Loading...
HomeMy WebLinkAbout2005-254 CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NUMBER 2005- 254 being a By-law to authorize the purchase agreement between the Corporation of the Municipality of Clarington and Scott Winston Lumley, in respect to the purchase of 157 Port Darlington Road, Bowmanville, Ontario and being more particularly described as Part of Unnumbered Lot 7, Smart Estate Plan being Plan H50073, former Township of Darlington and later the Town of Bowmanville and Town of Newcastle, now 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 Scott Winston Lumley and said Corporation. BY-LAW read a first time this 1ih day of December 2005 BY-LAW read a second time this 12th day of December 2005 BY-LAW read a third time and finally passed this 12th day of December 2005 ,,' ~ e, Municipal Clerk "I ;' !r ~ The undersigned, SCOTT WINSTON LUMLEY (the "Vendor"), hereby agrees to and with THE rt> CORPORA nON OF THE MUNICIPALITY OF CLARINGTON (the "Purchaser"), to sell the property known for municipal purposes in 2005 as 157 Port Darlington Road, Bowmanville, Ontario and being more particularly described as Part of Unnumbered Lot 7, Smart Estate Plan being Plan H50073, former Township of Darlington and later the Town of Bowmanville and Town of Newcastle, now Municipality ofClarington, Regional Municipality of Durham (the "Property"), for the purchase price of TWO HUNDRED NINETY-TWO THOUSAND FIVE HUNDRED ($292,500.00) DOLLARS, subject to adjustments including any adjustments provided for below in this Agreement. In addition, the Purchaser will pay the Vendor on the Closing Date the sum of FOURTEEN THOUSAND SIX HUNDRED AND TWENTY-FIVE ($14,625.00) DOLLARS as an allowance to compensate for inconvenience and sum of EIGHT THOUSAND THREE HUNDRED AND SEVENTY-FIVE ($8,375.00) DOLLARS as an allowance for the cost of finding another residence and other relocation costs. It is agreed and acknowledged that the sum of TWENTY - THREE THOUSAND DOLLARS ($23,000.00) shall be held by Rueter Scargall Bennett LLP in trust pending acknowledgement of the Purchaser of receipt of invoices relating to the Vendor's relocation costs, and that the Vendor has ceased to occupy the Property and has delivered the keys to the house and the garage on the Property to the Purchaser. OFFER TO SELL ~. The Vendor hereby directs 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 Vendor to the following terms and conditions: 1. This transaction is to be completed no later than 5:00 p.m. on December 28, 2005 (the "Closing Date"), which date may be extended or amended by written agreement of the solicitors for the parties. 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 may remove the fixtures now on the Property, as listed in Schedule "A" attached hereto, provided that the removal of fixtures does not materially compromise the safety or structural integrity of the house and garage on the Property. At least fourteen (14) days prior to the demolition of the house on the Property, the Purchaser shall give the Vendor written notice of the date on which the Purchaser intends to cause the house on the Property to be demolished. Purchaser agrees that the Vendor may enter on the Property for the purpose of removing up to seven (7) windows from the second story of the house on a day to be selected by Vendor within ten (10) days prior to the day on which the Purchaser intends to cause the house to be demolished, provided that the Vendor gives the Purchaser at least one (1) business day written notice of the day on which he will remove the windows prior to his entry on the Property. The purpose of the entry is to allow the Vendor to remove the second story windows from the house on the Property at no cost or charge to the Vendor, provided that immediately following the removal of a window, the Vendor shall replace the same with boards so that the house at all times continues to be safe and secure. 4. The Vendor represents and warrants to the Purchaser that during the time the Vendor has owned the Property, the Vendor has not caused any building on the Property to be insulated with insulation containing ureaformaldehyde, and that to the best of the Vendor's knowledge no building on the Property contains or has ever contained insulation that contains ureaformaldehyde. This warranty shall survive and not merge on the completion of this transaction. 5. Except as provided in paragraph 7 hereof, the Vendor 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 Vendor may discharge all encumbrances and restrictions registered against title to the Property at his expense and the Purchaser agrees to reimburse the Vendor for all expenses, fees and penalties that are incurred as a result of this transaction. This covenant shall survive and not merge on the completion of this transaction. 6. The Purchaser is to be allowed until December 21, 2005 (the "Requisition Date") to examine the title to the Property at her own expense and to satisfy itself that there are no outstanding .f ........./ 2 ~ :- f"C}lUl orders or deficiency notices affecting the Property and that its present use may be lawfully continued. rt> 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 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. 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, 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 then a non-resident of Canada. 9. The Vendor is a spouse within the meaning of the Family Law Act. The spouse of the Vendor, Lisa Christine Lumley, consents to this Agreement by executing this Agreement below. The Vendor shall deliver on the completion of this transaction additional 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 and 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 December 18, 2005, 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. 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.1 06979800RT0001). 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 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 Vendor's lawyers personal undertaking to obtain, out 3 sz q~ L /' ;/ ~ 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 payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion of this transaction. 14. The Purchaser shall permit the Vendor and the Vendor's family to occupy the Property from and after the Closing Date until the earlier to occur of the dV which the)' endor in fact relocates his household from the Property to another residence, and 30, 2006. The Vendor's aforesaid permitted occupation of the Property shall be free of charge except as provided below in this paragraph. The Vendor agrees to pay all utility services including hydro, gas, water, telephone services (local and long distance) and cable or satellite television charges (including pay T.V. and like services, if any) used during the Vendor's occupation of the Property. The Vendor also agrees to maintain the Property as is reasonably required to prevent pipes from freezing. Further, during his occupation of the Property the Vendor shall maintain full replacement costs fire and other casualty insurance for the contents of the house and the garage on the Property. Forthwith after he ceases to occupy the Property, the Vendor agrees to deliver all keys to the locks in the house and the garage on the Property that are in his possession to the Purchaser. QiA pp 15. The Vendor covenants that the Property will be in a clean condition immediately prior to the Possession Date. This covenant shall survive and not merge on the completion of this transaction. 16. 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. Ifrequested by the Purchaser, Vendor covenants that the Transfer/Deed to be delivered on completion shall contain the statements contemplated by Section 50(22) of the Planning Act, R.S.O. 1990, c.P.13, as amended. 17. 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 ofthe 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 of the transfer/deed of land 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 other means and/or within such other time as may be agreed to by the parties' respective solicitors. 18. 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 affidavit ",,-,,! --- 4 8- ,r ' 4LU\. 19. 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 Possession Date and the Possession Date itself is to be apportioned to the Purchaser. 20. The Purchaser shall pay for all reasonable fees for legal and appraisal services required by the Vendor 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 3 2( 1) of the Expropriations Act. The Vendor hereby irrevocably directs 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. 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 Vendor acknowledges that the sale price includes all compensation based upon the market value of the Property, damages attributable to disturbance, and damages for injurious affection. 23. If necessary for registration purposes, the Purchaser shall prepare, at its expense, a plan of survey for the Property. 24. Any tender of documents or money may be made on the parties or their respective solicitors. 25. The Purchaser covenants that it will not sell or transfer the Property, or any remnant or portion thereof, without giving the Vendor the first chance to repurchase the Property on the terms of the best offer received by the Vendor. This covenant shall survive and not merge on the completion of this transaction. 26. This Agreement shall be read with all changes of gender or number required by the context. 27. The parties agree that this Agreement of Purchase and Sale is to hold in the strictest confidence until the Vendor ceases to occupy the Property. 28. 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 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 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: Scott Winston Lumley 157 Port Darlington Road Bowmanville, Ontario LlC 3K3 Facsimile No. with a copy to: ./i 5 p /' -~ Rueter Scargall Bennett LLP BCE Place 161 Bay Street Suite 4220, Box 226 Toronto, Ontario M5J 2S 1 /7 ItA '--f'rfJ 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. 29. 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. 0-11-.. DATED at Bowmanville, Ontario this ~ day of December, 2005. ~..~~~. -d~~~ Witness . .j L .~ Lisa c~stin~umlI y (Spouse) Witness DATED at Bowmanville, Ontario this day of December, 2005. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON per~ .tV~ john jt6n, ayor 6 ~Z' c_~ SCHEDULE A Fixtures to be removed by Vendor prior to termination of his occupancy of the Property: 1. Light fixtures and ceiling fans from: font bedroom, bathroom (2), living room, kitchen (2) and the bedroom hallway. 2. Three exterior light fixtures, one to remain. Fixtures that may be remove by the Vendor after he ceases to occupy the Property: 1. Seven windows from the second story, openings to be boarded by the Vendor. _,,> . J ./ 4vvr ~