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HomeMy WebLinkAbout03 116 agree easement osborne Ie e e - THE CORPORATION OF THE MUNICIPALITY OF KINC INE BY-LAW i I I I I I A BY-LAW TO AUTHORIZE THE SIGNING~F AN AGREEMENT OF OFFER TO SELL - EASEMEN INTEREST REQUIRED FOR MUNICIPAL PURPOSES (OS ORN) I NO. 2003-116 I WHEREAS THE Municipal Act, 2001, S.O. 2001, c. 25 Section /1 (2) authorizes municipalities to pass by-laws respecting matters within the sph re of jurisdiction of water distribution; AND WHEREAS The Council of The Corporation of th Municipality of Kincardine deems it expedient to purchase easement located n the South part of Lot 68, Plan 361, Lot 1 to 2, Part Lot 30, Concession "A", fo mer Township of Kincardine, now Municipality of Kincardine, in the County of B ce, being more particularly described on attached Offer to Sell, for future water istribution use; . AND WHEREAS the Corporation of the Municipality of Kin rdine, deems it advisable to purchase from Lyle Osborn the easement as outli ed in the Offer to Sell attached to this by-law as Schedule A; I NOW THEREFORE the Council for The Corporation of tJ Municipality of Kincardine ENACTS as follows: r I . That the Mayor and CAO be authorized to execute, ~n behalf of The Corporation of the Municipality of Kincardine, an Offe to Sell with Lyle Osborn, attached to this by-law as Schedule A, and to ffix the corporate seal as and when required. 1. 2. That the lands referred to are more particularly set out i the Agreement of Offer to Sell attached to this By-law as Schedule A; 3. The purchase price for the easement shall be Fifteen thousand ($15,000.00) plus G.S.T. I I The by-law shall come into full force and effect upon its ~nal passage. This by-law may be cited as the "Lot 68, Plan 361, Lot ~ to 2, Part Lot 30, Concession "A", Ward 2 (Osborn) Land Purchase By-Ia~". READ a FIRST, SECOND and THIRD time and DEEMED TO ~E PASSED this - 13th day of August, 2003. r 4. 5. .. 1.." ",- .. . '" ~ ..\ f..' . It . SCHlIDULE II A" BY-LAW Il1O...-..2003 - 116 ~""1œMp'J' OF OITER TO SELL - OSBORI!IE OFFER TO. SELL - EASEMENT INTEREST BET WEE N: Lyle Osborn (the "Vendor") . and- THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "MunicipaJity") DESCRIPTION OF LANDS 1.1 The Vendor offers to sell to the Municipality the following lands: An easement interest in respect of the lands legally known as Concession ~ Part Lot 68, Plan 361, Lot 1 to 2, Part Lot 30, as shown in cross-hatching on Schedule "A" known as (the "-laAds). The extent and nature of the easement interest shall be as set out in Schedule "B" attached hereto and the actual location of the lands shall be set out as a part on a Reference Plan by the Municipality upon the completion of the construction of its underground services. CLOSING DATE 2.1 The closing of this transaction shall take place on the 12th day of December, 2003 or such other date as may be mutually agreed upon by each party's Solicitor (the "Closing Date"). PAYMENT OF COMPENSATION 3.1 The Municipality shall pay to the Vendor on the Closing Date the sum of $15,000.00, exclusive of the Goods and Services Tax, in lawful money of Canada, payable to the Vendor, or as the Vendor may direct, by cheque. FFES 4.1 The Municipality agrees to pay the reasonable legal fees incurred by the Vendor and to be responsible for all survey fees incurred in connection with this Agreement. VACANT POSSESSION 5.1 The Municipality shall have vacant possession of the lands on the Closing Date. ,.' t'· t . . 4- , " J .' ..... . , .1 . I , ,I - 2- PERMISSION TO ENTER 6.1 The Vendor hereby grants to the Municipality, its employees, agents, contractors and consultants, permission to enter onto the lands in advance of the Closing Date for the purpose of preliminary site preparation, pre- engineering and construction of its underground services, as well as surveying the final location of the lands INSPECTION AND CONDITIONS 7.1 The Municipality shall have the right, at any time: (a) to enter upon the lands to make detailed inspections and to perform such tests as the Municipality deems" appropriate, inc1uding soil tests and drilling test holes; and (b) to obtain access to any government records to determine if there are any building deficiencies, violations of law, wastes, hazards or soil conditions other than identified in this Agreement which might interfere with the Municipality's intended use of the lands or with respect to which the Municipality might be put to any additional expense. 7.2 The Vendor warrants that, to the best of the Vendor's knowledge and belief having made due enquiry, there are no building deficiencies or violations of any Federal or Provincial laws or regulations, or any non- compliance with any orders or approvals of any government authority relating to the lands or their use or which might interfere with the Municipality's intended use of the lands. The Vendor undertakes to advise the Municipality immediately: (i) upon becoming aware of any error in this statement; or (ii) upon receipt of notice from any municipal or governmental authority regarding the foregoing: or (iii) upon becoming aware of any changes in the circumstances under which such statement is made. 7.3 The Vendor represents and warrants to the Municipality that, to the best of his knowledge and belief, (a) the lands have never been used as a waste disposal site; (b) no contaminants, pollutants, dangerous substances. liquid waste or hazardous materials exist or have been stored in or on the lands; Þ' '" ' ! . , - ~ ..' J -~ . .. ~ . . . - 3- (c) no underground storage tanks or surface impoundments have been or are in or on the lands; and (d) spousal consent is not necessary to this transaction under the provisions of the Family Law Act (Ontario) R.S.O. 1990 unless the Vendor's spouse has executed the consent hereinafter provided. 7.4 The warranties and conditions contained in this Agreement shall not merge on and shall survive the Closing Date. If, in its sole discretion, the Municipality determines that the warranties or conditions have been breached, the Municipality may either: (a) elect to terminate this Agreement; or .' (b) take such action for damages against the Vendor as the Municipality may determine. 7.5 If, in the opinion of the Municipality's Solicitor, expropriation of the above lands is necessary to clear title or to meet deadlines for the Municipality's work, the Municipality may acquire the lands by expropriation and the Vendor agrees that payment of the above sum represents compensation in full for the lands and all entitlements as stated in the Expropriations Act. INJURIOUS AFFECTION 8.1 The Vendor acknowledges that the Municipality is purchasing the lands for the purpose of constructing underground water services. The Vendor hereby accepts the compensation set out in Paragraph 3.1 hereof in full settlement of all c1aims for compensation for the lands, and any and all rights under the Expropriations Act, including business losses and damages attributable to disturbance and damages for injurious affection and any other compensation to which the Vendor may be entitled under the Expropriations Act, resulting from the sale of the lands or the construction of the underground services. TITLE 9.1 The Vendor represents and warrants that title to the lands is and will be on the Closing Date and free from restrictions, covenants, easements, charges, liens and encumbrances. 9.2 The Vendor shall deliver to the Municipality, on or before the Closing Date, each of the following: (a) a registerable deed in favour of the Municipality (except for any Land Transfer Tax Act Affidavits): , . · ~ 'I" . r · · · - 4- (b) such other deeds, conveyances, resolutions and other documents as the Municipality or the Municipality's Council may reasonably require in order to implement the intent of this Agreement; and (c) a statutory declaration that the Vendor is not a non-resident of Canada within the meaning of Section 116 of the Income Tax Act. 9.3 The Vendor acknowledges and agrees that there shall be no adjustments to the compensation on closing for realty taxes or any other matters. CLOSING ARRANGEMENTS .' 10.1 Where each of the Vendor and the Municipality retain a lawyer to complete this Offer to Sell, and where the transaction will be completed by electronic registration pursuant to Part III of the Land Registration Reform Act, R.S.O. 1990, c L.4, as amended, the Vendor and the Municipality acknowledge and agree that the delivery of documents and the release thereof to the Vendor and the Municipality may, at the lawyer's discretion: (a) not occur contemporaneously with the registration of the transfer/deed (and other registerable documentation), and (b) be subject to conditions whereby the lawyer receiving documents and/or money will be required to hold them in trust and not release them except in accordance with the terms of a written agreement between the lawyers. PREPARATION AND REGISTRATION OF TRANSFER/DEED 11.1 The Transfer/Deed, except for the Land Transfer Tax Act Affidavit, shall be prepared and r !J·'11.Mf by the Ve~in ~7table to the Municipality. .3 ~ t:lYJ . ;-1' GOODS AND SERVICES TAX 12.1 The Municipality warrants that it is a registrant under the Excise Tax Act in respect of the payment of the Goods and Services Tax and will remit the Goods and Services Tax payable directly to the appropriate taxing authority following completion of this transaction. PLANNING ACT 13.1 This Agreement shall be effective to create an interest in the lands only if the subdivision control provisions of the Planning Act are complied with by the Vendor on or before closing. . ' ,,¡I. . ., .. -5- . IRREVOCABILITY 14.1 This offer shall be irrevocable by the Vendor for a period of 120 days from the date hereof. Acceptance of this offer by resolution or by-law of the Municipality's Council shall be good and sufficient acceptance. GENERAL 15.1 Time shall be of the essence. 15.2 Any covenants of this Agreement not completed on or before the Closing Date shall survive the closing. . 15.3 This Agreement constitutes the entire agreemetlt between the parties and there is no representation, warranty, collateral agreement or condition affecting this Agreement or the lands other than expressed herein. 15.4 Any tender of documents or money under this Agreement may be made upon the Vendor or Municipality, or their Solicitors. 15.5 The provisions of this Agreement shall extend to, bind and enure to the benefit of the heirs, executors, administrators, successors and assigns, as the case may be, of each of the parties. 15.6 This Agreement shall be construed in accordance with the laws of the Province of Ontario. 15.7 This Agreement shall be subject to the provIsions of the Municipal Freedom of Information and Protection of Privacy Act. - 15.8 Each of the parties shall promptly do, make, execute, deliver or cause to be done, made, executed or delivered all such further acts, documents and things as the other party hereto may reasonably require for the purpose of giving effect to this Agreement whether before or after the Closing Date. 15.9 Upon acceptance of this offer by the Municipality, this shall be a binding Agreement of Purchase and Sale. . NOTICE 16.1 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary prepaid mail or prepaid courier to the Municipality at: ",,' ! ! . , ~"< · · · 6- The Corporation of the Municipality of Kincardine c/o White, Duncan, Ostner and Linton LLP P.O. Box 457, 45 Erb Street East Waterloo. Ontario, N2J 4B5 Attention: Steven O'Melia and to the Vendor at: Lyle Osbom c/o Lime Kiln Cottages R R #2 Tiverton, Ontario NOG 2TO THIS OFFER TO SELL is made by the Vendor this I day of P, l.l~ ' 2003. ~~ SPOUSAL CONSENT: The Undersigned Spouse of the Vendor hereby consents to the disposition evidenced herein pursuant to the provisions of the Family Law Act, RS.O. 1990 and hereby agrees with the Municipality that he/she will execute all necessary or incidental documents to give full force and effect to the s~n~ Name: _~~ .:;rk!ý4/ Witness: THIS OFFE WAS ACCEPTED by resolution or by-law of the Municipality at its meeting of , 2003, as evidenced by the hands of its authorized signing officers h are set out below. THE CORPORATION OF THE MU IPALITY N DINE , , - 7 - " SCHEDULE "A" l . 'T . "'.,. , , . .. f .' . . - 8- SCHEDULE "B" - FORM OF EASEMENT TERMS AND PROVISIONS OF THE EASEMENT: 1. The Transferor doth grant, convey and confirm unto the Transferee, its successors and assigns, in perpetuity, the free, uninterrupted and undisturbed right and easement to enter upon the lands herein described at any time for the purposes of constructing and installing all fI'Il:IAieipallL s9 :'<iGøe in, under, over and upon the said lands, and with the further and continuing right to the said Transferee, its successors and assigns, and its servants, agents and workmen to enter upon the said lands at any time to construct, repair, correct, operate, rep~e and maintain at all times in good condition and repair the said ~ ~!!I ~e;s and for every such purpose the Transferee shall have access to th~ said lands at all times by its agents, servants, employees and workmen. 2. The Transferee covenants and agrees that. upon completion o( any work undertaken hereunder, the Transferee will restore the areas of land upoo which it has performed work to the same condition as that in which the lands were found prior to the commencement of the work. 3. The Transferor covenants with the Transferee to keep the lands herein described free and clear of any trees, buildings, including building projections such as window sills, chimney breasts, cornices, eaves and other architectural features, swimming pools, structures or obstructions' as may be necessary for the use, operation. repair, replacement or maintenance of the easement and to use the lands herein described only in a manner and for purposes not inconsistent with the exercise of the rights created by this indenture and, without limiting the generality of the foregoing, only as a yard, lawn, garden, flowerbed, roadway, driveway or parking area and the Transferor agrees to not do or suffer to be done anything which might injure any of the works of the Transferee thereon. 4. The Transferee, by the acceptance and registration of the within Easement, agrees to be bound by the tenms and provisions contained herein. 5. The Party of the Third Part for and in consideration of the sum of Fifteen Thousand ($15.000.00) Dollars now paid to it (the receipt whereof is hereby acknowfedged) doth hereby consent to the grant of easement herein by the Transferor and postpones its claim as Mortgagee, the intent being that its Mortgage shall be subject to the easement herein as though the said easement had been registered prior to the registration of its Mortgage. Jù ~¿~ (.A.>qte. r' . ~1( ~ .. 1· .. " e¡ I , . ,. t. .. "",;f .. ,1 1 I i I I - 9- 6. The burden and benefit of this Agreement shall run with the lands herein described and shall extend to and be binding upon and enure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. "