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2003-029 To authorize the execution of a Communal Septic Easement Agreement between the Township of Oro-Medonte and Horseshoe Valley Resort Ltd. . THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2003-029 BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A COMMUNAL SEPTIC EASEMENT AGREEMENT BETWEEN THE TOWNSHIP OF ORO-MEDONTE AND HORSESHOE VALLEY RESORT LTD. WHEREAS The Municipal Act, 5.0. 2001, c.25, Section 80, Subsection (1) authorizes the Council of a Municipality to enter into an agreement to enter on land to which it supplies a public utility to inspect, repair, alter or disconnect the works used to supply the public utility; AND WHEREAS Council of the Corporation of the Township of Oro-Medonte deems it necessary to enter into a Communal Septic Easement Agreement with Horseshoe Valley Resort Ltd.; e NOW THEREFORE the Council for The Corporation of the Township of Oro-Medonte hereby enacts as follows: 1. THAT the Mayor and Clerk are hereby authorized to sign an agreement between the Corporation of the Township of Oro-Medonte and Horseshoe Valley Resort Ltd., said agreement attached hereto as Schedule 'A' and forming part of this by- law. 2. THAT this by-law comes into full force and effect upon final passing thereof. BY-LAW READ A FIRST AND SECOND TIME THIS 2ND DAY OF APRIL, 2003. BY-LAW READ A THIRD AND FINAL TIME THIS 2ND DAY OF APRIL, 2003. e THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE MAYo2.-~H e . ~ . ..' ",:' Schedule "A" to By-law No. 2003-029 THIS INDENTURE made in quadruplicate as of the 26 day of February, 2003. tt IN PURSUANCE OF THE SHORT FORMS OF CONVEYANCES ACT BETWEEN: HORSESHOE VALLEY RESORT LTD. (hereinafter called the "Transferor") OF THE FIRST PART - and - THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE (hereinafter called the "Transferee") OF THE SECOND PART tt WHEREAS the Transferor is the registered owner of the land and premises, more particularly described in Box 5 hereof (hereinafter called the "Tract"); AND WHEREAS communal septic system title fields and related equipment and constructed beneath the surface of the Tract which tile field serve Lots within Plan 1587; AND WHEREAS the Transferor has developed and operates a golf course over the surface of the Tract; AND WHEREAS this Grant and Transfer of Easement is given on the tenns set forth herein. WITNESSETH THAT IN CONSIDERATION ofthe sum of Two Dollars ($2.00) of lawful money of Canada now paid by the Transferee to the Transferor, the receipt of whereof is hereby acknowledged, the parties hereto agree as follows: 1. GRANT OF EASEMENT e The Transferor does hereby grant, convey and transfer unto the Transferee, its successors and assigns, the right, liberty, privilege and easement in, over, along, upon, under and through the Tract, more particularly described in Box 5 hereof; to lay down, construct, operate, maintain, inspect, patrol, alter, remove, replace, reconstruct or repair or use such works as may be required by the Transferee for a communal septic system or such other underground pipes, conduits or works as shall be required for the disbursal and/or treatment of sewage effluent or such other system or systems as the Transferee may install to replace such underground pipes, conduits or works (including the tile field of such septic system). 2. RIGHT OF INGRESS AND EGRESS (a) Together with the right of ingress and egress to, from, in and over the Tract for itself, its servants, agents, contractors, sub-contractors with or without vehicles, machinery and equipment for all purposes, useful or convenient in connection with or incidental to the exercise and enjoyment of the right, privilege and easement herein granted, conveyed and transferred as and from the date hereof and continuing in perpetuity or until the Transferee shall execute and deliver a surrender thereof. e (b) Golf Course Operation - It is recognized by the Parties hereto that the Tract comprises a portion of the Transferor's golf course. It is, therefore, acknowledged and agreed that any major repairs to or replacement of all, e e e e 2 or part of the communal septic systems constructed upon and under the Tract shall be completed with all due dispatch and in such a manner as to cause as minimal interference with the operation of the golf course. 3. TERMS AND CONDITIONS The aforesaid right, liberty, privilege and easement is herein granted, conveyed and transferred on the following terms, stipulations and conditions which are hereby mutually covenanted and agreed to by and between the Transferee and the Transferor and such other parties as are designated herein. (a) Rh!ht of Transferor The Transferor shall have the right fully to use and enjoy the Tract for golf course purposes including without limitation: (i) the right to maintain, repair and operate the golf course on the Tract; (ii) shall be entitled to construct refreshment and/or washroom facilities on the Tract for the use of the patrons of the golf course operated on the Transferor's lands provided the construction of such facilities do not interfere with the use and enjoyment of the rights granted to the Transferee hereunder; and (iii) provided however, that without the prior written consent of the Transferee, the Transferor shall not: (1) remove, or permit to be removed, any soil from those portions of the Tract currently occupied or subsequently required for the purposes of a communal septic or sewage system, except as ordinarily required for the maintenance of the golf course surface; (2) excavate, drill, install, erect or permit to be excavated, drilled, installed or erected in, over, upon, under or through those portions of the Tract currently occupied or subsequently required for the purposes of a communal septic or sewage system any pit, foundation, pavement, building or other structure or installation, except as ordinarily required for the maintenance of the golf course surface; and (3) cause or permit any heavy equipment to travel over the communal septic or sewage system installed or to be installed within the Tract. (b) Transferee's Ri2hts Not To Be Interrupted The Transferee performing and observing the covenants and conditions on its part to be observed and performed, shall and may peaceably hold and enjoy the right and easement herein granted, conveyed and transferred without hindrance, molestation or interruption on the part of the Transferor or of any person claiming by, through, under or in trust for the Transferor. (c) Condition of Tract The Transferee covenants after entry upon, or the performance of any work on the Tract by the Transferee or those for whom it is responsible at law, to restore the surface of the Tract as far as practicable to the same condition as it was prior to the entry or commencement of any work performed by the Transferee. 3 . . (d) Repair Obli2ations of Transferor (i) In the event that the communal septic system or any other municipal services subsequently installed on the Tract is damaged due to the deliberate acts or negligence of the Transferor or those for whom it is responsible at law, the Transferor covenants and agrees to repair such damage as soon as practicably possible, or, in the sole discretion of the Transferee, the Transferee may enter upon the Tract and cause such repairs to be perfonned whereupon the Transferee shall repay to the Transferee all costs incurred by the Transferee in repairing such damage, within thirty (30) days of written demand therefore. e (e) Limitation on Ri2hts of Transferor e Notwithstanding the limits of the Tract, as set out in Box 5 hereof, the Transferee acknowledges that the rights granted to the Transferee hereunder are intended to apply to only those portions of the Tract currently occupied or subsequently required for the purposes of a communal septic system or any replacement system required for the disbursal and/or treatment of sewage effluent, together with the right of ingress and egress over the balance of the Tract required in order to pennit the maintenance, repair and replacement of such works. The Transferee further covenants and agrees that it shall not occupy or otherwise disturb any portions of the Tract not required for such purposes. (f) Repair Obli2ations of Transferee The Transferee agrees to operate and maintain the communal septic or other systems installed by the Transferee within the Tract in a good and workmanlike manner. In the event the Transferee fails repair such system after being provided with prior written notice of such non-repair and a reasonable period of time in which to effect such repairs, the Transferee shall be entitled to enter upon the Tract and cause all necessary repairs to be perfonned. (g) Insurance e The Transferee agrees to maintain insurance in respect to its use and operation of the communal septic system located within the Tract; the types and amounts of such insurance ,coverage shall be detennined by the Transferee, acting reasonably. 4. COVENANTS (a) Runnin2 with the Land - the right, liberty, privilege and easement herein granted, conveyed and transferred, and the burden herein set forth, shall be of the same force and effect to all intents and purposes as a covenant running with the Tract, and each and every part thereof. 5. FURTHER ASSURANCES The Transferor will, if so requested by the Transferee, execute such further and other documents of title and assurances in respect of the Tract with respect to this Easement Agreement as may be required by the Transferee and such documents shall be prepared at the expense of the Transferee. 6. SUCCESSORS AND ASSIGNS e This Indenture, including all the covenants and conditions herein contained, shall extend to, be binding upon and enure to the benefit of each and all of the heirs, executors, administrators, successors-in-title, and assigns of the parties hereto respectively and wherever the singular or masculine is used in this Indenture, it shall be construed as if the plural or the feminine or the neuter, as the case may . . ) e e e e 4 be, had been used, where the context or the Party or Parties hereto so require, and the rest of the sentence shall be construed as if the grammatical and terminological changes thereby rendered necessary had been made. WITNESS the corporate seals of the corporate parties hereto attested to by the hands of the proper signing officers in that behalf on the following dates: By Horseshoe Valley Resort Ltd. on the :2.l;. day of February 2003. I have authority to bind the Corporation By the Corporation of the Township of Oro-Medonte on the 2nd day of April ,2003. THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE Per: ~;: ~ Title: Mayor Per: ::ODMA \PCDOCS\DOCS\1304784\2