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HomeMy WebLinkAboutEGD-36-06 .Clarin~~W~/~/n Leading the Way V REPORT ENGINEERING SERVICES DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, June 19, 2006 Repor: #: EGD-36-06 File Resolution #: C~~Q-`'3(~3 -0 (~ By-law Subject: PORT OF NEWCASTLE: AMENDMENTS TO PRINCIPLES OF UNDERSTANDING AND SUBDIVISION AGREEMENT RESPECTING FUNDING OF MILL STREET GRADE SEPARATION RECONSTRUCTION WORKS AND OTHER WORKS RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report EGD-36-06 be received by Council; 2. THAT Council approve the First Amending Agreement to the Subdivision Agreement contained in Attachment 1 and pass the by-law contained in Attachment 3 to authorize the Mayor and the Municipal Clerk to execute it on behalf of the Municipality; and 3. THAT Council approve the Principles of Understanding Amending Agreement contained in Attachment 2 and pass the by-law contained in Attachment 4 to authorize the Mayor and the Municipal Clerk to execute it on behalf of the Municipality. Respectfully by, /~ d~..~.---~. Submitted by: A.S. Cannella Director of Engineering Services ASC/jb Reviewed by: Franklin Wu Chief Administrative Officer 9 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379 F 905-623-9282 Report #EGD-36-O6 Page 2 1.0 BACKGROUND 1.1 On April 7, 1999, 1138337 Ontario Inc. ("Kaitlin") and the Municipality entered into Principles of Understanding ("Principles") to resolve certain issues arising out of the earlier approval of draft Plans of Subdivision 18T-91004 (Port of Newcastle Phase I) and draft Plan of Subdivision 18T-96013 (Port of Newcastle Phase II). 1.2 Among other things, the Principles provided for the construction of the Mill Street Grade Separation Reconstruction Works and for the portion of the costs that were not included in the Municipality's new, replacement Development Charge By-law to be paid by the Owner. When the Principles were executed, the Municipality had prepared the 1999 Development Charges Background Study which provided for the imposition of a development charge including the Chargeable Portion of the Mill Street Grade Separation Works ("Chargeable Portion") which would be included in a new Development Charge By-law which would replace the then existing by-law. This portion was to be Three Million Five Hundred Ninety-Two Thousand Three Hundred and Seventy-Eight Dollars and Fifty Cents ($3,592,378.50). Six Hundred Ninety-Eight Thousand Six hundred and Twenty-One Dollars and Fifty Cents ($698,621.50) was the Non-Chargeable Portion of the Cost of the Mill Street Grade Separation Reconstruction Works ("Non-Chargeable Portion") which would be the responsibility of Kaitlin. 1.3 Conditional on the new Development Charge By-law being passed, the Non- Chargeable Portion subject to indexing and adjustment for any difference between estimated and as-completed costs of the Works was to be secured and ultimately paid by Kaitlin to the Municipality. 1.4 The new Development Charge By-law was passed as By-law 1999-125. It came into effect on September 1, 1999. Development Charge By-laws have afive-year sunset clause which requires their replacement at least every five years. 1.5 The provisions of the Principles were implemented in a Subdivision Agreement between the Municipality, Kaitlin and the Bank of Nova Scotia dated October 18, 1999 applicable to the Port of Newcastle Lands referred to in paragraph 1.1. 1.6 The Non-Chargeable Portion in 1999 which was Kaitlin's responsibility was Six Hundred Ninety-Eight Thousand Six Hundred Twenty-One Dollars and Fifty Cents ($698,621.50). Indexing it in accordance with the Index provided for in the Subdivision Agreement to 2006 would produce a total amount of Seven Hundred Ninety-Seven Thousand Four Hundred and Six Dollars and Fifty-Eight Cents ($797,406.58). 1.7 The Mill Street Grade Separation Reconstruction Works were addressed in the Municipality's 2005 Development Charges Background Study and in the implementing Development Charge By-law 2005-108. Under the Background Study, the estimated costs of the Mill Street Grade Separation Reconstruction Works had risen to Six Million Seven Hundred Fifty-Five Thousand Three Report #EGD-36-06 Page 3 Hundred Three Hundred Dollars ($6,755,300.00) in part as a result of changes to certain components of the Works required by CN Rail. This entire amount less Sixty-Eight Thousand Seven Hundred Fifteen Dollars and Forty-Three Cents ($68,715.43) which was not chargeable under the Development Charges Act, 1997 now is included in the development charge imposed by By-law 2005-108. 1.8 The Municipality's approved capital budgets for 2005 and 2006 amended the sharing of capital costs of the following Works with Kaitlin: Construction Project Total costs Municipality's Kaitlin's Year Share Share 2006 Mill Street Grade $6,500,000 $6,426,429 $73,571 Separation Reconstruction Works 2006 Waterfront Trail $580,000 0 $580,000 Construction 2005 Mill Street Utility $1,300,000 $1,058,564 $241,436 Relocation Total of Ka itlin's Share $895,007 The amount pf Sixty-Eight Thousand Seven Hundred Fifteen Dollars and Forty- Three Cents ($68,715.43) shown in the 2005 Development Charges Background Study referred to above in paragraph 1.7 was revised in 2006 to Seventy-Three Thousand Five Hundred and Seventy-One Dollars ($73,571.00) due in part to CN Rail's revised requirements for the grade separation. It is shown on the chart as "Kaitlin's Share. The Waterfront Trail Construction was not included in either the Principles or the Subdivision Agreement. The Mill Street Utility Relocation Costs shown on the chart originally were included in the Principles and the Subdivision Agreement as part of the Mill Street Grade Separation Reconstruction Works but are not included in the current development charges. 1.9 In summary, then, the cost of the Mill Street Grade Separation Reconstruction Works in 2006 had risen significantly from the estimated cost in 1999. Also, the Chargeable Portion of the Costs of these Works has increased significantly. The result is that the provisions of the Principles and the Subdivision Agreement respecting these Works and their funding have become obsolete. 1.10 Kaitlin has agreed to the recommended actions set out below. 2.0 RECOMMENDED ACTIONS 2.1 It is desirable to amend both the Principles and the Subdivision Agreement to address the obsolete provisions set out below. To accomplish this, a draft First Amending Agreement to the Subdivision Agreement and a draft Principles of Understanding Amending Agreement have been prepared. They are contained in Attachments 1 and 2, respectively. 2.2 These documents would provide for the deletion of the provisions in the Principles and the Subdivision Agreement respecting the Mill Street Grade Report #EGD-36-06 Page 4 Separation Reconstruction Works in exchange for Kaitlin authorizing the Municipality, to the extent that the Municipality has not already acted on Kaitlin's previous authorizations, to draw on securities on deposit by Kaitlin with the Municipality that amount required for the purposes for which they were deposited in the amount of Eight Hundred Ninety-Five Thousand and Seven Dollars ($895,007.00) being the total of Kaitlin's share of the costs of the works referred to in paragraph 1.8. 2.3 The amount referred to paragraph 2.2 is approximately One Hundred and Two Thousand Dollars ($102,000.00) in excess of the original estimated Non- Chargeable Portion of the Mill Street Grade Separation Works of Seven Hundred Ninety-Seven Thousand Four Hundred and Six Dollars and Fifty-Eight Cents ($797,406.58) referred to in paragraph 1.5 adjusted to 2006. 3.0 CONCLUSION 3.1 It is recommended that Council approve the First Amending Agreement to the Subdivision Agreement contained in Attachment 1 and the Principles of Understanding Amending Agreement contained in Attachment 2 and pass by- laws to authorize their execution by the Mayor and Municipal Clerk on behalf of the Municipality. Attachments: Attachment 1 -First Amending Agreement to the Subdivision Agreement dated October 18, 1999 between the Municipality, 1138337 Ontario Inc. and The Bank of Nova Scotia Attachment 2 -Principles of Understanding Amending Agreement amending Principles of Understanding between the Municipality and 1138337 Ontario Inc. dated April 7, 1999 Attachment 3 - By-law to authorize the Mayor and the Municipal Clerk to execute the First Amending Agreement to the Subdivision Agreement on behalf of the Municipality Attachment 4 - By-law to authorize the Mayor and the Municipal Clerk to execute the Principles of Understanding Amending Agreement Attachment # 1 Report EGD-36-06 THIS FIRST AMENDING AGREEMENT made as of the 26'" day of June, 2006 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART -and - 1138337 ONTARIO INC. (hereinafter called the "Owner") OF THE SECOND PART -and- THE BANK OF NOVA SCOTIA (hereinafter called the "Mortgagee") OF THE THIRD PART WHEREAS: A. The parties entered into an agreement on October 18, 1999 under subsection 51(6) of the Planning Act which is registered in the Land Registry Office for the Land Titte Division of Durham (No. 40) as Tnstrvment No. LT936183 ("Agreement"). The Agreement applies to the lands more particularly described in Schedule "A" hereto ("Lands"); & "!'his First Amending Agreement to the Agreement applies to the portions of the Lands more pariculazly described in Schedule "A-1" hereto ("Owner's Remaining Lands'; C. The Owner represents and warrants that subject to Recita] D, it is the registered owner of the Remaining [.ands in fee simple absolute; D. The Owner represents and warrants that the Mortgagee is the only mortgagee or chazgee ofthe Remaining Lands; E. Paragraph 5.27A of the Agreement, among other things, applies in respect of the "Mill Street Grade Separation Reconstruction Works" as described and defined in Schedule "G-1" hereto. Paragraph 6?7A(2)(a) of the Agreement applies in the event [hat a new Development -2- Charges By-law is passed by the Municipality's Council on or prior to August 31, 1999, pursuant to [he Development Charges Act, 1997, S.O. 1997, c.23. The aforesaid new Development Charges By-law in fact was passed as By-law No. 99-125. It came into effect on September 1, 1999. Among other things, By-law 99-125 included as a component of the development charge imposed by it, the "Chargeable Portion of the Cost of the Mill Street Grade Reconstruction Works" {as defined in paragraph 5.27A(1)(c) of the Agreement) in the amount of Three Million Pive Hundred Ninety-Two Thousand Three Hundred and 6eventy-Eight Dollars and Fifty Cents ($3,592,378.50). The "Non-Chargeable Portion of the Cost of the Mill Sneet Grade Separation Works' (as defined in paragraph 5.27A(1) of the Agreement) was Six Hundred Ninety-Eight Thousand'fwo hundred and Forty-One Dollars and Fifty Cents ($698,241.50); F. Also, in the circumstances that in fact occurred, paragraph 5.27A(2)(a) of the Agreement required [he Owner not later than sixty (60) days after the "Date of Final Approval" (as defined in paragraph 527A(1)(a) of the Agreement) of the new Development Chazges By-law, among other things, either to pay to the Municipality an amount of money, equal [o the "Non- Chargeable Portion of the Cost of Mill Street Grade Sepazation Reconstruction Works" (as defined in paragraph 5.27A(1)(d) of the Agreement), or to authorize the Municipality to draw the aforesaid amount from securities which the Owner has on deposit with the Municipality and which are not required for the purposes for which they were deposited. The Municipality has relied on this authority to draw the aforesaid amount from securities which the Owner has on deposit with the Municipality which are not required for the purposes for which they were deposited; U. Paragraph 5.27A(2)(b) of the Agreement provided fox the adjustment of the amount of the Non-Chargeable Portion of the Cost of the Mill Street Grade Sepazation Reconstmetion Works by the application of the "Index" (as defined in paragraph 5.27A(3) of the Agreement). Paragraph 5.27A(3) of the Agreement provided for a further adjustment in the amount for which the Owner was responsible by replacing the estimated cos[ of the aforesaid Works by their as- completed costs; H. 1^ this First Amending Agreement the terms "Mill Street Grade Sepazation I2econstnictiou Works", "Chargeable Portion of the Cost of the Mill Street Grade Separation Reconstmetion Works", "Index", and "Non-Chargeable Portion of the Cost of the Mill Street Grade Separation Reconstruction Works" have the same meanings as they are assigned in the Agreement; I. The parties hereto acknowledge that as of the date on which this First Amending Agreement is made, the Non-Chargeable Portion of the Cost of the Mill Street Grade Separation Reconstruction Works based on 1999 construction costs of Four Million Two Hundred and Ninety-One Dollars ($4,291,OD0.00) adjusted by the Index and expressed in 2006 dollars is Seven Hundred 'Ninety-Seven Thousand- Four Hundred and Six Dollars and Fifty-Eight Cents ($797,406.58): 3- .I. The parties also acknowledge that as of May 2005, in the Municipality's 2005 Development Charges Background Study, as implemented by Development Charges By-law 2005-108 effective on July 1, 2005, the Chazgeable Portion of the Cost of the Mill Street Grade Separation Reconstruction Works was increased to Six Million Six Hundred Eighty-Six ~1'housand Five Hundred and Eighty-four Dollars and Fifty Seven Cents ($6,686,584.57) and the Non-Chargeable Portion of the Cost of the Mill Street Grade Sepazation Reconstruction Works was reduced to Sixty-Eight Thousand Seven Hundred and Fifreen Dollars and Forty-Three Cents ($68,715.43). The latter amount subsequently was revised in 2006 to Seventy-Three Thousand Five Hundred and Seventy-One Dollars ($73,571.00) ("2006 Adjusted Reconstruction Costs"); K. Prior to the effective date of the Municipality's Development Chazges By-law 2005-108, July I, 2005, the Municipality's approved 2005 capital budget had allocated for the "2005 Utility Relocation Works" (described and defined in Schedule "D" hereto) a total amount of One Million Three Hundred Thousand Dollars ($1,300,000.00), an amount which included the "2005 Utility Relocation Costs" (as hereafter defined). The Ownex agreed to authorize the Municipality to draw Two Hundred Forty-One Thousand Four Hundred and Thirty-Six Dollars ($241,436.00) which is the amount determined by the Director of Engineering Services to be a fair apportionment of the total costs of these Works to the Owner ("2005 Utility Relocation Costs"). Thz Owner authorized the Municipality to draw the amount of the 2005 Utility Relocation Costs from securities which the Owner has on deposit with the Municipality which aze not required for the purposes for which they were deposited; L. In its approved 2006 capital budget the Municipality allocated a maximum of Five Hundred Eighty Thousand Dollazs ($580,000.00) to the Waterfront Trail Reconstruction Works (as described and defined in Schedule "E" hereto) ("2006 Trail Reconstruction Costs"). The Owner has agreed to be entirely responsible for the amount of the 2006 Trail Reconstruction Costs and has authorized the Municipality to draw the amount of the 2006 Trail Reconstruction Costs from securities which the Owner has on deposit with the Municipality which aze not required for the purposes for which they were deposited; M. The aggregate of the amounts of the 2006 Non-Chargeable Reconstruction Works Costs, the 2005 Utility Reconstruction Works Costs, [he 2005 Utility Relocation Costs and the 2006 Trail Reconstruction Costs is Eight Hundred Ninety-Five Thousand and Seven Dollazs ($875,007.00) ("2006 Aggregate Release Payment"); N. The parties have agreed to amend the Agreement as set out below in consideration of the Owner granting the Municipality the right to draw the amount of the 2006 Aggregate Release Payment from the securities that the Owner has on deposit with the Municipality that aze not required for the purposes for which they were deposited; and -4- O. This Pirst Amending Agreement is made pwsuant to [he provisions of subsection 51(6) of the Planning Act. It is authorized by By-law 2006-_ passed by the Mmicipaliry's Council at its meeting on June 26, 2006, NOW THEREFORE W'ITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of Canada, now paid by each pazty to the others (the receipt whereof by each party is hereby aelmowledged), the parties hereto covenant and agree to and with each other as follows: ARTICLE 1 -INTERPRETATION AND SCHEDULES LL Definitions Except as otherwise provided in this First Amending Agreement, the terms used in it have the sanre meaning as they have in [he Agreement Also, in this First Amending Agreement the term: (a) "AgreemenP' has the meaning assigned to it in Recital A; (b) "Lands" has the meaning assigned to it in Recital A; (c) "Owner's Remaining Lands" has the meaning assigned to i[ in Recital B; (d) "2006 Adjusted Reconstructon Costs" has the meaning assigned to it in Recital J; (e) "2005 Utility Relocation Costs" has the meaning assigned to it in Recita] K; (f) "2006 Trail Reconstruction Costs" has the meaning assigned to it in Recital L; and. (g) "2006 Aggregate Release Payment" has the meaning assigned to it in Recital M. ARTICLE 2 -GENERAL 2.1 Recitals in Operative Part of Agreement The Owner represents and warrants to the Municipality that each of Recitals A to M of this First Amending Agreement is correct. 5- 2.2 Certification of Ownership On the execution of this First Amending Agreement, the Owner shall provide the Municipality with a letter signed by an Ontazio solicitor and addressed to the Municipality certifying as to the title to the Owner=s Remaining Lands and setting out the names of all persons having interests in the Owner's Remaining Land and the nature of their interests. ARTICLE 3 - 2006 AGGREGATE RELEASE PAYMENT 3.1 In exchange for the release of certain of its obligations under the Agreement as provided in paragraph 4.1 hereof, the Owner hereby authorizes the Municipality ro draw from the securities that the Owner has on deposit with the Municipality which are not required for the purposes for which they were deposited and which have not been drawn by the Municipaliy pursuant to the authorization previously granted by the Owner as recited in Recitals Kand/or L, the 2006 Aggregate Release Amount of Eight Hundred Ninety-Five Thousand and Seven Dollars (5895,007.00), and to appropriate the same for the purposes of the Municipality. ARTICLE 4 -AMENDMENTS TO AGREEMENT 4.1 In exchange for the right granted by the Owner to the Municipality in paragraph 3.1, the Municipality hereby releases the Owner from its obligation provided in pazagraphs 5.27A(2), 527A(3) and 29 and Schedule "G-t" of the Agreement. The parties hereto agree that paragraphs 5.27A, 29, Schedule "G-1" and the reference to the Mill Street Grade Sepazation Reconstruction Works in Schedule "J" of the Agreement shall be deemed to be and aze rescinded from the provisions of the Agreement. 4.2 For clarity, the execution of this First Amending Agreement by [be parties fully satisfies the Owner's obligations m the Municipality respecting the Mill Street Grade Separation Reconstmction Works under the Agreement and releases the Owner from any obligation to the Municipality to make any further payment respecting these Works, including but not limited to the payment to the Municipality of an adjustment provided in paaagraph 5.27A(2)(b) of the Agreement resulting from the replacement of the estimated cost of these Works by the as-built cost of them in the formula by which the Non-Chargeable Portion of the Capital Cost of the Mill Street Grade Separation Reconstruction Works is determined under pazagmph 5.27A(1) of the Agreement. ARTICLE 5 -REGISTRATION 5.1 "fhe Owner and the Mortgagee hereby consent to the registration of this First Amending Agreement or a notice thereof against the title to the Owner's Remaining Lands. -6- ARTICLE 6 -TIME OF ESSENCE 6.1 Time is of the essence of this First Amending Agreement. ARTICLE 7 -AUTHORITY TO MAKE AGREEMENT Z l The Owner and [he Mortgagee acknowledges and agrees that the Municipality has authority to enter into this First Amending Agreement, that every provision hereof is authorized by [he law and is fully enforceable by the parties, and that this First Amending Agreement is made by the Municipality in reliance on the acknowledgement and agreement of the Owner as aforesaid. ARTICLE 8 -CONFIRMATION OF AGREEMENT K.1 Except as amended by this First Amending Agreement, the provisions of the Agreement remain in full force and effect and time continues to be of its essence. ARTICLES-ENUREMENT 9.1 This First Amending Agreement enures to the benefit of and is binding upon the parties hereto. their respectivesuccwsors and assigns. -7- IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON In the presence of: Mayor, John Mutton Municipal Clerk, Patti L. Barrie 1138337 ONTARIO INC. Name: Title: Name: Title: THE BANK OF NOVA SCOTIA Name: Title: Name: Title: 8- SCHEDULE"A" Description of the Lands PIN #2666L-0034(LTl Parcel BF Con. 28-1 Section Clarke, being Lot 30 and Part Lots 28 and 29, Broken Front Concession , in the Geographic Township of Clarke and the Road Allowance between Lots 28 and 29, Broken Front Concession as stopped up and closed by By-law 352 registered as Instrument No. # 1339 of The Corporation of the Village of Newcastle, being Parts 2, 3, 4, 5, 6, 7, 8, 9, 1 Q, 1 1, 15, l6, 17, 19 and 20 on Plan 40R-14915. -2- D. Amendments were made to the Subdivision Agreement by the First Amending Agreement, the substance of which the parties hereto have agreed should also be made to the Principles; and E. This Principles of Understanding Amending Agreement is authorized by By-law 2006-_ passed by the Municipality's Councilat its meeting on June 26, 2006, NOW THEREFORE WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of Canada, now paid by each party to the others (the receipt whereof by each party is hereby acknowledged), the parties hereto covenant and agree to and with each other as follows: 1.0 Deletions from Principles 1.1 Paragraphs 6 and 7, the references to the "Mill Street Grade Separation Reconstruction Works" in paragraphs 8 and 9, Schedule "B" and Schedule "C" contained in the Principles are hereby deleted. All other provisions of the Principles continue in full force and effect and time continues to be of their essence. 1.2 For clarity, the execution of this Principles of Understanding Amending Agreement by the parties fully satisfies the Owner's obligations to the Municipality respecting the Mill Street Grade Separation Reconstruction Works under the Principles of Understanding, and releases the Owner from any obligation to the Municipality to make any further payment to the Municipality respecting these Works, including but not limited to payment of an adjustment between estimated cost of the Mill Street Grade Separation Reconstruction Works and the as-constructed cost of them. 2.0 Time 2.1 Time shall be of the essence of this Principles of Understanding Amending Agreement. 3.0 Authority of Municipality -3- 3.1 The Owner acknowledges and agrees that the Municipality has authority to enter into this Principles of Understanding Amending Agreement, that every provision hereof is authorized by the law, and that the Principles are executed by the Municipality in reliance on the agreement and acknowledgement of the Owner as aforesaid. 4.0 Enurement 4.1 This Principles of Understanding Amending Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and yearfirst above written and the parties hereto have hereunto affixed their corporate seals bythe hands of their proper officers duly authorized in that behalf. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Mayor, John Mutton Municipal Clerk, Patti L. Barrie 1138337 ONTARIO INC. Name: Title: Name: Title: Attachment #3 EGD-36-O6 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2006- being a by-law to authorize the execution of the First Amending Agreement to the Port of Newcastle Subdivision Agreement by its approval of the recommendations contained in Report EGD-36-06 WHEREAS the Council of The Corporation of the Municipality of Clarington has authorized the execution of the First Amending Agreement to the Subdivision Agreement respecting a portion of the lands within Plan of Subdivision 40M-1984; NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. The Mayor and the Municipal Clerk are authorized to execute on behalf of the Municipality of Clarington the First Amending Agreement to the Subdivision Agreement dated October 18, 1999 between the Municipality, 1138337 Ontario Inc. and The Bank of Nova Scotia. By-Law read a first time this 26th day of June 2006 By-Law read a second time this 26th day of June 2006 By-Law read a third time and finally passed this 26th day of June 2006 John Mutton, Mayor Patti L. Barrie, Municipal Clerk Attachment #4 EGD-36-O6 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2006- being a by-law to authorize the execution of the Principles of Understanding Amending Agreement respecting a portion of the lands within the Port of Newcastle area (Plan 40M-1984) WHEREAS the Council of The Corporation of the Municipality of Clarington has authorized the execution of the Principles of Understanding Amending Agreement respecting a portion of the lands within Plan of Subdivision 40M-1984; NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby enacts as follows: 1. The Mayor and the Municipal Clerk are authorized to execute on behaff of the Municipality of Clarington the Principles of Understanding Amending Agreement to the Principles of Understanding dated April 7, 1999 between the Municipality and 1138337 Ontario Inc. By-Law read a first time this 26th day of June 2006 By-Law read a second time this 26th day of June 2006 By-Law read a third time and finally passed this 26th day of June 2006 John Mutton, Mayor Patti L. Barrie, Municipal Clerk Attachment #2 EGD-36-06 THESE PRINCIPLES OF UNDERSTANDING AMENDING AGREEMENT Made as ofthis 28`" day of June, 2006 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ("the Municipality") OF THE FIRST PART -and - 1138337 ONTARIO INC. ("the Owner") OF THE SECOND PART PRINCIPLES OF UNDERSTANDING AMENDING AGREEMENT WHEREAS: A. The parties hereto and the Bank of Nova Scotia entered into an Agreement on October 18, 1999 under subsection 51(6) of the Planning Act which is registered in the Land RegistryOffice for the Land Titles Division of Durham (No. 40) as Instrument No. LT936183 ("Subdivision Agreement"); B. The Subdivision Agreement was amended by the parties hereto and the Bank of Nova Scotia by the First Amending Agreement on June28, 2006 ("First Amending Agreement"); C. The Subdivision Agreement implemented the Principles of Understanding dated April 7, 1999 between the parties hereto ("Principles");