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HomeMy WebLinkAbout2006-208 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2006-208 Being a By-law to authorize the execution of a Servicing Agreement between the Corporation of the Municipality of Clarington and Bowmanville Creek Developments I nc. and 220 Real Estate Limited Partnership/Societe En Commandite 220 Immobiliere (RONA) for the purpose of constructing road and road related improvements on Baseline Road east of Waverley Road. WHEREAS the Council of The Corporation of the Municipality of Clarington has approved the recommendations of Addendum #1 to Report EGD-37 -06, including the recommendation that the Corporation of the Municipality of Clarington enter into a Servicing Agreement with Bowmanville Creek Developments Inc. and 220 Real Estate Limited Partnership/Societe En Commandite 220 Immobiliere (RONA) for the purpose of constructing traffic signals, road improvements and related services. NOW THEREFORE the Council of the Corporation of the Municipality of Clarington hereby enacts as follows: 1 . The Mayor and Clerk are hereby authorized to execute a Servicing Agreement between the Corporation of the Municipality of Clarington and Bowmanville Creek Developments Inc. and 220 Real Estate Limited Partnership/Societe En Commandite 220 Immobiliere (RONA). BY-LAW read a first and second time this 16th day of October, 2006. BY-LAW read a third time and finally passed this 16th day of October, 2006. ~tuI~ John utton, Mayor J .. LRO # 40 Notice Under S.71 Of The Land Titles Act Receipted as DR555028 on 2006 11 02 at 14:00 yyyy mm dd Page 1 of 25 The app/icant(s) hereby applies to the Land Registrar. I Properties PIN Description Address PIN Description Address PIN Description Address 26644 - 0272 L T PT L T 13 LYING N OF THE CNR CON BROKEN FRONT DARLINGTON (BOWMANVILLE) PTS 1, 2, 3,4, & 5 40R24250, CLARINGTON, REGIONAL MUNICIPALITY OF DURHAM, srr EASEMENT OVER PT 3 40R24250 AS IN N162778; srr EASEMENT IN GROSS OVER PT 5 40R24250 AS IN DR506420 CLARINGTON 26644 - 0274 LT RDAL BTN L TS 12 & 13 LYING N OF THE CNR CON BROKEN FRONT DARLINGTON (BOWMANVILLE) (AKA SCUGOG ST) BTN BASELINE RD AND THE KINGS HWY NO. 401, DESIGNATED AS PTS 7, 8, 9, 10 AND 11 ON PLAN 40R-24250; CLARINGTON, REGIONAL MUNICIPALITY OF DURHAM, srr INTEREST IN N148561; srr EASEMENT IN GROSS OVER PT 2 40R24112 AS IN DR497811; srr EASEMENT IN GROSS OVER PT 10 40R24250 AS IN DR506420 CLARINGTON 26644 - 0010 LT PT LT 12 LYING N OF THE CNR CON BROKEN FRONT DARLINGTON (BOWMANVILLE) DESIGNATED AS PARTS 12,13,15,16,19,20,23 AND 24 ON PLAN 40R-24250; MUNICIPALITY OF CLARINGTON; REGIONAL MUNICIPALITY OF DURHAM; srr N121665, N162778; srr EASEMENT IN GROSS OVER PT LT 12 BFC DARLINGTON, PTS 15 & 16 ON 40R24250 AS IN DR506420 CLARINGTON ~ Affects Part of Prop ~ Affects Part of Prop ~ Redescription I Consideration Consideration $ 2.00 I Applicant(s) The noticE~ is based on or affects a valid and existing estate, right, interest or equity in land Name THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Address (or Service 40 Temperance Street, Bowmanville, Ontario L 1 C 3A6 This document is not authorized under Power of Attorney by this party. This document is being authorized by a municipal corporation John Mutton - Mayor; Patti L. Barrie - Municipal Clerk. I Statements This noticEl is for an indeterminate period Schedule: See Schedules I Signed By Robin Cathleen Peacocke 130 Adelaide Street West, Suite 3425, PO Box 34 Toronto M5H 3P5 acting for Applicant(s) Tel 4163611500 Fax 4163611674 I Submitted By BLACK SUTHERLAND LLP 130 Adelaide Street West, Suite 3425, PO Box 34 Toronto M5H 3P5 Tel 4163611500 Fax 4163611674 Signed 2006 11 02 2006 11 02 IFeeSfT~lxeslPayment $60.00 Total Paid Statutory Registration Fee $60.00 LRO # 40 Notice Under 5.71 Of The Land Titles Act Receipted as DR555028 on 2006 11 02 at 14:00 yyyy mm dd Page 2 of 25 The applicant(s) hereby applies to the Land Registrar. I File Number Applicant Client File Number: 8200 SERVICING AGREEMENT THIS SERVICING AGREEMENT made as of the 16th day of October, 2006. BETWEEN: BOWMANVILLE CREEK DEVELOPMENTS INC. (hereinafter called "Owner") OF THE FIRST PART - and - 220 REAL ESTATE LIMITED P ARTNERSHIP/ SOCIETE EN COMMANDITE 220 IMMOBILIERE (hereinafter called "RONA") OF THE SECOND PART - and - LAURENTIAN BANK OF CANADA (hereinafter called the "Mortgagee") OF THE THIRD PART - and - THE CORPORATION OF THE MUNICIP ALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FOURTH PART WHEREAS: A. Bowmanville Creek Developments Inc. is the owner of certain lands which are more particularly described in Schedule "A" hereto and are hereinafter called the "Lands"; B. The Owner represents and warrants that it is the registered owner of the Lands in fee simple subject to the mortgage in favour of the Mortgagee; C. The Owner has been granted conditional site plan approval under the Municipality's File No. SPA 2003-036 subject to satisfaction of certain conditions including the making of this Agreement with the Municipality; - 2 - D. Prior to the making of this Agreement, having received the final consent of the Regional Municipality of Durham's Land Division Committee, the Owner has transferred to RONA Parts I and 8 on Reference Plan 40R-24250 ("RONA Lands"). RONA proposes to develop a large format home improvement store and related facilities ("RONA Store") on the RONA Lands; E. RONA has agreed with the Municipality that RONA will not occupy for the purpose of conducting business with members of the public the RONA Store or any large format retail store on the RONA Lands until the Municipality's Director of Engineering Services gives the Owner and RONA written notice that the "Owner-Funded Works" (described in Schedule "D" hereto) and the installation of the traffic signal referred to in paragraph 2(b) have been completed and that all payments required to be made to the Municipality under this Agreement have been made; F. The Owner has agreed to transfer Parts 22 and 33 on Reference Plan 40R-24250 to the Municipality as part of Baseline Road as widened shown on the drawings contained in Schedule "e" hereto ("Baseline Road As Widened") Baseline Road As Widened together with certain other lands provided below in this Agreement; G. Design drawings for the "Owner-Funded Works" (as hereafter defined) have been prepared by the Owner's Engineer, D.G. Biddle and Associates Ltd. ("Biddle") which are identified in Schedule "E" hereto ("Design Drawings"); H. The Owner has agreed to assign and to cause Biddle to assign their respective interests in the Design Drawings to the Municipality for a nominal consideration as provided in this Agreement; and I. The execution of this Agreement by the Mayor and Municipal Clerk is authorized by By- law 2006-208 passed by the Municipality's Council at its meeting on October 16,2006; NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the other Parties as follows: RECITALS 1. Each of Recitals A, B, E, F, G and H is hereby incorporated into the operative part of this Agreement and each shall be construed as covenants contained in this Agreement. - 3 - FINANCING, TIME OF CONSTRUCTION AND MAINTENANCE AND REPAIR OF OWNER-FuNDED WORKS AND MUNICIPALITY-FUNDED WORKS 2. (a) The Owner shall pay to the Municipality the cost of the Owner-Funded Works as provided in this Agreement. The Owner-Funded Works are those works which are set out in Schedule "D" hereto. (b) The Municipality shall install and pay the cost of the installation of a traffic signal at the intersection of Baseline Road As Widened and the access ramps and driveways which are to be constructed by the Owner and RONA on portions of Parts 7,8 and 9 shown on Reference Plan 40R-24250, and the cost of the surface asphalt (HL3) of Baseline Road as Widened (collectively, the "Municipality- Funded Works"). (c) The Municipality shall be responsible to construct the Owner-Funded Works on Baseline Road As Widened. The Municipality shall commence construction of the Owner-Funded Works as soon as is reasonably practicable after the execution and registration of this Agreement on title to the Lands, provided that the Owner has provided the Municipality with the "Performance Guarantee" (as hereafter defined) for the cost of the Owner-Funded Works as provided for in this Agreement, and provided further that the Owner's and Biddle's respective interests in the Design Drawings have been assigned by them to the Municipality for a nominal consideration. After commencing the construction of the Owner- Funded Works, the Municipality shall continue construction of them diligently and expeditiously until completion, subject to Force Majeur (as hereafter defined). The Municipality acknowledges that it shall be responsible for the maintenance and repair of the Baseline Road As Widened including the Owner-Funded Works and the aforesaid traffic signal at its cost, unless and until Baseline Road as Widened is permanently closed as a public highway. 3. The Municipality agrees that it will not require either the Owner or RONA to contribute to the cost of the Municipality-Funded Works other than pursuant to the Development Charges By-law 2005-108 of the Municipality or the annual tax levy of the Municipality. COST OF OWNER-FUNDED WORKS 4. The parties agree that the current estimated costs of the Owner-Funded Works is Six Hundred Fifty-Four Thousand, Nine Hundred and Seventy-Four Dollars and Ninety-Five Cents ($654,974.95) ("Owner-Funded Works Costs Estimate"). The current Owner- Funded Works Costs Estimate for the Owner-Funded Works is contained in Schedule "D" hereto. - 4 - OWNER'S I) A YMENTS FOR OWNER-FuNDED WORKS TO BE SECURED BY PERFORMANCE GUARANTEE 5. The performance guarantee ("Performance Guarantee") referred to in this Agreement shall be provided by the Owner to the Municipality concurrent with the execution and deli very of this Agreement to secure the obligations of the Owner to pay for the Owner- Funded Works. It shall be an irrevocable and unconditionalletter(s) of credit issued by a bank listed in Schedule I or II of the Bank Act in a form and in the amount provided in paragraph 4, and containing terms and conditions that are acceptable to the Municipality's Director of Finance. The amount of the Owner's Performance Guarantee shall be adjusted from time to time as provided in this Agreement. The Municipality may draw on the Performance Guarantee from time to time to pay for the Owner-Funded Works or to indemnify itself against the reasonable costs incurred by the Municipality respecting the Owner;.Funded Works, as construction of them progresses. REVISED WORKS COST ESTIMATES AND ADDITIONAL PAYMENTS 6. (a) Prior to the payment to the Municipality of the "As-Constructed Costs" (as hereafter defined) of the Owner-Funded Works as contemplated by this Agreement, the Municipality's Director of Engineering Services may from time to time give written notice to the Owner and RONA of his revised cost estimate for the construction of the Owner-Funded Works ("Owner-Funded Revised Works Costs Estimate") together with an explanation of the reason for the revised cost estimate. The amount to be paid for the construction of the Owner-Funded Works, and the amount of the Owner's Perfonnance Guarantee required to be deposited by the Owner with the Municipality shall be deemed to be the amount of the latest Owner-Funded Revised Works Costs Estimate. Following the giving of each notice pursuant to this paragraph, the latest Owner-Funded Revised Works Costs Estimate shall be deemed to be the Owner-Funded Works Costs Estimate for the purposes of this Agreement. (b) If the Municipality's Director of Engineering Services gives to the Owner and RONA written notice of the Owner-Funded Revised Works Costs Estimate subsequent to the Owner or RONA having deposited the Performance Guarantee(s) with the Municipality pursuant to paragraph 5, then the Owner shall deposit with the Municipality an additional Performance Guarantee in an amount equal to one hundred (100%) per cent of the amount of the increase in the Owner- Funded Works Costs Estimate within ten (10) days of each such written notice being given to the Owner and RONA, as aforesaid. - 5 - AS-CONSTRUCTED COSTS 7. Without fettering the Municipality's Council in the exercise of its legislative discretion, it is the present intention of the parties hereto that as soon as is reasonably practicable after completion of the Owner-Funded Works, the Municipality's Council shall pass a by-law dedicating Baseline Road As Widened as a public highway pursuant to the Municipal Act, 2001. Forthwith after the passing of the dedication by-law, the Municipality's Director of Engineering Services shall give the Owner and RONA written notice that the Owner- Funded Works have been completed and Baseline Road As Widened has been dedicated as a public highway ("Completed"). No later than the expiry of the ten (10) day period following the date on which this written notice is given to the Owner and RONA, the Municipality's Director of Engineering Services shall give written notice to the Owner and RONA of the as-constructed costs of the Owner-Funded Works. If the as- constructed costs of the Owner-Funded Works as determined by the Municipality's Director of Engineering Services ("As-Constructed Costs") exceed the Owner-Funded Works Cost Estimate, forthwith after written demand is given to it by the Municipality, the Owner shall pay to the Municipality any amount by which such As-Constructed Costs exceed the Owner-Funded Works Costs Estimate. If the As-Constructed Costs are determined by the Municipality's Director of Engineering Services to be less than the Owner-Funded Works Costs Estimate, the Municipality shall return any portion of the Performance Guarantee not required for the payment of the costs of the Owner-Funded Works ("Surplus") within thirty (30) days after written notice is given pursuant to this paragraph by the Municipality's Director of Engineering Services to the Owner or to RONA, as the case may be. Any Surplus shall be paid, first to RONA, to the extent of any portion of the Performance Guarantee made or provided by RONA to the Municipality and second, thereafter to the Owner. RONA's RIGHT TO MAKE PAYMENTS OR PROVIDE PERFORMANCE GUARANTEE IF THE OWNER FAILS TO Do So 8. The parties hereto agree that if the Owner fails to make the payments or deposit a Performance Guarantee or provide an increase in the amount of the Performance Guarantee provided for in paragraphs 5, 6, 7 and 11 of this Agreement, RONA may perform such duty for the Owner by making the payments or depositing a Performance Guarantee as required by the aforesaid paragraphs and the Owner hereby agrees to indemnify RON A for all of RONA's cost of doing so. For clarity, if RONA performs the Owner's aforesaid duties pursuant to this paragraph 8, and the Owner fails to pay RONA the amount of the payments or the amount of the Performance Guarantee made or provided by RONA to the Municipality, forthwith after RONA gives the Owner written notice requiring it to do so, RONA shall be free in its own absolute discretion to commence action against the Owner for the recovery of same together with all its costs - 6 - and expenses (including legal fees on a solicitor-client basis) incurred in commencing and pursuing such action. USE OF FUNDS BY THE MUNICIPALITY 9. (a) The Municipality shall use the Perfonnance Guarantee and the As-Constructed Payments provided by the Owner and/or RONA as applicable in respect of the Owner-Funded Works only to pay for costs actually incurred by the Municipality for the Owner- Funded Works. (b) During regular business hours of the Municipality, at a time to be arranged in advance with the Municipality's Director of Engineering Services, the Owner and/or RONA may inspect copies of such documentation as may be reasonably required to verify the costs so incurred by the Municipality (including copies of invoices, approved purchase orders and/or certified progress certificate in respect of such costs). OCCUPATION OF RONA STORE 10. RONA shall not apply for, require or be entitled to the issuance of any permit for the occupancy of the RONA Store or any large format retail store for the purpose of effecting retail sales to members of the public on any portion of the RONA Lands pursuant to the Ontario Building Code Act until such time as the Municipality's Director of Engineering Services gives the Owner and RONA written notice that Owner-Funded Works have been completed and the traffic signal referred to in paragraph 2(b) has been installed, and the payment of any amount of money additional to the Owner-Funded Works Costs Estimate and the payment of any interest that has accrued pursuant to paragraph 11, have been made. The parties hereto agree that the aforesaid written notice shall be given with reasonable expedition after the completion of the aforesaid Owner-Funded Works, traffic signal and payments have been completed or made. For clarity, the other parties to this Agreement acknowledge that RONA may apply to the Municipality's Chief Building Official for and be issued an occupancy permit of the building for a permit to allow interior fixturing of the building and employee training to be undertaken before the Municipality's Director of Engineering Services gives written notice to the Owner and RONA that the Owner-Funded Works have been completed, the traffic signal has been installed and the aforesaid payments have been made, provided that subsection 2.4.3 of the Ontario Building Code Act, 1992 amending O.Reg 403/97, as amended is complied with. - 7 - UNPAID MONIES 11. Except as otherwise provided in this Agreement, the due date of any money payable under it, unless a different due date is specified in this Agreement, shall be ten (10) days after the date of the giving of written notice by the Municipality to the Owner. Where the Owner is in default in respect of such payment, interest shall be calculated and be paid to the Municipality on all sums in default at the same rate, and in the same manner, and at the same time as is the case with municipal taxes which are in arrears at the date on which the default in question commences. ACTING REASONABLY 12. All discretionary decisions of officials of the Municipality and the Municipality which are referred to in this Agreement shall be deemed to be qualified by the words "acting reasonably" . LANDS AND EASEMENTS TO BE TRANSFERRED 13. (a) Forthwith after the registration of this Agreement on the title to the Lands and the transfer to RONA of the RONA Lands: (i) The Owner shall transfer to the Municipality, for a nominal consideration, free and clear of encumbrances and restrictions, an 8.0 metre widening fronting on Baseline Road, which comprises Parts 22 and 33 on Reference Plan 40R-24250; and (ii) The Owner shall transfer to the Municipality, for a nominal consideration, free and clear of encumbrances and restrictions, except Permitted Encumbrances set out in Schedule "B" hereto, the valley lands described as Parts 14, 17, 18,21 and 25 on Plan 40R-24250. (b) When the Owner or a nominee of the Owner or an associated company to the Owner within the meaning of the Income Tax Act acquires Part 26 on Plan 40R- 24250, the Owner shall cause Part 26 to be transferred to the Municipality and paragraph 13(b) shall apply mutatis mutandis to this paragraph 13(c). (c) The Municipality shall transfer to the Owner for a nominal consideration a perpetual easement in Parts 21, 27 and 28 on Plan 40R-24250 for the purposes of constructing, repairing and maintaining thereon a storm sewer outfall and associated drainage facility, provided that the Owner repairs and maintains the same at its cost and provided further that the Municipality's Director of Engineering Services has approved plans and drawings therefore and construction of it has been completed to the satisfaction of the aforesaid Director. - 8 - (d) All transfers to or from the Municipality shall be in a form satisfactory to the Municipality's solicitor and shall be registered on title at the cost of the Owner including the payment of Land Transfer Tax. ASSUMPTION AGREEMENT REQUIRED 14. (a) The Owner and RONA covenant and agree with the Municipality that it shall be a general and indispensable condition of any sale, mortgage or charge or a lease for a term including entitlement to renew of 21 years or more either of the whole or anyone or more portions of the Lands or the RONA Lands, as the case may be, or any assignment or sublease of such a leasable interest with an unexpired term including entitlement to renew of 21 years or more of the whole or anyone or more portions of such Lands or the RONA Lands, that each proposed transferee, mortgagee, chargee, lessee, assignee or sub-lessee, as the case may be, has entered into an agreement with the Municipality prior to and conditional on the transaction in question taking place assuming each of their obligations and covenants provided for in this Agreement ("Assumption Agreement"). Where a mortgage, charge, lease, assignment of lease or sublease of a leasehold interest is given by way of security for financing then such mortgagee, chargee, lessee, assignee or sub-lessee, thereunder shall not be bound to assume the Owner's, RONA's or an assuming party's ("Assuming Party") as the case may be, obligations and covenants, unless and until such mortgagee, chargee, lessee, assignee or sub-lessee takes possession or control of the property pursuant to such security. Where the obligations and covenants of a party to this Agreement other than the Municipality have been assumed unconditionally by a transferee, lessee, assignee or sub-lessee, as the case may be, who has acquired all or a portion of the Lands and has entered into an Assumption Agreement with the Municipality, then the Owner or RONA, as the case may be, is hereby released from its obligations and covenants hereunder to the extent that such obligations and covenants have been so assumed. (b) Concurrent with the delivery of this Agreement by the Owner and RONA to the Municipality, they shall deliver to the Municipality applications duly executed by the Owner or RONA, as the case may be, in registerable form and containing such terms as the Municipality's Solicitor, acting reasonably, requires made pursuant to section 118 of the Land Titles Act to restrict the transfer, charge or lease, assignment of lease or sub-lease of a leasehold interest in any portion of the Lands and the RON A Lands, as the case may be, without the prior written consent of the Municipality. The Owner, RONA or an Assuming Party, as the case may be, shall request the consent of the Municipality by notice in writing given to the Municipality not later than three (3) weeks prior to the date specified in the notice of a proposed transfer, mortgage, charge, lease, assignment of lease or sublease of - 9 - a leasehold interest, as the case may be. The written consent of the Municipality shall be granted and the Municipality shall notify the Land Registry Office of that fact prior to the date of the proposed transfer, mortgage, charge, lease, assignment or sub-lease of a leasehold interest, as the case may be, provided that (i) the provisions of paragraph 14(a) are satisfied, and (ii) any necessary Assumption Agreement has been made by the proposed transferee, mortgagee, chargee, lessee, assignee or sub-lessee, as the case may be. (c) Notwithstanding the provisions of paragraphs 14(a) and 14(b): (i) they shall not apply to the Owner after the Performance Guarantee required by paragraph 5 of this Agreement has been deposited with the Municipality, and: (ii) they shall not apply to RONA after the latest to occur of: (1) the Performance Guarantee required by paragraph 5 of this Agreement has been deposited with the Municipality;, and (2) RONA has been issued a permit by the Municipality's Chief Building Official in accordance with paragraph 10 of this Agreement to allow RONA to occupy the RONA Store or any large format retail store on any portion of the RONA Lands for the purpose of effecting retail sales to members of the public. (d) On the earlier to occur of the deposit with the Municipality of the Performance Guarantee required by paragraph 5 of this Agreement and the termination of t.his Agreement, the Municipality shall cooperate with and execute any necessary documents prepared by the Owner or an Assuming Party in its application to expunge the Notice under section 118 of the Lands Titles Act from the title to the Lands. Any necessary reference plan of surveyor amendment thereto required to accomplish this end shall be prepared and deposited on title at the cost of the Owner, or an Assuming Party, as the case may be. (e) On the earlier to occur of the date on which RONA has been issued a permit by the Municipality's Chief Building Official in accordance with paragraph 10 of this Agreement to allow RONA to occupy the RONA Store or any large format retail store on any portion of the KONA Lands for the purpose of effecting retail sales to members of the public and the termination of this Agreement, the Municipality shall cooperate with and execute any necessary documents prepared - 10- by RONA or an Assuming Party in its application to expunge the Notice under section 118 of the Lands Titles Act from the title to the RONA Lands. Any necessary reference plan of surveyor amendment thereto required to accomplish this end shall be prepared and deposited on title at the cost of RONA, or an Assuming Party, as the case may be. CONSTRUCTION OF ACCESSES TO BASELINE ROAD AND RECIPROCAL EASEMENTS 15. (a) In order to serve the RONA store and associated parking which are proposed to be constructed on the RONA Lands and future development on the Lands, the Owner agrees with the Municipality to construct at its cost the portion of the access ramps and driveways to be located on Parts 2, 7 and 9 on Plan 40R-24250, and RONA agrees with the Municipality to construct at its cost the portion of the access ramps and driveways to be located on Parts 1 and 8 on Plan 40R-24250. The access ramps and driveways including their connections are to be provided in accordance with the Development Agreements between the Municipality and the Owner and between the Municipality and RONA, dated October _, 2006 which are to be registered on title to the Lands and the RONA Lands, respectively. (b) The Owner and RONA represent to the Municipality that reciprocal easements or rights in the nature of easements respecting such access rights and driveways and other matters in Parts 1, 2, 7, 8 and 9 on Plan 40R-24250, save and except building areas on such Parts, have been transferred for terms of less than 21 years by the Owner to RONA by Instrument Number and by RONA to the Owner by Instrument Number , both Instruments being registered in the Land Registry Office. (c) The Owner and RONA agree with the Municipality that perpetual reciprocal easements referred to in paragraph 15 (b) or replacements of them for the same purposes as the reciprocal easements referred to in paragraph 15 (b) will be transferred by each of the Owner and RONA to the other forthwith after the Region of Durham's Land Division Committee has consented to the same under the Planning Act. The Owner and RONA will register the perpetual easements on the title to the Lands and the RONA Lands, respectively, at the cost of the Owner and RONA. Each of the Owner and RONA will prepare and pursue with reasonable diligence at their costs the necessary applications for consent from the Region of Durham Land Division Committee and if necessary, the Ontario Municipal Board to transfer the perpetual reciprocal easements forthwith after this Agreement has been executed by the parties to it. Forthwith after the transfers of them have been registered in the Land Registry Office, the Owner and RONA - 11 - shall give the Municipality written notice of the registration of the perpetual reciprocal easements. POSTPONEMENT 16. The Mortgagee hereby postpones its mortgage to this Agreement with the intent that this Agreement shall take effect as though dated, executed and registered prior to the mortgage. In the event that (1) the Mortgagee obtains an order for foreclosure against the Owner, (2) the Mortgagee directly or indirectly takes possession of the Lands, or (3) the Lands are sold after default occurs under the mortgage, the Lands shall not be used or developed by any person otherwise than in conformity with the provisions of this Agreement. In order to give further assurance to the Municipality, the Mortgagee at its cost shall execute a separate Postponement Agreement containing terms satisfactory to the Municipality's Solicitor forthwith after being requested to do so by notice given in writing to the M0l1gagee and to deliver the same to the Municipality. AGREEMENT CONDITIONAL 17. This Agreement is conditional on the Owner transferring to the Municipality the lands referred to in paragraphs l3(a) and (b) in accordance with the terms ofthis Agreement. NOTICE 18. If any notice or other document is required to be or may be given by the Municipality or by any official of the Municipality to the Owner and/or RONA by this Agreement, or by an Owner and/or RONA to the Municipality, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: The Owner: Bowmanville Creek Developments Inc. Madison Centre 4950 Y onge Street Suite 1103 Toronto, ON M2N 6Kl Fax: 416-221-6710 RONA: 220 Real Estate Limited Partnership/' Societe en Commandite 220 Immobiliere 220 chemin du Tremblay Boucherville, Quebec J4B 8H7 Attention: President or Corporate Secretary & General Counsel Fax: 514-599-5110 OR, To the Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON L 1 C 3A6 Attention: Director of Planning Services - 12 - Fax: 905-623-0830 or such other telefax number or address of which any party has notified the other parties in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE 19. In this Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the Owner, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. The Owner, RONA or the Municipality, as the case may be, shall notify the other parties to this Agreement of the commencement, duration and consequence (so far as the same is within the knowledge of the Owner, RONA or the Municipality, as the cast~ may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. REGISTRATION 20. Tht: Owner and RONA consent to the registration of a Notice of this Agreement as a charge against the title to the Lands and the RONA Lands. Forthwith after the Owner has satisfied its obligations pursuant to this Agreement, the Municipality shall execute at the Owner's and/or RONA's written request, such documents prepared by the Owner or RONA as are necessary to remove the registration of this Agreement or Notice thereof from title to the Lands or the RONA Lands, as the case may be. - 13 - TERMINATION OF AGREEMENT 21. Except for the provisions of paragraphs 2(c), 3, 14(d), 14(e) and this paragraph which shall survive termination, this Agreement shall terminate on the day on which the written notice referred to in paragraph 10 is given by the Municipality's Director of Engineering Services to the Owner and RONA. Forthwith thereafter the Municipality shall execute at the Owner's and/or RONA's written request, such documents prepared by the Owner and/or RONA as are necessary to remove the registration of this Agreement or Notice thereof and the Notice under section 118 of the Land Titles Act referred to in paragraph 14(b) from the title to the Lands and/or the RONA Lands. TIME OF THE ESSENCE 22. Time is of the essence of this Agreement. AUTHORITY OF MUNICIPALITY 23. The Owner and RONA acknowledge and agree that the Municipality has authority to enter into this Agreement, that every provision hereof is authorized by the law and fully enforceable by the parties, and that this Agreement is executed by the Municipality in reliance on the acknowledgement and agreement of the Owner and RONA as aforesaid. ST A TUS STATEMENT 24. Within ten (10) days of receiving a written request from the Owner and/or RONA, the Municipality shall provide a written statement either confirming that the Owner and/or RONA is in good standing and not in default of any provisions of this Agreement, or setting out the manner and extent to which the Owner and/or RONA is in default. The statement shall also confirm the total amounts of the Performance Guarantee and payments that have been made by the requesting Owner and/or RONA to the Municipality pursuant to this Agreement. FURTHER ASSURANCES 25. The parties hereby covenant and agree to forthwith execute and provide all further documents, instruments and assurances as may be necessary or required in order to carry out (and give effect to) the true intent of this Agreement, and to effect the registration against and release from title to the lands subject to this Agreement of such notices or othc:r instruments in accordance with the provisions of this Agreement. - 14 - GENERAL 26. (a) The Schedules hereto form part of this Agreement. (b) The execution of this Agreement by the Owner and RONA is not intended and does not derogate in any way from the provisions of any other agreement between the Owner and RONA. In the event of a conflict between the terms of this Agreement and any other agreement entered into between the Owner and RONA, the Owner and RONA acknowledge and agree that, as between them the terms of such other agreement shall prevail to the extent of the conflict. MUNICIPALITY'S COSTS TO BE PAID BY OWNER 27. The Owner shall pay to the Municipality on or prior to the execution of this Agreement by the Municipality, the Municipality's reasonable costs and disbursement of providing legal services in attending meetings in person or by telephone or electronic communications respecting the costs of preparing this Agreement and .the draft servicing Agreement forwarded to the Owner by the Municipality on August 22, 2006. ENUREMENT 28. This Agreement shall enure to the benefit of and be binding on the Parties hereto, and their respective successors and assigns. LAWS OF ONTARIO ApPLY 29. The laws of the Province of Ontario apply in respect of the interpretation and enforcement of the covenants, representations and warranties contained in this Agreement. EXECUTION IN COUNTERPARTS AND DELIVERY BY FACSIMILE 30. This Agreement may be executed in counterparts by any or all of the parties hereto and delivered to the other parties by facsimile. Delivery by facsimile shall be deemed to be complete on the day on which the facsimile of the executed Agreement is received by the last of the parties to receive it. IN WITNESS WHEREOF the parties hereto have hereunto 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 In the presence of: - 15 - ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNI~T~ O~ CLA.. RINGTON , V(;~, J olm utton, Mayor BOWMANVILLE CREEK DEVELOPMENTS INC. Eliahu Swirsky, President: Shlomo Cohen, Secretary We have the authority to bind the Corporation. LAURENTIAN BANK OF CANADA. Name: Title: Name: Title: 220 REAL ESTATE LIMITED P ARTNERSHIP/SOCIETE EN COMMANDITE 220 IMMOBILIERE, by its general partner 4246551 CANADA INC. Name: Title: Name: Title: We have the authority to bind the Corporation. SIGNED, SEALED AND DELIVERED In the presence of: - 15 - ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON John Mutton, Mayor Patti L. Barrie, Municipal Clerk BOWMANVILLE CREEK DEVELOPMENT INC. -/ 'Eliahu~~i.~~Jf.Y.-J> sidellt:. ........ .;,.."".-.".... -,~--''''=:'''~~~~ -----.. ---== --.---........'. _.""" ...,.. ~-_..- -.---- -=--- Shlomo Cohen, Secretary We have the authority to bind the Corporation. NK OF CANADA. ame:' AMES D. cGREcmR: AlJ~I~.tf!n.J Vi_~e ~ ~ c-- ~~_- , Name: - -:. ~ Wendy Spinney, Sr. Manager 220 REAL ESTATE LIMITED PARTNERSHIP/SOCIETE EN COMMANDITE 220 IMMOBILIERE, by its general partner 4246551 CANADA INC. Name: Title: Name: Title: We have the authority to bind the Corporation. SIGNED, SEALED AND DELIVERED In the presence of: - 15 - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON John Mutton, Mayor Patti L. Barrie, Municipal Clerk BOWMANVILLE CREEK DEVELOPMENTS INC. Eliahu Swirsky, President: Shlomo Cohen, Secretary We have the authority to bind the Corporation. LAURENTIAN BANK OF CANADA. Name: Title: Name: Title: 220 REAL ESTATE LIMITED SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to the Agreement which has been authorized and approved by By-law No. 2006-208 of The Corporation of the Municipality of Clarington, enacted and passed the 16th day of October, 2006. Le2al Description of the Lands Firstly: Part of Lot 13 lying north of the CNR, Broken Front Concession of the Geographic Township of Darlington (Bowmanville), designated as Parts 2, 3,4, 5 and 33 on Plan 40R-24250, now in the Municipality of Clarington, Regional Municipality of Durham. being part of PIN 26644-0272 (L T) Secondly: Part of the Road Allowance between Lots 12 and 13 lying north of the CNR, Broken Front Concession of the Geographic Township of Darlington (Bowmanville) (AKA Scugog St) between Baseline Road and the Kings Highway No. 401, designated as Parts 7, 9, 10 and lIon Plan 40R-24250, now in the Municipality of Cia ring ton, Regional Municipality of Durham. being part of PIN 26644-0274 (L T) Thirdlv: Part of Lot 12 lying north of the CNR, Broken Front Concession of the Geographic Township of Darlington (Bowmanville), designated as Parts 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24 and 25 on Plan 40R-24250, now in the Municipality of Clarington, Regional Municipality of Durham. being the whole of PIN 26644-0010 (L T) SCHEDULE "B" THIS SCHEDULE IS SCHEDULE "B" to the Agreement which has been authorized and approved by By-law No. 2006-208 of The Corporation of the Municipality of Clarington, enacted and passed the 16th day of October, 2006. Permitted Encumbrances 1. Instrument No. NI62778, registered November 13, 1990, being a Transfer of Easement in favour of The Regional Municipality of Durham, affecting Part 14 on Plan 40R-24250; 2. Instrument No. DR503434, registered May 26, 2006, being Notice of a Servicing Agreement entered into between Bowmanville Creek Developments Inc. and The Regional Municipality of Durham; 3. Instrument No. DR506419, registered June 5, 2006, being Notice of a Servicing Agreement entered into between Bowmanville Creek Developments Inc. and The Regional Municipality of Durham; 4. Instrument No. DR506420, registered June 5, 2006, being a Transfer of Easement in favour of The Regional Municipality of Durham, affecting Part 17 on Plan 40R- 24250; 5. Instrument No. N121665, registered April 26, 1985, being a Transfer of Easement in favour of The Regional Municipality of Durham, affecting Part 18 on Plan 40R- 24250. SCHEDULE "C" THIS SCHEDULE IS SCHEDULE "C" to the Agreement which has been authorized and approved by By-law No. 2006-208 of The Corporation of the Municipality of Clarington, enacted and passed the 16th day of October, 2006. Baseline Road As Widened [Insert Map] SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Agreement which has been authorized and approved by By-law No. 2006-208 of The Corporation of the Municipality of Clarington, enacted and passed the 16th day of October, 2006. Owner-Funded Works Costs Estimate For Owner-Funded Works PRELIMINARY OWNER-FUNDED WORKS COSTS ESTIMATE 1/2 BASELINE ROAD FROM WAVERLY ROAD TO 125m EAST OF SPRY AVENUE BOWMANVILLE, MUNICIPALITY OF CLARINGTON OUR FILE: 103064 ESTIMATED UNIT ESTIMATED ITEM DESCRIPTION OF OWNER-FUNDED WORKS UNIT QUANTITY PRICE COST 1.0 REMOVALS & RELOCATIONS 1.1 Clearing and grubbing 1.5. 1.00 $1,160.00 $1,160.00 1.2 Remove concrete sidewalk I.m. 100.00 $ 5.00 $ 500.00 1.3 Remove concrete curb and gutter I.m. 324.00 $ 7.50 $ 2,430.00 1.4 Remove asphalt curb I.m. 280.00 $ 6.25 $ 1,750.00 1.5 Grind existing asphalt road (depth 40mm) m2 4665.00 $ 4.80 $ 22,392.00 1.6 Grind 500mm wide lap joing (50mm depth) I.m. 700.00 $ 4.28 $ 2,996.00 1.7 Remove abandoned electrical chamber I.s. 1.00 $ 375.00 $ 375.00 1.8 Relocate existing hydrant and valve I.s. 1.00 $ 2,312.50 $ 2,312.50 1.9 Relocate existing street signs each 2.00 $ 100.00 $ 200.00 1.10 Remove existing catch basins each 5.00 $ 375.00 $ 1,875.00 1.11 Remove existing catch basin connections I.m. 36.00 $ 18.75 $ 675.00 1.12 Excavation and grading (include topsoil) m3 3900.00 $ 11.88 $ 46,332.00 1.13 Relocate existing ditch inlet catch basin I.s. 1.00 $ 1,250.00 $ 1,250.00 Sub Total $ 84,247.50 2.0 STORM SEWERS (GRANULAR & ASPHALT RESTORATION IN ROAD UNIT PRICES) 2.1 1200mm catch basin manhole no. 1 connect to \.s. 1.00 $ 3,937.50 $ 3,937.50 existing connection 2.2 Single catch basin NO.2 include 300mm catch basin I.s. 1.00 $ 2,687.50 $ 2,687.50 lead and connection to manhole 2.3 Single catch basin NO.3 I.s. 1.00 $ 2,000.00 $ 2,000.00 2.4 300mm DR35 PVC catch basin connection existing I.m. 15.50 $ 294.80 $ 4,569.40 manhole to catch basin NO.4 2.5 Double catch basin NO.4 I.s. 1.00 $ 3,000.00 $ 3,000.00 2.6 300mm DR35 PVC catch basin connection I.m. 15.50 $ 294.80 $ 4,569.40 existing manhole to catch basin No.4 2.7 Double catch basin NO.5 I.s. 1.00 $ 3,000.00 $ 3,000.00 2.8 300mm DR35 PVC catch basin connection existing \.m. 15.50 $ 294.80 $ 4,569.40 manhole to catch basin NO.5 2.9 Single catch basin No.6 I.s. 1.00 $ 2,000.00 $ 2,000.00 2.10 300mm DR35 PVC catch basin connection existing I.m. 16.00 $ 294.80 $ 4,716.80 manhole to catch basin NO.6 2.11 Double catch basin No.7 including 300mm catch I.s. 1.00 $ 3,625.00 $ 3,625.00 basin lead 2.12 Replace catch basin frame and grate with manhole I.s. 1.00 $ 625.00 $ 625.00 rim and adjust to grade Sub Total $ 39,300.00 3.0 ROAD WORK 3.1 Supply and place granular 'B' (450mm) m3 1710.00 $ 35.75 $61,132.50 3.2 Supply and place granular 'A' (150mm) m3 530.00 $ 60.00 $ 31,800.00 3.3 100mm underdrain I.m. 584.00 $ 15.00 $ 8,760.00 - 2 - 3.4 Concrete curb and gutter OPSD 600.040 I.m. 604.00 $ 63.15 $ 38,142.60 3.5 Base asphalt HL8 (100mm) m2 3380.00 $18.40 $ 62,192.00 3.6 1.5m concrete sidewalk m2 535.00 $ 56.93 $ 30,457.55 3.7 Topsoil and sod boulevards m2 3500.00 $ 6.42 $ 22,470.00 3.8 Traffic signs each 5.00 $ 214.00 $ 1,070.00 Sub Total $ 256,024.65 ESTIMATED UNIT ESTIMATED ITEM DESCRIPTION UNIT QUANTITY PRICE COST 4.0 DRIVEWAY WORKS (SHELL) 4.1 Asphalt removal m2 180.00 $ 2.50 $ 450.00 4.2 Excavation m3 80.00 $ 11.88 $ 950.40 4.3 Granular 'B' (450mm) m3 45.00 $ 35.75 $ 1,608.75 4.4 Granular 'A' (150mm) m3 15.00 $ 60.00 $ 900.00 4.5 Barrier curb I.m. 20.00 $ 67.09 $ 1,341.80 4.6 Base asphalt (80mm) m2 100.00 $ 14.87 $ 1,487.00 4.7 Surface asphalt (40mm) m2 100.00 $ 8.03 $ 803.00 Sub Total $ 7,540.95 5.0 DRIVEWAY WORKS (BOWMANVILLE CREEK DEVELOPMENTS) 5.1 Excavation m3 100.00 $ 11.25 $1,125.00 5.2 Granular 'B' (450mm) m3 68.00 $ 35.75 $ 2,431.00 5.3 Granular 'A' (150mm) m3 23.00 $ 60.00 $ 1,380.00 5.4 Barrier curb I.m. 30.00 $ 67.09 $ 2,012.70 5.5 Base asphalt (80mm) m2 150.00 $ 14.87 $ 2,230.50 5.6 Surface asphalt (40mm) m2 150.00 $ 8.03 $ 1,204.50 Sub Total $ 10,383.70 6.0 OTHER COSTS UTILITY RELOCATION 6.1 Ontario Hydro poles I.s. 1.00 $ 42,065.80 $ 42,065.80 6.2 Veridian Connection poles I.s. 1.00 $ 48,896.61 $ 48,896.61 Sub Total $ 90,962.41 SUMMARY 1.0 REMOVALS $ 84,247.50 2.0 STORM SEWERS $ 39,300.00 3.0 ROAD WORK $ 256,024.65 4.0 DRIVEWAY WORKS (SHELL) $ 7,540.95 5.0 DRIVEWAY WORKS $ 10,383.70 (BOWMANVILLE CREEK DEVELOPMENTS) 6.0 UTILITY RELOCATION $ 90,962.41 Sub Total $ 488,459.21 15% Contingencies $ 73,268.88 Sub Total $ 561,728.09 10% Engineering $ 56,172.81 Sub Total $ 617,900.90 6% G.S.T. $ 37,074.05 TOTAL PERFORMANCE GUARANTEE !I; S54 974 95 SCHEDULE "E" THIS SCHEDULE IS SCHEDULE "E" to the Agreement which has been authorized and approved by By-law No. 2006-208 of The Corporation of the Municipality of Clarington, enacted and passed the 16th day of October, 2006. Desien Drawines The followine are the Desien Drawines: Dwgs.R-l, RM-l, C-l, C-2, X-I, P-l, XS-l through 5 - prepared by D.G. Biddle & Associates Limited and dated November 2005 as finally approved and on file with the Municipality's Director of Engineering Services.