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Home My WebLink About2005-150 ~~ ." THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON BY-lAW NUMBER 2005- 150 being a by-law to authorize a Purchase Agreement between the Corporation of the Municipality of Clarington and Ridge Pine Park Inc., in respect to the purchase of part of Part 4 on Plan 40R-19004, Part lot 4, Broken Front Concession, former Township of Darlington, as shown as Part 1 on the attached draft plan of survey. THE CORPORATION OF THE MUNICIPALITY OF ClARINGTON HEREBY ENACTS AS FOllOWS: 1. That the Mayor and the Clerk are hereby authorized to execute, on behalf of the Municipality of Clarington, with the corporate seal, an Purchase Agreement between Ridge Pine Park Inc. and the Municipality 2. That the draft plan of survey attached hereto shall form part of this By-law BY-lAW read a first time this 27 day of June 2005 BY-lAW read a second time this 27 day of June 2005 BY-lAW read a third time and finally passed this 27 d f June ayo 2005 JOh(l~yo~ ...... 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I~i Igi=-ii~i ;=~s;il~;ti ~iil";!;;!;;;; !..l;. ir'!:,"dl1~t ..-...................... 1~li~ilillii ...I.d~l.di&::;: , , \, / '< OL!l:I'I'd i ~~ '""" ~i . if '" :i; :::~: !, ~~ ~f 'r! l-__~l__- 'i !I '1 I' il : ~ I rg ... ~ S3 i ~h! 1S!f! i u ~; <II tL: ~ ;;i~E ti Ji"U ~ ,:" in ~ ~ 1.. ..........- l "I .. . .' ~~ I. Ii! I" " II I .. ! . ~ Iii l/Ip~ ' . \l..I! hI' ~ Z',. ! 01 H!' · '<::';', IQ h~ .. ci i! ; I ...:. rn ~ . I , ~T.)-'i: .:-..l---O ;. '+' ,. I I I ! w ~ :3 i THIS AGREEMENT is made as of this 27th day of June, 2005 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Purchaser") and- RIDGE PINE PARK INC. (the "Vendor") WHEREAS: A. The Vendor is the registered owner of certain lands (the "Ellis Lands"); B. The Vendor wishes to sell and the Purchaser wishes to acquire a portion of the Ellis Lands described herein; C. The Vendor shall retain the balance ofthe Ellis Lands (the "Adjoining Lands"); D. The Vendor proposes that the Adjoining Lands containing 16.02 acres form Phase VII of the existing development of the Vendor known as Wilmot Creek ("Wilmot Creek"); E. Phases I to VI, inclusive of Wilmot Creek have been developed under the terms of a revised development agreement between the Vendor and Purchaser made the 20th day af November, 2003 (the "Development Agreemenr): F. The Vendor also proposes to develop Phase VIII of Wilmot Creek on lands to the north of Phases I to VII; and G. The execution of this Agreement on behalf of the Purchaser is authorized by By-law No. 2005-150 passed by the Purchaser on June 27,2005. , (}l~~\:J. .. ~ J..\JY - 3- Development Agreement (the "Amendment") all to permit certain urban residential uses on the Adjoining Lands, then this Agreement shall be terminated and neither party shall have any further obligation to the other hereunder except as may have been specifically stated to survive such termination. If this Agreement has not been so terminated at the Deadline but any of the Enactments have been appealed, then, if notwithstanding the Purchaser's vigorous defence thereto, which Purchaser hereby agrees to undertake at the Vendor's expense, the applicable zoning by-Iaw(s) and adopted amendment to the Clarington Official Plan to permit certain urban residential uses on the Adjoining Lands are not in Final Form on or before the date which is six (6) months from the Deadline then this agreement shall be terminated and neither party shall have any further obligation to the other hereunder except as may have been specifically stated to survive such termination. (c) For purposes of this Agreement, an Official Plan Amendment and zoning by-law shall be deemed to be in "Final Form" when: (i) the applicable zoning by-Iaw(s} has been enacted and an amendment to the Clarington Official Plan has been adopted to permit certain urban residential uses; and (ii) any appeal periods in respect of the Official Plan Amendment and zoning by-law have expired without appeals having commenced, or if appeals have been commenced, such appeals have been withdrawn or dismissed or finally determined, the dismissal or final determination in the appeals must result in the Official Plan Amendment and zoning by-law coming into force in forms and with contents substantially consistent with the Official Plan Amendment and zoning by-law adopted or passed by the Purchaser's Council. (d) The Vendor Covenants to submit complete applications for the Enactments and the Amendment no later than on or before the date which is thirty (30) days from the date that this Agreement is fully executed by the Vendor and the Purchaser /fJ2 r THIS AGREEMENT is made as of this 27th day of June, 2005 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the "Purchaser") and- RIDGE PINE PARK INC. (the "Vendor") WHEREAS: A. The Vendor is the registered owner of certain lands (the "Ellis Lands"); 8. The Vendor wishes to sell and the Purchaser wishes to acquire a portion of the Ellis Lands described herein; C. The Vendor shall retain the balance of the Ellis Lands (the "Adjoining Lands"); D. The Vendor proposes that the Adjoining Lands containing 16.02 acres form Phase VII of the existing development of the Vendor known as Wilmot Creek ("Wilmot Creek"); E. Phases I to VI, inclusive of Wilmot Creek have been developed under the terms of a revised development agreement between the Vendor and Purchaser made the 20th day of November, 2003 (the "Development Agreemenr): F. The Vendor also proposes to develop Phase VIII of Wilmot Creek on lands to the north of Phases I to VII; and G. The execution of this Agreement on behalf of the Purchaser is authorized by By-law No. 2005-150 passed by the Purchaser on June 27,2005. o[~~~ ~ J..\JY -2- NOW THEREFORE WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of Canada, now paid by each party to the others (the receipt whereof by each party is hereby acknowledged), the parties hereto covenant and agree to and with each other as follows: 1. (a) The Vendor agrees to and with the Purchaser to sell the land more particularly described as Part of Lot 4, Broken Front Concession, Geographic Township of Darlington, Municipality of Clarington, Region of Durham, being Part 1 on Plan 40R- 23633 containing approximately 18.01 acres (the "Property") for the purchase price of Three Hundred and Seventeen Thousand Five Hundred and Forty-Three ($317,543.00) Dollars (the "Purchase Price") payable by certified cheque by the Purchaser to the Vendor on the Closing Date (as hereafter defined) subject to the usual adjustments and other adjustments as specified in this Agreement. (b) The Property comprises a total of 18.01 acres and the Purchase Price is calculated at the rate of Seventeen Thousand Six Hundred and Thirty-One ($17,631.00) Dollars per acre. The Purchaser acknowledges receipt of a reference plan of survey of the Property (the "Survey"). The cost of the Survey shall be shared equally by the Vendor and the Purchaser and shall be adjusted on closing. 2. (a) This transaction is to be completed by 5:00 p.m. on the day (the .Closing Date") which is fifteen (15) business days (excluding Saturdays. Sundays and statutory holidays) after the first day on which an Official Plan Amendment and zoning by-law of the Adjoining Lands are in Final Form to permit certain urban residential uses on the Adjoining Lands. (b) If on or before the date which is twelve (12) months from the date that this Agreement is fully executed by the Vendor and the Purchaser (the "Deadline"), the Council has not (i) enacted the applicable zoning by-Iaw(s) and adopted an amendment to the Clalington Official Plan (the "EnactmenlS") or (ii) authorized an amend?;~\v2r(? , -3- Development Agreement (the "Amendment") all to permit certain urban residential uses on the Adjoining Lands, then this Agreement shall be terminated and neither party shall have any further obligation to the other hereunder except as may have been specifically stated to survive such termination. If this Agreement has not been so terminated at the Deadline but any of the Enactments have been appealed, then, if notwithstanding the Purchaser's vigorous defence thereto, which Purchaser hereby agrees to undertake at the Vendor's expense, the applicable zoning by-Iaw(s) and adopted amendment to the Clarington Official Plan to permit certain urban residential uses on the Adjoining Lands are not in Final Form on or before the date which is six (6) months from the Deadline then this agreement shall be terminated and neither party shall have any further obligation to the other hereunder except as may have been specifically stated to survive such termination. (c) For purposes of this Agreement, an Official Plan Amendment and zoning by-law shall be deemed to be in uFinal Form" when: (i) the applicable zoning by-Iaw(s) has been enacted and an amendment to the Clarington Official Plan has been adopted to permit certain urban residential uses; and (ii) any appeal periods in respect of the Official Plan Amendment and zoning by-law have expired without appeals having commenced, or if appeals have been commenced, such appeals have been withdrawn or dismissed or finally determined, the dismissal or final determination in the appeals must result in the Official Plan Amendment and zoning by-law coming into force in forms and with contents substantially consistent with the Official Plan Amendment and zoning by-law adopted or passed by the Purchaser's Council. (d) The Vendor Covenants to submit complete applications for the Enactments and the Amendment no later than on or before the date which is thirty (30) days from the date that this Agreement is fully executed by the Vendor and the Purchaser flJ2~ " -4- failing which this Agreement shall be terminated and neither party shall have any further obligation to the other hereunder except as may have been specifically stated to survive such termination. The term "complete" as used in this subsection 2(d) means "complete as determined under section 9 of Ontario Regulations 198/96 and section 2 of Ontario Regulations 199/96. (e) The per acre rate for the amount of cash-in-lieu of parkland contribution payable by the Vendor to the Purchaser for development of the Adjoining Lands shall be seventeen thousand, four hundred and thirty-seven dollars ($17,437.00) per acre, to be adjusted annually commencing twelve months after the closing date by an amount equal to the year-to-year percentage change in the Consumer Price Index for Toronto for all prices of all items as published by Statistics Canada (the "CPI") with the base being the CPlln effect on the Closing Date. 3. (a) Prior to the issuance of Certificate of Acceptance for the SWMP, the Purchaser shall, for nominal consideration convey to the Vendor, a non-exclusive easement (the "Discharge Easemenr) for the discharge of stormwater from the Adjoining Lands into the pond (the "SWMP") shown on Schedule "A" hereto. The Discharge Easement shall be in a location approved by the Director and shall be in a form acceptable to the Vendor and Purchaser, each acting reasonably. Only storm water from the Property, the Adjoining lands and other lands from which on the date of this Agreement storm water flows to the Property shall discharge into the SWMP I provided that there is not any change in the upstream drainage areas from this area that exist on the date of this Agreement. (b) The Vendor shall construct the SWMP and associated perimeter landscaping in accordance with Schedule "8" hereto ("SWMP Works"). The Purchaser shall grant to the Vendor a licence (the .SWMP Licence") to enter upon the Property, at a nominal fee, to construct and maintain the SWMP and associated perimeter landscaping effective until the issuance of Certificate of Acceptance for the SWMP. (c) In consideration of locating the SWMP on the Property, the Purchase Price shall Q<J1 ~ J - 5 - be adjusted tower by the estimated area of the SWMP and associated perimeter landscaping as approved by the Purchaser's Director. Prior to the issuance of Certificate of Acceptance for the SWMP, (i) the Vendor shall have obtained a certificate from a qualified Ontario Land Surveyor certifying to the Purchaser the actual area (to 3 decimal places) of the SWMP and associated perimeter landscaping and the Purchase Price shall be readjusted, as applicable, to an amount which bears the same ratio to the Purchase Price as the Area of the SWMP as so determined bears to 18.01 acres and (ii) the Vendor at its cost shall deposit a reference plan of survey showing the SWMP and Discharge Easement as parts thereon. (d) In consideration of the maintenance of the SWMP by the Purchaser after the issuance of Certificate of Acceptance for the SWMP, the Vendor shall pay to the Purchaser the estimated amount of the capitalized present value of the continuing cost to maintain and repair the SWMP in perpetuity as a municipal work (the "SWMP Maintenance Value"). The parties agree that the SWMP Maintenance Value is Twenty Thousand ($20,000.00) Dollars and shall be credited to the Purchaser as an adjustment on closing. (e) The Vendor, at its cost, shall construct the 3 metre wide asphalt trail ("Trail") from Bennett ~?ad, ,t(1o~~L~oad in accordance with the specifications shown on Schedule ~ and rn ""';~brdan~ ,..,<<ith~~q~(;U, hereto ("Trail Works"). (The specifications shown on Schedule "Ji!f hereto t;tih~ Engineering Drawings for the Trail for the purposes of this Agr~"iJa~ tlle Schedules to it.). The location of the Trail as "AU L' (J I.p-r- shown on Schedule ~ is cap u I o~~ and the final location shall be determined by the Director. The Trail shall be constructed in two Parts. "Part 1" of the Trail comprises the section of it between Bennett Road and the Connection to Service Road shown on the plan contained in Schedule "A" hereto, and "Part 2" of the Trail comprises the section of it between the Connection to Service Road and Cobbledick Road. The Vendor shall apply for an "Authorization to Commence Works" respecting the construction of Part 1 of the Trail Works (both terms as hereafter defined) within 30 days following the occurrence of the Closing Date. The Purchaser shall grant to the Vendor a licence (the "Trail Yfi~ ~ -6- Licence") at a nominal fee to enter upon the Property to construct and maintain that portion of the Trail located on the Property effective until the issuance of a Certificate of Acceptance for the Trail. The Vendor shall apply for an "Authorization to Commence Works" respecting the construction of Part 2 of the Trail Works within thirty (30) days following the Official Plan Amendment and zoning by-law for residential uses on any portion of Phase VIII of Wilmot Creek being deemed to be in "Final Form" (as the term Final Form is defined in Section (2c) (i) and (ii) of this Agreement). If Phase VIII is not included within the Urban Area of Bowmanville, the Vendor will support the Purchaser in seeking to obtain a licence from Hydro One to locate the Waterfront Trail in a portion of the transmission line abutting the Vendor's land which is satisfactory to the Purchaser and Vendor acting reasonably, and the Vendor will consent to any necessary amendments to the licence that it may hold from Hydro One which are necessary to give effect to the intent of this covenant which shall survive termination of this agreement. (f) The Purchaser shall permit and the Vendor shall construct an emergency gravel road (the "Emergency Road") from Bennett Road to the Adjoining Lands with keyed barriers at each end in accordance with Schedule "8" hereto ("Emergency Road Works') and in a location to be approved by the Director. The parties acknowledge and agree that the Trail may form part of the Emergency Road. Prior to the completion of this transaction, the parties shall determine maintenance responsibilities for the Emergency Road, including the cost thereof, acting reasonably having regard to the principles in this Agreement. The Emergency Road shall only be used for the ingress and egress of police, firefighters and emergency medical personnel and the egress of residents of Wilmot Creek in the event of an emergency. The Purchaser shall grant to the Vendor a licence (the "Road Licence") at a nominal fee to: (i) enter upon the Property to construct and maintain the Emergency Road effective until the issuance of a Certificate of Acceptance for the Trail; and (ii) for a period of four (4) years following the Closing Date, to utilize the Emergency Road to convey construction materials to and from the Adjoining Lands provided that the Vendor covenants to repair any damage to the Emergency Road resulting from such conveyance and delivers to the Purchaser SUCh. . ~ J 1"- reasonable damage security deposit as the Director shall determine. ( U \j' Jl . / -7- (g) The covenants of the Vendor to construct and maintain the SWMP, Trail and Emergency Road and the covenants of the Purchaser to convey easements and licences, as well as the indemnity of the Vendor and Purchaser in Section 11 (a) with this Agreement shall survive closing and shall not merge. (h) Notwithstanding anything contained in this Agreement, the following shall apply to the Trail: (i) The Maintenance Guarantee Period shall only be one (1) year; (ii) Schedule "A" shall comprise the Engineering Drawings and are deemed to comply with the Purchaser's Design Criteria and Standard Drawings; (Hi) No Grading and Drainage Plan shall be required; (iv) The location of the Trail may be shifted by the Director in the area of the lands licenced from Hydro One; and (v) The portion of the Trail comprising the Emergency Road (as hereinafter defined) shall be suitably constructed to accommodate the emergency vehicles referred to in Section 3 (1) above. 4. This Agreement of Purchase and Sale is conditional on the Purchaser being satisfied in its absolute discretion respecting the environmental quality of the Property- If, before the completion of this transaction the Purchaser decides in its absolute discretion that the Purchaser is not satisfied, the Purchaser shall give the Vendor written notice of the Purchaser's decision and the termination of this Agreement of Purchase and Sale. The Vendor agrees forthwith to deliver to the Purchaser to the extent that it has not already so done any reports or documents relating to soil tests, environmental audits, environmental site assessments and records of environmental site conditions and soil reports in the Vendor's possession with respect to the Property. The Vendor agrees to permit the Purchaser, its employees, contractors, consultants and agents access to the Property for the purpose of making soil tests, conducting environmental audits, environmental stt. assessments and preparing records of environmental site conditions. '2 {fJ ~,~~ . . -8- This condition is included in this Agreement of Purchase and Sale for the exclusive benefit of the Purchaser and may be waived by the Purchaser by written notice to the Vendor in its absolute discretion for a period of 60 days following execution by both the Vendor and Purchaser, failing which the condition shall be deemed to have been satisfied or waived by the Purchaser. 5. Except as provided in paragraph 7 hereof, the Vendor shall discharge all encumbrances and restrictions registered against title to the Property at its expense on or before the completion of this transaction. 6. The Purchaser is to be allowed until five (5) business days prior to the Closing Date (the "Requisition Date") to examine the title to the property at his own expense and to satisfy itself that there are no outstanding orders or deficiency notices affecting the Property and that its present use may be lawfully continued. The Vendor hereby consents to governmental agencies releasing to Purchaser details of all outstanding orders affecting the Property. The Vendor agrees to execute and deliver such further authorizations in this regard as Purchaser may reasonably require in this regard. 7. Provided the title Is good and free from all registered restrictions, charges, liens and encumbrances save and except for: (c) the SWMP Licence, the Discharge Easement, Emergency Road Licence and Trail Licence; any registered restrictions or covenants that run with the land, provided that such are complied with; any 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 letter from the relevant municipality or utillty supplier; and \1.I~.\ vJ V~v (a) (b) , . -9- (d) any minor easement for the supply of domestic utility and telephone, cable, television and internet services to the Property or adjacent properties. If until the specified time referred to in paragraph 6 any valid objection to title or to any outstanding order or deficiency notice and which the Vendor is unable or unwilling to remove, remedy or satisfy and which Purchaser will not waive, this Agreement of Purchase and Sale notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end and all monies paid shall be returned with interest but without deduction by the Vendor to the Purchaser. Save as to any valid objection so made by such day and except for any objection going to the root of the title, the Purchaser shall be conclusively deemed to have accepted Vendor's title to the property. 8. The Purchaser shall be credited towards the Purchase Price with the amount, if any, which it shall be necessary for the Purchaser to pay to the Minister of National Revenue 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 reason of this sale. The Purchaser shall not claim such credit if the Vendor delivers on completion the prescribed certificate or the statutory declaration stating that the Vendor is not then a non-resident of Canada. 9. The Vendor shall deliver on completion evidence of compliance of the transaction with the Family Law Act, R.S.O. 1990.c.F3, as amended. 10. It is agreed that there is no representation, warranty, collateral agreement or condition affecting this Agreement of Purchase and Sale or the Property other than as expressed herein in writing. S7~ In) rt ~ 'vv"- . . - 10 - 11, With respect to goods and services tax ("GST") payable pursuant to the Excise Tax Act (Canada) (the "Tax Act"), the parties covenant and agree as follows: (a) subject to clause (b) below, the Purchaser shall pay to the Vendor on Closing by certtfled cheque all GST payable as a result of this transaction in accordance with the Act, and the Vendor shall remit such GST to the Receiver General for Canada when and to the extent required by the Act; (b) notwithstanding clause (a), the Vendor shall not collect the GST from the Purchaser in this transaction if the Purchaser is registered under the Act, and in that event the Purchaser shall file returns and remit such GST to the government when and to the extent required by the Act; (c) the Vendor and Purchaser shall each indemnify the other and hold the other harmless from any liability of the other under the Act arising because of breach of the obligations of the Vendor or Purchaser, as the case may be, set out in this Section or arising under the Act together with all loss, costs and expenses resulting from such breach; (d) the Purchaser shall provide a statutory declaration on Closing confirming its GST registration number under the Act; and (e) the provisions aforesaid shall survive Closing. 12. If a discharge of any Charge/Mortgage held by a corporation incorporated pursuant to the Trust and Loan Companies Act (Canada), Chartered Bank, Trust Company, Credit Union, Caisse Populaire or Insurance Company and which is not to be assumed by the Purchaser on completion, is not available in registrable form on completion, the Purchaser agrees to accept the Vendor's lawyer's personal undertaking to obtain, out of the closing funds, a discharge in registrable form and to register same on title within a reasonable period of lime aller completion, provided that on or before completion the ~ ~~u\\~ - 11 - Vendor shall provide to the Purchaser a mortgage statement prepared by the mortgagee setting out the balance required to obtain the discharge, together with a direction executed by the Vendor directing payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion. 13. The Property shall be and remain until completion of this transaction at the risk of the Vendor. 14. A Transfer/Deed of the Property shall, save for the land Transfer Tax Affidavit, be prepared in registrable form at the expense of the Vendor. 15. On the closing of the transaction, the Vendor shall provide to the Purchaser, the following documents: a. Section 116 of the Income Tax Act/Family Law Act Affidavit b. Declaration of Possession c. Construction Lien Act Affidavit On Closing of the transaction, the Purchaser shall provide to the Vendor the payment of GST or the GST declaration. The Vendor and Purchaser agree to exchange, on closing, undertakings to readjust the statement of adjustments. 16. Any rents, mortgage interest, realty taxes including local improvement rates and unmetered public or private utility charges and unmetered cost of fuel, as applicable, shall be apportioned and allowed to the day of completion of this transaction, including the day of completion itself to be apportioned to the Purchaser. 17. Time shall in all respects be of the ....nce hereof provided that the time for doing Of ~ ~\~~\ - 12 - completing of any matter provided for herein may be extended or abridged by an agreement in writing signed by the Vendor and the Purchaser or by their respective lawyers who may be specifically authorized in that regard. 18. This Agreement of Purchase and Sale shall be read with all changes of gender or number required by the context. 19. If any notice or other document is required to be or may be given by either party hereto to the other or by any official of the Purchasers or the Vendor under this Agreement of Purchase and Sale, such notice shall be transmitted by telefax or mailed by prepaid post or delivered to: Vendor: Ridge Pine Park Inc. 17 Dean Street Brampton, Ontario Law 1 M7 Phone No.: (905) 796-3630 Fax No.: (905) 796-6360 Purchaser: The Corporation of the Municipality of Clarington 40 Temperance Street BowmanviUe, Ontario L1 C 3A6 Attention: Chief Administrative Officer Phone No.: (905) 623-3379 Fax No.: (905) 623-5717 or such other telefax number or address of which either party has notified the other party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed 10 have been received at the lime of delivery or Iransmlssion and R( ~ ~ 1l~\'" - 13 - mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which is may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. 20. This Agreement and everything herein contained shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. D2~ () tv 1 "- - 14 - 21. The Vendor and Purchaser acknowledge and agree that if the Teraview Electronic Registration System (the "ERS") is operative in the Land Titles Office in which title to the Property is recorded, then the following provisions shall apply: (a) the parties shall instruct their respective solicitors to enter into an escrow closing agreement in the Law Society of Upper Canada's approved standard form, (hereinafter referred to as the 'Escrow Document Registration Agreement') establishing the procedures for completion of this transaction by means of the ERS; (b) the delivery and exchange of documents, monies and possession of the Property and the release thereof to the Vendor and the Purchaser, as the case may be, shall not occur contemporaneously with the registration of the transfer/deed of land and other registrable documentation, and shall be governed by the Escrow Document Registration Agreement pursuant to which the Vendor's Solicitors and the Purchaser's Solicitors will hold in escrow all documents, monies received by them and will not release same to their respective clients except in strict accordance with the Escrow Document Registration Agreement; and (c) each of the parties hereto agrees that any documents not intended for registration on title to the Property may be delivered to the other party hereto in properly executed form by facsimile transmission or other similar system reproducing the original, provided the party transmitting any such document shall also deliver the original thereof to the recipient party by ovemight courier sent on the Closing Date or by such other means and/or within such other time as may be agreed to by the parties' respective solicitors. 22. The Vendor may at any time prior to the Closing, assign this Agreement to any person or Corporation, if such person or corporation is affiliated with the Vendor or has been transferred all of the lands comprising the development known as Wilmot Creek. Upon delivery to the Purchaser's solicitors of a notice of such Assignment, together with the Assignee's covenant to be bound by all of the provisions contained herein, this ~ 2 - 15- Agreement shall be read as though such Assignee was originally named as Vendor. Provided that the Vendor shall remain liable under this Agreement in the event that the Assignee should fail to complete this transaction or any other obligation under the terms herein provided. 23. The parties covenant and agree to take all reasonable action and give an reasonable co- operation to implement the terms and intent of this Agreement. Where the terms of this Agreement require an opinion to be rendered or a decision to be made or an action to be taken then any such opinion, decision or action shall be rendered or made or taken acting reasonably and without unreasonable delay. 24. Schedule "A" to "G" inclusive form part of this Agreement. IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day and year first above written and the parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. THE CORPORATION OF THE MUNICIPALITY OF CLARINGT Per: IlWe have authority to bind the Corporation ::ODMA\PCDOCS\DOCS\2008714\3 . . SCHEDULE"B" THIS SCHEDULE IS SCHEDULE "B" to the Agreement which has been authorized and approved by By-law No. 2005-150 of The Corporation of the Municipality of Clarington, enacted and passed the 27th day of June, 2005. WORKS 1. Works Reauired The Vendor at the Vendor's expense shall construct and install SWMP and Emergency Road as approved by the Director and the Trail (collectively in this Agreement called the "Works"). The Trail is shown on the plan attached as Schedule "N hereto and is a 3m wide asphalt trail including related creek crossings. From the date of issuance of an MAuthorization to Commence Works" which shall be issued upon the Vendor complying with the requirements of this Agreement (as hereafter defined) until the date of issuance of a Certificate of Acceptance of them the Vendor shall be fully responsible for the construction and maintenance of the Works including the cost thereof in accordance with the provisions of this Agreement. After the issuance of a Certificate of Acceptance, the Works including, without limitation, the maintenance and repair of the Works referred to in such Certificate shall be the sole responsibility of the Purchaser. 2. Vendor's Enaineer (1) At all times until the Certificate of Acceptance is issued, the Vendor shall retain the Vendor's Engineer who shall perform the duties set out in Schedule "0". On the execution of this Agreement and on each occasion on which a new Vendor's Engineer is retained, forthwith after retaining the Vendor's Engineer, the Vendor shall give the Director written notice of the name, address and telefax number of the Vendor's Engineer. No partnership, association of persons or corporation shall be retained as the Vendor's Engineer without the prior written approval of the Director. All notices to be given to the Vendor's Engineer shall be copied to the Vendor and are properly given if given by personal service, by telephonic facsimile communication, or first class vJ L.~. \."'- 7l~JV - I -2- prepaid post addressed to the Vendor's Engineer at the address or telefax number provided to the Director pursuant to this paragraph. Forthwith after the Director gives the Vendor written notice requiring it to do so, the Vendor shall give the Director written notice advising him whether or not the approved Vendor's Engineer continues to be retained by the Vendor. 3. Desian of Works (1) The Vendor covenants and agrees that the design of the SWMP Works and the Emergency Road Works shall conform with all applicable legislation and the Purchaser'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 whose decision shall be final. (2) The Vendor shall provide and submit to the Director all necessary Engineering Drawings for the SWMP Works and the Emergency Road Works. The Vendor shall obtain all approvals for the construction and installation of the SWMP Works and the Emergency Road Works and the Trail, as required by this Agreement. 4. Enaineerina Drawinas (1) Prior to the issuance of any Authorization to Commence Works, the Vendor shall obtain the written approval of the Director of the original copy of all drawings of the SWMP Works and the Emergency Road Works (the "Engineering Drawingsn). If construction and installation of the Works has not commenced within two (2) years from the date of approval of the Engineering Drawings, the Engineering Drawings shalt 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 Agreement, and thereafter the SWMP Works and the Emergency Road Works shall be constructed and installed in accordance with them. Subject to Section 4(2) the Vendor hereby irrevocably assigns to the Purchaser without cost to the Purchaser the right to v0~t (/r' ~ 3 - use and to reproduce the Engineering Drawings and all reports that relate in whole or in part to the SWMP Works and the Emergency Road Works which have been prepared by or for the Vendor in connection with the performance of the Vendor's obligations under this Agreement. The Vendor acknowledges that approval of the Engineering Drawings or reports by the Director shall not relieve the Vendor from its obligation to satisfy all requirements of or made pursuant to this Agreement. (2) Prior to the issuance of any Authorization to Commence the SWMP Works and the Emergency Road Works, the Vendor shall provide the Director without cost to the Purchaser the Vendor's Engineer's (I) written acknowledgement that the Engineering DrawIngs may be used and/or reproduced by the Purchaser without cost or prior approval or permission, (2) written permission for the Purchaser's officers, employees, agents, contractors and supplier to use the specifications, data, drawings, records and reports whether completed or in progress of completion in satisfaction of the Vendor's obligations under the provisions of this Agreement 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 Vendor's Engineer to do so, whether or not the Vendor's Engineer's fees and disbursements in respect of any of them have been paid. Prior to each occasion on which a new Vendor's Engineer is retained by the Vendor and approval of the Director is sought, the Vendor shall provide the Director with a similar written acknowledgement and written permission of the new Vendor's Engineer, provided that if the new Vendor's Engineer is to be retained by the Director on behalf of the Vendor, the Director shall obtain from the prospective Vendor's Engineer the aforesaid written acknowledgement and permission. Forthwith after the Director gives the Vendor's 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 Purchaser. Prior to the issuance of any Authorization to Commence Works respecting the SWMP Works or the Emergency Road Works, the Vendor shall obtain the written approval of the Director of an appropriate Plan showing the existing drainage pattern on all property adjacent to the Property, and all proposed grading and drainage Works for the said Property, and indicating the direction rh of all surface drainage, including water from adjacent property originally flowing through, into or \ If' ,....,r'-" V(' 0r'JV'\. -4~ over the said Property to the municipal storm sewer system or any other outlet approved by the Director (the "Grading and Drainage Plan"). The written approval of the Director of the Grading and Drainage Plan shall be obtained prior to the commencement of construction or installation of the SWMP Works on the Property. If construction of such SWMP Works and Emergency Road Works is not commenced within two (2) years from the date of approval of the Grading and Drainage Plan, unless the delay was attributable to the acts or omissions of the Purchaser the Grading and Drainage Plan shall be resubmitted to the Director for his reconsideration, and approval by the Director after any revisions required by the Director have been made to it, (the "Reapproved Grading and Drainage Plan"). From and after the approval by the Director of the Reapproved Grading and Drainage Plan, it shall be deemed to be the Grading and Drainage Plan for the purposes of this Agreement, and thereafter the SWMP Works and the Emergency Road Works shall be constructed and installed in accordance with it. 5. Staaina 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 Works, the Vendor shall obtain the written approval of the Director of a draft schedule (the "Schedule of Works") which sets out the time at which, and the sequence in which, the Vendor proposes to construct and install each of the Works, and the Utilities and Services which are required to be constructed and Installed by it In accordance with this Agreement. 7. Approval of Works Cost Estimates Prior to the issuance of any Authorization to Commence Works, the estimated cost of construction and installation of the Works (the "Works Cost Estimates"), shall be submitted by the Vendor to the Director for his consideration and, if appropriate, his approval. ~~.~ - 5- 8. Reauirements for Authorization to Commence Works The Vendor shall not commence the construction or installation of any of the SWMP Works and Emergency Road Works without the written permission of the Purchaser (the "Authorization to Commence Works"), which Authorization to commence Works shall be issued as soon as the Vendor has complied with the requirements of this Schedule "B". The Vendor shall only commence the construction and installation of those SWMP Works and Emergency Road Works permitted by the Authorization to Commence Works. 9. Inspection and Stop Work The Vendor shall ensure that every contract that may be made by the Vendor with any contractor to construct or install any of the Works shall provide that employees or representatives of the Purchaser may, at any time, inspect the Work of such contractor and shall require the contractor to comply with stop work orders given by the Director pursuant to this paragraph 9. The Director may give the Vendor a written order to stop the construction or installation of any of the Works that is being undertaken by giving written notice either to the Vendor or to the Vendor's Engineer to that effect if in the Director's opinion either (1) the Works are not being undertaken such that a completed construction and installation of all the Works satisfactory to the Purchaser in accordance with this Agreement will result, or (2) the Performance Guarantee and the Security for the Maintenance Guarantee required to be provided pursuant to this Agreement in respect of the Works has not been deposited or is not maintained in good standing. The Vendor shall comply with the stop work order forthwith after it Is given by the Director in accordance with this paragraph 9 by requiring the Vendor's contractor and subcontractors who are constructing and installing the 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 Vendor by giving to the Vendor' Engineer by personal service on the Vendor's Engineer or any representative of the Vendor's Engineer, by prepaid first class post addressed to the Vendor's Engineer, or by telefax to the Vendor's Engineer at the address and telefax number referred to in paragraph 2, with a copy to the Vendor. vJ~~. -6- 10. Construction in Accordance with Engineerina Drawinas The SWMP Works and the Emergency Road Works shall be constructed and installed in accordance with the Engineering Drawings as approved by the Director. 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 SWMP Works and Emergency Road Works shall be undertaken and carried out by the Vendor or by the Vendor's contractor, as the case may be, in accordance with the regulations for construction set out in Schedule "E", 11. SeQuence of Construction of Works Following the issuance of an Authorization to Commence Works, the Vendor shall proceed in good faith to construct and install all of the 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. ComDletion Time for Construction of Works Within twelve (12) months of the date of the issuance of an Authorization to Commence Works, the Vendor shall SUbject to force majeure complete the construction and installation of the SWMP Works and the Emergency Road 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, any incidental work is required to provide for the adequate operation, functioning and maintenance of any of the Works, the Vendor, at its 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 Vendor. ~ ~7 Cl ~ ~"'- -7- 14. IncomDlete or Faulty Works and Liens (1) Without derogating from the other provisions of this Agreement, if, in the opinion of the Director, (1) the Vendor is not constructing and installing or causing to be constructed or installed any of the Works required by this Agreement so that it or they will be completed within the time specified for such completion In the Schedule of Works, or (2) the Works or any component(s) thereof are being improperly constructed or Installed, or (3) the Vendor neglects or abandons the said Works or any part of them before completion, or (4) unreasonable delay occurs in the construction or installation of the Works, or (5) for any other reason the Works are not being constructed or installed properly and promptly and in full compliance with the provisions of this Agreement, or (6) the Vendor neglects or refuses to reconstruct or reinstall any of the Works or component(s) thereof which may be rejected by the Director as being defective, deficient or unsuitable, or (7) the Vendor otherwise defaults in performance of this Agreement, the Director may give the Vendor 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 Vendor by the Director, the Purchaser, at the cost and expense of the Vendor, may engage a contractor, supplier of services or materials and such workmen, and purchase such services, supplies andlor services as in the opinion of the Director are required for the completion of the construction and installation of the Works and all components thereof and the performance of all covenants of the Vendor relating to the Works as provided by this Agreement. In cases of emergency or urgency, or in order to preserve the integrity of the Works or any component thereof as determined by the Director in his absolute discretion, any deficiency(s) or defect(s) in the Works, and any failure to complete the Works and all components thereof in accordance with this Agreement may be corrected, remedied or completed by the Purchaser, its contractors, suppliers and employees at the cost of the Vendor without prior notice to the Vendor, provided that forthwith after the J2~ r1\V-- -8- Purchaser so acts, the Director shall give written notice to the Vendor 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 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 Purchaser undertakes under this paragraph 14(1) shall be determined by the Director in his absolute discretion. It is understood and agreed by the Parties that the costs for which the Vendor is responsible under this paragraph 14(1) shall include a management fee payable to the Purchaser either of thirty (30%) percent of the contractor's charges to the Purchaser (including any charges for overhead and profit) or, if such work is undertaken by the Purchaser, thirty (30%) percent of all costs incurred by the Purchaser to correct or remedy the deficiencies or defect or to complete the Works and all components thereof as the case may be. The Vendor shall pay the Purchaser an amount equal to the cost of all 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 Purchaser or are estimated in the Director's absolute discretion to be likely to be incurred by the Purchaser forthwith after the Director gives the Vendor 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 Vendor written notice thereof. If the actual costs are more than the estimated costs, the Vendor shall forthwith pay the Purchaser an amount equal to the difference between them. If the actual costs are less than the estimated costs, the Purchaser shall forthwith refund the difference between them to the Vendor. (2) In the event (1) a claim for a lien In respect of the Works or any component thereof is registered against the title to any land vested or which should have been vested in the Purchaser or is filed with the Purchaser, or (2) the Purchaser 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 Vendor of this Agreement. In any such case, the Director may notify the Vendor in writing of such default If the Vendor fails to discharge the lien or the claim as the case may be within ,f) /7 \~r JrTv~ -9- 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 Purchaser 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 Purchaser as the security for the Performance Guarantee and hold the cash in a deposit account of the Purchaser as the security for the Performance Guarantee In respect of the claim in question. The Purchaser may draw on and appropriate the whole or any portiones) of the Performance Guarantee and the Security for the Maintenance Guarantee for the purpose of making payment under this paragraph 14(2). The Vendor shall indemnify the Purchaser against the costs and expense incurred by the Purchaser In making a payment pursuant to this paragraph 14(2) forthwith after the Director gives the Vendor written notice requiring him to do so. In the event that the Purchaser draws on and appropriate any portion of the Performance Guarantee or the Security for the Maintenance Guarantee for any of the aforesaid purposes, forthwith after the Director gives written notice to the Vendor requiring it to do so, the Vendor shall reinstate the Performance Guarantee and/or the Security for the Maintenance Guarantee, as the case may be, to the full amount(s) required under the provisions of this Agreement. is. Acknowledgement Respecting Emergencv. etc. ReDairs The Vendor acknowledges that if in cases of emergency or urgency or in order to protect the integrity of the Works or any component thereof the Director acts to correct, remedy or repair any deficiency(s) or defect(s) in the Works, neither on entry on the 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 Works by the Purchaser, nor an assumption by the Purchaser of any responsibility or liability in connection therewith, or a release by the Purchaser of the Vendor from any of its obligations under this Agreement. ~~~ - 10- 16. Damaae to Existina Services Forthwith after written demand therefore is given by the Director to the Vendor, the Vendor shall pay to or to the direction of the Purchaser, the cost of repairing any damage to any property or services of the Purchaser, 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 Work, provided that all such repairs and or relocatlon(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 Works, property or services in question. 17. Use of Works bv Purchaser The Vendor acknowledges and agrees that any of the Works may be used by the Purchaser and such other person(s) who is (are) authorized by the Purchaser for any of the purposes for which the Works are designed, without interference by the Vendor, and without the payment of any fee or compensation to the Vendor, and for such purposes the Purchaser and other person(s) authorized by the Purchaser may enter upon the portion{s) of the Property on which the Works are located. 18. Reauirements for Certificate of Completion The Vendor acknowledges and agrees that the construction and installation of any of the Works authorized in an Authorization to Commence Works shall not be deemed to be completed for the purposes of this Agreement until the Director has provided the Vendor with written certificate that such is the case (the "Certificate of Completion"). In addition to satisfying the other requirements of this Agreement respecting its issuance, a Certificate of Completion shall not be issued until such of the 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 Works have been constructed and installed in accordance with the Engineering Drawings and has received all certificates and confirmations from the Vendor's Engineer as .,,'- . \ vf' V'" v /"" - 11 - provided for in this Agreement. 19. Reauirements for Certificate of Acc8Dtance The Vendor acknowledges and agrees that the none of the Works covered by a Certificate of Completion shall be accepted, nor deemed to be accepted for the purpose of this Agreement until the Director has provided the Vendor with written certificate that the Works in question have been accepted (the "Certificate of Acceptance"). If the Director is of the opinion that the Works in question have been properly maintained and all deficiencies and defects in such Works have been remedied and corrected by the Vendor on behalf of the Purchaser, the Director shall provide the Vendor with a Certificate of Acceptance of the relevant Works. 20. OwnershiD of Works bY Purchaser For greater certainty, the Vendor acknowledges and agrees that the Purchaser is the owner of all of the Works covered by a Certificate of Acceptance. The Vendor shall have no right or claim thereto, other than as specifically agreed to between the Vendor and the Purchaser. u)rtJ II t~ i /_ 1 SCHEDULE 44C" S2. rPUUlV'\ THIS SCHEDULE IS SCHEDULE llC" to the Agreement which has been ,. authorized and approved by By-law No. 2005- L \ 0 of The Corporation of the Purchaser of Clarington, enacted and passed the 27th day of June, 2005. PERFORMANCE arm MAINTENANCE GUARANTEE 1. Performance Guarantee Reauired Prior to the date of issuance of any Authorization to Commence Work, the Vendor shall deposit with the Purchaser, cash or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule MI" of the Bank Act, acceptable to the Purchaser's Director of FinancelTreasurer, and containing terms satisfactory to the Purchaser's Director of FinancelTreasurer. The deposit shall be in the amount determined by the Director to be the amount required to secure to the Purchaser the performance by the Vendor of its covenants contained in this Agreement to construct and install the SWMP Works and the Emergency Road Works. With respect to the SWMP Works and the Emergency Road Works, without limiting the generality of the foregoing, in making his determination, the Director may have regard for the "Works Cost Estimate" or the "Revised Works Cost Estimate" (both terms as hereafter defined) whichever is applicable, for the construction and installation of the Works which either are the subject of an Authorization to Commence Work or for the issuance of which an Authorization to Commence Works application has been made by the Vendor. If from time to time following the issuance of any Authorization to Commence Works the Director is of the opinion that the amount of the Performance Guarantee should be increased in order to protect the Purchaser's interests under this Agreement, forthwith after the Director gives written notice to the Vendor requiring an increase in the amount of the Performance Guarantee, the Vendor shall deposit with the Purchaser cash or an unconditional and irrevocable letter of credit in such amount issued by a bank listed In Schedule "I" of the Bank Act that is acceptable to the Purchaser's Director of FinancelTreasurer and contains terms satisfactory to the Purchaser's Director of FinancelTreasurer. (The cash deposit(s) or letter(s) of credit which is (are) to be deposited by the Vendor pursuant to this paragraph 1 and other provisions of this Agreement are called the "Performance Guarantee"). In the event that the Vendor does not increase the amount of thec if2~ ~'J'v ~~ -2- Performance Guarantee for a period of thirty (30) days following the giving of written notice by the Director to the Vendor requiring an Increase in the amount of the Performance Guarantee all Authorizations to Commence Work that have been Issued shall terminate. 2. Use of Performance Guarantee From time to time the Purchaser may appropriate the whole or anyone or more portions of the Performance Guarantee up to an amount(s) determined by the Director, which in aggregate shall not exceed the amount(s) which in the opinion of the Director are required to remedy the Vendor's breach(es) or default(s) of or under the provisions of this Agreement. Forthwith after making each such appropriation, the Director shall give the Vendor written notice thereof and the Vendor shall forthwith reinstate the Performance Guarantee to the full amount required by this Agreement. If the whole or any portion of a Performance Guarantee is appropriated by the Purchaser as aforesaid and is not frilly expended by the Purchaser, the Vendor agrees with the Purchaser that the Vendor will not require the Purchaser to pay interest on any portion of it for the period in which it is held by the Purchaser and deposited by the Purchaser in an interest bearing account in the name of the Purchaser, in the event that an amount equal to the appropriate or any part of it is paid by the Purchaser either to the Vendor, to the bank which issued the letter of credit for deposit as the Performance Guarantee, as directed by the Vendor or the bank, as the case may be. 3. Indemnification of Purchaser The Vendor shall defend, indemnify and save the Purchaser 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 making and/or the implementation of this Agreement, or the design, construction and installation, supervision of construction and installation, inspection, and/or maintenance of the Works by the Vendor, its employees, contractors, suppliers of services or materials, the Vendor's Engineer, the Vendor's Engineer's employees, and the Vendor's licensees. vSZ~ (ll/U,~ -3- 4. Insurance The Vendor shall obtain and maintain insurance and deposit the proof thereof as required by Schedule "G" of this Agreement in accordance with Schedule "G" of this Agreement. 5. Maintenance Guarantee Reauired (1) From the date of issuance of a Certificate of Completion until the date of Issuance of a Certificate of Acceptance of the Works or particular component(s) of the Works, the Vendor agrees with the Purchaser to promptly correct, remedy, repair or replace any portion or component of the Works in question that the Director determines to be defective or deficient having regard to the provisions of this Agreement at the Vendor's cost (the "Maintenance Guarantee"). The amount of the required Maintenance Guarantee shall be determined in accordance with paragraph 8.(1) of this Schedule. The Vendor shall be given written notice of any such deficiency or defect by the Director forthwith after he identifies the same. The Vendor shall deposit or leave on deposit with the Purchaser, cash or an irrevocable and unconditional letter of credit by a bank listed in Schedule "I" of the Bank Act acceptable to the Purchaser's Director of FinancefTreasurer and containing terms satisfactory to the Purchaser's Director of FinancefTreasurer, as security for the Maintenance Guarantee (the "Security for the Maintenance Guarantee"). (2) The Maintenance Guarantee expires on the date of issuance of the Certificate of Acceptance of the Works which shall not be earlier than the date of expiry of the period of the Maintenance Guarantee being two (2) years (only one (1) year with respect to the Trail) which commences on the date of the issuance of the Certificate of Completion of the Works. 6. Use of Maintenance Guarantee From time to time, the Purchaser may appropriate the whole or any part of the Security for the Maintenance Guarantee if the Vendor fails to pay any cost(s) payable by the Vendor to the /~~ n U\; ~ -4- Purchaser under this Agreement. The amount(s} of such appropriation shall not exceed the amount(s) which in the opinion of the Director are required to remedy the Vendor's breach(es} or default(s) as determined by the Director of correcting or remedyrng a deficiency(s) or defect(s} in the Works or a portion or component thereof. which is covered by the Maintenance Guarantee and is in question. Forthwith after the Purchaser makes any such appropriation, the Director shall give the Vendor written notice thereof. Forthwith, after the giving of such notices, the Vendor shall restore the Security for the Maintenance Guarantee to the full amount required by this Agreement. 7. Reduction and Release of Performance Guaran~, (1) Prior to the release of the Performance Guarantee, in the discretion of the Director, the amount of the Performance Guarantee may be reduced, from time to time, to reflect the progress of completion of the Works and other facilities and improvements which are required to be constructed and installed by the Vendor after taking into account any outstanding claims the satisfaction of which is provided for in this Agreement. The maximum reduction that may be permitted to be made by the Director is such that will leave on deposit with the Purchaser's Director of FinancelTreasurer the sum of (1) as the Performance Guarantee an amount equal to the value of the uncompleted Works and other facilities and improvements as determIned by the Director having regard for the Works Cost Estimate for the SWMP Works and the Emergency Road Works then in force plus any amount determined by the Director but not to exceed twenty (20%) percent of such value as a completion aUowance payable to the Purchaser, and (2) as the Maintenance Guarantee fifteen (15%) percent of the value of the completed Works, facilities and services, also determined by the Director after considering the material, if any, submitted to the Director by the Vendor's Engineer in support of an application for reduction of the Performance Guarantee in respect of the Works that have been completed by the Vendor as well as the contract documents, sub-contracts and supply contracts pertaining to the Works and the provisions of the Construction Lien Act. (2) The Vendor will not require the Purchaser to release to the Vendor any unused portion of the Performance Guarantee unUI each of the following condftions is satisfied: ~l~ -5- (a) A Certificate of Completion has been issued for the Works for which the Performance Guarantee was initially required to be deposited with the Purchaser. (b) The Vendor has deposited or has left on deposit with the Purchaser the Maintenance Guarantee applying to the Works for which the Performance Guarantee initially was required to be deposited with the Purchaser. (c) The Director is satisfied that in respect of the construction and installation of the Works for which such Performance Guarantee was initially required to be deposited with the Purchaser, there are no outstanding claims relating to such Works. (d) The Purchaser is satisfied that there are no outstanding claims relating to the Works which the Purchaser is required or may be permitted to pay either under the provisions of the Construction Lien Act or otherwise. (e) The Purchaser is satisfied that the Vendor is not in breach of any of its covenants contained in this Agreement. 8. Reduction and Release of Maintenance Guarantee The Vendor will not require the Purchaser to release to the Vendor the Security for the Maintenance Guarantee until each of the following conditions is satisfied: (a) A Certificate of Acceptance has been issued for the SWMP Works and the Emergency Road Works for which such Maintenance Guarantee is required under this Agreement (b) The Purchaser is satisfied that there are not outstanding claims relating to such SWMP Works and the Emergency Road Works which the Purchaser is required or may be pennitted to pay either under the provisions of the Construction Lien 'Y.. ~ IN 1~~" 0- -6- Act or otherwise. (c) The Purchaser is satisfied that the Vendor is not in breach of any of its covenants contained in this Agreement. (d) The Director has received the as-constructed drawings for such Works from the Vendor as well as the computer disks, if any, have been prepared by the Vendor's Engineer. 9. UnDaid Monies Except as othenNise provided in this Agreement, the due date of any money payable under it, unless a differing due date is specified in this Agreement, shall be thirty (3D) days after the date of the giving of the written invoice to the Vendor. Interest shall be calculated and be paid by the Vendor to the Purchaser on all sums of money of which the Vendor is in default at the same rate, and in the same manner, and at the same time as is the case with Purchaser realty taxes which are in arrears at the date on which the default in question commences. (2 rf; l) ~.. f\ .Qlvv . SCHEDULE "0" ~ ~ THIS SCHEDULE IS SCHEDULE liD" to the Agreement which has been authorized and I" approved by By-law No. 2005- 1':>0 of The Corporation of the Purchaser of Clarlngton, enacted and passed the 27111 day of June, 2005. DUTIES OF VENDOR'S ENGINEER 1. DESIGN WORKS In addition to the other requirements of this Agreement, the Vendor's Engineer shall prepare all drawings, plans, studies, reports, estimates, calculations and documentation for the consideration and approval of the Director. The approval of the Director shall not absolve or release the Vendor or the Vendor's 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 Vendor's Engineer. 2. REPRESENT VENDOR AND OBTAIN PURCHASER APPROVALS David Rice is hereby authorized by the Vendor to act as the Vendor's representative in all matters pertaining to the design, construction and installation of the SWMP Works and the Emergency Road Works and the overall management of the development, and shall co-operate with the Purchaser and the Director to protect the interests of the Vendor, Purchaser and the general public in all matters relating to the design. construction and installation of the Works. 7 ~ ~~ . . -2- 3. PROVIDE RESIDENT SUPERVISION (d) The Vendor's Engineer shall provide fully qualified, experienced supervisory layout and inspection staff, acceptable to the Director, to provide continuous inspection service during all phases of the construction and installation of the Works. Without limiting the generality of the foregoing, the Vendor's 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, installatron, and supply of materials to ensure that all work is being performed in accordance with the Engineering Drawings, the Purchaser's Design Criteria and Standard Drawings and all applicable law. The Vendor's 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 Purchaser's Design Criteria and Standard Drawings, and/or the applicable law. (c) To carry out or arrange the carrying out by qualified personnel of all necessary monitoring and field testing of procedures, equipment and materials installed or proposed to be installed and, in conjunction with the geotechnical engineer, and where appropriate, the structural engineer, provide certification to the Director that all monitoring and test results meet the requirements of Schedule -ED of this Agreement. To provide co-ordination and monitor the scheduling of the construction and installation of the Works in accordance with the timing provisions contained in this Agreement and the requirements of the Director. rV{~~ -3- (e) To investigate and immediately report to the Director any unusual circumstances, potential problems, conflicts, errors, defective work or material which may arise during the construction and Installation of the Works. (f) To obtain field information during and upon completion of the construction and installation of the Works required to modify the Engineering Drawings to produce the as-constructed drawings of the Works. 4. MAINTAIN RECORDS The Vendor's 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 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 Vendor or the Vendor's Engineer pursuant to this Agreement, the Vendor's Engineer immediately after becoming apprised of each change shall give the Director written notice of it. 5. PROVIDE PROGRESS REPORTS The Vendor's Engineer shall provide the Director with reports on the progress of the construction and installation of the Works on a monthly basis, or at such other interval as approved by the Director. ~L~~ ;1. -4- 6. PREPARE AS-CONSTRUCTED DRAWINGS The Vendor's Engineer shall prepare and submit the as-constructed drawings of the Works together with the computer disks, if any have been prepared, to the Director provided that the as-constructed drawings shall be prepared to the satisfaction of the Director. vJl~ rl)\\i"-- Schedule "E" Page 1 JL rP(1It~ THIS SCHEDULE IS SCHEDULE ~'En to the Agreement which has been authorized and approved by By-law No. 2005- I <"Dof The Corporation of the Purchaser ofClarington, enacted and passed the 27th day of June, 2005. SCHEDULE "E" REGULATIONS FOR CONSTRUCTION 1. GENERAL All work pursuant to and associated with this Agreement shall be carried out in strict conformity with all approved Engineering Drawings, the Purchaser's Design Criteria, Standard Drawings and Specifications or any revisions thereof and all applicable legislation, in addition to any requirements set out in this Agreement. 2. SAFETY The Vendor shall ensure that all construction pursuant to and associated with this Agreement is carried out in conformance with the Occupational Health and Safety Act, and other applicable legislation. 3. PERMITS AND APPROVALS The Vendor shall ensure that any and all permits and approvals required to install or construct or prepare to install or construct any of the Works pursuant to or associated with any part of this Agreement have in fact obtained and are valid and in good standing. ~z ~,~_ Schedule "E" Page 2 4. REQUIREMENTS FOR BLASTING Prior to commencing any blasting, the Vendor shall obtain from the Director, permission to carry out the blasting operation. 5. REMOVAL OF TOPSOIL The Vendor shall not remove any topsoil from the said Property except for constmction purpose and such topsoil must remain within the limits of the said Property unless otherwise approved by the Director. 6. DUMPING OF FILL OR DEBRIS The Vendor agrees to neither dump, or permit to be dumped, any fill or debris, on nor to remove, or permit to be removed any fill from any Property to be dedicated to the Purchaser other than the roads within the limits of the said Property, without the written consent of the Director. 7. DISPOSAL OR CONSTRUCTION GARBAGE The Vendor shall remove and dispose of all construction garbage and debris from the said Property in an orderly and sanitary fashion in a dump site off the said Property and approved by the Director. The Purchaser shall not be responsible for the removal or disposal of garbage and debris. The Veodor shall deliver a copy of this provision to each and every builder obtaining a building permit for any part of the said Property and to ensure that no bwning of constmction garbage or debris is permitted on the said Property. Without derogating from the foregoing provisions of this paragraph, if the Vendor fails to remove constroction 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 Vendor requiring it to de so, the /1 ~ J (j t\-J"-- Schedule "E" Page 3 Director may cause the construction garbage or debris to be removed to and disposed ofin the aforesaid dumping site at the expense of the Vendor. Forthwith after the Director gives written notice to the Vendor requiring it to pay for the costs incurred in removing and disposing of the construction garbage or debris, the Vendor shall pay the Purchaser the amount of money for it is invoiced. 8. QUALITATIVE AND QUANTITATIVE TESTS (1) The Vendor's Engineer shall arrange for and monitor all testing or procedures, equipment and materials, by a qualified geotechnical engineer and where applicable, a qualified structural engineer, who shall ensure conformance with the Engineering Drawings, and either with the Purchaser's Design Criteria and Standard Drawings, or in cases where criteria has not been specified by the Purchaser, with the Ontario Provincial Standards for Roads and Municipal Services. (2) Prior to the issuance of a Certificate of Completion, the Vendor's Engineer, in conjunction with the geotechnical engineer and where applicable structural engineer, shan issue a certificate in a form acceptable to the Director, confuming, based on the location, frequency and type of tests and monitoring and the results of such tests or monitoring, that he is satisfied with the materials testing method used and that the results conform to the requirements of paragraph 8(1) of this Schedule "E". 9. WEED AND RAT CONTROL After the commencement of constmction the Vendor shall institute upon the Property a program of weed and rat control to the satisfaction of the Director. j7.~ . (jt\P". . . Schedule "F" Page 1 j7 ~qP}v\ TIDS SCHEDULE IS SCHEDULE "F" to the Agreement which has been /. authorized and approved by By-law No. 2005-/~OofThe Corporation of the Purchaser of Clarington, enacted and passed the 27th day of June, 2005. SCHEDULE "F" Definitions (1) In this Agreement the term: (a) "Appropriate Authority" means the Municipality, the Region, a Ministry of the Crown in right of Ontario or other authority or agency considered to be appropriate for the purpose by the Director. (b) "BuDding Code Act" means the Building Code Act, S.O. 1992, c.23, as it may be amended or replaced from time to time. (c) "Construction Lien Act" means the Construction Lien Act, R.S.O. 1990, c. C .30 as it may be amended or replaced from time to time. (d) "CouDcD" means the Council of The Corporation of the Municipality of Clarington. ( e) "Director" means the Director of Engineering Services of the Municipality of Clarington or his designated representative. (f) "Director of Planning Services" means the Director of Planning Services of the Municipality ofClarington or his designated representatives. <2 ~ qRt . Schedule "F" Page 2 (g) "Drainage Act" means the Drainage Act, R.S.O. 1990, c.D.17 as it may be amended or replaced from time to time. (h) "Expropriation Act" means the Expropriation Act, R.S.O. 1990, c.E.6 as it may be amended or replaced from time to time. (i) "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fIre or explosion; flood, wind, water, earthquake or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or othelWise not within the control of the Owner, none of which has been caused by the deliberate default or act or omission by such party and none of which has been avoidable by the exercise of reasonable effort or foresight by such party. The Owner shall notify the Municipality of the commencement, duration and consequence (so far as the same is within the knowledge of the Owner) of any Force Majeure affecting the performance of any of its obligations hereunder within thirty (30) days of such knowledge. G) "Minister" means the Minister of Municipal Affairs, Ontario. (k) "Municipality" means The Corporation of the Municipality of Clarington or any official, designated by Council to administer the tenns of this Agreement. 0) "Occupancy Health and Safety Act" means the Occupational Health and Safety Act, R.S.O. 1990, c.O.! as it may be amended or replaced from time to time. /L M!J o \'V:-,!\ !) ~\;v '- Schedule "F" Page 3 (m) "Vendor" means the Party of the Second Part of this Agreement, its successor and assigns and when used to refer to a successor or assignee of such Party, or to another person, a vendor includes an individual, an association, a partnership or a cotpOration. (n) "Owner's Engineer" means a consulting civil engineer experienced in perfonning the duties set out in Schedule "D" of this Agreement who or which is a partnership, association of persons or a corporation that holds a certificate of authorization, in their or its own name to practice professional civil engineering and is a licensed to do so under the Professional Engineers Act, R.S.O. 1990. c.P .28 as it may be amended from time to time provided that the Owner's Engineer shall not be the Owner, or an officer, director, shareholder or employee of the Owner. (0) "Planning Act" means the Planning Act, R.S.O. 1990, c.P.13 as it may be amended or replaced from time to time. (P) '~Region" means The Corporation of the Regional Municipality of Durham. (q) "Solicitor" means the solicitor for the Purchaser. (r) "Tile Drainage Act" means the Tile Drainage Act, R.S.O. 1990, c.T.8 as it may be amended or replaced from time to time. (s) "Treasurer" means the Director of FinancefI'reasurer of the Municipality or his designated representative. JLfi.. ~v- \ t. ,. Schedule "F" Page 4 (t) "Workplace Safety and Insurance Act, 1997" means the Workplace Safety and Insurance Act, 1997 as it may be amended or replaced from time to time. (u) "Ellis Lands" has the meaning assigned to it in Recital A of this Agreement. (v) "Adjoining Lands" has the meaning assigned to it in Recital C of this Agreement. (w) "Property" has the meaning assigned to it in Section l(a) of this Agreement. (x) "Purchase Price" has the meaning assigned to it in Section l(a) of this Agreement. (y) "Survey" has the meaning assigned to it in Section 1 (b) of this Agreement. (z) "Closing Date" has the meaning assigned to it in Section 2(a) of this Agreement. (aa) "Discharge Easement" has the meaning assigned to it in Section 3(a) of this Agreement. (bb) "SWMP" has the meaning assigned to it in Section 3(a) of this Agreement. (ee) "SWMP Licence" has the meaning assigned to it in Section 3(b) of this Agreement. Jl~v~ . (dd) (ee) (ft) (gg) (hh) (ii) (ij) (kk) (11) (mm) (nn) Schedule "F" Page 5 "Maintenance Value" has the meaning assigned to it in Section 3( d) of this Agreement. "Trail" has the meaning assigned to it in Section 3(e) of this Agreement. "Trail Licence" has the meaning assigned to it in Section 3( e) of this Agreement. "Requisition Date"has the meaning assigned to it in Section 6 of this Agreement. "ERS" has the meaning assigned to it in Section 21 of this Agreement "Works" has the meaning assigned to it in Section 1 of Schedule "B" of this Agreement. "Engineering Drawings" has the meaning assigned to it in Section 4(1) of Schedule "B" of this Agreement. "Reapproved Engineering Drawings" has the meaning assigned to it in Section 4(1) of Schedule "B" of this Agreement. "Grading and Drainage Plan,t has the meaning assigned to it in Section 4(2) of Schedule "B" of this Agreement. "Reapproved Grading and Drainage Plan" has the meaning assigned to it in Section 4(2) of Schedule "B" of this Agreement. "Staging Plan" has the meaning assigned to it in Section 5 of Schedule "B" of this Agreement. 07~ C\'~ . . . Schedule "F" Page 6 (00) "Schedule of Works" has the meaning assigned to it in Section 6 of Schedule "B" of this Agreement. (Pp) "Works Cost Estimates" has the meaning assigned to it in Section 7 of Schedule "B" of this Agreement. (qq) "Authorization to Commence Works" has the meaning assigned to it in Section 8 of Schedule "B" of this Agreement. (rr) "Damaged Services" has the meaning assigned to it in Section 16 of Schedule "B" of this Agreement. (ss) "Certificate of Completion" has the meaning assigned to it in Section 18 of Schedule "B" of this Agreement. (tt) "Certificate of Acceptance" has the meaning assigned to it in Section 19 of Schedule "B" of this Agreement. (uu) "Performance Guarantee" has the meaning assigned to it in Section 1 of Schedule "e" of this Agreement. (vv) "Maintenance Guarantee" has the meaning assigned to it in Section 5(1) of Schedule "e" of this Agreement. (ww) "Security for the Maintenance Guarantee" has the meaning assigned to it in Section 5(1) of Schedule Ole" of this Agreement. (2) Whether or not it so provides explicitly, every provision of this Agreement by which the Vendor is required to undertake any action shall be deemed to include the words "at the cost of the V eodor." ~.c~ ~ .~,~f\ .II . . Schedule "F" Page 7 (3) Unless the context otherwise requires when used in this Agreement, the singular includes the plural and the masculine includes the feminine. G:ICorporm'NMlCCIsICIarinJlOft\Rie.\SCJlEDULE F . Draft NJ.doc J7 ~~ C) tvv ,. . SCHEDULE"G" ~ 1 ~11~V\ THIS SCHEDULE IS SCHEDULE "G" to the Agreement which has been authorized and approved by By-law No. 2005- 1 ~O of The Corporation of the Purchaser of Cia ring ton, enacted and passed the 27th day of June, 2005. INSURANCE REQUIRED 1. TYPES OF COVERAGE REQUIRED The Vendor shall obtain and maintain insurance of the character commonly referred to as pUblic liability and property damage with an insurance company approved by the Purchaser's Director of FinancelTreasurer and licensed in Ontario to underwrite such insurance and containing terms and conditions which are acceptable to the Purchaser Director of FinancelTreasurer. Such policy or policies of insurance shall indemnity the Purchaser against all damage or claims for damage for: (a) any loss or damage that shall or may happen to any of the Works or any of the Utilities or to any part or parts thereof respectively; (b) any loss or damage that shall or may happen to any of the materials or any of the equipment or any other things used to construct or install any of the Works or any part or parts thereof respectively; (c) any injury to any person or persons including workmen employed on the said 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 said Lands; (e) any loss or damage that shall or may result from the disposal of effluent from any sewage disposal works; and .Jj . -2- (f) any loss or damage that shall or may happen to any public road or to any other property of the Purchaser or to the property of any other person either directly or indirectly by reason of the Vendor undertaking any or all of the Works. 2. AMOUNTS OF COVERAGE REQUIRED Policy or policies of insurance shall be issued jointly in the names of the Vendor and the Purchaser and shall provide the following minimum coverages for five million ($5,000,000.00) 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 Purchaser shall not be construed to relieve the Vendor 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 each of the Works for all of the Works contemplated by this Agreement. ::ODMAIPCDOCS\DOCS\2008714\3 (J ~ ~ 0iv> '-