2003-029 To authorize the execution of a Communal Septic Easement Agreement between the Township of Oro-Medonte and Horseshoe Valley Resort Ltd.
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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.;
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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.
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THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
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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
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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
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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.
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(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,
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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.
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(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.
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(e)
Limitation on Ri2hts of Transferor
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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
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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
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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
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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:
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