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HomeMy WebLinkAbout90-203 THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW 90-203 Being a By-Law to amend By-Laws No. 89-101 and No. 89-146, a by-law to authorize the amendment of a Construction and Maintenance Agreement between Carholme Investments Limited, Esquire Developments Limited, and Oceanfront Developments Limited, and the Corporation of the Town of Newcastle. The Council of the Corporation of the Town of Newcastle hereby enacts as follows: 1. THAT the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the Town of Newcastle, and seal with the Corporation's seal, an amended Agreement between Carholme Investments Limited, Esquire Developments Limited, and Oceanfront Developments Limited, and the said Corporation dated on day of 1989, in the form attached hereto as Schedule "A" and forming a part of this by-law. BY-LAW read a first time this 10th day of December 1990. BY-LAW read a second time this 10th day of December 1990. BY-LAW read a third time this 10th day of December 1990. MAYOR CLERK DYE&DURHAM CO.LIMITED Farts No.9W Province of Document General f -�f Ontario Form 4—Land Registration Reform Act,1984 (1) Registry ❑ Land Titles ® (2) Page 1 of 32 pages (3)Property Block Property -j Ide11tM11r(s) Additional: See ❑ iz Schedule Q d a ¢ (4)Nature of Document d' %J Application to Register Notice of an Unregistered Estate, JAN 23 Right, Interest or Equity (Section 74 of the Act) J (5)Consideration p 6- S ¢� o Dollars$ W J = LV " w w (6)Description )�,irce 1 S 3-1,4--I, 5-!,6-1, g- 1 ,10-1 , �-l, I Z- 1 W Z G s"i- 13-1 , IS-1, 1 8--1 Gnu{ -vke- rern4in8er ©f- Pt,rceI 9- 1 U. U. W Cr- o- The whole of Blocks 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, o cm '= w 18 and Part of Block 9*on Registered Plan 1OM-831, o Town of Newcastle, Regional Municipality of Durham. de-,19 na4ed a% fit" 3 O IQ- 35(,:;4- New Property Identifiers Additional: See Schedule attached. See Schedule ❑ Executions (7)This (a) Redescription ; (b)Schedulefor: Additional: Document New Easement Additional See ❑ Contains: Plan/Sketch (� Description ❑x Parties ❑ Other ❑X Schedule (8)This Document provides as follows: CARHOLME INVESTMENTS LIMITED has an unregistered estate, right, interest or equity in the land registered in the name of CARHOLME INVESTMENTS LIMITED in respect of the land registered as the whole of Blocks 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 18 and Part of Block 9 on Registered Plan 1OM-831, Town of Newcastle, Regional Municipality of Durham, and hereby apply under Section 74 of the Land Titles Act for the entry of a notice of a certain agreement dated the 31st day of December, 1990, made between The Corporation of the Town of Newcastle, Carholme Investments Limited, Esquire Developments Limited and Oceanfront Developments Limited. Continued on Schedule (9)This Document relates to Instrument number(s) (1o) Party(ies).(Set out Status or Interest) Name(s) Signature(s) Date of SiMnatu D CARHOLME INVESTMENTS LIMITED ; 1991 Ol ;�� bY. its solicitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MarkH. Mincer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11) Address for Service 805 Lakeshore Boulevard East, Toronto, Ontario, M4M 1B2 (12)Party(ies) (Set out Status or Interest) Name(s) Signature(s) DYte of Signature Name(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i (13) Address for Service (14) Municipal Address of Property (15) Document Prepared by: >- Fees and Tax Multiple Mark H. Mincer File 87/4660 0 Registration Fee GOODMAN AND CARR W SUITE 2300 U) 200 KING STREET WEST W TORONTO,ONTARIO M5H 3W5 U TELEPHONE:(416)595-2300 u- O Q o Total DYE d DURHAM GO-LIMITED Form No.985 Province of Document General D Ontario Form 4—Land Registration Reform Act,1984 (1) Registry F"� Land Titles �Xj (2) Page 1 of 32 pages (3) property eny tifier(s) Block Property Additional: See Schedule (4)Nature of Document Application to Register Notice of an Unregistered Estate, Right, Interest or Equity (Section 74 of the Act) } (5)Consideration O Dollars$ W rn (6)Description D w U u- The whole of Blocks 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 0 18 and Part of Block 9 on Registered Plan 1OM-831, oTown of Newcastle, Regional Municipality of Durham. New Property Identifiers See Schedule attached. Additional: See Schedule Executions (7)This (a) Redescription (b)Schedule for: Additional: Document New Easement Additional $ee Ej Contains: Plan/Sketch Description Qx Parties 0:Otjr7x Schedule (8)This Document provides as follows: CARHOLME INVESTMENTS LIMITED has an unregistered estate, right, interest or equity in the land registered in the name of CARHOLME INVESTMENTS LIMITED in respect of the land registered as the whole of Blocks 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 18 and Part of Block 9 on Registered Plan 1OM-831, Town of Newcastle, Regional Municipality of Durham, and hereby apply under Section 74 of the Land Titles Act for the entry of a notice of a certain agreement dated the 31st day of December, 1990, made between The Corporation of the Town of Newcastle, Carholme Investments Limited, Esquire Developments Limited and Oceanfront Developments Limited. Continued on Schedule 12 1 (9)This Document relates to instrument number(s) (10) Party(ies).(Set out Status or Interest) Name(s) Signature(s) Date of Signature Y M D CARHOLME INVESTMENTS LIMITED 1991 01_ 7 . . by. its solicitor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MarkH. Mincer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11) Address for Service 805 Lakeshore Boulevard East, Toronto, Ontario, M4M 1B2 (12) Party(ies) (Set out Status or Interest) Name(s) Signature(s) Date of Signature Y M D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I (13)Address for Service (14) Municipal Address of Property (15) Document Prepared by: } Fees and Tax Multiple Mark H. Mincer File 87/4660 Z Registration Fee GOODMAN?AND CARR w SUITE 2300 rn 200 KING STREET WEST Z) W TORONTO,ONTARIO M5H 3W5 (j TELEPHONE:(416)595-2300 u- O o Total i 10174(12/84) LEGAL DESCRIPTION Legal Description of Carholme Investments Limited Lands Continued from Bog (6) Subject to a right of way in favour of Ontario Hydro over Parts of Blocks 10, 11, 12 and 13 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 17979 . Subject to an easement in favour of Ontario Hydro over Part of Block 13 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 10261. Subject to an easement in favour of Ontario Hydro over Parts of Blocks 15 and 18 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 5949 . Subject to an easement in favour of Ontario Hydro over Part of Block 18 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 15158. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 4 and 15 on Registered Plan 1OM-831 for the purposes as set out in Transfer of Easement No. 1414. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 9 and 15 on Registered Plan 1OM-831 for the purposes as set out in Transfer of Easement No. 6241. Legal Description of Esquire Developments Limited Lands ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Town of Bowmanville now in the Town of Newcastle, Regional Municipality of Durham being Part of Lot 7, in the Broken Front Concession of the Township of Darlington and all of Lots 11 to 25 inclusive, Part of the un-named streets and Part of Lots 9, 10, 26 and 27 as shown on the Cubit Plan of Subdivision deposited in the Registry Office for the Registry Division of Newcastle designated as Parts 28 to 33 both inclusive on a Reference Plan deposited in the Registry Office for the Registry Division of Newcastle as 1OR-2197 . Subject to an easement in favour of Ontario Hydro over Part 32 on Plan 1OR-2197 for the purposes as set out in Instrument No. 17979 . Subject to an easement in favour of the Regional Municipality of Durham over Part 30 on Plan 1OR-2197 for the purposes as set out in Instrument No. 131032 . Legal Description of Oceanfront Developments Limited Lands ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Town of Bowmanville in the Town of Newcastle, in the Regional Municipality of Durham being Part of Lot 6, in the Broken Front Concession, in the, Township of Darlington designated as Parts 34, 35, 36, 37 and 38 on a Reference Plan deposited in the Registry Office for the Registry Division of Newcastle as 1OR-2197 . Subject to an easement in favour of the Regional Municipality of Durham over Part 37 on Plan 1OR-2197 for the purposes as set out in Instrument No. 132064 . 3 THIS AGREEMENT made as of the --11-S7- day of 11990. BETWEEN: THE CORPORATION OF THE TOWN OF NEWCASTLE (hereinafter called the "Town") OF THE FIRST PART - and - CARHOLME INVESTMENTS LIMITED (hereinafter called "Carholme") OF THE SECOND PART - and - ESQUIRE DEVELOPMENTS LIMITED (hereinafter called "Esquire") OF THE THIRD PART - and - OCEANFRONT DEVELOPMENTS LIMITED (hereinafter called "Oceanfront") OF THE FOURTH PART WITNESSETH THAT: WHEREAS Carholme warrants that it is the registered owner of the lands described in Schedule "A"; AND WHEREAS Esquire warrants that it is the registered owner of the lands described in Schedule "B"; AND WHEREAS Oceanfront warrants that it is the registered owner of the lands described in Schedule "C"; AND WHEREAS the lands affected by this Agreement are the lands described in Schedules "A","B"and "C"; AND WHEREAS the Town warrants that it has entered, or will enter into a Pipe Crossing Agreement (hereinafter called the "Pipe Crossing Agreement") with the Canadian National Railway Company for permission to construct and maintain the pipe crossing shown on Plan No. 2846-008, Sheet 10 of 10, dated September 30, 1988 - Mile 289.79,Kingston Subdivision (hereinafter called the "CN Works"), as described in Schedule "D"; AND WHEREAS the Owners have agreed to be responsible for the installation and construction of the CN Works and certain other channel works (hereinafter called the "Channel Works") as described in Schedule "D"hereto; AND WHEREAS the CN Works and the Channel Works are sometimes hereinafter singularly and collectively called the "Works"; NOW THEREFORE, in consideration of the mutual agreements, covenants and promises herein contained, and other good and valuable consideration, the parties hereto agree as follows: F 1. DEDICATION OF LANDS Esquire shall, at the time of the execution of this Agreement, deliver to the Town an executed deed of conveyance, sufficient to vest in the Town, absolute title in fee simple, free and clear of all liens, charges, encumbrances and easements, the lands set out in Schedule "E" hereto. 2. REGISTRATION OF DEEDS The aforementioned deed shall be prepared by the Owners and registered at the Owners' expense. 3. INTEREST IN SAID LANDS Each Owner hereby severally charges its interest in its lands with the obligations set forth in this Agreement, on the following proportionate share basis, which has been calculated by reference to developable lands owned by each: Proportionate Share of Owner Obligations to Town Carholme 49.14% Esquire 27.71% Oceanfront 23.15% 4. NOTIFICATION OF OWNERS If any notice is required to be given by the Town to the Owners in respect of this Agreement, such notice shall be mailed or delivered to: Mr. R. Sobottka President Carholme Investments Limited 805 Lakeshore Boulevard East Toronto, Ontario M4M 1B2 Mr. R. Sobottka President Esquire Developments Limited 805 Lakeshore Boulevard East Toronto, Ontario M4M 1B2 Mr. Walter Frank President Oceanfront Developments Limited 115 Simcoe Street South Oshawa, Ontario UH 4G7 or such address of which each Owner has notified the Town, in writing, and any such notice mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement. 5. REGISTRATION OF AGREEMENT The Owners hereby consent to the registration of this Agreement by the Town, against each of the Owners' lands described in Schedules "A", "B" and "C" hereto. �i�ti 6. TOWN TO ACT PROMPTLY Wherever the Town, or the Town's Solicitor, or the Treasurer for the Town, or the Town's Director of Public Works (hereinafter called the "Director") is required to take action pursuant to this Agreement, or is required to make a decision or render an opinion, or give confirmation or give authorization, permission or approval, then such action, decision, confirmation, authorization, permission or approval shall be made promptly and in all respects the Town and its officers, servants or agents shall act reasonably. 7. ASSIGNMENT OF AGREEMENT The Owner will not assign this Agreement without prior written consent of the Town and no such assignment shall relieve the subsequent owner of any of his obligations under this Agreement. 8. SCHEDULES TO AGREEMENT The following schedules which are identified by the signatures of the parties to this Agreement, and which are attached hereto, together with all provisions contained therein, are hereby made a part of this Agreement as fully and to all intents and purposes as though recited in full herein: Schedule "A" - "Legal Description of Carhohne Lands" Schedule "B" - "Legal Description of Esquire Lands" Schedule "C" - "Legal Description of Oceanfront Lands" Schedule "D" - "Works Required" Schedule "E" - "Lands to be Dedicated" Schedule "F" - "Cost Estimates" Schedule "G" - "Insurance Policies Required" Schedule "H"- "Engineering and Inspection Fees" Schedule "I" - "Duties of Owners' Engineer" 9. SUCCESSORS This Agreement shall enure to the benefit of and be binding upon all of the parties hereto, its, his or her respective heirs, executors, administrators, successors or assigns. 10. PERFORMANCE GUARANTEE REQUIRED (1) Each Owner shall, prior to the issuance of any Authorization to Commence Work, lodge with the Town cash or an irrevocable letter of credit issued by a chartered Canadian bank, guaranteeing the performance by each Owner of its respective proportionate share of obligations set forth in this Agreement. Such cash or irrevocable letter of credit shall be in an amount equal to the estimated cost of construction of the Works as set out in Schedule "F" hereto. (2) All documents furnished under this paragraph shall be approved by the Treasurer of the Town. (3) The cash or irrevocable letter as provided in subparagraph (1) hereof are hereinafter collectively referred to as a "Performance Guarantee". 11. USE OF PERFORMANCE GUARANTEE Each Owner agrees that the Town may, at any time, authorize the use of all or part of any Performance Guarantee if that Owner fails to pay any costs payable by it to the Town under this Agreement by due date of the invoice for such costs. 12. INDEMNIFICATION OF TOWN AND INSURANCE Until the issuance of the Certificate of Release provided for in this Agreement, the Owner covenants and agrees to indemnify the Town against all actions, causes of actions, suits, claims and demands whatsoever and howsoever caused, which arise either by reason of the development of said lands, or the undertaking of the design, construction, installation and maintenance of the Works and Utilities. The Owner shall also provide the insurance called for by Schedule "G" of this Agreement. 13. MAINTENANCE GUARAN'T'EE REQUIRED In order to guarantee that all defects in the Works which become apparent after the issuance of a Certificate of Completion for such Works, will be properly repaired or replaced, each Owner shall, prior to the issuance of the Certificate of Completion for such Works, lodge with the Town a Maintenance Guarantee in the form of cash or an irrevocable letter of credit from a chartered Canadian bank, and in an amount equal to fifteen percent (15%) of the estimated cost of the Works as set out in Schedule "F" hereto. The form of the Maintenance Guarantee shall be subject to the approval of the Town Treasurer, and shall guarantee the Works from the date of the issuance of a "Certificate of Completion" for the works referred to in Paragraph 34, for a minimum period of two (2) years, which period terminates on the date of the "Certificate of Acceptance" for the Works as referred to in Paragraph 36. 14. USE OF MAINTENANCE GUARAN'T'EE Each Owner agrees that the Town may, at any time, authorize the use of all or any part of an Owner's Maintenance Guarantee if that Owner fails to pay any costs payable by it to the Town under this Agreement, by the due date of the invoice for such costs. 15. REQUIREMENTS FOR RELEASE OF PERFORMANCE GUARANTEE The Owners agree that the Town shall not be obliged to release to the Owners the unused portion of any Performance Guarantee until: (1) a Certificate of Completion has been issued for the Works for which such Performance Guarantee was required; and (2) the Owners have deposited with the Town the Maintenance Guarantee applying to those Works for which such Performance Guarantee was required; and (3) the Town is satisfied that in respect of the construction and installation of the Works for which such Performance Guarantee was required, there are no outstanding claims relating to such Works; and (4) the Town may, from time to time, at the discretion of the Director of Public Works, reduce the amount of the value of the Performance Guarantee to reflect the progress of the Works required to an amount equal to the value of the uncompleted Works, plus fifteen percent (15%) of the value of the completed Works on approval by the Director of a Progress Certificate prepared by the Owners' Engineer. 16. REQUIREMENTS FOR RELEASE OF MAINTENANCE GUARANTEE The Owners agree that the Town shall not be obliged to release to the Owners the unused portion of any Maintenance Guarantee until: (1) a Certificate of Acceptance has been issued for the Works for which such Maintenance Guarantee was required; and (2) the Town is satisfied that, in respect of the maintenance of all of the Works for which such Maintenance Guarantee was required, there are no outstanding claims relating to such Works; and (3) the Town has received the as-built drawings for the Works, as required by the Director. 17. PAYMENT OF MUNICIPAL COSTS (1) Every provision of this Agreement by which the Owners are obliged in any way shall be deemed to include the words "at the expense of the Owners" unless the context otherwise requires. (2) The Owners shall pay to the Town for all estimated engineering and inspection costs in accordance with the provisions of Schedule "H" hereto. (3) The Owners shall reimburse the Town for all reasonable legal, planning, engineering and other technical advice, and administrative expenses actually incurred for the preparation and registration of this Agreement, and the legal services contemplated by the terms of the Agreement, which shall include the review of the Performance Guarantee and the preparation of any release. (4) The Owners shall have the right to inspect, upon reasonable notice, during regular business hours, such accounts, invoices, time records and other documents and calculations of charges for which the Town is seeking reimbursement, as noted in paragraph (3) above. (5) The Owners shall pay to Canadian National Railways the sum of FIVE HUNDRED AND FORTY DOLLARS ($540.00) in payment of the charge imposed pursuant to Clause 3 of the Pipe Crossing Agreement. 18. UNPAID CHARGES The due date of any sum of money payable herein, unless a shorter time is specified, shall be thirty (30) days after the date of the invoice. Interest shall be payable by the Owners to the Town on all sums of money payable herein, which are not paid on the due dates. The interest penalty charges will be the same rate as charged on outstanding tax balances. 19. TOWN WORKS REQUIRED The Owners shall be responsible for the construction and installation of the Works. Upon commencement of construction of the Works and until the issuance of a Certificate of Acceptance as hereinafter provided, the Owners shall be fully responsible for their maintenance. After the issuance of a Certificate of Acceptance: (1) The CN Works referred to in Schedule "D" shall be maintained by the Town in accordance with the Pipe Crossing Agreement; and (2) The Channel Works referred to in Schedule 'D" shall vest in and become the responsibility of the Town. 20. OWNERS' ENGINEER The Owners shall retain a Professional Civil Engineer, registered by the Association of Professional Engineers of Ontario and herein called the "Owners' Engineer", to administer this Agreement, whose duties are set out in Schedule "I" hereto. 21. DESIGN OF WORKS The Owners agree that the design of all the Works shall comply with the Design Criteria and Standard Detail Drawings of the Town. In the event of any dispute as to such standards or in the event of any dispute as to such design requirements, the decision of the Director shall be final. 22. APPROVAL OF ENGINEERING DRAWINGS The Owners shall, prior to the issuance of any Authorization to Commence Work as provided herein, have received the written approval of the Director for all drawings of all the Works hereinafter called the 'Engineering Drawings". If no construction of the Works has commenced within two (2) years of the date of approval of the Engineering Drawings, the Engineering Drawings shall be resubmitted to the Director for re-approval and further revisions if required by the Director, and no work shall be done unless in accordance with the said revised and re-approved drawings. 23. APPROVAL OF SCHEDULE OF WORKS The Owners shall, prior to the issuance of any Authorization to Commence Work, as hereinafter provided, receive the written approval of the Director of a schedule (hereinafter called the "Schedule of Works") which sets out the timing sequence in which the Owners propose to construct and install all of the Works. The Owners shall proceed only in accordance with the approved schedule, except as it may be subsequently amended with the approval of the Director. 24. APPROVAL OF COST ESTIMATE The Owners agree that, prior to the issuance of any Authorization to Commence Work as hereinafter provided, the estimated cost of construction and installation of all of the Works, hereinafter called the "Works Cost Estimate" shall be approved by the Director and entered in Schedule "F" hereto. 25. REQUIREMENTS FOR AUTHORIZATION TO COMMENCE WORK The Owners shall not commence the construction or installation of any of the Works without the written permission of the Town, hereinafter called the "Authorization to Commence Work". The Owners shall only commence those works permitted by the Authorization to Commence Work. In addition to any other requirements contained herein, no Authorization to Commence Work shall be issued for any of the Works until: (1) this Agreement has been registered on title as required in Paragraph 5 of this Agreement; and (2) the Owners have conveyed to the Town any lands required by Paragraph 1 of this Agreement; and (3) the Owners have appointed an Engineer as required by Paragraph 20 of this Agreement; and (4) the Owners have received the written approval of the Director for the Engineering Drawings as required by Paragraph 22 of this Agreement; and (5) the Owners have received the written approval of the Director for the work more particularly referred to in Schedule 'D'; and �3I (6) the Owners have received the written approval of the Director for the Schedule of Works as required by Paragraph 23 of this Agreement; and (7) the Owners have received the written approval of the Director for the Works Cost Estimate as required by Paragraph 24 of this Agreement; and (8) the Owners have deposited with the Town the Performance Guarantee as required by Paragraph 10 of this Agreement; and (9) the Owners have deposited with the Town any policies of insurance as required by Paragraph 12 of this Agreement; and (10) the Owners have paid all Town costs as required by Paragraph 17 of this Agreement as of the date of the issuance of the Authorization to Commence Works. (11) notwithstanding the above, the Owners may commence installation of the Works as referred to in Schedule "D" hereto with the written approval of the Director, prior to the registration of this Agreement, provided that Sections 2, 3, 4, 5, 6, 77 8, 9 and 10 of this Clause have been satisfied. No Certificate of Acceptance of the work, as referred to in Clause 36 of this Agreement, shall be issued by the Director, until this Agreement has been registered and all other requirements relevant to the Certificate of Acceptance have been met. The construction or installation of any of the work pursuant to this clause shall, notwithstanding the aforementioned approval of the Director, be taken at the sole risk of the Owners. The Owners shall save harmless the Municipality from any action or cause of action resulting from the construction or installation of any of the work as may be undertaken pursuant to this Clause. 26. INSPECTION AND STOP WORK The contract with any contractor employed by the Owners to construct or install any of the Works shall provide that employees or agents of the Municipality may, at any time, inspect the work of such contractor pertaining to the said Lands and the Director, after consultation with the Owners' Engineer, shall have the power to stop any such work in the event that, in their opinion, work is being performed in a manner which may result in a completed installation that would not be satisfactory to the Town or in the event the financial guarantees, required pursuant to this Agreement, are not maintained in good standing. 27. PROVISIONS FOR CONSTRUCTION AND INSTALLATION All of the Works shall be constructed and installed in accordance with the Engineering Drawings as approved by the Director. No variation from the Engineering Drawings shall be permitted unless such variation is authorized in writing by the Director. 28. SEQUENCE OF CONSTRUCTION AND INSTALLATION The Owners shall, upon the issuance of an Authorization to Commence Work, proceed to construct and install all of the Works continuously and as required by the approved Schedule of Works. 29. COMPLETION TIME FOR CONSTRUCTION AND INSTALLATION The Owners shall, within two (2) years of the date of the issuance of an Authorization to Commence Work, complete the construction and installation of all of the Works authorized in such Authorization to Commence Work. 30. ADDITIONAL FACILITIES OR WORK REQUIRED If, in the opinion of the Director, any minor or incidental additional work is required to provide for the adequate operation and functioning of the Works, the Owners shall, until the conclusion of the maintenance guarantee period, construct or install such additional facilities and perform such additional work as the Town may request from time to time. 31. INCOMPLETE OR FAULTY WORK (1) If, in the opinion of the Director, the Owners are not executing or causing to be executed the Work required by this Agreement, in such a manner that it will be completed within the time specified for such completion, or if the said Work is being improperly done, or if the Owners neglect or abandon the said Work, or any part of it, before completion, or unreasonably delay the execution of the same, or if in any other manner the said Work is not being done properly and promptly in full compliance with the provisions of this Agreement, or in the event that the Owners neglect or refuse to do over again any Work which may be rejected by the Director as defective or unsuitable, or if the Owners in any other manner in the opinion of the Director may default in performance under this Agreement, then in any such case the Director on the authority of the Council of the Town may notify the Owners and their surety in writing of such default or neglect and within ten (10) clear days after the giving of such notice or within such further period of time as may be specified in the notice, the Town Council shall thereupon have full authority and power immediately at its option to employ a contractor or such workmen as in the opinion of the Director shall be required for the proper completion of such work at the cost and expense of the Owners or their surety, or both. In cases of emergency, in the opinion of the Director, such work may be done without prior notice, but the Owners shall forthwith be notified. The cost of such work shall be calculated by the Director, whose decision shall be final. It is understood and agreed that the total costs shall include a management fee of thirty (30%) percent of contractor's charges to the Town (including any charges for overhead and profit) or, if such work is undertaken by the Town, thirty (30%) percent of all charges incurred to complete the work, it being hereby declared and agreed that the assuming by the Owners of the obligations imposed by this clause is one of the considerations without which the Municipality would not have executed this Agreement. (2) In the event that any liens are filed under The Construction Lien Act, such filings shall constitute a default in performance under this Agreement, then in any such case the Director may notify the Owners and their surety in writing of such default and if the Owners fail to satisfy claims of the lien claimant within ten (10) clear days after the giving of such notice or within such further period of time as may be specified in the notice, then the Municipal Council shall thereupon have full authority and power immediately at its option, to pay the full amount of the claim and costs into an appropriate court having jurisdiction and the Municipality shall be authorized to use all or part of any performance or maintenance guarantee to do so. In the event that the Municipality draws upon the Performance or Maintenance Guarantee to satisfy the claims and costs of any lien claimant, the Owners shall forthwith upon notice from the Director reinstate the Performance or Maintenance Guarantee to the full value required under the terms of the Agreement. 32. ENTRY FOR EMERGENCY REPAIRS The Owners agree that, at any time and from time to time, employees or agencies of the Town may enter the said Lands for the purpose of making emergency repairs to any of the Works. Such entry and repairing shall not be deemed an acceptance of any of the Works by the Town, nor an assumption by the Town of any liability in connection therewith, nor a release of the Owners from any of their obligations under this Agreement. V&,.- 33. USE OF WORKS BY TOWN The Owners agree that any of the Works may be used by the Town or other authorized persons, for the purposes for which the Works are designed. Such use of any of the Works shall not be deemed an acceptance of any of the Works by the Town nor an assumption by the Town of any liability in connection therewith, nor a release of the Owners from any of their obligations under this Agreement. 34. REQUIREMENTS FOR CERTIFICATE OF COMPLETION The Owners agree that the construction and installation of any of the Works authorized in an Authorization to Commence Work shall not be deemed to be completed for the purposes of this Agreement until the Director has provided the Owners with written confirmation thereof, referred to herein as a "Certificate of Completion". In addition to any other requirements contained herein, no Certificate of Completion shall be issued until: (1) Such of the Works authorized by the Authorization to Commence Work for which a Certificate of Completion is required, have been inspected by the Director, and he is satisfied such Works have been constructed and installed in accordance with the latest version of the Engineering Drawings approved by the Director; and (2) The Town is satisfied that, in respect of the construction and installation of all of the Works authorized by such an Authorization to Commence Work, there are no outstanding claims relating to such Works. 35. PERIOD OF REQUIRED MAINTENANCE OF WORKS The Owners shall, from the date of issuance of a Certificate of Completion, maintain all of the Works covered by such Certificate of Completion for a minimum period of two (2) years which period terminates on the date of the Certificate of Acceptance of said Works as referred to in Paragraph 36. 36. REQUIREMENTS FOR CERTIFICATE OF ACCEPTANCE The Owners agree that any of the Works covered by a Certificate of Completion shall not be accepted, nor deemed to be accepted, for the purpose of this Agreement, until the Director has provided the Owners with written confirmation thereof, referred to herein as a "Certificate of Acceptance". In addition to any other requirements contained herein, no Certificate of Acceptance shall be issued until all of the Works covered by such Certificate of Completion have been inspected by the Director and the Town Council has approved the written report of the Director that all such Works have been maintained to the approval of the Director for the period set out in Paragraph 35 of this Agreement. 37. REQUIREMENTS FOR CERTIFICATE OF RELEASE Upon compliance with subparagraphs (1), and (2) hereof, the Town agrees to provide the Owners with a written release for the said Lands, referred to herein as the "Certificate of Release", in a form suitable for registration or deposit in the applicable Registry or Land Titles Office. In addition to any of the requirements contained herein, the Certificate of Release shall not be issued until: (1) Certificates of Acceptance have been issued for all of the Works; and (2) the Town Council has, by resolution, acknowledged that the Owners have met all of the provisions of this Agreement. The Certificate of Release shall operate as a discharge of the land described therein of all obligations of the Owners under this Agreement. /�v 38. BENEFITING OWNERS (1) The Town agrees to use its best efforts to collect and reimburse the cost of the Works to each of the Owners, from owners of lands located north of Highway 401 and east of Lamb's Road which will discharge storm water into Bennett Creek. The Works from which these owners will benefit shall hereafter be referred to as the "Oversized Works." The Town agrees to make its best effort to collect the costs from each such benefiting owner prior to the issuance of an Authorization to Commence Work or a Building Permit to these benefiting owners, whichever comes first. (2) In determining the cost of the Works to be reimbursed, there shall be added annually from the first anniversary of the issuance of the Certificate of Completion to the Costs set out in Schedule "F",a sum equal to the interest on the amount of the unpaid balance form time to time of the Certificate of Completion, at the highest prime lending rate charged during the previous calendar year by the Bank of Montreal at its main branch in the City of Toronto, plus two percent (2%). (3) In the event that payment is required to be made under this paragraph by the Town before the issuance of a Certificate of Completion, no interest shall be added to the cost of the Oversized Works. (4) In the event that payment is required to be made under this paragraph by the Town before the first anniversary of the issuance of a Certificate of Completion, interest shall be calculated at the highest prime rate charged by such bank as described in paragraph (2) above, plus two percent (2%) from the date of the issuance of the Certificate of Completion to the date of payment. Interest shall be calculated on a per diem basis to the date of payment. (5) As funds are collected by the Town, the Town agrees to reimburse each Owner on the proportionate share basis set out in Paragraph 3 of this Agreement. It is acknowledged that the estimated construction cost of the Works is EIGHT HUNDRED AND EIGHTY SEVEN THOUSAND DOLLARS ($887,000), including engineering fees and contingencies. Upon completion of construction of the Works, this estimate shall be updated to reflect the "as constructed" costs and such costs shall be approved by the Director. (6) The Town and the Owners agree that the funds to be collected from benefiting owners are to be calculated based on the Cost Sharing Report for the Bennett Creek Watershed. This report shall be to the satisfaction of the Director. (7) The obligation of the Town to collect from benefiting owners pursuant to this clause shall be in effect for ten (10) years from the date of the issuance of any Certificate of Completion of the Works for which reimbursement is sought. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of. ) L) 'MAYOR CL CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PIAESIDENT SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle enacted and passed the 11th day of September, 1989 as amended by By-law 90-203 of the Corporation of the Town of Newcastle enacted and passed the 10th day of December, 1990. LEGAL DESCRIPTION OF CARHOLME LANDS The whole of Blocks 3, 4,5, 6, 8, 10, 11, 12, 13, 15, 18 and Part of Block 9 on Registered Plan IOM-831 Town of Newcastle, Regional Municipality of Durham. Subject to a right of way in favour of Ontario Hydro over Parts of Blocks 10, 11, 12 and 13 on Registered Plan IOM-831 for the purposes as set out in Instrument No. 17979. Subject to an easement in favour of Ontario Hydro over Part of Block 13 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 10261. Subject to an easement in favour of Ontario Hydro. over Parts of Block 15 and 18 on Registered Plan IOM-831 for the purposes as set out in Instrument No. 5949. Subject to an easement in favour of Ontario Hydro over Part of Block 18 on Registered Plan IOM-831 for the purposes as set out in Instrument No. 15158. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 4 and 15 on Registered Plan IOM-831 for the purposes as set out in Transfer of Easement No. 1414. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 9 and 15 on Registered Plan IOM-831 for the purposes as set out in Transfer of Easement No. 6241. g3 G�� �J IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) i 1 ;, ) �(L cz, MAYOR CLE CARHOLME INVESTMENTS LIMITED PRES DENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED P DENT 16 SCHEDULE 'B" THIS SCHEDULE IS SCHEDULE 'B" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. LEGAL DESCRIPTION OF ESQUIRE LANDS ALL AND SINGULAR that certain parcel or tract of land and premises situate lying and being in the Town of Bowmanville now in the Town of Newcastle, Regional Municipality of Durham being Part of Lot 7, in the Broken Front Concession of the Township of Darlington and all of lots 11 to 25 inclusive Part of the un-named streets and Part of Lots 9, 10, 27 and 26 as shown on the Cubit Plan of Subdivision deposited in the Registry Office for the Registry Division of Newcastle designated as Parts 28 to 33 both inclusive on a Reference plan deposited in the Registry Office for the Registry Division of Newcastle as 10R-2197. Subject to an easement in favour of Ontario Hydro over Part 32 on Plan 10R-2197 for the purposes as set out in Instrument No. 17979. Subject to an easement in favour of the Regional Municipality of Durham over Part 30 on Plan 10R-2197 for the purposes as set out in Instrument No. 131032. 3 ��' l� IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: } MAYOR ) L ) ) CL K CARHOLME INVESTMENTS LIMI'T'ED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT J SCHEDULE "C" THIS SCHEDULE IS SCHEDULE "C" to the Agreement which has been authorized and approved by By-law No.89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. LEGAL DESCRIPTION OF OCEANFRONT LANDS ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Town of Bowmanville in the Town of Newcastle, in the Regional Municipality of Durham being Part of Lot 6, in the Broken Front Concession, in the Township of Darlington designated as Parts 34, 35, 36, 37 and 3118 on a Reference Plan deposited in the Registry Office for the Registry Division of Newcastle as 10R-2197. Subject to an easement in favour of the Regional Municipality of Durham over Part 37 on Plan 1OR-2197 for the purposes as set out in Instrument No. 132064. d� IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) A, ) I ) ) MAYOR CL CARHOLME INVESTMENTS LIMITED PRE IDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT 10 SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. WORKS REQUIRED 1. CHANNEL WORKS The works shown on Plan No. 2846-008, Sheets 1 through 9, inclusive, of 10, dated September 30, 1988 on file at the Department of Public Works of the Town of Newcastle. 2. CN WORKS The works shown on Plan No. 2846-008, Sheet 10 of 10 dated September 30, 1988 - Mile 289.79, Kingston Subdivision, on file at the Department of Public Works of the Town of Newcastle. �tl IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) F` n ) f MAYOR CLER CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED ) l PRESIDENT Z� SCHEDULE "E" THIS SCHEDULE IS SCHEDULE "E" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. LAND TO BE DEDICATED The Owners shall deliver to the Town in a form satisfactory to the Town, deeds to the following lands: ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the former Township of Darlington now the Town of Newcastle in the Regional Municipality of Durham, being composed of parts of Lots 21 to 26 both inclusive as shown on the unregistered plan of subdivision known as the Cubit Plan being composed of Part of Lot 7 in the Broken Front Concession, now designated as Part 1 on Plan 10R-3317. ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the former Township of Darlington now the Town of Newcastle in the Regional Municipality of Durham, being composed of part of Lot 7 in the Broken Front Concession and part of Lots 19, 20 and the unnamed street on the south side of Lot 19 as shown on the unregistered plan of subdivision known as the Cubit Plan, now designated as Part 3 on Plan 10R-3317. u IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) ) MAYOR CLER CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "F' THIS SCHEDULE IS SCHEDULE "F"to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989 as amended by By-law No. 90-203 of the Corporation of the Town of Newcastle, enacted and passed the 10th day of December, 1990. COST ESTIMATES CN WORKS Twin Culverts under CNR Tracks as per Tender $370,000 15% Engineering 55,500 15% Contingencies 55.500 Total Estimated Cost of CN Works $481,000 CHANNEL WORKS Estimated Cost of Channelization Works $312,000 15% Engineering 47,000 15% Contingencies 47,000 Total Estimated Cost of Channel Works $406,000 TOTAL ESTIMATED COST OF WORKS $887,000 The Performance Guarantees have been based on Preliminary Estimates only and, when the final Engineering Drawings have been approved by the Director of Public Works, a revised Cost Estimate of the Works shall be prepared by the Owners' Engineer and submitted to the Director for approval. This revised Cost Estimate shall be used as a basis to adjust the Performance Guarantees, if the Estimate increases or decreases. ti IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of- ) y � i `fNIAYOR C CARHOLME INVESTMENTS LLITED PRESIDENT ESQUIRE DEVELOPMENTS LIMi T ED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED I NT SCHEDULE "G" THIS SCHEDULE IS SCHEDULE "G" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. INSURANCE POLICIES REQUIRED 1. TYPES OF COVERAGE REQUIRED The Owners shall obtain and maintain insurance of the character commonly referred to as public liability and property damage with an insurance company approved by the Municipal Treasurer and duly authorized by law to underwrite such insurance. Such policy or policies of insurance shall indemnify the Town against all damages or claims for damages for: (a) any loss or damage that shall or may happen to any of the Works or any of the Utilities or to any part or parts thereof respectively; and (b) any loss or damage that shall or may happen to any of the materials or any of the equipment or any other things used to construct or install any of the Works or any of the Utilities or any part or parts thereof respectively, and (c) any injury to any person or persons including workmen employed on the said Lands and the public; and (d) any loss or damage that shall or may result from the drainage of surface waters on or from the said Lands; and (e) any loss or damage that shall or may result from the disposal of effluent from any sewage disposal works; and (f) any loss or damage that shall or may happen to any public road or to any other property of the Town or to the property of any other person either directly or indirectly by reason of the Owners undertaking the development of the said Lands together with any or all of the Works and Utilities pertaining thereto. 2. AMOUNTS OF COVERAGE REQUIRED Policy or policies of insurance shall be issued jointly in the names of the Owners and the Town and shall provide the following minimum coverage: (a) $5,000,000.00 for each occurrence. The issuance of such policy or policies of insurance shall not be construed to relieve the Owners from responsibility for other or larger claims for which it may be held responsible. 3. EXEMPTION OF COVERAGE PROHIBITED The policy or policies of insurance shall contain no coverage exemptions or limitations for: (a) any shoring, underpinning, raising or demolition of any building or structure; or (b) any pile driving or caisson work; or (c) any collapse or subsidence of any building, st Lure or land from any cause. SCHEDULE "H" THIS SCHEDULE IS SCHEDULE "H" to the Agreement which has been authorized and approved by Sy-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. ENGINEERING AND INSPECTION FEES FOR DEVELOPMENT Estimated Costs of Works Fees (Schedule "F") Up to $100,000.00 4% to a MAXIMUM OF $4,000.00 $100,000.00 TO $500,000.00 $4,000.00 or 3.5% of the estimated cost of services - whichever is greater $500,000.00 to $1,000,000.00 $17,500.00 or 3% of the estimated cost of services - whichever is greater $1,000,000.00 to $2,000,000.00 $30,000.00 or 2.5% of the estimated cost of services - whichever is greater $2,000,000.00 to $3,000,000.00 $50,000.00 or 2.25% of the estimated cost of services - whichever is greater $3,000,000.00 to $4,000,000.00 $67,500.00 or 2% of the estimated cost of services - whichever is greater For the purposes of calculating the Engineering and Inspection Fees as contemplated by this Schedule, the estimated costs of works shall include the Cost Estimates as specified in Schedule "F" hereto. The aforesaid amount is to be paid prior to the issuance of the Authorization to Commence Work. n IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) MAYOR CLE CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT 3� SCHEDULE "I" THIS SCHEDULE IS SCHEDULE "I" to the Agreement which has been authorized and approved by-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. DUTIES OF OWNERS' ENGINEER 1. DESIGN WORKS The Owners' Engineer shall prepare the following for the approval of the Director: (a) the Engineering Drawings; (b) the Works Cost Estimate. The approval of the Director shall not absolve the Owners or the Owners' Engineer of the responsibility for any errors or omissions in the above drawings, Plans or documents. 2. REPRESENT OWNERS AND OBTAIN APPROVALS The Owners' Engineer shall act as the Owners' representative in all matters pertaining to the construction and installation of the Works and shall cooperate with the Town to obtain the necessary approvals for construction and installation. 3. PROVIDE RESIDENT INSPECTION The Owners' Engineer shall provide fully qualified inspection staff to provide continuous inspection service during all phases of the construction and installation of the Works and to perform the following: (a) provide control information to permit contractor to lay out the work; and (b) inspect the construction and installation to ensure that all work is being performed in accordance with the contract documents; and (c) arrange for or carry out all necessary field testing of materials and equipment installed or proposed to be installed at the request of the Director; and (d) provide coordination and scheduling of the construction and installation in accordance with the requirements of the Director; and (e) investigate and report to the Director any unusual circumstances which may arise during the construction and installation; and (f) obtain field information, during and upon completion of the construction and installation, required to modify the Engineering Drawings to produce the As- Constructed drawings. 4. MAINTAIN RECORDS The Owners' Engineer shall maintain all records pertaining to the construction and installation. 5. PROVIDE PROGRESS REPORTS The Owners' Engineer shall provide the Director with reports on the progress the construction and installation on a monthly basis, or at such other interval as approved by the Director. ITl/ 6. PREPARE AS CONSTRUCTED DRAWINGS The Owners' Engineer shall prepare the As-Constructed Drawings for the approval of the Director. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) AV MAYOR CL CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT _- Form No.905 Province of Document General D Ontario 84 Form 4—Land Registration Reform Act,19 (1) Registry ® Land Titles ❑ (2) Page 1 of 32 pages (3) Property Block Property IdentifNr(s) Additional: See ❑ Schedule _. 0 (4)Nature of Document Drainage Agreement } (5)consideration z '• �+. "' O cZ Dollars$ LLI U) w (6)Description C7-3�' w ? _ w Part of Lot 7, in the Broken Front Concession, of the U. a N z Township of Darlington and all of Lots 11 to 25 U. -� o inclusive, Part of un-named streets and Part of Lots 9, cc 0 10, 26 and 27 as shown on the Cubit Plan of Subdivision z z °� deposited in the Registry Office for the Registry Division of Newcastle designated as Parts 28 to 33 both New Property Identifiers inclusive on Reference Plan 1OR-2197, Town of Newcastle, Additional: Regional Municipality of Durham, Registry Division of See Schedule ❑ Newcastle. Executions See Schedule attached. (7)This (a) Redescription ; (b)Schedule for: Additional: Document New Easement I Additional Schedule ❑ Contains: Plan/Sketch ❑ Description ® Parties F-1 Other (8)This Document provides as follows: See Schedule attached. Continued on Schedule (9)This Document relates to Instrument number(s) (10) Party(ies).(Set out Status or Interest) Name(s) Sign s) Date of Signature Y M D ESQUIRE DEVELOPMENTS LIMITED ;1991 Ol.07 . . .by its solicitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Mark H. Mincer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11)Address forService 805 Lakeshore Boulevard East, Toronto, Ontario, M4M 1B2 (12) Party(ies) (Set out Status or Interest) Name(s) Signature(s) Date of Signature Y M D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . � . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . L . . . . . . . . . I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . L . . . . . : . . ... . (13)Address for Service (14) Municipal Address of Property (15) Document Prepared by: } Fees and Tax Multiple Mark H. Mincer File 87/4660 o Registration Fee GOODMAN AND CARR W SUITE 2300 U) 200 KING STREET WEST TORONTO,ONTARIO M5H 3W5 W TELEPHONE:(416)595-2300 2 LL O cc LL Total 10174(12/84) UVC 6)UHH�IM VU.LIMIT cu Form No.985 �gC��,_7�T Province Document General W, of v Ontario Form 4—Land Registration Reform Act,1984 (1) Registry ® Land Titles ❑ (2) Page 1 of 32 pages (3) Property Block Property Identifier(s) Additional: See Schedule (4)Nature of Document Drainage Agreement } (5)Consideration J p Dollars$ w C/) (6)Description D Part of Lot 7, in the Broken Front Concession, of the Township of Darlington and all of Lots 11 to 25 o inclusive, Part of un-named streets and Part of Lots 9, °C 10, 26 and 27 as shown on the Cubit Plan of Subdivision 0 deposited in the Registry Office for the Registry Division of Newcastle designated as Parts 28 to 33 both New Property Identifiers inclusive on Reference Plan 1OR-2197, Town of Newcastle, Additional: Regional Municipality of Durham, Registry Division of see schedule ❑ Newcastle. Executions See Schedule attached. (7)This (a) Redescription (b) Schedule for: Additional: Document New Easement Additional See ❑ Contains: Plan/Sketch El Description ® Parties Other Schedule (8)This Document provides as follows: See Schedule attached. Continued on Schedule (9)This Document relates to instrument number(s) (10) Party(ies)_(Set out Status or Interest) Name(s) Signature Date of Signature Y M D ESQUIRE .DEVELOPMENTS LIMITED . , . . . ;1991 O1 ! � . .W.its solicitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . MarkH. Mincer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (11)Address for Service 805 Lakeshore Boulevard East, Toronto, Ontario, M4M 1B2 (12) Party(ies) (Set out Status or Interest) Name(s) Signature(s) Date of Signature Y M D • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I I i (13)Address for Service (14) Municipal Address of Property (15) Document Prepared by: } Fees and Tax Multiple Mark H. Mincer File 87/4660 o Registration Fee GOODMAN AND CARR w SUITE 2300 200 KING STREET WEST TORONTO,ONTARIO M5H 3W5 uJ TELEPHONE:(416)595-2300 U LL u_ O u_ Total Ill 10174(12/84) �T THIS AGREEMENT made, as of the 3i5/ day of , 1990. BETWEEN: THE CORPORATION OF THE TOWN OF NEWCASTLE (hereinafter called the "Town") OF THE FIRST PART - and - CARHOLME INVESTMENTS LIMITED (hereinafter called "Carholme") OF THE SECOND PART - and - ESQUIRE DEVELOPMENTS LIMITED (hereinafter called "Esquire") OF THE THIRD PART - and - OCEANFRONT DEVELOPMENTS LIMITED (hereinafter called "Oceanfront") OF THE FOURTH PART WITNESSETH THAT: WHEREAS Carholme warrants that it is the registered owner of the lands described in Schedule "A"; AND WHEREAS Esquire warrants that it is the registered owner of the lands described in Schedule "B"; AND WHEREAS Oceanfront warrants that it is the registered owner of the lands described in Schedule "C"; AND WHEREAS the lands affected by this Agreement are the lands described in Schedules "A","B"and "C"; AND WHEREAS the Town warrants that it has entered, or will enter into a Pipe Crossing Agreement (hereinafter called the "Pipe Crossing Agreement") with the Canadian National Railway Company for permission to construct and maintain the pipe crossing shown on Plan No. 2846-008, Sheet 10 of 10, dated September 30, 1988 - Mile 289.79,Kingston Subdivision (hereinafter called the "CN Works"), as described in Schedule "D"; AND WHEREAS the Owners have agreed to be responsible for the installation and construction of the CN Works and certain other channel works (hereinafter called the "Channel Works") as described in Schedule "D"hereto; AND WHEREAS the CN Works and the Channel Works are sometimes hereinafter singularly and collectively called the "Works"; NOW THEREFORE, in consideration of the mutual agreements, covenants and promises herein contained, and other good and valuable consideration, the parties hereto agree as follows: k 1. DEDICATION OF LANDS Esquire shall, at the time of the execution of this Agreement, deliver to the Town an executed deed of conveyance, sufficient to vest in the Town, absolute title in fee simple, free and clear of all liens, charges, encumbrances and easements, the lands set out in Schedule "E" hereto. 2. REGISTRATION OF DEEDS The aforementioned deed shall be prepared by the Owners and registered at the Owners' expense. 3. INTEREST IN SAID LANDS Each Owner hereby severally charges its interest in its lands with the obligations set forth in this Agreement, on the following proportionate share basis, which has been calculated by reference to developable lands owned by each: Proportionate Share of Owner Obligations to Town Carholme 49.14% Esquire 27.71% Oceanfront 23.15% 4. NOTIFICATION OF OWNERS If any notice is required to be given by the Town to the Owners in respect of this Agreement, such notice shall be mailed or delivered to: Mr. R. Sobottka President Carholme Investments Limited 805 Lakeshore Boulevard East Toronto, Ontario M4M 1132 Mr. R. Sobottka President Esquire Developments Limited 805 Lakeshore Boulevard East Toronto, Ontario M4M 1B2 Mr. Walter Frank President Oceanfront Developments Limited 115 Simcoe Street South Oshawa, Ontario UH 4G7 or such address of which each Owner has notified the Town, in writing, and any such notice mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement. 5. REGISTRATION OF AGREEMENT The Owners hereby consent to the registration of this Agreement by the Town, against each of the Owners' lands described in Schedules "A", "B" and "C" hereto. 6. TOWN TO ACT PROMPTLY Wherever the Town, or the Town's Solicitor, or the Treasurer for the Town, or the Town's Director of Public Works (hereinafter called the "Director") is required to take action pursuant to this Agreement, or is required to make a decision or render an opinion, or give confirmation or give authorization, permission or approval, then such action, decision, confirmation, authorization, permission or approval shall be made promptly and in all respects the Town and its officers, servants or agents shall act reasonably. 7. ASSIGNMENT OF AGREEMENT The Owner will not assign this Agreement without prior written consent of the Town and no such assignment shall relieve the subsequent owner of any of his obligations under this Agreement. 8. SCHEDULES TO AGREEMENT The following schedules which are identified by the signatures of the parties to this Agreement, and which are attached hereto, together with all provisions contained therein, are hereby made a part of this Agreement as fully and to all intents and purposes as though recited in full herein: Schedule ",N' - "Legal Description of Carholme Lands" Schedule "B" - "Legal Description of Esquire Lands" Schedule "C" - "Legal Description of Oceanfront Lands" Schedule "D" - "Works Required" Schedule "E" - "Lands to be Dedicated" Schedule "F" - "Cost Estimates" Schedule "G" - "Insurance Policies Required" Schedule "H"- "Engineering and Inspection Fees" Schedule "I" - "Duties of Owners' Engineer" 9. SUCCESSORS This Agreement shall enure to the benefit of and be binding upon all of the parties hereto, its, his or her respective heirs, executors, administrators, successors or assigns. 10. PERFORMANCE GUARANTEE REQUIRED (1) Each Owner shall, prior to the issuance of any Authorization to Commence Work, lodge with the Town cash or an irrevocable letter of credit issued by a chartered Canadian bank, guaranteeing the performance by each Owner. of its respective proportionate share of obligations set forth in this Agreement. Such cash or irrevocable letter of credit shall be in an amount equal to the estimated cost of construction of the Works as set out in Schedule "F" hereto. (2) All documents furnished under this paragraph shall be approved by the Treasurer of the Town. (3) The cash or irrevocable letter as provided in subparagraph (1) hereof are hereinafter collectively referred to as a "Performance Guarantee". ,i 11. USE OF PERFORMANCE GUARANTEE Each Owner agrees that the Town may, at any time, authorize the use of all or part of any Performance Guarantee if that Owner fails to pay any costs payable by it to the Town under this Agreement by due date of the invoice for such costs. 12. INDEMNIFICATION OF TOWN AND INSURANCE Until the issuance of the Certificate of Release provided for in this Agreement, the Owner covenants and agrees to indemnify the Town against all actions, causes of actions, suits, claims and demands whatsoever and howsoever caused, which arise either by reason of the development of said lands, or the undertaking of the design, construction, installation and maintenance of the Works and Utilities. The Owner shall also provide the insurance called for by Schedule "G" of this Agreement. 13. MAINTENANCE GUARANTEE REQUIRED In order to guarantee that all defects in the Works which become apparent after the issuance of a Certificate of Completion for such Works, will be properly repaired or replaced, each Owner shall, prior to the issuance of the Certificate of Completion for such Works, lodge with the Town a Maintenance Guarantee in the form of cash or an irrevocable letter of credit from a chartered Canadian bank, and in an amount equal to fifteen percent (15%) of the estimated cost of the Works as set out in Schedule "F" hereto. The form of the Maintenance Guarantee shall be subject to the approval of the Town Treasurer, and shall guarantee the Works from the date of the issuance of a "Certificate of Completion" for the works referred to in Paragraph 34, for a minimum period of two (2) years, which period terminates on the date of the "Certificate of Acceptance" for the Works as referred to in Paragraph 36. 14. USE OF MAINTENANCE GUARANTEE Each Owner agrees that the Town may, at any time, authorize the use of all or any part of an Owner's Maintenance Guarantee if that Owner fails to pay any costs payable by it to the Town under this Agreement, by the due date of the invoice for such costs. 15. REQUIREMENTS FOR RELEASE OF PERFORMANCE GUARANTEE The Owners agree that the Town shall not be obliged to release to the Owners the unused portion of any Performance Guarantee until: (1) a Certificate of Completion has been issued for the Works for which such Performance Guarantee was required; and (2) the Owners have deposited with the Town the Maintenance Guarantee applying to those Works for which such Performance Guarantee was required; and (3) the Town is satisfied that in respect of the construction and installation of the Works for which such Performance Guarantee was required, there are no outstanding claims relating to such Works; and (4) the Town may, from time to time, at the discretion of the Director of Public Works, reduce the amount of the value of the Performance Guarantee to reflect the progress of the Works required to an amount equal to the value of the uncompleted Works, plus fifteen percent (15%) of the value of the completed Works on approval by the Director of a Progress Certificate prepared by the Owners' Engineer. WAJr 7 16. REQUIREMENTS FOR RELEASE OF MAINTENANCE GUARANTEE The Owners agree that the Town shall not be obliged to release to the Owners the unused portion of any Maintenance Guarantee until: (1) a Certificate of Acceptance has been issued for the Works for which such Maintenance Guarantee was required; and (2) the Town is satisfied that, in respect of the maintenance of all of the Works for which such Maintenance Guarantee was required, there are no outstanding claims relating to such Works; and (3) the Town has received the as-built drawings for the Works, as required by the Director. 17. PAYMENT OF MUNICIPAL COSTS (1) Every provision of this Agreement by which the Owners are obliged in any way shall be deemed to include the words "at the expense of the Owners" unless the context otherwise requires. (2) The Owners shall pay to the Town for all estimated engineering and inspection costs in accordance with the provisions of Schedule "H" hereto. (3) The Owners shall reimburse the Town for all reasonable legal, planning, engineering and other technical advice, and administrative expenses actually incurred for the preparation and registration of this Agreement, and the legal services contemplated by the terms of the Agreement, which shall include the review of the Performance Guarantee and the preparation of any release. (4) The Owners shall have the right to inspect, upon reasonable notice, during regular business hours, such accounts, invoices, time records and other documents and calculations of charges for which the Town is seeking reimbursement, as noted in paragraph (3) above. (5) The Owners shall pay to Canadian National Railways the sum of FIVE HUNDRED AND FORTY DOLLARS ($540.00) in payment of the charge imposed pursuant to Clause 3 of the Pipe Crossing Agreement. 18. UNPAID CHARGES The due date of any sum of money payable herein, unless a shorter time is specified, shall be thirty (30) days after the date of the invoice. Interest shall be payable by the Owners to the Town on all sums of money payable herein, which are not paid on the due dates. The interest penalty charges will be the same rate as charged on outstanding tax balances. 19. TOWN WORKS REQUIRED The Owners shall be responsible for the construction and installation of the Works. Upon commencement of construction of the Works and until the issuance of a Certificate of Acceptance as hereinafter provided, the Owners shall be fully responsible for their maintenance. After the issuance of a Certificate of Acceptance: (1) The CN Works referred to in Schedule "D" shall be maintained by the Town in accordance with the Pipe Crossing Agreement; and (2) The Channel Works referred to in Schedule "D" shall vest in and become the responsibility of the Town. 20. OWNERS' ENGINEER The Owners shall retain a Professional Civil Engineer, registered by the Association of Professional Engineers of Ontario and herein called the "Owners' Engineer", to administer this Agreement, whose duties are set out in Schedule "I" hereto. 21. DESIGN OF WORKS The Owners agree that the design of all the Works shall comply with the Design Criteria and Standard Detail Drawings of the Town. In the event of any dispute as to such standards or in the event of any dispute as to such design requirements, the decision of the Director shall be final. 22. APPROVAL OF ENGINEERING DRAWINGS The Owners shall, prior to the issuance of any Authorization to Commence Work as provided herein, have received the written approval of the Director for all drawings of all the Works hereinafter called the 'Engineering Drawings". If no construction of the Works has commenced within two (2) years of the date of approval of the Engineering Drawings, the Engineering Drawings shall be resubmitted to the Director for re-approval and further revisions if required by the Director, and no work shall be done unless in accordance with the said revised and re-approved drawings. 23. APPROVAL OF SCHEDULE OF WORKS The Owners shall, prior to the issuance of any Authorization to Commence Work, as hereinafter provided, receive the written approval of the Director of a schedule (hereinafter called the "Schedule of Works") which sets out the timing sequence in which the Owners propose to construct and install all of the Works. The Owners shall proceed only in accordance with the approved schedule, except as it may be subsequently amended with the approval of the Director. 24. APPROVAL OF COST ESTIMATE The Owners agree that, prior to the issuance of any Authorization to Commence Work as hereinafter provided, the estimated cost of construction and installation of all of the Works, hereinafter called the "Works Cost Estimate" shall be approved by the Director and entered in Schedule "F" hereto. 25. REQUIREMENTS FOR AUTHORIZATION TO COMMENCE WORK The Owners shall not commence the construction or installation of any of the Works without the written permission of the Town, hereinafter called the "Authorization to Commence Work". The Owners shall only commence those works permitted by the Authorization to Commence Work. In addition to any other requirements contained herein, no Authorization to Commence Work shall be issued for any of the Works until: (1) this Agreement has been registered on title as required in Paragraph 5 of this Agreement; and (2) the Owners have conveyed to the Town any lands required by Paragraph 1 of this Agreement; and (3) the Owners have appointed an Engineer as required by Paragraph 20 of this Agreement; and (4) the Owners have received the written approval of the Director for the Engineering Drawings as required by Paragraph 22 of this Agreement; and (5) the Owners have received the written approval of the Director for the work more particularly referred to in Schedule "D'; and o�jam, (6) the Owners have received the written approval of the Director for the Schedule of Works as required by Paragraph 23 of this Agreement; and (7) the Owners have received the written approval of the Director for the Works Cost Estimate as required by Paragraph 24 of this Agreement; and (8) the Owners have deposited with the Town the Performance Guarantee as required by Paragraph 10 of this Agreement; and (9) the Owners have deposited with the Town any policies of insurance as required by Paragraph 12 of this Agreement; and (10) the Owners have paid all Town costs as required by Paragraph 17 of this Agreement as of the date of the issuance of the Authorization to Commence Works. (11) notwithstanding the above, the Owners may commence installation of the Works as referred to in Schedule "D" hereto with the written approval of the Director, prior to the registration of this Agreement, provided that Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10 of this Clause have been satisfied. No Certificate of Acceptance of the work, as referred to in Clause 36 of this Agreement, shall be issued by the Director, until this Agreement has been registered and all other requirements relevant to the Certificate of Acceptance have been met. The construction or installation of any of the work pursuant to this clause shall, notwithstanding the aforementioned approval of the Director, be taken at the sole risk of the Owners. The Owners shall save harmless the Municipality from any action or cause of action resulting from the construction or installation of any of the work as may be undertaken pursuant to this Clause. 26. INSPECTION AND STOP WORK The contract with any contractor employed by the Owners to construct or install any of the Works shall provide that employees or agents of the Municipality may, at any time, inspect the work of such contractor pertaining to the said Lands and the Director, after consultation with the Owners' Engineer, shall have the power to stop any such work in the event that, in their opinion, work is being performed in a manner which may result in a completed installation that would not be satisfactory to the Town or in the event the financial guarantees, required pursuant to this Agreement, are not maintained in good standing. 27. PROVISIONS FOR CONSTRUCTION AND INSTALLATION All of the Works shall be constructed and installed in accordance with the Engineering Drawings as approved by the Director. No variation from the Engineering Drawings shall be permitted unless such variation is authorized in writing by the Director. 28. SEQUENCE OF CONSTRUCTION AND INSTALLATION The Owners shall, upon the issuance of an Authorization to Commence Work, proceed to construct and install all of the Works continuously and as required by the approved Schedule of Works. 29. COMPLETION TIME FOR CONSTRUCTION AND INSTALLATION The Owners shall, within two (2) years of the date of the issuance of an Authorization to Commence Work, complete the construction and installation of all of the Works authorized in such Authorization to Commence Work. l� 30. ADDITIONAL FACILITIES OR WORK REQUIRED If, in the opinion of the Director, any minor or incidental additional work is required to provide for the adequate operation and functioning of the Works, the Owners shall, until the conclusion of the maintenance guarantee period, construct or install such additional facilities and perform such additional work as the Town may request from time to time. 31. INCOMPLETE OR FAULTY WORK (1) If, in the opinion of the Director, the Owners are not executing or causing to be executed the Work required by this Agreement, in such a manner that it will be completed within the time specified for such completion, or if the said Work is being improperly done, or if the Owners neglect or abandon the said Work, or any part of it, before completion, or unreasonably delay the execution of the same, or if in any other manner the said Work is not being done properly and promptly in full compliance with the provisions of this Agreement, or in the event that the Owners neglect or refuse to do over again any Work which may be rejected by the Director as defective or unsuitable, or if the Owners in any -other manner in the opinion of the Director may default in performance under this Agreement, then in any such case the Director on the authority of the Council of the Town may notify the Owners and their surety in writing of such default or neglect and within ten (10) clear days after the giving of such notice or within such further period of time as may be specified in the notice, the Town Council shall thereupon have full authority and power immediately at its option to employ a contractor or such workmen as in the opinion of the Director shall be required for the proper completion of such work at the cost and expense of the Owners or their surety, or both. In cases of emergency, in the opinion of the Director, such work may be done without prior notice, but the Owners shall forthwith be notified. The cost of such work shall be calculated by the Director, whose decision shall be final. It is understood and agreed that the total costs shall include a management fee of thirty (30%) percent of contractor's charges to the Town (including any charges for overhead and profit) or, if such work is undertaken by the Town, thirty (30%) percent of all charges incurred to complete the work, it being hereby declared and agreed that the assuming by the Owners of the obligations imposed by this clause is one of the considerations without which the Municipality would not have executed this Agreement. (2) In the event that any liens are filed under The Construction Lien Act, such filings shall constitute a default in performance under this Agreement, then in any such case the Director may notify the Owners and their surety in writing of such default and if the Owners fail to satisfy claims of the lien claimant within ten (10) clear days after the giving of such notice or within such further period of time as may be specified in the notice, then the Municipal Council shall thereupon have full authority and power immediately at its option, to pay the full amount of the claim and costs into an appropriate court having jurisdiction and the Municipality shall be authorized to use all or part of any performance or maintenance guarantee to do so. In the event that the Municipality draws upon the Performance or Maintenance Guarantee to satisfy the claims and costs of any lien claimant, the Owners shall forthwith upon notice from the Director reinstate the Performance or Maintenance Guarantee to the full value required under the terms of the Agreement. 32. ENTRY FOR EMERGENCY REPAIRS The Owners agree that, at any time and from time to time, employees or agencies of the Town may enter the said Lands for the purpose of making emergency repairs to any of the Works. Such entry and repairing shall not be deemed an acceptance of any of the Works by the Town, nor an assumption by the Town of any liability in connection therewith, nor a release of the Owners from any of their obligations under this Agreement. 1f 33. USE OF WORKS BY TOWN The Owners agree that any of the Works may be used by the Town or other authorized persons, for the purposes for which the Works are designed. Such use of any of the Works shall not be deemed an acceptance of any of the Works by the Town nor an assumption by the Town of any liability in connection therewith, nor a release of the Owners from any of their obligations under this Agreement. 34. REQUIREMENTS FOR CERTIFICATE OF COMPLETION The Owners agree that the construction and installation of any of the Works authorized in an Authorization to Commence Work shall not be deemed to be completed for the purposes of this Agreement until the Director has provided the Owners with written confirmation thereof, referred to herein as a "Certificate of Completion". In addition to any other requirements contained herein, no Certificate of Completion shall be issued until: (1) Such of the Works authorized by the Authorization to Commence Work for which a Certificate of Completion is required, have been inspected by the Director, and he is satisfied such Works have been constructed and installed in accordance with the latest version of the Engineering Drawings approved by the Director; and (2) The Town is satisfied that, in respect of the construction and installation of all of the Works authorized by such an Authorization to Commence Work, there are no outstanding claims relating to such Works. 35. PERIOD OF REQUIRED MAINTENANCE OF WORKS The Owners shall, from the date of issuance of a Certificate of Completion, maintain all of the Works covered by such Certificate of Completion for a minimum period of two (2) years which period terminates on the date of the Certificate of Acceptance of said Works as referred to in Paragraph 36. 36. REQUIREMENTS FOR CERTIFICATE OF ACCEPTANCE The Owners agree that any of the Works covered by a Certificate of Completion shall not be accepted, nor deemed to be accepted, for the purpose of this Agreement, until the Director has provided the Owners with written confirmation thereof, referred to herein as a "Certificate of Acceptance". In addition to any other requirements contained herein, no Certificate of Acceptance shall be issued until all of the Works covered by such Certificate of Completion have been inspected by the Director and the Town Council has approved the written report of the Director that all such Works have been maintained to the approval of the Director for the period set out in Paragraph 35 of this Agreement. 37. REQUIREMENTS FOR CERTIFICATE OF RELEASE Upon compliance with subparagraphs (1), and (2) hereof, the Town agrees to provide the Owners with a written release for the said Lands, referred to herein as the "Certificate of Release", in a form suitable for registration or deposit in the applicable Registry or Land Titles Office. In addition to any of the requirements contained herein, the Certificate of Release shall not be issued until: (1) Certificates of Acceptance have been issued for all of the Works; and (2) the Town Council has, by resolution, acknowledged that the Owners have met all of the provisions of this Agreement. The Certificate of Release shall operate as a discharge of the land described therein of all obligations of the Owners under this Agreement. 38. BENEFITING OWNERS (1) The Town agrees to use its best efforts to collect and reimburse the cost of the Works to each of the Owners, from owners of lands located north of Highway 401 and east of Lamb's Road which will discharge storm water into Bennett Creek. The Works from which these owners will benefit shall hereafter be referred to as the "Oversized Works." The Town agrees to make its best effort to collect the costs from each such benefiting owner prior to the issuance of an Authorization to Commence Work or a Building Permit to these benefiting owners, whichever comes first. (2) In determining the cost of the Works to be reimbursed, there shall be added annually from the first anniversary of the issuance of the Certificate of Completion to the Costs set out in Schedule "F",a sum equal to the interest on the amount of the unpaid balance form time to time of the Certificate of Completion, at the highest prime lending rate charged during the previous calendar year by the Bank of Montreal at its main branch in the City of Toronto, plus two percent (2%). (3) In the event that payment is required to be made under this paragraph by the Town before the issuance of a Certificate of Completion, no interest shall be added to the cost of the Oversized Works. (4) In the event that payment is required to be made under this paragraph by the Town before the first anniversary of the issuance of a Certificate of Completion, interest shall be calculated at the highest prime rate charged by such bank as described in paragraph (2) above, plus two percent (2%) from the date of the issuance of the Certificate of Completion to the date of payment. Interest shall be calculated on a per diem basis to the date of payment. (5) As funds are collected by the Town, the Town agrees to reimburse each Owner on the proportionate share basis set out in Paragraph 3 of this Agreement. It is acknowledged that the estimated construction cost of the Works is EIGHT HUNDRED AND EIGHTY SEVEN THOUSAND DOLLARS ($887,000), including engineering fees and contingencies. Upon completion of construction of the Works, this estimate shall be updated to reflect the "as constructed" costs and such costs shall be approved by the Director. (6) The Town and the Owners agree that the funds to be collected from benefiting owners are to be calculated based on the Cost Sharing Report for the Bennett Creek Watershed. This report shall be to the satisfaction of the Director. (7) The obligation of the Town to collect from benefiting owners pursuant to this clause shall be in effect for ten (10) years from the date of the issuance of any Certificate of Completion of the Works for which reimbursement is sought. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) MAYOR AXLJ CLE CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMI`IED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle enacted and passed the 11th day of September, 1989 as amended by By-law 90-203 of the Corporation of the Town of Newcastle enacted and passed the 10th day of December, 1990. LEGAL DESCRIPTION OF CARHOLME LANDS The whole of Blocks 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 18 and Part of Block 9 on Registered Plan IOM-831 Town of Newcastle, Regional Municipality of Durham. Subject to a right of way in favour of Ontario Hydro over Parts of Blocks 10, 11, 12 and 13 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 17979. Subject to an easement in favour of Ontario Hydro over Part of Block 13 on Registered Plan IOM-831 for the purposes as set out in Instrument No. 10261. Subject to an easement in favour of Ontario Hydro over Parts of Block 15 and 18 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 5949. Subject to an easement in favour of Ontario Hydro over Part of Block 18 on Registered Plan IOM-831 for the purposes as set out in Instrument No. 15158. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 4 and 15 on Registered Plan IOM-831 for the purposes as set out in Transfer of Easement No. 1414. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 9 and 15 on Registered Plan IOM-831 for the purposes as set out in Transfer of Easement No. 6241. A ht v n F li IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of. ) V'6 MAYOR CL CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "B" THIS SCHEDULE IS SCHEDULE "B" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. LEGAL DESCRIPTION OF ESQUIRE LANDS ALL AND SINGULAR that certain parcel or tract of land and premises situate lying and being in the Town of Bowmanville now in the Town of Newcastle, Regional Municipality of Durham being Part of Lot 7, in the Broken Front Concession of the Township of Darlington and all of lots 11 to 25 inclusive Part of the un-named streets and Part of Lots 9, 10, 27 and 26 as shown on the Cubit Plan of Subdivision deposited in the Registry Office for the Registry Division of Newcastle designated as Parts 28 to 33 both inclusive on a Reference plan deposited in the Registry Office for the Registry Division of Newcastle as 10R-2197. Subject to an easement in favour of Ontario Hydro over Part 32 on Plan IOR-2197 for the purposes as set out in Instrument No. 17979. Subject to an easement in favour of the Regional Municipality of Durham over Part 30 on Plan 10R-2197 for the purposes as set out in Instrument No. 131032. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) MAYOR CLE CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT ) OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "C" THIS SCHEDULE IS SCHEDULE "C" to the Agreement which has been authorized and approved by By-law No.89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. LEGAL DESCRIPTION OF OCEANFRONT LANDS ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Town of Bowmanville in the Town of Newcastle, in the Regional Municipality of Durham being Part of Lot 6, in the Broken Front Concession, in the Township of Darlington designated as Parts 34, 35, 36, 37 and 3)(8 on a Reference Plan deposited in the Registry Office for the Registry Division of Newcastle as 10R-2197. Subject to an easement in favour of the Regional Municipality of Durham over Part 37 on Plan 10R-2197 for the purposes as set out in Instrument No. 132064. d'� IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) MAYOR CLE K CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT 2c) SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. WORKS REQUIRED 1. CHANNEL WORKS The works shown on Plan No. 2846-008, Sheets 1 through 9, inclusive, of 10, dated September 30, 1988 on file at the Department of Public Works of the Town of Newcastle. 2. CN WORKS The works shown on Plan No. 2846-008, Sheet 10 of 10 dated September 30, 1988 - Mile 289.79, Kingston Subdivision, on file at the Department of Public Works of the Town of Newcastle. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) A MAYOR CL K CARHOLME INVESTMENTS LIMITED ell PRESIDENT ESQUIRE DEVELOPMENTS L:fM?TED ell PRESIDENT ) OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "E" THIS SCHEDULE IS SCHEDULE "E" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. LAND TO BE DEDICATED The Owners shall deliver to the Town in a form satisfactory to the Town, deeds to the following lands: ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the former Township of Darlington now the Town of Newcastle in the Regional Municipality of Durham, being composed of parts of Lots 21 to 26 both inclusive as shown on the unregistered plan of subdivision known as the Cubit Plan being composed of Part of Lot 7 in the Broken Front Concession, now designated as Part 1 on Plan 10R-3317. ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the former Township of Darlington now the Town of Newcastle in the Regional Municipality of Durham, being composed of part of Lot 7 in the Broken Front Concession and part of Lots 19, 20 and the unnamed street on the south side of Lot 19 as shown on the unregistered plan of subdivision known as the Cubit Plan, now designated as Part 3 on Plan 10R-3317. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) P 'MAYOR CL K CARHOLME INVESTMENTS LIMITED PRESIDENT ) ESQUIRE DEVELOPMENTS Lr&[ITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT 2� SCHEDULE "F' THIS SCHEDULE IS SCHEDULE "F"to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989 as amended by By-law No. 90-203 of the Corporation of the Town of Newcastle, enacted and passed the 10th day of December, 1990. COST ESTIMATES CN WORKS Twin Culverts under CNR Tracks as per Tender $370,000 15% Engineering 55,500 15% Contingencies 55,500 Total Estimated Cost of CN Works $481,000 CHANNEL WORKS Estimated Cost of Channelization Works $312,000 15% Engineering 47,000 15% Contingencies 47.000 Total Estimated Cost of Channel Works $406,000 TOTAL ESTIMATED COST OF WORKS $887,000 The Performance Guarantees have been based on Preliminary Estimates only and, when the final Engineering Drawings have been approved by the Director of Public Works, a revised Cost Estimate of the Works shall be prepared by the Owners' Engineer and submitted to the Director for approval. This revised Cost Estimate shall be used as a basis to adjust the Performance Guarantees, if the Estimate increases or decreases. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) MAYOR C CARHOLME INVESTMENTS LIMITED ' PRESIDENT ESQUIRE DEVELOPMEN'T'S LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "G" THIS SCHEDULE IS SCHEDULE "G" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. INSURANCE POLICIES REQUIRED 1. TYPES OF COVERAGE REQUIRED The Owners shall obtain and maintain insurance of the character commonly referred to as public liability and property damage with an insurance company approved by the Municipal Treasurer and duly authorized by law to underwrite such insurance. Such policy or policies of insurance shall indemnify the Town against all damages or claims for damages for: (a) any loss or damage that shall or may happen to any of the Works or any of the Utilities or to any part or parts thereof respectively; and (b) any loss or damage that shall or may happen to any of the materials or any of the equipment or any other things used to construct or install any of the Works or any of the Utilities or any part or parts thereof respectively, and (c) any injury to any person or persons including workmen employed on the said Lands and the public; and (d) any loss or damage that shall or may result from the drainage of surface waters on or from the said Lands; and (e) any loss or damage that shall or may result from the disposal of effluent from any sewage disposal works; and (f) any loss or damage that shall or may happen to any public road or to any other property of the Town or to the property of any other person either directly or indirectly by reason of the Owners undertaking the development of the said Lands together with any or all of the Works and Utilities pertaining thereto. 2. AMOUNTS OF COVERAGE REQUIRED Policy or policies of insurance shall be issued jointly in the names of the Owners and the Town and shall provide the following minimum coverage: (a) $5,000,000.00 for each occurrence. The issuance of such policy or policies of insurance shall not be construed to relieve the Owners from responsibility for other or larger claims for which it may be held responsible. 3. EXEMPTION OF COVERAGE PROHIBITED The policy or policies of insurance shall contain no coverage exemptions or limitations 'for: (a) any shoring, underpinning, raising or demolition of any building or structure; or (b), any pile driving or caisson work; or (c) any collapse or subsidence of any building, structure or land from any cause. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: } MAYOR XX 4CL CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT SCHEDULE "H" THIS SCHEDULE IS SCHEDULE "H" to the Agreement which has been authorized and approved by By-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. ENGINEERING AND INSPECTION FEES FOR DEVELOPMENT Estimated Costs of Works Fees (Schedule "F") Up to $100,000.00 4% to a MAXIMUM OF $4,000.00 $100,000.00 TO $500,000.00 $4,000.00 or 3.5% of the estimated cost of services - whichever is greater $500,000.00 to $1,000,000.00 $17,500.00 or 3% of the estimated cost of services - whichever is greater $1,000,000.00 to $2,000,000.00 $30,000.00 or 2.5% of the estimated cost of services - whichever is greater $2,000,000.00 to $3,000,000.00 $50,000.00 or 2.25% of the estimated cost of services - whichever is greater $3,000,000.00 to $4,000,000.00 $67,500.00 or 2% of the estimated cost of services - whichever is greater For the purposes of calculating the Engineering and Inspection Fees as contemplated by this Schedule, the estimated costs of works shall include the Cost Estimates as specified in Schedule "F" hereto. The aforesaid amount is to be paid prior to the issuance of the Authorization to Commence Work. I, Zq IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) MAYOR R CARHOLME INVESTMENTS LIMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMITED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED ) PRESIDENT 30 SCHEDULE "I" THIS SCHEDULE IS SCHEDULE "I" to the Agreement which has been authorized and approved by-law No. 89-146 of the Corporation of the Town of Newcastle, enacted and passed the 11th day of September, 1989. DUTIES OF OWNERS' ENGINEER 1. DESIGN WORKS The Owners' Engineer shall prepare the following for the approval of the Director: (a) the Engineering Drawings; (b) the Works Cost Estimate. The approval of the Director shall not absolve the Owners or the Owners' Engineer of the responsibility for any errors or omissions in the above drawings, Plans or documents. 2. REPRESENT OWNERS AND OBTAIN APPROVALS The Owners' Engineer shall act as the Owners' representative in all matters pertaining to the construction and installation of the Works and shall cooperate with the Town to obtain the necessary approvals for construction and installation. 3. PROVIDE RESIDENT INSPECTION The Owners' Engineer shall provide fully qualified inspection staff to provide continuous inspection service during all phases of the construction and installation of the Works and to perform the following: (a) provide control information to permit contractor to lay out the work; and (b) inspect the construction and installation to ensure that all work is being performed in accordance with the contract documents; and (c) arrange for or carry out all necessary field testing of materials and equipment installed or proposed to be installed at the request of the Director; and (d) provide coordination and scheduling of the construction and installation in accordance with the requirements of the Director; and (e) investigate and report to the Director any unusual circumstances which may arise during the construction and installation; and (f) obtain field information, during and upon completion of the construction and installation, required to modify the Engineering Drawings to produce the As- Constructed drawings. 4. MAINTAIN RECORDS The Owners' Engineer shall maintain all records pertaining to the construction and installation. 5. PROVIDE PROGRESS REPORTS The Owners' Engineer shall provide the Director with reports on the progres construction and installation on a monthly basis, or at such other interval as appr b he Director. �� Ay 31 6. PREPARE AS CONSTRUCTED DRAWINGS The Owners' Engineer shall prepare the As-Constructed Drawings for the approval of the Director. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto and hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND DELIVERED ) THE CORPORATION OF THE TOWN OF NEWCASTLE in the presence of: ) LU � AYOR CL CARHOLME INVESTMENTS LIMMITED PRESIDENT ESQUIRE DEVELOPMENTS LIMNED PRESIDENT OCEANFRONT DEVELOPMENTS LIMITED PRESIDENT LEGAL DESCRIPTION Legal Description of Esquire Lands Continued from Box (6l Subject to an easement in favour of Ontario Hydro over Part 32 on Plan 1OR-2197 for the purposes as set out in Instrument No. 17979 . Subject to an easement in favour of the Regional Municipality of Durham over Part 30 on Plan 1OR-2197 for the purposes as set out in Instrument No. 131032 . Legal Description of Oceanfront Developments Limited Lands ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being in the Town of Bowmanville in the Town of Newcastle, in the Regional Municipality of Durham being Part of Lot 6, in the Broken Front Concession, in the Township of Darlington designated as Parts 34, 35, 36, 37 and 38 on a Reference Plan deposited in the Registry Office for the Registry Division of Newcastle as 1OR-2197 . Subject to an easement in favour of the Regional Municipality of Durham over Part 37 on Plan 1OR-2197 for the purposes as set out in Instrument No. 132064. Legal Description of Carholme Investments Limited Lands The whole of Blocks 3, 4, 5, 6, 8, 10, 11, 12, 13, 15, 18 and Part of Block 9 on Registered Plan 1OM-831, Town of Newcastle, .Regional Municipality of Durham. Subject to a right of way in favour of Ontario Hydro over Parts of Blocks 10, 11, 12 and 13 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 17979 . Subject to an easement in favour of Ontario Hydro over Part of Block 13 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 10261. Subject to an easement in favour of Ontario Hydro over Parts of Blocks 15 and 18 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 5949 . Subject to an easement in favour of Ontario Hydro over Part of Block 18 on Registered Plan 1OM-831 for the purposes as set out in Instrument No. 15158. Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 4 and 15 on Registered Plan 1OM-831 for the purposes as set out in Transfer of Easement No. 1414 . Subject to an easement in favour of the Regional Municipality of Durham over Parts of Blocks 9 and 15 on Registered Plan 1OM-831 for the purposes as set out in Transfer of Easement No. 6241. 2