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HomeMy WebLinkAbout2007-139 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2007-139 Being a By-law to authorize the purchase agreement between the Corporation of the Municipality of Clarington and William Tonno Construction Ltd., in respect to the purchase of Parcel C as attached, former Town of Bowmanville, Municipality of Clarington 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, with the Corporate Seal, a purchase agreement between the William Tonno Construction Ltd. and said Corporation. BY-LAW read a first and second time this 11th day of June, 2007. BY-LAW read a third time and finally passed this 11th day of June, 2007. , 'l. , Municipal Clerk -;'... CJlJ!il1glOn MEMO CLERK'S DEPARTMENT To: Bruno Bianco, P.Eng., Design Engineer From: Cindy Fleming, Administrative Assistant to the Municipal Clerk Date: June 11, 2007 Subject: OFFER TO SELL CRC.STEVENSRD.1 WILLIAM TONNO CONSTRUCTION BY-LAW 2007-139 OUR FILE: LOlTO t Attached are three (3) copies the above-noted agreement duly executed on behalf of the municipality. One copy has been retained in the Municipal Clerk's Department. cf CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-6506 '01JUNlll At'1 9:05:25 Cl!Jlmgron MEMO TO: Patti Barrie, Clerk FROM: Bruno Bianco, Design Engineer DATE: June 14, 2007 SUBJECT: Offer to Sell Agreement Execution - Mayor and Clerk CRC.StevensRd.1 Please execute the attached documents per reports EGD-043-07 & By-Law 2007-139 and return to our department prior to June 15, 2007. Attached for reference purposes is the resolution of Council that pertains to the purchase of lands from William Tonno Construction. Regards, \ .3 t> ,'t . ft..) ) / }\!V:tY 10 l 0/~JY Bruno M. Bianco, P. Eng. Design Engineer BMB/al CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T(905)623-3379 OFFER TO SELL The undersigned, WILLIAM TONNO CONSTRUCTION LTD. (the "Vendor"), hereby agree to and with THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Purchaser"), to sell the land more particularly described as Parcel C on the Plan prepare by D. G. Biddle & Associates Limited, dated May, 2007, and entitled "William Tonno Construction Ltd. Plan Showing Limits of Development Lands, Parkland and Stevens Road Widening", together with a perpetual right in the nature of an easement to construct and maintain on the adjacent Parcel B, a suitable slope from the roadway to be constructed on Parcel C, as is required by the application of good engineering practice (the "Property"), for the purchase price of TWO ($2.00) DOLLARS (the "Purchase Price"), subject to adjustments as provided in this Offer. ADDITIONALL Y, the Purchaser agrees with the Vendor to the following terms and conditions: 1. This transaction is to be completed no later than 5:00 p.m. on June 29th, 2007 (the "Closing Date"), which date may be extended or amended by written agreement of the solicitors for the parties, and on which date vacant possession of the Property is to be given 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. Not used. 4. Not used. 5. Except as provided in paragraph 7 hereof, the Vendor shall discharge all encumbrances and restrictions registered against title to the Property at its expense on or before the completion of this transaction. 6. The Purchaser is to be allowed until 5:00 p.m. on June 22, 2007 (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 Vendor hereby consents to governmental agencies releasing to Purchaser details of all outstanding orders affecting the Property. The Vendor agrees to execute and deliver such further authorizations in this regard as Purchaser may reasonably require. 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 compliance and completion as evidenced by letter from the relevant municipality or utility supplier; and 2 (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 Vendor is 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 and all monies paid shall be returned with interest but without deduction by the Vendor to the Purchaser. 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 Vendor's title to the Property. 8. The Purchaser shall be credited towards the Purchase Price with the amount, ifany, which it shall be necessary for the Purchaser to pay to the Minister ofN ational Revenue in order to satisfy the Purchaser's liability in respect of tax payable by the Vendor under the non-residency provisions of the Income Tax Act by reason of this sale. The Purchaser shall not claim such credit if the Vendor delivers on completion the prescribed certificate or the statutory declaration stating that the Vendor is not then a non-resident of Canada. 9. The Vendor shall deliver on the completion of this transaction evidence of compliance of the transaction with the Family Law Act, R.S.O. 1990, c.F3, as amended, as the Purchaser, acting reasonably, may require. 10. Except as herein expressly provided, this Agreement shall extend to, be binding upon and enure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. 11. THIS OFFER TO BE ACCEPTED BY THE Purchaser on or before June 15,2007, otherwise it shall become null and void. This offer, when accepted, shall constitute a binding contract of purchase and sale and time in all respects shall be the essence of this Agreement. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement or the Property other than as expressed herein in writing. 12. Ifthis 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. 106979800R TOOO 1). 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 Vendor in respect of any G.S.T. so payable. The Purchaser is not required to remit to the Vendor 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, Vendor will deliver any sketch or survey of the Property within Vendor's control to Purchaser as soon as possible and prior to the Requisition Date. If a partial discharge of any Charge/Mortgage which applies to the Property 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 Vendor's 3 lawyer's personal undertaking to obtain, out of the closing funds, a partial discharge in registrable form and to register same on title within a reasonable period oftime after completion, provided that on or before completion Vendor 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 Vendor 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 Property shall remain at the risk of the Vendor until the completion of this transaction. 15. The Vendor covenants that the Property will be in a clean condition immediately prior to the completion of this transaction. This covenant shall survive and not merge on the completion of this transaction. 16. This Agreement shall be effective to create an interest in the Property only if Vendor complies with the subdivision control provisions of the Planning Act by completion of this transaction, and Vendor covenants to proceed diligently at her expense to obtain any necessary consent by prior to the completion of this transaction. 17. A Transfer/Deed for the Property shall, save for the Land Transfer Tax Affidavit, be prepared in registrable form at the expense of the Purchaser. If requested by the Purchaser, Vendor covenants that the TransferlDeed to be delivered on completion shall contain the statements contemplated by Section 50(22) of the Planning Act, R.S.O. 1990, c.P.B, as amended. 18. The Vendor and 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 Vendor and the Purchaser, as the case may be, shall not occur contemporaneously with the registration ofthe transfer/deed ofland and other registrable documentation, and shall be governed by the Escrow Document Registration Agreement pursuant to which the Vendor's 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 4 other means and/or within such other time as may be agreed to by the parties' respective solicitors. 19. On the closing of the transaction, the Vendor shall provide to the Purchaser, if required by the Purchaser, the Purchaser's form of the following documents: a. Section 116 of the Income Tax Act/Family Law Act Affidavit b. Declaration of Possession 20. Any realty taxes including local improvement rates, as applicable, shall be apportioned and allowed to the day of completion, the day of completion itself to be apportioned to the Purchaser. 21. 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 Vendor and Purchaser or by their respective lawyers who are hereby specifically authorized to do so. 22. The Municipality shall prepare and deposit on title, at its expense, a plan of survey which identifies the Property. 23. Any tender of documents or money may be made on the parties or their respective solicitors. 24. The Purchaser shall pay to the Vendor on the completion ofthis transaction, the Vendor's reasonable legal fees and disbursements incurred in connection with the negotiation of this Offer and the completion of this Agreement, the mortgagee's discharge fees and its reasonable legal fees and disbursements if paid to the Vendor by the mortgagee, and not by the Purchaser directly to the mortgagee including without limitation, registration fees for the registration on title of the partial discharge of mortgage referred to in paragraph 13 hereof, and Land Transfer Tax. This paragraph 26 shall survive and shall 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. Any notice required to be served by the Vendor 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 LIC 3A6 Attention: A.S. Cannella, Director of Engineering Services Facsimile No. (905) 623-9282 5 and any notice required to be served by the Purchaser upon the Vendor pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Vendor if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: William Tonno Construction Ltd. 121 Marcia Avenue Oshawa, Ontario L 1 G 3G9 Facsimile No. Qo5* 51""-~2."'5 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. 27. 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 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. DATED at Bowmanville, Ontario this J 3 day of June, 2007. William Tonno Construction Ltd. peru -~ William Tonno, President I have authority to bind the corporation 6 DATED at Bowmanville, Ontario this 15th day of June, 2007. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per: ~ icipal Clerk We have the authority to bind the Corporation.