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HomeMy Public PortalAboutFarview Mountain Golf Club Society Lease Bylaw 967 TOWN OF OLIVER BYLAW No. 967 A bylaw to authorize the Town of Oliver to lease land and premises to the Fairview Mountain Golf Club Society Whereas: A. The Town of Oliver is the owner of the parcel of land and premises known as the Fairview Mountain Golf Club Society and legally described as: Parcel Identifier 024-168-254 Lot 1, Plan KAP62023, District Lot 2450s, Similkameen Division Yale District (hereinafter called the "Lands and Premises"); and B. Council of the Town of Oliver desires to lease the lands and premises to the Fairview Mountain Golf Club Society. Now therefore, the Council of the Town of Oliver in open meeting assembled enacts as follows: Title 1. This Bylaw may be cited as "Fairview Mountain Golf Club Society Lease Bylaw No. 967, 2000". Lease 2. The Council of the Town of Oliver hereby authorizes the lease of the Land and Premises to the Fairview Mountain Golf Club Society. 3. The lease shall be for a term of 23 years from the 1st day of January 2000 to and including the 31st day of December 2022, renewable for a further 20 years. 4. The annual rent shall be $6,300, payable on July 1st of each year. 5. The form of lease shall be as set forth in the Agreement attached hereto which forms part of this bylaw. 2 6. The Signing Officers of the Town of Oliver are hereby authorized to execute the said lease on behalf of the Town. Repeal 7. “Oliver Golf and Country Club Society Lease Bylaw No. 930, 1998”, is hereby repealed. READ A FIRST, SECOND AND THIRD TIME, the 27th day of March, 2000. ADOPTED on the 10th day of April, 2000. “original signed by Mayor” “original signed by Clerk” __________________________ __________________________ Mayor Clerk 3 SCHEDULE ‘A’ TO BYLAW NO. 967, 2000 THIS LEASE dated for reference this _________ day of __________________, 2000, BETWEEN: The Town of Oliver, a Municipal Corporation at 35016 – 97th Street, Box 638, Oliver, British Columbia, VOH 1TO The Lessor (hereinafter called the Town) AND: Fairview Mountain Golf Club Society, of 13105 – 334th Avenue, Box 821, Oliver, British Columbia, VOH 1TO (B.C. Incorporation No. 5163) The Lessee (hereinafter called the Golf Club) WHEREAS: A. The Town is the registered owner of the land and premises to be demised herein. B. The Golf Club has agreed to lease the said lands and premises from the Town for the purpose of operating and maintaining a golf course for the use of the general public. C. The Town has agreed to grant a lease of the said land and premises to the Golf Club pursuant to the terms and conditions hereinafter contained. 1. NOW THEREFORE in consideration of the premises and the rents, covenants, agreement and conditions hereinafter reserved and contained on the part of the Golf Club to be respectively paid, kept, observed and performed, the Town doth demise and lease unto the Golf Club ALL AND SINGULAR that certain parcel or tract of land and premises together with the present buildings and all improvements and fixtures now thereon, situate, lying and being in Electoral Area "C" of the Regional District of Okanagan-Similkameen, in the Province of British Columbia and being more particularly known and described as: LOT 1, District Lot 2450S", Similkameen Division Yale District, Plan KAP62023 Which said land and premises and all buildings, improvements and fixtures (including the irrigation system) from time to time upon or appurtenant thereto are hereinafter called the Premises. RESERVING HOWEVER unto the Town full free right and liberty for the Town, its servants, agents and all others, the licensees of the Town from time to time and at all times to enter upon the premises and thereon to do all such things whatsoever as the Town may deem expedient in connection with its Reclaimed Wastewater Irrigation System, including without limiting the generality of the foregoing as hereinafter particularized. 4 TO HOLD the premises for the term of twenty-three years commencing on the lst day of January, 2000 YIELDING AND PAYING THEREFOR during the said term the annual rent of six thousand, three hundred dollars ($6,300.00) to be paid by the Golf Club to the Town on July 1st each year. It is agreed by the Town and the Golf Club that this payment represents Fair Market rent to allow the Town to recover the purchase cost of two parcels of land, being Lot 999, Plan 28802 and Lot 1014, Plan KAP 48516, both of District Lot 2450S Similkameen Division Yale District, which were purchased by the Town in 1997 for golf course and reclaimed wastewater irrigation system expansion. 2. THAT the Golf Club covenants and agrees with the Town: (a) That it will during the said term pay unto the Town the rent hereby reserved, in manner hereinbefore mentioned, without any deduction whatsoever. (b) That it will pay to the Town its remaining share of the existing Capital Cost of the irrigation system on the golf course as follows: - on May lst of each year- from 2000 to 2003 inclusive, a sum of $2,246.57. - on May 1st, 2004 a sum of $1,150.37. - on November lst of each year from 2000 to 2003 inclusive, a sum of $2,442.24. (c) That it will pay to the Town a reclaimed wastewater user charge, in the amount of $8,649.00. This sum shall be paid on July lst of each year during the term of the lease, and shall be adjusted as of July lst each year commencing in 2001 in accordance with the change in the All Items Consumer Price Index for British Columbia over the immediately preceding calendar year. (d) That it will pay all reclaimed wastewater user charges, and all taxes, rates, duties and assessments whatsoever, whether municipal, provincial, federal, or otherwise, charged upon the premises or any things erected or placed in, upon or under or affixed to the premises or charged upon the Town in respect thereof. (e) That it will pay rates for electricity, gas, water, telephone, sewer and any other utility or service charges incurred during the said term in respect of the premises. (f) That it will, during the said term, well and sufficiently repair, maintain, and keep the premises with the appurtenances in good and substantial repair, when, where and so often as need may be and will keep the premises in a tidy and orderly condition. 5 (g) That it will take all reasonable precautions to ensure that the safety of all persons using the premises. (h) That it will permit the Town to enter the premises at all reasonable times to determine if the Golf Club is complying with all its covenants under this lease. (i) That the Town shall leave notice in writing of any system repairs it deems necessary and the Golf Club agrees to make such repairs forthwith (j) That it will not during the said term sublet the premises or any part thereof to any person or persons without first obtaining the consent of the Town in writing. (k) That it will comply with and observe all federal, provincial and local government laws, bylaws, rules, regulations, and orders in force with respect to the premises or operation of the Golf Club. (l) That it will not during the said term assign, transfer, or set over, or otherwise by any act or deed procure the premises or the term hereby granted, to be assigned, transferred, or set over unto any person or persons whomsoever without first obtaining the consent of the Town in writing, such consent not to be unreasonably withheld except that the Town does consent to a mortgage by way of sublease to any financial institution for the purpose of securing a loan to the Golf Club provided that the Golf Club covenants to pay and discharge all monies due and accruing due under the said mortgage by way of sublease and any default thereunder shall be deemed to be default under this lease. (j) That it will, at the expiration or other sooner determination of the said term, peaceably surrender and yield up unto the Town the premises, with the appurtenances, in good and substantial repair and condition in all respects, reasonable wear and tear excepted. (n) That it will not do or permit to be done or continued on the premises anything which shall be deemed a nuisance of which may cause damage to the owners or occupiers of neighboring lands or premises, or use the premises or permit them to be used for any purpose other than a golf course and for purposes incidental thereto. In the event that the Golf Club discontinues its use of the premises for the operation of a golf course for public use for a period of six months then in such event the said term shall immediately become forfeited and void. (o) That it will not permit a lien to be acquired against the premises under the Builders Lien Act or any other statute or regulation. In the event that a lien is registered, the Town may at its option pay the amount of the lien claim and obtain a discharge of the lien and the amount so paid shall be deemed to be rent in arrears and payable as such. 6 (p) That all irrigation practices and use of reclaimed wastewater should comply with the Ministry of Environment, Lands and Parks Operational Certificate P.E. 13717 and its Appendix “A”, both of which are attached hereto as Schedule “A”. (o) That it will not make or permit to be made any alteration of or addition to the irrigation system on the premises without first (i) referring to the Ministry of Environment, Lands and Parks Operational Certificate P.E. 13717 under the provision of the Waste Management Act and abiding by all the guidelines therein and (ii) having obtained the approval of the Waste Management Branch. (p) That it will keep the premises clear of noxious weeds during the said term and will indemnify the Town against all costs, demands and liabilities incurred, made or arising during the said term under the Weed Control Act. (q) That it will keep all sprinkler heads, drains and ditches on the premises open and free from obstruction and in good running order at all times during the said term and if it fails to do so, the Town shall have the right to enter the premises and to carry out such repairs and the costs thereof shall be deemed to be rent in arrears and payable as such. (t) That it shall do all things necessary to achieve the intent of the parties hereto that the Town shall have reasonable access to the full reclaimed wastewater disposal capacity of the premises and that the Golf Club shall have the first right of access and refusal to the reclaimed wastewater available for the purpose of making optimum use thereof for nurturing of the greens and fairways on the premises. (u) That it will use its best efforts to establish a first class golf course for use of the general public at such daily, hourly or other charge as its constitution allows. (v) That the Golf Club upon request will provide the Town with a copy of its annual audited financial statements for the immediately preceding year. (w) That the Golf Club shall use the premises (which includes the irrigation system) and the reclaimed wastewater entirely at its own risk and that the Golf Club shall indemnify and save the Town harmless against all liabilities, damages, costs, claims, losses or actions arising directly or indirectly, whether foreseen or unforeseen, from the use of the premises and the reclaimed wastewater by the Golf Club, provided always that the reclaimed wastewater quality delivered to the irrigation system will be within the limitations cited in the Ministry of Environment, Lands and Parks Operational Certificate P.E. 13717 or such other standard as may be permitted from time to time under the Pollution Control Act. (x) The Golf Club shall obtain and keep in force a policy of comprehensive 7 general liability insurance (the "Policy") providing coverage for death, bodily injury and property damage arising out of the Golf Club use and occupation of the Leased Lands in an amount of not less than Two Million ($2,000,000.00) Dollars per occurrence and the Town shall be named as an additional named insured under the Policy. At the time of execution of this Lease, the Golf Club shall provide the Town with a letter from the insurer certifying that the Policy meets the requirements of this section. The Policy shall also contain a clause providing that the insurer will give the Town thirty (30) days prior written notice in the event of cancellation or material change to the Policy. The amount of insurance required herein shall be increased to a reasonable amount, if so required by the Town, on 120 days written notice; (y) The Golf Club is to ensure that all workers on the Leased Lands are covered by Works Compensation Board coverage at no cost to the Town. (z) The Golf Club shall effect, forthwith and shall keep in force throughout the term of this lease, insurance upon all buildings and all fixtures and improvements erected upon the lands in the joint names of the Town and the Golf Club protecting both the Town and the Golf Club from loss or damage caused by: (1) fire and such other perils as may from time to time be included in the standard fire insurance additional perils supplementary contract generally available in British Columbia; (2) risks normally insured against in British Columbia for a building of construction, location and use similar to the said buildings; and (3) risks which the Town may from time to time reasonably required to be insured against. Such insurance shall be for the full insurable value of the buildings and the replacement value of fixtures and improvements and shall in any case be for an amount sufficient to prevent the Town being considered a coinsurer with the insured. (aa) It is the sole responsibility of the Golf Club to determine what additional insurance coverage, if any are necessary and advisable for its own protection and/or to fulfill its obligations under this contract. Any such additional insurance shall be maintained and provided at the sole expense of the Golf Club. 3. (a) That the Town covenants and agrees with the Golf Club that subject to paragraph 2 thereof, the Golf Club, paying the rent hereby reserved, and performing the covenants hereinbefore on its part contained, shall and may peaceably possess and enjoy the premises together with the appurtenant right of first refusal to the reclaimed wastewater as specified hereto for the said term without any interruption or disturbance from the Town or any other person or persons lawfully claiming by, from, or under it other than such 8 interruptions and disturbances as relate to the operation of the Reclaimed Wastewater Irrigation System. (b) If the Golf Club duly and regularly pays the said rent and observes and performs all the covenants and agreements herein contained on the part of the Golf Club to be paid, observed and performed, the Town, upon written request by the Golf Club, delivered not less than three years before the expiration of the term, shall grant to the Golf Club a renewal of this lease for a further period of twenty years upon the same terms, covenants and conditions as are herein contained except instead of the $6,300.00 annual rent as herein set forth the Golf Club agrees to instead pay the Town an annual rent of one ($1.00) Dollar per year and except that instead of any further right of renewal as herein set forth the Golf Club shall have a right of first refusal in respect of any lease which the Town may consider granting to a third party. 4. PROVIDED ALWAYS, and it is expressly agreed, that the Town may terminate this lease and re-enter the premises: (a) if the rent is unpaid for thirty (30) days, whether formally demanded or not OR (b) if the Golf Club should breach any of its covenants or agreements herein and such beach is not cured within the time specified by a notice sent by the Town to the Golf Club, in the manner provided herein, requiring that the breach be cured. 5. THAT IT IS ALSO AGREED by and between the parties hereto that if the term hereby granted shall at any time be seized or taken in execution or in attachment by any creditor of the Golf Club, or if the Golf Club shall make any assignment for the benefit of creditors, or becoming bankrupt or insolvent shall take the benefit of any act that may be in force for bankrupt or insolvent debtors, the rent for the then current calendar year shall immediately become due and payable and the said term shall immediately become forfeited and void at the option of the Town. 6. PROVIDED ALWAYS and it is hereby agreed by and between the parties hereto that if the Golf Club shall hold over after the expiration of the term hereby granted and the Town shall accept rent, the new tenancy thereby created shall be a tenancy from month to month and not a tenancy from year to year, and shall be subject to the covenants and conditions herein contained so far as the same are applicable to a tenancy from month to month. 7. IT IS AGREED THAT the Town shall be responsible for the maintenance and repair of the 14-inch reclaimed wastewater supply main to and including the 14-inch gate valve which is located approximately 4.2 meters into the premises from the property line and insofar as it is reasonable, practical and within its authority, the Town shall endeavor to maintain an uninterrupted supply of reclaimed wastewater to the said 14- inch valve during irrigation seasons, the term of which is defined in the Ministry of Environment, Lands and Parks Operational Certificate P.E. 13717, during the currency of this lease or any renewal thereof, subject to any order that may be made 9 by any Provincial or Federal authority having jurisdiction over the sewer system and further subject to there being no additional cost to the Town in excess of the costs assumed from time to time by the Town to maintain the sewer system in reasonable operating condition as far as the said 14-inch valve. 8 IT IS AGREED THAT if for any reason during the irrigation season, reclaimed wastewater cannot be provided by the Town, then in such case there will be a proportionate abatement of the reclaimed wastewater user charge. The refund shall be calculated as the number of days that the reclaimed wastewater is not provided divided by the number of days in the irrigation season times the annual reclaimed wastewater user fee. 9 IT IS AGREED THAT if any portion of this lease is held invalid by a court of competent jurisdiction, the invalid portion shall be severed and the decision that it is invalid shall not affect the validity of the remainder of this lease. 10 IT IS AGREED THAT this lease may not be modified or amended except by an instrument in writing signed by the Town and the Golf Club. 11. WHENEVER any dispute or question shall arise between the Town and the Golf Club touching these presents, or anything herein contained, or the construction hereof or the rights, duties or liabilities in relation to the Premises, the matter in difference shall be referred to arbitration under the Commercial Arbitration Act of British Columbia. 12. IT IS AGREED THAT the Golf Club may, without the consent of the Town being obtained, make any and all structural alterations and additions to the buildings on the premises, as it shall in the course of its operation of the golf course reasonably require. At the expiration or termination of the term hereby granted or any renewal thereof all such alterations and additions shall become the sole property of the Town without any payment therefor being made to the Golf Club. 13. THAT IT IS FURTHER AGREED THAT any notice required or desired to be given under or in respect of any of the terms of this Indenture may be given by mailing it in a prepaid registered envelope addressed to the party to whom it is to be given as follows: If given to the Town: Town of Oliver, Box 638 Oliver, B.C. VOH 1T0 If given to the Golf Club: Fairview Mountain Golf Club Box 821 Oliver, B.C. V0H 1T0 And any notice so given shall be deemed to have been given when, in the ordinary course of post, it should have been delivered. 10 14. THAT IT IS FURTHER AGREED THAT This Indenture shall be binding upon and enure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS OF the parties hereto have caused these presents to be executed as of the day and year first above mentioned. Signed, Sealed and Delivered by the Town of Oliver in the presence of: ____________________________ Linda Larson Mayor ____________________________ Debra A McGinn. Clerk/Treasurer Signed, Sealed and Delivered by the Golf Club in the presence of: ____________________________ ____________________________