that the Ontario Municipal does not allow any appeal, in whole or in
part, related to the Lands and a third party appeals or requests review of such
decision, the Lessor and Lessee agree to enter into an addendum of the within
Agreement regarding the sharing of costs related to such appeal or review.
3. In the event the Lease is cancelled pursuant to Section 33(g), the non - canceling party
shall provide an invoice for all costs incurred in its defence of the appealed Zoning By-
law Amendment, the Official Plan Amendment and Certificate of Approval and the
canceling party shall pay such invoice within twenty (20) days of issuance of the
invoice. If the canceling party fails to pay the invoice by the end of the twentieth (20``')
day from the date of the issuance of the invoice, the Lessor may draw upon the Letter
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31
of Credit in the full amount of the costs incurred as set out in the invoice up to the full
amount of the Letter of Credit and the Lessee shall pursue the full amount of its invoice
and any interest, costs or damages incurred in the collection of same. The maximum
amount which may be invoiced or claimed against either party is One Hundred
Thousand Dollars ($100,000.00). The Letter of Credit shall not be drawn upon by the
Lessor in any other circumstance.
a. If the Lessor does not draw upon the full amount of Letter of Credit as set out in
paragraph 2 above, any remaining amounts shall be released /returned to the
Lessee.
4. If, following the issuance of the final decision and Order of the OMB related to any
appeal of a Zoning By -law Amendment or Official Plan Amendment and the expiry of
any appeal or review period of such decision and Order, the Lessee advises the Lessor
that it will not be exercising its rights to cancel the Lease as set out in subparagraph
33(g) of the Lease Agreement, the Lessor shall return the Letter of Credit, in its full
amount, to the Lessee within five (5) business days of such advisement by the Lessor.
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