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HomeMy Public PortalAboutBYLAW 2008-48 ALEXIS DENTAL EXPROPRIATION 14306 TEC RDTHE:CORPORATION OF THE TOWN OF TECUMSEH BY-LAW NUMBER 2008-48' Being a by-law to authorize the execution of an agreement for the acquisition oflands required,for municipal purposes and to complete acquisition of such lands:' WHEREAS The-Corporation of the Town of Tecumseh. (herein "the Town") is undertaking improvements to Brighton Road and has identified certain lands required from abutting owners in order to proceed with the- improvements as planned including the lands described as Part Lot 1, Concession West of River Peche designated as Part 5 on Plan 12R-23224 (Geographic Township of Maidstone), in the Town of Tecumseh, County of Essex (the "Road Widening") and referenced in the Agreement attached hereto as Schedule "A"; AND WHEREAS the Town has been in negotiations with the registered 'owner, Alexis Dental Ltd., for the acquisition of the Lands and -the. parties have not yet reached. a binding unconditional agreemenfi on a value to be paid, for the Road Widening inclusive. of any claim thaf could be made under the Expropriations-Act, R:S.O. 1990 (herein the "Compensation Amount"); i AND WHEREAS Section 30 of the Expropriations Act, R.S.O. 1990, c. E.26, as .amended ~ authorizes municipalities and property owners to enter into agreements to refer the matter of :compensation be to the Ontario Municipal :Board in the event the .parties cannot successfully .conclude negotiations; AND WHEREAS. the registered owner, Alexis Dental Ltd. has. agreed to transfer the Road .Widening to the Town upon' the Town- entering info the. Agreement attached hereto as Schedule "A" with Alexis Dental Ltd.;, NOW THEREFORE: the .Council of The Corporation of the Town of Tecumseh hereby enacts as follows: 1. That approval is hereby granted for the execution of the Agreement attached hereto as ''~ Schedule "A" to permit .acquisition of the Road V1/idening for municipal purposes in connection with the improvement of Brighton Road including installation of sidewalks and multi-use paths. 2. That the Mayor and Clerk are hereby authorized to execute the Agreement attached hereto as Schedule "A": 3. That the Town's solicitor may proceed- to finalize transfer of the Road Widening from Alexis Dental Ltd. to the Town. 4. That the provisions of this By-law shall take. effect as of and from the third and final: reading hereof... Read a first, second and third time and finally passed this 8th day of July, 2008. ~~ TIIIS:AGREEMEIVTrnade in triplicate this $ day of J ~ , 2008. BETWEEN: THE CORPORATION OF THE TOWN OF TECUMSEH, hereinafter called the. "Municipality" or "Town" OF THE FIRST PART -and- ALEXIS DENTAL LTD. hereinafter called the "Owner" OF THE SECOND PART HEREINAFTER collectively referred to as the "Parties" ARTICLE 1 RECITALS WHEREAS the Owner owns certain lands situated within the corporate limits of the 1Vlunicipality, said lands being more particularly described as Part Lot 1, Concession West of River Peche .designated as Part I,-Plan. 12R-.8653 (Geographic Township of Maidstone),. iri the Town of Tecumseh, County of Essex. being all of PIN 75000-0369 and municipally known a 14306 Old Tecumseh Road (the "Lands"); . AND WHEREAS the Municipality has expressed its intention to acquire part of the Lands designated as Part 5 on Plan 12R-23224 for the purpose of planned road improvements along Brighton -Road .which will require the acquisition by the Municipality of these lands and •lands of other landowners along Brighton .Road, (herein the "Road Widening»}~ AND WHEREAS the Parties have not yet reached ,a binding unconditional agreement on a value to be paid for the Road Widening inclusive of any claim that could be made under the Expropriations Act, R.S.O. 1990 (hereinthe "Compensation Amount"); AND WHEREAS in the. absence of reaching such an agreement the Parties .have agreed that the compensation to be paid by the Town to the Owner for the Road Widening shall be referred to the Ontario Municipal Board as detailed below; NOW THEREFORE inconsideration of the covenants contained herein, the parties hereto agree as follows: ARTICLE 2 TERM OF AGREEMENT 2.1 Each Party represents' and warrants to the .other Partythat the .recitals to this. Agreement, insofar as they relate to the Party,. are true and correct. 2.2 The Owner agrees to convey to the Municipality 'upon execution of this Agreement the Road Widening free of lien or encumbran6e. 2.3 Subject to Article 2.4 below, the parties agree to continue to negotiate on a Compensation Amount in the .hopes of avoiding .referral of the. matter to the Ontario Municipal Board. 2.4 The Parties agree that in the event .that they are unable to reach a binding unconditional agreement on the Compensation Amount, either. parry may, on 15 days notice to the other, refer to the Ontario 1vlunicipal Board the determination of the compensation to which the Owner would. be entitled by the Expropriations. Act (herein "the. Act") if the Road Widening were expropriated as contemplated by section 30 of the Act.. 2.5 Should the parties reach a binding. unconditional agreement on the Compensation Amount it is agreed that the release attached in Schedule A shall be executed contemporaneouslywith the payment of the Compensation Amount. ARTICLE 3 MISCELLANEOUS 3.1 C011~IMUNICATION Subject to the express provisions of .this Agreement, 'all communications provided for or permitted hereunder shall be in writing, personally delivered to an officer of the addressee or sent by registered -and receipted mail, charges .prepaid, or by facsimile transmission or other means of recorded telecommunication, charges prepaid, to the applicable address set forth below or to such other address as either party hereto may from time to time designate to the other in such manner. Communications sent to the Parry of the First Part -shall be addressed to: 917 Lesperance Road Tecumseh, ON N8N 1 W9 Attention: Laura Moy, Clerk Communications sent to the Parry of the Second-Part. shall be addressed to: 1665 Tecumseh Rd East, Tecumseh, Ontario N8W 1 C6 x Any communication so personally. delivered shall be deemed to .have been validly and effectively given on the date of such delivery. Communications so sent by registered and receipted mail .shall be deemed to :have been validly and effectively. given on the 5~ Business Day after posting, as evidenced by the postal_receipt. Communications so sent by facsimile transmission or other means of recorded telecommunication shall be deemed to have been .validly and effectively given on the Business_Day next. following the day on which it is sent. Any parry may from time to time change his or its address for. service on written notice to the others. ' 3.2 TIME OF ESSENCE Time shall be of the essence of this Agreement and of every part thereof. 3.3 vVAIVER No .waiver by any party of a breach of any. of the covenants, conditions and provisions herein contained shall be effective or binding upon such party unless the same shall be expressed in writing and any waiver so expressed shall not limit or affect such party's rights with respect to any other future breach. 3.4 FURTHER ASSURANCES. - Each of the Parties covenants and agrees that he, his heirs,. executors, administrators, successors and assigns will ..sign. such further agreements, .assurances; waivers and documents, and influence, do and perform or cause to be done and performed such further and other. acts and. things. as maybe necessary or desirable from time to time in order to give fiz11 effect to this Agreement and every part thereof. 3.5 HEADINGS _ The headings of the Articles of this Agreement are inserted for convenience only and do not constitute part of this Agreement: Or the headings and. the table of contents are_ for convenience only and - do not form a part of this Agreement nor are they intended to interpret, define or limit the scope; extent or intent of this Agreement or any provisions hereof 3.6 SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and enure to the benefit of the parties .hereto and their respective heirs; executors, administrators, successors and assigns. 3 3.7 GENDER All words and personal pronouns relating thereto shall be read andconstrued as the number and gender of the party or parties referred to ~in each case require -and the verb shall be construed as agreeing with the required word and pronoun. 3.8 SEVERABILITY If any covenant or provision contained herein is determined to be in whole or in part, invalid or unenforceable by reason of any rule. of law or public policy, such invalidity or unenforceability shall .not affect,. the validity or .enforceability of any other covenant or provision contained herein and, in the case of partial invalidity or unenforceability of a covenantor provision, such partial invalidity or unenforceability shall not affect the validity or enforceability of the remainder of such ..covenant or provision, and such invalid or unenforceable covenant or provision or portion thereof, as the case may be, shall be severable from-the remainder of this Agreement. 3 9 ENTIRE AGREEMENT This Agreement expresses .the final. agreement. among the parties hereto with respect to all matters herein and no representations, inducements; promises or agreements or otherwise among the parties not embodied herein shall be of any force and effect. This Agreement Sha11 not be altered, amended or qualified except by a memorandum in writing, signed by all the. parties hereto, and any alteration, amendment or qualification thereof shall be null and. void and shall not be binding upon'any such party unless made' and recorded as aforesaid. The,parties acknowledge that the doctrine of "contra: proferentem" shall not apply to .any of the terms of this Agreement. l 3,10. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same.instrument. This Agreement maybe executed by facsimile: and any such facsimile . copy shall be deemed to be an original and shall be bindingupon the'signatories thereto. 3.11 JURISDICTION This agreement shall be governed in all regards, by the laws of the Province of Ontario, 3:12 ASSIGNMENT - Subject to the terms of this agreement, this agreement is not. assignable without the consent of all parties. Continued on next page.. 3.13 TRUE COPY All of the parties hereto acknowledge having received a true copy of this document. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals this g day of 2008. SIGNED, SEALED AND DELIVERED } in the presence of } } THE CORPORATION OF THE } TOWN OF TECUMSE } } Per:. . } - Y } } } L -CLERK } } AL XIS DENTAL LTD. , -, Per: David Mady, President. I have authoriiy to bind the Corporation