HomeMy WebLinkAbout15 167 704-706 6th Street East in Owen Sound (roll no 4259 030 024 125 00 0000) property sale by-law f
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2015 -167
BEING A BY -LAW TO AUTHORIZE THE SALE OF PROPERTY TO
LONG HOLDINGS INC.
(704 - 706 6th Street East, Owen Sound)
WHEREAS Section 270 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as
amended, provides that a municipality shall adopt and maintain policies with
respect to the sale and other disposition of land;
• AND WHEREAS pursuant to the said Municipal Act, Section 8 (1) and 9 provide
that the powers of a municipality under this or any other Act shall be interpreted
broadly so as to confer broad authority on the municipality to enable the
municipality to govern its affairs as it considers appropriate and to enhance the
municipality's ability to respond to municipal issues and a municipality has the
capacity, rights, powers and privileges of a natural person for the purpose of
exercising its authority under this or any other Act;
AND WHEREAS the Municipality of Kincardine, on November 18, 2015 declared
surplus to its needs that property described as Park PT Lot 4 Baring S,
municipally known as 704 -706 6th Street East in Owen Sound, Roll No. 4259 030
024 125 00 0000;
AND WHEREAS a Short Narrative Appraisal Valuation was completed by HG
Appraisers Inc. on August 26, 2015;
AND WHEREAS the Council of the Municipality of Kincardine deems it advisable
to dispose of the aforementioned property;
III AND WHEREAS Long Holdings Inc. has submitted an offer to purchase the
aforementioned property in the amount of $350,000;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the Mayor and Chief Administrative Officer be authorized and
directed to sign and execute such documents, on behalf of The
Corporation of the Municipality of Kincardine as they may deem advisable,
to convey that property described as Park PT Lot 4 Baring S, municipally
known as 704 -706 6th Street East in Owen Sound, Roll No. 4259 030 024
125 00 0000, and to affix the corporate seal of the Municipality of
Kincardine.
2. The sale price for the said property be three hundred and fifty thousand
dollars ($350, 000).
3. That this transacti is subject to the conditions set out in the Offer to
• P urchase Agreement attached hereto as Schedule `A' and forming part of
the By -law and that net proceeds be retained by Bruce Telecom.
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Page 2 of 2
704 -706 6th Street East in Owen Sound Property Sale By -law
By -law No. 2015 - 167
4. This by -law shall come into full force and effect upon its final passage.
• i as the "704 -706 6th Street East in Owen Sound,
This by -law may be cited a ,
(Roll No. 4259 030 024 125 00 0000) Property Sale By -law ".
READ a FIRST and SECOND TIME this 9t day of December, 2015.
READ a THIRD TIME and FINALLY PASSED this 9th day of December, 2015.
(-01/11/ tirAt.geAdtlp
Mayor Clerk
•
111
•
OFFER TO PURCHASE
THIS AGREEMENT made as of the _9th_ day of December, 2015
FROM: Long Holdings Inc.
(the "Purchaser ")
TO: Bruce Telecom of The Corporation of the Municipality of Kincardine
(the "Vendor ")
ARTICLE 1 — PURCHASE AND SALE
1.01 Purchase and Sale
The Purchaser agrees to purchase from the Vendor and the Vendor agrees to
sell to the Purchaser all of the Vendor's legal and beneficial right, title and interest in and
to that certain parcel of land (the "Lands ") described in "Schedule A" situated in the City
of Owen Sound in the Province of Ontario including all buildings, structures and
improvements thereon (collectively the "Building "), and all service contracts and other
agreements related thereto which under their terms the Vendor is entitled to assign to
and which may be assumed by the Purchaser, (collectively the "Contracts ") and all
chattels, equipment and other personal property owned by the Vendor, located on the
Lands on the date of this Offer and used solely or primarily in connection with the
operation of the Lands and the Building (the "Equipment ") (excluding the
Telecommunications Equipment and Supplemental Power Generators owned by Bruce
Telecom currently situated within the Premises). The Lands, the Building, the Contracts
and the Equipment are herein collectively called the "Property ". All telecommunications
equipment and supplemental power generators owned by Bruce Telecom currently
situated within the area of the Building set out in Schedule "C" (the "Excluded
Property ") shall not form part of the Property, regardless of whether, and the extent to
which, such Excluded Property is affixed to the Lands or Building. The parties
acknowledge and agree that the sale of the Property as contemplated by the terms of
this Offer is being made by the Vendor to the Purchaser on an "as -is, where -is" basis
without representation or warranty of any kind except as expressly set forth herein.
1.02 Lease back
The Vendor shall lease back from the Purchaser certain portion of the Property
pursuant to a lease so as to contain the essential terms and conditions set out in
Schedule "B" to this Offer and such other terms and conditions as are normally
associated with a commercial lease of space similar to the Premises (as defined in
Schedule "B ") and as mutually agreed to by both parties. The Vendor and Purchaser
agree to act reasonably with respect to the negotiation and settlement of the final form of
lease (the "Lease ") and to settle the Lease prior to the Closing Date.
1.02 Purchase Price
The purchase price for the Property shall be Three Hundred and Fifty Thousand
Dollars ($350,000.00) (the "Purchase Price "), subject to adjustments as provided
herein. If the transaction(s) contemplated herein is /are taxable for the purposes of goods
and services tax under the Excise Tax Act (Canada), as amended, then any such tax
payable shall be in addition to the Purchase Price.
1.03 Adjustments
(i) General
Adjustments shall be made as of 12:01 a.m. on the Closing Date. The Vendor will
receive the benefit of all income and shall be responsible for all expenses for the
Property for the period up to and including the 11:59 p.m. on the day preceding the
Closing Date and the Purchaser will receive the benefit of all income and be responsible
for all expenses from and including the Closing Date. The adjustments shall include
realty taxes, local improvement rates and charges, assessments, prepaid amounts or
current amounts payable under Contracts (if any), operating costs, utilities, fuel, licenses
necessary for the operation of the Property and all other items normally adjusted
between a vendor and purchaser in respect of the sale of property similar to the
Property. In addition, the Purchaser agrees to reimburse the Vendor $935.08, which sum
represents 50% of the cost of the appraisal performed by HG Appraisers Inc. This sum
shall be included in the statement of adjustments The Vendor and the Purchaser agree
to readjust any items on or omitted from the statement of adjustments to be arranged on
Closing and to provide undertakings to readjust to each other on the Closing Date.
1.04 Payment of Purchase Price
The Purchase Price shall be payable as follows:
(a) within five (5) business days after acceptance of this Offer by the Vendor,
the Purchaser will submit a deposit in the amount of Seventeen Thousand
Five Hundred Dollars ($17,500.00) (the "Initial Deposit ") by a certified
cheque, wire transfer or bank draft payable to the Vendor's solicitors as a
deposit to be held in trust by the Vendor's solicitors in a non - interest
bearing account pending completion of the transaction(s) contemplated in
this Offer and to be credited on the account of the Purchase Price;
(b) the balance of the Purchase Price, subject to adjustments as provided
herein, will be paid by the Purchaser to the Vendor's solicitors on the
Closing Date by certified cheque, wire transfer or bank draft in
accordance with the provisions of this Offer. .
1.05 Deposit
The Deposit-will be forfeited to the Vendor if the Purchaser is in default of its
obligation to complete the sale and purchase of the Property hereunder without
prejudice to any other right or remedy of the Vendor or will be paid to the Purchaser in
the event that the Purchaser elects to terminate this Offer due to the Vendor being in
default of its obligation to complete the sale and purchase of the Property hereunder..
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ARTICLE 2 — REPRESENTATIONS AND WARRANTIES
2.01 Vendor's Representations and Warranties
The Vendor covenants, represents and warrants to and in favour of the
Purchaser that, as of the date of this Offer and at the Closing Date as follows::
(a) the Vendor is the registered and beneficial owner of the Property;
(b) the Vendor is a corporation duly incorporated and existing with the power,
authority and capacity to carry out the transaction(s) contemplated in this
Offer;
(c) as of the Closing Date the transactions contemplated by this Offer will
have been duly and validly authorized by all requisite corporate
proceedings and will constitute legal, valid and binding obligations of the
Vendor;
(d) the Vendor is not now and will not at the Closing Date be a non - resident
within the meaning of Section 116 of the Income Tax Act (Canada);
2.02 Purchaser's Representations and Warranties
The Purchaser covenants, represents and warrants to and in favour of the
Vendor that, as of the date of this Offer or such other date as may be specified:
(a) the Purchaser is a corporation duly incorporated and existing with the
power, authority and capacity to carry out the transactions contemplated
in this Offer;
(b) the Purchaser is not a non - resident within the meaning of Section 116 of
the Income Tax Act (Canada);
(c) the Purchaser is registered under Part IX of the Excise Tax Act (Canada)
and has been assigned Registration No. _103382461 ,
(d) the transaction(s) contemplated by this Offer will by the Closing Date
have been duly and validly authorized by all requisite corporate
proceedings;
(e) neither the entering into nor delivery of this Offer nor the completion of the
transaction(s) contemplated in this Offer by the Purchaser will result in a
violation of: (i) any of the provisions of the constating documents of the
Purchaser; and /or (ii) any agreement or other instrument to which the
Purchaser is a party or by which the Purchaser is bound.
(f) The Purchaser will enter into a Lease with the Vendor governed by the
terms set out in "Schedule B ".
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2.03 Survival of Representations and Warranties
The representations and warranties contained in Sections 2.01 and 2.02 of this
Offer will not merge upon Closing and will continue in full force and effect for a period of
one (1) year after the Closing Date so that a claim for any breach of the representation
or warranty must be made on or before the date which is one (1) year after the Closing
Date.
Each of the Purchaser and Vendor agree to protect, indemnify and save the
other harmless from and against any and all losses, costs, expenses, damages,
liabilities, claims and demands whatsoever arising or suffered as a result of any
misrepresentation or breach of warranty by it under this Offer or any document,
certificate or other instrument delivered by it pursuant to this Offer.
ARTICLE 3 — COVENANTS
3.01 Vendor's Covenants
The Vendor covenants with the Purchaser as follows and acknowledges that such
covenants are being relied upon by the Purchaser:
(a) The Vendor shall ensure that the representations and warranties of the
Vendor set out in Section 2.01 are true and correct at the Closing Date
and that the conditions of Closing over which the Vendor has reasonable
control have been performed or complied with by the Closing Date.
3.02 Purchaser's Covenants
(a) The Purchaser shall ensure that the representations and warranties of the
Purchaser set out in Section 2.02 are true and correct at the Closing Date
and that the conditions of Closing have been performed or complied with
by the Closing Date.
ARTICLE 4 — INSURANCE
4.01 Insurance
The Property shall be and remain at the risk of the Vendor until until 12:01 a.m.
on the the Closing Date and thereafter the Purchaser shall be responsible for placing its
own insurance. Pending completion of the transaction(s) contemplated herein, the
Vendor will hold all insurance policies and the proceeds thereof in trust for the parties as
their interest(s) may appear and in the event of damage to the Property and the cost of
repair of such damage exceeds $50,000.00, the Purchaser may in its sole and absolute
discretion either have the proceeds of the insurance and complete the transaction(s)
contemplated herein, or to release its interest in the insurance and terminate this Offer
and have the Deposit, returned to the Purchaser without deduction in which case this
Offer shall be null and void.
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ARTICLE 5 — CLOSING
5.01 Closing
The closing of this transaction ( "Closing ") shall occur at the office of the
Purchaser's solicitors on February 1, 2016 (the "Closing Date ").
5.02 Vendor's Deliveries on Closing
On the Closing Date, the Vendor will deliver the following to the Purchaser:
(a) vacant possession of the Property;
(b) a transfer of the Lands in registrable form as required by the County of
Grey and /or City of Owen Sound Land Titles Office transferring the Lands
to the Purchaser (subject to the Permitted Encumbrances);
(c) a statement of adjustments;
(d) an undertaking by the Vendor to readjust the statement of adjustments;
(e) a certificate of the Vendor executed by a senior officer certifying that (i)
the Vendor is not a non - resident within the meaning of Section 116 of the
Income Tax Act (Canada); and (ii) that the representations and warranties
contained herein are true and accurate as of the Closing Date;
(f) an assignment and assumption of all Contracts that are capable of being
assigned with cross indemnities;
(g) the executed Lease;
(h) all such other assurances, consents, agreements, documents and instruments in
registrable form as may be reasonably required by the Purchaser to complete the
transaction(s) contemplated herein;
(collectively, the "Vendor's Closing Deliveries "), all in form and substance satisfactory
to the Purchaser, acting reasonably.
5.03 Purchaser's Deliveries on Closing
On the Closing Date, the Purchaser will deliver the following to the Vendor:
(a) the balance of the Purchase Price as contemplated herein;
(b) a statutory declaration confirming the Purchaser's HST registration
number;
(c) an indemnity form in favour of the Vendor with respect to any HST arising
from completion of this Offer;
(d) an undertaking by the Purchaser to readjust the statement of
adjustments;
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(e) an assignment and assumption of all Contracts that are capable of being
assigned with cross indemnities;
(f) the executed Lease;
(g) all such other assurances, consents, agreements, documents and
instruments in registrable form as may be reasonably required by the
Vendor to complete the transaction contemplated herein;
(collectively, the "Purchaser's Closing Deliveries "), all in form and substance
satisfactory to the Vendor, acting reasonably.
5.04 Single Transaction
All documents and funds shall be delivered in escrow at the place of closing
specified herein on the Closing Date pending registration of the documents referred to
herein as reasonably required by the solicitors for the parties and receipt of such
evidence that they shall reasonably request that all conditions of this Offer have been
satisfied. It is a condition of closing that all matters of payment, execution and delivery of
documents by each party to the other and the acceptance for registration of the
appropriate documents in the appropriate offices of public record shall be deemed to be
concurrent requirements and it is specifically agreed that nothing will be complete at the
closing until everything required at the closing has been paid, executed and delivered
and until all documents have been accepted for registration.
ARTICLE 6 — TAXES AND FEES
6.01 Taxes and Fees
(a) The Purchaser shall be responsible for land transfer taxes and any fees
for registering the Transfer necessary to convey the Property to the
Purchaser.
(b) Each party shall pay its own legal fees in respect of the transaction(s)
contemplated herein.
(c) No harmonized sales tax ( "HST ") shall be paid by the Purchaser to the
Vendor with respect to the purchase by the Purchaser of the Property
provided that the Purchaser provides to the Vendor on or before the
Closing Date a certificate of the Purchaser containing: (i) the Purchaser's
registration number for the purposes of HST; and (ii) the Purchaser's
covenant to file all necessary returns and to assume full responsibility for
payment of all applicable HST to the Receiver General of Canada in
respect of the transaction(s) contemplated herein, and to indemnify and
save harmless the Vendor with respect thereto.
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ARTICLE 7 — GENERAL PROVISIONS
7.01 Further Assurances
Each party shall promptly do, execute, deliver or cause to be done, executed and
delivered all further acts, documents, and things in connection with this Offer that the
other party may require, for the purposes of giving effect to this Offer.
7.02 Extended Meanings
In this Offer words importing the singular number only shall include the plural and
vice versa, words importing the masculine gender shall include the feminine and neuter
genders and vice versa and words importing persons shall include individuals,
partnerships, associations, trusts, unincorporated organizations and corporations.
7.03 Time if of the Essence
Time shall be of the essence in this Offer in all respects.
9.7.04 Entire Agreement
This Offer constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties hereto with respect thereto. There
are no representations, warranties, terms, conditions, undertakings or collateral
agreements, express, implied or statutory, between the parties other than as expressly
set forth in this Offer.
7.05 Amendments and Waiver
No modification of or amendment to this Offer shall be valid or binding unless set
forth in writing and duly executed by both of the parties hereto and no waiver of any
breach of any term or provision of this Offer shall be effective or binding unless made in
writing and signed by the party purporting to give the same and, unless otherwise
provided, shall be limited to the specific breach waived.
7.06 Notices
Any demand, notice or other communication to be given in connection with this
Offer shall be given in writing and shall be given by personal delivery, by mail or
registered mail, facsimile or other means of electronic communication addressed to the
recipient as follows:
To the Vendor:
Bruce Telecom
3145 Hwy 21, PO Box 80,
Tiverton Ontario
NOG 2T0
Attn: Steve Soychak
7
To the Purchaser:
Long Holdings Inc.
722 Rosebank Road
Pickering, Ontario
L1W 4B
Facsimile: (905) 837 -9786
Attn: Stephan Leenheer
or to such other address, individual or facsimile number as may be designated by notice
given by either party to the other. Any demand, notice or other communication given by
personal delivery shall be conclusively deemed to have been given on the day of actual
delivery thereof and, if given by mail or registered mail, on the third business day
following the deposit thereof in the mail and, if given by facsimile or by other electronic
means, on the day of transmittal thereof if given during normal business hours of the
recipient and on the business day during which such normal business hours next occur if
not given during such hours on any day.
7.07 Confidentiality
Except as required to fulfill its obligations under this Offer, the Purchaser
covenants and agrees to refrain from, directly or indirectly, disclosing the existence of
this Offer or any of its terms and conditions, except to the Purchaser's professional
advisors for the purpose of obtaining professional advice respecting this Offer and
except to the extent necessary for the Purchaser to fulfill its obligations under this Offer.
7.08 No Dealings with Third Parties
The Vendor covenants and agrees that from the date hereof until Closing or the
earlier termination of this Offer by either party, the Vendor will not enter into, or continue
and negotiations or discussions with any third party in respect of the sale or lease of the
Property or any part thereof in any manner whatsoever, excepting only any existing
tenant.
7.09 Relationship of the Parties
Nothing in this Offer shall be construed so as to make the Purchaser a partner of
the Vendor and nothing in this Offer shall be construed so as to make the Purchaser an
owner of the Property for any purpose until the Closing Date, subject to any then
outstanding conditions of this Offer.
7.10 Assignment
The rights of the Purchaser hereunder may not be assigned .
7.11 Real Estate Commissions
The Vendor acknowledges and agrees that it has not engaged any broker,
brokerage firm, listing agent or finder in connection with the transaction contemplated
herein and shall indemnify and hold harmless the Purchaser from liability for the
payment of any such commission or fees to any party engaged by the Vendor.
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The Purchaser acknowledges and agrees that it has not engaged any broker,
brokerage firm, listing agent or finder in connection with the transaction contemplated
herein and shall indemnify and hold harmless the Vendor from liability for the payment of
any such commission or fees to any party engaged by the Purchaser.
7.12 Successors and Assigns
This Offer shall enure to the benefit of and shall be binding upon the parties, their
respective successors and assigns and shall enure to the benefit of and be enforceable
only by such successors and assigns that have succeeded or which have received such
assignment in the manner permitted by this Offer.
7.13 Governing Law and Attornment
This Offer shall be interpreted and construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein. The parties attorn to the
exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to
hear appeals therefrom.
7.14 Counterparts
This Offer may be executed in any number of counterparts, each of which shall
be deemed to be an original and all of which taken together shall be deemed to
constitute one and the same instrument. Counterparts may be executed either in original
or facsimile form or other electronic means and the parties adopt any signatures
received by a receiving facsimile machine as original signatures of the parties; provided,
however, that any party providing its signature in such manner shall promptly forward to
the other party an original of the signed copy of this Offer which was delivered via
facsimile or by electronic means.
7.15 Currency
Unless otherwise explicitly stated in this Offer, all references to monetary
amounts shall refer to Canadian funds.
7.16 Non - Business Days
In the event that any date specified herein or contemplated herein shall fall upon
a day other than a business day in the parties' respective jurisdictions, then such date
shall be deemed to be the next following business day.
7.17 Lawyers as Agents
Notices, approvals, waivers and other documents permitted, required or
contemplated by this Offer may be given or delivered by the parties or by their respective
solicitors on their behalf.
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7.18 Severability
Any provision of this Offer which is prohibited or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such prohibition or
unenforceability and shall be severed from the balance of this Offer, all without affecting
the remaining provisions of this Offer or affecting the validity or enforceability of such
provision in any other jurisdiction.
7.19 Planning Act
This Agreement is subject to the subdivision control provisions of the Planning
Act (Ontario).
7.20 Acceptance
This Offer is open for acceptance by the Vendor up to and including
December 16th 5:00 pm, Ontario time after which this Offer, if
not accepted by the Vendor, shall be deemed null and void.
DATED as the City of Pickerin
15t in the Province of
Ontario
th e day of December, 2015.
Long Holdin•s Inc.
Per: 1// •
Name: St: •han Leenheer
Title: Vic- President
ACCEPTANCE
The Vendor hereby accepts the above Offer and agrees to be bound by all of the terms
and conditions thereof.
Municipality o e
Per:
Name: Murray Clarke
Title: CAO
Per
te e:- Onne. Et i i e
MQioc
10
SCHEDULE "A"
Legal Description of the Property
PT PARKLT 4 S/S BARING ST PL OWEN SOUND AS IN R458005; OWEN SOUND
Land Titles Division of the Land Registry Office for Grey (No.16)
PIN 37070 -0078 (LT)
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SCHEDULE "B"
Leaseback
Lessor: Purchaser
Lessee: Vendor
Premises: Approximately 2200 square feet of 704 -706 6 Street East, City of Owen
Sound as set out on the attached Appendix A together with a right in common with others
entitled thereto to the use of any common area and facilities contained in the Building. On
or before Closing, the parties will conduct a joint measurement of the Premises
substantiated at the joint cost of the parties by an architects' or surveyor's certificate or
other proof of measurement mutually agreeable to by the parties acting reasonably.
Gross Rent shall be based upon the leasable area determined by the joint
measurement.
Commencement: The Closing Date
Term: 1 year
Renewal: The lease shall renew for consecutive one year terms at the sole discretion of
the Lessee so long as the Lessee is not in Default, all of the terms of the lease shall
remain in full force and effect for any and all Renewals. The Gross Rent shall increase
with each renewal at same % as the Consumer's Price Index for the Province of Ontario;
in the event that the Consumer's Price Index for the Province of Ontario's movement is
negative that rate shall remain the same as the previous Term, as the Rate is set under
the terms of this OTP there is no provision for Arbitration with regard to the Rate within
the terms of the lease
Termination: The lease shall be terminated at any time at the sole discretion of the
Lessee so long as the Lessee is not in default with six (6) months written notice
Assignment: The lease may be assigned at any time by the Lessee with the Lessor's
written authorization, which shall not be unreasonably withheld, conditioned or delayed,
so long as the Assigned Party meets the covenant requirements of the Lessor, and so
long as the Lessee is not in Default.
Rate:
• Gross Rent - $8 /foot
Type: Gross Lease
Utilities: Lessor shall provide Lessee with access to all utilities necessary to conduct
business in the Premises. Lessor shall provide separate utility meters from local
distribution companies, which shall accurately reflect Lessee's usage. Lessee shall be
solely responsible for and shall promptly pay for all direct public utility and private
services rendered or furnished to or for the benefit of Lessee and to the Premises
during the Term hereof including water, sewer, gas, electricity, and telephone, based on
the use of such utilities and services. Lessee shall at all times have the right, in its sole
discretion, to select the particular utility providers for the Premises so long as said utility
is available to the Premises.
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Registration: The Lessee shall be entitled to register a notice of this lease
pursuant to section 111 of the Land Titles Act (Ontario) which shall contain the
content prescribed by section 25 of Ontario Regulation 19/99, and the solicitor for
the Lessee is authorized and directed by the Lessor to effect such registration.
13
SCHEDULE "C"
Area of Excluded Property
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14