HomeMy WebLinkAbout2007-145
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-145
being a by-law to authorize the Mayor and the Municipal Clerk on behalf of
the Municipality of Clarington to execute an Assumption Agreement
between the Municipality, Royal Bank of Canada, 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;
NOW THEREFORE 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 an Assumption Agreement between the
Municipality, Royal Bank of Canada, Players Business Park Ltd., West Diamond
Properties Inc. and 1613881 Ontario Inc. substantially in the form of the draft
Agreement contained in Attachment 5 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
.
ASSUMPTION AGREEMENT
PRINCIPLES OF UNDERSTANDING AS AMENDED
THIS ASSUMPTION AGREEMENT made as of the 25th day of June, 2007.
BET WEE N:
THE CORPORATION OF THE
MUNICIP ALITY OF CLARlNGTON
(hereinafter called the "Municipality")
OF THE FIRST PART
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ROYAL BANK OF CANADA
(hereinafter called "Royal Bank")
OF THE SECOND P ART
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PLA YERS BUSINESS PARK LTD. ("Players") and
WEST DIAMOND PROPERTIES INC. ("West Diamond")
(hereinafter collectively called the "Owners")
OF THE THIRD PART
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1613881 ONTARIO INC.
(hereinafter called "1613881")
OF THE FOURTH PART
WHEREAS:
A. Principles of Understanding dated March 1, 2006 were made by the Owners, the
Municipality and 1613881 ("Players/West Diamond 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").
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PIN No. Owner
26612-0113 Players
26612-0114 West Diamond
26612-0024 Players
26613-0102 1613881
B. The Players/West Diamond Principles were amended by the First Principles of
Understanding Amendment Agreement dated June 25, 2007, made between the Municipality,
Players, West Diamond, 1613881, Royal Bank and 672003 Ontario Inc. and registered in the
Land Registry Office as Instrument No. . The Players/West Diamond Principles
as so amended is hereinafter referred to as the "Players/West Diamond Principles as Amended.
C. 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.
PIN No. Owner
26612-0114 West Diamond
26612-0113 Players
26612-0024 Players
D. A Charge in favour of Royal Bank dated April 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. DR334854.
E. Royal Bank has agreed with the Municipality to postpone its rights under the Charges
referred to in Recitals B, C and D to the rights of the Municipality under the Players/West
Diamond Principles As Amended and under the Stevens Road Extension Agreement. A copy of
the Stevens Road Extension Agreement is contained in Schedule "H" to the Principles.
F. Royal Bank has agreed to assume the covenants of the parties to the Players/West
Diamond Principles As Amended and the covenants of certain of the parties to the Stevens Road
Extension Agreement on the terms set out below in this Assumption Agreement.
G. The parties hereto other than the Municipality have consented to the registration of a
Notice of this Assumption Agreement on the title to the lands owned by them as referred to in
Recital A.
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H. 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 2007-144 passed by the
Municipality's Council at its meeting on June 25,2007.
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:
RECITALS
1. Each of Recitals C to G, inclusive, is hereby incorporated into the operative part of this
Assumption Agreement and shall be construed and given effect as covenants contained in
this Assumption Agreement.
ASSUMPTION OF COVENANTS BY ROYAL BANK AS CHARGEE UNDER INSTRUMENT No.
DR265437
2. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond
Principles As Amended as Chargee under the Charge registered in the Land Registry
Office as Instrument No. DR265437 hereby assumes each of Players/West Diamond's
covenants contained in the Players/West Diamond Principles As Amended on the same
basis and to the same extent as if Royal Bank had been a party to it, provided that Royal
Bank shall not be bound by such covenants unless and until and to the extent that it takes
possession or control of the land to which Instrument No. DR265437 applies. The
provisions of paragraph 18(a) of the Players/West Diamond Principles As Amended
apply to paragraph 2 of this Assumption Agreement with all necessary changes to it being
assumed to have been made in order to give effect to the intent of paragraph 2 of this
Assumption Agreement. The assumption by Royal Bank hereunder shall expire and
terminate upon the discharge oflnstrument No. DR265437.
ASSUMPTION OF COVENANTS BY ROYAL BANK AS CHARGEE UNDER INSTRUMENT No.
DR334854
3. Pursuant to and in accordance with paragraph 18(a) of the Players/West Diamond
Principles As Amended, Royal Bank hereby assumes each of 1613881's covenants
contained in the Players/West Diamond Principles As Amended on the same basis and to
the same extent as if Royal Bank had been a party to it, provided that Royal Bank shall
not be bound by such covenants unless and until and to the extent that it takes possession
or control of the land to which Instrument No. DR334854 applies. The provisions of
paragraph 18( a) of the Players/West Diamond Principles As Amended apply to paragraph
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3 of this Assumption Agreement with all necessary changes to it being assumed to have
been made in order to give effect to the intent of paragraph 3 of this Assumption
Agreement. The assumption by Royal Bank hereunder shall expire and terminate upon
the discharge of Instrument No. DR334854.
REGISTRATION OF ASSUMPTION AGREEMENT ON TITLE
4. Players, West Diamond and 1613881 consent to the registration of a Notice of this
Assumption Agreement on the title to the lands owned by them as referred to in Recital
A.
FURTHER ASSURANCES
5. 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.
No DEROGATION FROM PLA YERSIWEST DIAMOND PRINCIPLES AS AMENDED
6. Nothing contained in this Assumption Agreement shall derogate or shall be deemed to
derogate in any way from the provisions of either the Players/West Diamond Principles
As Amended or the Stevens Road Extension Agreement and time shall continue to be of
their essence.
TIME OF ESSENCE
7. Time is of the essence of this Assumption Agreement.
ENUREMENT
8. This Assumption Agreement shall enure to the benefit of and be bind the parties hereto,
their respective successors and assigns.
LAWS OF ONTARIO ApPLY
9. 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
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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
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 or by any of the other parties hereto 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 L 1 C 3A6
Attention: Director of Planning Services
Fax: 905-623-0830
OR,
Players:
Players Business Park Ltd.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr. Bruce Fischer
AND:
West Diamond:
West Diamond Properties Inc.
30 Floral Parkway
Concord, ON L4K 4Rl
Attention: Mr. Robert DeGasperis
AND:
1613881
1613881 Ontario Inc.
1700 Langstaff Road
Suite 2003
Concorde, ON L4K 3S3
Attention: Mr. Bruce Fischer
OR,
Royal Bank
Royal Bank of Canada
180 Wellington Street West
5th Floor
Toronto, ON M5J 112
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
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
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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
11. 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 any of the
parties to this Assumption Agreement, 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 of the parties hereto, 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 knowledge of
such party, 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.
AUTHORITY OF THE MUNICIPALITY
12. The parties hereto other than the Municipality acknowledge and agree that the
Municipality has authority to enter into this Assumption Agreement, that every provision
hereof is authorized by the law and is fully enforceable by any of the parties against any
of the other parties, and that this Assumption Agreement is executed by the Municipality
in reliance on the aforesaid acknowledgement and agreement.
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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:
THE CORPORATION OF THE
MUNICIP ALITY OF CLARINGTON
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~ ROY AL BANK OF CANADA
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arri unicipal Clerk
We ave authority to bind the Corporation.
Title: ~~A"ot'
1/We have authority to bind the Corporation.
c.
Title: ~Jf/P''''/''7'
Name: t#1"U#'7 ~,,~z.<-
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1613881 ONTARIO INC.
Title: Ak.r:r/JI'v;..r?
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l/We have authority to bind the Corporation.