HomeMy WebLinkAboutPSD-080-09Clarington REPORT
Leading the Way
PLANNING SERVICES
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE MEETING
Date: Monday, September 14, 2009
Report #: PSD-080-09
File #: RE 6.12.8
By-law #: ~o o q - 12,5
Subject: LAND ACQUISITION
10 DUCHESS STREET - ORONO
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1,. THAT Report PSD-080-09 be received;
2. THAT the property identified as 10 Duchess Street, Orono, Ontario and being more
particularly described as part of Lot 10, Block "C" C.G. Hanning's Plan, former Village of
Orono, being Part of Lot 29, Concession 5, Municipality of Clarington, Regional
Municipality of Durham be APPROVED for acquisition for the purchase price of (TEN
THOUSDAND DOLLARS) $10,000.00 plus adjustments;
3. THAT in addition, the Municipality will pay the Vendors on the Closing Date the sum of
ONE THOUSAND, FIVE HUNDRED DOLLARS ($1,500.00) as an allowance to
compensate for topsoil- and reseeding necessitated by the erosion washout; and the
sum of EIGHT HUNDRED AND NINETY FIVE DOLLARS ($895.00) which are the taxes
paid from August 2008 to closing;
4. THAT the funds for the purchase, and any associated costs, be charged to account
number 110-50-130-85002-7401 Land Acquisition;
5. THAT the attached By-law be PASSED to authorize the Mayor and the Clerk, on behalf
of the Municipality, to EXECUTE an Agreement to acquire the property; and
6. That staff and the Municipal Solicitor be directed to take all necessary actions to
complete the transaction.
REPORT NO.: PSD-080-09
Submitted by:
Davi . Crome, MCIP, RPP
Director of Planning Services
26 August 2009
FL/DJC/df
PAGE 2
Reviewed by: F ~~'`" "~.-~--~ ~f V ~
Franklin Wu,
Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905)623-3379 F (905)623-0830
REPORT NO.: PSD-080-09 PAGE 3
1.0 BACKGROUND
1.1 On August 14, 2008, the owners of the property located at 10 Duchess Street (at the
rear of their home at 5068 Main Street, Orono) contacted the Director of Operations with
regard to the damage that had occurred to their property (Attachment 1). The solution
offered by the owners was to have the property come under the ownership of the
Municipality. The property is located adjacent to other lands owned by the Municipality
as part of the Orono Park.
1.2 A property appraiser was engaged by the Municipality to complete an appraisal report
and as of February 21, 2009, the fair market value of the property was estimated to be
$25,000. The property owner has agreed to sell a portion (approximately one third) of
the property to the Municipality. The appraiser revisited their appraisal and based on
the portion being acquired and its impact on the overall desirability of the lot (it will no
longer have access to Duchess Street) estimated the portion being acquired at $10,000
as fair market value. Staff considers the agreed upon price of $10,000 to be
reasonable.
1.3 To compensate the owners for the damage that has been done to their lands an
additional $1,500 to provide for topsoil and seeding is being provided to the vendor for
their use in replanting the land as they see fit. In addition, the vendor has asked that
they be reimbursed for the taxes on the property back-dated to August 2008, estimated
to be $895. The vendor will be provided with an easement over the section that will be
Municipally owned to allow for access to the rear of their lot (Attachment 2).
1.4 As set out in the Offer to Sell (Attachment 3), the Municipality will be responsible for
reasonable legal costs for the Vendor. The Municipality will have a survey of the
property prepared and will have a new survey of 5068 Main Street prepared showing
the lot melded with the remaining portion of 10 Duchess Street which is being retained
by the vendor.
1.5 The closing date of the transaction is September 30, 2009.
2.0 CONCLUSION
2.1 This property has been identified by the Acting Director of Operations as necessary for
erosion control works at the western limit of Duchess Street and will also form part of
the Orono Park. It is recommended that the property purchase be approved.
2.2 The Acting Director of Operations and Director of Finance has reviewed this report.
Attachments:
Attachment 1 - Letter to Director of Operations
Attachment 2A - Key Map and Aerial Map
Attachment 26 - Aerial Map
Attachment 3 -Signed Offer to Sell Duchess Street
Attachment 4 - By-law
Kim and Peter Gunn,
August 14, 2008.
Attention: Fred Horvath
Director of Operations
Hampton Depot
Dear Mr. Horvath,
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MUidICIP1~LITY GF CLr,~?~JGT~i~I
rlua~i u i ici ~~ ~
To Report PSD-080-09
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®~E~AT3~3i~S ®EPT.
After a series of rainstorms throughout the summer, the property behind us has been seriously damaged.
In the past this was not a problem due to the fact that the old roadway was sloped toward Main Street. The
fairly new paved roadway (done about 2-3 years ago) is sloped toward the back lot instead of Main Street
and now all runoff is directed toward the road allowance and unfortunately, our property. To be exact, the
property in question is #0 Duchess Street, plan CG Henning BLK C PT lot 10. This is a severed lot that
nms adjacem to our home on Main Street. We havo owned this lot aad paid taxes on it for the last fifteen
years. It is cuaently zoned as R2 by the Town of Clarington.
After a series of phone calls from our neighbours, this was recently addressed as Murray Devitt had a
crew remove trees, dig the area, dump earth, gravel and gabion stones to help with the massive erosion. It
was not realized at die time by this crew that part of the land was private so when trees were removed, a
partial fence destroyed and an invisible dog fence broken they were clearly on our property to make
adjustments . This is easily mistakable, as the Town of Clarington owns all lots in this area backing onto
Orono Park area with the exception of ours, lot 10. We appreciate the Town addressing the road issue, as
this is a main safety concern, although the erosion suffered by our property remains. Not only are them
trees that were removed, but also there are large trees currently standing which will fall if further erosion
continues. In an attem~t to make this issue known, Murray Devitt was kind enough to meet us on the
morning of August 12 and as we discussed there are few alternatives. The sohrtion we see is for die lot to
come under the ownership of the Town allowing the Town frill access to all lots backing onto the park and
control of the Lands parallel to the Road allowance. We would like your advice regarding how to move
forward and additional contacts we may need. Obviously our property has suffered serious damage, and
the way the road issue has been rectified, we will cominue to lose valuable land. The Town can not
properly correct this problem without continuing to damage our land as it needs proper access to all areas to
rectify the initial problem. Please comact us to discuss this further at' •r at Peter's
cell at Thank you for your time in looking into this.
r Uv t
Peter and Kim Gunn
Cc: Murray Devitt
Property Location Map (Orono)
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10 Duchess Street to be ~
melded with 5068 Main Street
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5068
S O MME R
DUCHESS STREET
Easement For Access
In Favour Of 5068 Main Street
Property to be Acquired
AND ACQUISITION
Portion of 10 Duchess Street, Orono
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Property Location Map (Orono)
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LAND ACQUISITION
Portion of 10 Duchess Street, Orono
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Attachment 3
To Report PSD-080-09
OFFER TO SELL
The undersigned, Kimberley -Ann Gunn (the "Vendor"), hereby agrees to and with THE
CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Purchaser"), to sell the
property known for municipal purposes in 2009 as part of I O Duchess Street, Village of Orono and
described as Part of Lot 10, Block "C" according to C.G. Hanning's Plan of the former Village of
Orono being Part of Lot 26, Concession 5, former Township of Clarke now the Municipality of
Clarington, Regional Municipality of Durham and shown on Attaclunent 1 hereto as "Property to be
Acquired" (the "Property"), for the purchase price ofTEN THOUSAND ($10,000.00) DOLLARS
(the "Purchase Price"), subject to adjustments including any adjustments provided for below in this
Agreement. In addition, the Purchaser shall pay the Vendor on the Closing Date (i) the sum of ONE
THOUSAND; FIVE IIUNDRED ($1,500) DOLLARS as an allowance to compensate for reseeding
the topsoil in the area damaged by erosion and washout, (ii) the sum of EIGHT HUNDRED
NINETY-FIVE ($895.00) DOLLARS to cover the property taxes from August 2008 until Closing
Date and (iii) the reasonable legal costs of the Vendor to complete this transaction.
ADDITIONALLY, the Purchaser agrees with the Vendor to the following teens and conditions:
1. This h•ansaction is to be completed no later than 5:00 p.m. on September 30th, 2009 (the
"Closing Date"), which date maybe 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. At
least five days prior to the Closing Date, the Purchaser shall an•ange for the deposit of a reference
plan of survey delineating the Property and the Easement (as hereinafter defined).
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 Vendor shall reserve an easement ('`Easement") over and upon the property shown
on Attachment 1 hereto as "Easement for access in favour of 5068 Main Street" for the purpose
of pedestrian and vehicular access to the remainder of 10 Duchess Street, Village of Orono (the
'`Remainder Property") and the property municipally known as 5068 Main Street, Village of
Orono (the "Main Street Property"). Immediately following the transfer of the Property to the
Purchaser, the Vendor shall transfer the Remainder Property to the owner of the Main Street
Property subject to the restriction (the "Restriction") that, in the future, the Remainder Property
and the h4ain Street Properly shall only be conveyed together. The undersigned, Peter Gunn,
spouse of the Vendor hereby (i) consents to the disposition of the Property pursuant to the
provisions of the Family Law Act, R.S.O. 1990, and hereby agrees with the Purchaser that he will
execute all necessary or incidental documents to give full force and effect to the sale evidenced
herein and (ii j agrees to accept a conveyance of the Remainder Property subject to the
Restriction.
~. Except as provided in paragraph 6 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.
5. This Offer to Sell is conditional upou the Vendor being satisfied with the survey that is to
be prepared showing the melded property and the delineation of the lands to be conveyed to the .
Purchaser. This condition is inserted for the sole benefit of the Vendor and may be waived in
writing by giving written notice to the Purchaser at their place of business no later than five (5)
days from their receipt of a copy of the draft of the swvey of the subject lands.
6. The Purchaser is to be allowed until September 23rd, 2009 (the "Requisition Date") to
examine the title to the Property at his own expense and to satisfy itself that there are no outstanding
orders or deficiency notices affecting the Properly and that its present use may be lawfully continued.
The Vendor hereby consents to governmental agencies releasing to Pw•chaser 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 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
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 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.
(a) This Agreement is condition on the Purchaser, in the Purchaser's discretion, being
satisfied on or before the Requisition Date that the environmental condition of the
Property will not require remediation measures to be undertaken to make it or any
portion of it suitable as a cemetery or for use by members of the public as open space
accessible to members of the public. This condition is for the sole benefit of the
Purchaser and may be waived by the Purchaser giving the Vendor written notice that
it has been waived.
(b) Forthwith after the execution of this Agreement, the Vendor shall deliver to the
Purchaser without cost to the Purchaser, all reports, studies or written
communications that the Vendor has received from any person or has caused to be
prepared dealing with the environmental condition of either the Property. The Vendor
will permit the Purchaser, its employees, contractors and agents to enter on the
Property to conduct such inspections or tests to determine the environmental
condition of the Property during regular business hours, provided that twenty-four
(24) hours written notice is given to the Vendor before such entry takes place.
9. 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 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 their anon-resident of Canada.
10. The Vendor shall deliver on the completion of this transaction additional evidence of
compliance of the transaction with the Fanrilt~ Lcnr~ Act, R.S.O. 1990, o.F3, as amended, as the
Purchaser, acting reasonably, may require.
11. Except as herein expressly provided, 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.
12. THIS OI'FER TO BE ACCEPTED BY THE Purchaser on or before September 22, ?009,
otherwise it shall become null and void. This offer, .when accepted, shall constitute a binding
contract of purchase and sale and time in all respect 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.
13. If this transaction is subject to Goods and Services Tas (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
tinder the Excise Tax Act (Canada), (Registration No. 106979800RT0001). 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 indemnity 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.
14. 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 discharge of
any C barge/Mortgage held by a corporation incorporated pursuant to the Trust and Loan Companies
Act (Canada), Chartered Bank, Trust Company, G•edit 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 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 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 pay-nent to the mortgagee of
the amount required to obtain the discharge out of the balance due on completion of this transaction.
15. The Property shall remain at the risk of the Vendor until the completion of this transaction.
16. 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.
17. This Agreement shall be effective to create au 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.
18. A Transfer/Deed for the Property shall, save for the Land Transfer Tax Affidavit, be prepared
in registrable form at the expense ofthe Purchaser. If requested by the Purchaser, Vendor covenants
that the Transfer/Deed to be delivered on completion shall contain the statements contemplated by
Section X0(33) of the Planning Act, R.S.O. 1990, c.P.13, as amended.
19. Where each of the Vendor and Purchaser retain a lawyer to complete this Agreement, and
where the transaction will be completed by electronic registration pursuant to Part II of the Land
Registralio-a Re_%or•r-t AcI, R.S.O. 1990, Chapter L4 and the Elech•o-~ic Registration ~lct, S.O. 1991,
Chapter 44 and any amendments thereto, the Vendor and Purchaser acknowledge and agree that the
exchange of closing hinds, non-registrable documents and other items (the'`Requisite Deliveries')
and the release thereof to the Vendor and Purchaser will (a) not occur at the same time as the
registration of the transfer/deed (and any other documents intended to be registered in connection
with the completion of this transaction), and (b) be subject to conditions whereby the solicitor(sj
receiving any of the Requisite Deliveries will be required to hold same in trust and not release same
except in accordance with the terms of a documents registration agreement between the said
solicitors, the form of which is as recommended from time to time by the Law Society of Upper
Canada. Unless otherwise agreed to by the solicitors, such exchange of the Requisite Deliveries will
occur in the applicable Land Titles Office or such other location agreeable to both solicitors.
20. On the closing of the transaction, the Vendor shall provide to the Purchaser, the Purchaser's
form of the following documents:
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 aftldavit
21. Any rents, mortgage interest, realty taxes including local improvement rates and unmetered
public or private utility charges and unmetered cost of fuel, as applicable, shall be apportioned and
allowed to the day of completion, the day of completion itself to be apportioned to the Purchaser.
33. Tine shall in all -•espects be of the essence hereof provided that the tine 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.
23. The Municipality shall prepare, at its expense, a plan of survey for the Property and a plan of
survey of the property being retained by the Vendors melded with their property at 5068 Main Street,
Orono.
24. Any tender of documents or money may be made on the parties or their respective solicitors.
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: David Crome, Director of Planning Services
Facsimile No. (905) 623-0830
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:
Kimberly-Ann and Peter Gunn
5068 Main Street
Orono, ON
LOB 1 MO
or such other telefax number or address of which either party has notitied 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 trailing thereof. Nohvithstandingfhe 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.
~~ t
DATED at Bowmanville, Ontario this day of c , 2009.
~~ ~/ /~/
Peter Gunn rr `~ ' Witness -
-T~,,.,~
Kimberly-Ann Gumt Witness
I have the authority to bind the Corporation.
DATED at Bowmauville, Ontario this day of , 2009.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
Fer:
.lim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
We have the authority to bind the Corporation.
Attachment 4
To Report PAD-080-09
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2009-
being a By-law to authorize the purchase agreement between the Corporation of the
Municipality of Clarington and PETER GUNN and KIMBERLY-ANN GUNN, in respect to
the purchase of a portion of 10 Duchess Street, Orono, Ontario and being more
particularly described as Part of Lot 10, Block "C" C.G. Hanning's Plan, former Village of
Orono, being Part of Lot 29, Concession 5, 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, with the Corporate Seal, a purchase
agreement between Peter Gunn and Kimberly-Ann Gunn and said Corporation.
BY-LAW read a first time this day of 2009
BY-LAW read a second time this day of 2009
BY-LAW read a third time and finally passed this day of 2009
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk