HomeMy WebLinkAbout2009-157 THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2009-157
being a by-law to authorize the execution of the Memorandum of Understanding
between Players Business Park Ltd., West Diamond Properties Inc. and 1613881
Ontario Inc. and the Corporation of the Municipality of Clarington.
WHEREAS Council on March 24th, 2008 recommended to the Region of Durham
approval of Official Plan Amendment No. 60 to the Clarington Official Plan;
AND WHEREAS Amendment No. 60 was appealed to the Ontario Municipality Board in
August 10, 2008;
AND WHEREAS the Council on October 26, 2009, requested the Ontario Municipal
Board approve modifications to Amendment No. 60;
AND WHEREAS at their meeting on held on November 23, 2009 Council of the
Municipality of Clarington approved Draft Approved Plan of Subdivision S-C 2004-004
and Zoning By-law Amendment 2004-049 as they apply to certain lands owned by
Players Business Park Ltd and West Diamond Properties Inc.;
NOW THEREFORE THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
HEREBY ENACTS AS FOLLOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the
Corporation of the Municipality of Clarington and seal with the Corporation seal,
the Memorandum of Understanding between Players Business Park Ltd., West
Diamond Properties Inc. and 1613881 Ontario Inc. and the Corporation of the
Municipality of Clarington.
2. THAT the Memorandum of Understanding agreement attached hereto as
Schedule "A" forms part of this by-law.
By-law read a first and second time this 23`d day of November 2009
By-law read a third time and finally passed this 23`d day of November 2009
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Patti L arr"unictpat Clerk
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("MOU")made as of the 23`d day of
November, 2009.
BETWEEN:
PLAYERS BUSINESS PARK LTD. ("Players"),
WEST DIAMOND PROPERTIES INC. ("West Diamond") and
1613881 ONTARIO INC. ("1613881")
(hereinafter collectively called the "PW Group")
OF THE FIRST PART
- and -
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE SECOND PART
WHEREAS:
A. Players, West Diamond and 1613881 are the owners of certain lands more particularly
described below. These lands which are located within the Brookhill Neighbourhood as defined
by Amendment No. 60 to the Municipality's Official Plan as modified and approved by the
Ontario Municipal Board("OPA 60 As Modified").
B. Players and West Diamond have appealed to the Ontario Municipal Board under
subsection 51(34) of the Planning Act from the failure or neglect of the Municipality to make a
decision on their proposed plan of subdivision (Municipality File No. S-C-2004-04) of the
portion of their respective lands in the Brookhill Neighbourhood situated west of Green Road
(OMB File No. PL081 139). A copy of the proposed draft plan of subdivision as revised on
November 10, 2009 and conditions of approval of it are attached to the Municipality's Report
4PSD-111-09.
f
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C Players and West Diamond have also appealed to the Ontario Municipal Board from the
Municipality's refusal or neglect to enact an amendment to the Municipality's Zoning By-law
84-63, as amended, to rezone portions of its lands referred to in Recital B (OMB File Nos.
PL080998 and Z040108). A copy of the proposed zoning by-law amendment is attached to the
Municipality's Report#PSD-111-09.
D. Players, West Diamond and the Municipality have agreed to resolve their appeals to the
Ontario Municipal Board on the terms set out in Report #PSD-111-09 which include the
execution of this MOU between Players, West Diamond, 1613881 and the Municipality.
E. 1613881 intends to apply to the Municipality for approval of draft plans of subdivision of
the whole or parts of the "1613881 Lands" (as hereafter defined).
F. Players and West Diamond have agreed to cause to be transferred to the Municipality the
land required for the "Prince William Extension" (as hereafter defined) plus the land required for
0.3 metre reserves on both sides of it. Players and West Diamond have agreed to construct the
"Prince William Boulevard Extension Part 1 Works" (as hereafter defined) on the terms set out
below in this MOU.
G. An infrastructure plan ("Infrastructure Plan"), a copy of which is contained in Schedule
"A" hereto is considered to be acceptable in principle by the parties hereto. It shows, the
"Brookhill Tributary Lands"which are open space areas, a neighbourhood parkette, a school and
a neighbourhood park site south of the "Longworth Avenue Extension East" (as hereafter
defined), and a road network comprising the Longworth Avenue Extension East, the "Longworth
Avenue Extension West" (as hereafter defined), Green Road, the `Brookhill Boulevard
Extension Part 1" (as hereafter defined) and the "Clarington Boulevard Extension Part 1" (as
hereafter defined). It also shows the general location of stormwater management facilities
comprising a pond, clean water channel and outfalls on the 1613881 Lands which will serve
development both on these lands and the "Players and West Diamond Lands" (as hereafter
defined).
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H. Aquafor Beech Limited has been engaged by the Municipality to conduct an
Environmental impact study ("EIS") of the Brookhill Tributary Lands shown on the
Infrastructure Plan pursuant to section 4.4.35 of the Municipality's Official Plan. The study area
includes, among other lands (1) part of the 1613881 Lands, and (2) part of the Players and West
Diamond Lands. The EIS has been divided into two parts. The first part of the EIS will deal with
the Brookhill Tributary Lands located on the 1613881 Lands. It is referred to in this MOU as the
"EIS Part A". it is anticipated that it will be completed in draft form prior to December 31, 2009.
I. The second part of the EIS will deal with lands comprising part of the Players and West
Diamond Lands. Among other things, the EIS will identify the locations of the Provincially
Significant Wetlands and the required buffer on the south boundary of them located on Block
273 on the draft plan of subdivision referred to in Recital B. (The combination of the
Provincially Significant Wetlands and buffer located on Block 273 is referred to in this MOU as
the "PSW Lands"). The second part of the EIS is referred to in this MOU as the "EIS Part B". It
is anticipated that it will be completed in draft form prior to December 31, 2010.
J. Players, West Diamond and 1613881 have agreed with the Municipality that they will not
object to the Municipality requiring as a condition of approval of the first draft plan(s) of
subdivision of the whole or any part of the lands within the Brookhill Neighbourhood which are
owned by them, that the provisions of this MOU or such of the provisions as are considered
appropriate by the Municipality's Director of Planning Services shall be replicated in the
subdivision agreements and shall be complied with.
K. The Council of the Municipality has approved the recommendations of Report #PSD-
111-09, and the execution of this MOU by the Mayor and Municipal Clerk on behalf of the
Municipality of Clarington is authorized by By-law 2009-157 passed by the Council of the
Municipality at its meeting on November 23, 2009.
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NOW THEREFORE in consideration of the premises herein contained and the sum of
TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt thereof by each
of the parties is hereby acknowledged) each of the parties hereto covenants and agrees with the
other parties as follows:
Recitals
1. Each of the Recitals and the Schedules to this MOU are hereby incorporated into its
operative part. These Recitals shall be construed and given effect as covenants contained in
this MOU. If there is any inconsistency between any Recital and any of the following
paragraphs, the text of the paragraph shall apply to the extent necessary to resolve the
inconsistency.
Unwindine of MOU
2. (a) This MOU shall unwind and have no force or effect if any of (i) OPA 60 As
Modified insofar as it applies to the Players and West Diamond Lands and the
1613881 Lands, (ii) the draft plan of subdivision subject to the conditions of
approval referred to in Recital B hereto, and (iii) the draft zoning by-law
amendment referred to in Recital C, subject only to such modifications and/or
amendments that are "Permitted Amendments" (as hereafter defined) ("Planning
Documents"), are not approved or enacted by the Ontario Municipal Board on or
before March 31, 2010, or if any order of the Ontario Municipal Board approving
the Planning Documents is the subject of an application for leave to appeal or
judicial review to the Ontario Divisional Court the "Final Disposition" (as
hereafter defined) of such appeal(s) or application(s) does not result in the Final
Approval of the Planning Documents.
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(b) For the purpose of this MOU,
(i) the term "Permitted Amendments" means any modifications of and/or
amendments to any one or more of OPA 60 As Modified, the draft plan of
subdivision and conditions of approval referred to in Recital B, and the
zoning by-law amendment referred to in Recital C which,
(1) are of a technical or non-substantive nature and which do not have
the effect either of imposing any additional restrictions on the
development of the Players and West Diamond Lands or the
1613881 Lands, or of imposing additional obligations on these
owners; or
(2) is either proposed or is made by the Ontario Municipal Board, and
which either prior to or within thirty (30) days of such
modification and/or amendment being proposed or made, the
owners notify the Municipality in writing that such modification or
amendment is acceptable to them; and
(ii) the term "Final Disposition' means in respect of any appeal or application
forjudicial review, the latest to occur of:
(1) the withdrawal of all appeals or discontinuance of all applications;
(2) the issuance of an order by the Divisional Court dismissing the
application for leave to appeal or judicial review, or if leave to
appeal is granted, the issuance of a final order by the Divisional
Court in respect of the appeal; and
(3) if an application is made for leave to appeal to the Ontario Court of
Appeal from a decision of the Ontario Divisional Court referred to
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in clause (2), the issuance of an order by the Court of Appeal
dismissing the application for leave to appeal, or if leave to appeal
is granted, issuance of a final order by the Court of Appeal in
respect of the appeal.
(iii) For the purposes of this MOU, the term "Final Approval' means the latest
to occur of:
(1) the issuance of an order by the Ontario Municipal Board approving
the Planning Documents and the expiration of all appeal periods
therefrom, without any application for leave to appeal or judicial
review having been filed; and
(2) if any application for leave to appeal is filed, the Final Disposition
of all such applications or appeals that result in the Planning
Documents coming into full force and effect, subject to only such
modifications and/or amendments that are Permitted Amendments.
(c) If this MOU unwinds pursuant to this paragraph 2, the Municipality will consent
to and cooperate with the Owners in expunging this MOU and any Notice of it
from the title to the lands on which it or they have been registered after the date
on which such unwinding takes effect.
Lands Owned by Parties Other Than the Municipality
3. (1) (a) Players and West Diamond are the registered owners in the fee simple estate in
the following lands:
Registered Owner: Players Business Park Ltd.
PIN—26612-0128(LT)
Part of Lot 17, Concessions 1 and 2 and Part of the Road Allowance between
Concessions 1 and 2 (Closed by DNP2377), Township of Darlington, being Part 1
on Plan 40R-16947, save and except Parts I to 27,inclusive, and 46 to 48,
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inclusive, on Plan 40R-24933, Municipality of Clarington, Regional Municipality
of Durham
Registered Owner: West Diamond Properties Inc.
PIN-26612-0130(LT)
Part of Lot 17, Concession 2, Township of Darlington, being Part l on Plan 40R-
16948, save and except Part 1 on Plan 40R-19283 and Parts 40 to 44, inclusive,
on Plan 40R-24933, Municipality of Clarington, Regional Municipality of
Durham
(b) 1613881 is the registered owner in fee simple of the following lands:
Registered Owner: 1613881 Ontario Limited
PIN- 26613-0102(LT)
Part of Lot 16, Concession 2, Township of Darlington, being Part 1 on Plan 40R-
22972, Municipality of Clarington, Regional Municipality of Durham
(2) For clarity, this MOU applies in respect of the lands referred to in paragraph 3(1) which
at the date of this MOU are owned by the parties hereto other than the Municipality.
Implementation of Infrastructure Plan
4. Players and West Diamond and 1613881 will prepare plans of subdivision for the Players
and West Diamond Lands and the 1613881 Lands within the Brookill Neighbourhood
that are generally consistent with the Infrastructure Plan. None of these parties will ask
the Municipality or any approving authority under the Planning Act to approve a plan of
subdivision or conditions of approval of a plan of subdivision that is (are) not generally
consistent with the Infrastructure Plan and/or not consistent with this MOU. Further,
these parties will not appeal a proposed draft plan of subdivision or a condition of
approval of a draft plan of subdivision that is not generally consistent with the
Infrastructure Plan and/or not consistent with this MOU to the Ontario Municipal Board.
Notwithstanding the foregoing provisions of this paragraph, this paragraph shall
terminate on the registration of a plan(s) of subdivision of the entirety of the Players and
West Diamond Lands and the 1613881 Lands within the Brookhill Neighbourhood.
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Brookhill Boulevard from Green Road to Easterly Limit of 1613881 Lands
5. The PW Group will cause the lands comprising the portion of the Brookhill Boulevard
Extension from Green Road to the easterly limit of 1613881 Lands as shown on the
Infrastructure Plan (`Brookhill Boulevard Extension Part 1") to be transferred to the
Municipality on or prior to the registration on title of a plan of subdivision to implement
the first phase of development of the portion of the Players and West Diamond Lands to
which the draft plan of subdivision referred to in Recital B applies. The Brookhill
Boulevard Extension Part 1 shall have a width of 26 metres.
Clarineton Boulevard Extension Part 1 to Loneworth Avenue Extension East
6. The PW Group will cause the lands comprising portions of the Clarington Boulevard
Extension Part 1 shown on the Infrastructure Plan and located on the 1613881 Lands to
be transferred to the Municipality as follows:
(i) respecting the section between the southerly boundary of the 1613881 Lands
northerly to the northerly boundary of the Brookhill Boulevard Extension Part 1,
on or prior to the registration on title of a plan of subdivision to implement the
first phase of development of the portion of the Players and West Diamond Lands
to which the draft plan of subdivision referred to in Recital B applies; and
(ii) respecting the section between the northerly boundary of the Brookhill Boulevard
Extension Part 1 and the southerly boundary of the "Longworth Avenue
Extension East' (as hereafter defined), on or prior to the registration on title of the
first plan of subdivision of any part of the 1613881 Lands located easterly of the
easterly boundary of the Brookhill Tributary Lands.
For clarity, the combination of the foresaid sections is referred to in this MOU as the
"Clarington Boulevard Extension Part I".
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Loneworth Avenue from Easterly Limit of the 1613881 Lands to Westerly Limit of Urban
Area
7. (a) The part of the planned extension of Longworth Avenue between Green Road and
the westerly limit of the Players and West Diamond Lands as shown on the
Infrastructure Plan is referred to in this MOU as the "Longworth Avenue
Extension West'. The part of the planned extension of Longworth Avenue
between Green Road and the easterly limit of the 1613881 Lands is referred to in
this MOU as the "Longworth Avenue Extension East'.
(b) The PW Group will cause the land required for the Longworth Avenue Extension
West and the Longworth Avenue Extension East to be transferred to the
Municipality not later than sixty days after the relevant day on which the "Final
Alignment' (as hereafter defined) of them has been determined. For clarity, the
PW Group will cause the land required for the structure ("Structure") required for
the crossing by the Longworth Avenue Extension East of the creek located on the
Brookhill Tributary Lands to be transferred to the Municipality at the same time
as the conveyance of the lands required for the Longworth Avenue Extension East
unless the portion of the Brookhill Tributary Lands on which the Structure will be
located has previously been transferred to the Municipality pursuant to paragraphs
17(a)to (d) of this MOU.
(c) The Longworth Avenue Extension West and the Longworth Avenue Extension
East shall have a width of 30 metres. The PW Group at its cost shall prepare and
deposit on title a reference plan of survey which identifies the location and width
of the lands required for the Longworth Avenue Extension West and the
Longworth Avenue Extension East (including the Structure) in order to permit the
transfers of such lands to be registered on title.
(d) If an "Environmental Assessment' (as hereafter defined) under the Environmental
Assessment Act is required to determine the Final Alignment of the Longworth
Avenue Extension West, the Longworth Avenue Extension East and/or the
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Structure, the Municipality shall undertake and pay the costs of such
environmental assessment. "Environmental Assessment" means, in respect of a
proposed road project, the environmental assessment planning process for a
Schedule B or Schedule C project as set out in the Municipal Class Environmental
Assessment approved pursuant to the Environmental Assessment Act by the
Minister of Environment, October 2000, as amended or replaced from time to
time, or, in respect of any project for which an order has been issued by the
Minister of the Environment pursuant to Section 16 of the Environmental
Assessment Act, an individual environmental assessment for that project
undertaken pursuant to Part II of the Environmental Assessment Act.
(e) For the purposes of this MOU the term "Final Alignment" means in the case of
the Longworth Avenue Extension West:
(i) if an Environmental Assessment is not required for the undertaking of it
the final alignment established such that its northern boundary coincides
with the southerly boundary of the required buffer of the Provincially
Significant Wetlands as determined in the EIS Part B as finally approved
by the Municipality's Director of Planning Services, or by the Ontario
Municipal Board pursuant to paragraph 19(b); and
(ii) if an Environmental Assessment is required for the undertaking of it the
final alignment of it as determined by that Environmental Assessment.
(f) For the purposes of this MOU the term "Final Alignment" means in the case of
the Longworth Avenue Extension East:
(i) if an Environmental Assessment is not required for the undertaking of it
the final alignment of the Structure as determined in the EIS Part A as
finally approved by the Municipality's Director of Planning Services, and
the final alignment of the balance of it as shown in a plan of subdivision of
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the abutting portion of the 1613881 Lands that is (are) approved by the
Municipality, the Regional Municipality of Durham or the Ontario
Municipal Board pursuant to the Planning Act; and
(ii) if an Environmental Assessment is required for the undertaking of it the
final alignment of the Longworth Avenue Extension East and the Structure
as determined pursuant to that Environmental Assessment.
Prince William Boulevard from Pethick Street to Regional Road 57 (Prince William
Boulevard Extension)
8. (a) Players and West Diamond will cause the land required to extend Prince William
Boulevard from Pethick Street to Regional Road 57 as shown on the sketch
contained in Schedule `B" hereto ("Prince William Boulevard Extension") plus a
0.3 metre reserve on both sides of it to be transferred to the Municipality on or
prior to the registration on title of a plan of subdivision for the first phase of
development of the draft plan of subdivision referred to in Recital B.
(b) The Municipality will transfer the fee simple estate in the 0.3 metre reserve to the
owner of the land abutting the 0.3 metre reserve in question (an "Abutting
Landowner") on site plan approval being granted by the Municipality or the
Ontario Municipal Board for the development of a building on such land that is
permitted by the Municipality's Zoning By-law, By-law 84-63, as amended or
replaced from time to time. Players and West Diamond shall be entitled to
enforce this provision for the benefit of any Abutting Landowner, and to assign
the benefit of this provision to any such Abutting Landowner who may enforce it
directly against the Municipality.
(c) Prior to registration on title of the plan of subdivision referred to in paragraph
8(a), Players and West Diamond, at their cost, will prepare and deposit on title a
reference plan of survey showing the Prince William Boulevard Extension plus a
0.3 metre reserve on both sides of it which will permit the registration on title of
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the conveyance of the lands required for the Prince William Boulevard Extension
and the 0.3 metre reserves.
Green Road Widenine
9. Players and West Diamond will transfer to the Municipality the required widening of
Green Road located on the westerly side of Green Road, as shown as Block 272 on the
draft plan of subdivision referred to in Recital B on or prior to the registration of the first
plan of subdivision to be registered on title for the first phase of development of the draft
plan of subdivision referred to in Recital B.
All Transfers
10. All transfers referred to in this MOU shall be of the fee simple estate free and clear of all
encumbrances and restrictions in the lands in question. They shall be made for a nominal
consideration and shall be in a form satisfactory to the Municipality's solicitor.
Reference Plan of Survey and Adjustments to Boundaries of Certain Roads
11. (a) A reference plan of survey which shows the lands comprising the Brookhill
Boulevard Extension Part l and the Clarington Boulevard Extension Part 1 shall
be prepared and deposited on title by the PW Group at its cost on or prior to the
transfers referred to in this MOU so that they may be registered on title.
(b) in the context of considering an application for approval of a draft plan of
subdivision of any part of the 1613881 Lands that abut either or both of any part
of the Brookhill Boulevard Extension Part 1 and the Clarington Boulevard
Extension Part 1 ("Proposed Roads"), if the Proposed Roads have not been
dedicated as public highways under the Municipal Act, 2001, and if the Director
of Engineering Services and the Director of Planning Services agree in writing
with the PW Group that it would be appropriate to make an adjustment to the
boundaries of either of them, the Municipality shall transfer or release its interest
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in the relevant portion(s) of the lands within either or both of the Proposed Roads
either for a nominal consideration or an exchange for other lands of equivalent
area which shall be incorporated into the alignment(s) of the Proposed Roads.
Any reference plan of survey necessary to permit the registration of the aforesaid
transfers shall be prepared and deposited on title by 1613 88 1.
Clarington Boulevard Extension Part Works
12. (a) For the purposes of this MOU, the "Clarington Boulevard Extension Part 1
Works" are the Works necessary to construct and complete the Clarington
Boulevard Extension Part 1 between the southerly boundaries of the 1613881
Lands and the Longworth Avenue Extension East as shown on the Infrastructure
Plan. The Clarington Boulevard Extension Part 1 Works shall be constructed up
to the standard provided in the Municipality's Design Criteria and Standard Detail
Drawing C206, as approved by the Director of Engineering Services.
(b) The PW Group at its cost will prepare the drawings considered necessary, in the
Director of Engineering Services' opinion, to describe the Clarington Boulevard
Extension Part 1 Works in compliance with Schedule "F" hereto. it shall submit
the same to the Director for his consideration and if appropriate, his approval
prior to the approval for registration on title of a plan of subdivision for any
portion of the 1613881 Lands located easterly of the Brookhill Tributary Lands
shown on the Infrastructure Plan. Until the drawings are approved by the Director
of Engineering Services, 1613881 will not seek approval of a final plan of
subdivision for any portion of the 1613881 Lands located easterly of the Brookhill
Tributary Lands from the Municipality, the Regional Municipality of Durham or
the Ontario Municipal Board.
(c) Schedule "F" to Schedule "J", inclusive, apply in respect of the Clarington
Boulevard Extension Part 1 Works and the Security for the "Maintenance
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Guarantee for the Clarington Boulevard Extension Part 1 Works" (as provided for
in Schedule"G" hereto).
(d) The PW Group shall apply for an Authorization to Commence Works and shall
commence construction within thirty days after the date on which the
Authorization to Commence Works is issued in compliance with this MOU and in
accordance with the staging plan for the Clarington Boulevard Extension Part 1
Works proposed by the PW Group if approved by the Director of Engineering
Services.
(e) The PW Group shall undertake, complete and maintain the Clarington Boulevard
Extension Part I Works at its cost until a"Certificate of Acceptance" (as provided
for in Schedule "F"hereto) of them is issued pursuant to this MOU.
(f) On or prior to the issuance of an Authorization to Commence Works by the
Director of Engineering Services pursuant to this MOU, the PW Group will
deposit with the Municipality cash or an irrevocable and unconditional letter of
credit issued by a bank listed in Schedules I or Ii of the Bank Act in the amount of
the Clarington Boulevard Extension Part 1 Works Cost Estimate as it may be
revised from time to time pursuant to this MOU as the "Clarington Boulevard
Extension Part 1 Works Performance Guarantee". The current Clarington
Boulevard Extension Part l Works Cost Estimate is contained in Schedule "C"
hereto. It is subject to revision pursuant to Schedule "F" hereto.
(g) 1613881 hereby irrevocably consents to the imposition of condition(s) of approval
of a draft plan of subdivision of any portion of the 1613881 Lands located easterly
from the Brookhill Tributary Lands shown on the Infrastructure Plan, pursuant to
subsection 51(25) of the Planning Act which replicates such of the provisions of
paragraph 12(a) to 12(f) inclusive, Schedules "F" to "J", inclusive, and Schedule
"C" as revised pursuant to Schedule "F", as the Director of Planning Services,
considers to be appropriate to protect the Municipality's interests. Any of the
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aforesaid paragraphs and Schedules of this MOU that are so replicated shall
terminate on the date of execution of a subdivision agreement between the
Municipality and 1613881 which contains such replication.
Brookhill Boulevard Part 1 Works
13. (a) For the purposes of this MOU, the Brookhill Boulevard Part 1 Works are the
Works necessary to construct and complete Brookhill Boulevard Extension Part 1
from its intersection with Green Road easterly to its intersection with the easterly
boundary of the 1613881 Lands up to the standard provided in the Municipality's
Design Criteria and Standard Detail Drawing C205, as approved by the Director
of Engineering Services.
(b) The PW Group, at its cost, will prepare the drawings considered necessary in the
Director of Engineering Services' opinion, to describe the Brookhill Boulevard
Part 1 Works and comply with Schedule "F" hereto. The PW Group shall submit
the same to the Director for his consideration and if appropriate, his approval not
less than ninety (90) days following the "Brookhill Boulevard Part 1 Works
Construction Trigger Date" (as hereafter defined).
(c) Schedule "F" to Schedule "J", inclusive, apply in respect of the Brookhill
Boulevard Part I Works, provided that references to the "Relevant Parties" shall
be deemed to be references to the PW Group, references to the "Relevant Lands"
shall be deemed to be references to the alignment of the Brookhill Boulevard
Extension Part 1 on the 1613881 Lands and all references to the "Clarington
Boulevard Extension Part 1", the "Clarington Boulevard Extension Part 1
Works", the "Clarington Boulevard Extension Part 1 Works Cost Estimate" and
the "Revised Clarington Boulevard Extension Part 1 Works Cost Estimate", the
"Clarington Boulevard Extension Part 1 Works Performance Guarantee" and the
"Clarington Boulevard Extension Part 1 Works Maintenance Guarantee" shall be
deemed to be references to the `Brookhill Boulevard Extension Part 1", the
"Brookhill Boulevard Extension Part I Works", the Brookhill Boulevard
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Extension Part 1 Works Cost Estimate", the "Revised Brookhill Boulevard
Extension Part 1 Works Cost Estimate", the `Brookhill Boulevard Extension Part
1 Works Performance Guarantee" and the `Brookhill Boulevard Extension Part I
Works Maintenance Guarantee", respectively.
(d) On or prior to the issuance of an "Authorization to Commence Works" by the
Director of Engineering Services the PW Group shall cause to be deposited with
the Municipality cash or an irrevocable and unconditional letter of credit issued
by a bank listed in Schedule I or II of the Bank Act in the amount of the Brookhill
Boulevard Part 1 Works Cost Estimate as revised from time to time pursuant to
this MOU as the `Brookhill Boulevard Part l Works Performance Guarantee".
The current Brookhill Boulevard Part 1 Works Cost Estimate is contained in
Schedule "D" hereto. It is subject to revision pursuant to Schedule "F" hereto.
Until the Brookhill Boulevard Part 1 Works Performance Guarantee is deposited
with the Municipality pursuant to this MOU, Players and West Diamond shall not
seek final approval of a plan of subdivision or a consent to divide Block 273
shown on the draft plan of subdivision referred to in Recital B.
(e) As part or the whole of the Brookhill Boulevard Part 1 Works Performance
Guarantee the Municipality may retain and apply the performance guarantee
which will be deposited by Players and West Diamond for the Works to be
constructed by them in connection with the development of lands within the draft
plan of subdivision referred to in Recital B, in order to satisfy in whole or in part
the requirements of this paragraph. The Municipality may draw upon the retained
amount of such performance guarantee to the same extent as would be the case if
it had been deposited expressly to guarantee performance of the Brookhill
Boulevard Part 1 Works. For clarity, if 1613881 deposits the Brookhill Boulevard
Part 1 Works Performance Guarantee with the Municipality, the Municipality's
right to retain and apply the aforesaid performance guarantee deposited with the
Municipality by Players and West Diamond under this paragraph 13(e) shall
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terminate, and any retained performance guarantee shall forthwith be returned by
the Municipality to Players and West Diamond.
(f) The `Brookhill Boulevard Part 1 Works Construction Trigger Date" is the date
which is five years following the earlier to occur of the registration on title of the
plan of subdivision for the first phase of development of the Players and West
Diamond Lands and the registration on title of the first plan of subdivision of any
part of the 1613881 Lands situated west of the westerly limit of the Brookhill
Tributary Lands as shown on the Infrastructure Plan ("Five Year Period").
(g) The PW Group shall apply for an Authorization to Commence Works and shall
commence construction of the Brookhill Boulevard Part I Works in accordance
with this MOU no later than ninety days following the occurrence of the
Brookhill Boulevard Part I Works Construction Trigger Date provided that if a
minimum of buildings permits for five hundred dwelling ("Five Hundred
Permits") have not been issued on lands in the Brookhill Neighbourhood located
west of the westerly limit of the Brookhill Tributary Lands including those lands
designated for residential uses which are located south of Brookhill Boulevard
between Green Road and Boswell Drive prior to the occurrence of the Brookhill
Boulevard Part 1 Works Construction Trigger Date, that date shall be deemed to
be extended by one year, and provided further that if on the sixth anniversary of
the commencement of the Five Year Period, Five Hundred Permits have not been
issued, the parties will enter into negotiations to amend this MOU by setting a
mutually agreeable date for the commencement of design and construction of the
Brookhill Boulevard Part 1 Works in accordance with this MOU.
(h) The PW Group, at their cost, in accordance with Schedule "F" hereto shall
undertake, complete and maintain the Brookhill Boulevard Part 1 Works until a
Certificate of Acceptance of them is issued pursuant to this MOU.
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(i) 1613881 hereby irrevocably consents to the imposition of condition(s) of approval
of a draft plan of subdivision of any portion of the 1613881 Lands located
westerly from the Brookhill Tributary Lands shown on the Infrastructure Plan
pursuant to subsection 51(25) of the Planning Act which replicates such of the
provisions of paragraphs 13(a) to 13(h), inclusive, and Schedules "F" to 1111,
inclusive, and Schedule "D" as revised pursuant to Schedule "F" as the Director
of Planning Services considers necessary to protect the Municipality's interests.
Any of the aforesaid paragraphs and Schedules of this MOU that are so replicated
shall terminate on the date of execution of a subdivision agreement between the
Municipality and 1613881 which contains such replication.
Longworth Avenue Extension East and West Works
14. (a) For the purposes of this MOU, the "Longworth Avenue Extension East Works"
are the Works necessary to construct and complete the Longworth Avenue
Extension East, provided that the Longworth Avenue Extension East Works do
not include the Works required for the Structure and the roadway on it which shall
be designed, constructed, completed and maintained by the Municipality at its
cost. For the purposes of this MOU the "Longworth Avenue Extension West
Works" are the Works necessary to construct and complete the Longworth
Avenue Extension West. The Longworth Avenue Extension East Works and
Longworth Avenue Extension West Works are referred to collectively in this
MOU as the"Longworth Avenue Extension East and West Works".
(b) The PW Group shall construct and complete the Longworth Avenue Extension
East and West Works up to the standard provided in the Municipality Design
Criteria and Standard Detail Drawing C206 as modified and approved by the
Director of Engineering Services. The Municipality shall be responsible for the
cost of the design, construction, maintenance and repair of any oversizing of the
Longworth Avenue Extension East and West Works.
19
(c) The PW Group, at its cost, will prepare the drawings considered necessary in the
Director of Engineering Services' opinion to describe the Longworth Avenue
Extension East and West Works and comply with Schedule "F" hereto. The PW
Group shall submit the same to the Director for his consideration and if
appropriate, his approval not more than ninety days after the "Longworth Avenue
Extension East and West Works Construction Trigger Date" (as hereafter
defined).
(d) Schedule "F" to Schedule "J", inclusive shall apply in respect of the Longworth
Avenue Extension East and West Works, provided that references to the
"Relevant Parties" shall be deemed to be references to the PW Group, references
to the "Relevant Lands" shall be deemed to be references to the "Longworth
Avenue Extension East" and the "Longworth Avenue Extension West", and all
references to the "Clarington Boulevard Extension Part 1", the "Clarington
Boulevard Extension Part 1 Works", the "Clarington Boulevard Extension Part 1
Works Cost Estimate", the "Revised Clarington Boulevard Extension Part 1
Works Cost Estimate", the "Clarington Boulevard Extension Part I Works
Performance Guarantee" and the "Clarington Boulevard Extension Part 1 Works
Maintenance Guarantee" shall be deemed to be references to the "Longworth
Avenue Extension West" and the "Longworth Avenue Extension East", the
"Longworth Avenue Extension East and West Works", the "Longworth Avenue
Extension East and West Works Cost Estimate", the "Revised Longworth Avenue
Extension East and West Works Cost Estimate", the "Longworth Avenue
Extension East and West Performance Guarantee" and the "Longworth Avenue
Extension East and West Maintenance Guarantee", respectively.
(e) For the purposes of this MOU, the "Longworth Avenue Extension East and West
Works Construction Trigger Date" is the day on which the Director of
Engineering Services gives written notice to the PW Group that having regard to
the transportation analysis prepared for and at the cost of the Municipality, he has
determined that the Longworth Avenue Extension East and West Works and the
20
Structure must be constructed in order to deal effectively with traffic operations
and/or safety issues that are identified in the analysis. For clarity, the Longworth
Avenue Extension East and West Works Construction Trigger Date may not
occur until the Final Alignment of the Longworth Avenue Extension East and the
Longworth Avenue Extension West have been determined in accordance with
paragraphs 7(e) and (f) of this MOU.
(f) Within ninety days after the Director of Engineering Services approves the
drawings referred to in paragraph 14(c), the PW Group shall apply to the Director
of Engineering Services for an Authorization to Commence Works and shall
commence construction of the Longworth Avenue Extension East and West
Works. The PW Group shall complete and shall maintain the Longworth Avenue
Extension East and West Works in accordance with Schedule "F" hereto until a
Certificate of Acceptance of them is issued, provided that the Municipality shall
pay to the PW Group the funds necessary to cover the cost of construction of any
oversizing work required by the Director of Engineering Services and shall make
payment thereof to the PW Group within 45 days of receipt of a performance
certificate or invoice certified by the PW Group's "Engineer" (as provided for in
Schedule"F"hereafter defined) that the oversizing work has been completed.
(g) On or prior to the issuance of an Authorization to Commence Works by the
Director of Engineering Services, the PW Group will deposit cash or an
irrevocable and unconditional letter of credit with the Municipality in the amount
shown on the Longworth Avenue Extension East and West Works Cost Estimate
as it may be revised from time to time pursuant to Schedule "F" as the
performance guarantee ("Longworth Avenue Extension East and West Works
Performance Guarantee") for the Longworth Avenue Extension East and West
Works. The current Longworth Avenue Extension East and West Works Cost
Estimate is contained in Schedule "E" hereto.
21
(h) Until the PW Group deposits the Longworth Avenue Extension East and West
Works Performance Guarantee with the Municipality they shall hold the proceeds
of any sale of the School Site shown on the Infrastructure Plan to the School
Board or to any person, or so much thereof as is equal to the amount of the
Longworth Avenue Extension East and West Works Cost Estimate as revised
from time to time, the ("Longworth Amount') in trust ("Longworth Trust'). The
beneficiary of the Longworth Trust is the Municipality. The PW Group shall give
the Municipality written notice before they complete an agreement to sell the
School Site to the School Board or to any person. On completion of the
agreement, the PW Group shall forthwith pay the Longworth Amount to the
Municipality as the Longworth Avenue Extension East and West Performance
Guarantee. In the event that they fail to do so, the PW Group hereby consents to
an Order being issued by the Ontario Superior Court of Justice the effect of which
will be to require the Longworth Amount to be paid to the Municipality for use by
the Municipality as the Longworth Avenue Extension East and West Works
Performance Guarantee. For clarity, the Longworth Amount shall be deemed to
be released from the Longworth Trust and the Longworth Trust terminated on the
deposit with the Municipality of the Longworth Avenue Extension East and West
Performance Guarantee. Notwithstanding the foregoing provisions of this
paragraph 14(h), the PW Group shall not complete the sale of the School Site to
the School Board or any person until the Longworth Avenue Extension East and
West Works Performance Guarantee has been deposited with the Municipality.
(i) The Director of Engineering Services shall consult with the PW Group
concerning terms of reference for the transportation analysis referred to in
paragraph 14(e) before he authorizes the analysis to be commenced.
(j) The PW Group hereby irrevocably consents to the imposition of condition(s) of
approval of a draft plan of subdivision of the whole or part of the Players and
West Diamond Lands within the Brookhill Neighbourhood, and the 1613881
Lands pursuant to subsection 5](25) of the Planning Act, which replicates such of
22
the provisions of paragraph 14(a) to 14(i) inclusive, Schedules "F" to "J",
inclusive, and Schedule "E" as revised pursuant to Schedule "F" of this MOU as
the Director of Planning Services considers necessary to protect the
Municipality's interests. Any of the aforesaid paragraphs and Schedules of this
MOU that are so replicated shall terminate on the date of execution of subdivision
agreements between the Municipality and Players and West Diamond and the
Municipality and 1613881 which contain such replication.
Prince William Boulevard Extension Part 1 Works
15. (a) For the purposes of this MOU, the Prince William Boulevard Extension Part I
Works are the Works approved by the Director of Engineering Services necessary
to construct and complete the Prince William Boulevard Extension from Pethick
Street to Regional Road 57 as shown on the sketch contained in Schedule `B"
hereto, up to the standard provided in the Municipality's Design Criteria and
Standard Detail Drawing C208.
(b) Not less than sixty days prior to the registration on title of the first plan of
subdivision to implement any part of the draft plan of subdivision referred to in
Recital B, Players and West Diamond, at its cost, will prepare the drawings
necessary in the Director of Engineering Services' opinion, to describe the Prince
William Boulevard Extension Part 1 Works and comply with Schedule "F"
hereto. Players and West Diamond shall submit the same to the Director for his
consideration and if appropriate, his approval.
(c) Schedule "F" to Schedule "J", inclusive, apply in respect of the Prince William
Boulevard Extension Part 1 Works, provided that references to the "Relevant
Parties" shall be deemed to be references to Players and West Diamond,
references to the "Relevant Lands" shall be deemed to be references to the
"Prince William Boulevard Extension" and all references to the "Clarington
Boulevard Extension Part 1", the "Clarington Boulevard Extension Part 1
Works", the "Clarington Boulevard Extension Part 1 Works Cost Estimate", the
23
Revised Clarington Boulevard Extension Part 1 Works Cost Estimate", the
"Clarington Boulevard Extension Part 1 Works Performance Guarantee" and the
"Clarington Boulevard Extension Part I Works Maintenance Guarantee" shall be
deemed to be references to the "Prince William Boulevard Extension", the
"Prince William Boulevard Extension Part 1 Works", the "Prince William
Boulevard Extension Part 1 Works Cost Estimate", the "Revised Prince William
Boulevard Extension Part 1 Works Cost Estimate", the "Prince William
Boulevard Extension Part 1 Works Performance Guarantee" and the "Prince
William Boulevard Extension Part I Maintenance Guarantee", respectively.
(d) Players and West Diamond shall apply for an Authorization to Commence Works
and shall commence construction of the Prince William Boulevard Extension Part
1 Works not more than sixty days after the Director of Engineering Services
approves the drawings referred to in paragraph 15(b). Players and West Diamond
shall complete and shall maintain the Prince William Boulevard Extension Part 1
Works until a Certificate of Completion of the particular Works is issued pursuant
to this MOU. For clarity, the Works for which Players and West Diamond are
responsible to construct and install do not include the installation of the top coat
of asphalt on the Prince William Boulevard Extension.
(e) On or prior to the issuance of an Authorization to Commence Works respecting
the Prince William Boulevard Extension Part I Works by the Director of
Engineering Services Players and West Diamond shall deposit with the
Municipality cash or an irrevocable and unconditional letter of credit issued by a
bank listed in Schedule I or II of the BankAct in the amount of the Prince William
Boulevard Extension Part 1 Works Cost Estimate as revised from time to time
pursuant to this MOU, as the Prince William Boulevard Extension Part I
Performance Guarantee. The current Prince William Boulevard Extension Part 1
Works Cost Estimate is contained in Schedule "K" hereto. It is subject to revision
pursuant to Schedule "F" hereto.
24
(f) Until a Certificate of Completion of the Prince William Boulevard Extension Part
1 Works is issued by the Director of Engineering Services, Players and West
Diamond will not permit any person to occupy a dwelling unit or any lot or block
shown on the draft plan of subdivision referred to in Recital B.
(g) Players and West Diamond hereby irrevocably consent to the imposition of
condition(s) of approval of the draft plan of subdivision referred to in Recital B
pursuant to subsection 51(25) of the Planning Act, which replicate such of the
provisions of paragraphs 15(a) to 15(f) inclusive, Schedule "F" to "J", inclusive,
and Schedule "K" as it may be revised pursuant to this MOU as the Director of
Planning Services considers necessary to protect the Municipality's interests.
Any of the aforesaid paragraphs and Schedules of this MOU that are so replicated
shall terminate on the date of execution of a subdivision agreement between the
Municipality and Players and West Diamond which contains such replication.
Licence
16. The Municipality hereby grants to the PW Group including 1613881, their respective
officers, employees, agents, constituents and suppliers of services and materials, the
licence to enter on any of the lands transferred to the Municipality pursuant to this MOU
for the purpose of constructing and maintaining the Clarington Boulevard Extension Part
1 Works, the Brookhill Boulevard Extension Part 1 Works, the Longworth Avenue East
Works, the Prince William Boulevard Extension Part 1 Works, the "West Pond" (as
hereafter defined) and the "Channel and Outfalls" (as hereafter defined), as the case may
be.
Brookhill Tributary Lands East of Green Road
17. (a) Forthwith after final approval by the Municipality's Director of Planning Services
of the EIS Part A, the PW Group at its cost, will cause to be prepared and
deposited on title a reference plan of survey satisfactory to the Director of
25
Planning Services which identifies the "Adjusted Tops of Banks" (as hereafter
defined) of the Brookhill Tributary Lands located on the 1613881 Lands, and
buffer strips five metres wide measured from the Adjusted Tops of Banks (the
"Buffer Strips").
(b) In this MOU the term "Adjusted Tops of Banks" means the existing tops of banks
adjusted as necessary to accommodate slope stability and any adjustment of the
boundaries of the floodplain either as required by the Central Lake Ontario
Conservation Authority ("CLOCA") or as are recommended in the EIS Part A as
finally approved by the Director of Planning Services.
(c) 1613881 hereby grants to the Municipality an option to purchase ("Option') the
fee simple estate free and clear of encumbrances and restrictions, except those set
out in paragraph 3 of Schedule "L" hereto, in the lands between the Adjusted
Tops of Banks and the lands comprising the Buffer Strips for a nominal
consideration ("Lands To Be Transferred"). The option may be exercised with
respect to the whole or any part of the aforesaid lands and at a time determined by
the Director of Planning Services. However, the Option cannot be exercised
before the day that is eighteen months after the day on which the Final Alignment
of the Longworth Avenue Extension East is determined pursuant to paragraph 7
of this MOU.
(d) The Option shall be exercised by the Municipality giving 1613881 written notice
that it has been exercised. The day on which the Option is exercised is the
"Option Exercise Day". On the exercise of the Option as aforesaid, 1613881 as
Vendor and the Municipality as Purchaser shall be deemed to have entered into a
binding agreement of purchase and sale of the lands respecting which the Option
is exercised ("Purchase Agreement'). The terms and conditions of the Purchase
Agreement are those contained in the Schedule "L"hereto.
26
Payment to the Municipality
18. (a) Prior to the registration on title of a plan of subdivision to implement any part of
the draft plan of subdivision referred to in Recital B, the PW Group will pay the
Municipality the sum of One Hundred Thousand Dollars ($100,000.00)
("Contribution"). The Contribution shall be expended by the Municipality at its
discretion on the Brookhill Tributary Lands that presently are part of the 1613881
Lands within the Adjusted Tops of Banks and the lands comprising the Buffer
Strips referred to in paragraph 17(a) for the purpose of implementing in whole or
in part the recommendations of the 'Brookhill Tributary Naturalization Plan
("Naturalization Plan") as finally approved by the Director of Planning Services
which may include the installation of benches, garbage receptacles, and the
planting of trees.The Municipality agrees that the PW Group shall not be required
to undertake any other works within the Brookhill Tributary Lands and the Buffer
Strips, other than as required pursuant to paragraphs 20(a) and 20(b).
(b) The PW Group confirms that neither it nor any other person, including anv
successor in title to the Players and West Diamond Lands or the 1613881 Lands,
shall be entitled to, nor shall the PW Group, seek any credit under the
Development Charges Act, 1997 with respect to the Contribution or with respect
to any service on which it may be expended pursuant to paragraph 1.8(a) which is
provided for in the Municipality's proposed 2010 development charges by-law.
(c) If the Municipality decides to include trails on parts of the Brookhill Tributary
Lands and the Buffer Strips referred to in paragraph 17(c) in its 2010
development charges by-law to be passed under the Development Charges Act,
1997, Players, West Diamond and 1613881 will not appeal to the Ontario
Municipal Board to contest the appropriateness of such inclusion.
27
Transfer to Municipality of PSW on Players and West Diamond Lands
19. (a) Players and West Diamond will transfer the fee simple estate to the Municipality
in the portion of the Players and West Diamond Lands designated Provincially
Significant Wetlands and any required buffer which is identified in the EIS Part B
(the "PSW Lands"), within six months after the EIS Part B is finally approved by
the Director of Planning Services. No final approval of a plan of subdivision of or
a consent to divide Block 273 on the draft plan of subdivision referred to in
Recital B shall be granted until the PSW Lands have been conveyed to the
Municipality. The transfer of the PSW Lands shall be in a form satisfactory to the
Municipality's solicitor, shall be for a nominal consideration and shall be free and
clear of all encumbrances and restrictions. Prior to the transfer of title to the
Municipality, Players and West Diamond at their cost shall prepare and deposit on
title a reference plan of survey which shows the portion of the PSW Lands to be
transferred to the Municipality. Players and West Diamond at their cost shall
implement recommendations of the EIS Part B as finally approved by the Director
of Planning Services respecting the remediation of environmental conditions, if
any, identified in the EIS Part B on the buffer portion of the PSW Lands prior to
the conveyance of the PSW Lands to the Municipality.
(b) Notwithstanding paragraph I9(a), in the event that Players and West Diamond do
not agree that the boundaries of the Provincially Significant Wetlands and/or the
required buffer (if it is in excess of 30 metres wide) identified by the EIS Part B
on the Players and West Diamond Lands are reasonable, then prior to the expiry
of the six month period commencing on the day on which the Director gives
notice of his final approval of the EIS Part B, Players and West Diamond may
submit a draft plan of subdivision to the Municipality of Block 273 on the draft
plan of subdivision ("New Plan of Block 273") referred to in Recital B showing
the boundaries that they consider to be reasonable. The boundaries of the
Provincially Significant Wetlands and the required buffer shown on the New Plan
of Block 273 as approved by the Municipality or the Ontario Municipal Board, in
28
the event that Players and West Diamond appeal the New Plan of Block 273 to
the Ontario Municipal Board, shall be deemed to replace the boundaries of the
Provincially Significant Wetlands and/or the required buffer identified in the EIS
Part B and shall be used to determine the boundaries of the PSW Lands, and the
PSW Lands shall be conveyed by Players and West Diamond to the Municipality
within six months following the draft approval of the New Plan of Block 273. In
the event that Players and West Diamond do not apply for approval of a New Plan
of Bock 273 prior to the expiry of the aforesaid six month period, Players and
West Diamond shall be deemed to have agreed that the boundaries of the
Provincially Significant Wetlands and required buffer are the boundaries as
shown on the EIS Part B as finally approved by the Director of Planning Services
and they shall be used to determine the boundaries of the PSW Lands.
Stormwater Manaeement Pond for the PW Group's Lands and Clean Water Channel
20. (a) The PW Group at its cost will satisfy the conditions of approval of the draft plan
of subdivision referred to in Recital B respecting the stormwater management
pond on the west side of the Brookhill Tributary Lands ("West Pond"), the clean
water channel and outfalls ("Channel and Outfalls") which conditions are
contained in Attachment 44 to Report 4PSD-11 1-09. For clarity, the PW Group at
its cost will satisfy the requirements of the Director of Engineering Services
respecting the construction or installation of remediation works required for the
restoration of the areas within the Brookhill Tributary Lands that are disturbed
due to the construction of the West Pond, Channel and Outfalls and any
geomorphic alteration or erosion control works required by the EIS Part A or the
detailed drawings for the West Pond, Channel and Outfalls approved by the
Director of Engineering Services, which for greater certainty shall not include
works related to the construction of trails or any enhancement of vegetation
beyond that required to address the restoration, geomorphic alteration or erosion
control works as shown on such detailed drawings. It is agreed that these are
external works respecting the lands within the draft plan of subdivision referred to
29
in Recital B and that their construction and maintenance will be secured to the
Municipality by the performance guarantee required to be deposited with the
Municipality pursuant to the proposed subdivision agreement between Players,
West Diamond and the Municipality.
(b) Prior to the construction and installation of the works required for the West Pond,
Channel and Outfalls referred to in paragraph 20(a), the PW Group will cause the
fee simple interest in the lands in or on which the West Pond, Channel and
Outfalls are located to be transferred to the Municipality free and clear of
encumbrances and restrictions. The transfer shall be made for a nominal
consideration and shall be in a form satisfactory to the Municipality's solicitor.
Any necessary reference plan of survey to permit the registration on title of the
transfers shall be prepared and deposited on title by the PW Group at its cost.
Transfer to the Municipality of the Parkette East of Green Road and the Neighbourhood
Park on 1613881 Lands and Park Concept Plan
21. (a) The PW Group shall cause the fee simple interest in the Parkette (minimum 0.5
ha.) on the east side of Green Road and the Neighbourhood Park (minimum 2.0
ha.) both as shown on the Infrastructure Plan to be transferred to the Municipality
prior to the later to occur of (i) the registration on title of the first plan of
subdivision of any part of the 1613881 Lands, (ii) ninety days following the final
approval of the EIS Part A by the Director of Planning Services, and (iii) ninety
days following the determination of the Final Alignment of the Longworth
Avenue Extension East. The transfer shall be in a form satisfactory to the
Municipality's solicitor, shall be made for a nominal consideration and shall be
free and clear of all encumbrances and restrictions.
(b) Prior to the transfer of the lands referred to in paragraph 21(a), the PW Group, at
its cost, shall prepare and submit to the Director of Engineering Services for his
consideration and if appropriate his approval a suitable park development concept
30
plans for the Parkette and the Neighbourhood Park, both as referred to in
paragraph 21(a).
Calculation of Parkland Required for PW Group's Development
22. (a) The PW Group and the Municipality agree that the land required to be transferred
to the Municipality for park or other public recreational purposes shall be
calculated for the lands set out below as follows:
(i) respecting the Players and West Diamond Lands located west of Green
Road and north of the planned Brookhill Boulevard as contained within
draft plan of subdivision application S-C-2004-004, subject to paragraph
22(b), 1 ha. for each 300 dwelling units;
(ii) respecting the residential lands presently owned by Players and West
Diamond located between Green Road and Boswell Drive south of the
planned Brookhill Boulevard (the "Town Centre Block"), subject to
paragraph 22(c), I ha for each 300 dwelling units; and
(iii) respecting the 1613881 Lands south of the northerly limit of the
Longworth Avenue Extension East shown on the Infrastructure Plan,
subject to paragraph 22(d), 5%of the total area of the 1613881 Lands.
The PW Group and the Municipality acknowledge and agree that this method of
calculation would result in a transfer of land to the Municipality for park or other
public recreational purposes of 1.907 ha. respecting the Players and West
Diamond Lands, 0.538 ha. respecting the Town Centre Block and 1.495 ha.
respecting the 1613881 Lands, respectively, for a total of 3.94 ha.
(b) They also acknowledge and agree that for the purpose of this calculation the lands
within Block 273 on the draft plan of subdivision referred to in Recital B have
31
been assumed to be developed for 149 units. In the event that Block 273 is
developed for more than 149 units, the PW Group shall pay the Municipality the
cash value determined on the "Valuation Date" (as hereafter defined) of the
resulting under-dedication of land for park or other public recreational purposes.
In the event that Block 273 is developed for fewer than 149 units, the
Municipality shall pay the PW Group the cash value determined on the Valuation
Date of the resulting over-dedication of land for park or other public recreational
purposes. In either case, the payment shall be made on the "Payment Date" (as
hereafter defined).
(c) The PW Group and the Municipality acknowledge and agree that in calculating
the number of dwelling units assigned to the Town Centre Block, a total of 161
units for the lands has been used in the calculation referred to in paragraph
22(a)(i). If the actual residential density of buildings proposed to be developed on
this land exceeds a total of 161 units, Players and West Diamond or their
successors in title will pay the cash value of the under-dedication to the
Municipality on or prior to the day on which site plan approval of that
development is granted pursuant to section 41 of the Planning Act.
(d) The PW Group and the Municipality acknowledge and agree that if the area of the
1613881 Lands located south of the northerly boundary of the Final Alignment of
the Longworth Avenue Extension East ("South Lands") is greater than 29.11 ha.,
the PW Group or their successors in title will pay the cash value of the under-
dedication determined on the Valuation Date to the Municipality on the Payment
Date. In the event that the area of the South Lands is less than 29.11 ha., the
Municipality will pay the cash value of the over-dedication determined on the
Valuation Date to the PW Group on the Payment Date.
(e) The PW Group and the Municipality acknowledge and agree that the
Neighbourhood Commons Square located within the Players and West Diamond
Lands and the Neighbourhood Park and the Parkette within the 1613881 Lands,
32
all as shown on the Infrastructure Plan (collectively the "Parkland"), shall, subject
to paragraphs 22(b), to 22(d), inclusive, be conveyed to the Municipality on
account of the collective parkland dedication requirements under the Planning Act
for all of the lands described in paragraph 22(a). If the final total area of Parkland
conveyed to the Municipality is less than the 3.94 ha assumed total parkland
dedication requirement set out in paragraph 22(a), the PW Group will pay to the
Municipality the cash value determined on the Valuation Date of the resulting
under-dedication of land for park or other public recreational purposes. If the final
total area of the Parkland that has been conveyed to the Municipality exceeds the
3.94 ha assumed total parkland dedication requirement, the Municipality shall pay
to the PW Group the cash value determined on the Valuation Date of the resulting
over-dedication of land for park or other public recreational purposes. Payment
shall be made on the Payment Date.
(f) The term "Valuation Date" means the day for determining the under-dedication or
the over-dedication referred to in paragraph 22(b), 22 (d) and 22(e) which is the
later of(i) the day before the approval of the last draft plan of subdivision for the
Players and West Diamond Lands, and (ii) the day before the approval of the last
draft plan of subdivision for the South Lands.
(g) The term "Payment Date" means the day of registration on title of the first plan of
subdivision referred to in paragraph 22(f) following the occurrence of the
Valuation Date.
School Site at South-East Corner of Lon2worth Avenue Extension and Clarinaton
Boulevard Extension
23. 1613881 agrees to the incorporation as a condition of approval of the first draft plan of
subdivision of the 1613881 Lands located easterly from the Brookhill Tributary Lands,
the following:
33
1613881 shall deposit with the Municipality, a letter from the School Board
stating that arrangements satisfactory to the School Board have been made
respecting the School Site shown on the Infrastructure Plan.
Temporary Access to Neighbourhood Park and/or School Site
24. (a) In the event that (i) the combination of existing dwelling units and building
permits issued for new dwelling units on lands within the Brookhill
Neighbourhood equals or exceeds eight hundred and fifty (850) ("850
Threshold") , and (ii) the Clarington Boulevard Extension Part I has not been
extended to the northerly limit of the first street south of the School Site within
the 1613881 Lands as shown on the Infrastructure Plan ("Street S"), the PW
Group will cause to be transferred to the Municipality, the Regional Municipality
of Durham, Veridian Corporation and the School Board, respectively, for a
nominal consideration temporary easements ("Temporary Easements") to provide
for sanitary sewer, water and electricity services for the Neighbourhood Park and
School Site shown on the Infrastructure Plan and access to the Neighbourhood
Park and/or the abutting School Site both as shown on the Infrastructure Plan.
(b) The works required to construct the Temporary Easement (the "Temporary
Easements Works") shall be constructed in accordance with drawings which shall
be prepared by the PW Group at its cost. The drawings shall be submitted to the
Director of Engineering Services for his consideration, and if he considers them to
be appropriate, his approval. The Temporary Easements Works shall be
constructed by the PW Group at its cost in accordance with the approved
drawings.
(c) Prior to the achievement of the 850 Threshold, the PW Group shall prepare the
Temporary Easements Works Cost Estimate and shall submit it to the Director of
Engineering Services for his consideration and if appropriate, his approval.
34
(d) Schedule "F" to Schedule "P', inclusive, apply in respect of the Temporary
Access Easements Works, provided that references to the "Relevant Parties" shall
be deemed to be references to the PW Group, reference to the "Relevant Lands"
shall be deemed to be references to the lands subject to the Temporary Easements,
and all references to the "Clarington Boulevard Extension Part 1, the "Clarington
Boulevard Extension Part 1 Works", the "Clarington Boulevard Extension Part I
Works Cost Estimate", the "Clarington Boulevard Extension Part I Works
Performance Guarantee", and the "Clarington Boulevard Extension Part 1 Works
Maintenance Guarantee" shall be deemed to be references to the "Temporary
Easements", the "Temporary Easements Works Cost Estimate", the "Temporary
Easements Works Performance Guarantee" and the "Temporary Easements
Works Performance Guarantee", respectively.
(e) Prior to the achievement of the 850 Threshold, the PW Group shall apply for the
issuance of an Authorization to Commence Works from the Director of
Engineering Services. On or prior to the issuance of the Authorization to
Commence Works, the PW Group shall deposit cash or an irrevocable and
unconditional letter of credit issued by a bank listed in Schedules I or 11 of the
Bank Act in the amount of the Temporary Easements Works Cost Estimate as the
Temporary Easements Works Performance Guarantee.
(f) Notwithstanding paragraphs 24(b) to 24(e), inclusive, in the event that any portion
of the dwelling units comprising the 850 Threshold are developed on lands within
the Brookhill Neighbourhood other than within the Players and West Diamond
Lands or the 1613881 Lands, the PW Group shall only be required to fund the
proportionate share of the costs of the Temporary Easement Works attributable to
development on the Players and West Diamond Lands or the 1613881 Lands.
calculated as the percentage of the dwelling units comprising the 850 Threshold
that are located within the Players and West Diamond Lands and the 1613881
Lands.
35
(g) Until the PW Group deposits the Temporary Easements Works Performance
Guarantee with the Municipality, they shall hold the proceeds of any sale of the
School Site shown on the Infrastructure Plan to the School Board or to any
person, or so much thereof as is equal to the amount of the Temporary Easements
Works Cost Estimate as revised from time to time (`Temporary Easements
Amount") in trust ("Temporary Easements Trust"). The beneficiary of the
Temporary Easements Trust is the Municipality. The PW Group shall give the
Municipality written notice before they complete an agreement to sell the School
Site to the School Board or to any person. On completion of the agreement, the
PW Group shall pay the Temporary Easements Amount to the Municipality as the
Temporary Easements Works Performance Guarantee. In the event that they fail
to do so, the PW Group hereby consents to an order being issued by the Ontario
Superior Court of Justice, the effect of which will be to require the Temporary
Easements Amount to be paid to the Municipality as the Temporary Easements
Works Performance Guarantee. For clarity, the Temporary Easements Amount
shall be deemed to be released from the Temporary Easements Trust and the
Temporary Easements Trust terminated on the deposit with the Municipality of
the Temporary Easements Works Performance Guarantee. Notwithstanding the
foregoing provisions of this paragraph 24(f), the PW Group shall not complete the
sale of the School Site to the School Board or to any person until the Temporary
Easements Works Performance Guarantee has been deposited with the
Municipality.
(g) The scope, terms, and form of the Temporary Easements shall be satisfactory to
the Municipality's solicitor, the solicitor for the Regional Municipality of
Durham, the solicitor for Veridian Corporation and the School Board's solicitor,
respectively, as the solicitor for the transferee of the particular Temporary
Easement. The Temporary Easements shall terminate on the day on which the
later to be dedicated as a public highway of the extension of Clarington Boulevard
to the northerly limit of Street S and Street S is dedicated as a public highway. if a
reference plan of survey to show the Temporary Easements area is necessary to
36
permit the registration on title of the Temporary Easements, it shall be prepared
and deposited on title at the cost of the PW Group.
Notice
25. If any notice or other document is required to be or may be given by the Municipality or
by any official of the Municipality to the Owners by these Principles, such notice shall be
transmitted by telefax, mailed by first class prepaid post or delivered to:
To Players: Players Business Park Ltd.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr. Bruce Fischer
Fax: 905-669-2134
To West Diamond: West Diamond Properties Inc.
30 Floral Parkway
Concord, ON IAK 4R1
Attention:
Fax: 905-669-2134
To 1613881: 1613881 Ontario Inc.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr. Bruce Fischer
Fax; 905-669-2134
To the PW Group: The PW Group
c/o Players Business Park Ltd.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr.Bruce Fischer
Fax: 905-669-2134
37
To the Municipality: The Municipality of Clarington
40 Temperance Street
Bowmanville, ON LIC 3A6
Attention: Director of Planning Services
Fax: 905-623-0830
or such other address of which the Owners have notified the Municipality in writing. Any
such notice so mailed or delivered shall be deemed good and sufficient notice under the
terms of these Principles and shall be effective from the date which it is so mailed or
delivered.
Interpretation
26. (a) This MOU shall be read with all changes of gender or number required by the
context. References to the Director of Planning Services, the Director of
Engineering Services and the Director of Finance/Treasurer shall mean the
persons from time to time appointed to such offices by the Municipality or their
delegates.
(c) The term "School Board" when used in this MOU means the Kawartha Pine
Ridge District School Board.
Acting Reasonably
27. All discretionary decisions by officials of the Municipality referred to in this MOU shall
be deemed to be qualified by the words "acting reasonably".
Registration of MOU on Title
28. The parties hereto other than the Municipality consent to the registration of this MOU or
a Notice of it on the title to their respective lands.
38
Assumption of Obligations
29. (a) Each of the parties to this MOU other than the Municipality, covenant and agree
with the Municipality that it shall be a general and indispensable condition of any
sale, mortgage or charge or a lease for a term including entitlement to renew of 21
years or more either of the whole or any one or more portions of their respective
lands or any assignment or sublease of such a leasable interest with an unexpired
term including entitlement to renew of 21 years or more of the whole or any one
or more portions of such lands, that each proposed transferee,mortgagee, chargee,
lessee, assignee or sub-lessee, as the ease may be, has entered into an agreement
with the Municipality prior to and conditional on the transaction in question
taking place, assuming each of the relevant obligations and covenants
("Assumption Agreement") provided in this MOU to the extent applicable to the
lands in respect of which such interest is being acquired, save and except those
obligations and covenants that have been discharged by performance to the
satisfaction of the Municipality or are included in a Subdivision Agreement made
pursuant to section 51 of the Planning Act registered against the title to such lands
which the Municipality's Solicitor, acting reasonably, considers to be enforceable
against successors in title to party or (parties) in question pursuant to the
provisions of the Planning Act. Where a mortgage, charge, lease, assignment of
lease or sublease of a leasehold interest is given by way of security for financing
then such mortgagee, chargee, lessee, assignee or sub-lessee, thereunder shall not
be bound to assume such party's or parties' in question obligations and covenants
unless and until such mortgagee, chargee, lessee, assignee or sub-lessee takes
possession or control of the property pursuant to such security. Where any of the
obligations and covenants of a party to this MOU other than the Municipality
have been assumed unconditionally by a transferee, lessee, assignee or sub-lessee
("Assuming Party"), as the case may be, who has acquired the title to all or a
portion of a party to this MOU and has entered into the aforesaid Assumption
Agreement with the Municipality, then the party, an Assuming Party or an
39
Assuming Party's successor in title of that land, as the case may be, shall be
deemed to be released from its obligations and covenants hereunder to the extent
that such obligations and covenants have been so assumed. Similarly, if an
Assuming Party or a successor in title of an Assuming Party proposes to enter into
a transaction referred to in this paragraph, an Assumption Agreement is required
to be made with the Municipality prior to and conditional on the transaction in
question taking place. In the latter case, the provisions of this paragraph shall
apply with all necessary changes being considered to have been made in order to
give effect to the intent of the penultimate sentence of this paragraph 30(a). An
Assumption Agreement shall not be required from the purchaser of any lot or
block on a registered plan of subdivision or unit within a plan of condominium.
For clarity, it is acknowledged that an Assumption Agreement in respect of the
Town Centre Block shall only require the Assuming Parry to assume the
obligations pursuant to paragraph 22(c) of this MOU.
(b) Concurrent with the delivery of this MOU to a party or parties hereto to the
Municipality, it or they shall deliver to the Municipality an application duly
executed by such party or parties in registerable form and containing such terns
as the Municipality's solicitor, acting reasonably, requires, made pursuant to
section 118 of the Land Titles Act to restrict the transfer, charge or lease of their
respective lands or any portion thereof without the prior written consent of the
Municipality. A party or parties or an Assuming Party, as the case may be, shall
request the consent of the Municipality by notice in writing given to the
Municipality not later than three (3) weeks prior to the date specified in the notice
of the proposed transfer, mortgage, charge, lease, assignment of lease or sublease
of a leasehold interest. The written consent of the Municipality shall be granted
and the Municipality shall notify the Land Registry Office of that fact prior to the
date of the proposed transfer, mortgage, charge, lease, assignment of lease or sub-
lease, as the case may be, provided that (i) the provisions of paragraph 30(a) are
satisfied, and (ii) any necessary Assumption Agreement has been made by the
40
proposed transferee, mortgagee, chargee, lessee, assignee or sub-lessee, as the
case may be.
(c) Paragraphs 29(a) and (b) shall terminate with respect to the lands owned by a
party or parties to the MOU on the earlier of (i) the registration on title of a
subdivision agreement or site plan agreement securing the outstanding obligations
of this MOU that relate to such lands: and (ii) development to implement the
Infrastructure Plan for the entirety of such lands is completed. Forthwith after the
registration of each such agreement or each such completion of development of a
party's or parties' lands, the Municipality shall cooperate with such party or
parties or an Assuming Party, as the case may be, in applying to expunge the
Notice under section 118 of the Land Titles Act referred to in paragraph 19(b)
from the title to the lands in question. Any necessary reference plan of survey or
amendment thereto required to accomplish this end shall be prepared and
deposited on title in the Land Registry Office at the cost of such party or parties or
the Assuming Party, as the case may be.
Authority of Municipality
30. The parties hereto acknowledge and agree that the Municipality has authority to enter
into this MOU, that every provision hereof is authorized by the law and is fully
enforceable by the parties, and that this MOU is executed by the Municipality in reliance
on the acknowledgement and agreement of the parties.
Status Statement
31. Within ten (10) days of receiving a written request from any one of Players, West
Diamond or 1613881, the Municipality shall provide a written statement either
confirming that the requesting party is in good standing and not in default of any
provisions of this MOU, or setting out the manner and extent to which such requesting
party is in default.
41
Expunaement of MOU From Title After Satisfaction
32. Without derogating from the provisions of paragraph 2 of this MOU, forthwith after the
last of the provisions of this MOU to be satisfied has been satisfied, the Municipality will
consent to and co-operate with the other parties hereto in expunging the MOU or the
Notice(s) thereof and the Notice(s) under section 118 of the Land Titles Act from the title
to the lands on which it or they have been registered. Upon the registration of a plan of
subdivision or plan of condominium in respect of any portion of the Players and West
Diamond Lands or the 1613881 Lands, provided that the PW Group is not in default in
respect of any of the provisions of this MOU, the Municipality will consent to and co-
operate with the PW Group in expunging the MOU or the Notice(s) thereof and the
Notice(s) under section 118 of the Land Titles Act from the title to such registered lots or
blocks, or the lands subject to such plan of condominium, on which it or they have been
registered.
Further Assurances
33. The parties hereby covenant and agree, after a request in writing by one party to the other
parties, to forthwith execute and provide all further documents, instruments and
assurances as may be necessary or required in order to carry out (and give effect to) the
true intent of this MOU, and to effect the registration against and release from title to the
lands subject to this MOU of such notices or other instruments in accordance with the
provisions of this MOU.
Enurement
34. This MOU shall enure to the benefit of and bind the parties hereto and their respective
successors and assigns.
42
Cost of Preparing etc. MOU
35. The PW Group agrees to a payment towards the Municipality's legal fees incurred
in preparation of the MOU in an amount to be agreed upon and acceptable to both parties.
Time of Essence
36. Time shall in all respects be of the essence of this MOU.
43
IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and
seals the day and year first above written and the parties hereto have hereunto affixed their
corporate seals by the hands of their proper officers duly authorized in that behalf
SIGNED, SEALED AND ) THE CORPORATION Oi THE
r �
DELIVERED ) MUNICIPALITY OF 13 ARiNGT"QN
In the presence of:
m A et r
P tti L. arne funicipal Clerk
e the power to bind the Corporation.
PLAYER BUSINESS PARK LTD.
Name, Title:
, iJCt!y�nU
Name: Title:
I/We have the power to bind the Corporation.
)
WEST D MOND PROPERTIES INC.
Nam : Title:
Name: Title:
I/We have the power to bind the Corporation.
1613881 O TARIOINC.
Name- Title:
Name: Title:
I/We have the power to bind the Corporation.
SCHEDULE "A"
THIS SCHEDULE IS SCHEDULE "A" to the Memorandum of Understanding which
has been authorized and approved by By-law No. 2009-157 of The Corporation of the
Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
INFRASTRUCTURE PLAN
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SCHEDULE "B"
THIS SCHEDULE IS SCHEDULE `B" to the Memorandum of Understanding which
has been authorized and approved by By-law No. 2009-157 of The Corporation of the
Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
SKETCH SHOWING PRINCE WILLIAM BOULEVARD EXTENSION PART 1
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SCHEDULE "C"
THIS SCHEDULE IS SCHEDULE "C" to the Memorandum of Understanding which
has been authorized and approved by By-law No. 2009-157 of The Corporation of the
Municipality of Clarington, enacted and passed the 23rd day of November, 2009.
CLARINGTON BOULEVARD EXTENSION PART 1
WORKS COST ESTIMATE
TOTAL: $1,580,000 as of November 23, 2009
SCHEDULE "D"
THIS SCHEDULE IS SCHEDULE "D" to the Memorandum of Understanding which
has been authorized and approved by By-law No. 2009-157 of The Corporation of the
Municipality of Clarington, enacted and passed the 23 Id day of November, 2009.
BROOKHILL BOULEVARD EXTENSION PART 1
WORKS COST ESTIMATE
TOTAL: $790,000 as of November 23, 2009
SCHEDULE "E"
THIS SCHEDULE IS SCHEDULE "E" to the Memorandum of Understanding which
has been authorized and approved by By-law No. 2009-157 of The Corporation of the
Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
LONGWORTH AVENUE EXTENSION EAST AND WEST
WORKS COST ESTIMATE
TOTAL: $1,990,000 as of November 23, 2009
Schedule "F"
Page 1
SCHEDULE "F"
CLARINGTON BOULEVARD EXTENSION PART 1 WORKS
THIS SCHEDULE IS SCHEDULE "F" to the Memorandum of Understanding
which has been authorized and approved by By-law No. 2009-157 of The Corporation of
the Municipality of Clarington, enacted and passed the 23rd day of November, 2009.
1. WORKS REQUIRED
(1) The PW Group ("Relevant Parties") at their expense shall construct, install,
supervise and maintain the Clarington Boulevard Extension Part 1 Works
including all connections, alterations, adjustments and transitions required to suit
existing systems or lands in accordance with the Municipality's Design Criteria
and Standard Drawings, and the Engineering Drawings, all to the approval of the
Director of Engineering Services:
(a) A storm sewer system for the removal of upstream storm water and storm
water originating within the 1613881 Lands located easterly of the
Brookhill Tributary Lands shown on the Infrastructure Plan which is
considered necessary by the Municipality's Director of Engineering
Services ("Relevant Lands"), including storm sewer mains and
connections, manholes, service connections, catch-basins and storm
outfalls and structures and any other appurtenances and oversizing as may
be required (the "Storm Sewer System").
(b) A stormwater management system consistent with the "Master Drainage
Plan", complete with overland flow routes, detention and retention
facilities, quality control devices, outlets, erosion and sedimentation
control measures and any other necessary facilities as required (the
"Stormwater Management System").
Schedule "F"
Page 2
(c) Necessary roadworks which shall include all urban roadwork components
including sidewalks, curbs, granular material and asphalt pavement, and
any necessary storm and sanitary sewer mains, watermains, connections,
street lighting, street trees, utilities, including oversizing of works and any
temporary or permanent works, transitions, tapers and connections,
fencing, signage, topsoil and sodding and restoration, and any other
related works deemed necessary by the Director of Engineering Services.
Such works shall be consistent with the Clarington Boulevard Extension
Part 1 Works Drawings referred to in Schedules "F" and "H", including
any revisions as finally approved by and on file with the Director.
(d) A street lighting system which provides illumination of the Clarington
Boulevard Extension Part 1 including all connections, energy and
maintenance costs, appurtenant apparatus and equipment, in the locations
as approved by the Director of Engineering Services (the "Street Lighting
System").
(e) Related Works including grading, landscaping, fencing and other
miscellaneous Works shown on the Engineering Drawings and Grading
and Drainage Plan (the "Related Works") approved by the Director of
Engineering Services.
STAGING OF THE WORKS
The Clarington Boulevard Extension Part 1 Works shall be staged as approved by
the Director of Engineering Services. Unless otherwise determined by the Director, the
stages shall accommodate development of the 1613881 Lands on the west side as
principal or secondary access thereto is required. Unless otherwise determined by the
Director, each stage shall be divided into the following sub-stages:
L(2) INITIAL WORKS
Schedule "F"
Page 3
Storm Sewer System including all appurtenances;
initial roadworks including subgrade, subbase and base granular materials,
subdrains, base curbs, base asphalt, traffic control and street name signs of
the Road System; and
grading (collectively called the "Initial Works").
L(3) STORMWATER MANAGEMENT SYSTEM
1.(4) STREET LIGHTING SYSTEM
1.(5) FINAL WORKS
final roadworks including top curbs and gutters, surface asphalt,
sidewalks, street trees, boulevard topsoil and sodding and driveway aprons
of the Road System; and
landscaping works, walkways and any remaining works not outlined in
paragraphs 1.(2), L(3) and 1.(4) above.
1.(6) From the date of issuance of an "Authorization to Commence Works" (as
hereafter defined) until the date of issuance of a "Certificate of Acceptance" (also
as hereafter defined) of them the Relevant Parties shall be fully responsible for the
construction and maintenance of the Clarington Boulevard Extension Part 1
Works including the cost thereof in accordance with the provisions of this MOU.
After the issuance of a Certificate of Acceptance, the Works referred to in such
Certificate shall be the responsibility of the Municipality.
Schedule "F"
Page 4
2. THE RELEVANT PARTIES' ENGINEER
At all times until a Certificate of Acceptance of the Clarington Boulevard
Extension Part I Works is issued, the Relevant Parties shall retain the Relevant Parties'
Engineer who shall perform the duties set out in Schedule "H" to this MOU. On the
execution of this MOU and on each occasion on which a new Relevant Parties' Engineer
is retained, forthwith after retaining the Relevant Parties' Engineer, the Relevant Parties
shall give the Director of Engineering Services written notice of the name, address and
telefax number of the Relevant Parties' Engineer. No partnership, association of persons
or corporation shall be retained as the Relevant Parties' En gineer without the prior
written approval of the Director. All notices to be given to the Relevant Parties' Engineer
are properly given if given by personal service, by telephonic facsimile communication,
or first class prepaid post addressed to the Relevant Parties' Engineer at the address or
telefax number provided to the Director pursuant to this paragraph. Forthwith after the
Director gives the Relevant Parties written notice requiring it to do so, the Relevant
Parties shall give the Director written notice advising him whether or not the approved
the Relevant Parties' Engineer continues to be retained by the Relevant Parties.
3. DESIGN OF CLARINGTON BOULEVARD EXTENSION PART IWORKS
(I) The Relevant Parties covenant and agree that the design of the Clarington
Boulevard Extension Part 1 Works shall conform with all applicable legislation
and the Municipality's Design Criteria and Standard Detail Drawings. In the event
of any dispute as to such requirements or their interpretation, the dispute shall be
resolved by the Director of Engineering Services whose decision shall be final.
(2) The Relevant Parties shall provide and submit to the Director all necessary
Engineering Drawings for the Clarington Boulevard Extension Part 1 Works. The
Relevant Parties shall obtain all approvals for the construction and installation of
the Clarington Boulevard Extension Part I Works as required by this MOU.
Schedule "F"
Page 5
4. ENGINEERING DRAWINGS
(1) Prior to the issuance of any Authorization to Commence Works, the Relevant
Parties shall obtain the written approval of the Director of Engineering Services of
the original copy of all drawings of the Clarington Boulevard Extension Part I
Works (the "Engineering Drawings"). If construction and installation of the
Clarington Boulevard Extension Part 1 Works have not commenced within two
(2) years from the date of approval of the Engineering Drawings, the Engineering
Drawings shall be resubmitted to the Director for his reconsideration and approval
after any revisions required by the Director have been made to them (the
"Reapproved Engineering Drawings"). From and after the approval by the
Director of the Reapproved Engineering Drawings, they shall be deemed to be the
Engineering Drawings for the purpose of this MOU, and thereafter all Clarington
Boulevard Extension Part 1 Works shall be constructed and installed in
accordance with them. The Relevant Parties hereby irrevocably assign to the
Municipality without cost to the Municipality the right to use and to reproduce the
Engineering Drawings and all reports that relate in whole or in part to the
Clarington Boulevard Extension Part 1 Works which have been prepared by or for
the Relevant Parties or any of them in connection with the performance of the
Relevant Parties' obligations under this MOU. The Relevant Parties acknowledge
that approval of the Engineering Drawings or reports by the Director shall not
relieve the Relevant Parties from its obligation to satisfy all requirements of or
made pursuant to this MOU.
(2) Prior to the issuance of any Authorization to Commence Works, the Relevant
Parties shall provide the Director of Engineering Services without cost to the
Municipality the Relevant Parties' Engineer's (1) written acknowledgement that
the Engineering Drawings may be used and/or reproduced by the Municipality
without cost or prior approval or permission, (2) written permission for the
Municipality's officers, employees, agents, contractors and supplier to use the
specifications, data, drawings, records and reports whether completed or in
Schedule °F"
Page 6
progress of completion in satisfaction of the Relevant Parties' obligations under
the provisions of this MOU without cost or prior approval or permission, and (3)
written undertaking to deliver to the Director the original copy of the Engineering
Drawings forthwith after being given written notice by the Director requiring the
Relevant Parties' Engineer to do so, whether or not the Relevant Parties'
Engineer's fees and disbursements in respect of any of them have been paid. Prior
to each occasion on which a new the Relevant Parties' Engineer is retained by,the
Relevant Parties or any of them and approval of the Director is sought, the
Relevant Parties shall provide the Director with a similar written
acknowledgement and written permission of the new the Relevant Parties'
Engineer, provided that if the new the Relevant Parties' Engineer is to be retained
by the Director on behalf of the Relevant Parties, the Director shall obtain from
the prospective the Relevant Parties' Engineer the aforesaid written
acknowledgement and permission. Forthwith after the Director gives the Relevant
Parties' Engineer written notice requiring them or it to do so, copies of the
Engineering Drawings, computer disks, specifications, data, drawings, records
and reports referred to in this paragraph shall be provided to the Director without
cost to the Municipality.
5. STAGING OF CONSTRUCTION OF WORKS
Not used
6. APPROVAL OF SCHEDULE OF WORKS
Prior to the issuance of any Authorization to Commence Works respecting any of
the Clarington Boulevard Extension Part 1 Works, the Relevant Parties shall obtain the
written approval of the Director of Engineering Services of a draft schedule (the
"Schedule of Works") which sets out the time at which, and the sequence in which the
Relevant Parties propose to construct and install the Clarington Boulevard Extension Part
1 Works.
Schedule "F"
Page 7
7. APPROVAL OF CLARINGTON BOULEVARD EXTENSION PART 1
WORKS COST ESTIMATE
The Municipality acknowledges that the Director of Engineering Services has
approved the "Clarington Boulevard Extension Part 1 Works Cost Estimate" contained in
Schedule"C". By notice in writing to the Relevant Parties, the Director may from time to
time require them to submit for his understanding and if appropriate, his approval a
Revised Works Cost Estimate for the Clarington Boulevard Extension Part 1 Works.
When approved by the Director the Revised Clarington Boulevard Extension Part I
Works Cost Estimate is the Clarington Boulevard Extension Part 1 Works Cost Estimate
for the purposes of this MOU.
8. REQUIREMENTS FOR AUTHORIZATION TO COMMENCE WORKS
The Relevant Parties shall not commence the construction or installation of any of
the Clarington Boulevard Extension Part 1 Works without the written permission of the
Municipality (the "Authorization to Commence Works"). The Relevant Parties shall only
commence the construction and installation of those Clarington Boulevard Extension Part
1 Works permitted by the Authorization to Commence Works.
9. INSPECTION AND STOP WORK
The Relevant Parties shall ensure that every contract that may be made by the
Relevant Parties with any contractor to construct or install any of the Clarington
Boulevard Extension Part 1 Works shall provide that employees or representatives of the
Municipality may, at any time, inspect the Clarington Boulevard Extension Part I Works
undertaken by such contractor and shall require the contractor to comply with stop work
orders given by the Director pursuant to this paragraph 9. The Director of Engineering
Services may give the Relevant Parties a written order to stop the construction or
installation of any of the Clarington Boulevard Extension Part 1 Works that is being
undertaken by giving written notice either to the Relevant Parties or to the Relevant
Parties' Engineer to that effect if in the Director's opinion either (1) the Clarington
Schedule "I"'
Page 8
Boulevard Extension Part 1 Works are not being undertaking such that a completed
construction and installation of all the Clarington Boulevard Extension Part 1 Works
satisfactory to the Municipality in accordance with this MOU will result, or (2) the
Clarington Boulevard Extension Part 1 Performance Guarantee and the Security for the
Clarington Boulevard Extension Part 1 Maintenance Guarantee required to be provided
pursuant to this MOU in respect of the Clarington Boulevard Extension Part 1 Works
have not been deposited or is not maintained in good standing. The Relevant Parties shall
comply with the stop work order forthwith after it is given by the Director in accordance
with this paragraph 9 by requiring the Relevant Parties' contractor and sub-contractors
who are constructing and installing the Clarington Boulevard Extension Part I Works or
components thereof in question and are referenced in the order to comply with it
forthwith. A stop work order may be given to the Relevant Parties by giving to the
Relevant Parties' Engineer by personal service on the Relevant Parties' Engineer or any
representative of the Relevant Parties' Engineer, by prepaid first class post addressed to
the Relevant Parties' Engineer, or by telefax to the Relevant Parties' Engineer at the
address and telefax number referred to in paragraph 2 of this Schedule.
10. CONSTRUCTION IN ACCORDANCE WITH ENGINEERING
DRAWINGS
The Clarington Boulevard Extension Part 1 Works shall be constructed and
installed in accordance with the Engineering Drawings as approved by the Director of
Engineering Services. No deviation from the Engineering Drawings is permitted unless
such deviation is authorized in writing by the Director before it is undertaken. All
construction and installation of the Clarington Boulevard Extension Part 1 Works shall be
undertaken and carried out by the Relevant Parties or by the Relevant Parties' contractor,
as the case may be, in accordance with the regulations for construction set out in
Schedule "I" to this MOU.
Schedule "F°
Page 9
11. SEQUENCE OF CONSTRUCTION OF WORKS
Following the issuance of an Authorization to Commence Works, the Relevant
Parties shall proceed in good faith to construct and install all of the Clarington Boulevard
Extension Part I Works referred to in the Authorization to Commence Works
continuously and in accordance with the timing and sequence therefore set out in the
Schedule of Works.
12. COMPLETION TIME FOR CONSTRUCTION OF WORKS
Within twelve (12) months of the date of the issuance of an Authorization to
Commence Works, the Relevant Parties shall complete the construction and installation
of the Clarington Boulevard Extension Part 1 Works authorized in such Authorization to
Commence Works.
13. ADDITIONAL WORK
Until the conclusion of the Maintenance Guarantee Period referable thereto, if in
the opinion of the Director of Engineering Services, any incidental work is required to
provide for the adequate operation, functioning and maintenance of any of the Clarington
Boulevard Extension Part 1 Works, the Relevant Parties, at their cost, shall construct and
install such additional facilities and perform such additional work as the Director may
request from time to time by written notice given to the Relevant Parties.
14. INCOMPLETE OR FAULTY WORKS AND LIENS
(1) Without derogating from the other provisions of this MOU, if, in the opinion of
the Director of Engineering Services, (1) the Relevant Parties are not constructing
and installing or causing to be constructed or installed any of the Clarington
Boulevard Extension Part 1 Works required by this MOU so that it or they will be
completed within the time specified for such completion in the Schedule of
Schedule "I"'
Page 10
Works, or (2) the Clarington Boulevard Extension Part 1 Works or any
component(s) thereof are being improperly constructed or installed, or (3) the
Relevant Parties neglect or abandon the said Clarington Boulevard Extension Part
1 Works or any part of them before completion, or (4) unreasonable delay occurs
in the construction or installation of the Clarington Boulevard Extension Part I
Works, or (5) for any other reason the Clarington Boulevard Extension Part 1
Works are not being constructed or installed properly and promptly and in full
compliance with the provisions of this MOU, or (6) the Relevant Parties neglects
or refuses to reconstruct or reinstall any of the Clarington Boulevard Extension
Part 1 Works or component(s) thereof which may be rejected by the Director of
Engineering Services as being defective, deficient or unsuitable, or (7) the
Relevant Parties otherwise default in performance of this MOU in respect of the
Clarington Boulevard Extension Part 1 Works, the Director of Engineering
Services may give the Relevant Parties notice in writing of his opinion respecting
any such matter. Following the later to occur of the expiry of ten (10) business
days, excluding Saturdays and Sundays and statutory holidays following the
giving of such notice plus the expiry of any additional period as may be specified
in the notice given to the Relevant Parties by the Director of Engineering
Services, the Municipality, at the cost and expense of the Relevant Parties, may
engage a contractor, supplier of services or materials and such workmen, and
purchase such services, supplies and/or services as in the opinion of the Director
are required for the completion of the construction and installation of the
Clarington Boulevard Extension Part 1 Works and all components thereof and the
performance of all covenants of the Relevant Parties relating to the Clarington
Boulevard Extension Part 1 Works as provided by this MOU. In cases of
emergency or urgency, or in order to preserve the integrity of the Clarington
Boulevard Extension Part 1 Works or any component thereof as determined by
the Director of Engineering Services in his absolute discretion, any deficiency(s)
or defect(s) in the Clarington Boulevard Extension Part 1 Works, and any failure
to complete the Clarington Boulevard Extension Part 1 Works and all components
thereof in accordance with this MOU may be corrected, remedied or completed
Schedule "F"
Page 11
by the Municipality, its contractors, suppliers and employees at the cost of the
Relevant Parties without prior notice to the Relevant Parties, provided that
forthwith after the Municipality so acts, the Director of Engineering Services shall
give written notice to the Relevant Parties of his determination as aforesaid,
describing the action taken by the Director, and the cost of correcting or
remedying the deficiency or default in question or the cost of completing the
Clarington Boulevard Extension Part 1 Works and the components thereof, as the
case may be. For the purposes of this paragraph 14(1) the cost of any work which
the Municipality undertakes under this paragraph 14(1) shall be determined by the
Director of Engineering Services in his absolute discretion. It is understood and
agreed by the Parties that the costs for which the Relevant Parties are responsible
under this paragraph 14(1) shall include a management fee payable to the
Municipality either of thirty (30%) percent of the contractor's charges to the
Municipality (including any charges for overhead and profit) or, if such work is
undertaken by the Municipality, thirty (30%) percent of all costs incurred by the
Municipality to correct or remedy the deficiencies or defect or to complete the
Clarington Boulevard Extension Part 1 Works and all components thereof as the
case may be. The Relevant Parties shall pay the Municipality an amount equal to
the cost of all Clarington Boulevard Extension Part 1 Works and components
thereof, and the cost of correcting or remedying all deficiencies and defects
referred to in this paragraph 14(1) which have been incurred by the Municipality
or are estimated in the aforesaid Director's absolute discretion to be likely to be
incurred by the Municipality forthwith after the Director gives the Relevant
Parties written demand for payment of such cost. If the amount paid is based on
the Director's estimate as aforesaid, forthwith after actual costs are known the
Director shall give the Relevant Parties written notice thereof. If the actual costs
are more than the estimated costs, the Relevant Parties shall forthwith pay the
Municipality an amount equal to the difference between them. If the actual costs
are Tess than the estimated costs, the Municipality shall forthwith refund the
difference between them to the Relevant Parties.
Schedule "P"
Page 12
(2) In the event (1) a claim for a lien in respect of the Clarington Boulevard
Extension Part 1 Works or any component thereof is registered against the title to
any land vested in or which should have been vested in the Municipality or is
filed with the Municipality, or (2) the Municipality receives written notice of a
claim of an alleged beneficiary of a statutory trust under the Construction Lien
Act, such registration, filing or notice shall constitute a default in performance by
the Relevant Parties of this MOU. In any such case, the Director of Engineering
Services may notify the Relevant Parties in writing of such default. If the
Relevant Parties fail to discharge the lien or the claim as the case may be within
ten (10) business days, excluding Saturdays, Sundays and statutory holidays, after
the giving of such notice plus any further period of time as may be specified in the
notice, then the Municipality in its absolute discretion may (1) pay the full amount
of the claim and security for costs into a court of competent jurisdiction in order
to obtain an order vacating such claim for lien, (2) discharge the claim in full by
paying the amount claimed or in part by paying a portion thereof, or (3) draw the
full amount of the claim in cash from a letter of credit deposited with the
Municipality as the Security for the Clarington Boulevard Extension Performance
Guarantee and hold the cash in a deposit account of the Municipality as the
Security for the Clarington Boulevard Extension Performance Guarantee in
respect of the claim in question. The Municipality may draw on and appropriate
the whole or any portion(s) of the Performance Guarantee and the Security for the
Maintenance Guarantee for the purpose of making payment under this paragraph
14(2). The Relevant Parties shall indemnify the Municipality against the costs
and expense incurred by the Municipality in making a payment pursuant to this
paragraph 14(2) forthwith after the Director of Engineering Services gives the
Relevant Parties written notice requiring him to do so. In the event that the
Municipality draws on and appropriates any portion of the Clarington Boulevard
Extension Part 1 Performance Guarantee or the Clarington Boulevard Extension
Part I Maintenance Guarantee for any of the aforesaid purposes, forthwith after
the Director gives written notice to the Relevant Parties requiring them to do so,
the Relevant Parties shall reinstate the Clarington Boulevard Extension Part 1
Schedule "F"
Page 13
Performance Guarantee and/or the Security for the Clarington Boulevard
Extension Part 1 Works Maintenance Guarantee, as the case may be, to the full
amount(s) required under the provisions of this MOU.
15. ACKNOWLEDGEMENT RESPECTING EMERGENCY, ETC. REPAIRS
The Relevant Parties acknowledge that if in cases of emergency or urgency or in
order to protect the integrity of the Clarington Boulevard Extension Part 1 Works or any
component thereof, the Director of Engineering Services acts to correct, remedy or repair
any deficiency(s) or defect(s) in the Clarington Boulevard Extension Part 1 Works,
neither on entry on the Clarington Boulevard Extension Part 1 Works or any portion of
them nor any such action by the Director or any person authorized to undertake the same
by the Director shall be deemed to be an acceptance of any of the Clarington Boulevard
Extension Part 1 Works by the Municipality, nor an assumption by the Municipality of
any responsibility or liability in connection therewith, or a release by the Municipality of
the Relevant Parties from any of its obligations under this MOU.
16. DAMAGE TO EXISTING SERVICES
Forthwith after written demand therefore is given by the Director of Engineering
Services to the Relevant Parties, the Relevant Parties shall pay to or to the direction of the
Municipality, the cost of repairing any damage to any property or services of the
Municipality, the Region, Hydro One or any utility authority or company or (the
"Damaged Services") including without limiting the generality of the foregoing, any
road(s), water, electrical, gas, telephone, cable television and sewer systems, and the cost
of relocating any Damaged Services, caused by or resulting from the construction or
installation of any of the Clarington Boulevard Extension Part 1 Works, provided that all
such repairs and or relocation(s) are completed to the satisfaction of the Director, the
Region and Hydro One or the relevant utility authority or company which owns or is
responsible for the Clarington Boulevard Extension Part I Works, property or services in
question.
Schedule "F"
Page 14
17. USE OF CLARINGTON BOULEVARD EXTENSION PART 1 WORKS BY
MUNICIPALITY
The Municipality and the Relevant Parties acknowledge and agree that any of the
Clarington Boulevard Extension Part 1 Works once constructed may be used by the
Municipality and such other person(s) who is (are) authorized by the Municipality for any
of the purposes for which the Clarington Boulevard Extension Part 1 Works are designed,
without interference by the Relevant Parties, and without the payment of any fee or
compensation to the Relevant Parties, and for such purposes the Municipality and other
person(s) authorized by the Municipality may enter upon the portion of the Relevant
Parties lands on which any of the Clarington Boulevard Extension Part 1 Works are
located. The parties hereto also acknowledge and agree that the Clarington Boulevard
Extension Part 1 Works may be used by the Relevant Parties for construction access to
any portion of their respective lands.
18. REQUIREMENTS FOR CERTIFICATE OF COMPLETION
The Relevant Parties acknowledge and agree that the construction and installation
of any of the Clarington Boulevard Extension Part 1 Works authorized in an
Authorization to Commence Works shall not be deemed to be completed for the purposes
of this MOU until the Director of Engineering Services has provided the Relevant Parties
with written certificate that such is the case (the "Certificate of Completion"). In addition
to satisfying the other requirements of this MOU respecting its issuance, a Certificate of
Completion shall not be issued until such of the Clarington Boulevard Extension Part 1
Works authorized by the Authorization to Commence Works for which a Certificate of
Completion is required, have been inspected by the Director, and he is satisfied such
Clarington Boulevard Extension Part 1 Works have been constructed and installed in
accordance with the Engineering Drawings and have received all certificates and
confirmations from the Relevant Parties' Engineer as provided for in this MOU.
Schedule "F"
Page 15
19. REQUIREMENTS FOR CERTIFICATE OF ACCEPTANCE
The Relevant Parties acknowledge and agree that the none of the Clarington
Boulevard Extension Part 1 Works covered by a Certificate of Completion shall be
accepted, nor deemed to be accepted for the purpose of this MOU until the Director of
Engineering Services has provided the Relevant Parties with written certification that the
Clarington Boulevard Extension Part 1 Works in question have been accepted (the
"Certificate of Acceptance"). If the Director is of the opinion that the Clarington
Boulevard Extension Part 1 Works in question have been properly maintained and all
deficiencies and defects in such Clarington Boulevard Extension Part 1 Works have been
remedied and corrected by the Relevant Parties on behalf of the Municipality, the
Director shall provide the Relevant Parties with a Certificate of Acceptance of the
relevant Clarington Boulevard Extension Part 1 Works.
20_ OWNERSHIP OF CLARINGTON BOULEVARD EXTENSION WORKS
BY MUNICIPALITY
For greater certainty, the Relevant Parties acknowledge and agree that the
Municipality is the owner of all of the Clarington Boulevard Extension Part I Works
covered by a Certificate of Acceptance. The Relevant Parties shall have no right or claim
thereto, other than as specifically agreed to between the Relevant Parties and the
Municipality in writing.
21. PROPERTY DAMAGE GUARANTEE
Prior to the issuance of an Authorization to Commence Works by the Director of
Engineering Services for the construction and installation of the Clarington Boulevard
Extension Part 1 Works, the Relevant Parties shall deposit Five Thousand ($5,000.00)
Dollars with the Municipality which may be drawn upon by the Municipality to
indemnify itself against any cost that the Municipality incurs in repairing damage caused
by the Relevant Parties to any property of the Municipality in constructing and installing
Schedule "I"'
Page 16
any of the Clarington Boulevard Extension Part 1 Works. The deposit or so much of it as
is not drawn upon for the aforesaid purpose shall be repaid by the Municipality to the
Relevant Parties without interest when the Security for the Maintenance Guarantee of the
Clarington Boulevard Extension Part 1 Works is repaid by the Municipality to the
Relevant Parties.
Schedule"G "
Page 1
SCHEDULE "G"
CLARINGTON BOULEVARD EXTENSION PART 1 WORKS
PERFORMANCE GUARANTEE
THIS SCHEDULE IS SCHEDULE "G" to the Memorandum of Understanding
which has been authorized and approved by By-law No. 2009-157 of The Corporation of
the Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
1. CLARINGTON BOULEVARD EXTENSION PART 1 WORKS
PERFORMANCE GUARANTEE REQUIRED
(a) The Relevant Parties shall deposit with the Municipality, cash or an
irrevocable and unconditional letter of credit issued by a bank listed in
Schedule "I" or "IP' of the Bank Act, acceptable to the Director of
Finance/Treasurer, and in a form and containing terms and conditions
satisfactory to the Director of Finance/Treasurer ("Clarington Boulevard
Extension Part I Works Performance Guarantee") in accordance with the
requirement of the MOU. The Clarington Boulevard Extension Part 1
Works Performance Guarantee shall be in the amount determined by the
Director of Engineering Services to be the amount required to secure to
the Municipality the performance by the Relevant Parties of their
covenants contained in this MOU to construct and install the Clarington
Boulevard Extension Part 1 Works.
(b) Without limiting the generality of the foregoing, in making his
determination, the Director of Engineering Services shall have regard for
the "Clarington Boulevard Extension Part 1 Works Cost Estimate" or the
"Revised Clarington Boulevard Extension Part 1 Works Cost Estimate"
(both terms are hereafter defined) whichever is applicable, for the
construction and installation of the Clarington Boulevard Extension Part 1
Works for which either an application has been made by the Relevant
Schedule "G "
Page 2
Parties to the Director of Engineering Services for the issuance of an
Authorization to Commence Works or an Authorization to Commence
Works has been issued by the Director.
(c) If from time to time following the issuance of any Authorization to
Commence Works the aforesaid Director is of the opinion that the amount
of the Clarington Boulevard Extension Part 1 Works Performance
Guarantee should be increased in order to protect the Municipality's
interests under this MOU, the Director shall consider and, acting
reasonably, approve a Clarington Boulevard Extension Part 1 Revised
Works Cost Estimate which on his approval shall be deemed to be the
Clarington Boulevard Extension Part 1 Works Cost Estimate for the
purposes of this MOU. Forthwith after the Director approves a Clarington
Boulevard Extension Revised Works Cost Estimate, he shall give to the
Relevant Parties written notice of his decision and a copy of the
Clarington Boulevard Extension Part I Revised Works Cost Estimate.
(d) In the event that the Relevant Parties do not increase the amount of the
Clarington Boulevard Extension Part 1 Works Performance Guarantee for
a period of thirty (30) days following the giving of written notice by the
Director to the Relevant Parties requiring an increase in the amount of the
Clarington Boulevard Extension Part 1 Works Performance Guarantee,
any Authorization to Commence Work that has been issued shall
terminate.
2. USE OF CLARINGTON BOULEVARD EXTENSION PART 1 WORKS
PERFORMANCE GUARANTEE
(a) From time to time the Municipality may appropriate the whole or any one
or more portions of the Clarington Boulevard Extension Part I Works
Performance Guarantee up to an amount(s) determined by the Director of
Schedule "G "
Page 3
Engineering Services, which in aggregate shall not exceed the amount(s)
which in the opinion of the Director is required to remedy the Relevant
Parties' breach(es) or default(s) of or under the provisions of this MOU.
Forthwith after making each such appropriation, the Director shall give the
Relevant Parties written notice thereof and the Relevant Parties shall
forthwith reinstate the Clarington Boulevard Extension Part 1 Works
Performance Guarantee to the full amount required by this MOU.
(b) If the whole or any portion of the Clarington Boulevard Extension Part 1
Works Performance Guarantee is appropriated by the Municipality as
aforesaid and is not fully expended by the Municipality, the Relevant
Parties agree with the Municipality that the Relevant Parties will not
require the Municipality to pay interest on any portion of it for the period
in which it is held by the Municipality and deposited by the Municipality
in an interest bearing account in the name of the Municipality, in the event
that an amount equal to the appropriated amount or any part of it is paid
by the Municipality either to the Relevant Parties, to the bank which
issued the letter of credit for deposit as the Clarington Boulevard
Extension Part 1 Works Performance Guarantee, as directed by the
Relevant Parties or the bank, as the case may be.
3. INDEMNIFICATION OF MUNICIPALITY
The Relevant Parties shall defend, indemnify and save the Municipality harmless
from and against all actions, claims, liabilities, losses, damages and expenses including
reasonable legal fees which arise by reason of or are caused in whole or in part by the
design, construction and installation, supervision of construction and installation,
inspection, and/or maintenance of the Clarington Boulevard Extension Part 1 Works by
the Relevant Parties, its employees, contractors, suppliers of services or materials, the
Relevant Parties' Engineer, the Relevant Parties' Engineer's employees, and the Relevant
Parties' licensees.
Schedule "G "
Page 4
4. INSURANCE
The Relevant Parties shall obtain and maintain insurance and deposit the proof
thereof as required by and in accordance with Schedule "J" of this MOU.
5. MAINTENANCE GUARANTEE REQUIRED
(1) From the date of issuance of an Authorization to Commence the Clarington
Boulevard Extension Part I Works until the date of issuance of a Certificate of
Acceptance of the Clarington Boulevard Extension Part 1 Works or particular
component(s) of the Clarington Boulevard Extension Part 1 Works, the Relevant
Parties agrees with the Municipality to promptly correct, remedy, repair or replace
any portion or component of the Clarington Boulevard Extension Part 1 Works in
question that the Director of Engineering Services determines to be defective or
deficient having regard to the provisions of this MOU at the Relevant Parties' cost
(the "Clarington Boulevard Extension Part 1 Maintenance Guarantee"). The
amount of the required Clarington Boulevard Extension Part 1 Maintenance
Guarantee shall be determined in accordance with paragraph 7(a) of this
Schedule. The Relevant Parties shall be given written notice of any such
deficiency or defect by the Director forthwith after he identifies the same. The
Relevant Parties shall deposit or leave on deposit with the Municipality, cash or
an irrevocable and unconditional letter of credit by a bank listed in Schedule I or
II of the Bank Act acceptable to the Municipality's Director of Finance/Treasurer
and containing terms satisfactory to the Municipality's Director of
Finance/Treasurer, as security for the Clarington Boulevard Extension Part 1
Maintenance Guarantee (the "Security for the Maintenance Guarantee").
(2) The Clarington Boulevard Extension Part 1 Maintenance Guarantee expires on the
later to occur of (1) the date of issuance of the Certificate of Acceptance of the
Clarington Boulevard Extension Part 1 Works, and (2) the day which is two (2)
Schedule "G "
Page
years following the date of the issuance of the Certificate of Completion of the
Clarington Boulevard Extension Part 1 Works.
6. USE OF MAINTENANCE GUARANTEE
From time to time, the Municipality may appropriate the whole or any part of the
Security for the Maintenance Guarantee if the Relevant Parties fail to pay any cost(s)
payable by the Relevant Parties to the Municipality under this MOU. The amount(s) of
such appropriation shall not exceed the amount(s) which in the opinion of the Director
are required to remedy the Relevant Parties' breach(es) or default(s) as determined by the
Director of Engineering Services of correcting or remedying a deficiency(s) or defect(s)
in the Clarington Boulevard Extension Part 1 Works or a portion or component thereof,
which is covered by the Clarington Boulevard Extension Part 1 Maintenance Guarantee
and is in question. Forthwith after the Municipality makes any such appropriation, the
Director of Engineering Services shall 'give the Relevant Parties written notice thereof.
Forthwith, after the giving of such notices, the Relevant Parties shall restore the Security
for the Maintenance Guarantee to the full amount required by this MOU.
7. REDUCTION AND RELEASE OF CLARINGTON BOULEVARD
EXTENSION PART 1 WORKS PERFORMANCE GUARANTEE
(a) Subject to the other provisions of the MOU, respecting the Brookhill
Boulevard Part 1 Works Performance Guarantee, prior to the release of the
Clarington Boulevard Extension Part 1 Works Performance Guarantee in
the discretion of the Director of Engineering Services, the amount of the
Clarington Boulevard Extension Part 1 Works Performance Guarantee
may be reduced, from time to time, to reflect the progress of completion of
the Clarington Boulevard Extension Part 1 Works and other facilities and
improvements which are required to be constructed and installed by the
Relevant Parties after taking into account any outstanding claims the
satisfaction of which is provided for in this MOU. The maximum
reduction that may be permitted to be made by the Director is such that
Schedule "G "
Page 6
will leave on deposit with the Municipality as the Clarington Boulevard
Extension Part 1 Works Performance Guarantee is the amount equal to the
sum of(1) the value of the uncompleted Clarington Boulevard Extension
Part 1 Works as determined by the Director having regard for the
Clarington Boulevard Extension Part 1 Works Cost Estimate then in force
plus any amount determined by the Director but not to exceed twenty
(20%) percent of such value as a completion allowance payable to the
Municipality, and (2) as the Clarington Boulevard Extension Part I
Maintenance Guarantee fifteen (15%) percent of the value of the
completed Clarington Boulevard Extension Part 1 Works, also determined
by the Director after considering the material, if any, submitted to the
Director by the Relevant Parties' Engineer in support of an application for
reduction of the Clarington Boulevard Extension Part 1 Works
Performance Guarantee in respect of the Clarington Boulevard Extension
Part 1 Works that have been completed by the Relevant Parties as well as
the contract documents, sub-contracts and supply contracts pertaining to
the Clarington Boulevard Extension Part 1 Works and the provisions of
the Construction Lien Act.
(b) The Relevant Parties will not require the Municipality to release to the
Relevant Parties any unused portion of the Clarington Boulevard
Extension Part 1 Works Performance Guarantee until each of the
following conditions is satisfied:
(i) A Certificate of Completion has been issued for the Clarington
Boulevard Extension Part 1 Works for which the Clarington
Boulevard Extension Part 1 Works Performance Guarantee was
initially required to be deposited with the Municipality.
(ii) The Relevant Parties have deposited or have left on deposit with
the Municipality the Security for the Clarington Boulevard
Schedule "G "
Page 7
Extension Part 1 Works Maintenance Guarantee applying to the
Clarington Boulevard Extension Part 1 Works for which the
Clarington Boulevard Extension Part 1 Works Performance
Guarantee initially was required to be deposited with the
Municipality.
(iii) The Director is satisfied that in respect of the construction and
installation of the Clarington Boulevard Extension Part 1 Works
for which such Clarington Boulevard Extension Part 1 Works
Performance Guarantee was initially required to be deposited with
the Municipality, there are no outstanding claims relating to the
Clarington Boulevard Extension Part 1 Works.
(iv) The Municipality is satisfied that there are no outstanding claims
relating to the Clarington Boulevard Extension Part 1 Works which
the Municipality is required or may be permitted to pay either
under the provisions of the Construction Lien Act or otherwise.
(v) The Municipality is satisfied that the Relevant Parties are not in
breach of any of their covenants contained in this MOU respecting
the Clarington Boulevard Extension Part 1 Works,
8. REDUCTION AND RELEASE OF MAINTENANCE GUARANTEE
The Relevant Parties will not require the Municipality to-release to the Relevant
Parties the Security for the Maintenance Guarantee until each of the following conditions
is satisfied:
(a) A Certificate of Acceptance has been issued for the Clarington Boulevard
Extension Part 1 Works for which such Maintenance Guarantee is required
under this MOU.
Schedule "G"
Page 8
(b) The Municipality is satisfied that there are not outstanding claims relating
to such Clarington Boulevard Extension Part 1 Works which the
Municipality is required or may be permitted to pay either under the
provisions of the Construction Lien Act or otherwise.
(c) The Municipality is satisfied that the Relevant Parties are not in breach of
any of the covenants contained in this MOU respecting the Clarington
Boulevard Extension Part 1 Works.
(d) The Director has received the as-constructed drawings for such Clarington
Boulevard Extension Part 1 Works from the Relevant Parties as well as the
computer disks, if any, have been prepared by the Relevant Parties'
Engineer.
9. UNPAID MONIES
Except as otherwise provided in this MOU, the due date of any money payable
under it, unless a different due date is specified in this MOU, shall be thirty (30) days
after the date of the giving of the written invoice to the Relevant Parties. Interest shall be
calculated and be paid by the Relevant Parties to the Municipality on all sums of money
of which the Relevant Parties are in default at the same rate, and in the same manner, and
at the same time as is the case with Municipality taxes which are in arrears at the date on
which the default in question commences.
Schedule "H"
Page I
SCHEDULE "H"
DUTIES OF THE RELEVANT PARTIES'S ENGINEER
THIS SCHEDULE IS SCHEDULE "H" to the Memorandum of Understanding
which has been authorized and approved by By-law No. 2009-157 of The Corporation of
the Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
1. RESPONSIBILITY FOR DESIGN ETC.
In addition to the other requirements of this MOU, the Relevant Parties' Engineer
shall prepare all drawings, plans, studies, reports, estimates, calculations and
documentation for the consideration and approval of the Director of Engineering
Services. The approval of the Director shall not absolve or release the Relevant
Parties or the Relevant Parties' Engineer of the responsibility and liability for any
errors or omissions in the above drawings, plans, reports, stages or documentation
or from liability for any damage or loss caused or resulting directly or indirectly
by the Relevant Parties' Engineer.
2. REPRESENT THE RELEVANT PARTIES AND OBTAIN
MUNICIPALITY APPROVALS
The Relevant Parties' Engineer is hereby authorized by the Relevant Parties to act
as the Relevant Parties' representative in all matters pertaining to the design,
construction and installation of the Clarington Boulevard Extension Part 1 Works
and the overall management of the development, and shall co-operate with the
Municipality and the Director of Engineering Services to protect the interests of
the Municipality and the general public in all matters relating to the design,
construction and installation of the Clarington Boulevard Extension Part 1 Works.
Schedule "H"
Page 2
3. PROVIDE RESIDENT SUPERVISION
The Relevant Parties' Engineer shall provide fully qualified, experienced
supervisory layout and inspection staff, acceptable to the Director of Engineering
Services, to provide continuous inspection service during all phases of the
construction and installation of the Clarington Boulevard Extension Part 1 Works.
Without limiting the generality of the foregoing, the Relevant Parties' Engineer
shall be responsible for the following:
(a) To carry out or arrange for the carrying out by qualified personnel of field
layout including the provision of line and grade to the contractors and,
where required, restaking.
(b) To thoroughly inspect the construction, installation, and supply of
materials to ensure that all work is being performed in accordance with the
Clarington Boulevard Extension Part 1 Works Engineering Drawings, the
Municipality's Design Criteria and Standard Drawings, and applicable
plans of survey, as the case may be, and all applicable law. The Relevant
Parties' Engineer shall have the authority and responsibility to
immediately stop and/or reject any work, procedure, or material which in
his opinion does not comply with the Engineering Drawings, the
Municipality's Design Criteria and Standard Drawings, the applicable
plans of survey and/or the applicable law.
(c) To provide co-ordination and scheduling of the construction and
installation of the Clarington Boulevard Extension Part 1 Works in
accordance with the timing provisions contained in this MOU and the
requirements of the Director.
Schedule "H"
Page 3
(d) To investigate and immediately report to the Director of Engineering
Services any unusual circumstances, potential problems, conflicts, errors,
defective work or material which may arise during the construction and
installation of the Clarington Boulevard Extension Part 1 Works.
(e) To obtain field information during and upon completion of the
construction and installation of the Clarington Boulevard Extension Part 1
Works required to modify the Engineering Drawings to produce the as-
constructed drawings of the Clarington Boulevard Extension Part 1
Works.
4. MAINTAIN RECORDS
The Relevant Parties' Engineer shall maintain all records, data, reports, approvals
and orders pertaining to the construction and installation including all contract
documents, sub-contracts and supply contracts, payment certificates, payment
records and receipts, certificates of substantial performance, the names and
addresses of all contractors, sub-contractors and suppliers of materials and
services, certificates of completion of sub-contracts and proof of service and
publication thereof in accordance with the provisions of applicable legislation and
make all of the foregoing available for examination by the Director of
Engineering Services as required by the Director without cost. If any change is
made in the terms of a contract, sub-contract or supply contract or in the name or
address of a contractor, sub-contractor and supplier from information that may not
have been provided to the Director by the Relevant Parties or the Relevant
Parties' Engineer pursuant to this MOU, the Relevant Parties' Engineer
immediately after becoming apprised of each change shall give the Director
written notice of it.
5. PROVIDE PROGRESS REPORTS
Schedule "H"
Page 4
The Relevant Parties' Engineer shall provide the Director of Engineering Services
with reports on the progress of the construction and installation of the Clarington
Boulevard Extension Part 1 Works on a monthly basis, or at such other interval as
approved by the Director.
6. PREPARE AS-CONSTRUCTED DRAWINGS
The Relevant Parties' Engineer shall prepare and submit the as-constructed
drawings of the Clarington Boulevard Extension Part 1 Works together with the
computer disks, if any have been prepared, to the Director of Engineering
Services provided that the as-constructed drawings shall be prepared to the
satisfaction of the Director.
Schedule "I"
Page 1
SCHEDULE "I"
THIS SCHEDULE IS SCHEDULE "I" to the Memorandum of Understanding
which has been authorized and approved by By-law No. 2009-157 of The Corporation of
the Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
INSURANCE REOUHtED
1. TYPES OF COVERAGE REQUIRED
The Relevant Parties shall obtain and maintain insurance of the character
commonly referred to as public liability and property damage with an insurance company
approved by the Director of Finance/Treasurer and licensed in Ontario to underwrite such
insurance and containing terms and conditions which are acceptable to the Municipality's
Director of Finance/Treasurer. Such policy or policies of insurance shall indemnify the
Municipality against all damage or claims for damage for:
(a) Any loss or damage that shall or may happen to any of the Clarington Boulevard
Extension Part 1 Works or any of the Utilities or to any part or parts thereof
respectively;
(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 Clarington
Boulevard Extension Part 1 Works or any part or parts thereof respectively;
(c) Any injury to any person or persons including workmen employed on the
Relevant Parties' lands (unless covered by Workers Safety & Insurance Board)
and the public;
(d) Any loss or damage that shall or may result from the drainage of surface water on
or from the Clarington Boulevard Extension Part 1;
(e) Any loss or damage that shall or may result from the disposal of effluent from any
sewage disposal works; and
Schedule "P'
Page 2
(f) Any loss or damage that shall or may happen to any public road or to any other
property of the Municipality or to the property of any other person either directly
or indirectly by reason of the Relevant Parties undertaking any or all of the
Clarington Boulevard Extension Part 1 Works.
2. AMOUNTS OF COVERAGE REQUIRED
Policy or policies of insurance shall be issued jointly in the names of the Relevant
Parties and the Municipality and shall provide the following minimum coverages for five
million ($5,000,000) dollars for all damage arising out of one (1) accident or occurrence
or series of accidents or occurrences.
The issuance of such policy or policies of insurance or the acceptance of it or
them by the Municipality shall not be construed to relieve the Relevant Parties from
responsibility for other or larger claims for which it may be held responsible.
3. TERM OF INSURANCE
The term of the required insurance shall commence no later than the day on which
the first Authorization to Commence Works is issued and shall terminate no earlier than
the last day on which all Certificates of Acceptance have been issued for the Clarington
Boulevard Extension Part I Works contemplated by this MOU.
Schedule "J"
Page 1
SCHEDULE "J"
REGULATIONS FOR CONSTRUCTION
THIS SCHEDULE IS SCHEDULE "J" to the Memorandum of Understanding
which has been authorized and approved by By-law No. 2009-157 of The Corporation of
the Municipality of Clarington, enacted and passed the 23rd day of November, 2009.
1. RESPONSIBILITY FOR DESIGN
All work pursuant to and associated with this MOU shall be carried out in strict
conformity with all approved Engineering Drawings, the Municipality's Design
Criteria, Standard Drawings and Specifications or any revisions thereof and all
applicable legislation, in addition to any requirements set out in this MOU.
2. SAFETY
The Relevant Parties shall ensure that all construction pursuant to and associated
with this MOU is carried out in conformance with the Occupational Health and
Safety Act, and other applicable legislation.
3. PERMITS AND APPROVALS
The Relevant Parties shall ensure that any and all permits and approvals required
to install or construct or prepare to install or construct any of the Clarington
Boulevard Extension Works pursuant to or associated with any part of this MOU
have in fact obtained and are valid and in good standing.
4. REQUIREMENTS FOR BLASTING
Not Used.
Schedule "I"
Page 2
5. REMOVAL OF TOPSOIL
Not Used.
6. DUMPING OF FILL OR DEBRIS
Not Used.
7. DISPOSAL OF CONSTRUCTION GARBAGE
The Relevant Parties shall remove and dispose of all construction garbage and
debris from the Relevant Parties Lands in an orderly and sanitary fashion in a
dump site off the Relevant Parties Lands and approved by the Director of
Engineering Services. The Municipality shall not be responsible for the removal
or disposal of garbage and debris. Without derogating from the foregoing
provisions of this paragraph, if the Relevant Parties fails to remove construction
garbage or debris from the Property for a period of three (3) consecutive days
following the giving of written notice by the Director to the Relevant Parties
requiring it to do so, the Director may cause the construction garbage or debris to
be removed to and disposed of in the aforesaid dumping site at the expense of the
Relevant Parties. Forthwith after the Director gives written notice to the Relevant
Parties requiring them to pay for the costs incurred in removing and disposing of
the construction garbage or debris, the Relevant Parties shall pay the Municipality
the amount of money for it is invoiced.
8. QUALITATIVE AND QUANTITATIVE TESTS
Not used.
9. WEED AND RAT CONTROL
Schedule "J"
Page 3
After the commencement of construction the Relevant Parties shall institute upon
the Relevant Parties' Lands a program of weed and rat control to the satisfaction
of the Director.
i
a
SCHEDULE "10
THIS SCHEDULE IS SCHEDULE "K" to the Memorandum of Understanding which
has been authorized and approved by By-law No. 2009-157 of The Corporation of the
Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
PRINCE WILLIAM BOULEVARD EXTENSION
WORKS COST ESTIMATE
TOTAL: $460,000 as of November 23, 2009
I
Schedule "L"
Page 1
SCHEDULE "L"
TRIBUTARY LANDS TO BE TRANSFERRED
THIS SCHEDULE IS SCHEDULE "L" to the Memorandum of Understanding
which has been authorized and approved by By-law No. 2009-157 of The Corporation of
the Municipality of Clarington, enacted and passed the 23`d day of November, 2009.
1. The transaction shall be completed by way of transfer by 1613881 to the
Municipality of the Tributary Lands To Be Transferred free and clear of
encumbrances and restrictions except as provided below on or prior to the day
which is sixty (60) business days (excluding Saturdays, Sundays and public
holidays) following the Option Exercise Date ("Completion Date"). The
Completion Date may be fixed for an earlier or a later date by written agreement
of the solicitor for the Vendor and the solicitor for the Purchaser.
2. Taxes and rent shall be apportioned between the Vendor and Purchaser and
allowed to the Completion Date as same may be extended pursuant to paragraph 1
of this Schedule "L".
3. The Municipality shall be permitted until the Completion Date, as same may be
extended pursuant to the terms of this Schedule, to search title to the Tributary
Lands To Be Transferred. Title to the Tributary Lands To Be Transferred shall be
free and clear of all restrictions, charges, liens and encumbrances save and except
for:
(a) any registered municipal agreements and registered agreements with
publicly regulated utilities, providing such have been complied with or
security has been posted to ensure compliance and completion, as
evidenced by a letter from the relevant municipality or regulated utility;
i
Schedule "L"
Page 2
(b) any minor easement for the supply of domestic utility or telephone
services to any part of the Property (as defined in the Option Agreement)
or adjacent property;
(c) liens for taxes, rates, assessments or governmental or public utility charges
or levies not yet due and payable;
(d) any reservations, limitations, provisos and conditions expressed in the
original grain from the Crown, as same may be varied by statute;
(e) the limitations, qualifications and reservations set out in Section 44 of the
Land Titles Act (Ontario) (the "LTA"), save and except paragraph (1)6
(construction liens), paragraph (1)11 (subdivision control), paragraph
(1)14 (dower rights), provincial succession duties and escheats or
forfeiture to the Crown, and Subsection 44(6);
(f) the rights of any person who would as at November 23, 2009, but for the
provisions of the LTA, be entitled to land or any part of it through length
of adverse possession, prescription, misdescription or boundaries settled
by convention;
4. If, within the time provided, any valid objection to title is made in writing to the
Vendor or its solicitor which the Vendor is unable to remove, remedy or satisfy
by the Completion Date and which the Municipality will not waive, then the
Municipality, at its option, from time to time, may extend the Completion Date,
by giving notice in writing to the Vendor or its solicitor setting forth such
extended Completion Date. Until the extended Completion Date, the Vendor shall
seek to resolve or satisfy all such objections to title in good faith and diligently.
Save as to any valid objection so made and, except for any objection going to the
root of title, the Municipality shall be conclusively deemed to have accepted the
Vendor's title to the Tributary Lands To Be "Transferred.
a
Schedule "L"
` Page 3
5. The Purchase Agreement shall be binding on the Purchaser and the Vendor and
their respective administrators, assigns and successors. It shall enure to the benefit
of the Purchaser, its administrators, assigns and successors.
6. On the Completion Date, the Purchaser shall be paid the amount, if any which
shall be necessary for the Purchaser to pay to the Receiver General for Canada in
order to satisfy the Purchaser's liability in respect of tax payable by the Vendor
under the non-residency provisions of the Income Tax Act by reasons of the
exercise of the Option. The Purchaser shall not claim such credit if the Vendor
delivers, on the Completion Date, the prescribed Certificate or a Statutory
Declaration that it is not then a non-resident of Canada. The Vendor shall also
deliver on the Completion Date to the Purchaser evidence of compliance of the
transaction with the Family Law Act, as amended or replaced from time to time.
7. The Transfer/Deed, save for the Land Transfer Tax Affidavit, shall be prepared in
registrable form at the expense of the Vendor.
8. Time shall, in all respects, be of the essence of the Purchase Agreement, provided
that the time for doing or completing any matter provided for herein may be
extended or abridged by an agreement in writing signed by the Purchaser and the
Vendor or by their respective solicitors who are expressly appointed in this
regard.
9. The Tributary Lands To Be Transferred shall be and remain until completion of
the Purchase Agreement at the risk of the Vendor.
10. The Purchase Agreement shall be governed by the laws of the Province of
Ontario.