HomeMy WebLinkAbout2007-089
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-089
being a By-law to authorize the execution of an Assumption
Agreement between the Municipality of Clarington and Home
Depot Holdings Inc. as contemplated in the Principles of
Understanding between the Municipality and Halloway Holdings
Limited respecting the assumption of certain obligations contained
in such Principles of Understanding by Home Depot Holdings Inc.
as the obligations apply in respect of lands referred to in Schedule
1 hereto
WHEREAS at its Special Meeting on April 23, 2007, Council of the Municipality of Clarington
approved Report #PSD-48-07 and the recommendations contained therein including the
recommendation that an Assumption Agreement be made between the Municipality, Home
Depot Holdings Inc. and Halloway Holdings Limited by which Home Depot assumes the
obligations of Halloway under the Principles of Understanding dated March 1, 2006, as they
apply to the lands more particularly described in Schedule 1 hereto;
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington hereby
enacts as follows:
1. THAT the Mayor and the Municipal Clerk on behalf of the Municipality of Clarington are
hereby authorized to execute the Assumption Agreement between the Municipality of
Clarington, Home Depot Holdings Inc. and Halloway Holdings Limited respecting
Halloway's obligations under the Principles of Understanding between the Municipality of
Clarington and Halloway Holdings Limited as they apply to the lands more particularly
described in Schedule 1 attached to and forming part of this By-law, which Assumption
Agreement is attached to this By-law.
By-Law read a first time this 23rd day of April 2007.
By-Law read a second time this 23rd day of April 2007.
By-Law read a third time and finally passed this 23rd day of April 2007.
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, Municipal Clerk
Schedule 1
Firstly: Part of Lot 16 Concession 1 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 1 in the Regional Municipality of Durham (formerly
Geographic Township of Clarington), designated as Parts 10 and 11 on 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 Clarington), 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 (formerly
Geographic Township of Clarington), designated as Parts 19, 20 and 21 on Plan 40R-24257,
being Part of PIN 26613-0033
ASSUMPTION AGREEMENT
PRINCIPLES OF UNDERSTANDING
THIS ASSUMPTION AGREEMENT made as of the 23'd day of April, 2007.
BETWEEN:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE FIRST PART
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HOME DEPOT HOLDINGS INC.
(hereinafter called "Home Depot")
OF THE SECOND PART
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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 "B" hereto ("Severed Lands").
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D. On January IS, 2007, the Regional Municipality of Durham's Land Division Committee
under its file LDOl612006 gave its provisional consent ("Provisional Consent") under section 53
of the Planning Act, R.S.O. 1990, c.P.B, 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".)
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
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.
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 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:
HALLOWAY PRINCIPLES
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.
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SUBDIVISION/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.
PAYMENTS TO THE MUNICIPALITY TO ASSIST BIAs
AND/OR TO IMPLEMENT COMMUNITY IMPROVEMENT PLAN
5. The Municipality acknowledges that Halloway has paid the sum of Seventy Thousand
($70,000.00) Dollars to the Municipality pursuant to paragraph 21(d) of the Halloway
Principles and that the obligations of Halloway to the Municipality pursuant to
paragraphs 21(a), (b), (c) and (d) have been satisfied.
ASSUMPTION OF OBLIGA TIOl'iS BY HOME DEPOT
6. Without derogating from the provisions of paragraphs 3, 4 and 5 of this Assumption
Agreement., pursuant to paragraph 12(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 16 of
the Halloway Principles, as Halloway's obligations apply to or in respect of the Severed
Lands.
REGISTRATION 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.
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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 SUBDIVISION/CONSENT 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 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 of the
essence of each ofthese Agreements.
ENUREMENT
10. This Assumption Agreement shall enure to the benefit of and be bind the parties hereto,
their respective successors and assigns.
LAWS OF ONTARIO ApPLY
II. 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 ofClarington
40 Temperance Street
Bowmanville, ON Ll C 3A6
Attention: Director of Planning Services
Fax: 905-623-0830
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OR,
Home Depot:
c/o 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 LlG 3S2
or such other telefax number or address of which any party has notified the other parties
in writing. Any such notice if mailed by frrst 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 frrst 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 MAJEURE
13. 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. Home 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
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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:
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THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
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We have authority to bmdthe Corpotation.
om An fson, Authorized Signing Officer
I have authority to bind the Corporation.
Y HOLDINGS LIMITED
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#((fljJ ISI( ilJ/l11?/v
Name: Title:
I/We have authority to bind the Corporation.
SCHEDULE "A"
Lel!al Descriution 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 Plan40R-24257, being the whole of PIN 26613-0103 (LT).
Secondly: 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
Part 1 on Plan 40R-24257, being the whole of PIN 26613-0l06(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 Clarington, 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 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 PIN 26613-0033
(LT).
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SCHEDULE "B"
Descrintion of Severed Lands
Firstly: Part of Lot 16 Concession I in the Regional Municipality of Durham (formerly
Geographic Township of Clarington), designated as Part I on Plan 40R-24257, being the whole
of PIN 26613-0106
Secondly: Part of Lot 16 Concession I 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 ofpIN 26613-0107
Fourthly: 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 Clarington), designated as Parts IS and 16 on Plan 40R-24257, being
Part ofpIN 26613-0034
Sixthly: Part of Lot 16 Concession I in the Regional Municipality of Durham (formerly
Geographic Township of Clarington), designated as Parts 19, 20 and 21 on Plan 40R-24257,
being Part of PIN 26613-0033
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