THE CORPORATION OF THE DISTRICT OF PEACHLAND
Committee of the Whole Meeting To be held Tuesday, August 11, 2009 at 9:00 a.m. In the Council Chambers, Peachland Community Centre ______
*** A G E N D A ***
Pages 1. CALL TO ORDER
2. AMENDMENTS TO THE AGENDA
3. APPROVAL OF THE AGENDA
4. PRESENTATIONS & DELEGATIONS:
A. Crime Prevention – Block Watch Program Duane MacTavish
B. B.C. Fruit Growers’ Association
C. United Way Harry Grossmith, CEO
D. Universal Water Meter Implementation Strategy – Urban Systems, Dan Huang
E. Sanitary Sewer Phase 3 Draft Report Urban Systems, Dan Huang
5. REPORTS/DISCUSSION:
A. Grad Parties 3
B. Senior Housing Complex garbage disposal options 5
C. Fourth Street Place 6
D. Capital Works update 7
E. Trepanier Creek Water Levels 9
F. Wharf & Buoy Bylaw Enforcement 11
G. Foreshore Sub-Lease 3520 Drought Road 17
6. CORRESPONDENCE: For Information:
A. Scott Wilshaw, Trepanier Manor Re: Event & Entertainment Pier proposal
7. ADJOURNMENT
______Corporate Officer
District of Peachland Staff Report
To: Mayor & Council From: Fire Chief Grant Topham Peachland Fire and Rescue Service Date: 2009-08-05 Subject: Grad Party report to Council
Minutes from COTW meeting July 14, 2009: That Fire Chief Grant Topham approach the RCMP to see what approach is used by other jurisdictions with regards to Grad bush parties. And that he report back to COTW with a viable way to deal with grad parties.
Fire Chief Topham was in contact with Sergeant Ann Brinnen who administers the Community Operations Support Unit (COSU). After discussion this was transferred to West Kelowna RCMP detachment, SGT. Carey Chernoff. Sergeant Chernoff explained that each incident of parties and youth gathering in groups is dealt with on a case by case basis. The recent incident in Peachland at what is locally referred to as the Spring Creek Pit and the Fire Department training site was one of these incidents. The party was very well organized with a DJ set up with amplifiers and speakers. The gate had been damaged for some time before this incident and had not been locked so the area was full of parked cars and some tents had been set up. As RCMP had limited resources that night with only two officers responding, the decision was made to just let the party carry on and monitor the activities from Princeton Avenue and to show that there was RCMP presence in the area and to check vehicles leaving the party site. Smaller parties can be controlled much easier and only so much can be done depending on resources, location and size of the gathering. RCMP will usually set up a road check to check for drinking and the possession of liquor, this is often done with only one police officer and an auxiliary member as resources are limited. SGT Chernoff explained that another problem with breaking up parties is that they will then go into other areas and that police will not know where they are. With the cell phones now and the text messaging it is very easy to set up another party and let everyone know where it is located. RCMP would rather know where the parties are in order to monitor their activity. The subject of a designated party area was discussed. People have various opinions of how the parties should be handled and whether an area should be set aside for these activities. Apart from the fact that there would be public pressure against these areas there is a concern of liability issues if there were to be an accident or any incident in these designated areas. Who would
authorize their use, who would monitor the activity, and who would make property available for a party area? In other jurisdictions the police deal with each incident as described taking into account, size of incident, available resources and location of the event, there does not seem to be any local government involvement on how this is carried out. The District of Logan Lake had an area set aside for party activities several years ago, there was significant public pressure at that time against such an area. At the time the idea seemed to be working fairly well. I have not spoken to anyone from Logan Lake recently. This type of area could be considered locally, however it will require considerable planning starting with a location and building from there. As Fire Chief, I do not have the expertise to provide Council with a viable way to deal with grad parties.
Grant Topham Fire Chief
District of Peachland Staff Report
To: COTW From: Doug Allin, Director of Operations Date: August 4, 2009 Subject: Senior Housing Complex Garbage Disposal Options
COTW requested that the Director of Operations research some options for residential garbage pick-up for the senior’s housing complex. The cost of the services for the 40 units offered by the District of Peachland was deemed excessive. Bylaw 1899 allows the Director of Operations to opt out specific groups meeting certain criteria. The contractor is willing to opt out the seniors housing society. The contract indicates that the decision to opt out will not allow for partial service.
The senior housing complex inquired about 7 bins at 120 L each (estimated total garbage volume = 840L). The smallest bin available is a front load 3 yard bin (4’ x 6’ x 3.5 ‘) = 2,268 litres.
Here are some options for servicing the 40units:
1. Supersave: 250. 861.9433. • Weekly pickup of 3 yd is $129 • Bi-weekly pickup is $70
2. BFI: 250.765-0565 (Chad) • Weekly 3 yd bin garbage pickup is $210 • Recycling 3 yd bin bi-weekly $85
3. “For Less Disposal” 250.808.4537 – does not go to Peachland
4. Continue with OK Environmental Waste
Please note that the prices are based on preliminary informal quotes. Since the service will be arranged by the society, the District cannot guarantee service quality and pricing. Additional surcharges may apply.
District of Peachland Staff Report
To: COTW From: Doug Allin, Director of Operations Date: August 4, 2009 Subject: 4th Street Place
Currently, the District uses 4th Street Place as downtown parks Crew shop and Municipal Records Storage. The remainder of the facility is used by community groups and clubs for diversities. To facilitate the use of the entire 4th Street Place by community groups both District functions would need to be moved to alternate locations.
Task A - Remove downtown parks crew shop /supplies (approx. $ 1,500) plus & buy steel container (8’x20’) for parks supply storage at PW Yard $ 4,000
Task B – Remove municipal records (approx. $ 1,500) plus
Relocation options: 1) Trailer (8’x24’) behind Municipal Hall with electrical connection $ 25,000 • Electrical connection • Security system • Heater/de-humidifier • Ramp • Concrete pad • Setup of inside • Skirting
2) Take over part of Fire Hall upstairs room $ 1,000 (use large Brigade Room as Training Room) $ 500
3) Addition onto Municipal Hall (33’x14’: 2 rooms & emergency exit) $ 69,000
Municipal Hall currently does not meet building code for emergency exits. Additionally, space is insufficient. The board room is too small for most meetings. This proposed expansion of Municipal Hall towards the back parking lot will provide space for a larger board room (14’x13’), a records storage room (11’x13’) as well as a much-needed fire exit.)
4) Hire off-site records storage services (Kelowna) $ 200/mo • Set up of records room $ 1,000 • Records retrieval happens less than 10 times a year • (records retrieval services $20 to $ 40 each trip) • Offsite storage accessible 24/7 • Secure location in Kelowna
District of Peachland Staff Report
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District of Peachland Request for Decision
To: COTW From: Doug Allin, Director of Operations Date: August 4, 2009 Target Decision Date: August 11, 2009 Subject: Trepanier Creek Water Levels Recommendation: THAT COTW supports Stage II water restrictions for the Trepanier Creek system be implemented effective immediately; AND THAT COTW supports the activation of the lake pumps for Trepanier Creek water systems.
Implications of Recommendation:
General: Trepanier Water System will be supplied by Okanagan Lake pumps. Stage II water restrictions will protect and conserve water.
Organizational: Switching to the lake pumps and stage II water restrictions will protect and support fish spawning in Trepanier Creek during drought conditions. Financial: Within Operational Budget Policy: none Strategic Plan: none
BACKGROUND:
Peachland holds three licences on Trepanier creek which allows us to draw water from the creek when the water is available. Based on 10-year low flows, Trepanier Creek is at a critical drought flow. Brenda Mines has stopped releasing water until September due to the low volume of water that requires treatment. As there is no water storage on Trepanier Creek it difficult to predict volumes of water without Brenda Mines releasing treated water. The Department of Fisheries and Oceans is concerned as the Kokanee Salmon are expected to start arriving for spawning in Trepanier Creek shortly.
REPORT/DOCUMENT: Attached: Available: Nil: X
KEY ISSUES(S) / CONCEPTS: The Director of Operations recommends that the Trepanier Creek water system should be supplied by the Lake Pumps. Drawing water from Okanagan Lake is typically reserved for freshet *
run-off periods, but would be ideal to ensure there is enough water for the salmon to spawn. Stage II water restrictions for the Trepanier System would compliment the shortage of water in natural water bodies to ensure minimum fish spawning conditions.
Stage II Water Restrictions definition:
Odd numbered houses may water ONLY during the specified times on Mondays and Thursdays
• Even Numbered houses may water ONLY during the specified times on Tuesdays and Fridays. • Sprinklers and Irrigation devices may be used only between: o 7 pm to 11 pm o 4 am to 10 am • Hand Held devices (with shut off nozzle) hand-held containers and drip irrigation systems may be used at any time. • No Watering on Wednesday, Saturday, Sunday.
DESIRED OUTCOMES: • Supply Trepanier Water System using lake pumps until mid September • Post Stage II water restrictions for the Trepanier Water System
RECOMMENDED: THAT Council supports the activation of the lake pumps for Trepanier Creek water systems THAT Council supports the District posting Stage II water restrictions for the Trepanier Creek system
OPTIONS: 1. COTW could choose to accept the recommendation and refer to Council 2. COTW could choose not to accept the recommendation and refer to Council 3. COTW could refer the matter back to staff or Committee for more information
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The District of Peachland
Request for Decision
To: Committee of the Whole (COTW) From: Planning and Development Services Date: July 31, 2009 Subject: Wharf and Buoy Bylaw Enforcement Recommendation: THAT the COTW authorize the allocation of $5,000.00 funded from special projects under the Planning and Development Services Department budget for the enforcement of Wharf and Buoy Bylaw #1436 for the remainder of 2009.
BACKGROUND: Staff has been working on a new wharf and buoy bylaw for the District as well as amendments to the Shoreland Plan so that it is consistent with the newly proposed bylaw. On June 2, 2009 the Planning and Development Services Department had a public information meeting regarding the newly proposed wharf and buoy bylaw and Shoreland Plan amendments. At the meeting it was expressed by those attending (the majority of which were waterfront property owners) that in general the changes as presented were good ones. However, one of the main concerns is that enforcement regarding wharf and buoys has not been done on a consistent basis. Following up on this issue staff are recommending appropriate action to enforce the bylaw.
Every year when the billings for wharfs and buoys are sent out a letter is attached stating the requirements of the District. The most important point here is that the letter stipulates that all buoys must be marked. This marking is for enforcement purposes. In July Mike Girourard and Dale Zimmerman went out on a boat and surveyed all buoys. It was found that 90% of the buoys were not appropriately marked. It was also observed that there were some extra buoys that will need to be removed.
DISCUSSION:
The Planning and Development Services Department is sending out another round of notices to buoy owners stating that all buoys must be marked by August 15, 2009 or they may be subject to a fine of $100.00 as outlined within Schedule 16 of the Ticket Information Utilization Bylaw #1366. This will give one more opportunity to make sure that their buoys are properly marked before Bylaw Inspection Services will do a second survey of buoys in late August. To ensure that bylaw enforcement is undertaken, any buoys that are not registered with the District will have to be removed and any boats anchored on those buoys towed. The Planning and Development Services Department will be posting two consecutive ads in the Peachland View forewarning legal buoy owners that they must be marked. There was no budget allocation for possible removal of buoys or towing of boats for 2009. For this reason the Planning and Development Services Department is recommending that Council authorize an amount of $5,000.00 for enforcement of the wharf and buoy bylaw for the remainder of 2009.
FINANCIAL IMPLICATIONS:
Costs of Towing
Okanagan Marine Assist provides boat towing services. This service will cost the District of Peachland nothing. This is because any boat towed will be taken to Shelter Bay and stored in a secure facility until the owner of the towed vessel can pay the amount of the towing fee and the $100.00 /day storage costs.
Costs of Removing Buoys
Aqua-bility does work for Osoyoos, Kelowna and the District of West Kelowna to name a few. Aqua-bility charges $125.00/hr for service. The quote for removing one buoy only including the travel is approximately $1000.00.
Calculation: approx. 6 hrs travel / loading / unloading approx. 2 hrs to remove buoy (includes the removal of anchor)
8 hrs of service
8 hrs * $125.00 = $1000.00
The more buoys removed in a trip the cheaper the cost. Based upon the above calculations 5 buoys removed in one trip would equal a cost of $400.00 per buoy or a total of $2000.00
Estimate of Enforcement Funding
Staff estimates that it may be necessary to allocate up to $5000.00 to enforce the Wharf and Buoy Bylaw (i.e. illegally moored boats). Under the Planning and Development Services budget for special projects in 2009 it is apparent that this category will be above $5000.00 under budget for 2009.
ATTACHMENTS:
• Okanagan Marine Assist Price List for Service • Informational Correspondence (emails)
OPTIONS:
1. COTW can support the recommendation. 2. COTW can choose not to support the recommendation. 3. COTW can refer the matter back to staff for further investigation.
District of Peachland COTW Request for Decision
To: Committee of the Whole From: Elsie L. Lemke, CAO Date: August 5, 2009 Subject: Foreshore Sub-Lease – 3520 Drought Road Recommendation: That COTW recommends that Council, subject to approval by the Ministry of Sustainable Resources, approves entering into a 5 year foreshore sub-lease with 748151 BC Ltd., under the terms and conditions as presented.
Background:
In early June, 2007, we received notification of a change of ownership of property at 3520 Drought Road, Lot 1, DL449, ODYD, Plan 16511. Peachland has in the past, sub-leased a portion of its foreshore to the property owner, because a portion of the house and all of the deck encroaches onto the foreshore lands leased by the District of Peachland from the Province of British Columbia, Ministry of Sustainable Resources.
On June 11, 2007, staff wrote to the new property owner (748151 BC Ltd., Kris Tasci, Officer & Director), advising that the sub-lease expires on June 30th, 2007. A new survey plan was requested, and the new property owner was advised of two changes that would be proposed for the sub-lease: - Increase liability insurance naming the District of Peachland as additional insured from $2,000,000 to $3,000,000; - Annual fee of $500.00 to be reviewed.
The survey certificate was received on September 4, 2007, and a copy is attached. Also attached is a copy of the new proposed sub-lease with the following changes:
- 8 a) liability insurance increased to $3,000,000 per year; - 3.) annual fee increased to $1,588.84 per year (calculation based on Provincial formula attached).
The agreement is for 5 years, to expire July 1, 2012, and can be renewed for a further 5 year term.
The applicant’s solicitor has requested that Council approve a retroactive 5 year renewal of the former lease, with renewal rights of 5 years each, expiring one day before the end of the term of the Head Lease (July 1, 2032). Staff does not support the request to retroactively renew a sub-lease that expired over 2 years ago. The expired sub-lease only permitted a renewal subject to being in compliance with the Head Lease. The new Head Lease with the Province does not permit this type of use of the foreshore. The applicant will therefore be expected to obtain any Provincial approvals for the new sub-lease, before entering into a new 5 year agreement with the District.
Recommendation: That COTW recommends that Council, subject to approval by the Ministry of Sustainable Resources, approves entering into a 5 year foreshore sub-lease with 748151 BC Ltd., under the terms and conditions as presented.
REPORT/DOCUMENT: Attached: X Available: Nil:
OPTIONS: 1. COTW CAN CHOOSE TO SUPPORT THE RECOMMENDATION. 2. COTW CAN CHOOSE NOT TO SUPPORT THE RECOMMENDATION, AND RECOMMEND TO COUNCIL, REMOVAL OF THE ENCROACHMENTS. 3. COTW CAN CHOOSE TO REFER THE MATTER BACK TO STAFF OR COMMITTEE FOR FURTHER INFORMATION OR REVIEW.
7
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THIS INDENTURE made this _____ day of ______, 2009.
BETWEEN:
THE CORPORATION OF THE DISTRICT OF PEACHLAND 5806 Beach Avenue, Peachland, British Columbia VOH 1X7
(The ‘Sublessor’)
AND:
748151 B.C. Ltd. 114 Spruce Place, Penticton, British Columbia V2A 1H1
(The ‘Sublessee’)
WHEREAS by Indenture of Lease made the 1st day of July, 2002, (the ‘Headlease’), Her Majesty the Queen in Right of the Province of British Columbia, as represented by Land and Water British Columbia Inc. (the ‘Head Lessor’) leased to the Sublessor the lands and premises legally known and described as:
All that unalienated and unencumbered foreshore along Lot A, District Lot 449, of Okanagan Lake, Osoyoos Division of Yale District, Plan 16511, within 600 feet of the high water mark, lying within the boundaries of the District of Peachland
(the ‘Headlease Lands’) for a term of thirty (30) years commencing the 1st day of July, 2002;
AND WHEREAS there are located on the Headlease Lands firstly, a portion of a dwelling house, and secondly, a deck structure (together, the ‘Encroachment Area’) as shown outlined on the copy of a B.C. Land Surveyor’s Certificate of Lot 1, District Lot 449 and 5260, ODYD, Plan KAP63595, prepared by Neil R. Denby, B.C.L.S., completed on the 20th day of August, 2007 (the ‘Plan’), which is attached hereto as Schedule ‘A’’
AND WHEREAS subject to the terms and conditions contained in the Headlease, the Sublessor has agreed to sublease to the Sublessee the Encroachment Area upon the terms and conditions herein set forth to legalize the existing encroachment;
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the mutual promises contained herein, the parties hereto agree as follows:
1. GRANT OF LEASE
The Sublessor hereby demises and leases to the Sublessee the Encroachment Area, defined above, (hereinafter, the ‘Leased Premises.’)
2. TERM
To have and to hold unto the Sublessee the Leased Premises for a term of five years commencing on the 1st day of July, 2007, and from that date to be completed and ended on the 30th day of June, 2012 (the ‘Term.’) 8
3. FEES
Yielding and paying therefore unto the Sublessor during the Term fees in the sum of one thousand five hundred and eighty-eight dollars and eighty-four cents ($1,588.84) plus G.S.T. per year for each of the five years or seven thousand nine hundred forty-four dollars and twenty cents ($7,944.20) plus G.S.T. lump sum payable by the Sublessee to the Sublessor upon the execution of this Sublease by the parties (the ‘Fees’).
SUBLESSEE’S COVENANTS
4. PAYMENT OF FEES
a) All fee payments required to be made by the Sublessee under or in respect of this Lease shall be made to the Sublessor, or to such agent or agents of the Sublessor as the Sublessor shall from time to time direct in writing to the Sublessee. All fees required to be paid by the Sublessee hereunder shall be paid without any deduction, abatement or set- off whatever, it being the intention of the parties to this Lease that all expenses, costs, payments and outgoings incurred in respect of the Leased Premises, or for any other matter or thing affecting the Leased Premises shall (unless otherwise expressly stipulated to the contrary) be borne by the Sublessee.
b) The Sublessee shall, from time to time, at the request of the Sublessor, produce to the Sublessor satisfactory evidence of the due payment by the Sublessee of all payments required to be made by the Sublessee under this Lease.
5. TAXES
The Sublessee, during each year of the Term, will pay when due, in addition to fees, all applicable taxes of every nature and kind which may be assessed or levied upon the Sublessor by an taxing authority in respect of all things erected or placed in, upon, under or affixed to the Leased Premises by or with the consent or permission of the Sublessor during the Term, including all fixtures, machines, equipment or other things of any nature or description which may lawfully be removed by the Sublessee which are located on the Leased Premises (hereinafter ‘Realty Taxes.’)
6. RENEWABLE LEASE
Subject to the Headlease, the Sublessor covenants and agrees with the Sublessee that, if the Sublessee duly and regularly pays the fees hereby reserved and observes and performs all and every covenant, proviso, and agreement herein contained, the Sublessor may, upon written request by the Sublessee made not less than one hundred and twenty (120) days prior to the expiration of the Term, grant unto the Sublessee an extension or renewal of this Lease for a further Term of FIVE YEARS (5) years or such other further renewal term as may be possible pursuant to the Headlease as renewed or replaced, or as otherwise agreed upon by the Sublessee, at fees to be negotiated at that time; such renewal or extended Term shall be subject to the same terms, covenants and agreements herein contained, excluding this Section.
7. USE
a) The Sublessee will use and occupy the Leased Premises only in accordance with
the provisions of this Lease, the Headlease, and any special proviso schedule which may be provided to the Sublessee by the Sublessor from time to time.
b) The Sublessee will not deposit on the Leased Premises, or any part of it, any earth, fill or other material for the purpose of filling in or raising the level of the Leased Premises without the prior written consent of the Sublessor.
c) The Sublessee will not dredge or significantly displace beach material on the Leased Premises without the prior written consent of the Sublessor.
d) The Sublessee will not place any improvements on the Leased Premises or carry on any activity on the Leased Premises, or on the surface of the water covering the Leased Premises, that may constitute an interference with the riparian rights of the owner or occupier of the land adjacent to the Leased Premises.
8. INSURANCE
The Sublessee covenants with the Sublessor:
a) to effect and keep in force during the Term, insurance protecting the Sublessor and the Sublessee (without any rights of cross-claim or subrogation against the Sublessor) against claims for personal injury, death, property damage, third party or public liability claims arising from any accident or occurrence on the Land or improvements an amount not less than THREE MILLION DOLLARS ($3,000,000) provided, however, that the Sublessor may, in its sole discretion, waive the requirements of this subsection on the delivery to the Sublessor of evidence that the Sublessee is self- insured.
b) to deliver to the Sublessor from time to time, upon demand, proof of insurance required to be maintained by the Sublessee, receipts or other evidence of payment of Realty Taxes, insurance premiums, leasehold mortgage instalments or other monetary obligations of the Sublessee required to be observed by the Sublessee pursuant to this Lease.
c) notwithstanding subsection 8(b) above, the Sublessor may from time to time notify the Sublessee that the amount of insurance posted by the Lessee pursuant to that subsection be changed and the Sublessee shall, within sixty (60) days of receiving such notice, cause the amount of insurance posted pursuant to subsection 8(b) above to be changed to the amount specified in the notice and deliver to the Sublessor written confirmation of the change, except that when the Sublessee is self-insuring, this paragraph will not apply.
9. REPAIR/ALTERATION
a) The Sublessee covenants throughout the Term, at the Sublessee’s sole cost and expense, to keep the Leased Premises in a safe, clean and sanitary condition satisfactory to the Sublessor acting reasonably, with the exception of reasonable wear and tear that is not inconsistent with the Leased Premises being kept and maintained in good order and condition generally. On written notice from the Sublessor, the Sublessee will repair and make safe, clean and sanitary any portion of the Leased Premises or any improvements thereon that, in the Sublessor’s opinion, acting reasonably, contravenes the provisions of this covenant. All repairs made by the Sublessee shall be done in good and workmanlike manner and repairs shall include replacements and renewals when necessary, and will comply with all municipal, provincial and federal regulations; and
b) Sublessee will not place any improvements on the Lease Premises without the prior written consent of the Sublessor, which consent will not be unreasonably withheld.
10. NUISANCE
The Sublessee will not carry on any business or undertaking on the Leased Premises which shall be deemed by the Sublessor, acting reasonably, to be a nuisance.
11. INDEMNITY
The Sublessee covenants to indemnify and save the Sublessor harmless against all loss, damages, costs and liabilities, including fees of solicitors and other professional advisors arising out of:
a) any breach, violation or non-performance of any covenant, condition or agreement in this Sublease by the Sublessee;
b) any personal injury, death or property damage occurring on the Leased Premises or happening by virtue of the Sublessee’s use or occupation of the Leased Premises;
and the Sublessor may add the amount of such loss, damages, costs and liabilities to the Fees and the amount so added shall be payable by the Sublessee to the Sublessor immediately.
12. ASSIGNMENT AND SUBLETTING
The Sublessee will not assign, mortgage, sublet or transfer the Leased Premises without the prior consent in writing of the Sublessor, such consent not to be unreasonably withheld.
13. COMPLY WITH LAWS
a) The Sublessee shall observe, abide by and comply with all applicable laws, bylaws, orders, directions, ordinances and regulations of any competent government authority in any way affecting the Leased Premises, and any improvements located thereon, subject to the condition, maintenance, use or occupation of any improvements located on the Leased Premises which were either constructed or in existence prior to the commencement of the Term which are hereby acknowledged by the parties as complying or otherwise are hereby waived from compliance by the Sublessor.
b) This Lease and the Term herein granted is subject to:
i) all subsisting grants to or rights of any person made or acquired under the Coal Act, Forest Act, Mineral Tenure Act, Petroleum and Natural Gas Act, Range Act, Wildlife Act, or Water Act, or any extension or renewal of the same, whether or not the Sublessee has actual notice of them; and
ii) the exception and reservation of rights, interests, privileges and titles referred to in Section 47 of the Land Act.
14. TIDY CONDITION
The Sublessee shall maintain the Leased Premises and every part thereof in a safe, clean and sanitary condition, shall not commit nor suffer any wilful or voluntary waste, spoil or destruction of the Leased Premises, and shall not permit waste paper, garbage, ashes, water or objectionable material to accumulate thereon.
15. VIEW AND REPAIR
It shall be lawful for the Sublessor and its agents, at all reasonable times during the Term, to enter the Leased Premises to examine the condition thereof, and the Sublessee will promptly repair and make good the Leased Premises in accordance with any notice given in writing by the Sublessor the Sublessee.
16. LEAVE AND REPAIR
The Sublessee will, subject to paragraph 6 above, at the expiration or sooner determination of the Term, restore the Leased Premises to the Sublessor’s satisfaction, acting reasonably, peacefully surrender and yield up to the Sublessor the Leased Premises in a safe and sanitary condition, with or without the appurtenances as the Sublessor may direct in writing, together with all improvements and fixtures which at any time during the Term shall be made therein or thereon, in good repair and condition in accordance with the Sublessee’s obligation to repair as hereinbefore contained, and all rights, interest and estate of the Sublessee will cease and vest in the Sublessor and all title to and ownership of the improvements on the Leased Premises shall be vested in the Sublessor, and to the extent necessary, this covenant shall survive the expiration or earlier termination of this Lease.
17. FIXTURES
Provided, and it is hereby expressly agreed, that the Sublessee may, at or prior to the expiration of the Term, take, remove and carry away from the Leased Premises all fixtures, fittings, furniture, plumbing, machinery, utensils, shelving, counters, safes or other articles upon the Leased Premises belonging to or brought upon the Leased Premises by the Sublessee, but the Sublessee shall in such removal do no damage to the Leased Premises or shall make good any damage which may be occasioned by such removal.
DEFAULT
18. EVENTS OF DEFAULT
a) It shall be an event of default under this Lease and the Term and estate hereby granted if:
i) the Sublessee shall default in the payment to the Sublessor of any instalment of fees, or the payment of any other sum payable hereunder, and such default shall continue for sixty (60) days after the giving of written notice by the Sublessor to the Sublessee;
ii) the Sublessee shall fail to perform or observe any of the covenants, agreements, conditions or provisions contained in this Lease on the part of the Sublessee to be performed or observed (other than the payment of Fees or other sums of money) and such failure shall continue for, or shall not be remedied within, the period of sixty (60) days next after the giving of written notice by the Sublessor to the Sublessee of the nature of such;
iii) the Term hereby granted shall be taken in execution or attachment by any person or the Sublessee commits an act of bankruptcy, becomes insolvent or is
petitioned into bankruptcy or voluntarily enters into an arrangement for the benefit of his creditors;
iv) the Sublessor discovers that the Sublessee has, in the opinion of the Sublessor, acting reasonably, misrepresented or withheld any fact material to the Sublessor’s determination to grant this Lease; or
v) in the opinion of the Sublessor, the Sublessee fails to make reasonable and diligent use of the Leased Premises for the purposes permitted, herein, and such failure shall continue for a period of sixty (60) days next after the Sublessor gives written notice of the failure to the Sublessee; it shall than be lawful for the Sublessor to enter upon the Leased Premises or any part thereof in the name of the whole, and this Lease shall at the option of the Sublessor, and with or without entry, terminate, and all rights of the Sublessee with respect to the Leased Premises shall be absolutely forfeited and shall lapse. If the condition complained of (other than the payment of Fees or other sums of money) reasonably requires more time to cure than sixty (60) days, the Sublessee shall be deemed to have complied with the remedying thereof if the Sublessee shall have commenced remedying or curing the condition within the sixty (60) day period and diligently thereafter completes the same.
PROVISO FOR RE-ENTRY b) Provided, and it is hereby expressly agreed, that if and whenever the Fees hereby reserved, or any part thereof, shall be unpaid after any of the days on which the same ought to have been paid, if it remains unpaid for five (5) days after delivery of notice by the Sublessor to the Sublessee of such non-payment, or in case of the breach or non-performance of any of the covenants or agreement herein contained on the part of the Sublessee, if such breach or non- performance is not cured within seven (7) days after delivery of notice by the Sublessor to the Sublessee specifying such breach or non-performance, or if incapable of being cured or performed within the seven (7) days period, as soon thereafter as it is capable of being cured or performed, then and in either of such cases it shall be lawful for the Sublessor at any time thereafter, into and upon the Leased Premises or any part thereof, in the name of the whole, to re-enter and the same to have again, repossess and enjoy as of the Sublessor’s former estate; anything herein contained to the contrary notwithstanding.
COLLECTION OF OTHER AMOUNTS DUE c) Any sums, costs, expenses or other amounts from time to time due and payable by the Sublessee to the Sublessor under the provisions of this Lease, whether by way of indemnity or otherwise, and whether or not expressed to be Fees hereunder, may, at the option of the Sublessor, be treated as and deemed to be fees, in which even the Sublessor will have all remedies for the collection thereof, when in arrears, as are available to the Sublessor for the collection of fees in arrear.
REMEDIES OF SUBLESSOR ARE CUMULATIVE d) No remedy conferred upon or reserved to the Sublessor is exclusive of any other remedy herein or provided by law, but such remedy shall be cumulative and shall be in addition to any other remedy herein or hereafter existing at law, in equity, or by statute.
EFFECT OF WAIVER BY SUBLESSOR
e) The failure of the Sublessor to insist upon the strict performance of any covenant of this Lease shall not waive such covenant, and the waiver by the Sublessor of any breach of any covenant of this Lease shall not waive such covenant in respect of any future or other breach. The receipt and acceptance by the Sublessor of fees or other monies due hereunder with the knowledge of any breach of any covenant by the Sublessee shall not waive such breach. No waiver by the Sublessor shall be effective unless made in writing.
19. SUBLESSOR MAY PERFORM COVENANTS
a) If the Sublessee shall fail, after any notice reasonable in the circumstances, to perform or cause to be performed each and every of the Sublessee’s covenants and obligations contained in this Lease, the Sublessor shall have the right (but shall not be obligated) to perform or cause the same to be performed and to do or cause to be done such things as may be necessary or incidental thereto (including, without limiting the foregoing, the right to make repairs, installations, erections and expend monies), and all payments, expenses, charges, fees and disbursements incurred or paid by or on behalf of the Sublessor in respect thereof shall be paid by the Sublessee to the Sublessor forthwith.
b) Notwithstanding anything contained in 19(a) above, the Sublessor is under no obligation to maintain or improve existing access roads to the Leased Premises.
ii) The Sublessor hereby reserves the right to the dispositions of the Leased Premises, or any part of it, with the prior written consent of the Sublessee, which consent shall not be unreasonable withheld, by way of easement, right of way or statutory right of way to a Crown corporation or agency, a municipality, or regional district, or a person or corporation and, upon such consent being gien, the Sublessee shall forthwith execute and deliver to the Sublessor such instrument as may be necessary to subordinate the Sublessee’s right and interest in the Leased Premises under this Lease.
iii) For the purpose of 19(c) above, the Sublessee shall be deemed to have withheld his consent reasonably if a grant of rights under that subsection would materially affect the exercise of the Sublessee’s rights hereunder.
iv) If a dispute should arise as to whether or not the exercise of the Sublessee’s rights hereunder would, in fact, be materially affected by a grant of rights under subsection 19(c) above, then, the dispute shall be referred to a sole arbitrator appointed pursuant to the Commercial Arbitration Act, R.S.B.C.
v) The Sublessee hereby acknowledges and agrees that no claim for compensation shall be made, in any form, in respect of a grant of rights under subsection 19(c) above, where such rights do not materially affect the exercise of the Sublessee’s rights hereunder.
vi) The Sublessee acknowledges and agrees with the Sublessor that:
i) any interference with the rights of the Sublessee under this Lease by virtue of the exercise or operation of the rights, privileges or interest described in subsections 19(c) and 13(b) above shall not constitute a breach of the Sublessor’s covenant of quiet enjoyment and the Sublessee releases and discharges the Sublessor from and against any claims for loss or damage arising directly or indirectly out of any such interference;
ii) all costs and expenses, direct or indirect, that arise out of any interference by the Sublessee with the rights, privileges and interests described in subsection 19(c) and 13(b) shall be borne solely by the Sublessee;
iii) the Sublessee shall not commence or maintain proceedings under Section 60 of the Land Act in respect of any interference with its rights hereunder arising directly or indirectly out of the exercise or operation of the rights, privileges or interests described in subsections 19(c) and 13(b.)
SUBLESSOR’S COVENANTS
20. QUIET ENJOYMENT
The Sublessor covenants with the Sublessee for quiet enjoyment.
GENERAL
21. OVERHOLDING
If, at the expiration of this Lease, the Sublessee shall, with the consent of the Sublessor, hold over for any reason, tenancy of the Sublessee thereafter shall, in the absence of written agreement to the contrary, be from month to month only at a fee per month equal to the fee payable in respect of the month immediately preceding payable in advance on the first day of each month, and shall be subject to all Terms and conditions of this Lease, except as to duration in the absence of a written agreement to the contrary.
22. TIME OF THE ESSENCE
Time is of the essence in this Lease.
23. HEADINGS
The Sublessor and Sublessee agree that the headings in this Lease are for convenience only and form no part of this Lease.
24. BINDING EFFECT
The Terms and provisions of this Lease shall extend to, be binding upon and enure to the benefit of the parties hereto and their successors and permitted assigns.
25. NOTICES
Any notice, request or demand herein provided for or given hereunder, if given by the Sublessee to the Sublessor, shall be sufficiently given if delivered or mailed by registered mail to the Sublessor at the following address:
ADDRESS OF SUBLESSOR: 5806 Beach Avenue Peachland, B.C. VOH 1X7
Any notice, request or demand herein provided for or given hereunder, if given the Sublessor to the Sublessee, shall be sufficiently given if delivered or mailed by registered mail to the Sublessee at the following address:
ADDRESS OF SUBLESSEE: 114 Spruce Place Penticton, B.C. V2A 1H1
Any notice delivered as aforesaid shall be conclusively deemed to have been given when delivered, and if mailed as aforesaid, shall be conclusively deemed to have been given on the second business day following the day on which such notice is mailed as aforesaid. Either the Sublessor or the Sublessee may at any time give notice in writing to the other of any change of address of the party giving such notice, and from and after the giving of such notice, the address therein specified shall be deemed to the be the address of such party for the giving of such notices thereafter.
26. SCHEDULES
The Sublessor and the Sublessee acknowledge and agree that all schedules to this Lease form an integral part of this Lease.
27. USE OF GENDER
In this Lease, words importing the singular number only shall include the plural and vice versa, and words importing the masculine gender shall include the feminine gender, and words importing persons shall include firms and corporations and vice versa.
28. DEFINITIONS
Unless the contrary intention appears, the words ‘Sublessor’ and ‘Sublessee’ wherever they appear in this Lease, shall mean respectively ‘Sublessor and its successors and assigns’ and ‘Sublessee and its successors and assigns’, and if there is more than on Sublessee and Sublessor, or the Sublessee or Sublessor is a female person or a corporation, this Lease shall be read with all grammatical changes appropriate by reason thereof, and all covenants, liabilities and obligations shall be joint and severable.
29. LAND TRANSFER FORM ACT
Where this Lease contains the forms of words contained in Column 1 of Schedule 4 of the Land Transfer Form Act, those words shall have the same effect and be construed as if the appropriate forms of words contained in Column II of that Schedule were contained herein in their place, unless the context requires another construction of those words.
30. HEADLEASE
The Sublessee acknowledges having received a copy of and having read the Headlease.
31. CONTINUING LEGISLATION
Where in this Lease there is a reference to an enactment of the Province of British Columbia or of Canada, that reference shall include a reference to any subsequent enactment of like effect, and 7
unless the context otherwise requires, all statutes referred to herein are enactments of the Province of British Columbia.
32. SEVERABILITY
If any section of this Lease or any part of a section is found to be illegal or unenforceable, that part or section, as the case may be, shall be considered separate and severable and the remaining parts or sections, as the case may be, shall not be affected thereby and shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF the parties hereto have hereunto executed these present on the day and year first above written.
SIGNED, SEALED AND DELIVERED In the presence of:
Name: ______) ) ______Address: ______) 748151 B.C. Ltd. ) ______) ) ______Occupation: ______) 748151 B.C. Ltd. (as to both signatures) )
THE CORPORATE SEAL OF THE CORPORATION OF THE DISTRICT OF PEACHLAND was hereunto affixed in the presence of:
______) Mayor ) ) C/S ______) Corporate Officer )
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