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3644 Schedule "B" - To authorize an agreement between the Corporation of the Town of Tillsonburg and the Tillsonburg Golf and Country Club LimitedAGREEMENT DATED this day of August, 2012 BETWEEN: THE TILLSONBURG GOLF AND COUNTRY CLUB LIMITED OF THE FIRST PART (hereinafter referred to as "TGCC") -AND- THE CORPORATION OF THE TOWN OF TILLSONBURG OF THE SECOND PART (hereinafter referred to as the "Town") WHEREAS The Parties entered into a non-binding Memorandum of Understanding dated November 14, 2011 (the "MOU") and attached to this agreement as Schedule "A". The MOU provided the framework for a series of transactions whereby certain lands would be transferred between the Parties. The MOU contemplated a definitive agreement which would carry out the terms and spirit of the MOU. The Parties have agreed to enter into this contract (the "Agreement") for the purpose of formalizing and implementing the MOU. IN CONSIDERATION for the mutual covenants and for the transfer of lands and payment of monies as set out in the Agreement the Parties agree as follows: A. INTERPRETATION 1. The Parties agree as to the definition of the following words or phrases: a. "Carroll Trail" shall mean the lands whereby the Shared Carroll Trail and Unshared Carroll Trail are designated for a walking, biking, hiking and/or other recreational activity trail that Definitive Agreement August 3, 2012 traverses the Golf Course Lands and the Old Golf Course Lands as outlined in Yellow and Green on Schedule "B" to this Agreement. For the purposes of this Agreement the Carroll Trail includes, but not limited to, benches and refuse containers adjacent to the Shared Carroll Trail and Unshared Carroll Trail; b. "Closing Date" shall mean September 18, 2012; c. "Golf Course" means the eighteen holes and the lands it occupies used by the TGCC as the Bridges at Tillsonburg but excludes the Carroll Trail. d. "Golf Course Lands" means the property legally described as Parts 1,3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 on Plan 41R-8815; e. "Old Golf Course Lands" means the property legally described as Parts 1 and 2 on Plan 41R-7400; f. "Shared Carroll Trail" shall mean that part of the Carroll Trail for walking, biking, hiking and/or other recreational activities which is also traversed by the users of the Golf Course and outlined in "Yellow" on Schedule "B" to this Agreement. The Parties agree that the bridges and underpass are contained on the Shared Carroll Trail; g. "Solicitor for the TGCC" shall mean the law firm of Gibson, Bennett, Groom & Szorenyi; h. "Solicitor for the Town" shall mean the law firm of Mandryk, Stewart & Morgan; i. "Unshared Carroll Trail" shall mean that part of the Carroll Trail for walking, biking, hiking and/or other recreational activities which is not used by the users of the Golf Course and outlined in "Green" on Schedule "B" to this Agreement; j. "Young Street Lands" shall mean those lands bordering Young Street and legally described as Part 1on Plan 41R-8739; B. PROPER TY TRANSFERS 2. The Parties agree that the Town shall transfer to the TGCC the Golf Course Lands on the following terms and conditions: Definitive Agreement August 3, 2012 a. The transfer shall take place on the Closing Date; b. The Town shall not provide any warranties whatsoever for any reason including any and all environmental warranties; c. The TGCC shall accept title "as is" and "where is" and shall accept all easements of any kind, rights-of-way, fitness for purpose, drainage agreements (if any), encroachments and condition of the Golf Course Lands. d. Notwithstanding the foregoing the TGCC shall not accept title for the following: any mortgage, lien, encumbrance or charge. e. The TGCC shall accept all agreements, arrangements and regulations from the Ministry of Natural Resources, Ministry of Environment, Long Point Conservation Authority and any other governmental or municipal body with respect to the Golf Course Lands; f. The Town shall provide a deed with respect to the Golf Course Lands on the Closing Date and the TGCC shall accept the legal description as Parts 1,3-16onPlan41R-8815; g. The TGCC shall be allowed until 5 p.m. on the 7th day of September 2012 to examine the title to the Golf Course Lands at its own expense to satisfy itself that there are no encumbrances, mortgages or charges that affect the property. h. The Town shall not provide any warranty that the present use may be lawfully continued other than in accordance with paragraph B(3)(k). i. All buildings on the Golf Course Lands are at the TGCC's risk. j. The TGCC shall not call for the production of any title deed, abstract, survey or other evidence of title to the property except such as are in the possession or control of the Town; k. TGCC acknowledges that the Golf Course Lands do not include the Young Street Lands; I. TGCC agrees that if a portion of the Golf Course Lands is in the Registry System it shall not call for, demand or request that such portion be converted into Land Titles; m. In consideration of the closing of this transaction the TGCC agrees on or before closing to provide an undertaking that it and its successors in titleshall not interfere with, obstruct or block in any manner the bridge and/or Definitive Agreement August 3, 2012 crossing of the Trillium Railway Co. Ltd. (formerly the Canadian National Railways) over Part 16 of Plan 41R- . If a right of way for said Trillium Railway Co. Ltd. over Part 16 of plan 41 R- is required to be registered on title the Town shall obtain and pay for such registration and TGCC consents to sign such documentation to register the right of way as required. The Parties agree that the TGCC shall sever from the Old Golf Course Lands four lots described as Parts 1,2,3 and 4 on 41R-8799 being that portion of the Old Golf Course Lands that is located south of Baldwin Street, north of John Pound Road and immediately abutting to the west of Borden Crescent within the confines of the Oxford County Official Plan and the Town of Tillsonburg zoning By-laws (the "Borden Crescent Lands") and transfer the Borden Crescent Lands on the following terms and conditions: a. The transfer shall take place on the Closing Date; b. The location of the Borden Crescent Lands shall be determined and agreed to by both Parties prior to the severance; c. TGCC acknowledges that it shall solely be responsible for any and all costs to obtaining and completing the severance of the Borden Crescent Lands. TGCC shall obtain a Registered Plan at its sole cost, file and pay for the severance application and satisfy all conditions of the severance. The Parties agree that if the consent of the Land Division Committee is not required pursuant to the Planning Act then the TGCC shall pay for all costs of obtaining a Registered Plan. The Parties agree that Planning Act consent is not required for such severance; d. The TGCC shall not provide any warranties whatsoever for any reason including any and all environmental warranties; e. The Town shall accept title "as is" and "where is" and shall accept all easements of any kind, rights-of-way, fitness for purpose, drainage agreements (if any) and encroachments. f. Notwithstanding the foregoing the Town shall not accept title for the following: i. Any mortgage or lien (if any). All mortgages, liens and encumbrances shall be discharged on the Closing Date except if the mortgage is with a registered bank pursuant to the Bank Act and the undertaking to discharge by the Solicitor for the TGCC shall be accepted provided a discharge statement is provided to the Solicitor for the Town; Definitive Agreement August 3, 2012 g. The Town shall accept all agreements, arrangements and regulations from the Ministry of Natural Resources, Ministry of Environment, Long Point Conservation Authority and any other governmental or municipal body with respect to the Borden Crescent Lands; h. The TGCC shall provide a deed for the Borden Crescent Lands and the Town shall accept the legal description as Parts 1, 2, 3 and 4 on Plan 41R-8799; i. The Town shall be allowed until 5 p.m. on the 7th day of September 2012 to examine the title to the Borden Crescent Lands at its own expense to satisfy itself that there are no encumbrances, mortgages or charges that affect the property. j. The Town shall not call for the production of any title deed, abstract, survey or other evidence of title to the property except such as are in the possession or control of the TGCC. k. In consideration of the closing of the transaction the Town agrees that on or before closing it shall provide an undertaking that it shall not interfere with the drainage pipe of the TGCC located on Part 3 of Registered Plan 41R-8799 (the "Pipe") which drains water from the Old Golf Course Lands through the Borden Crescent Lands. The Parties agree that TGCC shall be solely responsible for the maintenance, repair and replacement of the Pipe. If an easement for said Pipe is required to be registered on title the TGCC shall obtain and pay for such registration and the Town consents to sign such documentation to register the easement as required. The Parties agree that the following terms and conditions apply to transfer of the Golf Course Lands and the Borden Crescent Lands: a. Where the transaction will be completed by electronic registration pursuant to Part III of the Land Registration Reform Act, R.S.O. 1990, Chapter L4 and the Electronic Registration Act, S.O. 1991, Chapter 44, and any amendments thereto, the Parties acknowledge and agree that the exchange of closing funds, non-registrable documents and other items (the "Requisite Deliveries") and the release thereof to the Seller and Buyer 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 lawyer(s) 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 document registration agreement between the said lawyers. The Parties irrevocably instruct the said lawyers to be bound by the document registration agreement between the said lawyers, The Parties Definitive Agreement August 3, 2012 irrevocably instruct the said lawyers to be bound by the document registration agreement which is recommended from time to time by the Law Society of Upper Canada. Unless otherwise agreed to by the lawyers, such exchange of the Requisite Deliveries will occur in the applicable Land Titles Office or such other location agreeable to both lawyers. b. If a discharge of any Charge/Mortgage held by a corporation incorporated pursuant to the 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 lawyer's 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 payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion. 5. TGCC acknowledges that the transfer of the Golf Course Lands is conditional upon the registration of the Easement Agreement pursuant to this Agreement. 6. The Parties agree to adjust on the Closing Date for rents and municipal taxes. C. PAYMENT TERMS 7. In consideration of the transfer of the Golf Course Lands TGCC shall pay the Town the sum of $191,050.00 of the $267,000.00 for the approximately 94 acres as defined by By-Law #3418 on the Closing Date. 8. TGCC represents that it is now registered for the purposes of the Harmonized Goods and Services Tax ("HST") in accordance with the applicable provisions in that regard pursuant to the Excise Tax Act of Canada, as amended. The Purchaser covenants to deliver a Statutory Declaration on the Closing Date confirming its HST registration number, which shall be conclusive of such HST registration, and shall preclude the Vendor from collection of HST from the Purchaser on the Closing Date. The Purchaser shall deliver to the Vendor on closing an undertaking, on the Vendor's Solicitors' form, to self-assess the goods and services tax (HST) payable in respect of this transaction pursuant to subsections 221 (2) and 228(4) of the Excise Tax Act, and to remit and file a return in respect of HST owing as required under the said Act for the reporting period in which the HST in this transaction became payable. ThePurchaser shall indemnify and save harmless the Vendor from and against Definitive Agreement August 3, 2012 any and all claims, liabilities, penalties, interest, costs and legal and other expenses incurred, directly or indirectly, in connection with the assessment of HST payable in respect of the transaction contemplated by this Agreement. The Parties agree that if HST was payable on this transaction then HST is in addition to the Purchase Price. 9. Notwithstanding any other term of this Agreement, the Parties agree to work together to reflect the actual value of the transfers for the purposes of Land Transfer Tax in the best interests of both the Parties and to minimize Land Transfer Tax if permissible. 10. The Town acknowledges that on the Closing Date upon the transfers of the Borden Crescent Lands and the sum of $191,050.00 it shall deem the debts of the TGCC to the Town in amounts of $28,000.00, $450,000.00 and $131,543.00 are satisfied. The Parties further agree that the Young Street Lands were originally not intended to be severed from the Golf Course Lands and therefore the Town retaining the Young Street Lands forms part of the consideration for the satisfying the aforesaid debt owing by the TGCC to the Town. D. EASEMENT AGREEMENT 11 .The Parties agree that prior to the Closing Date they shall execute a blanket easement in a form as attached as Schedule "C" to this Agreement (the "Easement Agreement"). TGCC agrees that on the Closing Date it shall register the Easement Agreement against the title to the Golf Course Lands and the Old Golf Course Lands consistent with Ontario registry land terms. The Easement Agreement will provide full easement rights for the Golf Course Lands and over Parts 5 and 6 on 41R-8799 on the Old Golf Course Lands. 12.TGCC covenants and warrants that: a. The Easement Agreement shall be executed by all current mortgagees of the Golf Course Lands and Old Golf Course Lands and shall obtain the consent of any future mortgagees; b. The Easement Agreement shall bind all future mortgagees, assigns, transferees and successors in title of the Golf Course Lands and Old Golf Course Lands. E. COVENANTS OF THE PARTIES 13. The TGCC covenants and warrants that: Definitive Agreement August 3, 2012 a. At no time, either prior to or after the Closing Date, it and its members, shareholders, officers, directors or administrators, shall not object, block, hinder or delay the severance and/or division of the Young Street Lands, sale of the Young Street Lands or construction on the Young Street Lands including, but not limited to, objecting to any change in the by-law to permit division of the Young Street Lands, minor variance, amendment to any by-law or issuance of any building permit; b. The TGCC covenants to retain and not transfer, convey, gift or sell the Golf Course Lands for a minimum of thirty-six (36) months; c. continue to the best of its ability to operate the Golf Course as a going concern; d. If it offers the Golf Course, Golf Course Lands and/or Old Golf Course Lands and buildings for sale that it shall provide the Town the first right of refusal (the "First Right of Refusal"). Upon the TGCC obtaining a bona fide offer from any person, partnership, corporation or entity (the "Third Party Offer") it shall provide a copy of the Third Party Offer to the Town. Upon receipt of the Third Party Offer the Town shall have thirty (30) days to exercise its First Right of Refusal (the "Notice Period"). If the Town desires to exercise its First Right of Refusal then it must provide a written offer to the TGCC containing identical purchase price and date of closing (along with any other terms as required by the Town) prior to the expiry of the Notice Period. If the Town fails to submit a written offer in accordance with this paragraph prior to the expiry of the Notice Period then the TGCC may sell pursuant to the Third Party Offer. The TGCC agrees that the First Right of Refusal shall be registered on title to the Golf Course Lands and Old Golf Course Lands at the Town's sole cost on or after the Closing Date; e. Shall assume liability for all current property taxes for the Golf CourseLands transferred to TGCC including that portion of the Carroll Trail on the Golf Course Lands; f. that no tax abatement, relief or deferral is contained in this Agreement or MOU; g. it shall not alter, modify or change the lands that surround the Carroll Trail except as required for the maintenance and repair of the Golf Course and Shared Carroll Trail. TGCC acknowledges that the lands that surround the Unshared Carroll Trail are to remain in their natural form. TGCC covenants that it shall not: i. cut down or remove any trees except as required for safety and/orgood forestry practices; Definitive Agreement August 3, 2012 ii. remove any bushes or vegetation except such weeds or vegetation are noxious or hazardous or obstruct the Carroll Trail; iii. spray any toxins except as required to control any noxious or hazardous weeds or plants or required for the maintenance of the Golf Course; and, iv. place any substance on the Golf Course Lands or Old Golf Course Lands that would be contrary to any act, by-law, regulation whether federal, provincial or municipal; h. the maintenance and repair (including the determination of the standard of maintenance and repair) of the Unshared Carroll Trail shall be the sole responsibility of the Town; L the Town retains the right of preapproval for any works, modifications, maintenance including benches and other ancillary items on any and all portions of the Carroll Trail; j. it shall diligently complete all maintenance and repair (to the standard as required by any statute, regulation, by-law and/or common law) to the Shared Carroll Trail without contribution from the Town; k. The Parties agree that for the purposes of this Agreement the Carroll Trail includes benches, refuse containers and bridges. The Parties further agree that all bridges are located on the shared portion of the Carroll Trail; and, I. If any proceeding is brought by any mortgagee of the TGCC (or its successors, assigns or amalgams) due to any alleged default by the TGCC and such proceeding is for any order of possession, power of sale or foreclosure then TGCC shall provide notice of such action, foreclosure and/or power of sale to the Town and permit the Town to remedy such default upon such terms as agreed between the Town and TGCC. TGCC further covenants that it shall provide notice to the Town of any written notice of default by any mortgagee within five (5) business days of receiving such notice of default by the mortgagee. 14. Except as otherwise stated, all covenants and warranties of the Parties contained in this Agreement shall survive the Closing Date and shall continue in full force and effect from Closing Date for an indefinite period. The Vendor shall provide on the Closing Date a certificate that such covenants as contained in this Agreement that shall survive closing and 'not merge with closing. Definitive Agreement August 3, 2012 F. COVENANTS OF TOWN: 15.The Town covenants and warrants that: a. It shall provide such assistance as reasonable to facilitate, but such facilitation shall not include paying any expenses or costs of any kind whatsoever to obtain such severance or satisfy any condition, the severance of the Borden Crescent Lands; b. It shall obtain a severance of the Young Street Lands prior to the transfer of the Golf Course Lands to the TGCC. The Town further covenants that it shall provide the TGCC an opportunity to review the boundaries of the Young Street Lands prior to such severance; c. Upon satisfaction of all the covenants of the TGCC the Town shall deem the long term debts identified on Schedule A Section 1, Section 2, Section 3 and Section 4 contained in the MOU to be fully satisfied; d. Upon receipt of $191,050.00 as identified in paragraph 3 of the MOU and conveyance of the Golf Course Lands approximately 94 acres and registration of the Easement Agreement the long term debt with the TCGG shall be deemed to be satisfied in full. The TGCC agrees that the Town does not provide any warranty on the exact acreage and there shall be no adjustment or abatement to the Purchase Price if the acreage is greater than or less than 94 acres; e. Shall retain the easement rights for the Carroll Trail pursuant to the Easement Agreement; f. Shall be solely responsible for the severance of the Young Street Lands. g. Shall assume all future property taxes for the Borden Crescent Lands and Young Street Lands; h. Shall be solely responsible for the debt reduction penalty deemed by the Ontario Infrastructure Partnership Corporation; i. Agrees that there is no tax abatement, deferral or relief is contained in this agreement. G. Representations and Warranties of the Parties 16. The Parties hereby represent and warrant to each other as follows: Definitive Agreement August 3, 2012 a. TGCC is incorporated and organized and validly existing and in good standing under the laws of the Province of Ontario. b. The Parties have all necessary corporate power (as the case may be), authority and capacity to enter into this Agreement and-to perform its obligations hereunder; the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of TGCC and the Town. c. The Parties are not a party to, bound or affected by or subject to any indenture, mortgage, lease, agreement, instrument, charter or by-law provision, statute, regulation, order, judgment, decree or law which would be violated, contravened or breached by, or under which any default would occur as a result of the execution and delivery by it of this Agreement or the consummation of the transactions contemplated hereby, except as disclosed in this Agreement. d. This Agreement constitutes a valid and binding obligation of the Parties enforceable against them in accordance with its terms provided that enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws generally affecting enforceability of creditors' rights and that equitable remedies such as specific performance and injunction are in the discretion of the court from which they are sought. e. TGCC is not a non-Canadian within the meaning of the Investment Canada Act. f. No governmental or regulatory authorizations, consents, approvals, filings or notices pertaining to the Parties are required to be obtained or given or waiting period is required to expire in order that the Borden Crescent Lands or Golf Course Lands or Easement may be consummated by the Parties or for the Parties to carry out its obligations set out in this Agreement. g. That the Parties have relied upon their own, or its agents, financial advisors or legal counsel, inspections of title to Golf Course Lands and Borden Crescent Lands; and, h. Shall honour the TCGG and Town Trail Maintenance Agreement including the Toboggan Hill Agreement, if any; Definitive Agreement August 3, 2012 H. MISCELLANEOUS 17. The Parties agree that on the Closing Date: a. The TGCC shall provide: i. Statutory Declaration with respect to warranties and covenants pursuant to this Agreement; ii. The sum of $191,050.00; iii. Deed duly executed for the Borden Crescent Lands including three copies of the registered Reference Plan; iv. Discharge of any private mortgage for the Borden Crescent Lands; v. Undertaking to discharge any mortgage by a Bank as defined by the Bank Act; vi. Duly executed Easement Agreement signed by the TGCC and any mortgagees of the Golf Course Lands and Old Golf Course Lands; and, vii. Direction to register title for the Golf Course Lands, b. The Town shall provide: i. Declaration with respect to warranties and covenants pursuant to this Agreement; ii. Deed duly executed for the Golf Course Lands including three copies of the registered Reference Plan; iii. Discharge of any private mortgage for the Golf Course Lands; iv. Undertaking to discharge any mortgage by a Bank as defined by the Bank Act; and, v. Direction to register title for the Borden Crescent Lands. 18. Any notice, direction or other instrument required or permitted to be given to the Vendor hereunder shall be in writing and may be given by mailing the same postage prepaid or delivering the same addressed: to the Town at: Definitive Agreement August 3, 2012 200 Broadway Tillsonburg, ON N4G 5A7 with a copy to the Solicitor for the Town at: Mandryk, Stewart & Morgan 65 Bidwell Street Tillsonburg, ON N4G 3T8 to the Purchaser at: 101 John Pound Road Tillsonburg, ON N4G 4H3 with a copy to the Solicitor for the Purchaser at: Gibson, Bennett, Groom & Szorenyi 36 Broadway Tillsonburg, ON N4G 3P1 19.This Agreement, including the Schedules and MOD, together with the agreements and other documents to be delivered pursuant hereto, constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, leases, understandings, negotiations and discussions, whether written or oral, of the parties hereto and there are not warranties, representations or other agreements between the parties in connection with the subject matter except as specifically set forth or referred to herein. No amendment, waiver or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided. 20. This agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Province of Ontario. Each of the parties hereto hereby irrevocably submits and attorns to the jurisdiction of the courts of the Province of Ontario. Any action brought for the interpretation of this Agreement or the enforcement of any term of this Agreement shall be brought at the City of Woodstock, in the County of Oxford. Definitive Agreement August 3, 2012 21. This agreement shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, legal representatives, successors and permitted assigns. 22. Time shall be of the essence hereof. 23. Neither this Agreement nor any rights or obligations under this Agreement shall be assignable by any Party without the prior written consent of the other Parties. Subject to that condition, this Agreement shall enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators, successors (including any successor by reason of amalgamation of any Party) and permitted assigns. 24. In the event that any provisions contained in this Agreement shall be declared invalid, illegal or unenforceable by a court or other lawful authority of competent jurisdiction, this Agreement shall continue in force with respect to the enforceable provisions and all rights and remedies accrued under the enforceable provisions shall survive any such declaration, and any non- enforceable provision shall to the extent permitted by law be replaced by a provision which, being valid, comes closest to the intention underlying the invalid, illegal and unenforceable provision. 25. Any terms in this Agreement which are masculine shall be interpreted as either masculine or feminine. For convenience, headings have been inserted into this Agreement and shall not be used in any manner to interpret this Agreement. For the purposes of interpretation, any words in this Agreement that are singular shall be interpreted as if they include the plural and any words in this Agreement that are plural shall be interpreted as if they include the singular. 26. Should any provision of this Agreement require judicial interpretation or arbitration, it is agreed that the court or arbitrator interpreting or construing the same shall not apply a presumption that the terms thereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent prepared the same, it be agreed that both parties have participated in the preparation hereof. Signed this day in Tillsonburg, Ontario The Tillsonburg Golf and Country Club Limited Per: President Definitive Agreement August 3, 2012 Secretary-Treasurer We^fave authority to bind the Corporation. The Corporation of the Town of Tillsonburg Per: Mayor Chief Administrative Officer We have authority to bind the Town Definitive Agreement August 3, 2012