HomeMy WebLinkAbout2007-143
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-143
being a by-law to authorize the Mayor and the Municipal Clerk on behalf of
the Municipality of Clarington to execute a First Principles of
Understanding Amendment Agreement to the Principles of Understanding
between the Municipality, Players Business Park Ltd., West Diamond
Properties Inc. and 1613881 Ontario Inc.
WHEREAS Council has approved the recommendations contained In Report #PSD-
088-07 at its meeting on June 25, 2007; and,
NOW THEREFORE BE IT RESOLVED the Council of The Corporation of the
Municipality of Clarington hereby enacts as follows:
1. THAT the Mayor and the Municipal Clerk are authorized on behalf of the
Municipality of Clarington to execute the First Principles of Understanding
Amendment Agreement between the Municipality, Players Business Park Ltd.,
West Diamond Properties Inc., 1613881 Ontario Inc., Royal Bank of Canada and
672003 Ontario Limited substantially in the form of the draft Agreement
contained in Attachment 4 to Report #PSD-088-07.
By-Law read a first time this
25th
day of
June
2007
By-Law read a second time this
25th
day of
June
2007
By-Law read a third time and finally passed this
25th
day of
June
2007
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FIRST PRINCIPLES OF UNDERSTANDING
AMENDMENT AGREEMENT
THIS FIRST PRINCIPLES OF UNDERSTANDING AMENDMENT AGREEMENT
made as of the 25th day of June, 2007.
BETWEEN:
PLAYERS BUSINESS PARK LTD. ("Players") and
WEST DIAMOND PROPERTIES INC. ("West Diamond")
(hereinafter collectively called the "Owners")
OF THE FIRST PART
- and -
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE SECOND PART
- and -
1613881 ONTARIO INC.
(hereinafter called "1613 881 ")
OF THE THIRD PART
- and -
ROYAL BANK OF CANADA
(hereinafter called "Royal Bank")
OF THE FOURTH PART
- and -
672003 ONTARIO LIMITED
(hereinafter called "672003")
OF THE FIFTH PART
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WHEREAS:
A. Principles of Understanding dated March 1, 2006 were made by the Owners, the
Municipality and 1613881 ("Principles"). They were registered in the Land Registry
Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") as
Instrument No. DR495847 on the title to the lands identified by the following Property
Identification Numbers ("PIN").
PIN # Owner
26612-0113 Players
26612-0114 West Diamond
26612-0024 Players
26613-0102 1613881
B. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land
Registry Office on the title to the lands identified by the following PINs as Instrument
No. DR265437.
flli.tt Owner
26612-0114 West Diamond
26612-0113 Players
26612-0024 Players
C. A Charge in favour of 672003 dated November 3, 2004 was registered in the
Land Registry Office on the title to the lands identified by PIN# 26613-102 owned by
1613881 as Instrument No. DR334853.
D. A Charge in favour of Royal Bank dated April 3, 2004 was registered in the Land
Registry Office in the title to the lands identified by PIN #26613-102 owned by 1613881
as Instrument No. DR334854.
E. Royal Bank and 672003 have agreed with the Municipality to postpone their
rights under the Charges referred to in Recitals B, C and D to the rights of the
Municipality under the Principles as amended by this Agreement. Royal Bank has also
agreed with the Municipality to postpone its rights under Charge No. DR334854 to the
rights of the Municipality under the Stevens Road Extension Agreement. A copy of the
Stevens Road Extension Agreement is contained in Schedule "H" to the Principles.
F. Paragraphs 8, 9 and Schedule "G" of the Principles refer to Private Roads A, B 1
and B2. Plan 40R-24933, deposited in the Land Registry Office on June 15,2007, among
other things, more particularly describes the lands within Private Roads A, Bland B2.
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G. The Owner, the Municipality and 1613881 have agreed to amend the Principles to
incorporate descriptions of Private Roads A, Bland B2 as Parts as follows:
Private Road Parts
A 8,9, 11, 12, 13, 14,
29,30,32,33
Bl 2,34,40
B2 20,23,27,38
H. The execution of this First Principles of Understanding Amendment Agreement
on behalf of the Municipality by the Mayor and the Municipal Clerk was authorized by
By-law No. 2007-143 passed by the Municipality's Council at its meeting on the 25th day
of June, 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 hereto
covenants and agrees with the other parties as follows:
Recitals
1. Each of Recitals E to G, inclusive, is hereby incorporated into the operative part
of this Agreement and shall be construed and given the effect of covenants
contained in this Agreement. If there is an inconsistency between any of them and
any of the following paragraphs, the text of the paragraphs shall prevail to the
extent of the inconsistency.
Postponement of Chafl!:es.
2.
(a)
Royal Bank hereby postpones its rights under the Charges registered in the
Land Registry Office as Instruments No. DR 265437 and DR 334854 to
the rights ofthe Municipality under the Principles as amended by this First
Principles of Understanding Amendment Agreement and under the
Stevens Road Extension Agreement; and
(b) 672003 hereby postpones its rights under the Charge registered in the
Land Registry Office as Instrument No. DR 334853 to the rights of the
Municipality under the Principles as amended by this First Principles of
Understanding Amendment Agreement.
Private Roads A. BI and B2
3. The Principles are amended as follows:
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(a) by deleting paragraph 8(b) and replacing it with a new paragraph 8(b) as follows:
"8(b) For the purposes of these Principles:
(i) Private Road A comprises the lands more
particularly described as Parts 8, 9, 11, 12, 13, 14,
29, 30, 32 and 33 on Plan 40R-24933 deposited in
the Land Registry Office;
(ii) Private Road B 1 is the land more particularly
described as Parts 2, 34 and 40 on Plan 40R-24933
deposited in the Land Registry Office; and
(iii) Private Road B2 is the lands more particularly
described as Parts 20, 23, 27 and 38 on Plan 40R-
24933 deposited in the Land Registry Office.";
(b) by amending paragraph 9(a) by deleting from the second and third lines thereof
the following words, numbers and blank spaces "described as Parts _, _,
and _ on Plan ";
(c) by amending paragraph 9(b) by deleting the words and blanks "of any portion of
Parts _, _, and _ on Plan " and replacing them with the
words and numbers "of any of the Parts on Plan 40R-24933 by which they are
described for the purposes of these Principles,"; and
(d) deleting from paragraph 22 of the Principles the number "9" and replacing it with
the number and letter "8(b)".
Principles as Amended to Continue to Bind
4. Except as otherwise provided in this First Principles of Understanding Amendment
Agreement, the Principles continue to bind the Owners, the Municipality and 1613881
and are enforceable by and against each of them.
Time of Essence
5. Time is of the essence of this First Principles of Understanding Amendment Agreement.
Time continues to be of the essence of the Principles.
Enurement
6. This First Principles of Understanding Amendment Agreement shall enure to the benefit
of and bind the parties hereto and their respective successors and assigns.
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Authoritv of Municipalitv
7. Players, West Diamond and 1613881 acknowledge and agree that the Municipality has
authority to enter into this First Principles of Understanding Amendment Agreement, that
every provision hereof is authorized by the law and is fully enforceable by Players, West
Diamond, 1613881 and the Municipality, and that this Agreement is executed by the
Municipality in reliance on the aforesaid acknowledgement and agreement.
Ree:istration of Ae:reement on Title
8. Players and West Diamond hereby consent to the registration of a Notice of this First
Principles of Understanding Amendment Agreement as a charge against the title to their
respective lands identified under PINs 26612-0113, 26612-0114 and 26612-0024.
1613881 hereby consents to the registration of a Notice of this Agreement as a charge
against the title to its lands identified under PIN 26613-0102.
Further Assurances
9. The parties hereby covenant and agree, after a request in writing by one 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 this Agreement, and to effect the registration against and release from title
to the lands subject to this Agreement of such notices or other instruments in accordance
with the provisions of this Agreement.
Notice
10. 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 any of the other parties to this First Principles of
Understanding Amendment Agreement, such notice shall be transmitted by telefax,
mailed by first class prepaid post or delivered to:
Players/:
West Diamond
Players Business Park Ltd.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr. Bruce Fisher
West Diamond Properties Inc.
30 Floral Parkway
Concord, ON L4K 4Rl
Attention: Mr. Robert DeGasperis
1613881 :
1613881 Ontario Inc.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
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Attention: Mr. Bruce Fischer
And:
Royal Bank:
Royal Bank of Canada
180 Wellington Street West
5th Floor
Toronto, ON M5J 112
And:
672003 :
672003 Ontario Inc.
P.O. Box 420
Markham, Ontario L3P 3J8
Or,
Municipality: The Municipality of Clarington
40 Temperance Street
Bowmanville, ON LIC 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 transportation which
may reasonably be anticipated will cause the notice to be received reasonably
expeditiously by the addressee.
Force Maieure
11. In this First Principles of Understanding Amendment Agreement, the term "Force
Majeure" means any delay for the duration of the delay which is imposed by reason of
strikes, lockouts, riots, wars or acts of military authority, acts of public enemies,
sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil
commotion, fire or explosion; flood, wind, water, earthquake or other casualty, or an Act
of God and any act, omission or event whether of the kind herein enumerated or
otherwise not within the control of the Owners, 1613881, Royal Bank or 672003, none of
which, has been caused by the deliberate default or act or omission by such party and
none of which has been avoidable by the exercise of reasonable effort or foresight by
such party. the Owners, 1613881, Royal Bank or 672003 or the Municipality, as the case
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may be, shall notify the other parties to this First Principles of Understanding
Amendment Agreement of the commencement, duration and consequence (so far as the
same is within the knowledge of the Owners, 1613881, Royal Bank or 672003 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.
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IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and
seals the day and year first above written and the parties hereto have hereunto affixed their
corporate seals by the hands of their proper officers duly authorized in that behalf.
SIGNED, SEALED AND
DELIVERED
In the presence of:
) THE CORPORATION OF THE
) MUNICIPALITY OF CLARINGTON
)
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) Name: tplul4t'1 t:J~/<:.'U- Title: /lto'~~td1
) I/We have authority to bind the Corporation
~ WEST DIAMOND PROPE TIES INC.
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) Name: fAIl ~ d.QrJlffU Title: ~
~ I/We have authority to bind the Corporation
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) Name: W/'(. ,cJA9rtItJ'U. Title: ~4f~.,7l
) I/We have authority to bind the Corporation
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! ROYAL.BANK OF CAN~~
~~,d Title
) ame. SENIOR ACCOUNT MANAGER
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)) N : st'\ltriR ACC'OUNT.MANAG
I1We have authoflty to. 1:5mo "the
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i 67200~MITEU
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Name: Title:
I/W e have authority to bind the Corporation