2020-103 Schedule APage I 1
AGREEMENT OF PURCHASE AND SALE (the "Agreement" or "APS")
BETWEEN :
THE CORPORATION OF THE TOWN OF TILLSONBURG
(the "Vendor")
-and-
2776807 Ontario Inc
(the "Purchaser")
WHEREAS the Vendor is the owner, in fee simple, of the lands and premises described in Schedule
"A" (the "Property");
NOW THEREFORE IN CONSIDERATION of the mutual covenants and premises in this Agreement,
the parties agree as follows:
SECTION I -GENERAL
1. The Purchaser agrees to purchase the Property and the Vendor agrees to se ll the Property
according to the terms of this Agreement.
2. In consideration of the agreement referred to in the preceding paragraph , the Purchaser shall
pay to the Vendor a Purchase Pri ce calculated at Fifty Thousand Dollars ($50,000) per acre.
The estimated area of the Pro pe rty is SIX (6) acres and the estimated total Purchase Price is
Three Hundred Thousand Dollars ($300 ,000), The final total Purchase Price shall be
determined by the actual lot area of the Property confirmed by on Ontario Land Surveyor.
The final total Purchase Pri ce sha ll be adjusted based on the determined actual lot area.
3 . The Purchase Pri ce shall be paid as follows:
(a) Fifteen Thousand Dollars ($15 ,000) deposit is payable by the Purcha se r by certified
cheque upon Acceptance of this Agreement, to be he ld on an interest free basis by
the Solicitor for the Vendor as a deposit pending completi on of this transa cti on on
accoun t of the Purcha se Price on comp letion , or if this Agree ment is not completed
through no fault of the Purchaser, the deposit shall be returned to the Purchaser; and
(b) the balance of th e Purchase Price, subject to adjustments , shall be paid to the
Vendor on the Completion Date, by certified cheque or bank draft .
SECTION II -PURCHASE OF PROPERTY
4 . Irrevocable Date
(a) Thi s APS shall be irrevocable and open for acceptance by the Vendor until 6:00 p.m.
on the 291h day of October, 2020 ("Acceptance"), and w hen accepted sha ll co nstitute
a binding co ntra ct of purchase and sale , otherwise the A PS sha ll be null a nd vo id and
all deposit monies paid s ha ll be returne d to the Purchaser without deduction .
(b) A cce ptance sha ll mean the date upon which the Mayor and C lerk of th e Town of
Till sonburg , or s uch other persons as the Vendor may authorize from tim e to time,
sign and execut e thi s APS subsequent to the requirement th at th e Coun ci l of The
Corporation of the Town of Till so nburg has passed a reso lution or by-law au th orizing
and approving th e sale of the Propert y to the Purchaser pursuant to th e terms of thi s
APS.
Buyer's Initia ls ~
(c) The parties agree and acknowledge that negotiation of this APS is not a valid and
binding agreement until accepted by the Council of The Corporation of the Town of
Tillsonburg. The Chief Administrative Officer of the Town of Tillsonburg, or his or her
designate, shall negotiate the terms of this APS in good faith. However, the
negotiation of the terms of this APS by the Chief Administrative Officer of the Town of
Tillsonburg , or his or her designate , in no ways binds The Corporation of the Town of
Tillsonburg until such time as this APS is authorized and approved by the Council of
The Corporation of the Town of Tillsonburg.
5. Council Approval
(a) This transaction is subject to compliance with Section 270 of the Municipal Act, 2001,
S.O. 2001, c. 25 as amended and the approval of the Council of The Corporation of
the Town of Tillsonburg in its sole and absolute discretion by resolution or by-law.
6. Deed/Transfer
(a) The Vendor agrees to deed or transfer the Property to the Purchaser subject to the
terms of this Agreement.
7. Completion Date
(a) The closing of this transaction shall take place within twenty (20) days of the Plan
of Subdivision for the Van Norman Innovation Park being registered , or such
other date as mutually agreed upon (the "Completion Date") at which time possession
of the Property in "as is, where is" condition shall be given to the Purchaser other
than as provided in this APS. The Vendor acknowledges that it has the right and
authority to sell the Property .
8. Documents , Reports and Information
(a) The Vendor will produce and deliver to the Purchaser within thirty (30) days of
Acceptance of the APS any documents , reports or information in its possession in
respect to the Property . The Purchaser agrees to return all of the above
documentation to the Vendor if this transaction is not completed. Above information
shall be supplied to the Buyers as it becomes available up to the completion
date.
SECTION Ill -CONDITIONS, REPRESENTATIONS AND WARRANTIES
9. "As Is " Condition
(a) The Purchaser acknowledges that it is acquiring the Property in an "as is" condition
and that it must satisfy itself within sixty (60) days of Acceptance of the APS
regarding the condition of the Property including , but not limited to , all existing
physical conditions of this Property, environmental conditions , fitness for any
purpose , suitability for construction , soil bearing capacity for any building proposed ,
and the availability of municipal services and utilities necessary for the Purchaser's
proposed use of the Property. The Purchaser acknowledges that the Vendor shall not
be responsible for any physical deficiencies of the Property or for any past, present or
future environmental liabilities and hereby waives any claims against the Vendor in
respect of any environmental liabilities on the Property. The Purchaser agrees to
sign a release and indemnity in favour of the Vendor on or before closing with respect
to matters set out in th e preceding se ntence. If the Purcha se r is for any reason
whatsoever dissatisfied with th e Property, it shall deliver written notice to that effect to
the Vendor by no later than the time specified herein , and thi s Agreement shall be
terminated and the deposit shall be returned to the Purchaser without interest or
deduction. If th e Vendor is notified that the co ndition of the Property is not
satisfactory , then the Purchaser shall , prior to re ce iving its deposit monies back and
prior to being e ntitl ed to a full re lease from the Vendor with respect to this Agreement,
restore the Pro perty to its original condition as it existed pri or t o such testing or
in spection by the Purchaser, at the Purchaser's so le expe ns e . If the Purchaser fa il s
to deliver written noti ce to the Vendor within the time specified herein regarding thi s
conditio n, this co nditi on sha ll be deemed to have been waived by the Purchaser.
10. Other Co nditi ons
(a) Thi s APS and completion of this transaction is subject to the co ndition
Schedule "B".
Buyer's Initi als ~ -
11. Investigation by the Purchaser
(a) The Purchaser acknowledges having inspected the Property prior to executing the
APS and understands that upon Acceptance by the Vendor, and subject to any
conditions herein , there shall be a binding agreement of purchase and sale between
the Purchaser and the Vendor. It shall be the Purchaser's responsibility to provide, at
its own expense, any soil bearing capacity tests or environmental inspection , as may
be required or desired , and the Vendor shall grant the Purchaser access for such
testing or inspection at all reasonable times , on reasonable notice, for the purpose of
conducting reasonable inspections.
12 . Future Use
(a) The Vendor and the Purchaser agree that there is no condition , express or implied,
representation or warranty of any kind that the future intended use of the Property by
I the Purchaser is or will be lawful except as may be specifically stipulated elsewhere in
this Agreement.
13. Provision of Plans
(a) The Purchaser agrees and covenants that prior to the issuance of a building permit,
the Purchaser shall provide to the Town of Tillsonburg a plan showing the location of
the building(s) and outside storage, the front elevation of the building(s), the exterior
building materials , the landscaping treatment and the screening of outside storage.
The provisions of this paragraph shall survive closing.
14. Reasonable Assistance
(a) The Vendor agrees to provide reasonable assistance and co-operation to the
Purchaser in obtaining the necessary approvals for the development of the Property
subject to the Purchaser's compliance with all relevant building codes , by-laws , land
use controls , any other statutory requirements and payment of the fees provided for
in the Town of Tillsonburg's current fees by-law. The Vendor further agrees once
this agreement becomes unconditional to allow the Buyer t o submit and begin
the Site Plan application/Building Permit process anytime prior to closing and
will work with the Buyer to have this completed in a timely manner.
15. Development Covenants and Restrictions
(a) The Property shall be subject to the development covenants and restrictions more
particularly set out in Schedule "D" attached to this APS , which shall survive the
completion of this transaction and run with the Property. The development covenants
and restrictions shall be registered on title by the Vendor. In the event that the said
covenants and restrictions are not registered on title to the Property on or before
closing , the Purchaser covenants and agrees to consent to the registration of the
covenants and restrictions after closing.
16. Property Not for Resale
(a) The Purchaser covenants that it is purchasing the Property for the construction of a
building and not for the purpose of resale of vacant land.
SECTION IV -PRIOR TO COMPLETION DA TE
17 . Purchaser May Inspect the Property
(a) The Purchaser, its agents and contractors shall be permitted to inspect the Property
and any buildings as frequently as is reasonably necessary between the date of
Acceptance and the Completion Date at reasonable times and upon reasonable
notice to th e Vendor.
18. Insuran ce
(a) Pending closing, the Vendor shall hold all insurance policies and th e proceeds thereof
in trust for the parties as th e ir interest may appear and in the event of damage to the
Prope rty . The Purchaser may elect to either receive the proceeds of the insurance
and co mpl ete the purchase or to cancel the APS and have all the deposit monies
paid to the Vendor returned together with all interest earned ther n without
deduction .
Buyer's Initials ~
SECTION V -COMPLETING THE TRANSACTION
19. Deed/Transfer
(a) The Deed or Transfer of the Property will be prepared at the expense of the Vendor in
a form acceptable to the solicitors for the Purchaser and the Purchaser will pay all
Land Transfer Tax, Harmonized Sales Tax and other costs in connection with the
registration of it.
20. Electronic Registration
(a) The parties agree that the transaction shall be completed by electronic registration
pursuant to Part Ill of the Land Registration Reform Act, R.S.O. 1990, c.L.4 as
amended. The parties acknowledge and agree that the delivery and release of
documents may , at the discretion of the lawyer: a) not occur contemporaneously with
the registration of the transfer/deed and other registrable documentation , and b) be
subject to conditions whereby the lawyer receiving documents and/or money will be
required to hold them in trust and not release them except in accordance with the
terms of a written agreement between the lawyers entered into in the form of the
Document Registration Agreement adopted by the Joint LSUC-OBOA Committee on
Elective Registration of Title Documents.
21. Survey or Reference Plan
(a) The parties acknowledge that a survey may be required and a Reference Plan may
be registered on title and may be used to provide a registrable description of the
Property and any easements.
22. Letters and Reports from Officials of the Vendor
(a) On or before the requisition date , the Vendor agrees to provide to the Purchaser, if
requested , at the Vendor's expense , letters or reports from the Building and Zoning
Department of the Town of Tillsonburg and the Fire Chief of the Town of Tillsonburg
regarding the status of compliance with all codes, by-laws , rules and regulations with
respect to the Property and any buildings located thereon.
23 . Examination of Title
(a) Title to the Property shall be good and marketable and free from all encumbrances
except for any service easements or rights-of-way to be reserved in favour of the
Vendor and for any easements or rights-of-way registered on title and any minor
encroachments shown on the survey or Reference Plan delivered to the Purchaser.
Any required easement shall be in the form set out in Schedule "C".
(b) Th e Purchaser is allowed twenty (20) days prior to the completion date to examine
the title to the Property. If on or before this date the Purchaser furnishes the Vendor
in writing with any valid objections: to the title; to any undisclosed outstanding work
orders; to undisclosed non -compliance with the municipal by-laws or covenants and
restri ctions which run with the land and cannot be resolved before the Completion
Date; as to any objection of which the Vendor shall be unable to remedy or correct by
the Completion Date and which the Purchaser will not waive, then this APS shall ,
notwithstanding any inte rm ediate acts or negotiations , be terminated and the deposit
shall be returned to the Purchaser without deduction and the Vendor and the
Purchase r shall not be liable for any costs, damages, compensation or expenses.
24. Vendor to Di scharge all Encumbrances
(a) The Vend or agrees t o obtain a nd register at its own expense, on or before the
Completion Date , a discharge of all liens , encumbrances , agreements and mortgages
now registered again st the Property and not assumed by the Purchaser. Th e Vendor
further covenants and agrees to discharge, on or before the Completion Date, any
and all li e ns, chattel mortgages , assignments or any other security inte rest given by
the Vendor against it s personal Property.
25. Adjustments
(a) Th e Vendor agrees th at all deposits, if any , held by the Vendor not including intere st
th e reon shall be credited to th e Purch aser in the Statement of Adju stm e ts prepared
for th e Completion Date.
Buye r's Initia ls ~ Seller's lniti l~
(b) Any rents, mortgage, interest, taxes, local improvements , water and assessment
rates shall be apportioned and allowed to the Completion Date , the day itself to be
apportioned to the Purchaser.
26. Deliveries by the Vendor To The Purchaser on Closing
(a) The Vendor covenants and agrees to deliver to the Purchaser on the Completion
Date , all such deliveries to be a condition of the Purchaser's obligation to close this
transaction , the following:
(i) a deed/transfer of the Property;
(ii) any survey or reference plan of the Property in the possession of the Vendor;
(iii) a Statutory Declaration by an authorized officer of the Vendor stating that
accurateness and truthfulness of all of the representations and warranties;
(iv) a Statutory Declaration by an authorized officer of the Vendor as to
possession of the Property in a form acceptable to the solicitors for the
Purchaser;
(v) a Statutory Declaration by an authorized officer of the Vendor that it is not
now , and upon completion will not be , a "non-resident person " within the
meaning and for the purpose of Section 116 of the Income Tax Act, R.S.C.,
1985, c. 1 (5th Supp .) as amended ;
(vi) certified copies of all appropriate certificates , by-laws and other documents of
Vendor authorizing the transaction herein ; and
(vii) such further documentation and assurances as the Purchaser may reasonably
require to complete the transaction contemplated by the APS.
27. Harmonized Sales Tax
(a) The parties hereto acknowledge and agree that the transaction contemplated herein
is subject to the Harmonized Sales Tax (HST) under the Excise Tax Act, R.S.C .,
1985, c . E-15 (the "Act") and that the Purchase Price does not include HST. The
Vendor shall provide the Purchaser with its HST Business Number. The Purchaser
shall pay to the Vendor any HST imposed under the Act payable in connection with
the transfer of the Property to the Purchaser, or as it may direct, unless the Purchaser
or its nominee, or its assignee, provides :
(i) a certificate on or before the Completion Date containing a representation and
warranty to the Vendor that:
(1)
(2)
(3)
(4)
(5)
Buyer's lnitialsC::S:
it is registered for the purpose of the HST on the Completion Date and
specifying the HST registration number;
it will self-assess the HST on its GST/HST return or file the prescribed
form pursuant to subsection 228(4) of the Act in connection with the
purchase of the Property;
the Property transferred pursuant to this APS is being purchased by
the Purchase r, or its nominee or assignee , as principal for its own
account and is not being purchased by the Purchaser as agent , trustee
or otherwise on behalf of or for another person , and does not
constitute a supply of residential complex made to an individual for the
purpose of paragraph 221 (2)(b) of the Act;
an indemnity, indemnifying and saving harmless th e Vendor from any
HST payable on this transaction and penalty and interest relating to
HST; and
a notarial tru e copy of its HST registration co nfirmation.
Se ll er's lniti
SECTION VI -MISCELLANEOUS
28. Entire Agreement
(a) There is no representation , warranty , collateral agreement or condition affecting this
Agreement of the Property other than expressed herein.
29. Tender
(a) Any tender of documents or moneys hereunder may be made upon the solicitor
acting for the party upon whom tender is desired , and it shall be sufficient that a
negotiable, certified cheque or bank draft may be tende red instead of cash .
30. Time of Essence
(a) Time shall be of the essence of this Agreement.
31 . Planning Act
(a ) This Agreement shall be effective only if the provisions of Section 50 of the Planning
Act, R.S.O . 1990, c.P.13, as amended are complied with.
32 . Notices
(a ) All notices in this Agreement shall be in writing and shall be deemed to ha ve been
given if delivered by hand or mailed by ordinary mail , postage prepaid , addressed to
the solicitor for the person to whom such notice is intended to be given at the
following addressed:
Solicitors for the Vendor:
Duncan , Linton LLP
ATTENTION : Patrick J. Kraemer
45 Erb Street West
Waterloo , ON N2J 4B5
Fa x: (519) 886-8651
with a copy delivered to:
The Corporation of the Town of Tillsonburg
ATTENTION : Develo pment Commissioner
204-200 Broadway
Tillsonburg , ON N4G 5A7
Fax : 519-842-94 3 1
Solicitors for the Purchaser:
Je nkins & Gilvesy
Till sonburg , ON
Fax : (519)842-3394
If mailed , such notices must a lso be given by facsimile tran s mi s si on on th e date it
was so mailed . If so given , su ch noti ces shall be deemed to have be e n rece ived o n
th e first bu sin ess d ay followin g th e date it was delive red or marked mailed out.
33. Success ors and Assign s
(a) The Purc hase r shall be permitted to assign all of its right , title and inte rest in and t o
thi s APS with the Vendor's written approval , which shall not be unreaso nabl y
withheld , in cluding assignment to another c orporation with the same sharehold e rs as
th e Purcha ser. Subject t o th e restri ction s in the preceding sentence, th e Ve ndor
agrees to e ngross th e Transfe r/D eed of La nd as directed by the Purchase on the
compl etion Date as the Purc ha ser may e lect , and the Vendor agree s to c ompl ete the
transaction co ntempl ate d by th is A PS on th e Compl etion Date with such ass ignee or
nomin ee . Th e Purchaser is released from all liability hereund er, if it a ign s its
inte rest in this APS. This Ag reem ent s ha ll be binding upon th e pa rti es 1eto and
th eir re specti ve su ccessors and ass ign s.
Bu ye r's Initial s ts({
34. Schedules
(a) The following Schedules shall form an integral part of this Agreement:
(i) Schedule "A" Description of the Property;
(ii) Schedule "B" Conditions ;
(iii) Schedule C" Easement; and ,
(iv) Schedule "D" Development Covenants.
35. Acceptance by Fax or Email
(a) The Purchaser and Vendor acknowledge and agree that the communication of this
Agreement of Purchase and Sale may be transmitted by way of facsimile or electronic
mail , and that they agree to accept such signatures and documents to be legal and
binding upon them.
36. Counterparts
(a) This Agreement may be signed in any number of counterparts, each of which is
considered to be an original , and all of which are considered to be the same
documents.
37. Severability
(a) If any provision of this Agreement, or the application thereof to any circumstances,
shall be held to be invalid or unenforceable , then the remaining provisions of this
Agreement, or the application thereof to other circumstances, shall not be affected ,
and shall be valid and enforceable.
IN WITNESS WHEREOF the Purchaser has executed this Agreement:
Dated at {, (( ">o'h \, 1....cs , Ontario this J"f-#-day of OcAqf....cz--e '2020.
~
**
Name : Cedric Tamica :::::::::-~
Title : President
I/We have authority to bind the Corporation.
The Vendor hereby accepts this Agreement according to its terms.
Dat ed at Tillsonburg, Ontario thi s W day of Qc.Jrfzvr= , 2020.
IN WITNESS WHEREOF th e Vendor has executed thi s Agreement:
Buye r's Initi als ~
~ryd-
Mi c he lle Smibert
C lerk
We have auth ority t o bind The Corporation
of the Town of Tillsonburg .
SCHEDULE "A" -LEGAL DESCRIPTION OF THE PROPERTY
A LL AND SINGULAR that certain parcel or tract of land and premises situated , lying and being in
the Town of Tillsonburg in the County of Oxford , being co mpromised of Part of Lots 1 and 2,
Concession 5 North of Talbot Road, Tillsonburg; more or less as shown below with the offer
being for the 6.0 Acre parcel and the Right of First Refusal being 2 of the 4.0 Acres shown to
the south and to be described by a new reference plan:
BLoo< '\
Buyer's Initia ls ~
SCHEDULE "B" -PURCHASER CONDITIONS
1. The transaction of purchase and sale contemplated herein shall be subject to the fulfillment
of the following terms and conditions on or before 7 days from the date of acceptance of this
offer, which terms and conditions are for the exclusive benefit of the Purchaser and may be
waived in whole or in part by the Purchaser. If the conditions are not fulfilled or waived then
the deposit shall be returned and Agreement arising from the offer shall be at an end and all
parties released from their obligations :
(a) Due Diligence to seek professional legal and accounting advice .
(b) Grant of Right of First Refusal
(i) The Vendor hereby grants the Purchaser a right of first refusal on up to two
acres of adjacent property (the "Adjacent Lands") or any portion thereof in
accordance with the terms herein below (the "Right of First Refusal ").
(ii) Term
(1) If, within three (3) years from the date of the property being
transferred , the Vendor receives either (a) a bona fide written offer by
a willing third party to purchase all or a portion of the Adjacent Lands
which the Vendor intends to accept, or (b) an agreement of purchase
and sale which the Vendor intends to enter into (individually and
collectively , an "Offer"), then the Vendor shall give written notice to the
Purchaser at the address provided herein below accompanied by a
true copy of such Offer as soon as reasonabl y possible .
(iii ) Exercise of Right of First Refusal
(1 ) Within 10 days after receipt of the written notice , the Purchaser shall
have the right to give written notice to the Vendor at the address herein
below that it is exercising the Right of First Refusal and will purchase
the Adjacent Lands pursuant to an agreement of purchase and sale
which incorporates the terms of the Offer.
(iv) Expiry
(1) If the Purchaser fails to exercise the Right of First Refusal within the
time stated above , the Right of First Refusal shall cease to have any
force or effect.
2 . Should registration of the Plan of Subdivision be delayed , the Town of Tillsonburg agrees to
enter into a separate agreement with the Purchaser enabling access to the subject lands in
order to enable the Purchaser to start construction and meet its commitments with respect to
tenant agreements.
Buyer's Initial s ~
SCHEDULE"C"-EASEMENT
TERMS AND PROVISIONS OF THE EASEMENT:
I. The Owner hereby grants , conveys and confirms to The Corporation of the Town of
Tillsonburg (the 'Town"), its successors and assigns, in perpetuity, the free , uninterrupted and
undisturbed right and easement to enter upon the lands herein described at any time for the
purposes of constructing, installing and maintaining all municipal services of any kind (including
water distribution pipes and sanitary and storm sewers) in , under, over and upon the said lands, and
with the further and continuing right to the Town, its successors and assigns , and its servants ,
agents and workers to enter upon the lands at any time to construct, repair, correct, operate , replace
and maintain at all times in good condition and repair the municipal services and for every such
purpose the Town shall have access to the said lands at all times by its agents , servants , employees
and workers .
2 . The Town covenants and agrees that , upon completion of any work undertaken hereunder,
the Town will restore the areas of land upon which it has performed work to the same condition as
that in which the lands were found prior to the co mmencement of the work.
3. The Owner covenants with the Town to keep the lands herein described free and clear of any
trees, buildings , structures or other obstructions which may limit the use, operation , repair,
replacement or maintenance of the easement and to use the lands herein described only in a
manner and for purposes not inconsistent with the exercise of the rights created by this indenture
and without limiting the generality of the foregoing , only as a yard , lawn , garden , flowerbed ,
roadway , driveway or parking area and the Owner agrees not to do or suffer to be done anything
which might injure any of the works of the Town hereon.
The term "building " as set out herein shall specifically include any window sills , chimney
breasts, cornices, eaves or other architectural features projecting from the first floor of the building
but shall not include window sills, chimney breasts, cornices , eaves or other architectural features
projecting from the second floor of the building by less than two (2) feet and such second floor
projections shall be specifica ll y authorized and allowed to encroach upon the lands herein
described .
4. The Town , by the acceptan ce and registration of the within easement, agrees to be bound by
the terms and provisions contained herein .
5. The burden and benefit of this easement shall run with the lands herein described and shall
extend to and be binding upon and enure to the benefit of the parties hereto and their respective
heirs, executors, administrators , successors and assigns .
6. This is an easement in gross .
Buyer's Initial s 0--
1. Title Control
SCHEDULE "D"
DEVELOPMENT COVENANTS
(b) The owner or owners of the property (the "Owner") upon which these development
covenants attach (the "Property") covenants and agrees that it may not use the
Property for its intended use and may not retain ownership of the Property unless the
Owner has constructed a building for such use including obtaining a building permit
for a permanent building with a minimum building coverage of twenty percent (20%)
of the total area of the Property. The Owner further covenants and agrees to
commence construction of a permanent building on the Property which complies with
the permitted uses of the Property's zoning , with no more than 50% of the gross
floor area within the property being comprised of warehousing tenancy, within
one (1) year of the date the Owner took title to the Property being the date of
registration of transfer (the "Completion Date") and to substantially complete the
construction of the said building in conformity with an approved site plan within two
(2) years from the Completion Date of this transaction.
(c) In the event that the Owner has not obtained a building permit in accordance with the
provisions of subclause 1.a) above , the Owner may request from The Corporation of
the Town of Tillsonburg (the "Town of Tillsonburg "), in writing , an extension of the
time specified in subclause 1.a) above up to an maximum extension period of one (1)
year, (such extension, the "Extended Time") upon payment by the Owner to the Town
of Tillson burg of a performance deposit equal to ten ( 10%) percent of the purchase
price of the Property (the "Performance Deposit"). The Performance Deposit shall be
refunded to the Owner, without interest, upon the Owner's compliance with and
completion of the provisions of subclause 1.a) above within the Extended Time. In
the event that the Owner fails to complete construction within the Extended Time ,
then the Town of Tillsonburg shall , in addition to its other rights and remedies as set
out herein or otherwise , be entitled to retain the Performance Deposit as liquidated
damages and not as a penalty , in partial or full satisfaction of the Town of
Tillsonburg 's damages.
(d) If the Owner does not comply with the provisions of subclause 1.a) above within the
periods therein specifically set out or within the Extended Time , the Owner, will , at the
option of the Town of Tillsonburg by notice in writing to the Owner, re-convey good
title to the Property to the Town of Tillsonburg , free and clear of all encumbrances, in
consideration for payment by the Town of Tillsonburg to the Owner of 90% of the
purchase price paid by the Owner to the Town of Tillsonburg for the conveyance of
the Property in the first instance (the "Discounted Consideration"). The re-conveyan ce
shall be completed within sixty (60) days of the notice set out in this subclause. The
Town of Tillsonburg shall be allowed to deduct from the Discounted Consideration all
of its reasonable costs , realty commission and legal fees incurred with respect to the
original conveyance of the Property by the Town of Tillsonburg to the Owner, as well
as the costs of the Town of Tillsonburg in re -acquiring the Property , including without
limitation , realty commission , registration costs , land transfer tax, legal fees and such
other costs as reasonably incurred by the Town of Tillsonburg. The Town of
Tillsonburg shall not be required to pay for any improvements that may have been
made , constructed, installed or performed by the Owner on the Property.
(e) Subject to subclause 1.c) above , the Owner covenants that it will not sell the Property
or any part thereof to any person , firm or corporation without first offering , in writing ,
to sell the Property to the Town of Tillsonburg for consideration equal to or less than
the consideration paid by the Owner to the Town of Tillsonburg in the original
conveyance of the Property less the costs of th e Town of Tillsonburg incurred in re -
acquiring the Property, including without limitation , real estate co mmis sion , land
transfer ta x, registration cost s, leg a l fe es and such other costs as reasonably incurred
by the Town of Tillsonburg , provided however that the Owner may sell or transfer the
Property to a subsidiary or affiliate corporation as defined in the Busin ess
Corporations A ct, R.S.O . 1990, c.B.16 as amended, provided such subsidiary
assumes and confirms its acceptance of th e within covenants and restri ction s and
expressly undertakes in writing to co mply with them in such form as the Town of
Till sonburg may require. Th e T own of Till sonburg shall have nin ety (90) days from
the receipt of an offer made by the Owner under this subclause, to accept s uch offe r
which accepta nce shall be in writing . If the Town of Tillsonburg does not ace t an
offe r to se ll mad e by the Owner under the provisions of this subclause, the n of
Till sonburg 's right to rep urcha se the Property so offered shall terminate. Ho Vi r, the
re maining provi sion s of thi s clause 1 as well as other provisi ons herein shal ontinue
in full force a nd effect. The limitati on contained in thi s su bcl ause, will expir pon the
Bu yer's Initials 'QC" Seller's lniti
Owner fulfilling all of the building requirements as set out in subclause 1.a) and 1.b)
above.
38 . Town of Tillsonburg Option on Vacant Portion of Land
(a) The Town of Tillsonburg shall have the option to repurchase such vacant portion of
the Property not used by the Owner for the construction building(s) thereon provided
such land is not reasonably ancillary to the Owner's use and occupation of the said
building, at Fair Market Value if the Buyers approve such .
(b) This option shall only be exercisable if the Owner has not constructed permanent
buildings with a minimum building coverage of thirty percent (30%) of the total area of
the Property.
(c) The option shall be exercisable by the Town of Tillsonburg for consideration equal to
Fair Market Value . Any costs incurred by the Town of Tillsonburg in re-acquiring the
subject portion of the Property, including without limitation , real estate commission ,
land transfer tax, registration costs , legal fees and such other costs shall be at the
cost of the Town of Tillsonburg .
(d) This option expires ten (10) years from the Completion Date .
39 . Development Standards
(a) The Owner shall not construct and maintain a building unless the exterior of the wall
or walls of any building or structure facing any municipal street is constructed of a
minimum sixty (60) percent brick , precast stone, glass , pre-cast concrete or
alternative non-steel materials including , but not limited to , stainless steel ; decorative
glazed terra cotta ; ceramic veneer; precast concrete panel ; aluminum ; bronze; steel
with protective glazed enamel ; or, porcelain finish and subject to approval by the
Town of Tillsonburg , in their sole and absolute discretion , acting reasonably , through
the Town's Site Plan Approval process .
(b) The Owner shall not use the Property unless any portion of any area of the Property
to be used for open storage shall not be left so that any area is unenclosed , and any
such areas shall be enclosed and designed so that the storage area is not visible
from any municipal street. No storage shall be permitted within any set back area as
set out in the Town of Tillsonburg Zoning By-Law, nor in front of any building or
structure facing any municipal roadway .
(c) The Owner hereby acknowledges that it is aware that the Property is designated as
within a site plan control area. The Owner shall not commence any construction or
use the Property until site plan approval has been obtained. The external building
materials used on any building to be constructed on the Property must be approved in
writing in advance by the Town of Tillsonburg as part of such site plan control
approval process .
40 . Assignment of Covenants
(a) The Owner acknowledges and agrees that the covenants and restrictions herein shall
run with the title to the Property . The Owner, for itself, its successors , heirs , and
assigns in title from time to time of all or any part or parts of the Property will observe
and comply with the stipulations , restrictions, and provisions herein set forth (the
"Restrictions "), and covenants that nothing shall be erected , fixed, placed or done
upon the Property or any part thereof in breach or in violation or contrary to the
Restrictions or the provisions of the agreement of purchase and sale between the
Owner and the Town of Tillsonburg and that the Owner will require every subsequent
purchaser or every successor in title to assume and acknowle dge the binding effect
of this document, as well as, covenant to observe and comply with the Restrictions
and other cove nants he rein , and the surviving provisions of this Agreement of
Purchase and Sale.
41 . Force Majeure
(a ) If the Owner shall be unable to fulfill , or shall be delayed or restricted in fulfilling any
of the obligations set out herein due to any act or neglect of the Town of Tillsonburg
or any of its employees , or due to strikes , walkouts, lockouts, fire, unusual delay by
common carriers , or by any other cause beyond the Owner's reasonable con ol , then
the time for fulfilling any such obligations shall be extended for such reaso ble time
as may be required by the Owner to fulfill such obligation.
Buyer's Initials C5?
42. Right to Waive
(a) Notwithstanding anything herein contained , the Town of Tillsonburg and its
successors shall have the power by instrument or instruments in writing from time to
time to waive , alter or modify the herein covenants and restrictions with respect to
their application to any part of the Property without notice to or approval from the
Owner or notice to or approval from the owners of any other adjacent or nearby
lands.
Buyer's Initial s~