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HomeMy WebLinkAbout2006-085 CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NUMBER 2006-085 being a By-law to authorize the purchase agreement between the Corporation of the Municipality of Clarington and ALVARINA DE LEMOS and MARIA CELESTE DE LEMOS to sell the property known for municipal purposes in 2006 as 46 East Beach Road, Bowmanville, Ontario and being more particularly described as Part of Lot 9, Block, Broken Front Concession, former Town of Bowmanville, now in the Municipality of Clarington, Regional Municipality of Durham NOW THEREFORE BE IT RESOLVED THAT, the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. That the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington, a sale and purchase agreement respecting 46 East Beach Road between Alvarina De Lemos and Maria Celeste De Lemos and the Corporation. BY-LAW read a first time this 18th day of April 2006 BY-LAW read a second time this 18th day of April 2006 BY-LAW read a third time and finally passed this 18th day of April 2006 (~, i .(f;(t,-- John . utton.,.Mayo.. \, OFFER TO SELL The undersigned, AL V ARlNA DE LEMOS and MARIA CELESTE DE LEMOS (the "Vendors"), hereby agree to and with THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Purchaser"), to sell the property known for municipal purposes in 2006 as 46 East Beach Road, Bowmanville, Ontario and being more particularly described as Part of Lot 9, Block, Broken Front Concession, former Town of Bowman vi lie, now in the Municipality of Clarington, Regional Municipality of Durham (the "Property"), for the purchase price of ONE HUNDRED THIRTY- FIVE THOUSAND ($135,000.00) DOLLARS (the "Purchase Price"), subject to adjustments. In addition to the Purchase Price, the Purchaser will pay the Vendors on the Closing Date the sum of SIXTY -FIVE THOUSAND ($65,000.00) DOLLARS in complete and final settlement of all claims for damages arising out of the proposed expropriation of the Property, including all claims for compensation, costs and waiver and release of the Vendors' rights as set out below which are provided in the Expropriations Act ("Settlement Payment"). The Vendors hereby direct the Purchaser to pay and deliver all funds owing under this agreement by certified cheque payable to Rueter Scargall Bennett LLP, in trust. ADDITIONALLY, the Purchaser agrees with the Vendors to the following terms and conditions: 1. This transaction is to be completed no later than 5:00 p.m. on May 4, 2006 (!lIe "Closing Date"), which date may be extended or amended by written agreement of the solicitors for the parties. On the closing of this transaction, vacant possession of the Property shall be given by the Vendors to the Purchaser. 2. This Agreement of Purchase and Sale may be executed in counterparts and delivery of an executed copy of same by each party to the other shall constitute complete offer and acceptance thereof. 3. The Vendors shall remove the house trailer now on the Property as soon after the date on which this Offer is accepted by the Purchaser as is practicable due to soil conditions. This covenant shall survive and not merge on the completion of this transaction. 4. The Vendors represent and warrant to the Purchaser that during the time the Vendors have owned the Property, the Vendors have not caused any building on the Property to be insulated with insulation containing urea formaldehyde, and that to the best of the Vendors' knowledge no building on the Property contains or has ever contained insulation that contains urea formaldehyde. This warranty shall survive and not merge on the completion of this transaction. 5. Except as provided in paragraph 7 hereof, the Vendors shall discharge all encumbrances and restrictions registered against title to the Property at the Purchaser's expense on or before the completion of this transaction. Alternatively, the Vendors may discharge all encumbrances and restrictions registered against title to the Property at their expense and the Purchaser agrees to reimburse the Vendors for all expenses, fees and penalties that are incurred as a result of this action. This covenant shall survive and not merge on the completion of this transaction. 6. The Purchaser is to be allowed until May 2, 2006 (the "Requisition Date") to examine the title to the Property at its own expense and to satisfy itself that there are no outstanding orders or deficiency notices affecting the Property and that its present use may be lawfully continued. The Vendors hereby consent to governmental agencies releasing to Purchaser details of all outstanding orders affecting the Property. The Vendors agree to execute and deliver such further authorizations as the Purchaser may reasonably require in this regard. 7. PROVIDED the title is good and free from all registered restrictions, charges, liens and encumbrances save and except for: (a) any registered restrictions or covenants that run with the land, provided that such are complied with; (b) any municipal agreements and registered agreements with publicly regulated utilities, providing such have been complied with or security has been posted to ensure - 2- compliance and completion as evidenced by letter from the relevant municipality or utility supplier; and (c) any minor easement for the supply of domestic utility or telephone services to the Property or adjacent properties. If on or before the Requisition Date any valid objection to title or to any outstanding work order or deficiency notice and which the Vendors are unable or unwilling to remove, remedy or satisfy and which Purchaser will not waive, this Agreement notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end. Save as to any valid objection so made by such day and except for any objection going to the root of the title, the Purchaser shall be conclusively deemed to have accepted Vendors' title to the Property. 8. The Purchaser shall be credited towards the Purchase Price with the amount, if any, which it shall be necessary for the Purchaser to pay to the Minister of National Revenue in order to satisfy the Purchaser's liability in respect of tax payable by the Vendors under the non-residency provisions of the Income Tax Act by reason of this sale. The Purchaser shall not claim such credit if the Vendors deliver on completion the prescribed certificate or the statutory declaration stating that the Vendors are not then non-residents of Canada. 9. The Vendors shall deliver on the completion of this transaction such evidence of compliance of the transaction with the Family Law Act, RS.O. 1990, c.F3, as amended, as the Purchaser, acting reasonably, may require. 10. This Agreement shall extend to and be binding upon and enure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. 11. THlS OFFER TO BE ACCEPTED BY THE Purchaser on or before April 21, 2006, otherwise it shall become null and void. This Offer, when accepted, shall constitute a binding contract of purchase and sale. It is agreed that there is no representation, warranty or condition affecting this Agreement or the Property other than as expressed herein in writing. 12. If this transaction is subject to Goods and Services Tax (G.S.T.), then such tax shall be paid in addition to the Purchase Price. The Purchaser hereby confirms that the Purchaser is a registrant under the Excise Tax Act ( Canada), (Registration No. I 06979800R TOOO I). The Purchaser covenants to remit as required by the Act any G.S.T. payable in respect of the sale of the Property to the Purchaser and to indemnify the Vendors in respect of any G.S.T. so payable. The Purchaser is not required to remit to the Vendors G.S.T. on the Closing Date. This covenant shall survive and not merge on the completion of this transaction. 13. If requested by Purchaser, the Vendors will deliver any sketch or survey of the Property within Vendors' control to Purchaser as soon as possible and prior to the Requisition Date. If a discharge of any Charge/Mortgage held by a corporation incorporated pursuant to the Trust and Loan Companies Act (Canada), Chartered Bank, Trust Company, Credit Union, Caisse Populaire or Insurance Company and which is not to be assumed by Purchaser on completion, is not available in registrable form on completion, Purchaser agrees to accept Vendors' lawyers personal undertaking to obtain, out of the closing funds, a discharge in registrable form and to register same on title within a reasonable period of time after completion, provided that on or before completion Vendors shall provide to Purchaser a mortgage statement prepared by the mortgagee setting out the balance required to obtain the discharge, together with a direction executed by Vendors directing payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion of this transaction. 14. The Vendors covenant that the Property will be in a clean condition on the Closing Date. This covenant shall survive and not merge on the completion of this transaction. 15. A TransferlDeed for the Property shall, save for the Land Transfer Tax Affidavit, be prepared in registrable form at the expense of the Purchaser. The Vendors covenant that if requested by the Purchaser, the TransferlDeed to be delivered on completion shall contain the statements contemplated by Section 50(22) of the Planning Act, RS.O. 1990, c. P.13, as amended. - 3 - 16. The Vendors and the Purchaser acknowledge and agree that if the Teraview Electronic Registration System (the "ERS") is operative in the Land Titles Office in which title to the Property is recorded, then the following provisions shall apply: (a) the parties shall instruct their respective solicitors to enter into an escrow closing agreement in the Purchaser's Solicitors' standard form, (hereinafter referred to as the "Escrow Document Registration Agreement') establishing the procedures for completion of this transaction by means of the ERS; (b) the delivery and exchange of documents, monies and possession of the Property and the release thereof to the Vendors and the Purchaser, as the case may be, shall not occur contemporaneously with the registration of the transfer/deed ofland and other registrable documentation, and shall be governed by the Escrow Document Registration Agreement pursuant to which the Vendors' Solicitors and the Purchaser's Solicitors will hold in escrow all documents, monies received by them and will not release same to their respective clients except in strict accordance with the Escrow Document Registration Agreement; and (c) each of the parties hereto agrees that any documents not intended for registration on title to the Property may be delivered to the other party hereto in properly executed form by facsimile transmission or other similar system reproducing the original, provided the party transmitting any such document shall also deliver the original thereof to the recipient party by overnight courier sent on the Closing Date or by such other means and/or within such other time as may be agreed to by the parties' respective solicitors. 17. On the closing of this transaction, the Vendors shall provide to the Purchaser, the Purchaser's form of the following documents duly executed by the Vendors: a. Undertaking to Re-adjust b. Section 116 of the Income Tax Act/Family Law Act Affidavit c. Declaration of Possession d. Construction Lien Act affidavit 18. Any rents, mortgage interest, realty taxes including local improvement rates and unmetered public or private utility charges and unmetered cost offuel, as applicable, shall be apportioned and allowed to the Possession Date and the Possession Date itselfis to be apportioned to the Purchaser. 19. The Purchaser shall pay for all reasonable fees for legal and appraisal services required by the Vendors to negotiate and complete this transaction. In the event that the parties are unable to agree on the reasonable fees, the parties consent to this matter being referred to the Ontario Municipal Board, pursuant to Section 30 of the Expropriations Act, in order to have an Assessment Officer of the Ontario Superior Court of Justice appointed to assess the reasonable fees in accordance with Section 32(1) of the Expropriations Act. The Vendors hereby irrevocably direct the Purchaser that any and all payments of costs shall be made payable to Rueter Scargall Bennett LLP, in trust. The parties agree and acknowledge that this Agreement is sufficient direction on the payment of costs. This covenant shall survive and not merge on the completion of this transaction. 20. Time shall in all respects be of the essence hereof, provided that the time for doing or completing of any matter provided for herein may be extended or abridged by an agreement in writing signed by Vendors and Purchaser or by their respective lawyers who are hereby specifically authorized to do so. 21. The Vendors acknowledge and agree that the Purchase Price includes compensation based upon the market value of the Property, damages attributable to disturbance, and damages for inj urious affection. The Vendors acknowledge and agree that payment of the Settlement Payment by the Purchaser to the Vendors shall have the effect of a full and final settlement and release of the Purchaser from all claims by the Vendors for damages howsoever arising or caused, and all claims for compensation and/or costs, as well as the wai ver and release of the Vendors' rights referred to in paragraph 24 hereof. - 4- 22. If necessary for registration purposes, the Purchaser shall prepare, at its expense, a plan of survey for the Property. 23. Any tender of documents or money may be made on the parties or their respective solicitors. 24. The Vendors hereby irrevocably waive and release their rights to the Purchaser under sections 41 and 42 of the Expropriations Act. This covenant shall survive and not merge on the completion of this transaction. 25. This Agreement shall be read with all changes of gender or number required by the context. 26. The parties agree that this Agreement of Purchase and Sale is to hold in the strictest confidence until the Vendors are released in writing by the Purchaser from this covenant. This covenant shall survive and not merge on the completion of this transaction. 27. Any Notice required to be served by the Vendors upon the Purchaser pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Purchaser if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: Municipality of Clarington 40 Temperance Street Bowmanville, Ontario LlC 3A6 Attention: David Crome, Director of Planning Services Facsimile No. (905) 623-0830 and any notice required to be served by the Purchaser upon the Vendors pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Vendors if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: Alvarina De Lemos and Maria Celeste De Lemos 502 Queen Street East Toronto, Ontario M5H 1 V2 with a copy to: Rueter Scargall Bennett LLP BCE Place 161 Bay Street Suite 4220, Box 226 Toronto, Ontario M5J 2S 1 Attention: Paul ScargaU Facsimile No. 416-869-3411 or such other telefax number or address of which either party has notified the other party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which it may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. 28. For the purposes of this Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military , - 5 - authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquakes or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the parties none of which has been caused by the deliberate default or act or omission by the parties and none of which has been avoidable by the exercise of reasonable effort or foresight by the parties. D A TED at 'fA {'(~I'l j (': , Ontario this y t.t; day of April, 2006. /::?/ /" "/'/ ./. _".',9;~. ,....> ~.I-:"-' &:~~'C>4"~ /Z% . Vd~ . - ~ / A vanna De Lemos . .' h /({')7./~ c(/ :~d"vk(yj l.-/Maria Celeste e lemos Wi DATED at Bowmanville, Ontario this day of April, 2006. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per: