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Home My WebLink AboutPSD-048-07 Cl~mgron REPORT PLANNING SERVICES Meeting: SPECIAL COUNCIL MEETING Date: Monday, April 23, 2007 Report #: PSD-048-07 File#: By-law #: 2007-087,2007-088 2007-089, 2007-090 Subject: APPLICATION BY HALLOWAY HOLDINGS LIMITED FOR APPROVAL OF A SITE PLAN FOR THE DEVELOPMENT OF A HOME DEPOT HOME IMPROVEMENT STORE ON LANDS LOCATED TO THE NORTH OF REGIONAL HIGHWAY NO.2, WEST OF CLARINGTON BOULEVARD AND SOUTH OF THE UNOPENED CONCESSION 2 ROAD ALLOWANCE RECOMMENDATIONS: Provided that Halloway Holdings Limited has executed the Subdivision/Consent Agreement referred to in recommendation 1 and the Site Plan Agreement referred to in section 6 of this report and has paid sums of money required to be paid to the Municipality as required by the Principles of Understanding between the Municipality of Clarington and Halloway Holdings Limited dated March 1, 2006 and Halloway has paid the sums of money and deposited the performance guarantees required to be deposited on or before the execution of these agreements, other than the payment to be made for the parkland cash-in-lieu dedication, it is respectfully recommended to Council the following: 1. THAT Council approve pass a by-law to authorize the Mayor and Municipal Clerk on behalf of the Municipality of Clarington to execute a Subdivision/Consent Agreement in the form of the draft Agreement contained in Attachment 3; 2. THAT Council pass a By-law to authorize the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington to execute releases of certain Agreements from the title to the land referred to in the By-law in order to implement Paragraphs 8 and 10 of the Principles of Understanding and to execute any necessary acknowledgements and directions; 3. THAT Council pass a by-law to authorize the Mayor and Municipal Clerk to execute an Assumption Agreement on behalf of the Municipality with Halloway Holdings Limited and Home Depot Holdings Limited respecting the Principles of Understanding between the Municipality of Clarington and Halloway Holdings Limited dated March 1, 2006; REPORT NO.: PSD-048-07 PAGE 2 4. THAT Council pass a by-law to authorize the Mayor and Municipal Clerk to execute an Assumption Agreement on behalf of the Municipality with Halloway Holdings Limited and Home Depot Holdings Limited respecting the Stevens Road Extension Agreement between the Municipality of Clarington, Players Business Park Ltd. and West Diamond Properties Inc. dated March 1, 2006; 5. THAT it is recommended that Halloway be required to pay to the Municipality $84,000 inclusive of design contingencies and GST as its share of the cost of Highway 2 streetscape improvements and that the Subdivision/Consent Agreement contain a suitable provision to this effect; 6. THAT all interested parties listed in this Report be advised of Council's decision; and, 7. THAT Staff be directed to prepare necessary amendments to the site plan and the Agreements referred to in Section 8.1 to make them consistent with the Halloway Principles and the Subdivision/Consent Agreement. Respectfully by: d~v~ Subm. d by: David J. Crome, M.C.I.P, R.P.P. D;~cloc of P''""::2: Itt&%/ . Submitted by: Anthony Cannella C.E.T Director of Engineering Services Reviewed by: Franklin Wu, Chief Administrative Officer DJC/sh/df 20 April 2007 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T (905)623-3379 F (905)623-0830 REPORT NO.: PSD-048-07 PAGE 3 1.0 BACKGROUND 1.1 At its Special Meeting on March 1, 2006, Council approved the recommendations contained in Report #PSD-027 -06. The recommendations included the approval of Commercial Policy Review and the Bowmanville Main Central Area Secondary Plan Review Report. Council adopted Official Plan Amendments 43 and 44 and related Zoning By-law Amendments 2006-046 and 2006-047 to implement the recommendations contained in the two Reports and Report #PSD-027-06. Council also approved certain agreements between the Municipality and two groups of proponents, including Principles of Understanding (Halloway Principles) with Halloway Holdings Limited (Halloway) and the Stevens Road Extension Agreement with Halloway, Players Business Park Ltd. and West Diamond Properties Inc. (PlayerslWest Diamond). Copies of the Halloway Principles of Understanding, the Stevens Road Extension Agreement, Official Plan Amendment 44 amending the Bowmanville West Main Central Area are available in the Municipal Clerk's Office. 1.2 The plan contained in Attachment 1 shows the commercial lands owned by Halloway and PlayerslWest Diamond, respectively.. The Halloway commercial lands (Halloway Lands) are located between Regional Highway No.2, Green Road, the unopened Concession 2 road allowance and Clarington Boulevard. The West Diamond/Players commercial lands are located generally between Regional Highway No.2, the planned northerly extension of Boswell Avenue and Green Road. 1.3 Halloway proposed the development of a Home Depot home improvement store on part of the easterly portion of the Halloway Lands. Medium-format retail stores (1,000 s.m. to 2,500 s.m.) were proposed on the westerly portion of their lands and smaller street- related retail stores were proposed on the Highway 2 frontage of the Halloway lands. 1.4 Appeals from the adoption of Official Plan Amendment 44 and Zoning By-law Amendment 2006-047, both of which applied to the Halloway lands, have been dismissed by the Ontario Municipal Board. No appeal was filed in respect of Zoning By- law Amendment 2006-046. AYT Corporation's (AYT) appeal from the adoption of Official Plan Amendment 43 as they apply to AYT's lands on the north side of Highway 401 at Bennett Road. The result is that with the dismissal of the appeals of Official Plan Amendment 44 and Zoning By-law Amendment 2006-047, Official Plan Amendments 43 and 44 and Zoning By-law Amendments 2006-046 and 2006-047 are in full force and effect. 1.5 Acting in accordance with the Halloway Principles, Halloway applied for and obtained from the Region of Durham Land Division Committee a provisional consent to transfer the proposed Home Depot home improvement store site (Home Depot Lands) together with half the right-of-way for Private Road "C" to Home Depot Holdings Inc. (Home Depot) pursuant to section 53 of the Ontario Planning Act. The provisional consent included the transfer to Home Depot of certain servicing and access rights over the retained portions of the Halloway Lands to benefit the severed lands and the reservation REPORT NO.: PSD-048-07 PAGE 4 from the severed Home Depot Lands of servicing and access rights to benefit the retained lands. The provisional consent is conditional on the making of agreements with the Municipality and the Region of Durham, respectively. The agreement with the Municipality is discussed below and is referred to as the "Subdivision/Consent Agreement". 1.6 Again, acting in accordance with the Halloway Principles, Halloway applied for site plan approval of development of the proposed Home Depot home improvement store and related facilities proposed for the Home Depot Lands. 1.7 The principal features of the site plan which has been negotiated with staff as well as the proposed site plan agreement which will be registered on the title to the Home Depot Lands are outlined below in this Report. If Council decides to approve the recommendations contained in this Report, the Directors of Planning Services and Engineering Services intend to approve the site plan and recommend that the Mayor and Municipal Clerk execute the site plan agreement with Halloway. . 2.0 HALLOWAY PRINCIPLES OF UNDERSTANDING 2.1 This section of the Report will contain a brief description of main provisions of the Halloway Principles that are relevant to the proposed Home Depot development. 2.2 The Halloway Principles are premised on the assumption that development of the Halloway Lands would be phased. Halloway intends to phase the development so that an individual building or buildings only would be proposed as market opportunities became available. Home Depot is the first phase of development. 2.3 The purpose of the Halloway Principles is to provide a means for the Municipality to be satisfied that its key infrastructure, landscaping, streetscaping, urban design, building massing, location of parking, the internal Private Road, "C", and driveways will be provided in accordance with the Bowmanville West Town Centre Secondary Plan, Zoning By-law 2006-047 and the approved Concept Plan for Development (Attachment 2) of the Halloway Lands no matter what the sequence of development of individual buildings might be. Integral to this purpose are arrangements for Halloway's contributions to part of the cost of the Stevens Road Extension, the granting of an option to purchase Private Road "C" to be exercisable when overall development of the Halloway Lands reaches a stipulated intensity, and Halloway's contributions to the Urbanization of Regional Highway NO.2. The option to purchase is important in achieving the ultimate planning goal of establishing a grid network of public streets in the future. 2.4 The Concept Plan for Development of the Halloway Lands is central to the Principles of Understanding. The Plan shows the conceptual development of buildings on the entire Halloway Lands, including the parking, driveway and landscaped areas on the Home Depot Lands. All development of the Halloway Lands is required to be consistent with REPORT NO.: PSD-048-07 PAGE 5 the Concept Plan for Development. It therefore establishes the context within which applications for site plan approval under section 41 of the Planning Act. 2.5 The Halloway Principles shows the cross-section and the requirements of Private Road "C" which is to be located between Highway No. 2 and the planned Stevens Road Extension on the westerly side of the proposed Home Depot Lands. 2.6 The Halloway Principles provide for the transfer of certain 0.3 metre reserves to Halloway for a nominal consideration. If they are not transferred these reserves would effectively preclude the development of the proposed Home Depot home improvement store. They also provide for the release by the Municipality of certain agreements including requirements to convey lands to extend Uptown Avenue west of Clarington Boulevard to the proposed Home Depot Lands. This release is provided in exchange for the payment by Halloway to the Municipality of $200,000.00. Report #PSD-032-07 which was approved by Council at its meeting on March 19, 2007, recommends the transfer to Halloway of the 0.3 metre reserves and the release of the agreements from the proposed Home Depot Lands in exchange for the above-noted payment. Halloway has made this payment to the Municipality. 2.7 The Halloway Principles provide for Halloway to pay to the Municipality $70,000 for the purposes of disbursement to the Orono and the Newcastle BIAs and to fund Community Improvement Plan programs if neither of these BIAs appealed OPAs 43 or 44 or any of the related zoning-by-Iaws to the Ontario Municipal Board. Neither of these two BIAs in fact filed any appeal to the Ontario Municipal Board. Halloway has made this payment to the Municipality. 2.8 The Halloway Principles contain a provision respecting the removal of the (H) Holding symbol from ccmmercial zoning designation set out in Zoning By-law Amendment 2006- 047. The removal of the (H) Holding symbol from the zoning designation applicable to the proposed Home Depot Lands is recommended in Report #PSD-49-07. 2.9 The Halloway Principles also require Halloway and its successors in title to comply with the requirement that an Assumption Agreement is made by a proposed purchaser, mortgagee or lessee under a lease for 21 years or more before the sale, mortgage or lease is made. Home Depot has executed Assumption Agreements with the Municipality assuming the obligations of Halloway under the Halloway Principles and the Stevens Road Extension Agreement. Also, Halloway and Home Depot have executed the necessary Acknowledgements and Directions for the registration on title of charges under section 118 of the Land Titles Act respecting the Halloway Principles and the Stevens Road Extension Agreement. The requirements for these Assumption Agreements and the registration of section 118 of the Land Titles Act charges on title will ensure that Halloway and its successors in title of the original party will comply with the Halloway Principles and the Stevens Road Extension Agreements. 2.10 Finally, the Halloway Principles provided for them to be unwound and to be of no further effect if "Final Approval" of specified Planning Documents had not been achieved. They REPORT NO.: PSD-048-07 PAGE 6 also provided a right to Halloway to terminate the Halloway Principles within three years following Final Approval, for example, if Halloway decided that development was no longer practical. Halloway has acknowledged that the Halloway Principles cannot now be unwound or terminated and are in full force and effect. 3.0 STEVENS ROAD EXTENSION AGREEMENT 3.1 The Stevens Road Extension Agreement provides for the design and construction of Stevens Road extension from Regional Road 57 to Green Road and its funding. The Municipality will undertake all of the construction. 3.2 Under this Agreement the Municipality is responsible to fund the construction of Stevens Road from Regional Road 57 to Clarington Boulevard (Municipally-Funded Section). The Municipally-Funded Section is 100% funded from development charges. West Diamond/Players and Halloway are responsible to fund the construction of the portion from Clarington Boulevard to Green Road (Developer-Funded Section). The works cost estimate for the Developer-Funded Section to an "Urban Profile" is $596,000. Security has been deposited with the Municipality for this amount. 3.3 The Agreement also provides that: · The estimated costs of the Developer-Funded Section constructed to an Urban Profile of $596,000 will be adjusted from time to time as provided for in the Agreement. · The Municipality will commence construction of the Stevens Road extension as soon as reasonably practicable after one of the developers gives written notice of his intent to proceed. (The Municipality has commenced the Environmental Assessment process.) · Halloway and West Diamond/Players are responsible for the "as-built" costs on the Developer-Funded Section. They will be consulted in the preparation of the tender documents with respect to the construction of the project. 3.4 This Agreement also contains an unwinding or termination provision. The unwinding or termination provisions are not operative since neither the Halloway Principles nor the West Diamond/Players Principles of Understanding with the Municipality have unwound or been terminated. In fact, both Halloway and West Diamond/Players have elected to proceed with the Urban Profile design option for the profile of Stevens Road Extension between Clarington Boulevard and Green Road and have deposited the required letter of credit with the Municipality. 4. SUBDIVISION/CONSENT AGREEMENT 4.1 A copy of the draft Subdivision/Consent Agreement between Halloway and the Municipality is contained in Attachment 3. Staff have been advised that the agreement REPORT NO.: PSD-048-07 PAGE 7 between Halloway and the Region required as a condition of the provisional consent to transfer the proposed Home Depot Lands to Home Depot has been executed by the parties to it. 4.2 The draft Subdivision/Consent Agreement between the Municipality and Halloway provides for: · A widening on the east side of Green Road to be transferred to the Municipality for a nominal consideration. · Halloway's agreement to undertake, complete and maintain on the Halloway Lands, including the portion to be conveyed to Home Depot, the grading, construction and installation of the services, works and landscaping shown on specified plans and drawings. · Halloway's agreement to construct and install certain works and improvements on Clarington Boulevard and the intersection of Private Road "C" and Stevens Road Extension. These include completion of the traffic control median on Clarington Boulevard. · Halloway's agreement to pay a maximum of $84,191 to the Municipality for its share of the cost of certain landscaping and streetscaping works on Regional Highway NO.2. This is discussed below in this Report. · Halloway's agreement to construct and maintain the Private Road "C" improvements in accordance with specified plans and drawings. · The provisions of the Halloway Principles and the Steven Road Extension Agreement to be incorporated in their entirety in the Subdivision/Consent Agreement. 5.0 ASSUMPTION AGREEMENTS WITH HOME DEPOT 5.1 Attachments 4 and 5 contain Assumption Agreements between the Municipality and Home Depot. They implement the requirements of the Halloway Principles and the Stevens Road Extension Agreement in this regard. 5.2 The Assumption Agreement respecting the Halloway Principles contains acknowledgements by the Municipality that the $200,000 payment referred to in section 2.6 of this Report and the $70,000 payment referred to in section 2.7 of this Report have been made. 6.0 SITE PLAN APPROVAL, CONDITIONS AND AGREEMENT 6.1 The Site Plan proposal by Home Depot provides for a 99,000 sq. ft. building with an additional 26,000 sq. ft. structure predominantly occupied by the Garden Centre. (Attachment 6) The front and rear fac;:ade are articulated vertically and horizontally to create some architectural interest and rhythm. (Attachment 7) The elevations would be completed with reddish/brown pre-caste concrete panels that provide a an appearance REPORT NO.: PSD-048-07 PAGE 8 of brick construction. Due to its prominent location within the Town Centre, stringent requirements were made with respect to outdoor storage. As a result, the Garden Centre is extended at the back for a building material holding area and includes the shed display area. Parking is provided for 427 cars. A large outdoor seasonal centre is provided in the centre of the parking lot. 6.2 Site plan approval for the development will be granted in accordance with Section 41 of the Planning Act as amended. A Site Plan Agreement has been prepared that will contain provisions respecting the development of the subject lands including site design, building elevations, rooftop mechanical unit screening, site illumination design and fixture specifications, and landscaping within the property. Special items such as the requirement for the home improvement store to obtain a basic LEEDS certification and provision of a bicycle storage area for employees are included in this Agreement. The LEEDs certification was originally offered by Home Depot as part of their proposal to Council for the positive consideration of their application. The Agreement also contains provisions for continued site maintenance and financial matters including securities and payments to be made by the applicant to the Municipality. All of these issues are contained in the Conditions of Site Plan Approval, which the applicant has agreed with and signed. 6.3 The applicant must secure 100% of the landscaping costs for the project. This includes all plant materials, fencing and rockery, retaining walls, and decorative paving materials. These securities will be released once the items have been installed and passed their maintenance period. These securities are also used to ensure that the exterior illumination is properly installed in accordance with the approved illumination plan. 6.4 The Agreement also contains a provision for a cash payment in lieu of a parkland dedication. The value of the payment is established either through a property appraisal prepared by a certified property appraiser or through the actual offer of purchase and sale. The applicant chose to have a property appraisal prepared. A review of the appraisal by Staff concluded that the proposed land value upon which to base the dedication payment was not suitable for the following reasons. Not all of the comparable sites used in the appraisal were appropriate, since some were future residential sites and thus not comparable. The appraisal also discounted the value of comparable commercial sites and increased the value of residential sites. Finally, the appraisal did not use the correct zoning upon which to base the land value. Since the appraiser would not change the appraisal to properly address our concerns, Staff have retained David Thrift of Appraisal Group Incorporated to prepare an appraisal on behalf of the Municipality. Once a land value is determined, the value will be placed in the Agreement. The applicant will be required to provide the necessary cash payment. 6.5 Cash-in-lieu of parkland has previously being paid for a portion of the site. There is a residual of 6.267 acres on the Home Depot Site for which payment has not been made. Mr. Thrift has appraised the fair market value of these lands to be $2,685,000. The payment in lieu of parkland in respect of the Home Depot Development is 2% of this REPORT NO.: PSD-048-07 PAGE 9 amount or $53.700. The applicant will be required to provide the necessary cash payment. 7.0 HIGHWAY NO.2 LANDSCAPING AND STREETSCAPING 7.1 Council policy has established the Bowmanville West Town Centre area as one the two main commercial areas of Clarington with high standards for building and streetscape design. Through the Bowmanville West Town Centre Secondary Plan. one of the goals adopted by Council was "to ensure high quality of architecture and urban design in all phases of development in order to create a unique sense of place and foster social interaction in the West Town Centre". 7.2 To implement Council's policy. the Municipality developed urban design principles and guidelines that have been implemented through the Official Plan policies and zoning by- law for the area. To ensure Council's direction of creating "a unique sense of place" and to complement the high standards in building design agreed upon with Home Depot and Wal-Mart. the Municipality initiated the Bowmanville West Town Centre Streetscape Implementation Plan (Streetscape Plan) as forwarded through Report PSD-045-07. 7.3 The nature and size of the proposed developments requires the reconstruction and urbanization of Highway 2 and as such requires special consideration in terms of design and pedestrian orientation. The Streetscape Plan recognizes the importance of Highway 2 as the main regional corridor in the community. The importance of Highway 2 is also recognized in the Regional Corridor Guidelines and the Regional Official Plan. 7.4 The Streetscape Plan concept for Highway 2 will be implemented in phases. The first phase requires that the structural elements like raised planters in the median and boulevard be undertaken at the same time as the reconstruction of Highway 2. 7.5 To this end staff has developed a cost sharing structure that requires contributions from Halloway for streetscape improvements to a maximum of $63,540 plus design. contingencies and GST (maximum $84.190). This amount is reflected in the Subdivision/Consent Agreement. Halloway's responsibility includes works in and north of the median between Clarington Blvd and Green Road. The Municipality will be responsible for the costs in and south of the median. 7.6 Many of the streets cape improvements have been paid for and implemented recently by the developers throughout the area. The latest examples include Clarington Boulevard extension north of the cinemas to the new Clarington Secondary School and the new residential development south of Canadian Tire. The Streetscape improvements included unit pavers. trees, benches. waste receptacles. and decorative lighting in the median as well as decorative lighting on the boulevard in front of the school. 7.7 Halloway Holdings has indicated very firmly that it will not make any further contribution to the Highway 2 urbanization, other than the basic streetscaping required by the Region due to the costs they have incurred to date for the project. REPORT NO.: PSD-048-07 PAGE 10 7.8 However, it is very important for Council to understand that decisions on implementation made in this area may create a precedent for implementation through the area. The Streetscape Plan extends westward along Highway 2 from Green Road to Boswell Drive to the lands owned by Metrus. Staff has initiated negotiations with Metrus for the implementation of the Streetscape Plan. The Streetscape Plan will also be presented to the Kaitlin Group for their density residential and commercial developments proposed along Prince William Boulevard and the southwest corner of Highway 2 and Regional Road 57. Accordingly, it is recommended that Halloway be required to pay to the Municipality $84,000 inclusive of design contingencies and GST as its share of the cost of Highway 2 streetscape improvements and that the Subdivision/Consent Agreement contain a suitable provision to this effect. 8.0 AMENDMENT OF SITE PLAN AND AGREEMENTS APPLICABLE TO SCOTIABANK AND OTHER LANDS 8.1 Amendments will be required to the Amending Agreement dated June 21, 2000 between Willsonia Industries Limited, Royal Bank of Canada, Royal Trust Corporation of Canada and the Municipality of Clarington which amended the Development Agreement between the Municipality, Clarington Place Limited and Willsonia Industries Limited and registered in the Land Registry Office as Instrument No. 0472409 and the related approved site plan. The Agreement and site plan show the Scotiabank and parking for it located on the west side of Clarington Boulevard at Regional Highway No. 2 and additional lands shown as a "Temporary Parking Lot". The site plan and Agreements apply to lands which include part of the proposed Home Depot Lands. They also deal with the existing break in the traffic control median on Clarington Boulevard. 8.2 It is recommended that Staff be directed to prepare necessary amendments to the site plan and the Agreements referred to in paragraph 8(1) to make them consistent with the Halloway Principles and the Subdivision/Consent Agreement. 9.0 CONCLUSIONS AND RECOMMENDATIONS As of the writing of this report, one issue remains outstanding. Halloway has indicated that it will not sign the Consent/Subdivision Agreement if the Municipality requires a contribution of $63,540 plus design, contingencies and GST (maximum of $84,191) to the Highway 2 urbanization/streetscape works. Staff will provide a verbal update as to the status of this matter at the Special Council meeting. If Halloway has executed the agreements by that time, and deposited the requisite performance guarantees, save and except for the cash-in-Iieu of parkland, staff would request that the recommendations be adopted to implement the necessary agreements for Home depot to proceed. In the event that any outstanding issues remain at that time, appropriate direction will be sought. REPORT NO.: PSD-048-07 Attachments: Attachment 1 Attachment 2 Attachment 3 Attachment 4 Attachment 5 Attachment 6 Attachment 7 PAGE 11 - Key Map - Concept Plan for Development - Draft - Subdivision/Consent Agreement - Assumption Agreement - Principles of Understanding - Assumption Agreement - Stevens Road Extension - Home Depot Site Plan - Home Depot Elevations c. ca :E ~ CD ~ Attachment 1 To PSD-048-07 ((II I. J ~ :%1 c: n:s - a.. ..... c: CD E c. o - CD > CD C ..... c. CD u c: o o I en "'C c: n:s ...J ~ n:s ~ o - - n:s J: t ,- 0.1 . '- I . T-: - + Ifa ~ .... ~':i:~,: :;!!!!!!!! 5!! ,!g: I, ! Attachment 2 To PSD-048-07 /~ ~ II II ~ ~ . ',Jr 1=' Ii ~!:l ~ :!I . .~ j II .~ ~ ;, ~ ~ _Ii ;; , '0000.. '000000';: ,'"'''' ,,~.:":. .. " .. . ~ I ~...._ ., . :: - (JtI\1Allr.~)8 NO*J:ilYl~ t ..., ~ ~~: .... .~ ~ ~ -~.... - r ... ,.'.. --m;,qji....'..;,} ....~ '~_~ .... ~ . 1ffi . I f' -:-' "! ,.. .'1' "'., ,I '.,;. III " ~ - , "1 .. " '''''''''1" I If" 4~' ''/If';' .'1l1 '.:, I I.. .. _ ., l I .....' , 1.- . ,,-,,,( -1 ' lo1 , _ II , 7 . fl". J, II. ~: , "i .'r- ,i .""7" (, :..~: /- /' _,'.,;fi; . ,~; ;rJ1. I" ;i' .. ...... (' " . 'v. - , .-(. j! '".' .... "J ~. I 3', ,-it ,< '. .;... ~ , $. I' :~. .' "l~/ . : ~:: . '.Il-;;' 'f...f...... - ~li:..'+ ...~.~J1. j "., ; '._','0;";' ',.j('_"/ ;l/ I ~ . . ''''. ~ ~ .;' ,1/ . ......" i i/ ; jr',' ,',' j '(! . i H '." -r:-:~" ,,:-: , . I. . . '1.-,:/ ,l'; ;~:~~~.~ :. . : . .Ji..' I: .. .. ~" j, , '.. L" h ;!: , ,,' .',' ;:" Ir ' [J" .J J),' .,/: ~ -' 1-, h ./ I."" -" j.i ;' -1' '<'I - -- ..". '.. ..........;. ~'''L'' "'" ';".h' " J" ~. MLJiW""iM .........: .....1A.IU... .... .!:f....,....-:-- f ~~i"--..~-'-'!"":,,, ,. "a~i~.-~~lt~ .~ ' -.:":.- r-i. '" I JI '" j " .~ I, Ll '" '" . .\ to. . ~ ~ Il; .. .. D II ''I , , Attachment 3 To PSD-048-07 SUBDIVISIO:-i/CONSENT AGREE:V1ENT THIS SUBDIVISION/CONSENT AGREEMENT made as of the 22"' day of April, 2007. BET WEE N: HALLOWAY HOLDINGS LIMITED (hereinafter called "Hallolyay") OF THE FIRST PART - and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter calIed the "Municipality") OF THE SECOND PART WHEREAS: A. Halloway and the Municipahty entered into Principles of Understanding ("HallO\vay Principles") dated March 1, 2006. The Halloway Principles are registered as Instrument No. DR51 3890 in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). B. The lands to which this Subdivision/Consent Agreement applies are more particularly described in Schedule "A" hereto C'HalIoway Lands"). C. Halloway represents and warrants fhat it is the registered owner in fee simple of the Halloway Lands and that they arc not encumbered by a mortgage or charge. D. On January 15, 2007, the Regional Municipality of Durham's Land Division Committee under its file LD016/2006 gave its provisional consent ("Provisional Consent") under section 53 of the Planning Act, R.S.O. 1990, c.P .13, as amended, to the transfer by Hallo\vay of the part of the Hallmvay Lands referred to herein a the "Scvered Lands". The Severed Lands are morc particularly described in Schedule "B" hereto. The Provisional Consent is subject to certain conditions including the making of this Subdivision/Consent Agreement. A copy of the Provisional Consent is contained in Schedule "C" hereto. - 2- E. Follov,1.ng satisfaction of the conditions to the Provisional Consent and the issuance of a certificate that the consent has been given pursuant to subsection 53(42) of the Planning Act, Halloway intends to transfer the Severed Lands to Home Depot Holdings Inc. ("Home Depot") for development thereon of a home improvement store ("Home Depot Store") in accordance \vlth the Municipality's Official Plan Amendment No. 44 and Zoning By-law Amendment 2006-047. F. A copy of the concept plan for development of the Halloway Lands is contained in Schedule "C" of the Halloway Principles. It is referred to hereinafter in this Subdivision/Consent Agreement as the "Concept Plan for Development". The Concept Plan for Development was endorsed in principle by the Municipality's Council's Resolution #C-114-06 passed at its special meeting on March 1, 2006. A copy of Resolution #C-114-06 is contained in Schedule "D" of the Halloway Principles. G. The Stevens Road Extension Agreement dated March ], 2006 has been executed by the Municipality, Halloway, Players Business Park Ltd. and \Vest Diamond Properties Inc. A copy of it is contained in Schedule "E" of the Halloway Principles. H. HallO\vay has agreed to transfer Part on Reference Plan 40R-24802 to the Municipality for the purpose of widening Green Road as provided below in this Subdivision/Consent Agreement. 1. This Subdivision/Consent Agreement is made pursuant to subsection 53(12) of the Planning Act, R.S.O. 1990, c.P.13, as amended. J. The execution of this Subdivision/Consent Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-088 passed by the Municipality's Council at its meeting on April 23, 2007. NO\V 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 AND SCHEDULES 1. (aJ Each of Recitals C to H and Schedules "A" to "]" are hereby incorporated into the operative part ofthi5 Subdivision/Consent Agreement and each shall be construed as covenants contained in this Subdivision/Consent Agreement. - 3- (b) In this Subdivision/Consent Agreement, unless otherwise provided the term "Director" means the Municipality's Director of Engineering Services. LA~ns TO BE TRA:!\"SFERRED TO MUNICIPAUTY 2. On or prior to the execution of this Subdivision/Consent Agreement by the MUTIlcipality, Halloway shall transfer to the Municipahty for a nominal consideration in fee simple, free and cIear of encumbrances and restrictions Part 1 on Reference Plan 40R~24802. The transfer shall be in a fann satisfactory to the Municipality's Solicitor and shall be registered on title at the cost of Halloway including the payment of any Land Transfer Tax and the payment to the Municipality of its reasonable legal costs. DRA1NAGE~ EROSION CONTROL. GRAIlING. LANDSCAPING A~D SERVICING OF HALLOWAY LA~DS 3. Halloway at its cost shall W1dertake, complete and maintain the grading, construction and installation of the services, works and landscaping required to be implemented in accordance with the following plans and drawings as finally approved by and on file with the Director and the Director of Planning Services: 'Drawing Title Drawing Dated UlstRe,,'ision Pr:epared By.. No. Date Site Services Plan $-2 May 2005 February 23, D.G. Biddle & Associates 2007 Limited Site Grading Plan $.3 May 2005 February 23, D.G. Biddle & Associates 2007 Limited Erosion and Sedimentation $-4 May 2005 February 23, D.G. Biddle & Associates Control Plan 2007 Limited Stonn Drainage Scheme $-5 May 2005 February 23, D.G. Biddle & Associates 2007 Limited Landscaping Concept Plan D 1 of12 February Henry Kortekaas & 2007 Associates Inc. CLARINGTO~ BOLLEVARD WORKS AND STEVE!\'S ROAD DRIVE\VAY EXTENSION WORKS 4. (a) Schedules "D" to "I" inclusive apply in respect of the Boulevard and Driveway Works, the Boulevard and Driveway Works Performance Guarantee and the Security for the Maintenance Guarantee for the Boulevard and Driveway Works. The Clatington Boulevard Works comprise the Clarington Boulevard-Traffic Island Restoration Works, the Clarington Boulevard-Parking Bump Out Construction \Vorks, and the Clarington Boulevard-Boulevard Works. The Clarington Boulevard Works and the Stevens Road Driveway Entrance Works are more particularly described in Schedule "D". (b) Halloway shall W1dertake, complete and maintain the Clarington Boulevard Works and the Stevens Road -Driveway Entrance Works (collectively the "Boulevard and Driveway Works") at its cost in accordance with Schedule HE" -4- hereto. On or before the execution of this Subdivision/Consent Agreement by the Municipality, Halloway shall deposit cash or an irrevocable unconditional letter of credit with the Municipality in the amount shown in the "Boulevard and Driveway Works Cost Estimate" contained in Schedule "1" hereto as the perfonnance guarantee ("Boulevard and Driveway \Vorks Performance Guarantee") required by Schedule "F" hereto. HIGHWAY No. 2 LANDSCAPING A~D STREETSCAPI:"rG WORKS 5. Forthvtith after the execution of this Subdivision/Consent Agreement by the Municipality, Halloway snall pay to tne Municipality tne sum of S63,540.00 for use by the Municipality in constructing and instalhng, at the Municipahty's risk, streetscaping on Hignway No.2. STEVENS ROAD EXTENSION 6. (a) Halloway agrees \vlth the Municipality that the Developer-Funded section of the Stevens Road Extension as defined and provided for in the Stevens Road Extension Agreement is a local service v.rithin the meaning of section 59 of the Development Cnarges Act, 1997, S.O. 1997, c.27, as amended; and (b) Halloway acknowledges tnat tne "Urban Profile Works" on tne "Developer- Funded Section" of the Stevens Road Extension as both terms are described and defined in the Stevens Road Extension Agreement will be designed and constructed on the aforesaid Developer-Funded Section. Halloway shall deposit with the Municipality the "Performance Guarantee" to secure its obligation to pay for fifty (50%) per cent of the cost of the aforesaid Urban Profile Works as is required by and in accordance with the Stevens Road Extension Agreement. The terms "Urban Profile Works," "Developer-Funded Section," and "Performance Guarantee" have the same meaning in this Subdivision/Consent Agreement as they have in the Stevens Road Extension Agreement. PRIVATE ROAD C 7. (a) The "Private Road C Improvements" (as hereafter defined) are shown on the Concept Plan for Development. The lands which comprise Private Road C are mOTC particularly described as Parts 16, 17,21 and 22 on Plan 40R-24257. (b) Halloway shall construct at its cost the Private Road C Improvements shown on the Concept Plan for Development in accordance with the construction drawings, specifications, cross-sections and streetscaping improvements including lighting contained in Schedule "F" of the Halloway Principles and - 5- landscaping shown on the Landscape Concept Plan referred to in paragraph 3 of this Subdivision/Consent Agreement ("Private Road C Improvements"), to the satisfaction of the Director. The parties agree that any of the foregoing drawings, cross-sections and specifications may be revised in an agreement bet\veen Halloway and the Municipality made pursuant to section 41 of the Planning Act \vithout amendment being made to this Subdivision/Consent Agreement. (c) Halloway agrees that at its cost it will keep the Private Road C Improvements after they have been constructed in a proper state of repair and maintain it in a reasonable and proper manner, provided that Halloway's duty to do so shall temrinate on the day on which the Municipality exercises its option to purchase Private Road C in accordance with paragraph 7(b) of the Halloway Principles, and provided further that Halloway shall remain responsible for the cost of the rectification of all deficiencies that have been identified prior to the day on which the aforesaid option to purchase is exercised in a written notice given by the Director to Halloway, pursuant to paragraph 7(e) of this Subdivision/Consent Agreement. Paragraph 7(e) shall apply with all necessary changes to it being assumed to have been made to give effect to this paragraph 7(c). (d) Hanaway hereby permits the Municipality, its employees, contractors and agents to enter on and to inspect the state of repair and the maintenance of the Private Road C Improvements from time to time. (e) If any deficiency in the repair or maintenance of the Private Road C Improvements is identified by the Director, he shall forthwith give written notice of the same to Halloway requiring the rectification of such deficiency by a date specified in the \Witten notice. If Halloway fails to rectify the deficiency on or before the date specified in the Vl'Titten notice, the Municipality, its employees, contractors and agents may enter on Private Road C, as the case may be, and cause the deficiency identified in the aforesaid written notice to be rectified at the expense of Hanaway. Forth\\r1th after rectifying the dcficiency, the Director shan give written notice to Hanoway of the cost of rectifying it shan include an allowance of thirty (30%) per cent to be paid to the Municipality for its overhead expenses. Forthwith after being given written notice of the cost of rectifying the deficiency as aforesaid, Halloway shall pay the amount in question as a debt o\ved by Halloway to the Municipality. (f) Notwithstanding paragraph 7(b), Halloway may defer the construction and installation of portions of the landscaping and sidewalk on the westerly side of Private Road C which are part of the Private Road C Improvements referred to in paragraph 7(b) until Halloway completes the construction of a building or buildings which is on a site on the Halloway Lands which abuts the corresponding portion of the westerly side of Private Road C, provided that the construction and installation of such landscaping and sidewalk shall be commenced and completed - 6- in accordance with conditions imposed on site plan approval under section 41 of the Planning Act for such building or buildings, and provided further that paragraph 7(c) shall apply with all necessary changes thereto being assumed to have made to give effect to the intent of this paragraph (t). I]\"CORPORATIO~ OF HALLO\VAY PRl~CIPLES AND STEVENS ROAD EXTEI\'STON AGREEMENT 8. The Halloway Principles and the Stevens Road Extension Agreement are incorporated by reference in their entirety in the operative part of this Subdivision/Consent Agreement. Each of the Municipality and Halloway covenants to observe and perform their respective obligations under the Halloway Principles and the Stevens Road Extension Agreement, as each may be amended, restated, modified, supplemented by them and/or assigned and assumed from time to time. Notwithstanding the foregoing, the Halloway Pnnc1ples, and the Stevens Road Extension Agreement continue in force and effect and time continues to be of their essence. NOTICE 9. If any notice or other document is required to be or may be given by the Municipallty or by any official of the Municipality to Halloway by this Subdivision/Consent Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to: Halloway: 177 Nonquon Road. 20ili Floor Ohsawa, ON LlG 3S2 OR, Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON Ll C 3A6 Attention: Director of Planning Services 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 transportati on which - 7- may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. FORCE MAJEURE 10. In this Subdivislon/Consent Agreement, the term "Force Majeure" means any delay for the duration of the delay Wh1ch is imposed by reason of strikes, lockouts, riots, wars or acts ofrnilitary authority, acts of pub be enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, \vater, 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 Halloway, none of which has been caused by the dehberate 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. Halloway or the Municipality, as the case may be, shall notify the other parties to this Subdivision/Consent Agreement of the commencement, duration and consequence (so far as the same is \\rithin fhe knowledge of Halloway or the Municipality, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. ACTIl\"G REASONABLY 11. All discretionary decisions by officials of the Municipality referred to in this Subdivision/Consent Agreement shall be deemed to be qualified by the words "acting reasonably". CHANGES IN Nl:MBER OR GENDER 12. This Subdivision/Consent Agreement shall be read with all changes of gender or number required by the context in which the words or figures in question appear. E:!\"UREME]\,T 13. This Subdivision/Consent Agreement shall enure to the benefit of and be binding on the parties hereto, and their respective successors and assigns. STATUS STATEMENT 14. Within ten (l0) days of receiving a written request from Halloway, the Municipality shall provide a "Written statement either confirming that Halloway is in good standing and not in default of any provisions of this Subdivision/Consent Agreement, or setting out the - 8- manner and extent to which Halloway is in default. Should the Municipality not respond to said \\TIitten request from Halloway, Halloway is entitled to rely on such non-response as indicating that Halloway is in good standing and not in default of this Subdivision/Consent Agreement. AtJTHORITY OF MIJNlCIPALITY 15. Halloway acknowledges and agrees that the Municipality has authority to entcr into this Subdivision/Consent Agreement, that every provision hereof is authorized by the law and fully enforceable by the parties, and that this Subdivision/Consent Agreement is executed by the Municipality in reliance on the acknowledgement and agreement of Halloway as aforesaid. RECISTR..-\TION OF AGREEME~T ON TITLE TO HALLOWA Y LA.~DS 16. Halloway hereby consents to the registration of a Notice of this Subdivision/Consent Agreement on the title to the Halloway Lands. TIl\:IE OF THE ESSENCE 17. Time is of the essence of this Subdivision/Consent Agreement. 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: - 9- ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. HALLOWAY HOLDINGS LIMITED. Name: Title: Name: Title: lAVe have authority to bind the Corporation SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the MunicipalIty of Clarington cnacted and passed the 23" day of April, 2007. Descriotion of the Hallowav Lands Firstly: Part of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 2, 3, 4, 5 and 6 on Plan 40R-24257, being the wlIole ofPIl\ 26613-0103 (LT). Secondly: Part of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Part I on Plan 40R-24257, beingtlIe whole of PIN 26613-0106(LT). Thirdly: Part of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Tovlmship of Darlington), designated as Parts 7, 8, 9, 10 and lIon Plan 40R-24257, bemg the whole of PIN 26613-0107(LT). Fourthly: Pan of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Township of Darhngton), designated as Parts 12 and 13 on Plan 40R-24257, being the whole of PIN 26613-0035 (L T). Fifthly: Part of Lot 16 Concession I in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Tmvnship of Darlington), designated as Parts 14, 15, 16, 17 and 18 on Plan 40R-24257, being the whole of PIN 26613-0034 (LT). Sixthly: Part of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 19,20,21,22 and 23 on Plan 40R-24257, being the whole of PI:-; 26613-0033 (LT). SCHEDULE "'8" THIS SCHEDULE IS SCHEDULE "B" to tbe Subdivision/Consent Agreement wbicb bas been autborized and approved by By-law No. 2007-088 of The Corporation of tbe Municipa]ity ofC]arington, enacted and passed tbe 23" day of April, 2007. Descriotion of Severed Lands Firstly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Tovmsbip of C]arington), designated as Part I on Plan 40R-24257, being tbe wbole of PIN 266]3-0] 06 Secondly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (fonnerly Geographic To\vnship of Clarington), designated as Parts 2,3 and 4 on Plan 40R-24257, being Part ofP]N 266]3-0103 Thirdly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geograpbic Tovmsbip of C]arington), designated as Parts 10 and] 1 on Plan 40R-24257, being Part of PIN 26613-0]07 Fourthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic TO\mship of Clarington), designated as Part 12 on Plan 40R-24257, being Part of PIN 26613-0035 Fifthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of C]arington), designated as Parts 15 and 16 on Plan 40R-24257, being Part of PIN 266]3-0034 Sixthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (fonnerly Geograpbic Township of C]arington), designated as Parts 19, 20 and 21 on Plan 40R-24257, being Part of PIN 26613-0033 Schedule "C " Page 1 SCHEDULE "C" THIS SCHEDULE IS SCHEDULE "C" to the Subdivision/Consent Agreement which has been authorized and approved by By-lawNo. 2007-088 of The Corporation of the Municipality of Clarington, enacted and passed the 23m day of April, 2007. Provisional Consent of the Rel!ioD of Durham Land Division Committee MINUTES AND DECISIONS DURHAM LAND DIVISION COMMITTEE As per: The Planning Act, the Durham Act and in accordance with the Provincial Rules of Procedure CONSENT APPLICATION heard on: Monday, Jan 15 2007 LD 016/2006 Submission B 003/2007 Owner Location Municipality Halloway Holdings Limited Part lot 16. Cone. 1 Municipality of Clarington (Newcastle) Consent to sever a vacant 3.22ha commercial parcel of land, retaining a 3.7ha commercial lot with a building. This application was tabled 16 January 2006 at the request of the Regional Municipality of Durham Planning Department. Me. Bryce Jordan of Sernas Associates was authorized by the agent on behalf of Halloway Holdings Limited to represent the owner at this public hearing. Me. Jordan advised the Committee that the application was tabled 16 January 2006 because Official Plan and Zoning By-law Amendments were not in place. Mr. Jordan stated that required planning instruments are now in place to permit the proposal to proceed. A letter was received 15 January 2007 from Steven A. Zakem of the law firm Aird & Berlis acting on behalf of Loblaw Properties Limited. The letter said Loblaws owns and operates a supermarket "immediately across lands owned by Halloway that are subject of this application". The concern was raised that a proposed access to Highway 2 to be shared by the subject and retained land does not align with the access to his client's property (and to Clarington Centre as a whole). The Committee noted the Municipality had received a site plan application (SPA2005-022) to ensure that development on the proposed lands can be accommodated within the larger development framework. The Municipality commented that servicing and access easements under the Planning Act will also be necessary once the site plan application is finalized. The Committee noted that the Municipality of Clarington comment referenced retail commercial policies of the Clarington Official Plan (OPA #43) and Bowmanville West Town Centre (OPA # 44) as well as enabling zoning by-laws for affected properties had been approved by Municipal Council. The comment noted that only two appeals remain to be adjudicated and that they do not interfere with approval of this application. The Committee had information reports received from: the Regional Municipality of Durham Planning and Works Departments. the Municipality of Clarington, and Central Lake Ontario Conservation. Agency comments were handed to Mr. W. Hugo/Mr. B. Jordan of Sernas Associates. Schedule "C " Page 2 DECISION OF THE COMMITTEE APPLICANT/OWNERS ARE RESPONSIBLE FOR FULFILLING ALL CONDITIONS. MOVED: J.-M. Komarnicki SECONDED: J. Hurst That application LD 016/2006 be approved as applied for. subject to: 1/ That the applicant satisfy the requirements of the Regional Municipality of Durham Works Department concerning the provision of Regional services, financial and otherwise. 21 That the applicant satisfy the requirement of the Municipality of Clarington, financial and otherwise. 3/ That the applicant satisfy item #1 of the comment received from Regional Municipality of Durham Planning Department dated 12 January 2007. 4/ That the applicant submit two copies of a registered reference plan on the subject parcel. 5/ That the consent be subject to the foilowing time periods: Last Date for fulfiiling Conditions is Friday, Jan 25 2008. Expiry Date of Appiication LD 016/2006 is Monday, Feb 25 2008. CLEARING AGENCIES 6/ That prior to the signing of the certificate by the Secretary/Treasurer that the consent has been given, the SecretarylTreasurer is to be advised in writing by the Regional Works Department that condition #1 has been carried out to its satisfaction. 7/ That prior to the signing of the certificate by the SecretarylTreasurer that the consent has been given, the SecretarylTreasurer is to be advised in writing by the Municipality of Ciarington that condition #2 has been adhered to. 8/ That prior to the signing of the certificate by the SecretarylTreasurer that the consent has been given, the SecretarylTreasurer is to be advised in writing by the Regional Municipality of Durham Planning Department that condition #3 has been adhered to. 9/ That prior to the signing of the certificate by the Secretary/Treasurer that the consent has been given, the SecretarylTreasurer has to be satisfied that the time periods outlined in condition #5 have been adhered to. CARRIED UNANIMOUSLY Signed by all members present and concurring that this is the Committee Decision of LD 016/2006 on Monday, Jan 152007. (CHAIR) (VICE CHAIR) ABSENT D. Suilivan H. Graham J. Collins L. Evans M.v. Hedge J. Hurst J. M. Komarnicki R. E. Sutton ABSENT Assistant SecretarylTreasurer Last Date of Appeal of this Decision or any of the conditions therein is Tuesday, Feb 132007. SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the Municipality of Clarington, enacted and passed the 23rd day of April, 2007. DescriDtion of Boulevard and Drivewav \Vorks The Boulevard and Driveway Works are shov,.n on the Site Services Plan Drawing No. $- 2 which is referred to in paragraph 3 of the Subdivision/Consent Agreement. Schedule "E" Page I SCHEDULE "En THIS SCHEDULE IS SCHEDULE "E" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the Municipality ofClarington. enacted and passed the 23"' day of April, 2007. BOULEVARD AND DRIVEWAY WORKS 1. Works Reauired Halloway at its expense shall construct and install the Boulevard and Driveway Works. From the date of issuance of an "Authorization to Commence Works" (as hereafter defined) until the date of issuance of a "Certificate of Acceptance" (also as hereafter defined) of them Halloway shall be fully responsible for the construction and maintenance of the Boulevard and Driveway Works including the cost thereof in accordance with the provisions of this Subdivision/Consent Agreement. After the issuance of a Certificate of Acceptance, the Works referred to in such Certificate shall be the responsibility of the Municipality. Halloway shall apply for an Authorization to Commence Works no later than the day on which the home improvement store is opened for retail sales to members of the public. 2. Hallowav's Enmneer At all times until this Subdivision/Consent Agreement is released, Halloway shall retain Halloway's Engineer who shall perform the duties set out in Schedule "H" to this Subdivision/Consent Agreement. On the execution of this Subdivision/Consent Agreement and on each occasion on which a new Halloway's Engineer is retained, forthwith after retaining Halloway's Engineer, Halloway shall give the Director written notice of the name, address and telefax number of Halloway's Engineer. No partnership, association of persons or corporation shall be retained as Halloway's Engineer without the prior written approval of the Director. All notices to be given to Halloway's Engineer are properly given if given by personal service, by telephonic facsimile communication, or first class prepaid post addressed to Halloway's Engineer at the address or telefax number provided to the Director pursuant to this paragraph. Forthwith after the Director gives Halloway written notice requiring it to do so, Halloway shall give the Director written notice advising him whether or not the approved Vendor's Engineer continues to be retained by Halloway. 3. Desim of Boulevard and Drivewav Works (1) Halloway covenants and agrees that the design of the Boulevard and Driveway Works shall conform with all applicable legislation and the Municipality's Design Criteria and Standard Detail Drawings. In the event of any dispute as to such Schedule "E" Page 2 requirements or their interpretation, the dispute shall be resolved by the Director whose decision shall be final. (2) Halloway shall provide and submit to the Director all necessary Engineering Drawings for the Boulevard and Driveway Works, Halloway shall obtain all approvals for the construction and installation of the Boulevard and Driveway Works as required by this Subdivision/Consent Agreement. 4. Enl!ineerinl! Drawino (I) Prior to the issuance of any Authorization to Commence Works, Halloway shall obtain the written approval of the Director of the original copy of all drawings of the Boulevard and Driveway Works (the "Engineering Drawings"), If construction and installation of the Boulevard and Driveway Warks has not commenced within two (2) years from the date of approval of the Engineering Drawings, the Engineering Drawings shall be resuhmitted to the Director for his reconsideration and approval after any revisions required by the Director have been made to them (the "Reapproved Engineering Drawings"), From and after the approval by the Director of the Reapproved Engineering Drawings, they shall be deemed to be the Engineering Drawings for the purpose of this Subdivision/Consent Agreement, and thereafter all Boulevard and Driveway Works shall be constructed and installed in accordance with them. Halloway hereby irrevocably assigns to the Municipality without cost to the Municipality the right to use and to reproduce the Engineering Drawings and all reports that relate in whole or in part to the Boulevard and Driveway Works which have been prepared by or for Halloway in connection with the performance of Halloway's obligations under this Subdivision/Consent Agreement. Halloway acknowledges that approval of the Engineering Drawings or reports by the Director shall not relieve Halloway from its obligation to satisfy all requirements of or made pursuant to this Subdivision/Consent Agreement. (2) Prior to the issuance of any Authorization to Commence Works, Halloway shall provide the Director without cost to the Municipality Halloway's Engineer's (I) written acknowledgement that the Engineering Drawings may be used and/or reproduced by the Municipality without cost or prior approval or permission, (2) written permission for the Municipality's officers, employees, agents, contractors and supplier to use the specifications, data, drawings, records and reports whether completed or in progress of completion in satisfaction of Halloway's obligations under the provisions of this Subdivision/Consent Agreement wi~out cost or prior approval or permission, and (3) written undertaking to deliver to the Director the original copy of the Engineering Drawings forthwith after being given mitten notice by the Director requiring Halloway's Engineer to do so, whether or not Schedule "E" Page 3 Halloway's Engineer's fees and disbursements in respect of any of them have been paid. Prior to each occasion on which a new Halloway's Engineer is retained by Halloway and approval of the Director is sought, Halloway shall provide the Director with a similar written acknowledgement and written permission of the new Halloway's Engineer, provided that if the new Halloway's Engineer is to be retained by the Director on behalf of Halloway, the Director shall obtain from the prospective Vendor's Engineer the aforesaid written acknowledgement and permission. Forthwith after the Director gives Halloway's Engineer written notice requiring them or it to do so, copies of the Engineering Drawings, computer disks, specifications, data, drawings, records and reports referred to in this paragraph shall be provided to the Director without cost to the Municipality. 5. Stauinu or Construction orWorks Not used 6. Approval of Schedule of Works Prior to the issuance of any Authorization to Commence Works respecting any of the Boulevard and Driveway Works, Halloway shall obtain the written approval of the Director of a draft schedule (the "Schedule of Works") which sets out the time at which, and the sequence in which, Halloway proposes to construct and install each of the Boulevard and Driveway Warles. 7. ADnroval of Boulevard and Drivewav Works Cost Estimates The Municipality acknowledges that the Director has approved the "Boulevard and Driveway Works Cost Estimates" contained in Schedule "I". 8. Reouirements for Authorization to Commence Works Halloway shall not commence the construction or installation of any of the Boulevard and Driveway Works without the written permission of the Municipality (the "Authorization to Commence Works"). Halloway shall only commence the construction and installation of those Boulevard and Driveway Works permitted by the Authorization to Commence Works. 9. Insoection and StOD Work Halloway shall ensure that every contract that may be made by Halloway with any contractor to construct or install any of the Boulevard and Driveway Works shall provide that employees or representatives of the Municipality may, at any time, inspect the Boulevard and Driveway Works undertaken by such contractor and shall require the Schedule "E" Page 4 contractor to comply with stop work orders given by the Director pursuant to this paragraph 9. The Director may give Halloway a written order to stop the construction or installation of any of the Boulevard and Driveway Works that is being undertaken by giving written notice either to Halloway or to Halloway's Engineer to that effect if in the Director's opinion either (1) the Boulevard and Driveway Works are not being undertaking such that a completed construction and installation of all the Boulevard and Driveway Works satisfactory to the Municipality in accordance with this Subdivision/Consent Agreement will result, or (2) the Performance Guarantee and the Security for the Maintenance Guarantee required to be provided pursuant to this Subdivision/Consent Agreement in respect of the Boulevard and Driveway Works has not been deposited or is not maintained in good standing. Halloway shall comply with the stop work order forthwith after it is given by the Director in accordance with this paragraph 9 by requiring Halloway's contractor and sub-contractors who are constructing and installing the Boulevard and Driveway Works or components thereof in question and are referenced in the order to comply with it forthwith. A stop work order may be given to Halloway by giving to Halloway's Engineer by personal service on Halloway's Engineer or any representative of Halloway's Engineer, by prepaid first class post addressed to Halloway's Engineer, or by telefax to Halloway's Engineer at the address and telefax number referred to in paragraph 2 of this Schedule. 10. Construction in Accordance with EnmneeriDl! Drawinl!S The Boulevard and Driveway Works shall he constructed and installed in accordance with the Engineering Drawings as approved by the Director. No deviation from the Engineering Drawings is permitted unless such deviation is authorized in writing by the Director before it is undertaken. All construction and installation of the Boulevard and Driveway Works shall he undertaken and carried out by Halloway or by Halloway's contractor, as the case may be, in accordance with the regulations for construction set out in Schedule "H" to this SubdivisiOn/Consent Agreement. 11. SeauenceofConstruction of Works Following the issuance of an Authorization to Commence Works, Halloway shall proceed in good faith to construct and install all of the Boulevard and Driveway Works referred to in the Authorization to Commence Works continuously and in accordance \'lith the timing and sequence therefore set out in the Schedule of Works. 12. Comoletion Time for Construction of Works Within twelve (12) months of the date of the issuance of an Authorization to Commence Works, Halloway shall complete the construction and installation of the Boulevard and Driveway Works authorized in such Authorization to Commence Works. Schedule "E" Page 5 J 3. Additional Work Until the conclusion of the Maintenance Guarantee Period referable thereto, if in the opinion of the Director, any incidental work is required to provide for the adequate operation, functioning and maintenance of any of the Boulevard and Driveway Works, Halloway, at its cost, shall construct and install such additional facilities and perform such additional work as the Director may request from time to time by written notice given to Halloway. 14. IncomDlete or Faulty Works and Liens (I) Without derogating from the other provisions of this Subdivision/Consent Agreement, if, in the opinion of the Director, (I) Halloway is not constructing and installing or causing to be constructed or installed any of the Boulevard and Driveway Works required by this Subdivision/Consent Agreement so that it or they will be completed within the time specified for such completion in the Schedule of Works, or (2) the Boulevard and Driveway Works or any component(s) thereof are being improperly constructed or installed, or (3) Halloway neglects or abandons the said Boulevard and Driveway Works or any part of them before completion, or (4) unreasonable delay occurs in the construction or installation of the Boulevard and Driveway Works, or (5) for any other reason the Boulevard and Driveway Works are not being constructed or installed properly and promptly and in full compliance with the provisions of this Subdivision/Consent Agreement, or (6) Halloway neglects or refuses to reconstruct or reinstall any of the Boulevard and Driveway Works or component(s) thereof which may be rejected by the Director as being defective, deficient or unsuitable, or (7) Halloway otherwise defaults in performance of this Subdivision/Consent Agreement, the Director may give Halloway notice in writing of his opinion respecting any such matter. Following the later to occur of the expiry of ten (10) business days, excluding Saturdays and Sundays and statutory holidays following the giving of such notice plus the expiry of any additional period as may be specified in the notice given to Halloway by the Director, the Municipality, at the cost and expense of Halloway, may engage a contractor, supplier of services or materials and such workmen, and purchase such services, supplies and/or services as in the opinion of the Director are required for the completion of the construction and installation of the Boulevard and Driveway Works and all components thereof and the performance of all covenants of Halloway relating to the Boulevard and Driveway Works as provided by this Subdivision/Consent Agreement. In cases of emergency or urgency, or in order to preserve the integrity of the Boulevard and Driveway Works or any component thereof as determined by the Director in his absolute discretion, any deficiency(s) or defect(s) in the Boulevard and Driveway Works, and any failure to complete Schedule "E" Page 6 the Boulevard and Driveway Works and all components thereof in accordance with this Subdivision/Consent Agreement may be corrected. remedied or completed by the Municipality, its contractors. suppliers and employees at the cost of Halloway without prior notice to Halloway, provided that forthwith after the Municipality so acts, the Director shall give written notice to Halloway of his determination as aforesaid, describing the action taken by the Director, and the cost of correcting or remedying the deficiency or default in question or the cost of completing the Boulevard and Driveway Works and the components thereof, as the case may be. For the purposes of this paragraph 14(1) the cost of any work which the Municipality undertakes under this paragraph 14(1) shall be determined by the Director in his absolute discretion. It is understood and agreed by the Parties that the costs for which Halloway is responsible under this paragraph 14( I) shall include a management fee payable to the Municipality either of thirty (30%) percent of the contractor's charges to the Municipality (including any charges for overhead and profit) or, if such work is undertaken by the Municipality, thirty (30%) percent of all costs incurred by the Municipality to correct or remedy the deficiencies or defect or to complete the Boulevard and Driveway Works and all components thereof as the case may be. Halloway shall pay the Municipality an amount equal to the cost of all Boulevard and Driveway Works and components thereof, and the cost of correcting or remedying all deficiencies and defects referred to in this paragraph 14(1) which have been incurred by the Municipality or are estimated in the Director's absolute discretion to be likely to be incurred by the Municipality forthwith after the Director gives Halloway "'Tillen demand for payment of such cost. If the amount paid is based on the Director's estimate as aforesaid, forthwith after actual costs are known the Director shall give Halloway written notice thereof. If the actual costs are more than the estimated costs, Halloway shall forthwith pay the Municipality an amount equal to the difference between them. If the actual costs are less than the estimated costs, the Municipality shall forthwith refund the difference between them to Halloway. (2) In the event (I) a claim for a lien in respect of the Boulevard and Driveway Works or any component thereof is registered against the title to any land vested in or which should have been vested in the Municipality or is filed with the Municipality, or (2) the Municipality receives written notice of a claim of an alleged beneficiary of a statutory trust under the Construction Lien Act, such registration, filing or notice shall constitute a default in performance by Halloway of this Subdivision/Consent Agreement. In any such case. the Director may notify Halloway in writing of such default. If Halloway fails to discharge the lien or the claim as the case may be within ten (10) business days, excluding Saturdays, Sundays and statutory holidays, after the giving of such notice plus any further Schedule "En Page 7 period of time as may be specified in the notice, then the Municipality in its absolute discretion may (1) pay the full amount of the claim and security for costs into a court of competent jurisdiction in order to obtain an order vacating such claim for lien, (2) discharge the claim in full by paying the amount claimed or in part by paying a portion thereof, or (3) draw the full amount of the claim in cash from a letter of credit deposited with the Municipality as the security for the Boulevard and Driveway Performance Guarantee and hold the cash in a deposit account of the Municipality as the security for the Boulevard and Driveway Perfonnance Guarantee in respect of the claim in question. The Municipality may draw on and appropriate the whole or any portiones) of the Performance Guarantee and the Security for the Maintenance Guarantee for the purpose of making payment under this paragraph 14(2). Halloway shall indemnifY the Municipality against the costs and expense incurred by the Municipality in making a payment pursuant to this paragraph 14(2) forthwith after the Director gives Halloway written notice requiring him to do so. In the event that the Municipality draws on and appropriate any portion of the Boulevard and Driveway Performance Guarantee or the Security for the Maintenance Guarantee for any of the aforesaid purposes, forthwith after the Director gives written notice to Halloway requiring it to do so, Halloway shall reinstate the Boulevard and Driveway Performance Guarantee and/or the Security for the Maintenance Guarantee, as the case may be, to the full arnount( s) required under the provisions of this Subdivision/Consent Agreement. 15. Acknowlede:ement Resoectinl! Emern:encv. etc. Reoain Halloway acknowledges that if in cases of emergency or urgency or in order to protect the integrity of the Boulevard and Driveway Works or any component thereof, the Director acts to correct, remedy or repair any deficiency(s) or defect(s) in the Boulevard and Driveway Works, neither on entry on the Boulevard and Driveway Works or any portion of them nor any such action by the Director or any person authorized to undertake the same by the Director shall be deemed to be an acceptance of any of the Boulevard and Driveway Works by the Municipality, nor an assumption by the Municipality of any responsibility or liability in connection therewith, or a release by the Municipality of Halloway from any of its obligations under this SubdivisiOn/Consent Agreement. J 6. Dama!!e to Existimz Senices Forthwith after written demand therefore is given by the Director to Halloway, Halloway shall pay to or to the direction of the Municipality, the cost of repairing any damage to any property or services of the Municipality, the Region, Hydro One or any utility authority or company or (the "Damaged Services") including without limiting the generality of the foregoing, any roOO(s), water, electrical, gas, telephone, cable television Schedule "E" Page 8 and sewer systems, and the cost of relocating any Damaged Services. caused by or resulting from the construction or installation of any of the Boulevard and Driveway Works, provided that all such repairs and or relocation( s) are completed to the satisfaction of the Director, the Region and Hydro One or the relevant utility authority or company which owns or is responsible for the Boulevard and Driveway Works, property or services in question. 17. Use of Boulevard and Drivewav Works bv MUDicinalitv Halloway acknowledges and agrees that any of the Boulevard and Driveway Works may be used by The Municipality and such other person(s) who is (are) authorized by the Municipality for any of the purposes for which the Boulevard and Driveway Works are designed, without interference by Halloway, and without the payment of any fee or compensation to Halloway, and for such purposes the Municipality and other person( s) authorized by the Municipality may enter upon the portion of Halloway Lands on which any of the Boulevard and Driveway Works are located. 18. Reauirements for Certificate of ComnletioD Halloway acknowledges and agrees that the construction and installation of any of the Boulevard and Driveway Works authorized in an Authorization to Commence Works shall not be deemed to be completed for the purposes of this Subdivision/Consent Agreement until the Director has provided Halloway with written certificate that such is the case (the "Certificate of Completion"). In addition to satisfYing the other requirements of this Subdivision/Consent Agreement respecting its issuance, a Certificate of Completion shall not be issued until such of the Boulevard and Driveway Works authorized by the Authorization to Commence Works for which a Certificate of Completion is required, have been inspected by the Director, and he is satisfied such Boulevard and Driveway Warks have been constructed and installed in accordance with the Engineering Drawings and has received all certificates and confirmations from Halloway's Engineer as provided for in this Subdivision/Consent Agreement. 19. Reauirements for Certificate of AcceDtance Halloway acknowledges and agrees that the none of the Boulevard and Driveway Works covered by a Certificate of Completion shall be accepted, nor deemed to be accepted for the purpose of this Subdivision/Consent Agreement until the Director has provided Halloway with written certificate that the Boulevard and Driveway Works in question have been accepted (the "Certificate of Acceptance"). If the Director is of the opinion that the Boulevard and Driveway Works in question have been properly maintained and all deficiencies and defects in such Boulevard and Driveway Works have been remedied and corrected by Halloway on behalf of the Municipality, the Director Schedule "E" Page 9 shall provide Halloway with a Certificate of Acceptance of the relevant Boulevard and Dri veway Works. 20. OwnershiD of Boulevard and Drivewav Works bv MuniciDalitv For greater certainty, Halloway acknowledges and agrees that the Municipality is the owner of all of the Boulevard and Driveway Works covered by a Certificate of Acceptance. Halloway shall have no right or claim thereto, other than as specifically agreed to between Halloway and the Municipality in writing. 21. Road Damal!e Guarantee Prior to the issuance of an Authorization to Commence Works by the Director for the construction and installation of the Boulevard and Driveway Works, Halloway shall deposit Five Thousand ($5,000.00) Dollars with the Municipality which may be drawn upon by the Municipality to indemnify itself against any cost that the Municipality incurs in repairing damage caused by Halloway to Clarington Boulevard and/or Stevens Road Extension in constructing and installing any of the Boulevard and Driveway Works. The deposit or so much of it as is not drawn upon for the aforesaid purpose shall be repaid by the Municipality to Halloway without interest when the Security for the Maintenance Guarantee of the Boulevard and Driveway Works is repaid by the Municipality to Halloway. Schedule 'IF II Page I SCHEDULE "F" THIS SCHEDULE IS SCHEDULE "F" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the Municipality of Clarington, enacted and passed the 23'" day of April, 2007. BOULEVARD AND DRIVEWAY WORKS PERFORMANCE AND MAINTENANCE GUARANTEE 1. Boulevard and Drivewav Works Performance Guarantee Reauired (a) Prior to the date of issuance of any Authorization to Commence Work, Halloway shall deposit with the Municipality, cash or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule "I" of the Bank Act, acceptable to the Municipality's Director of Finance!freasurer, and containing terms satisfactory to the Municipality's Director of Financeffreasurer ("Boulevard and Driveway Works Performance Guarantee"). The Boulevard and Driveway Works Perfonnance Guarantee shall be in the amount detennined by the Director to be the amount required to secure to the Municipality the perfonnance by Halloway of its covenants contained in this Subdivision/Consent Agreement to construct and install the Boulevard and Driveway Works. (b) Without limiting the generality of the foregoing, in making his determination, the Director shall have regard for the "Boulevard and Driveway Works Cost Estimate" or the "Revised Boulevard and Driveway Works Cost Estimate" (both tenns as hereafter defined) whichever is applicable, for the construction and installation of the Boulevard and Driveway Works which either application has been made by Halloway to the Director for the issuance of an Authorization to Commence Works or an Authorization to Commence Works has been issued by the Director. (c) If from time to time following the issuance of any Authorization to Commence Works the Director is of the opinion that the amount of the Boulevard and Driveway Works Performance Guarantee should be increased in order to protect the Municipality's interests under this Subdivision/Consent Agreement, the Director shall consider and. acting reasonably, approve a Boulevard and Driveway Revised Works Cost Estimate which on his approval shall be deemed to be the Boulevard and Driveway Works Cost Estimate for the purposes of this Subdivision/Consent Agreement. Forthwith after the Director approves a Boulevard and Driveway Revised Works Cost Estimate, he shall give to Halloway written notice of his decision and a copy of the Boulevard and Schedule "F " Page 2 Driveway Revised Works Cost Estimate. Halloway shall deposit with the Municipality cash or an unconditional and irrevocable letter of credit in such amount issued by a bank listed in Schedule "I" of the Bank Act that is acceptable to the Municipality's Director of Financeffreasurer and which contains terms satisfactory to the Municipality's Director of Finance/Treasurer. (d) In the event that Halloway does not increase the amount of the Boulevard and Driveway Works Performance Guarantee for a period of thirty (30) days following the giving of written notice by the Director to Halloway requiring an increase in the amount of the Boulevard and Driveway Works Performance Guarantee, any Authorization to Commence Work that has been issued shall terminate. (e) The Director shall give Halloway written notice that the Boulevard and Driveway Works have been completed. No later than the expiry of the ten (10) day period following the date on which this written notice is given to Halloway of the as-constructed costs of the Boulevard and Driveway Works. If the as-constructed costs of these Boulevard and Driveway Works as determined by the Director ("As-Constructed Costs') exceeds the then current Boulevard and Driveway Work Cost Estimate, forthwith after written demand is given to it by the Director, Halloway shall pay to the Municipality any amount by which such As-Constructed Costs exceeds the then current Boulevard and Driveway Works Cost Estimate of the As-Constructed Costs of the Boulevard and Driveway Works. 2. Use of Boulevard and Drivewav Works Performance Guarantee (a) From time to time the Municipality may appropriate the whole or anyone or more portions of the Boulevard and Driveway Works Performance Guarantee up to an amount(s) determined by the Director, which in aggregate shall not exceed the amount(s) which in the opinion of the Director is required to remedy Halloway's breach(es) or default(s) of or under the provisions of the Subdivision/Consent Agreement. Forthwith after making each such appropriation, the Director shall give Halloway written notice thereof and Halloway shall forthwith reinstate the Boulevard and Driveway Works Performance Guarantee to the full amount required by this SubdivisiOn/Consent Agreement. (b) If the whole or any portion of the Boulevard and Driveway Works Performance Guarantee is appropriated by the Municipality as aforesaid and is not fully expended by the Municipality, Halloway agrees with the Schedule "F " Page 3 Municipality that Halloway will not require the Municipality to pay interest on any portion of it for the period in which it is held by the Municipality and deposited by the Municipality in an interest bearing account in the name of the Municipality, in the event that an amount equal to the appropriate or any part of it is paid by the Municipality either to Halloway, to the bank which issued the letter of credit for deposit as the Boulevard and Driveway Works Performance Guarantee, as directed by Halloway or the bank, as the case may be. 3. Indemnification of Municinalitv Halloway shall defend, indemnity and save the Municipality harmless from and against all actions, claims, liabilities, losses, damages and expenses including reasonable legal fees which arise by reason of or are caused in whole or in part by the making and/or the implementation of this Subdivision/Consent Agreement, or the design, construction and installation, supervision of construction and installation, inspection, and/or maintenance of the Boulevard and Driveway Works by Halloway, its employees, contractors, suppliers of services or materials, Halloway's Engineer, Halloway's Engineer's employees, and Halloway's licensees. 4. Insurance Halloway shall obtain and maintain and deposit the proof thereof as required by and in accordance with Schedule "J" of this Subdivision/Consent Agreement. 5. Maintenance Guarantee Reouired (]) From the date of issuance of an Authorization to Commence Boulevard and Driveway Works until the date of issuance of a Certificate of Acceptance of the Boulevard and Driveway Works or particular component(s) of the Boulevard and Driveway Works, Halloway agrees with the Municipality to promptly correct, remedy, repair or replace any portion or component of the Boulevard and Driveway Works in question that the Director determines to be defective or deficient having regard to the provisions of this Subdivision/Consent Agreement at Halloway's cost (the "Maintenance Guarantee"). The amount of the required Maintenance Guarantee shall be determined in accordance with paragraph 5(1) of this Schedule. Halloway shall be given written notice of any such deficiency or defect by the Director forthwith after he identifies the same. Halloway shall deposit or leave on deposit with the Municipality, cash or an irrevocable and unconditional letter of credit by a bank listed in Schedule "I" of the Bank Act acceptable to the Municipality's Director of Financeffreasurer and containing terms satisfactory to the Municipality's Director of Financeffreasurer, as security for the Maintenance Guarantee (the "Security for the Maintenance Guarantee"). Schedule "F " Page 4 (2) The Maintenance Guarantee expires on the later to occur of (i) the date of issuance of the Certificate of Acceptance of the Boulevard and Driveway Works, and (2) the day which commences on the date of the issuance of the Certificate of Completion of the Boulevard and Driveway Works and is two (2) years following the date of its commencement. 6. Use of Maintenance Guarantee From time to time, the Municipality may appropriate the whoie or any part of the Security for the Maintenance Guarantee if Halloway fails to pay any cost(s) payabie by Halloway to the Municipality under this Subdivision/Consent Agreement. The amount(s) of such appropriation shall not exceed the amount(s) which in the opinion of the Director are required to remedy Halloway's breach(es) or default(s) as determined by the Director of correcting or remedying a deficiency(s) or defect(s) in the Boulevard and Driveway Werks or a portion or component thereof, which is covered by the Maintenance Guarantee and is in question. Forthwith after the Municipality makes any such appropriation, the Director shall give Halloway written notice thereof. Forthwith, after the giving of such notices, Halloway shall restore the Security for the Maintenance Guarantee to the full amount required by this Subdivision/Consent Agreement. 7. Reduction and Release of Boulevard and Drivewav Works Performance Guarantee (a) Prior to the release of the Boulevard and Driveway Works Performance Guarantee, in the discretion of the Director, the amount of the Boulevard and Driveway Works Performance Guarantee may be reduced, from time to time, to reflect the progress of completion of the Boulevard and Driveway Works and other facilities and improvements which are required to be constructed and installed by Halloway after taking into account any outstanding claims the satisfaction of which is provided for in this Subdivision/Consent Agreement. The maximum reduction that may be permitted to be made by the Director is such that will leave on deposit with the Municipality as the Boulevard and Driveway Works Performance Guarantee is the amount equal to the sum of (i) the value of the uncompleted Boulevard and Driveway Works as determined by the Director having regard for the Boulevard and Driveway Works Cost Estimate then in force plus any amount determined by the Director but not to exceed twenty (20%) percent of such value as a completion allowance payable to the Municipality, and (2) as the Maintenance Guarantee fifteen (15%) percent of the value of the completed Boulevard and Driveway Works, also determined by the Director after considering the material, if any, submitted to the Director by Halloway's Engineer in support of an Schedule "F .. Page 5 application for reduction of the BouJevw-d and Driveway Works Performance Guarantee in respect of the Boulevard and Driveway Works that have been completed by Halloway as well as the contract documents, sub-contracts and supply contracts pertaining to the Boulevard and Driveway Works and the provisions of the Construction Lien Act. (b) Halloway will not require the Municipality to release to Halloway any unused portion of the Boulevard and Driveway Works Performance Guarantee until each of the following conditions is satisfied: (i) A Certificate of Completion has been issued for the Boulevard and Driveway Works for which the Boulevard and Driveway Works Perfonnance Guarantee was initially required to be deposited with the Municipality. (ii) Halloway has depcsited or has left on deposit with the Municipality the Maintenance Guarantee applying to the Boulevard and Driveway Works for which the Boulevard and Driveway Works Performance Guarantee initially was required to be deposited with the Municipality. (iii) The Director is satisfied that in respect of the construction and installation of the Boulevard and Driveway Works for which such Boulevard and Driveway Works Performance Guarantee was initially required to be deposited with the Municipality, there are no outstanding claims relating to such Boulevard and Driveway Works. (iv) The Municipality is satisfied that there are no outstanding claims relating to the Boulevard and Driveway Works which the Municipality is required or may be permitted to pay either under the provisions of the Construction Lien Act or othenvise. (v) The Municipality is satisfied that Halloway is not in breach of any of its covenants contained in this SubdivisiOn/Consent Agreement. 8. Reduction and Release of Maintenance Guarantee Halloway will not require the Municipality to release to Halloway the Security for the Maintenance Guarantee until each of the following conditions is satisfied: Schedule "F " Page 6 (a) A Certificate of Acceptance has been issued for the Boulevard illId Driveway Works for which such Maintenance Guarantee is required Wlder this Subdivision/Consent Agreement. (b) The Municipality is satisfied that there are not outstanding claims relating to such Boulevard and Driveway Works which the Municipality is required or may be permitted to pay either under the provisions of the Construction Lien Act or otherwise. (c) The Municipality is satisfied that Halloway is not in breach of any of its covenants contained in this Subdivision/Consent Agreement. (d) The Director has received the as-constructed drawings for such Boulevard and Driveway Works from Halloway as well as the computer disks, if any, have been prepared by Halloway's Engineer. 9. {Junaid Monies Except as otherwise provided in this Subdivision/Consent Agreement, the due date of any money payable under it, unless a different due date is specified in this Subdivision/Consent Agreement, shall be thirty (30) days after the date of the giving of the written invoice to Halloway. Interest shall be calculated and be paid by Halloway to the Municipality on all sums of money of which Halloway is in default at the same rate, and in the same manner, and at the same time as is the case with Municipality taxes which are in arrears at the date on which the default in question commences, Schedule "G" Page 1 SCHEDULE "G" THIS SCHEDULE IS SCHEDULE "G" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the Municipality ofClarington, enacted and passed the 23"' day of April, 2007. DUTIES OF HALLOWAY'S ENGINEER 1. RESPONSIBILITY FOR DESIGN ETC. In addition to the other requirements of this Subdivision/Consent Agreement, Halloway's Engineer shall prepare all drawings, plans, studies, reports, estimates, calculations and documentation for the consideration and approval of the Director. The approval of the Director shall not absolve or release Halloway or Halloway's Engineer of the responsibility and liability for any errors or omissions in the above drawings, plans, reports, stages or documentation or from liability for any damage or loss caused or resulting directly or indirectly by Halloway's Engineer. 2. REPRESENT HALLOWAY AND OBTAIN MUNICIPALITY APPROVALS Halloway's Engineer is hereby authorized by Halloway to act as Halloway's representative in all matters pertaining to the design, construction and installation of the Boulevard and Driveway Works and the overall management of the development, and shall cc-operate with the Municipality and the Director to protect the interests of the Municipality and the general public in all matters relating to the design, construction and installation of the Boulevard and Driveway Works, 3. PROVIDE RESIDENT SUPERVISION Halloway's Engineer shall provide fully qualified, experienced supervisory layout and inspection staff, acceptable to the Director, to provide continuous inspection service during all phases of the construction and installation of the Boulevard and Driveway Works. Without limiting the generality of the foregoing, Halloway's Engineer shall be responsible for the following: (aJ To carry out or arrange for the carrying out by qualified personnel offield layout including the provision of line and grade to the contractors and, where required, restaking, Schedule "0" Page 2 (b) To thoroughly iuspect the construction, installation, and supply of materials to ensure that all work is being performed in accordance with the Engineering Drawings, the Municipality's Design Criteria and Standard Drawings, and applicable plans of survey, as the case may be, and all applicable law. Halloway's Engineer shall have the authority and responsibility to immediately stop and/or reject any work, procedure, or material which in his opinion does not comply with the Engineering Drawings, the Municipality's Design Criteria and Standard Drawings, the applicable plans of survey and/or the applicable law. (c) To provide co-ordination and scheduling of the ccnstruction and installation of the Boulevard and Driveway Works in accordance with the timing provisions contained in this Subdivision/Consent Agreement and the requirements of the Director. (d) To investigate and immediately report to the Director any unusual circumstances, potential problems, conflicts, errors. defective work or material which may arise during the construction and installation of the Boulevard and Driveway Works. (e) To obtain field information during and upon completion of the construction and installation of the Boulevard and Driveway Works required to modify the Engineering Drawings to produce the as- constructed drawings of the Boulevard and Driveway Works. 4. MAINTAIN RECORDS Halloway's Engineer shall maintain all records. data. reports. approvals and orders pertaining to the construction and installation including all contract documents, sub-contracts and supply contracts, payment certificates, payment records and receipts, certificates of substantial performance, the names and addresses of all contractors, sub-contractors and suppliers of. materials and services, certificates of completion of sub-contracts and proof of service and publication thereof in accordance with the provisions of applicable legislation and make all of the foregoing available for examination by the Director as required by the Director without cost. If any change is made in the terms of a contract, sub- contract or supply contract or in the name or address of a contractor, sub- contractor and supplier from information that may not have been provided to the Director by Halloway or Halloway's Engineer pursuant to this Subdivision/Consent Agreement, Halloway's Engineer immediately after becoming apprised of each change shall give the Director written notice of it. Schedule "H" Page I SCHEDULE "H" THIS SCHEDULE IS SCHEDULE "H" to the Subdivision/Conseot Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the Municipality ofClarington, enacted and passed the 23'" day of April, 2007. REGULATIONS FOR CONSTRUCTION 1. RESPONSIBILITY FOR DESIGN All work pursuant to and associated with this Subdivision/Consent Agreement shall be carried out in strict conformity with all approved Engineering Drawings, the Municipality's Design Criteria, Standard Drawings and Specifications or any revisions thereof and all applicable legislation, in addition to any requirements set out in this Subdivision/Consent Agreement. 2. SAFETY Halloway shall ensure that all construction pursuant to and associated with this Subdivision/Consent Agreement is carried out in conformance with the Occupational Health and Safety Act, and other applicable legislation. 3. PERMITS AND APPROVALS Halloway shall ensure that any and all permits and approvals required to install or construct or prepare to install or construct any of the Boulevard and Driveway Works pursuant to or associated with any part of this Subdivision/Consent Agreement have in fact obtained and are valid and in good standing. 4. REOUlREMENTS FOR BLASTING Not Used. 5. REMOVAL OF TOPSOIL Halloway shall not remove any topsoil from the Halloway Lands except for construction purpose and such topsoil must remain within the limits of the Halloway Lands unless otherwise approved by the Director. Schedule "H" Page 2 6. DUMPING OF FILL OR DEBRIS Halloway agrees to neither dump, nor permit to be dumped, any fill or debris, on nor to remove, or permit to be removed any fill from any part of the Halloway Lands to be dedicated to the Municipality other than the roads within the limits of the Halloway Lands, without the written consent of the Director. 7. DISPOSAL OR CONSTRUCTION GARBAGE Halloway shall remove and dispose of all construction garbage and debris from the Halloway Lands in an orderly and sanitary fashion in a dump site off the Halloway Lands and approved by the Director. The Municipality shall not be responsible for the removal or disposal of garbage and debris. Without derogating from the foregoing provisions of this paragraph, if Halloway fails to remove construction garbage or debris from the Property for a period of three (3) consecutive days following the giving of written notice by the Director to Halloway requiring it to do so, the Director may cause the construction garbage or debris to be removed to and disposed of in the aforesaid dumping site at the expense of Halloway. Forthwith after the Director gives written notice to Halloway requiring it to pay for the costs incurred in removing and disposing of the construction garbage or debris, Halloway shall pay the Municipality the amount of money for it is invoiced. B. OUALITATIVE AND OUANTITATIVE TESTS Not used. 9. WEED AND RAT CONTROL After the commencement of construction Halloway shall institute upon the Halloway Lands a program of weed and rat control to the satisfaction of the Director. Schedule '"I" Page I SCHEDULE "I" THIS SCHEDULE IS SCHEDULE "I" to the Subdivision/Consent Agreement which has been authorized and approved by By-law No. 2007-088 of The Corporation of the Municipality of Clarington, enacted and passed the 23 ,d day of April, 2007. Boulevard and Drivewav Works Cost Estimate Halloway Holdings Ltd. Bowmanville West Main Central Area Cost Estimate-Clarington Blvd Works and Restoration and Stevens Rd Entrance April 3.2007 Item Unit P"", Quantity Cost 1.0 Clarington Boulevard - Parking Island Restoration 1.1 Remove ex Mountable Island (incl concrete curb and asphalt surface) M2 $30.00 120.0 $3,600.00 1.3 Reinstate Concrete Curb and Gutter (incllap joint and asphalt infill) m $120.00 45.0 $ 5,400.00 1.4 Install Decorative Light POle(ind pole base and connect to ex wiring) .aoh $ 6,500.00 1.0 $ 6,500.00 15 Brick Boulevard (incl bedding) M2 $ 85.00 120.0 $ 10,200.00 1.6 Street Tree r:Jw with Ornamental Grate each $ 800.00 1.0 $800.00 Sub-Total $ 26,500.00 2.0 Clarington Boulevard - Parking Bump Out Construction 2.1 Remove ex Curb and Gutter and Asphalt M2 $30.00 65.0 $1,950.00 22 Reinstate Concrete Curb and Gutter (incllap joint and asphalt infill) m $120.00 25.0 $3,000.00 Sub-Total $ 4,950.00 3.0 Clarington Boulevard - Boulevard Works 31 1.80m Concrete Sidewalk m $70.00 70.0 $ 4,900.00 32 Brick Boulevard (ind bedding) M2 $85.00 60.0 $ 5,100.00 33 S1reet Tree clw with Ornamental Grate each $ 800.00 40 $ 3,200.00 Sub-Total $ 13,200.00 4.0 Stevens Road - Driveway Entrance 4.1 Granular '8' (300mm) M3 $30.00 30.0 $900.00 4.2 Granular 'A' (150mm) M3 $45.00 13.0 $585.00 4.3 HIB Asphalt (BOmm) t $65.00 17.0 $1,105.00 44 HI3 Asphalt (40mm) $75.00 8.5 $ 637.50 4.5 Concrete Curb and Gutter m $ 65.00 25.0 $ 1,625.00 4.6 150mm Underdrain m $ 15.00 25.0 $375.00 Sub-Total $5,227.50 Schedule "I" Page 2 5.0 Summary. Construction Costs 5.1 Claringlon Boulevard - Parking Island Restoration $ 26,500.00 5.2 Clarington Boulevard - Parking Bump Out Construction $ 4,950.00 5.3 Clarington Boulevard ~ Boulevard Works $ 13,200.00 54 Stevens Road - Driveway Entrance $5,227.50 Sub-Total $49,877.50 55 5% Contingencies $2,493.88 Sub-Total $52,371.38 5.6 10% Engineering $5,237.14 Sub-Total $ 57,608.51 5.7 6% GST $3,456.51 5.8 T atal Estimated Construction Costs $ 61,065.02 ASSUMPTION AGREEMENT PRINCIPLES OF UNDERSTANDING THIS ASSUMPTION AGREEMENT made as of the 23" day of April, 2007. BET WEE N: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - and- HOME DEPOT HOLDINGS INC. (hereinafter called "Home Depot") OF THE SECOND PART ~ and- HALLOWAY HOLDINGS LIMITED (hereinafter called "Halloway") OF THE THIRD PART WHEREAS: A Halloway and the Municipality entered into Principles of Understanding ("Halloway Principles") dated March 1, 2006. The Halloway Principles are registered as Instrument No. DR513890 in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). B. The lands to which the Halloway Principles apply are more particularly described in Schedule "A" hereto ("Halloway Lands"). C. The lands to which this Assumption Agreement applies are the portion of the Halloway Lands more particularly described in Schedule "8" hereto ("Severed Lands"). Attachment 4 To PSD-048-07 - 2- D. On January 15, 2007, the Regional Municipality of Durham's Land Division Committee under its flle LD016/2006 gave its provisional consent ("Provisional Consent") under section 53 of the Planning Act, R.S.O. 1990, c.P.13, as amended, to the transfer by Halloway of the part of the Halloway Lands referred to herein a the "Severed Lands", A copy of the Provisional Consent is contained in Schedule "e" to the Subdivision/Consent Agreement dated April 23, 2007 between the Municipality and Halloway which is registered in the Land Registry Office as Instrument No. ("Subdivision/Consent Agreement"). (The portion of the Halloway lands that is not within the Severed Lands is referred to hereinafter as the "Retained Lands".) E. Halloway intends to transfer the Severed Lands to Home Depot in fee simple reserving therefrom certain easements which are intended to be appurtenant to the remaining portion of the Hallo\\'ay Lands the title to which is vested in Halloway ("Retained Lands"). Halloway also intends to transfer to Home Depot certain easements in the Retained Lands which are intended to be appurtenant to the Severed Lands. f. This Assumption Agreement is made pursuant to paragraph 16 of the Halloway Principles. G. The execution of this Assumption Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By~law 2007-089 passed by the Municipality's Council at its meeting on April 23, 2007. NOW THEREFORE in consideration ofthe 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: HALLOWAY PRINCIPU:S 1. The parties acknowledge that the Halloway Principles cannot be unwound pursuant to paragraph 2 thereof and that they cannot be terminated pursuant to paragraph 22 thereof Consequently, the parties acknowledge that the Halloway Principles are in full force and effect. - 3 - SeSOIVISION/CONSENT AGREEMENT 2. The parties acknowledge that the Subdivision/Consent Agreement made between the Municipality and Halloway satisfies the requirements of paragraph 4 of the Halloway Principles. PARAGRAPHS 8 AND 10 OF THE HALLOWAY PRINCIPLES 3. The parties acknowledge that the requirements of paragraphs 8 and 10 of the Halloway Principles, including without limitation the payment by Halloway to the Municipality of the sum of Two Hundred Thousand ($200,000.00) Dollars referred to in paragraph 8 of the Halloway Principles, have been satisfied. PRIVATE ApPEALS TO THE ONTARIO MUNICIPAL BOARD 4. The parties acknowledge that Halloway's appeals to the Ontario Municipal Board which are referred to in paragraph 18 of the Halloway Principles have been withdrawn by Halloway and that the requirements ofthe aforesaid paragraph 18 have been satisfied. P A Y:\fEI"TS TO THE MUNICIPALITY TO ASSIST BIAs AND/OR TO IMPLEMEI"T COMMUNITY IMPROVEME:'IlT PLAN 5. The Municipality acknowledges that Halloway has paid the sum of Seventy Thousand ($70,000.00) Dollars to the Municipality pursuant to paragraph 2J(d) of the Halloway Principles and that the obligations of Halloway to the Municipality pursuant to paragraphs 21(a), (b), (cj and (d) have been satisfied. ASSUMPTION OF OBLIGATIONS BY HOME DEPOT 6. Without derogating from the provisions of paragraphs 3, 4 and 5 of this Assumption Agreement., pursuant to paragraph ]2(a) of the Halloway Principles, Home Depot hereby assumes all of Halloway's obligations to the Municipality under the provisions of the Halloway Principles, including without limitation the obligations under paragraph ]6 of the Halloway Principles, as Halloway's obligations apply to or in respect of the Severed Lands. REGISTRATIO:'ll OF ASSUMPTION AGREEMENT ON TITLE 7. Home Depot hereby consents to the registration of a Notice of this Agreement on the Title to the Severed Lands. - 4- FURTHER ASSURANCES 8. The parties hereto covenant and agree, after a request in writing by any party to the other parties, 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 these presents, and to effect the registration against and release from title to the lands subject to this Assumption Agreement of such notices or other instruments in accordance with the provisions of this Assumption Agreement. HALLOWAY PRINCIPLES AND SUBDlVISION/CO:'\lSENT AGREEMENT 9. Except as otherwise expressly provided in this Assumption Agreement, nothing contained in this Assumption Agreement shall derogate or shall be deemed to derogate from the provisions of any of the Halloway Principles dated March 1, 2006, and the Subdivision/Consent Agreement, and the Site Plan Agreement made between the Municipality and Halloway dated April 23, 2007. Time shall be and continue to be of the essence of each of these Agreements. ENLREMENT 10. This Assumption Agreement shall enure to the benefit of and be bind the parties hereto, their respective successors and assigns. LA \"S OF OI\"TARIO ApPLY 11. The parties agree that this Assumption Agreement shall be interpreted, applied and enforced in accordance with the laws of the Province of Ontario and without limiting the generality of the foregoing, the laws of the Province of Ontario shall be applied to determine the rights and duties of the parties hereunder. NOTICE 12. 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 Halloway and/or to Home Depot by this Assumption Agreement, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON LIe 3A6 Attention: Director of Planning Services Fax: 905-623-0830 - 5- OR, Horne Depot: cia Home Depot U.S.A. Inc. 2455 Paces Ferrv Road North West Building C, 20th.Floor Atlanta, Georgia 30339 U.S.A. Attention: Mike McGuire, Vice President Real Estate Law OR, Halloway: 177 Nonquon Road. 20" Floor Ohsawa, ON LlG 3S2 or such other telefax number or address of which aoy party has notified the other parties in writing. Any such notice if mailed by ftrst class prepaid post or delivered shall be deemed good and sufficient notice under the terms of this Assumption Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. 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 MAJEllRE 13. In this Assumption Agreement, the term "Force Majeure" means any delay for the duration of the delay ,,,,-hich 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, fife 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 Home Depot and Halloway, none of which has been caused by the deliberate default or act or omission by such parties and none of which has been avoidable by the exercise of reasonable effort or foresight by such parties. Ho me Depot, Halloway or the Municipality, as the case may be, shall notifY the other parties to this Assumption Agreement ofthe commencement, duration and consequence (so far as the same is within the knowledge of Halloway or the Municipality, as the case may be) of any Force - 6- Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. 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 oftheir proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED THE CORPORA nON OF THE MUNICIPALITY OF CLARINGTON In the presence of: Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the Corporation. HOME DEPOT HOLDINGS INe. Thomas K. Anderson, Corporate Counsel- Real Estate Law I have authority to bind the Corporation. HALLOWAY HOLDINGS LIMITED Name: Title: Name: Title: IIW e have authority to bind the Corporation. SCHEDULE "A'l Leilal Descriotion of the Hallowav Lands Firstly: Part of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 2, 3, 4, 5 and 6 on Plan 40R-24257, being the whole of PIN 26613-0103 (LT). Secondly: Part of Lot 16 Concession 1 in the Municipality ofClarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Part I on Plan 40R-24257, being the whole of PIN 26613-0106(LT). Thirdly: Part of Lot 16 Concession 1 in the Municipality of Cia ring ton, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 7, 8, 9, 10 and lion Plan 40R-24257, being the whole of PIN 26613-0107(LT). Fourthly: Part of Lot 16 Concession 1 in the Municipality of Cia ring ton, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 12 and 13 on Plan 40R-24257, being the whole of PIN 26613-0035 (LT). Fifthly: Part of Lot 16 Concession 1 in the Municipality of Clarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 14, 15, 16, 17 and 18 on Plan 40R-24257, being the whole of PIN 26613-0034 (LT). Sixthly: Part of Lot 16 Concession I in the Municipality ofClarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 19, 20, 21, 22 and 23 on Plan 40R-24257, being the whole of PIN 26613-0033 (LT). SCHEDULE "B" Descriotion of Severed Lands Firstly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Parl I on Plan 40R-24257, being the whole or PIN 26613-0106 Secondly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Parts 2, 3 and 4 on Plan 40R-24257, being Part or PIN 26613-0103 Thirdly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Parts 10 and lion Plan 40R-24257, being Part or PIN 26613-0107 Fourth!y: Part of Lot 16 Concession I in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Part 12 on Plan 40R-24257, being Part of PIN 26613-0035 Fifthly: Part of Lot 16 Concession I in the Regional Municipality of Durham (formerly Geographic Township of Cia ring ton), designated as Parts 15 and 16 on Plan 40R-24257, being Part or PIN 26613-0034 Sixthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township or Clarington), designated as Parts 19, 20 and 21 on Plan 40R-24257, being Part orPIN 26613-0033 N ;\r-cstatc\matters\070704\.\hin Matters\BowmanvillelAgreemenlslAssumption Agreement - Principles of UnderstandinglAssumption Agr-v5 lfinal)doc ASSUMPTION AGREEMENT STEVENS ROAD EXTENSION AGREEMENT THIS ASSUMPTION AGREEMENT made as ofthe 23" day of April, 2007. Il E T WEE N: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - ard- HOME DEPOT HOLDINGS INC. (hereinafter called "Home Depot") OF THE SECOND PART - and- HALLOW A Y HOLDINGS LIMITED (hereinafter called "Halloway") OF THE THIRD PART WHEREAS, A. Halloway and the Municipality entered into Principles of Understanding ("Halloway Principles") dated March 1, 2006. The Halloway Principles are registered as Instrument No. DR513890 in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office"). B. The lands to which the Halloway Principles apply are more particularly described in Schedule "A" hereto ("Halloway Lands"). C. The Stevens Road Extension Agreement dated March 1, 2006 has been executed by the ;v1unicipality, Halloway, Players Business Park Ltd. and West Diamond Properties Inc. A copy of it is contained in Schedule ;'E" of the Halloway Principles. Attachment 5 To PSD-048-07 - 2- D. The lands to which this Assumption Agreement applies are the portion of the Halloway Lands more particularly described in Schedule "B" hereto ("Severed Lands"). E. On January 15, 2007, the Regional Municipality of Durham's Land Division Committee under its file LD016/2006 gave its provisional consent ("Provisional Consent") under section 53 of the Planning Act, RS.O. 1990, c.P.13, as amended, to the transfer by Halloway of the part of the Halloway Lands referred to herein a the "Severed Lands", A copy of the Provisional Consent is contained in Schedule "C" to the Subdivision/Consent Agreement dated April 23, 2007 between the Municipality and Halloway which is registered in the Land Registry Office as Instrument No. ('"Subdivision/Consent Agreement"). (The portion of the Halloway lands that is not within the Severed Lands is referred to hereinafter as the "Retained Lands".) F. HaHoway intends to transfer the Severed Lands to Home Depot in fee simple reserving therefrom certain easements which are intended to be appurtenant to the remaining portion of the Halloway Lands the title to which is vested in Halloway ("Retained Lands"). Halloway also intends to transfer to Home Depot certain easements in the Retained Lands which are intended to be appurtenant to the Severed Lands. G. This Assumption Agreement is made pursuant to paragraph 19 of the Stevens Road Extension Agreement. } I. The execution of this Assumption Agreement by the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington is authorized by By-law 2007-090 passed by the Municipality's Council at its meeting on April 23, 2007. 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: - 3- UNWINDIl"G OR TER.\fINA nON 1. The parties acknowledge that the Stevens Road Extension Agreement cannot be unwound or terminated by Halloway pursuant to paragraph 22 of that Agreement. Consequently, the parties acknowledge that it is in full force and effect. ASSU'fPTION OF OBLIGA nONS BY HOME DEPOT 2. Pursuant to paragraph 19(a) of the Stevens Road Extension Agreement, Home Depot hereby assumes joint and several liability with Halloway to the Municipality for the performance of Halloway's obligations to the Municipality under the provisions of the Stevens Road Extension Agreement including without limitation, Halloway's obligations under paragraph 19 thereof insofar as paragraph 19 applies in respect of the Severed Lands. REGISTRATION OF ASSUMPTION AGREEMENT ON TITLE 3. Home Depot hereby consents to the registration ofa Notice of this Agreement on the title to the Severed Lands. FrRTHER ASSURANCES 4. The parties hereto covenant and agree, after a request in writing by any party to the other parties, 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 these presents, and to effect the registration against and release from title to the lands subject to this Assumption Agreement of such notices or other instruments in accordance with the provisions of this Assumption Agreement. HALLO\YA Y PRlNCIPLES A~D SUBDIVJSION/CO~SENT AGREEMENT 5. Except as otherwise expressly provided in this Assumption Agreement, nothing contained in this Assumption Agreement shall derogate or shall be deemed to derogate from the provisions of any of the Halloway Principles dated March I, 2006, and the Subdivision/Consent Agreement, and the Site Plan Agreement made between the Municipality and Halloway dated April 23, 2007. Time shall be and continue to be ofthe essence of each of these Agreements. - 4- ENLREMENT 6. This A..ssumption Agreement shall enure to the benefit of and be bind the parties hereto, their respective successors and assigns. LA\\'S OF OJ"t,TARIO ApPLY 7. The parties agree that this Assumption Agreement shall be interpreted, applied and enforced in accordance with the laws of the Province of Ontario and without limiting the generality of the foregoing, the laws of the Province of Ontario shall be applied to determine the rights and duties of the parties hereunder. NOTICE 8. 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 Halloway and/or to Home Depot by this Assumption Agreement, such notice shall be mailed by first class prepaid post, mailed by first class registered prepaid post, or delivered to: The Municipality: The Municipality of Clarington 40 Temperance Street Bowmanville, ON Ll C 3A6 Attention: Director of Planning Services Fax: 905-623-0830 OR, Home Depot: cIa Home Depot U.S.A. Inc. 2455 Paces Ferry Road North West Building C, 20th Floor Atlanta, Georgia 30339 U.S.A Attention: Mike McGuire, Vice President Real Estate Law OR, Halloway: 177 Nonquon Road. 20th Floor Ohsawa, ON LIG 3S2 or such other address of which any party has notified the other parties in writing. Any such notice if mailed by first class prepaid post or delivered shall be deemed good and sufficient notice under the terms of this Assumption Agreement on the day on which it is received, if it is delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) otherwise such notice shall be deemed to be received on the next following business day (excluding Saturdays, Sundays and statutory holidays) after the day on which in fact it was delivered. If such notice is mailed by first class prepaid registered mail, it shall be deemed to have been received on the third business - 5- day (excluding Saturdays, Sundays and statutory holidays) following the day on which it is mailed. 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 9. In this Assumption 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 Home Depot and Halloway, none of which has been caused by the deliberate default or act or omission by such parties and none of which has been avoidable by the exercise of reasonable effort or foresight by such parties. Ho me Depot, Halloway or the Municipality, as the case may be, shall notify the other parties to this Assumption Agreement of the commencement, duration and consequence (so far as the same is within the knov,rledge of Halloway or the Municipality, as the case may be) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of gaining such knowledge. 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: - 6- ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Jim Abernethy, Mayor Patti L. Barrie, Municipal Clerk We have authority to bind the CorporatioIL HOME DEPOT HOLDINGS INC. Thomas K. Anderson, Corporate Counsel- Real Estate Law I have authority to bind the Corporation. HALLOWAY HOLDINGS LIMITED Name: Title: Name: Title: I1We have authority to bind the Corporation. SCHEDULE "An Lel!al DescriDtion ofthe Hallowav Lands Firstly: Part of Lot 16 Concession 1 in the Municipality ofClarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 2, 3, 4, 5 and 6 on Plan 40R-24257, being the whole of PIN 26613-0103 (L T). Secondly: Part of Lot 16 Concession I in the Municipality ofClarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Part I on Plan 40R-24257, being the whole of PIN 26613-0106(L T). Thirdly: Part of Lot 16 Concession 1 in the Municipality of CIa ring ton, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 7, 8, 9, 10 and lion Plan 40R-24257, being the whole of PIN 26613-0J07(L T). Fourthly: Part of Lot 16 Concession 1 in the Municipality ofClarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 12 and 13 on Plan 40R-24257, being the whole of PIN 26613-0035 (LT). Fifthly: Part of Lot 16 Concession 1 in the Municipality ofClarington, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 14, 15, 16, 17 and 18 on Plan 40R-24257, being the whole of PIN 26613-0034 (LT). Sixthly: Part of Lot 16 Concession 1 in the Municipality of CIa ring ton, in the Regional Municipality of Durham (formerly Geographic Township of Darlington), designated as Parts 19, 20, 21, 22 and 23 on Plan 40R-24257, being the whole of PIN 26613-0033 (LT). SCHEDULE "8" Descriotion of Severed Lands Firstly: Part of Lot 16 Concession I in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Part 1 on Plan 40R-24257, being the whole of PIN 26613-0106 Secondly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Parts 2, 3 and 4 on Plan 40R-24257, being Part of PIN 26613-0103 Thirdly: Part of Lot 16 Concession I in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Parts 10 and lIon Plan 40R-24257, being Part of PIN 26613-0107 Fourthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of Clarington), designated as Part 12 on Plan 40R-24257, being Part of PIN 26613-0035 Fifthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (formerly Geographic Township of Cia ring ton), designated as Parts 15 and 16 on Plan 40R-24257, being Part of PIN 26613-0034 Sixthly: Part of Lot 16 Concession 1 in the Regional Municipality of Durham (fonnerly Geographic Township of Clarington), designated as Parts 19, 20 and 21 on Plan 40R-24257, being Part of PIN 26613-0033 N \r-eSlate\matlers\070704Th-1Bin MBtlers\Bowmanyille\Agreements\As~umption Agreement - Steven~ Rd\Stevens Rd Assumption Agr- v3{final) doc s: co - c.. 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