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HomeMy WebLinkAbout23 106 Transfer of Real Property to Bruce Telecom Amendment (1) By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2023 – 106 Being a By-law to Amend By-law 2022 – 183; Being the Transfer of Real Property to Bruce Telecom Whereas Section 8(1) and Section 9 of the Municipal Act 2001, S.O. 2001, c.25, as amended (hereinafter the “Act”) provide that the powers of a municipality under the Act 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 has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under the Act or any other Act; and Whereas Council for the Corporation of the Municipality of Kincardine (“Kincardine”) approved the conversion of Bruce Telecom from a municipal service board (the “MSB”) to a municipal services corporation structure (the “MSC”) on December 6, 2017 by By- law No. 2017-163; and Whereas in connection with the implementation of the conversion of Bruce Telecom from a MSB to MSC, Council for Kincardine approved by By-Law No. 2017-164 the incorporation of each of Bruce Telecom Holdings Inc. (“BT Holdings”), Bruce Telecom Ontario Inc. (“BT Ontario”) and Bruce Telecom Kincardine Inc. (“BT Kincardine”); and Whereas The Corporation of the Municipality of Kincardine wholly owns BT Holdings and BT Holdings wholly owns each of BT Ontario and BT Kincardine as operating subsidiaries; and Whereas on or around January 1, 2018, in connection with the implementation of the conversion of Bruce Telecom from a MSB to MSC, a portion of the assets used by BT Ontario and BT Kincardine which were owned by Kincardine, save and except for real property, were transferred from Kincardine to the MSC, pursuant to By-law No. 2017-177 and in accordance with asset transfer agreements attached thereto; and Whereas the Council of Kincardine by the passing of By-law No. 2022-183 approved the transfer of the remaining assets of the MSB, being the real property listed in Schedule A of By-Law No. 2022-183, which was based on the asset list attached to the asset transfer agreements approved by By-law No. 2017-177, used by BT Ontario and BT Kincardine in the operations of the Bruce Telecom business; and Whereas through By-law No. 2022-183, Council of Kincardine authorized Kincardine to enter into a asset transfer agreement with BT Holdings at the BT Holdings Price and authorized BT Holdings to enter into an asset purchase agreement with BT Ontario at the BT Ontario Price regarding the transfer of real property owned by Kincardine to be used to operate the Bruce Telecom business, and further authorized and directed the Mayor and Chief Administrative Officer to execute and deliver, on behalf of Kincardine, the asset transfer agreement with BT Holdings, to execute and deliver, on behalf of Kincardine, a Shareholders Resolution for BT Holdings authorizing the transfer of the assets pursuant to the terms of an asset transfer agreement as between BT Holdings and BT Ontario, and for Kincardine to perform its obligations pursuant to the terms of the asset transfer agreement with BT Holdings and any ancillary documentation thereto; and Whereas the transfer of real property as authorized by By-law No. 2022-183 occurred on December 22, 2022; and Page 2 of 3 Transfer of Real Property to Bruce Telecom Amendment (1) By-law By-law No. 2023 - 106 Whereas it has been discovered that the property legally described as PT LT 34 CON 2 BRUCE PT 1, 3R6642; Municipality of Kincardine, PIN 33290-0074 (LT) was inadvertently included as part of the real property transferred (“Subject Property”); and Whereas the Subject Property has no book value recorded on the Municipality’s audited financial records, and no consideration or land transfer tax was paid by either BT Holdings or BT Ontario for the respective transfers of the Subject Property; and Whereas Council for Kincardine deems it necessary to amend By-law No. 2022-183 to remove the Subject Property from the list of real property which formed part of the assets that Kincardine transferred to BT Holdings, and that was subsequently transferred by BT Holdings to BT Ontario, and to request the return of the Subject Property forthwith; now therefore be it Resolved that the Council of The Corporation of the Municipality of Kincardine Enacts as follows: 1. That By-law No. 2022-183 is hereby amended to remove PT LT 34 CON 2 BRUCE PT 1, 3R6642; Municipality of Kincardine, PIN 33290-0074 (LT). Transfer of the Subject Property from BT Ontario to Kincardine 2. That Kincardine is authorized to direct BT Holdings or BT Ontario to transfer the Subject Property to Kincardine. 3. That the transfer of the Subject Property from BT Holdings or BT Ontario to Kincardine be completed as soon as practically possible. 4. That, as Kincardine has no book value recorded for the Subject Property in its audited financial records, and as no consideration or land transfer tax was paid by either BT Holdings or BT Ontario on the transfer of the Subject Property, Kincardine is directed to accept the transfer of the Subject Property from BT Holdings or BT Ontario for nominal consideration, without any land transfer tax being applicable to or payable by Kincardine. Approval of the Execution of Documents related to the Transfer of the Subject Property 5. That the Mayor and Chief Administrative Officer be authorized to approve all documents necessary to give effect to this by-law. 6. That Kincardine, as sole shareholder of BT Holdings, is authorized to direct BT Holdings, as sole shareholder of BT Ontario, to execute and deliver a Shareholders Resolution to BT Ontario noting the inadvertent transfer of the Subject Property from Kincardine to BT Holdings and subsequently from BT Holdings to BT Ontario, and approving and directing the board of directors for BT Ontario to take all necessary steps, including but not limited to, the execution of all real estate documents necessary to transfer the Subject Property directly to Kincardine. 7. That the Mayor and Chief Administrative Officer be authorized and directed to execute and deliver, on behalf of Kincardine, all documents necessary to affect the transfer of the Subject Property, including but not limited to any corporate resolutions that may be required by BT Holdings and all real estate documents between Kincardine and BT Ontario. 8. This by-law shall come into full force and effect upon its final passage. Page 3 of 3 Transfer of Real Property to Bruce Telecom Amendment (1) By-law By-law No. 2023 - 106 9. That this By-law may be cited as the “Transfer of Real Property to Bruce Telecom Amendment (1) By-law.” Read a First and Second Time this 19th day of June, 2023. Read a Third Time and Finally Passed this 19th day of June, 2023. Mayor Clerk