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HomeMy WebLinkAbout97-248 v 5 ` THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NUMBER 97-248 being a by-law to authorize the executiion of a Lease Agreement to the Municipality of Clarington of the lands to comprise the Temporary Public Highway WHEREAS Council approved the recommendation contained in Report No. Admin-47-97 at its Special Meeting on November 3, 1997; AND WHEREAS the Director of Public Works has advised Council that the extension of the haul road referred to in Report No. Admin-47-97 has been connected to Waverly Road to his satisfaction and the portion of the haul road identified in Attachment #2 to the Report is in a condition appropriate for a public highway; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ENACTS AS FOLLOWS: 1. The Mayor and Clerk are hereby authorized to execute the Lease to the Municipality of Clarington of the lands which are intended to comprise the "Temporary Public Highway" and which Lease is substantially in the form and within the content of Attachment #9 to Report No. Admin-47-97. BY-LAW read a first and second time this 3rd day of November, 1997 BY-LAW read a third time and finally passed this 3rd day of November, 1997. MAYOR CLERK } TEMPORARY PUBLIC HIGHWAY LEASE THIS LEASE(herein called the"Lease") is made as of the 3rd day of November, 1997. BETWEEN: BLUE CIRCLE CANADA INC. (hereinafter called"Blue Circle") THE LANDLORD OF THE FIRST PART - and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called"Municipality") THE TENANT OF THE SECOND PART WHEREAS: A. Blue Circle and the Municipality have settled and intend to enter into an agreement entitled the Principles of Understanding dated as of the 3rd day of November, 1997 (the "Principles") and this Lease has been entered into pursuant to the Principles. B. Without fettering the Municipality's Council in the exercise of its legislative discretion,the parties express their present intention that by-laws will be passed: (i) prior to the occurrence of the Closing Date to dedicate the Temporary Public Highway as a public highway until termination of the Lease; and (ii) on or as soon as is reasonably practical after the dedication of Cove Road and the Westside Creek Bridge as a public highway, to close the Temporary Public Highway as a public highway. In consideration of good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged by Blue Circle,and the rents,covenants and agreements hereinafter reserved and contained,the Parties agree as follows: ::ODMA\PCDOCS\W&F\236065\1 October 31,1997 -2 - 1. RECITALS AND DEFINITIONS The Parties agree that unless otherwise specifically indicated herein,all defined terms in the Principles that are used in this Lease shall have the same definition as set out in the Principles. It is the intent of the Parties to this Lease that it is wholly net to Blue Circle except as expressly hereinafter set out. 2. PREMISES AND DEMISE Blue Circle hereby demises and leases to the Municipality the lands and premises more particularly described in Schedule"A"attached hereto,together with any road improvements at any time constructed or located thereon, all of which is herein called the"Premises", subject to the reservations hereinafter contained. 3. TERM To have and to hold the Premises subject as herein provided, for a term of one (1) year commencing on the 3rd day of November 1997, which shall be automatically renewed (such term and renewals herein called the "Term") until it shall automatically terminate on the day on which the Municipality's Council passes a by-law dedicating Cove Road and the Westside Creek Bridge(or any readjustment thereto or alternate access determined by Council)as a public highway and the Term is subject to the condition subsequent set out in Section 9 hereof. 4. ANNUAL RENT Yielding and paying as rental for the entire Term and all renewals and extensions thereof,the sum of Two Dollars ($2.00),payment whereby has already been made and the receipt whereof is hereby acknowledged. 5. TENANT'S COVENANTS The Municipality covenants with Blue Circle as follows: (a) any sums which may become due hereunder or be payable by the Municipality to Blue Circle shall be paid at the time and in the manner in this Lease provided such sums shall bear interest from their due date until paid at :ODMA\PCDOCS\W&F\236065\1 October 31,1997 -3 - an interest rate equivalent to that then charged by The Corporation of the Municipality of Clarington or its successor for real property taxes in arrears; Public Highway (b) not to use or permit the Premises to be used for any other purposes other than for public highways. Taxes (c) (i) to indemnify Blue Circle and hold it safe and harmless and to preserve Blue Circle's title to the Premises free of claim, lien or encumbrance arising from or relating to assessments, public utility rates and charges other than real estate and business taxes and other governmental charges, licence fees in respect of any and every business carried on thereon, local improvement levies and other governmental charges, general and special, ordinary and extraordinary,unforeseen as well as foreseen of any nature and kind for which the Municipality or Blue Circle in respect of the Premises is or may in law become liable other than real estate and business taxes and which may during the term hereby demised be made, assessed, levied or imposed upon the Premises and which may become a lien upon the Premises (all of which assessments, rates or charges, levies and other governmental charges are hereinafter referred to as "Imposition") and to pay such Impositions when due; provided, however,that if by law any Imposition is payable or may at the option of the taxpayer be paid in instalments (whether or not interest accrues on the unpaid balance of the Imposition) the Municipality may pay the same together with any interest on the unpaid balance of the Imposition in instalments as the same respectively become due; provided that nothing in this Lease contained shall require the Municipality to pay any franchise, estate, inheritance, succession,capital levy or transfer tax of Blue Circle, or any income, excess profits, or revenue tax of Blue Circle, or any income, excess profits, or revenue tax or any other tax, assessment, ::ODMA\PCDOC S\W&F\23 6065\l October 31,1997 - 5 - holding the Premises or any part thereof through or under the Municipality if the lien attaches or might attach to Blue Circle's interest in the Premises; if any such construction lien at any time is registered against the Premises, the Municipality shall cause the same to be discharged or vacated within sixty (60) days after written demand from Blue Circle; provided, however, that the Municipality shall have the right to contest the amount or validity of any lien,and in such event if required by Blue Circle as provided herein, the Municipality,before any forfeiture of Blue Circle's interest in the Premises, shall deposit with Blue Circle or into Court to the credit of the action, pending the final determination of any such action,the amount claimed in the claim for lien plus an amount for costs as may be required by applicable law or practice, or security therefor; if the Municipality fails to discharge such lien or to deposit the required moneys or security with Blue Circle or into Court as aforesaid within the aforementioned period,then,in addition to any other right or remedy of Blue Circle, Blue Circle, may, but shall not be obliged to, discharge or vacate the same by deposit into Court or by giving security or in such other manner as is, or may be prescribed by law; any amount paid by Blue Circle for any of the aforesaid purposes, and all reasonable legal and other expenses of Blue Circle, including reasonable solicitor's fees, in or about procuring the discharge of such lien, with all necessary disbursements in connection therewith shall be due by Municipality on demand with interest as in Section 5(a); nothing herein contained shall imply any consent or agreement on the part of Blue Circle to subject Blue Circle's estate to liability under any construction lien law; Assignment and Sublease (f) not to assign this Lease, in whole or in part,nor sell, agree to sell, transfer or mortgage the Premises or the leasehold interest of the Municipality, or otherwise dispose of the same, or any part or parts thereof, without first obtaining,in each and every instance Blue Circle's consent thereto in writing, which consent may be unreasonably withheld; no such assignment, letting, subletting or mortgage as aforesaid shall relieve the Municipality from any of the Municipality's obligations in this Lease contained;notwithstanding the foregoing provisions of this Section 5(f)it is expressly agreed that(except as hereinafter provided)the Municipality,without the Landlord's consent,may ::ODMA\PCDOC S\W&F\236065\I October 31,1997 -4- charge or levy upon sums payable by the Municipality to Blue Circle, save and except for goods and services and value added taxes; and (ii) the Municipality shall have the unconditional right to contest the amount or validity of any Imposition by appropriate legal proceedings or seek to vary or remove it,but this shall not be deemed or construed in any way as relieving, modifying or altering the Municipality's covenant with respect to any Imposition in this Section 5(c)provided. Compliance with Statutes. By-laws. etc. (d) (i) throughout the Term of this Lease,at the Municipality's sole cost and expense, to comply with all laws and ordinances, orders, rules, regulations and requirements of all Federal,Provincial,Regional and Municipal governments and appropriate departments, commissions and boards material to the demise herein and the use of the Premises to which the Municipality as tenant under this Lease may be subject where breach thereof might expose Blue Circle to liability or loss; (ii) the Municipality shall have the right to contest by appropriate legal proceedings, without cost or expense to Blue Circle, the validity of any law, ordinance, order, rule, regulation or requirement of the nature hereinbefore in this Section 5(d) referred to, and if, by the terms of any such law, ordinance, order, rule, regulation or requirement, compliance therewith may legally be held in abeyance without subjecting the Municipality or Blue Circle to any liability of whatsoever nature for failure so to comply therewith, the Municipality may postpone compliance therewith until the final determination of any such proceedings, provided that all such proceedings shall be prosecuted with all diligence and dispatch. Construction Liens (e) not to suffer or permit any construction lien to be registered against the Premises or any part thereof by reason of work, labour, services or material supplied or claimed to have been supplied to the Municipality or anyone ::ODMA\PCDOCS\W&F\236065\I October 31,1997 6 enter into an assignment of the Lease with any agency of Her Majesty the Queen in right of Ontario or Her Majesty the Queen in right of Canada or to any other Municipal corporation or to any agency of any of the foregoing which has a responsibility in the Municipality of Clarington,for, inter alia, public highways;provided that in any such case,the assignee shall enter into a direct agreement with Blue Circle agreeing to assume the obligations of the Municipality in this Lease and in the Principles to the extent that they relate to this Lease; Utility Charges (g) to pay or cause to be paid all charges for gas,water, electricity,light, heat or power,telephone or other communications service used,rendered or supplied to or upon the Premises throughout the term of this Lease where failure to pay might expose Blue Circle to a liability for payment or amounts unpaid may be a lien on Blue Circle's reversionary interest in the Premises, and to indemnify Blue Circle and save it harmless against any liability or damages on such account; the Municipality shall also at its sole cost and expense procure any and all necessary permits, licences or other authorizations required for the lawful and proper installation and maintenance upon the Premises of wire, pipes, meters, conduits, cable,tubes and other equipment and appliances for use in supplying any such services to and upon the Premises; Indemnity (h) to indemnify and save harmless Blue Circle against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from the conduct or management of or from any work done on the Premises,and further to indemnify and save Blue Circle harmless against and from any and all claims arising during the Term of this Lease brought against Blue Circle and against judgments, liabilities and damages which Blue Circle may sustain from any condition of any improvement or structure on the Premises, or arising from any breach or default on the part of the Municipality in the performance of any covenant or agreement on the part of the Municipality to be performed pursuant to the terms of this Lease ::ODMA\PCDOCS\W&F\236065\I October 31,1997 - T- or arising from any act of negligence or omission to act of the Municipality, or any of its agents,contractors, servants, employees or licensees, or arising from any accident, injury or damage whatsoever caused to any person,firm or corporation occurring during the Term of this Lease on the Premises,other than to the extent caused by the negligence of or by the violation of any statute or regulation governing the use of a public highway by BIue Circle or any of its agents, contractors, servants,employees or licensees. 6. LANDLORD'S REPRESENTATIONS (a) Blue Circle hereby warrants and represents to, and covenants with, the Municipality,that Blue Circle has full power and right to enter into this Lease and that it has good title to the Premises free of charge or encumbrance, save only the Permitted Encumbrances identified in Schedule "P" to the Principles. (b) Blue Circle covenants with the Municipality that subject to the provisions of this Lease,the Municipality shall and may peaceably possess and enjoy the Premises for the term hereby granted without any interruption or disturbance from Blue Circle or any other person or persons lawfully claiming by, from or under it. 7. SUBORDINATION AND NON-DISTURBANCE Provided that this Lease and everything herein contained shall be subordinate to any charge, charges or trust deeds from time to time created by Blue Circle in respect of the Premises by way of mortgage,charge or trust deed and the Municipality hereby covenants and agrees that it will at any time and from time to time as required by Blue Circle during the Term hereof and any extension or renewal give all such further assurances to this proviso as may be reasonably required to evidence and effectuate this postponement of its rights and privileges hereunder to the holder or holders of any such charge, charges or trust deed; provided that Blue Circle shall use reasonable commercial efforts to obtain from the mortgagee(s) or trustee on their usual form,an agreement that shall permit the Municipality to continue in quiet possession of the Premises in accordance with the terms and conditions hereof so long as the Municipality is not in default under this Lease. ':ODMA\PCDOCS\W&F\236065\1 October 3 t,1997 - 8 In the event a non-disturbance agreement satisfactory to the Municipality has not been obtained by December 1, 1997, the Municipality in its sole discretion may elect to re-open the portion of Waverly Road that was closed on November 3, 1997 pending receiving either such a non- disturbance agreement or Blue Circle satisfying the condition set out in paragraph 23(b) of the Principles. 8. RESERVATIONS FROM THE DEMISE The demise of the Premises to the Municipality expressly reserves from such demise the following rights in favour of Blue Circle: (a) Until dedication of the Temporary Public Highway as a public highway,Blue Circle shall be entitled to use the Premises as a roadway for its operations; and (b) Blue Circle will have the right either to cross over the Temporary Public Highway or to tunnel under the Temporary Public Highway or to construct a bridge over the Temporary Public Highway including, without limitation in all cases the right to install and maintain a conveyer for materials for the purposes of transporting raw materials for processing at its plant; provided that all costs of constructing and maintaining such improvements shall be the responsibility of Blue Circle and all such improvements shall be made in accordance with plans and specifications approved by the Municipality's Director of Public Words,acting reasonably and provided further that the use of the Temporary Public Highway as a public highway is not interrupted except for temporary disruptions first approved by the Director acting reasonably if an alternate route acceptable to the Director is provided for during the period of the temporary disruption. Without limiting the generality of the foregoing, Blue Circle shall be entitled to have at least a total of four truck crossing points across the Temporary Public Highway and Waverly Road at such locations as may be approved by the Municipality's Director of Public Works, acting reasonably. :ODMA\PCDOCS\W&P\236065\I October 31,1997 9 - 9. CONDITION SUBSEQUENT This Lease is subject to a condition subsequent that Blue Circle receives a transfer of title to Proposed Closure Area "A" and abutting reserves referred to in paragraph 3(a) of the Principles on or before the date for satisfying the escrow set out in paragraph 8(a)(iv) of the Principles, failing which this Lease shall automatically terminate and shall have no further force or effect. This condition is included in this Lease for the benefit of Blue Circle and may be waived by Blue Circle by notice in writing given to the Municipality. 10. LANDLORD'S WORK Blue Circle will construct the extension of the road located on thePremises as shown on the Road Map contained in Schedule"F"to the Principles to Waverly Road in accordance with plans and specifications approved by the Municipality's Director of Public Works acting reasonably provided that the Director shall have regard for the temporary nature of the Temporary Public Highway in making his determination as aforesaid. 11. REPAIR AND MAINTENANCE Until Blue Circle gives the Municipality written notice pursuant to paragraph 8(a)(iv) of the Principles requiring the return of the escrowed transfers and the repayment of the sum of money referred therein, Blue Circle will indemnify the Municipality against the capital cost of necessary improvements to or reconstruction of the portion of the road that contains a culvert under the Temporary Public Highway, as may be deemed necessary by the Municipality's Director of Public Works acting reasonably, provided that the Director shall have regard for the temporary nature of the Temporary Public Highway in making his determination as aforesaid. Without derogating from the foregoing,the Municipality shall maintain at its expense the Temporary Public Highway for the Term of the Lease including without limitation normal maintenance for a public road such as snow ploughing and salting. 12. DEFAULT OF TENANT (a) If the Municipality is in breach of any monetary obligation hereunder and does not remedy such breach within thirty (30) days of receipt of written notice, Blue Circle shall be entitled to commence proceedings to obtain a judgment to collect such sum;Blue Circle agrees that it shall not commence ::ODMA\PCDOCS\W&F1236065\1 October 31,1997 - 10 - any such proceedings unless and until the Municipality has failed to remedy such a breach for a period of thirty (30) days following delivery by Blue Circle to the Municipality of written notice of default. (b) If the Municipality is in breach of any other obligation under this Lease and has not either remedied such breach within a period of sixty (60)days from the date of receipt of written notice of such breach,or in the case of a default which is not capable of being remedied within a period of sixty(60) days, if the Municipality has not commenced action to remedy such breach within a period of sixty (60) days of receipt of written notice of such default and thereafter diligently pursues the same to completion, Blue Circle shall be entitled to commence an action for specific performance or an action for damages or both with respect to such breach. Blue Circle agrees that it shall not commence any such action with respect to such a breach unless the Municipality has failed to remedy such breach or commence action to remedy such breach within a period of sixty(60)days after receipt of written notice of such default or such longer period as may be required as aforesaid. 13. OWNERSHIP OF IMPROVEMENTS It is expressly understood and agreed, that any improvements, fixtures, equipment or chattels constructed or located on the Premises shall be and remain the property of the Municipality, provided however that the Municipality shall upon the expiration, or other sooner termination for any reason whatsoever, of the Term hereby created yield up and surrender to Blue Circle the improvements of a permanent nature(other than equipment, chattels, furnishings,tenant's fixtures and trade fixtures which may be removed by it)then located on or about the Premises. 14. LANDLORD'S REMEDIES CUMULATIVE The failure of Blue Circle to insist in any one or more cases upon the strict performance of any of the covenants of this Lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant or option; a receipt by Blue Circle of payment with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach,and no waiver by either party of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by the party so waiving; in addition to the other remedies in this Lease provided, Blue Circle shall be entitled to the restraint by injunction of ::ODMAV'CDOCS\W&F\236065\1 October 31,1997 - 11 the violation,or attempted or threatened violation,of any of the covenants,conditions or provisions of this Lease. 15. NOTICE If any notice or other document is required to be or may be given by either Party hereto to the other or by any official of the Municipality to Blue Circle under this Lease, such notice shall be transmitted by telefax or mailed by prepaid registered post or delivered to: Blue Circle: Blue Circle Canada Inc. 400 Waverly Road South Bowmanville, Ontario L1C 3K3 Attention: Plan Manager Phone No.: (905) 623-3341 Fax No.: (905) 623-4695 The Municipality: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Chief Administrative Officer Phone No.: (905) 623-3379 Fax No.: (905) 623-0830 or such other telefax number of address of which either Party has notified the other Party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Lease and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail,it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing,in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above,then such notice shall be sent by an alternate means of transportation which it may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. :ODMA\PCDOCS\W 8P\236065\1 October 31,1997 - 12 - 16. SEVERABILITY If any term or provision of this Lease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable the remainder of this Lease or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby and such term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law. 17. WAIVER The waiver by Blue Circle or the Municipality of a breach of a term, covenant or condition herein contained shall not be deemed to be a waiver of a subsequent breach of the same or any other term, covenant or condition herein contained. 18. HEADINGS Headings and captions are inserted for convenience of reference only and are not to be considered when interpreting this Lease. All references to this Lease to paragraphs, sections and other subdivisions of this Lease except as otherwise expressly provided and the words "this Lease", "herein", "hereof', "hereby", "hereunder", "hereinafter" and words of similar import refer to this Lease as a whole, and not to a particular paragraph, section or subdivision of this Lease. 19. PRINCIPLES TO PREVAIL In the case of a conflict between the provisions of this Lease and the Principles of Understanding made between the parties and dated November 3, 1997, the provisions of the Principles of Understanding shall prevail. 20. ENTIRE AGREEMENT This Lease and the Principles contain all of the terms, covenants, conditions and agreements between the Parties hereto as to the demise of the Premises and any addition to or alteration of or changes in this Lease to be binding must be made in writing and signed by both Parties. ::ODMA\PCDOCS\W&F\236065\1 October 31,1997 - 13 - 21. TIME OF THE ESSENCE Time shall be of the essence in this Lease. 22. FORCE MAJEURE For the purposes of this Lease, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts,riots, wars or acts of military authority, acts of public enemies, sabotage,epidemics,washouts,nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty,prohibitory governmental laws or regulations, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the party being delayed and not caused by deliberate default or act or omission by such party and not avoidable by the exercise of reasonable effort or foresight by such party. 23. SUCCESSORS AND ASSIGNS This Lease and the covenants and agreements herein contained shall extend to,enure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns. IN WITNESS WHEREOF the parties have hereunto affixed their respective seals under the hands of their respective proper officers duly authorized in that behalf. BLUE CIRCLE CANADA INC. Per: Per: I/We have authority to bind the Corporation ::ODMA\PCDOCS\W&F\236065\1 October 31,1997 - 14- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per: Per: I Te h av authori o bind ithe Corporation ::ODMA\PCDOCS\W&F\236065\I October 31,1997 SCHEDULE "A" TO TEMPORARY PUBLIC HIGHWAY LEASE BETWEEN BLUE CIRCLE CANADA INC. AND THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DESCRIPTION THAT PART OF LOT 4 REGISTERED PLAN NO. 594 IN THE REGIONAL MUNICIPALITY OF CLARINGTON IN THE REGIONAL MUNICIPALITY OF DURHAM SHOWN DESIGNATED AS THE WHOLE OF PART 9 ON PLAN 40R-17774. :ODMA\PCDOC S\W&F\236933\1 r f TEMPORARY PUBLIC HIGHWAY LEASE THIS LEASE (herein called the"Lease") is made as of the 3rd day of November, 1997. BETWEEN: BLUE CIRCLE CANADA INC. (hereinafter called"Blue Circle") THE LANDLORD OF THE FIRST PART - and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called"Municipality") THE TENANT OF THE SECOND PART WHEREAS: A. Blue Circle and the Municipality have settled and intend to enter into an agreement entitled the Principles of Understanding dated as of the 3rd day of November, 1997 (the "Principles") and this Lease has been entered into pursuant to the Principles. B. Without fettering the Municipality's Council in the exercise of its legislative discretion, the parties express their present intention that by-laws will be passed: (i) prior to the occurrence of the Closing Date to dedicate the Temporary Public Highway as a public highway until termination of the Lease; and (ii) on or as soon as is reasonably practical after the dedication of Cove Road and the Westside Creek Bridge as a public highway, to close the Temporary Public Highway as a public highway. In consideration of good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged by Blue Circle,and the rents,covenants and agreements hereinafter reserved and contained, the Parties agree as follows: ::ODMA\PCDOCS\W&F\236065\1 October 31,1997 t _2 i 1. RECITALS AND DEFINITIONS i I The Parties agree that unless otherwise specifically in icated herein,all defined terms in the Principles that are used in this Lease shall have the same defini 'on as set out in the Principles. It is the intent of the Parties to this Lease that it is wholly net to B�ue Circle except as expressly hereinafter set out. i 2. PREMISES AND DEMISE Blue Circle hereby demises and leases to the Municipality the lands and premises more particularly described in Schedule"A"attached hereto,together with any road improvements at any time constructed or located thereon, all of which is herein ca�led the"Premises", subject to the reservations hereinafter contained. 3. TERM I To have and to hold the Premises subject as herein provided, for a term of one (1) year commencing on the 3rd day of November 1997,which shall bp, automatically renewed(such term and renewals herein called the "Term") until it shall automatically terminate on the day on which the Municipality's Council passes a by-law dedicating Covei Road and the Westside Creek Bridge(or any readjustment thereto or alternate access determined b� Council) as a public highway and the Term is subject to the condition subsequent set out in Section 9 hereof. 4. ANNUAL RENT Yielding and paying as rental for the entire Term #d all renewals and extensions thereof,the sum of Two Dollars ($2.00), payment whereby has alr�ady been made and the receipt whereof is hereby acknowledged. 5. TENANT'S COVENANTS i The Municipality covenants with Blue Circle as follows: (a) any sums which may become due here nder or be payable by the Municipality to Blue Circle shall be paid at tl*time and in the manner in this Lease provided such sums shall bear interest from their due date until paid at i i ::ODMA\PCDOC SI W&F\23 606511 October 31,1997 - 3 an interest rate equivalent to that then char ed by The Corporation of the Municipality of Clarington or its successor fo real property taxes in arrears; Public Highway I (b) not to use or permit the Premises to be used fo any other purposes other than for public highways. Taxes 1 i (c) (i) to indemnify Blue Circle and hold lit safe and harmless and to preserve Blue Circle's title to the Pr�mises free of claim, lien or encumbrance arising from or relating Ito assessments, public utility rates and charges other than real estat and business taxes and other governmental charges, licence fees n respect of any and every business carried on thereon, local i provement levies and other governmental charges, general aid special, ordinary and extraordinary,unforeseen as well as fo eseen of any nature and kind for which the Municipality or Blue Cir le in respect of the Premises is or may in law become liable other han real estate and business taxes and which may during the to hereby demised be made, assessed, levied or imposed upon t Premises and which may become a lien upon the Premises (all o which assessments, rates or charges, levies and other governmental charges are hereinafter referred to as "Imposition") and to pay such Impositions when due; provided, however,that if by law any imposition is payable or may at the option of the taxpayer be paid i instalments (whether or not interest accrues on the unpaid bal ce of the Imposition) the Municipality may pay the same toget er with any interest on the unpaid balance of the Imposition ii� instalments as the same respectively become due; provided hat nothing in this Lease contained shall require the Municipality to pay any franchise, estate, inheritance, succession, capital levy or t ansfer tax of Blue Circle, or any income, excess profits, or revenu tax of Blue Circle, or any income, excess profits, or revenue tax r any other tax, assessment, i i ::ODMA\FCDOCS\W&F\236D65\1 October 31,1997 - 5 holding the Premises or any part thereof through or under the Municipality if the lien attaches or might attach to Blue Circle's interest in the Premises; if any such construction lien at any time is registered against the Premises, the Municipality shall cause the same to be discharged or vacated within sixty (60) days after written demand from Blue Circle; provided, however, that the Municipality shall have the right to contest the amount or validity of any lien, and in such event if required by Blue Circle as provided herein, the Municipality,before any forfeiture of Blue Circle's interest in the Premises, shall deposit with Blue Circle or into Court to the credit of the action, pending the final determination of any such action,the amount claimed in the claim for lien plus an amount for costs as may be required by applicable law or practice, or security therefor; if the Municipality fails to discharge such lien or to deposit the required moneys or security with Blue Circle or into Court as aforesaid within the aforementioned period,then,in addition to any other right or remedy of Blue Circle, Blue Circle, may, but shall not be obliged to, discharge or vacate the same by deposit into Court or by giving security or in such other manner as is, or may be prescribed by law; any amount paid by Blue Circle for any of the aforesaid purposes, and all reasonable legal and other expenses of Blue Circle, including reasonable solicitor's fees, in or about procuring the discharge of such lien, with all necessary disbursements in connection therewith shall be due by Municipality on demand with interest as in Section 5(a); nothing herein contained shall imply any consent or agreement on the part of Blue Circle to subject Blue Circle's estate to liability under any construction lien law; Assignment and Sublease (f) not to assign this Lease,in whole or in part,nor sell,agree to sell,transfer or mortgage the Premises or the leasehold interest of the Municipality, or otherwise dispose of the same, or any part or parts thereof, without first obtaining,in each and every instance Blue Circle's consent thereto in writing, which consent may be unreasonably withheld; no such assignment, letting, subletting or mortgage as aforesaid shall relieve the Municipality from any of the Municipality's obligations in this Lease contained;notwithstanding the foregoing provisions of this Section 5(f)it is expressly agreed that(except as hereinafter provided)the Municipality, without the Landlord's consent, may ::ODMA\PCDOC S\W&F\23 6065\1 October 31,1997 -4 - charge or levy upon sums payable by the Municipality to Blue Circle, save and except for goods and services and value added taxes; and (ii) the Municipality shall have the unconditional right to contest the amount or validity of any Imposition by appropriate legal proceedings or seek to vary or remove it,but this shall not be deemed or construed in any way as relieving, modifying or altering the Municipality's covenant with respect to any Imposition in this Section 5(c)provided. Compliance with Statutes. By-laws. etc. (d) (i) throughout the Term of this Lease,at the Municipality's sole cost and expense, to comply with all laws and ordinances, orders, rules, regulations and requirements of all Federal,Provincial,Regional and Municipal governments and appropriate departments, commissions and boards material to the demise herein and the use of the Premises to which the Municipality as tenant under this Lease may be subject where breach thereof might expose Blue Circle to liability or loss; (ii) the Municipality shall have the right to contest by appropriate legal proceedings, without cost or expense to Blue Circle, the validity of any law, ordinance, order, rule, regulation or requirement of the nature hereinbefore in this Section 5(d) referred to, and if, by the terms of any such law, ordinance, order, rule, regulation or requirement, compliance therewith may legally be held in abeyance without subjecting the Municipality or Blue Circle to any liability of whatsoever nature for failure so to comply therewith, the Municipality may postpone compliance therewith until the final determination of any such proceedings, provided that all such proceedings shall be prosecuted with all diligence and dispatch. Construction Liens (e) not to suffer or permit any construction lien to be registered against the Premises or any part thereof by reason of work, labour, services or material supplied or claimed to have been supplied to the Municipality or anyone ::ODMA\PCDOCS\W&fl236065\I October 31.1997 -6- enter into an assignment of the Lease with any agency of Her Majesty the Queen in right of Ontario or Her Majesty the Queen in right of Canada or to any other Municipal corporation or to any agency of any of the foregoing which has a responsibility in the Municipality of Clarington, for, inter alia, public highways;provided that in any such case,the assignee shall enter into a direct agreement with Blue Circle agreeing to assume the obligations of the Municipality in this Lease and in the Principles to the extent that they relate to this Lease; Utility Charges, (g) to pay or cause to be paid all charges for gas,water, electricity, light, heat or power,telephone or other communications service used,rendered or supplied to or upon the Premises throughout the term of this Lease where failure to pay might expose Blue Circle to a liability for payment or amounts unpaid may be a lien on Blue Circle's reversionary interest in the Premises, and to indemnify Blue Circle and save it harmless against any liability or damages on such account; the Municipality shall also at its sole cost and expense procure any and all necessary permits, licences or other authorizations required for the lawful and proper installation and maintenance upon the Premises of wire,pipes, meters, conduits, cable,tubes and other equipment and appliances for use in supplying any such services to and upon the Premises; Indemnity (h) to indemnify and save harmless Blue Circle against and from any and all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, arising from the conduct or management of or from any work done on the Premises,and further to indemnify and save Blue Circle harmless against and from any and all claims arising during the Term of this Lease brought against Blue Circle and against judgments, liabilities and damages which Blue Circle may sustain from any condition of any improvement or structure on the Premises, or arising from any breach or default on the part of the Municipality in the performance of any covenant or agreement on the part of the Municipality to be performed pursuant to the terms of this Lease ::ODMA 1PCDOCS\W&A23 6065!1 October 31,1997 - 7- or arising from any act of negligence or omission to act of the Municipality, or any of its agents,contractors, servants, employees or licensees, or arising from any accident,injury or damage whatsoever caused to any person, firm or corporation occurring during the Term of this Lease on the Premises,other than to the extent caused by the negligence of or by the violation of any ' statute or regulation governing the use of a public highway by Blue Circle or any of its agents, contractors, servants, employees or licensees. 6. LANDLORD'S REPRESENTATIONS (a) Blue Circle hereby warrants and represents to, and covenants with, the Municipality,that Blue Circle has full power and right to enter into this Lease and that it has good title to the Premises free of charge or encumbrance, save only the Permitted Encumbrances identified in Schedule "P" to the Principles. (b) Blue Circle covenants with the Municipality that subject to the provisions of this Lease,the Municipality shall and may peaceably possess and enjoy the Premises for the term hereby granted without any interruption or disturbance from Blue Circle or any other person or persons lawfully claiming by, from or under it. 7. SUBORDINATION AND NON-DISTURBANCE Provided that this Lease and everything herein contained shall be subordinate to any charge, charges or trust deeds from time to time created by Blue Circle in respect of the Premises by way of mortgage, charge or trust deed and the Municipality hereby covenants and agrees that it will at any time and from time to time as required by Blue Circle during the Term hereof and any extension or renewal give all such further assurances to this proviso as may be reasonably required to evidence and effectuate this postponement of its rights and privileges hereunder to the holder or holders of any such charge, charges or trust deed; provided that Blue Circle shall use reasonable commercial efforts to obtain from the mortgagee(s)or trustee on their usual form, an agreement that shall permit the Municipality to continue in quiet possession of the Premises in accordance with the terms and conditions hereof so long as the Municipality is not in default under this Lease. ::ODMA\PCDOCS\W&F\236065\1 October 31,1997 - 8 - ' r In the event a non-disturbance agreement satisfactory to the Municipality has not been obtained by December 1, 1997, the Municipality in its sole discretion may elect to re-open the portion of Waverly Road that was closed on November 3, 1997 pending receiving either such a non- disturbance agreement or Blue Circle satisfying the condition set out in paragraph 23(b) of the Principles. 8. RESERVATIONS FROM THE DEMISE The demise of the Premises to the Municipality expressly reserves from such demise the following rights in favour of Blue Circle: (a) Until dedication of the Temporary Public Highway as a public highway,Blue Circle shall be entitled to use the Premises as a roadway for its operations; and (b) Blue Circle will have the right either to cross over the Temporary Public Highway or to tunnel under the Temporary Public Highway or to construct a bridge over the Temporary Public Highway including, without limitation in all cases the right to install and maintain a conveyer for materials for the purposes of transporting raw materials for processing at its plant;provided that all costs of constructing and maintaining such improvements shall be the responsibility of Blue Circle and all such improvements shall be made in accordance with plans and specifications approved by the Municipality's Director of Public Words,acting reasonably and provided further that the use of the Temporary Public Highway as a public highway is not interrupted except for temporary disruptions first approved by the Director acting reasonably if an alternate route acceptable to the Director is provided for during the period of the temporary disruption. Without limiting the generality of the foregoing, Blue Circle shall be entitled to have at least a total of four truck crossing points across the Temporary Public Highway and Waverly Road at such locations as may be approved by the Municipality's Director of Public Works, acting reasonably. ::ODMATCDOCS\W&F\236065\I Oclobu 31,1997 9- 9. CONDITION SUBSEQUENT This Lease is subject to a condition subsequent that Blue Circle receives a transfer of title to Proposed Closure Area "A" and abutting reserves referred to in paragraph 3(a) of the Principles on or before the date for satisfying the escrow set out in paragraph 8(a)(iv) of the Principles,failing which this Lease shall automatically terminate and shall have no further force or effect. This condition is included in this Lease for the benefit of Blue Circle and may be waived by Blue Circle by notice in writing given to the Municipality. 10. LANDLORD'S WORK Blue Circle will construct the extension of the road located on thePremises as shown on the Road Map contained in Schedule"F"to the Principles to Waverly Road in accordance with plans and specifications approved by the Municipality's Director of Public Works acting reasonably provided that the Director shall have regard for the temporary nature of the Temporary Public Highway in making his determination as aforesaid. 11. REPAIR AND MAINTENANCE Until Blue Circle gives the Municipality written notice pursuant to paragraph 8(a)(iv) of the Principles requiring the return of the escrowed transfers and the repayment of the sum of money referred therein, Blue Circle will indemnify the Municipality against the capital cost of necessary improvements to or reconstruction of the portion of the road that contains a culvert under the Temporary Public Highway, as may be deemed necessary by the Municipality's Director of Public Works acting reasonably, provided that the Director shall have regard for the temporary nature of the Temporary Public Highway in making his determination as aforesaid. Without derogating from the foregoing,the Municipality shall maintain at its expense the Temporary Public Highway for the Term of the Lease including without limitation normal maintenance for a public road such as snow ploughing and salting. 12. DEFAULT OF TENANT (a) If the Municipality is in breach of any monetary obligation hereunder and does not remedy such breach within thirty (30) days of receipt of written notice, Blue Circle shall be entitled to commence proceedings to obtain a judgment to collect such sum;Blue Circle agrees that it shall not commence ::ODMAW CDOCS\W&F\23 6065\1 October 31,1997 - 10- any such proceedings unless and until the Municipality has failed to remedy such a breach for a period of thirty (30) days following delivery by Blue Circle to the Municipality of written notice of default. (b) If the Municipality is in breach of any other obligation under this Lease and has not either remedied such breach within a period of sixty (60)days from the date of receipt of written notice of such breach,or in the case of a default which is not capable of being remedied within a period of sixty (60) days, if the Municipality has not commenced action to remedy such breach within a period of sixty (60) days of receipt of written notice of such default and thereafter diligently pursues the same to completion, Blue Circle shall be entitled to commence an action for specific performance or an action for damages or both with respect to such breach. Blue Circle agrees that it shall not commence any such action with respect to such a breach unless the Municipality has failed to remedy such breach or commence action to remedy such breach within a period of sixty (60) days after receipt of written notice of such default or such longer period as may be required as aforesaid. 13. OWNERSHIP OF IMPROVEMENTS It is expressly understood and agreed, that any improvements, fixtures, equipment or chattels constructed or located on the Premises shall be and remain the property of the Municipality, provided however that the Municipality shall upon the expiration, or other sooner termination for any reason whatsoever, of the Term hereby created yield up and surrender to Blue Circle the improvements of a permanent nature(other than equipment, chattels, furnishings,tenant's fixtures and trade fixtures which may be removed by it)then located on or about the Premises. 14. LANDLORD'S REMEDIES CUMULATIVE The failure of Blue Circle to insist in any one or more cases upon the strict performance of any of the covenants of this Lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant or option; a receipt by Blue Circle of payment with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach,and no waiver by either party of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by the parry so waiving; in addition to the other remedies in this Lease provided, Blue Circle shall be entitled to the restraint by injunction of ;iODMAWCDOCS\W&F\236065\I October 31,1997 - the violation,or attempted or threatened violation,of any of the covenants,conditions or provisions of this Lease. 15. NOTICE If any notice or other document is required to be or may be given by either Party hereto to the other or by any official of the Municipality to Blue Circle under this Lease, such notice shall be transmitted by telefax or mailed by prepaid registered post or delivered to: Blue Circle: Blue Circle Canada Inc. 400 Waverly Road South Bowmanville, Ontario L1C 3K3 Attention: Plan Manager Phone No.: (905) 623-3341 Fax No.: (905) 623-4695 The Municipality: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Chief Administrative Officer Phone No.: (905) 623-3379 Fax No.: (905) 623-0830 or such other telefax number of address of which either Party has notified the other Party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Lease and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays)shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail,it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing,in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above,then such notice shall be sent by an alternate means of transportation which it may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. :!ODMA\PCDOCS\W&F\236065\I October 31.1997 - 12 - 16. SEVERABILITY If any term or provision of this Lease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable the remainder of this Lease or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby and such term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law. 17. WAIVER The waiver by Blue Circle or the Municipality of a breach of a term, covenant or condition herein contained shall not be deemed to be a waiver of a subsequent breach of the same or any other term, covenant or condition herein contained. 18. HEADINGS Headings and captions are inserted for convenience of reference only and are not to be considered when interpreting this Lease. All references to this Lease to paragraphs, sections and other subdivisions of this Lease except as otherwise expressly provided and the words "this Lease", "herein", "hereof', "hereby", "hereunder", "hereinafter" and words of similar import refer to this Lease as a whole, and not to a particular paragraph, section or subdivision of this Lease. 19. PRINCIPLES TO PREVAIL In the case of a conflict between the provisions of this Lease and the Principles of Understanding made between the parties and dated November 3, 1997, the provisions of the Principles of Understanding shall prevail. 20. ENTIRE AGREEMENT This Lease and the Principles contain all of the terms, covenants, conditions and agreements between the Parties hereto as to the demise of the Premises and any addition to or alteration of or changes in this Lease to be binding must be made in writing and signed by both Parties. ::ODMA\PCDOCS\W&F\236065\I October 31,1997 - 13 - 21. TIME OF THE ESSENCE Time shall be of the essence in this Lease. 22. FORCE MAJEURE For the purposes of this Lease, the term "Force Majeure"means any delay for the duration of the delay which is imposed by reason of strikes, lockouts,riots,wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts,nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty,prohibitory governmental laws or regulations,or an Act of God and any act,omission or event whether of the kind herein enumerated or otherwise not within the control of the party being delayed and not caused by deliberate default or act or omission by such party and not avoidable by the exercise of reasonable effort or foresight by such party. 23. SUCCESSORS AND ASSIGNS This Lease and the covenants and agreements herein contained shall extend to,enure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns. IN WITNESS WHEREOF the parties have hereunto affixed their respective seals under the hands of their respective proper officers duly authorized in that behalf. BLUE CIRCLE CANADA INC. 7.Per: Per: I/We have authority to bind the Corporation :ODMAW CDOCS\W&F'1236065\1 October 31,1997 - 14 - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per:-- Per __. Jl_y. ��� _z I e hav authori o biLd the Corporation ::ODMA\PCDOCS\W BF\236065\I October 31,1997 � r SCHEDULE"A" TO TEMPORARY PUBLIC HIGHWAY LEASE BETWEEN BLUE CIRCLE CANADA INC. AND THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DESCRIPTION THAT PART OF LOT 4 REGISTERED PLAN NO. 694 IN THE REGIONAL MUNICIPALITY OF CLARINGTON IN THE REGIONAL MUNICIPALITY OF DURHAM SHOWN DESIGNATED AS THE WHOLE OF PART 9 ON PLAN 40R-17774. ::ODMA\PCDOCS\W&F\236933\1 TEMPORARY PUBLIC HIGHWAY LEASE THIS LEASE(herein called the"Lease")is made as of the 3rd day of November, 1997. BETWEEN: BLUE CIRCLE CANADA INC. (hereinafter called"Blue Circle") THE LANDLORD OF THE FIRST PART -and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called "Municipality") THE TENANT OF THE SECOND PART WHEREAS: A. Blue Circle and the Municipality have settled and intend to enter into an agreement entitled the Principles of Understanding dated as of the 3rd day of November, 1997 (the "Principles") and this Lease has been entered into pursuant to the Principles. B. Without fettering the Municipality's Council in the exercise of its legislative discretion,the parties express their present intention that by-laws will be passed: (i) prior to the occurrence of the Closing Date to dedicate the Temporary Public Highway as a public highway until termination of the Lease; and (ii) on or as soon as is reasonably practical after the dedication of Cove Road and the Westside Creek Bridge as a public highway, to close the Temporary Public Highway as a public highway. In consideration of good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged by Blue Circle,and the rents,covenants and agreements hereinafter reserved and contained,the Parties agree as follows: ::ODMA\PCDOCSIW&F\236065\I October 31,1997 -2 - 1. RECITALS AND DEFINITIONS The Parties agree that unless otherwise specifically indicated herein,all defined terms in the Principles that are used in this Lease shall have the same definition as set out in the Principles. It is the intent of the Parties to this Lease that it is wholly net to Blue Circle except as expressly hereinafter set out. 2. PREMISES AND DEMISE Blue Circle hereby demises and leases to the Municipality the lands and premises more particularly described in Schedule"A"attached hereto,together with any road improvements at any time constructed or located thereon, all of which is herein called the"Premises", subject to the reservations hereinafter contained. 3. TERM To have and to hold the Premises subject as herein provided, for a term of one (1) year commencing on the 3rd day of November 1997, which shall be automatically renewed (such term and renewals herein called the "Term") until it shall automatically terminate on the day on which the Municipality's Council passes a by-law dedicating Cove Road and the Westside Creek Bridge(or any readjustment thereto or alternate access determined by Council) as a public highway and the Term is subject to the condition subsequent set out in Section 9 hereof. 4. ANNUAL RENT Yielding and paying as rental for the entire Term and all renewals and extensions thereof, the sum of Two Dollars($2.00), payment whereby has already been made and the receipt whereof is hereby acknowledged. 5. TENANT'S COVENANTS The Municipality covenants with Blue Circle as follows: (a) any sums which may become due hereunder or be payable by the Municipality to Blue Circle shall be paid at the time and in the manner in this Lease provided such sums shall bear interest from their due date until paid at ::ODMA\PCDOCS\W&,F\236065\1 October 31,1997 - 3 - an interest rate equivalent to that then charged by The Corporation of the Municipality of Clarington or its successor for real property taxes in arrears; Public Highway (b) not to use or permit the Premises to be used for any other purposes other than for public highways. Taxes (c) (i) to indemnify Blue Circle and hold it safe and harmless and to preserve Blue Circle's title to the Premises free of claim, lien or encumbrance arising from or relating to assessments,public utility rates and charges other than real estate and business taxes and other governmental charges, licence fees in respect of any and every business carried on thereon, local improvement levies and other governmental charges, general and special, ordinary and extraordinary,unforeseen as well as foreseen of any nature and kind for which the Municipality or Blue Circle in respect of the Premises is or may in law become liable other than real estate and business taxes and which may during the term hereby demised be made, assessed, levied or imposed upon the Premises and which may become a lien upon the Premises (all of which assessments, rates or charges, levies and other governmental charges are hereinafter referred to as "Imposition")and to pay such Impositions when due; provided, however,that if by law any Imposition is payable or may at the option of the taxpayer be paid in instalments (whether or not interest accrues on the unpaid balance of the Imposition) the Municipality may pay the same together with any interest on the unpaid balance of the Imposition in instalments as the same respectively become due; provided that nothing in this Lease contained shall require the Municipality to pay any franchise, estate, inheritance,succession,capital levy or transfer tax of Blue Circle, or any income, excess profits, or revenue tax of Blue Circle, or any income,'excess profits, or revenue tax or any other tax, assessment, ::ODMA\PCDOCS\W&F\236065\I October 31,1997 - 5 - holding the Premises or any part thereof through or under the Municipality if the lien attaches or might attach to Blue Circle's interest in the Premises; if any such construction lien at any time is registered against the Premises, the Municipality shall cause the same to be discharged or vacated within sixty(60) days after written demand from Blue Circle; provided, however, that the Municipality shall have the right to contest the amount or validity of any lien,and in such event if required by Blue Circle as provided herein,the Municipality,before any forfeiture of Blue Circle's interest in the Premises, shall deposit with Blue Circle or into Court to the credit of the action, pending the final determination of any such action,the amount claimed in the claim for lien plus an amount for costs as may be required by applicable law or practice, or security therefor; if the Municipality fails to discharge such lien or to deposit the required moneys or security with Blue Circle or into Court as aforesaid within the aforementioned period,then, in addition to any other right or remedy of Blue Circle, Blue Circle, may, but shall not be obliged to, discharge or vacate the same by deposit into Court or by giving security or in such other manner as is, or may be prescribed by law; any amount paid by Blue Circle for any of the aforesaid purposes, and all reasonable legal and other expenses of Blue Circle, including reasonable solicitor's fees, in or about procuring the discharge of such lien, with all necessary disbursements in connection therewith shall be due by Municipality on demand with interest as in Section 5(a); nothing herein contained shall imply any consent or agreement on the part of Blue Circle to subject Blue Circle's estate to liability under any construction lien law; Assignment and Sublease (f) not to assign this Lease, in whole or in part,nor sell,agree to sell,transfer or mortgage the Premises or the leasehold interest of the Municipality, or otherwise dispose of the same, or any part or parts thereof, without first obtaining,in each and every instance Blue Circle's consent thereto in writing, which consent may be unreasonably withheld; no such assignment, letting, subletting or mortgage as aforesaid shall relieve the Municipality from any of the Municipality's obligations in this Lease contained;notwithstanding the foregoing provisions of this Section 5(f)it is expressly agreed that(except as hereinafter provided)the Municipality,without the Landlord's consent, may ::ODM A\PCDOCS\W&F\23 6065\I October 31.1997 -4 - charge or levy upon sums payable by the Municipality to Blue Circle, save and except for goods and services and value added taxes; and (ii) the Municipality shall have the unconditional right to contest the amount or validity of any Imposition by appropriate legal proceedings or seek to vary or remove it,but this shall not be deemed or construed in any way as relieving, modifying or altering the Municipality's covenant with respect to any Imposition in this Section 5(c)provided. Compliance with Statutes By-laws etc (d) (i) throughout the Term of this Lease,at the Municipality's sole cost and expense, to comply with all laws and ordinances, orders, rules, regulations and requirements of all Federal,Provincial,Regional and Municipal governments and appropriate departments, commissions and boards material to the demise herein and the use of the Premises to which the Municipality as tenant under this Lease may be subject where breach thereof might expose Blue Circle to liability or loss; (ii) the Municipality shall have the right to contest by appropriate legal proceedings, without cost or expense to Blue Circle, the validity of any law, ordinance, order, rule, regulation or requirement of the nature hereiribefore in this Section 5(d) referred to, and if, by the terms of any such law, ordinance, order, rule, regulation or requirement,compliance therewith may legally be held in abeyance without subjecting the Municipality or Blue Circle to any liability of whatsoever nature for failure so to comply therewith, the Municipality may postpone compliance therewith until the final determination of any such proceedings, provided that all such proceedings shall be prosecuted with all diligence and dispatch. Construction Liens (e) not to suffer or permit any construction lien to be registered against the Premises or any'part thereof by reason of work, labour, services or material supplied or claimed to have been supplied to the Municipality or anyone ::ODMAIPCDOCS%W&F123606511 October 31,1997 _ -6 - enter into an assignment of the Lease with any agency of Her Majesty the Queen in right of Ontario or Her Majesty the Queen in right of Canada or to any other Municipal corporation or to any agency of any of the foregoing which has a responsibility in the Municipality of Clarington, for, inter alia, public highways;provided that in any such case,the assignee shall enter into a direct agreement with Blue Circle agreeing to assume the obligations of the Municipality in this Lease and in the Principles to the extent that they relate to this Lease; Utility Charges (g) to pay or cause to be paid all charges for gas,water, electricity, light,heat or power,telephone or other communications service used,rendered or supplied to or upon the Premises throughout the term of this Lease where failure to pay might expose Blue Circle to a liability for payment or amounts unpaid may be a lien on Blue Circle's reversionary interest in the Premises, and to indemnify Blue Circle and save it harmless against any liability or damages on such account; the Municipality shall also at its sole cost and expense procure any and all necessary permits, licences or other authorizations required for the lawful and proper installation and maintenance upon the Premises of wire,pipes,meters, conduits, cable,tubes and other equipment and appliances for use in supplying any such services to and upon the Premises; Indemnity (h) to indemnify and save harmless Blue Circle against and from any and all claims by or on behalf of any person or persons,firm or firms,corporation or corporations,arising from the conduct or management of or from any work done on the Premises,and further to indemnify and save Blue Circle harmless against and from any and all claims arising during the Term of this Lease brought against Blue Circle and against judgments, liabilities and damages which Blue Circle may sustain from any condition of any improvement or structure on the Premises, or arising from any breach or default on the part of the Municipality in the performance of any covenant or agreement on the part of the Municipality to be performed pursuant to the terms of this Lease ::ODMA\PCDOCS\W&F\236065\l October 31,1997 - T- or arising from any act of negligence or omission to act of the Municipality, or any of its agents,contractors, servants, employees or licensees, or arising from any accident, injury or damage whatsoever caused to any person, firm or corporation occurring during the Term of this Lease on the Premises,other than to the extent caused by the negligence of or by the violation of any statute or regulation governing the use of a public highway by Blue Circle or any of its agents,contractors, servants,employees or licensees. 6. LANDLORD'S REPRESENTATIONS (a) Blue Circle hereby warrants and represents to, and covenants with, the Municipality,that Blue Circle has full power and right to enter into this Lease and that it has good title to the Premises free of charge or encumbrance, save only the Permitted Encumbrances identified in Schedule "P" to the Principles. (b) Blue Circle covenants with the Municipality that subject to the provisions of this Lease,the Municipality shall and may peaceably possess and enjoy the Premises for the term hereby granted without any interruption or disturbance from Blue Circle or any other person or persons lawfully claiming by, from or under it. 7. SUBORDINATION AND NON-DISTURBANCE Provided that this Lease and everything herein contained shall be subordinate to any charge, charges or trust deeds from time to time created by Blue Circle in respect of the Premises by way of mortgage,charge or trust deed and the Municipality hereby covenants and agrees that it will at any time and from time to time as required by Blue Circle during the Term hereof and any extension or renewal give all such further assurances to this proviso as may be reasonably required to evidence and effectuate this postponement of its rights and privileges hereunder to the holder or holders of any such charge, charges or trust deed; provided that Blue Circle shall use reasonable commercial efforts to obtain from the mortgagee(s)or trustee on their usual form,an agreement that shall permit the Municipality to continue in quiet possession of the Premises in accordance with the terms and conditions hereof so long as the Municipality is not in default under this Lease. ::ODMA\PCDOCS\W&Fl236065\1 October 31,1997 -8 - In the event a non-disturbance agreement satisfactory to the Municipality has not been obtained by December 1, 1997, the Municipality in its sole discretion may elect to re-open the portion of Waverly Road that was closed on November 3, 1997 pending receiving either such a non- disturbance agreement or Blue Circle satisfying the condition set out in paragraph 23(b) of the Principles. 8. RESERVATIONS FROM THE DEMISE The demise of the Premises to the Municipality expressly reserves from such demise the following rights in favour of Blue Circle: (a) Until dedication of the Temporary Public Highway as a public highway,Blue Circle shall be entitled to use the Premises as a roadway for its operations; and (b) Blue Circle will have the right either to cross over the Temporary Public Highway or to tunnel under the Temporary Public Highway or to construct a bridge over the Temporary Public Highway including, without limitation in all cases the right to install and maintain a conveyer for materials for the purposes of transporting raw materials for processing at its plant; provided that all costs of constructing and maintaining such improvements shall be the responsibility of Blue Circle and all such improvements shall be made in accordance with plans and specifications approved by the Municipality's Director of Public Words,acting reasonably and provided further that the use of the Temporary Public Highway as a public highway is not interrupted except for temporary disruptions first approved by the Director acting reasonably if an alternate route acceptable to the Director is provided for during the period of the temporary disruption. Without limiting the generality of the foregoing, Blue Circle shall be entitled to have at least a total of four truck crossing points across the Temporary Public Highway and Waverly Road at such locations as may be approved by the Municipality's Director of Public Works, acting reasonably. ::ODMA\PCDOCS\W&F\23 6065\I October 31,1997 - 9 - 9. CONDITION SUBSEQUENT This Lease is subject to a condition subsequent that Blue Circle receives a transfer of title to Proposed Closure Area "A" and abutting reserves referred to in paragraph 3(a) of the Principles on or before the date for satisfying the escrow set out in paragraph 8(a)(iv) of the Principles,failing which this Lease shall automatically terminate and shall have no further force or effect. This condition is included in this Lease for the benefit of Blue Circle and may be waived by Blue Circle by notice in writing given to the Municipality. 10. LANDLORD'S WORK Blue Circle will construct the extension of the road located on thePremises as shown on the Road Map contained in Schedule"F"to the Principles to Waverly Road in accordance with plans and specifications approved by the Municipality's Director of Public Works acting reasonably provided that the Director shall have regard for the temporary nature of the Temporary Public Highway in making his determination as aforesaid. 11. REPAIR AND MAINTENANCE Until Blue Circle gives the Municipality written notice pursuant to paragraph 8(a)(iv) of the Principles requiring the return of the escrowed transfers and the repayment of the sum of money referred therein, Blue Circle will indemnify the Municipality against the capital cost of necessary improvements to or reconstruction of the portion of the road that contains a culvert under the Temporary Public Highway, as may be deemed necessary by the Municipality's Director of Public Works acting reasonably, provided that the Director shall have regard for the temporary nature of the Temporary Public Highway in making his determination as aforesaid. Without derogating from the foregoing,the Municipality shall maintain at its expense the Temporary Public Highway for the Term of the Lease including without limitation normal maintenance for a public road such as snow ploughing and salting. 12. DEFAULT OF TENANT (a) If the Municipality is in breach of any monetary obligation hereunder and does not remedy such breach within thirty (30) days of receipt of written notice, Blue Circle shall be entitled to commence proceedings to obtain a judgment to collect such sum; Blue Circle agrees that it shall not commence ::ODMA\PCDOCS\W8F\236065\I October 31,1997 - 10- any such proceedings unless and until the Municipality has failed to remedy such a breach for a period of thirty (30) days following delivery by Blue Circle to the Municipality of written notice of default. (b) If the Municipality is in breach of any other obligation under this Lease and has not either remedied such breach within a period of sixty(60) days from the date of receipt of written notice of such breach,or in the case of a default which is not capable of being remedied within a period of sixty (60) days, if the Municipality has not commenced action to remedy such breach within a period of sixty (60) days of receipt of written notice of such default and thereafter diligently pursues the same to completion, Blue Circle shall be entitled to commence an action for specific performance or an action for damages or both with respect to such breach. Blue Circle agrees that it shall not commence any such action with respect to such a breach unless the Municipality has failed to remedy such breach or commence action to remedy such breach within a period of sixty(60) days after receipt of written notice of such default or such longer period as may be required as aforesaid. 13. OWNERSHIP OF IMPROVEMENTS It is expressly understood and agreed,that any improvements, fixtures, equipment or chattels constructed or located on the Premises shall be and remain the property of the Municipality, provided however that the Municipality shall upon the expiration, or other sooner termination for any reason whatsoever, of the Term hereby created yield up and surrender to Blue Circle the improvements of a permanent nature(other than equipment, chattels, furnishings,tenant's fixtures and trade fixtures which may be removed by it)then located on or about the Premises. 14. LANDLORD'S REMEDIES CUMULATIVE The failure of Blue Circle to insist in any one or more cases upon the strict performance of any of the covenants of this Lease or to exercise any option herein contained shall not be construed as a waiver or a relinquishment for the future of such covenant or option; a receipt by Blue Circle of payment with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach,and no waiver by either party of any provision of this Lease shall be deemed to have been made unless expressed in writing and signed by the party so waiving; in addition to the other remedies in this Lease provided, Blue Circle shall be entitled to the restraint by injunction of ::ODMA\PCDOCS\W&F 036065\I October 31.1997 .the violation,or attempted or threatened violation,of any of the covenants,conditions or provisions of this Lease. 15. NOTICE If any notice or other document is required to be or may be given by either Party hereto to the other or by any official of the Municipality to Blue Circle under this Lease, such notice shall be transmitted by telefax or mailed by prepaid registered post or delivered to: Blue Circle: Blue Circle Canada Inc. 400 Waverly Road South Bowmanville, Ontario L1C 3K3 Attention: Plan Manager Phone No.: (905)623-3341 Fax No.: (905) 623-4695 The Municipality: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Chief Administrative Officer Phone No.: (905) 623-3379 Fax No.: (905) 623-0830 or such other telefax number of address of which either Party has notified the other Party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Lease and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays)shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail,it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing,in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above,then such notice shall be sent by an alternate means of transportation which it may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. ::ODMA\PCDOCS\W&F,23606511 October 31,1997 - 12 - 16. SEVERABILITY If any term or provision of this Lease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable the remainder of this Lease or the application of such term or provision to persons or circumstances other than those to which it is invalid or unenforceable shall not be affected thereby and such term and provision of this Lease shall be valid and shall be enforced to the extent permitted by law. 17. WAIVER The waiver by Blue Circle or the Municipality of a breach of a term, covenant or condition herein contained shall not be deemed to be a waiver of a subsequent breach of the same or any other term, covenant or condition herein contained. 18. HEADINGS Headings and captions are inserted for convenience of reference only and are not to be considered when interpreting this Lease. All references to this Lease to paragraphs, sections and other subdivisions of this Lease except as otherwise expressly provided and the words"this Lease", "herein", "hereof', "hereby", "hereunder", "hereinafter" and words of similar import refer to this Lease as a whole, and not to a particular paragraph, section or subdivision of this Lease. 19. PRINCIPLES TO PREVAIL In the case of a conflict between the provisions of this Lease and the Principles of Understanding made between the parties and dated November 3, 1997, the provisions of the Principles of Understanding shall prevail. 20. ENTIRE AGREEMENT This Lease and the Principles contain all of the terms, covenants, conditions and agreements between the Parties hereto as to the demise of the Premises and any addition to or alteration of or changes in this Lease to be binding must be made in writing and signed by both Parties. ::ODMA\PCDOCS\WSF\236065\1 October 31,1997 - 13 21. TIME OF THE ESSENCE Time shall be of the essence in this Lease. 22. FORCE MAJEURE For the purposes of this Lease, the term "Force Majeure"means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots,wars or acts of military authority, acts of public enemies, sabotage,epidemics,washouts,nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquake or other casualty,prohibitory governmental laws or regulations,or an Act of God and any act, omission or event whether of the kind herein.enumerated or otherwise not within the control of the party being delayed and not caused by deliberate default or act or omission by such party and not avoidable by the exercise of reasonable effort or foresight by such party. 23. SUCCESSORS AND ASSIGNS This Lease and the covenants and agreements herein contained shall extend to,enure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns. IN WITNESS WHEREOF the parties have hereunto affixed their respective seals under the hands of their respective proper officers duly authorized in that behalf. BLUE CIRCLE CANADA INC. Per: `'1f fief Al ? 1=D S16AJJrJG C> I V-9) Per: I/We have authority to bind the Corporation ::ODMA\PC DOGS\W&F\236065\I October 31,1997 • - 14 - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per Per: UW `hav uth?�Wto 'bind the C orporaton ::ODMA\PCDOCS\W&F\23 6065\1 October 31,1997 _ 1 { SCHEDULE"A" TO TEMPORARY PUBLIC HIGHWAY LEASE BETWEEN BLUE CIRCLE CANADA INC. AND THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DESCRIPTION THAT PART OF LOT 4 REGISTERED PLAN NO. 694 IN THE REGIONAL MUNICIPALITY OF CLARINGTON IN THE REGIONAL MUNICIPALITY OF DURHAM SHOWN DESIGNATED AS THE WHOLE OF PART 9 ON PLAN 40R-17774. ::ODMA\PCDOC$\W&F123693311