HomeMy WebLinkAboutKIN 98 073 Agre-Can Tire Estate
THE CORPORATION OF THE TOWN OF KINCARDINE
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BY-LAW
BY-LAW NUMBER 1998 -73
OF THE CORPORATION OF
THE TOWN OF KINCARDINE
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A BYLAW TO AUTHORIZE THE SALE OF LAND TO
CANADIAN TIRE REAL ESTATE LIMITED
WHEREAS Canadian Tire Real Estate Limited wishes to purchase from the Town of
Kincardine lands fronting on the east side of Highway 21 having an area of
approximately 4.0 acres, in the Town of Kincardine, in the County of Bruce and being
more particularly described on Schedule "A" of the Purchase & Sale Agreement.
NOW THEREFORE the Council for The Corporation of the Town of Kincardine
ENACTS as follows:
1. The mayor and clerk are hereby authorized to execute such documents, as they
may deem advisable to convey the lands described on Schedule "A", attached
hereto, to Canadian Tire Real Estate Limited.
. 2.
3.
4.
The sale price for the said lands shall be three-hundred and fifty thousand dollars
($350,000.00).
This by-law shall come into full force and effect upon its final passage.
This by-law may be cited as the "Land Sale to Canadian Tire By-Law".
READ a FIRST and SECOND time this 17h day of December, 1998.
READ a THIRD time and FINALLY PASSED this 17thh day of December, 1998.
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May( '(
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Clerk
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PURCHASER'S GST DECLARATION AND UNDERTAKING
RE: Canadian Tire Real Estate Limited purchase from
The Corporation of the Township of Kincardine-Bruce-
Tiverton
Part of Lot 1, Concession 1, S.D.R.
designated as Part 1 on Reference Plan 3R-7072,
Township of Kincardine-Bruce-Tiverton, County of Bruce
PURCHASER'S GST REGISTRATION NUMBER: R140495821
PURCHASER'S DECLARATION AND UNDERTAKING REGARDING GST
PAYMENT AND REMITTANCE
The Purchaser warrants and represents that it qualifies under Section 221 (2) of
the Excise Tax Act (current GST legislation) and that:
(a) The Purchaser is registered for GST purposes;
(b) The Purchaser agrees that GST is payable on the Property sale;
(c) The Purchaser understands and agrees that if it does not pay to the
Vendor the GST payable on the sale of the Property the Purchaser must
remit the GST payable directly to the Federal Government;
(d) The Purchaser agrees and understands that because it has elected to pay
GST tax directly to the Federal Government it is responsible under
Section 228(4) for remittance; and
(e) The Purchaser shall meet its obligations with respect to remittance of the
GST tax as provided for under the current Excise Tax Act thereby
relieving the Vendor of its responsibilities of collecting and remitting the
GST payable by the Purchaser on the sale of the Property.
The Purchaser hereby solemnly provides this representation and undertaking
this 1'It'- day of October, 1999.
CANADIAN TIRE REAL ESTATE LIMITED
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N.ame: ~~11" ì~, ~e Jí-\./.-- Æ ,u-hvV\.
Title: 1I'c.£~~;;:::::;k. ~
Name: Cnvt.a.(o( Se1lk~ tGis/117 4Lr
Title: 0,1«- ter-.
We have authority to bind the Corporation
Per:
Per:
[# 3 -L:\PrivateIFranca's Client Folder\CANADIAN TIRElKincardine. Town of - PurchaselDocumentslPurchaset's GST 0ed.DOC- Oct 13199 04:25 PM]
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SCHEDULE "A"
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OFFER TO PURCHASE
1. OFFER
CANADIAN TIRE REAL ESTATE LIMITED (the "Purchaser") hereby offers
to purchase from THE CORPORATION OF THE TOWN OF KINCARDINE (the
"Vendor"), certain vacant lands situated in the Town of Kincardine, in the Province of
Ontario, and being the lands described on Schedule "A" hereto and outlined in red on
Schedule "B" (the said lands are hereinafter referred to as the "Property") and
containing a total of 4.0 acres more or less. The Vendor is retaining those lands
outlined in blue on Schedule "C" (the "Retained Lands").
2. PURCHASE PRICE
Subject to paragraph 3, the purchase price of the Property shall be
THREE HUNDRED AND FIFTY THOUSAND DOLLARS ($350,000.00) (the "Purchase
Price") payable as follows: the sum of TEN THOUSAND DOLLARS ($10,000.00) by
cheque to the Vendor's solicitor, as a deposit, to be held by the Vendor's solicitor in trust
pending completion or other termination of this agreement and to be credited on
account of the Purchase Price on closing. Subject to paragraph 12(b), the Purchaser
shall pay the balance of the Purchase Price by certified cheque on closing, subject to
the usual adjustments.
The Deposit shall be paid within ten (10) days after satisfaction of the
condition described in paragraph 6A, and the Vendor's solicitor shall invest the Deposit
in a term deposit issued by a Canadian chartered bank and the Deposit shall be kept so
invested by the Vendor's solicitor pending completion or other termination of this
agreément. ,.
In the event the purchase herein is completed by the Purchaser, the
interest earned on the Deposit shall be credited to the Purchaser on account of the
Purchase Price, but in the event the purchase is not completed by the Purchaser by
reason of the non-fulfillment of the conditions as hereinafter contained or by reason of
the default of the Vendor, the Deposit shall be returned to the Purchaser without
deduction but with interest on the Deposit as aforesaid.
3. SURVEY AND ADJUSTMENT OF PURCHASE PRICE
The Vendor shall, at its expense, cause an Ontario Land Surveyor to
prepare a survey of the Property in the nature of a reference plan within forty-five (45)
days of acceptance. The surveyor shall also certify as to the total number of acres and
fractions thereof correct to three (3) decimal places contained in the Property, and the
total Purchase Price shall be an amount equal to the number of acres and fractions
thereof of the Property as certified by the surveyor multiplied by $87,500,00. Provided
always that the net area shall not be less than 4.0 acres.
4. ACCEPTANCE
~() This offer shall be irrevocable by the Purchaser until 4:00 p.m. on the
:<3 day of December, 1998, after which time if not accepted by the Vendor this offer
shall be null and void and the deposit returned to the Purchaser without interest or
deduction of any kind.
5.
TITLE
Provided the title is good and free from all encumbrances.
The Purchaser to be allowed one hundred and twenty (120) days following
execution of this agreement to investigate the title at its own expense and if within that
time it shall furnish the Vendor in writing with any valid objection to the title which the
Vendor shall be unable to remove or which the Purchaser will not waive, this offer shall,
notwithstanding any intermediate acts or negotiations, be null and void and the deposit
returned to the Purchaser without deduction of any kind but with interest as aforesaid.
Save as to any valid objection so made within such time the Purchaser shall be
conclusively deemed to have accepted the title of the Vendor to~he Property.
6.
CONDITIONS OF CLOSING
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A. The completion of this transaction is conditional upon the Vendor entering
into a binding and unconditional agreement to purchase the Property and Retained
Lands from the current owner thereof (the "Purchase Agreement") by the earlier of (i)
January 22, 1999 and (ii) two (2) business days atter the Purchaser has waived all of
the conditions referred to in paragraph 68 (the "First Conditional Date"). The Vendor
agrees to proceed diligently and to use all reasonable efforts to enter into the Purchase
Agreement by the First Conditional Date. In the event that the Vendor does not notify
the Purchaser on or before the First Conditional Date that it has entered into the
Purchase Agreement, then this agreement shall become null and void.
B. The Purchaser's obligation to complete the purchase herein is conditional
upon the Purchaser being satisfied:
(i)
that the Official Plan and zoning by-law applicable to the Property will
permit the Purchaser to construct and operate on the Property a Canadian
Tire Associate Retail Store, including an Automotive Service Centre, an
Outdoor Garden Centre, a food kiosk, an automobile rental agency and a
propane dispensing facility, an ATM machine and in addition, a gas bar, a
car wash and a convenience store, which may include a drive through fast
food restaurant (the "Purchaser's Facility"). The Purchaser hereby
acknowledges and agrees that any zoning by-law amendment and Official
Plan amendment shall be conditional upon compliance by the Vendor with
the fair hearing provisions as set out in Section 61 of the Planning Act,
R.S.O. c. P. 13, as amended;
(ii) .that itle Vendor has obtained all necessary approvals from the Ministry of
Transportation ("MTO") to permit access and construction of the pertinent
roadway to the Property from Highway 21, as extended, and that the
Purchaser is able to obtain such permits and/or other consents from all
applicable authorities having jurisdiction and on terms and conditions
satisfactory to the Purchaser which will permit ingress or egress to and
from the Property in the locations satisfactory to the Purchaser, and that
no contribution will be required by the Purchaser to such off-site costs as,
but not limited to, traffic signalization, turning lanes, deceleration lanes,
medians and entrances outside the Property boundaries;
(iii) that in the event the Purchaser is required by any requisite authority to
enter into any form of development agreement, site plan agreement or any
other type of agreement with respect to the Property, such agreement or
agreements shall be on terms and conditions satisfactory to the
Purchaser;
(iv)
that all required utilities including without limiting the generality of the
foregoing water line service, hydro electric service, sanitary sewers and
storm sewers, all such as to adequately service the Purchaser's Facility
have been installed to the lot lines of the Property or at such other
locations satisfactory to the Purchaser, and are fully paid for, all at no cost
to the Purchaser;
(v)
that the Purchaser is able to satisfy itself that building permits and such
other permits as may be required to permit the Purchaser to construct and
operate on the Property the Purchaser's Facility are available upon
application by the Purchaser and on the payment of the required permit
fees and site plan processing fees only. The Vendor represents and
warrants that all development levies in connection with the Property and
the Purchaser's Facility have been paid or will be paid by the Vendor.
The permits to be obtained shall include without limiting the generality of
the foregoing, such permits as may be required to allow the Purchaser to
install and maintain on its proposed building or buildings its usual type of
fascia signs as used by it in the Province of Ontario, together with the right
to construct, maintain and operate at least one free-standing illuminated
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pylon sign on the Property with a sign face of a design and size
acceptable to the Purchaser in its sole discretion. The Vendor agrees to
co-operate with and to assist the Purchaser in its application(s) to MTO for
its required building permits and sign permits.
(vi)
that on the acceptance of this offer by the Vendor the Purchaser shall be
permitted to enter on the Property at its sole expense and risk for the
purpose of making such soil, environmental and other tests as may be
required, including an environmental audit. In the event that the tests are
not satisfactory for the Purchaser's purpose, in the Purchaser's sole
discretion, the Purchaser shall have the right to terminate this Offer;
(vii)
that the purchase provided for herein is subject to the approval of the Real
Estate Committee of the Purchaser.
In the event that the above conditions have not been fulfilled, satisfied or
waived by the Purchaser in writing within one hundred and twenty (120) days after the
First Conditional Date (the "Second Conditional Date"), this offer shall become null and
void and the deposit shall be returned to the Purchaser without deduction but with
interest on the deposit as aforesaid.
Notwithstanding the foregoing, in the event that any of the foregoing
conditions set out in paragraph 6B have not been satisfied or waived by the Second
Conditional Date, despite the Purchaser's best efforts to have same satisfied, the
conditions may, at the option of the Purchaser, by written notice given on or before the
Second Conditional Date, be extended for a further period of up to ninety (90) days. In
addition, in the event that any person appeals the official plan amendment ("OPA")
and/or zoning by-law amendment ("ZBA) referred to in paragraph 6(B)(i) to the Ontario
Municipal Board ("OMB") and if, as a result of said appeal(s), the condition referred to in
paragraph 6(B)(i) has not been satisfied by the Second Conditional Date, the Purchaser
may at its option by written notice given on or before the Second Conditional Date
extend the period for satisfaction of the said condition up to December 31, 1999. In the
event of such an appeal to the OMB, the Vendor agrees to defend its OPA and ZBA
before the OMB.
The foregoing conditions set out in paragraph 6B are for the benefit of the
Purchaser and the fulfillment of anyone or more of them may be waived in whole or in
part by the Purchaser at any time or times.
7. PLANNING ACT AND SUBDIVISION
The Agreement of Purchase and Sale is to be effective only if the
provisions of the Planning Act, R.S.O., as amended, are complied with. If a consent to
severance is required, the Vendor covenants to make application for severance
forthwith upon acceptance of this offer, to diligently pursue same and to keep the
Purchaser fully informed as to its progress. All costs of every kind related to the
severance, including the payment of all levies and imposts shall be for the Vendor's
account. The Purchaser shall not be obliged to accept any conditions of subdivision
and in particular there shall be no dedication of lands for road widening or similar
purposes which would have the effect of reducing the net acreage below 4.0 acres or
which in any way would impede the Purchaser's ability to utilize the Property for the
Purchaser's Facility in the sole opinion of the Purchaser.
8. VENDOR'S SITE RESPONSIBILITIES
The Vendor shall at its cost prior to the dates referred to on Schedule liD"
complete in a good and workmanlike manner the works (the "Vendor's Site
Responsibilities") listed in Schedule "D". The foregoing obligations shall survive the
closing of this transaction.
9. VENDOR'S REPRESENTATIONS AND WARRANTIES
The Vendor represents and warrants to the Purchaser that, as of the date
of acceptance of this Offer and at Closing, and the Vendor further acknowledges and
agrees that it is a condition of the Purchaser's obligation to complete the purchase
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contemplated herein that the following representations and warranties will be true and
correct at Closing:
. (i)
(ii)
(iii)
that there are no actions, suits or proceedings pending or threatened with
respect to the Property;
that it has not received any notice of and is not aware of any expropriation
or proposed expropriation of the Property Qr any part thereof;
that there exist no agreements, covenants or instruments that in any way
prevent or prohibit the Vendor from entering into this Agreement or
complying with any of its terms or conditions;
(iv) that no municipal, provincial or other competent authority has made any
order or other provision respecting the use or occupation of any part of
the Property, other than as contained in the municipal by-laws of general
application, and the Vendor has received no notice from any such
authority directing any alteration, repair, improvement or other work to be
done or performed to or in respect of the Property or any part thereof;
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(v)
that this Agreement has been duly authorized, validly executed and
delivered by the Vendor;
(vi) that there are no local improvement charges, development charges or
other special levies against the Property nor has the Vendor received any
notice of any proposed local improvement charges or development
charges or other special levies;
(vii) that all municipal taxes, rates, levies and assessments with respect to the
Property are paid in full or will be adjusted as provided in this agreement
and there are no pending appeals or other proceedings in existence with
respect to such taxes, rates, levies and assessments; and
(viii) that the Property is not subject to any restrictions, conditions or restrictive
covenants.
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10. SOILS AND ENVIRONMENTAL INFORMATION
The Vendor covenants to deliver to the Purchaser within ten (10) days of
acceptance any reports in its possession relating to soils and environmental matters
including any environmental audits that may have been conducted in connection with
the Property.
11. ACCESS TO PROPERTY
The Purchaser and/or any authorized representative of the Purchaser
shall be permitted access to the Property at all reasonable times and upon reasonable
notice prior to Closing, and the Vendor shall, promptly upon receipt of a written request
from the Purchaser, provide all necessary authorizations to permit such access.
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12. CLOSING ADJUSTMENTS AND HOLDBACK
(a) The Purchase Price will be adjusted by apportioning as between the
Purchaser and the Vendor as of the Closing Date all adjustments which are customarily
made in transactions similar to this transaction including, without limiting the generality
of the foregoing, all real property taxes (or grants in lieu thereof), local improvement
rates, utilities, all to the end that all costs relating to the Property for or in respect of
periods up to but not including the Closing Date will be to or for the account of the
Vendor. The Vendor will prepare a draft statement of adjustments and submit same to
the Purchaser at least five (5) business days before the Closing Date. The Vendor and
Purchaser agree to readjust the adjustments made on Closing, if necessary, once more
accurate figures are available as soon as reasonably convenient, but no later than
twelve (12) months after Closing.
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(b) In the event that the Vendor's Site Responsibilities are not completed by
the Closing Date, the Purchaser shall be entitled to retain a holdback (the "Holdback") of
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) from the monies otherwise
payable to the Vendor at Closing. The Holdback shall be paid to the Vendor (subject to
the statutory lien holdback under the Construction Lien Act) upon completion of the
Vendor's Site Responsibilities. For purposes hereof, the Vendor's Site Responsibilities
shall be deemed to be completed once (i) all said work has been completed in a good
and workmanlike manner, (ii) the Vendor's engineer has certified that all said work has
been completed, which certification shall be satisfactory to the Purchaser and its
engineer, both acting reasonably and (iii) MTO has allowed full and uninterrupted road
access to the Property. In the event of dispute between the Vendor and Purchaser as
to whether the said work has been completed in a good and workmanlike manner or as
to whether the certification of the Vendor's engineer is satisfactory, then either party
may give written notice to the other party that it is referring said dispute to arbitration,
and the provisions of paragraph 27 shall govern said arbitration.
13. CLOSING DELIVERIES
(a) On the Closing, the Vendor shall deliver to the Purchaser the following, all
of which, save as expressly provided herein, shall be prepared at the Vendor's expense
and shall be subject to the prior approval of the Purchaser, acting reasonably:
e (i)
(ii)
.. (iii)
a registrable Transfer or Deed of the Property with the Planning Act
statements of the Transferor and Transferor's solicitor duly executed;
the Statement of Adjustments;
a statutory declaration of an officer of the Vendor that the Vendor is not a
non-resident of Canada within the meaning of the Income Tax Act
(Canada);
(iv) such other assurances and documents as the Purchaser may reasonably
require of the Vendor in a timely fashion prior to Closing to be delivered at
Closing, for more perfectly and absolutely assigning, transferring and
vesting in the Purchaser title to the Property free and clear of any
mortgage, lien, charge or encumbrance;
(v) a certified copy of a By-law passed by the municipal council of the Vendor
approving the sale of the Property to the Purchaser on the terms of this
agreement and the execution of this agreement and of all documents
required to complete the sale of the Property;
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(vi) a certificate of an officer of the Vendor confirming that all representations
and warranties of the Vendor contained in paragraph 8 of this agreement
are true and correct as of the Closing Date;
(vii) an Undertaking from the Vendor to re-adjust items on the Statement of
Adjustments or inadvertently omitted therefrom, if necessary, following
and within twelve (12) months after Closing.
(b) On the Closing, the Purchaser shall deliver to the Vendor the following
(and all prepared at the Purchaser's expense);
(i) a certified cheque or bank draft in an amount equal to the adjusted
balance of the Purchase Price (subject to paragraph 12(b»;
(ii) an Undertaking from the Purchaser to re-adjust items on the Statement of
Adjustments or inadvertently omitted therefrom, if necessary, following
and within twelve (12) months after Closing.
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14. CLOSING
The purchase herein shall be completed thirty (30) days after the
conditions contained in paragraph 6 have been satisfied or waived, as applicable, (the
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"Closing" or "Closing Date"). Vacant possession of the Property is to be given to the
Purchaser on the Closing Date in accordance with paragraph 22.
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15. RESTRICTIVE COVENANT
The Vendor and Purchaser mutually covenant and agree that they shall,
on or before Closing, enter into a Restrictive Covenant Agreement substantially in the
form attached as Schedule liE", which shall be registered on title to the Retained Lands
at Closing in priority to all mortgages, leases and other encumbrances, pursuant to
which the Vendor shall covenant and agree for itself and its successors and assigns
and successors in title of any part of the Retained Lands that it will not use nor permit
the use of any part of the Retained Lands for:
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(i)
(ii)
(iii)
(iv)
(v)
e (vi)
the sale of automotive parts and supplies;
an automobile service station or gas bar;
a sporting goods store;
a hardware store;
a plumbing supply store or electrical supply store;
a paint and wallpaper store; or
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(vii) a horticultural nursery or garden centre;
provided that the following uses shall be exempt from the foregoing prohibition:
(a) any department store, such as but not limited to Wal Mart, Zellers, The Bay and
Eatons;
(b) automobile dealerships; and
(c) retail food outlets.
The foregoing covenant and agreement shall run with and benefit the Property and
every part thereof and shall burden the Retained Lands and every part thereof. The
Restrictive Covenant Agreement shall be prepared by the Purchaser's solicitor.
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16. ENTIRE AGREEMENT
It is agreed that there are no representations, warranties, collateral
agreements or conditions affecting the Agreement of Purchase and Sale or the Real
Property except as expressed herein.
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17. TRANSFER
The Transfer shall be prepared by the Vendor at its expense and all other
usual closing documents shall be prepared at the expense of the Purchaser in a form
acceptable to the Vendor's solicitors acting reasonably.
18. TENDER
Any tender of documents or money may be made upon either party or
their solicitors and money may be tendered by cash or certified cheque.
19. NOTICE
Any notice required to be given pursuant to this Offer to Purchase shall be
sufficiently given if served personally or delivered by courier or by facsimile and in the
case of the Purchaser addressed to it at:
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Canadian Tire Real Estate Limited
P. O. Box 770, Station "K"
2180 Yonge Street, 15th Floor
Toronto, Ontario, M4P 2V8
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Attention: The President
FAX: 1-416-480-3990
and in the case of the Vendor to it at:
Town of Kincardine
707 Queen Street
Kincardine, Ontario
N2Z 1 Z9
Attention: Administrator
FAX: 1-519-396-8288
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Either party 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
herein specified shall be deemed to be the address of such party for the giving of
notices herein. The word "notice" in this paragraph shall be deemed to include request,
statement and other writing in this Offer provided or permitted to be given by the Vendor
to the Purchaser or by the Purchaser to the Vendor.
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20. REPRESENTATIONS BY PURCHASER
. The purchaser represents and warrants that:
(a) that it is registered to do business in the Province of Ontario; and
(b) that it is a resident of Canada within the provisions of Section 116 of the
Income Tax Act (Canada).
21. INCOME TAX ACT
On closing the purchase herein the Vendor shall deliver to the Purchaser:
(a) evidence satisfactory to the Purchaser establishing the Vendor as a
resident in Canada for the purposes of the Income Tax Act (Canada); or
(b) a certificate of the Minister of National Revenue issued to the Vendor and
Purchaser pursuant to Section 116(2) of the Income Tax Act (Canada).
- 22. VACANT POSSESSION e
The Vendor covenants to deliver vacant possession of the Property on
Closing.
23. TIME OF THE ESSENCE
Time in all respects shall be of the essence hereof.
24. ASSIGNMENT
This agreement shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns, provided however, that
neither party may assign this agreement without the prior written consent of the other.
25. NON-BUSINESS DAY
In the event that any date established by or in accordance with this
agreement or any date of termination for a period of time set forth or referred to in this
agreement shall fall upon a non-business day or a Saturday, then such date shall be
deemed to be the next following business day which is not a Saturday.
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26. GOODS AND SERVICE TAX
The Purchaser shall pay Goods and Services Tax (GST) to the Vendor
only if required by law to do so. The parties acknowledge that the Purchaser is
registered under Subdivision d of Division V of Part IX of the Excise Tax Act
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R.S.C. 1985 c.E-13 as amended by S.C. 1990 c.45 and is accordingly not obliged to
pay GST to the Vendor in respect of the Purchase Price for the Property.
27. ARBITRATION
Where this Agreement provides that a matter in dispute may be referred to
arbitration, then the parties shall use all reasonable efforts to agree upon an arbitrator
within ten (10) days after either party gives notice to the other that it is referring a
dispute to arbitration. The Arbitrator shall be an independent professional engineer.
Failing agreement as to an arbitrator within said ten (10) day period, the arbitrator shall
be appointed pursuant to the Arbitrations Act of Ontario. The costs of the arbitration
shall be apportioned between the parties as the arbitrator shall decide. Any dispute so
referred to arbitration shall be decided by arbitration alone and not by recourse to any
Court or by any other action.
DATED at Toronto, Ontario, this/(. fá-ay of December, 1998.
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CANADIAN TIRE REAL ESTATE LIMITED
G.5.T. No. R 140495821
Per: £w R~
Name: ß-N Ro~
Title: VtUL Pvc..s¡ ~~ ~......J £'s+,",-4c.
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Per:
Name:
Title:
We have authority to bind the Corporation.
The undersigned hereby accepts the above offer and its terms, covenants
and conditions and agrees to and with the above named Purchaser to duly carry out
same on the terms and conditions above mentioned.
DATED at Kincardine, Ontario this day of~ J :¡.-h.. ,1998.
THE CORPORATION OF THE
KINCARDINE
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Name:
Title:
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Title: JnAo.Iol( /
Name: G~#<4 fl- S"" ~Ñ
TOWN
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Per:
We have authority to bind the Corporation.
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SCHEDULE "A"
Description of Property
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Part of Lot 1, Concession 1, S.D.R. (south of Dutham Road), Town of Kincardine, County
of Bruce
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SCHEDULE B
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SCHEDULE "D"
Part I - Vendor's Site Responsibilities prior to April 30, 1999:
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1. Site Works:
1.1. Rough-grading, to grade to be agreed by Vendor and Purchaser by
December 17,1998.
2. Site Services:
2.1. Supply and install sanitary sewer trunk line and leads to the Canadian
Tire Real Estate Limited lot line, including manholes as required.
2.2. Supply and install storm sewer system and leads to the Canadian Tire
Real Estate Limited lot line, including manholes as required,
2.3. Supply and install water main for both domestic and Fire Protection to
the lot line including valves and associated chambers.
3. Electrical:
3.1. Supply and install underground electrical ducts and wiring to permit a
minimum supply of 347/600 v - 3 phase - 4 wire, 800 amp electrical
service to the Canadian Tire Real Estate Limited site,
3.2. Supply and install sufficient underground electrical ducts and wiring to
accommodate all electrical wiring concerns of the roadway such as
street lighting and/or traffic signals as mayor may not be required.
The Vendor shall supply and install all traffic lights which may be
required to be installed, either by the Town or by MTO, in connection
w.ith the Purchaser's Facility at such time as they are required. If
installation of traffic lights is permitted, the Vendor shall supply and
install same prior to July 1, 1999.
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Part II - Vendor's Site Responsibilities prior to July 1, 1999:
4. Roads:
4.1
Supply and install access and temporary access road from highway 21
to established lines and levels including all infrastructure and lighting to
Town of Kincardine standards. Vendor agrees to co-operate with and
support any application to MTO by the Purchaser for temporary access
for the Purchaser to allow construction of the Purchaser's Facility.
Supply and install all pertinent concrete curbing and sidewalks as
required, to the Town standards,
Supply and install all landscaping, boulevard sodding, shrubs and trees
as required for the roadway,
.
4.2
4.3
Notwithstanding the foregoing provisions of this Schedule "D", the parties agree that the
deadlines set out herein may be subject to change upon the joint recommendation of
the professional engineers retained by the Vendor and Purchaser in connection with the
development of their respective lands. In the event of a dispute between the parties as
to any aspect of the Vendor's Site Responsibilities, either party may give written notice
to the other that it is referring said dispute to arbitration, and the provisions of paragraph
27 shall govern said arbitration.
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SCHEDULE "E"
AGREEMENT
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This Agreement is made as of the e day of e , 19ge
BET WEE N:
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CANADIAN TIRE REAL ESTATE LIMITED
a company incorporated under the laws
of the Province of Ontario,
(hereinafter called "CTREL"),
OF THE FIRST PART,
- and -
THE CORPORA TIOI'J OF THE TOWN OF KINCARDINE
(hereinafter called the "Town"),
OF THE SECOND PART.
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WITNESSES THAT:
WHEREAS:
1. CTREL is the owner of those lands described on Schedule "A" (the "CTREL
Lands");
2. The Town is the owner of those lands described on Schedule "B" (the "Town
Lands");
3. CTREL and the Town have agreed that it is in their mutual interest to impose
certain restrictions on the use of the Town Lands;
NOW THEREFORE in consideration of the premises, covenants and agreements set
forth herein, and of the sum of Five Dollars ($5.00) now paid by each party to the other
and of other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the parties hereto hereby covenant and agree as follows:
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1. The Town covenants and agrees that it will not use or permit or allow any part of
the Town Lands to be used for:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
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the sale of automotive parts and supplies;
an automobile service station or gas bar;
a sporting goods store;
a hardware store;
a plumbing supply store or electrical supply store;
a paint and wallpaper store; or
a horticultural nursery or garden centre,
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provided that the following uses shall be exempt from the foregoing prohibition:
(a) any department store, such as but not limited to Wal Mart, Zellers,
the Bay and Eatons;
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(b) automobile dealerships; and
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(c)
retail food outlets.
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The foregoing covenant and agreement is for the benefit of and shall run with and be
appurtenant to the CTREL Lands and every part thereof and shall burden the Town
Lands and every part thereof.
2. This Agreement shall be registered against title to the Town Lands in priority to
any other interest in the Town Lands and the Town covenants to deliver an
acknowledgment of such priority from the holder of any mortgage, charge, lien or other
encumbrance on the Town Lands.
3. Nothing in this Agreement shall constitute the parties as partners or joint
venturers, nor shall this Agreement be deemed or construed as creating the relationship
of partnership or joint venture between the parties hereto.
4. This Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns, including successors in title.
IN WITNESS WHEREOF the parties hereto have hereunder caused their corporate
seals to be affixed under the hands of their proper officers duly authorized in that behalf.
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CANADIAN TIRE REAL ESTATE LIMITED
Per:
Name:
Title:
Per:
Name:
Title:
We have authority to bind the corporation.
THE CORPORATION OF THE TOWN OF
KINCARDINE
Per: ~ ~ «1\'''' l\. Á
Name:
Title: c:::.- \ \QA.. K
Per: JJh-'(. ~
Name: G.~ ·í¿-~V.7T\),V
Title: ~.J~
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We have authority to bind the corporation.
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